Split (1)

train · 252k rows

url stringlengths 54 59	text stringlengths 0 3.41M	downloaded_timestamp stringclasses 1 value	created_timestamp stringlengths 10 10
https://www.courtlistener.com/api/rest/v3/opinions/1875263/	288 Wis.2d 461 (2005) 706 N.W.2d 702 2005 WI App 254 BARNES v. HARTFORD UNDERWRITERS INS. CO. No. 2005AP000229. Court of Appeals of Wisconsin. October 19, 2005. Unpublished Opinion. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249734/	273 F.2d 444 J. E. FALTIN MOTOR TRANSPORTATION, INC., a Corporationv.EAZOR EXPRESS, INC., a Corporation, Appellant. No. 12952. United States Court of Appeals Third Circuit. Argued November 19, 1959. Decided December 7, 1959. As Amended January 13, 1960. Rehearing Denied January 14, 1960. Henry M. Wick, Jr., Pittsburgh, Pa. (John A. Vuono, Samuel P. Delisi, Delisi & Wick, Pittsburgh, Pa., on the brief), for appellant. James P. Gill, Pittsburgh, Pa. (Ronald J. McKay, Pittsburgh, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges. GOODRICH, Circuit Judge. 1 This appeal from a judgment for the plaintiff in an action for breach of contract involves responsibility of defendant for the destruction of a trailer leased by plaintiff to defendant. See D.C.W.D.Pa. 1959, 172 F.Supp. 175. Federal jurisdiction is based on diversity of citizenship between a New Hampshire corporation and a Pennsylvania corporation. The contract between the parties was entered into in Pennsylvania and the parties have stipulated that Pennsylvania law is to be applied. What effect that stipulation has we do not decide because we see no problem in the case which depends upon differences in possible choice of law. Cf. 8 P.L.E., Contracts § 122, at page 141 (1958). 2 The subject matter of the controversy is a contract made between the parties both of whom are engaged in interstate truck transportation. This contract, it was stipulated, was entered into pursuant to regulations issued by the Interstate Commerce Commission, and paragraph 2 of the contract itself refers to that regulation. The defendant became bailee of a trailer belonging to the plaintiff. While it was in the defendant's possession it was completely destroyed by fire. There is no allegation that the defendant's negligence caused the fire or the loss. The plaintiff says that the defendant-bailee is absolutely liable for the loss of the trailer while in its possession. The defendant denies this liability and says that its responsibility is limited to a bailee's common law liability for negligence. It says that this is so provided in paragraph 1 of the contract, and, if this is contradicted by later provisions in the contract, the trial court should have received extrinsic evidence as to the intent of the parties in entering into their agreement. The trial judge, sitting without a jury, did receive such evidence (which was contradictory) but concluded that there was no need to resort to it because he found the writing clear enough without such evidence. 3 We turn, then, to the provisions of the contract. Paragraph 1 states: 4 "1. The undersigned carriers enter into this agreement governing their relationship with respect to Interchange of trailers; provided however, that no provision in this contract shall be construed to increase the legal liability of any party hereto." 5 But paragraph 3.5 of the contract provides that the carrier acquiring use of an interchange trailer "agrees to hold the carrier initially furnishing the trailer harmless for any loss or damage thereto * * * arising out of the * * * possession of said trailer, or arising from any other cause. * * " Now, says the defendant, it is apparent that the provisions are inconsistent. Paragraph 1, it contends, provides for common law liability for negligence only. Paragraph 3.5 provides for absolute liability. Hence, the contract is ambiguous and we must try to find out what the parties meant by resorting to extrinsic evidence. If the agreement of the parties is ambiguous the general proposition is sound enough and nobody denies it.1 6 But we do not think that the trial judge was wrong in disregarding the extrinsic evidence which he tentatively admitted. One can, if so inclined, disregard the clause "provided however" quoted above. Every contract made between parties changes their legal relations. And if, prior to the contract, the parties were strangers, the making of a valid agreement between them necessarily increases liability if anything is promised. 7 It would not be good interpretation to disregard language of the parties as meaningless or absurd if that can be avoided. This is especially true since the agreement in question was drawn up as a form contract and we were advised by counsel that hundreds of the forms are used each week without, as he frankly said, anyone reading them. The provision in question can be held to mean that there is no increase of liability beyond that stated in the contract. Both clauses then are applicable. 8 We thus comply with oft cited standards of interpretation: the specific controls the general;2 the contract is to be considered as a whole;3 if possible, all the provisions of the contract should be given effect.4 This also accords with the carefully thought-out provisions of the Pennsylvania Statutory Construction Act.5 The last, of course, is only an analogy.6 9 The defendant also complains that the damages awarded are too high. 10 The trailer was completely destroyed by fire. All that remained was a mass of molten metal impossible to repair. It was a 1956 model and its market value at the time of the fire (July 1957), naturally, was subject to dispute. The trial judge, sitting without a jury, heard testimony on this subject. He credited one expert and not others. This is a situation in which the essential responsibility for fact-finding is entrusted to the trial judge. We cannot say here that his conclusion was "clearly erroneous." See Fed.R.Civ.P. 52(a), 28 U.S.C. 11 The conclusion reached by the district judge was clearly right and the judgment will be affirmed. Notes: 1 See Foulke v. Miller, 1955, 381 Pa. 587, 112 A.2d 124; 8 P.L.E. Contracts § 137 (1958) 2 Harrity v. Continental-Equitable Title & Trust Co., 1924, 280 Pa. 237, 124 A. 493; 8 P.L.E., Contracts § 128 (1958); 3 Corbin, Contracts § 547 at 96 (1951); 3 Williston, Contracts § 619 at 1784 (rev. ed. 1936); Restatement, Contracts § 236(c) (1932) 3 8 P.L.E., Contracts § 134 (1958); 3 Corbin, Contracts § 549 (1951); 3 Williston, Contracts § 618 at 1779 (rev. ed. 1936); Restatement, Contracts § 235(c) (1932) 4 Neal D. Ivey Co. v. Franklin Associates, 1952, 370 Pa. 225, 87 A.2d 236; 8 P.L.E., Contracts § 135 (1958); 3 Williston, Contracts § 618 at 1779 (rev. ed. 1936); Restatement, Contracts § 236(a) (1932) 5 Pa.Stat.Ann. tit. 46 §§ 501-602. Provisions pertinent here are as follows: "§ 551. Construction of laws; legislative intent controls " * * Every law shall be construed, if possible, to give effect to all its provisions." "§ 552. Presumptions in ascertaining legislative intent "In ascertaining the intention of the Legislature in the enactment of a law, the courts may be guided by the following presumptions among others: * * * * * "(2) That the Legislature intends the entire statute to be effective and certain;" "§ 563. Particular controls general "Whenever a general provision in a law shall be in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions be irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the Legislature that such general provision shall prevail." 6 An analysis of the analogous statutory construction standards will be found in an article called "Remarks On the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed" by Professor Karl N. Llewellyn in 3 Vanderbilt Law Review 395, 401-404 (1950), in which the author lists some canons of construction under the fencing terms of thrust and parry. The list is too long to give in full but a few samples will show the analogy of what Professor Llewellyn collected to the situation here "THRUST BUT PARRY 1. A statute cannot go beyond its 1. To effect its purpose a statute may text. be implemented beyond its text. 2. Statutes in derogation of the common 2. Such acts will be liberally construed law will not be extended by if their nature is remedial. construction. 8. Where design has been distinctly 8. Courts have the power to inquire stated no place is left for construction. into real — as distinct from ostensible — purpose. 12. If language is plain and unambiguous 12. Not when literal interpretation it must be given effect. would lead to absurd or mischievous consequences or thwart manifest purpose. 16. Every word and clause must be 16. If inadvertently inserted or if repugnant given effect. to the rest of the statute, they may be rejected as surplusage. 18. Words are to be interpreted according 18. Rules of grammar will be disregarded to the proper grammatical where strict adherence effect of their arrangement within would defeat purpose. the statute. 19. Exceptions not made cannot be 19. The letter is only the `bark.' Whatever read. is within the reason of the law is within the law itself."	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2615120/	668 P.2d 34 (1983) CITY AND COUNTY OF HONOLULU, a municipal corporation, Plaintiff-Appellee, v. KAILUA AUTO WRECKERS, INC., a Hawaii corporation, Defendant-Appellant. No. 8986. Supreme Court of Hawaii. August 18, 1983. Charles S. Gerdes, Honolulu, on briefs, for defendant-appellant. *35 Winston K.Q. Wong, Corp. Counsel, Honolulu, on brief, for plaintiff-appellee. Before LUM, C.J., NAKAMURA, PADGETT, HAYASHI, JJ., and BURNS, C.J., assigned by reason of vacancy. PADGETT, Justice. This is an appeal from an order filed August 12, 1982 imposing sanctions upon the appellant for failure to comply with an order filed November 27, 1981 compelling appellant to vacate and remove all vehicles and parts thereof from appellee's property. No notice of appeal appears in the record. It is counsel's responsibility to review the record once it is docketed and if anything material to counsel's client's case is omitted or misstated, to take steps to have the record corrected pursuant to Rule 75(d), HRCP. Since there is no notice of appeal in the record, the appeal is dismissed. Even if there had been a proper notice of appeal in the record, we conclude, on a review of the briefs, that the appeal is without merit. There are eight points of claimed error on appeal. The first six concern claimed errors in connection with the proceedings leading up to, and the entry of, the November 27, 1981 order, which was a supplementation of an earlier order entered August 22, 1975. Since no appeal was taken from the 1981 order, no consideration could be given to these claimed points of error. The seventh point urged is that the court below erred when, on August 6, 1982, it entered an order denying appellant's motion filed pursuant to Rule 60(b) for relief from the 1981 order on the grounds that the "order is void and there are other reasons justifying relief from said order." Assuming, without deciding, that in the circumstances the appeal is timely as to this order, it is clear that the court below was correct in denying the motion. The 1981 order and the proceedings were not void and no other reason justifying relief from the order was shown. The eighth and final point on appeal is that there was error in adjudging a sanction of $300 a day for non-compliance with the order for removal of the vehicles. An examination of the order, however, shows that the $300 a day sanction would begin only if the appellant failed to comply with the court's order for removal within a 330-day period. We could not call the sanction an abuse of discretion, particularly given the fact that by the time of the entry of the order in 1982, appellant had failed to comply with the 1975 order for removal for seven years. In appellant's brief, it is argued that the award of attorney's fees and costs to the appellee was erroneous, however, no point of error was specified on this claim, and under Rule 3(b)(5) of our rules, it could not be considered. Dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897643/	NO. 07-08-0037-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 29, 2008 ______________________________ THE STATE OF TEXAS FOR THE PROTECTION OF KATHLEEN TRIGGS _________________________________ FROM THE 64TH DISTRICT COURT OF HALE COUNTY; NO. A35742-00711; HONORABLE ROBERT W. KINKAID, JR., JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Appellant Douglas E. Triggs, acting pro se, filed a notice of appeal on January 11, 2008. On appeal, he did not pay the filing fee required under the Rules of Appellate Procedure. Nor did he file an affidavit of indigence in conformity with Rule of Appellate Procedure 20.1. By letter from this Court dated January 14, 2008, we advised appellant that “the filing fee in the amount of $175.00 has not been paid. Failure to pay the filing fee within ten (10) days from the date of this notice may result in a dismissal.” Tex. R. App. P. 42.3(c). Appellant has not paid the fee as directed or filed an affidavit of indigence. Accordingly, we dismiss the appeal. See Tex. R. App. P. 5, 42.3(c). Mackey K. Hancock Justice : justify; line-height: 0.416667in; margin-bottom: 0.104167in"> A writ of mandamus is an order directed personally to the respondent. In re Roseland Oil & Gas, Inc., 68 S.W.3d 784, 786 (Tex.App.–Eastland 2001, orig. proceeding) (“[m]andamus is personal to the judge”). Accordingly, “[m]andamus will not issue against a new judge for what a former one did.” In re Baylor Med. Ctr. at Garland, No. 06-0491, 2008 WL 3991132, at *1(Tex. Aug. 29, 2008) (orig. proceeding) (citing State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig. proceeding)). Rule 7 of the Texas Rules of Appellate Procedure pertains to the substitution of parties in pending appeals and original proceedings. Tex. R. App. P. 7. In part, Rule 7 provides that during an original proceeding against a public officer in an official capacity, if the officer ceases to hold office, the officer’s successor is automatically substituted as a party and “the court must abate the proceeding to allow the successor to reconsider the original party’s decision.” See Tex. R. App. P. 7.2(a) and (b). See also In re Whitfield, 134 S.W.3d 314, 315 (Tex.App.–Waco 2003, orig. proceeding). Accordingly, we order the substitution of Judge Woodburn as Respondent in this original proceeding, see Tex. R. App. P. 7(a), and abate the case for sixty days from the date of this order. During the period of abatement, Relator shall present to Judge Woodburn the requests made the subject of his pending petition for writ of mandamus, obtain a ruling on each, and amend his petition to comply with Rule 53.2 of the Texas Rules of Appellate Procedure. It is so ordered. Per Curiam	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1329802/	182 S.E.2d 48 (1971) FAIRLAWNS HOMES, INC., a Corporation v. The CITY OF MORGANTOWN, West Virginia, etc., et al. No. 12963. Supreme Court of Appeals of West Virginia. Submitted May 4, 1971. Decided June 22, 1971. 49 Michael Tomasky, Robert B. Stone, Morgantown, for appellant. Frank J. DePond, William A. Moreland, Morgantown, for appellees. BROWNING, Judge: This is an appeal by Fairlawns Homes, Inc., a corporation, petitioner below, in a mandamus proceeding instituted in the Monongalia County Circuit Court against the City of Morgantown, a municipal corporation, and the Common Council of said city. Fairlawns Homes, hereinafter referred to as appellant, is the owner of a subdivision known as Pheasant Hills in Morgantown. In February of 1965, appellant began plans to subdivide and, pursuant thereto, appeared before the Morgantown Planning 50 Commission to seek approval of its plat in order to comply with the Morgantown Subdivision Ordinance adopted in 1957. As a result of suggested changes and improvements by the Commission, appellant revised its plat on two occasions. Its final plat was approved by the Commission on July 8, 1965. One of the streets on that approved plat is Lakeland Avenue, and, according to appellant, the Commission assured it that it would have access from Lakeland Avenue to the public streets and sewers of Morgantown. Thereafter, land lying to the north and east of Pheasant Hills was purchased by the Morgan Development Company. Within this area, that company laid out a subdivision known as Oakview Addition. In order for there to be access from Lakeland Avenue to the public streets and sewers of Morgantown, such access would have to be through a small piece of land owned by Morgan Development Company. Appellant contends that this street is a public street within the city limits and, as such, should be made accessible to the public. The Morgantown Subdivision Ordinance of 1957 provides that anyone subdividing within the city or entirely or in part within three miles of the nearest city limit must comply with its provisions. Morgan Development has not filed a plat complying with the ordinance even though Oakview Addition lies wholly within the three-mile limit. Thus, on June 19, 1969, appellant filed a petition for a writ of mandamus in the Monongalia County Circuit Court to compel appellees to enforce the ordinance by requiring Morgan Development to extend Lakeland Avenue across its lands, or, in the alternative, to compel respondents to condemn the necessary property for the extension. Upon a rule to show cause, testimony was taken, and on December 2, 1969, the writ was denied on the ground that the subdivision ordinance was repealed by the enactment of the Morgantown Zoning Ordinance in 1959. We granted an appeal on May 25, 1970, and on May 4, 1971, the case was submitted for decision upon briefs and oral argument of counsel for both sides. Appellant assigns as error the court's ruling as a matter of law that the zoning ordinance repealed the subdivision ordinance, thereby rendering the planning commission without authority beyond the city limits; the court failing to grant appellant one of the alternatives sought in its petition in that the "critical" portions of land involved lie within the city limits, thereby giving the commission jurisdiction under both ordinances; and other errors apparent on the face of the record. One of the issues in this case as presented by appellant is whether the subdivision ordinance of the City of Morgantown as passed in 1957 is in effect, or, as held by the circuit court, whether it was repealed by the zoning ordinance of 1959. Under the subdivision ordinance of 1957 any person subdividing land within the city or within three miles of the nearest city limit must file a plat properly approved by the planning commission. The Urban and Rural Planning and Zoning Act of 1959, according to appellee, restricted this extraterritorial power upon the adoption of a municipal comprehensive plan or the enactment of any amendment to any part thereof. Code, 8-5-3(8), as amended [8-24-3(2)], provides: 8. "Comprehensive plan" means a complete comprehensive plan or any of its parts such as a comprehensive plan of land use and zoning, of thoroughfares, of sanitation, of recreation, and other related matters, and including such ordinance or ordinances as may be deemed necessary to implement such complete comprehensive plan or parts thereof by legislative approval and provision for such regulations as are deemed necessary and their enforcement. The 1959 zoning ordinance, referring to the planning commission, states: [T]he commission shall have power and authority to approve all plats and replats within the City of Morgantown. 51 According to appellee, the zoning ordinance of 1959 is part of a comprehensive plan as defined by Code, 8-5-3(8), as amended, and thus the zoning ordinance of 1957 was repealed. On the other hand, appellant contends that the 1959 zoning ordinance did not repeal the 1957 subdivision ordinance. This is the section of the 1959 zoning ordinance upon which appellant relies: § 3. NON-INTERFERENCE WITH GREATER RESTRICTIONS OTHERWISE IMPOSED. It is not intended by this ordinance to interfere with or abrogate any easements, covenants, or other agreements between parties; nor any ordinances, other than expressly repealed hereby; nor any rules, regulations or permits previously adopted or issued, or which shall be adopted or issued and not in conflict with any of the provisions of this ordinance; except that, where this ordinance imposes a greater restriction upon the use of buildings or land, or upon the height of buildings, or requires larger open spaces or greater lot area per family, than are required or imposed by such easements, covenants or agreements between parties, or by such ordinances, rules, regulations or permits, the provisions of this ordinance shall control. (Emphasis added.) The appellant contends that because of this language the subdivision ordinance has not been repealed by any provision of the zoning ordinance. The trial court here found "as a matter of fact that by reason of the Zoning Ordinance enacted by the City of Morgantown on November 3, 1959, the subdivision ordinance passed on April 1, 1957, was and continues to be repealed and of no further force and effect." The statute above quoted does not provide that upon the adoption by a municipal council of a "comprehensive plan" that all relative ordinances in effect are automatically repealed. It specifically provides that it was "not intended * * to interfere with or abbrogate * * * any ordinances, other than expressly repealed hereby." The April 1, 1957, subdivision ordinance was not expressly repealed by the 1959 zoning ordinance, and it is the view of this Court that the final order of the trial court was in error in so finding in view of the express language above quoted. This Court is of the opinion that the trial court was correct in dismissing the petition in mandamus and in denying the appellants the relief sought in the mandamus proceeding. It is true as alleged in the original petition in mandamus and as shown by plats which were made a part of the record in this case that Fairlawns is unable to extend Lakeland Avenue so that it will have access to the public streets and sewers of Morgantown because Morgan Development owns a small strip of land over which Lakeland Avenue would have to be extended to achieve that purpose. It must be remembered, however, that mandamus is an extraordinary proceeding and lies only when a clear legal right thereto is clearly shown by the one who seeks such relief. The controversy here is primarily, if not wholly, between two private corporations, Fairlawns Homes, Inc., and Morgan Development Company. In this proceeding, Fairlawns seeks to have the city council do what Fairlawns itself apparently cannot by private negotiations achieve with Morgan Development. If Morgan Development had begun subdividing the area across which Lakeland Avenue must pass and had failed to comply with the applicable ordinances and statutes and the city council had refused to require that corporation to so comply, mandamus would lie; but the record is clear to the effect that Morgan Development had submitted no plans to the council or made any effort to subdivide the area in question, that is, that part of its land over which Fairlawns seeks to extend Lakeland Avenue. Therefore, it is the view of this Court that mandamus will not lie to require the Common *52 Council of the City of Morgantown to do that which it has no authority to do, that is, require one corporation to permit another corporation to extend a street or avenue over a portion of its land which lies undeveloped and where its owner has no plans for so doing. This Court has repeatedly laid down the rule that a writ of mandamus will not issue unless three conditions prevail, and none of these can be established in the proceeding itself. On the contrary, they must exist at the time the proceeding is instituted. The conditions are: (1) the existence of a clear legal right of petitioner for the relief sought, (2) the existence of the legal duty on the part of the respondent to do the thing sought to be compelled and (3) the absence of another adequate remedy at law. See, e. g., State ex rel. Kucera v. City of Wheeling, W.Va., 170 S.E.2d 367 (1969); State ex rel. Hercules Tire & Rubber Supply Co., etc., v. Gore, 152 W.Va. 76, 159 S.E.2d 801 (1968); State ex rel. Damron v. Ferrell, 149 W.Va. 773, 143 S.E.2d 469 (1965); State ex rel. Fox v. Board of Trustees of Policemen's Pension or Relief Fund of City of Bluefield, 148 W.Va. 369, 135 S.E.2d 262 (1964). This Court is of the opinion that appellant did not satisfy the first two of these requirements. Although the trial court did not specifically pass upon the question of whether mandamus would lie to require the Common Council of the City of Morgantown to acquire a strip of land across the property of the Morgan Development Company by eminent domain proceedings so that Fairlawns Homes could extend Lakeland Avenue across that area, it can necessarily be concluded from what has heretofore been said that the trial court was correct in not granting the relief sought in that regard. Therefore, the final judgment of the Circuit Court of Monongalia County is affirmed. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897586/	NO. 07-08-0100-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 18, 2008 ______________________________ RYHAN CHRISTOPHER JOHNSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 54,443-E; HONORABLE ABE LOPEZ, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Â Â Â Â Â Â Â Â Â Â Pending before this Court is Ryhan Christopher Johnsonâs Motion to Dismiss Appeal in which he represents that he is voluntarily seeking dismissal of his appeal. As required by Rule 42.2(a) of the Texas Rules of Appellate Procedure, the motion is signed by Appellant and his attorney. No decision of this Court having been delivered, the motion is granted and the appeal is dismissed. No motion for rehearing will be entertained, and as requested by Appellant, our mandate will issue forthwith. Â Â Â Â Â Â Â Â Â Â Accordingly, the appeal is dismissed. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Patrick A. Pirtle Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Do not publish. UnhideWhenUsed="false" QFormat="true" Name="Title"/> NO. 07-09-00250-CV Â IN THE COURT OF APPEALS Â FOR THE SEVENTH DISTRICT OF TEXAS Â AT AMARILLO Â PANEL B Â JULY 14, 2010 Â Â GALLAND HENNING NOPAK, INC., APPELLANT Â v. Â SUSAN COMBS, SUCCESSOR TO CAROLE KEETON STRAYHORN, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS; AND GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS, APPELLEES Â Â FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY; Â NO. D-1-GN-06-001409; HONORABLE C. W. DUNCAN, JR., JUDGE Â Â Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Â Â OPINION Â Â Â Â Â Â Â Â Â Â Â Appellant, Galland Henning Nopak, Inc. (Nopak), appeals an order of the trial court granting defendantsÂ, Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas,[1] and Greg Abbott, Texas Attorney General (collectively, Âthe StateÂ), motion for summary judgment and denying NopakÂs motion for summary judgment.Â We affirm. Background Â Â Â Â Â Â Â Â Â Â Â The Texas Comptroller of Public Accounts discovered that Nopak, a Wisconsin corporation that manufactures and sells pneumatic and hydraulic cylinders and valves, had been filing employee wages for its Texas-based employee, David Sebbas.Â Due to this discovery, the Comptroller established a franchise tax account and gave Nopak thirty days to file its franchise tax reports.Â After Nopak failed to respond to the ComptrollerÂs notice, the Comptroller estimated NopakÂs franchise tax liability for the years of 1995 through 2004.Â Nopak subsequently requested a redetermination of the assessment resulting in the Comptroller issuing a decision finding that there was a sufficient nexus between NopakÂs business and Texas to justify the imposition of the franchise tax assessed.Â Nopak then filed the instant lawsuit claiming that NopakÂs business had insufficient nexus with Texas to allow the assessment of franchise taxes. Â Â Â Â Â Â Â Â Â Â Â Â As a result of NopakÂs lawsuit, a hearing was held before the Administrative Law Judge of the ComptrollerÂs Office.Â During this hearing, Nopak called Sebbas and Joseph Dechant, general sales manager for Nopak, to testify.Â Sebbas and Dechant testified that Sebbas was employed by Nopak as a regional manager, servicing the needs of distributors in seven and a half states, including Texas.Â Dechant and Sebbas then testified regarding the responsibilities of a regional sales manager.[2]Â After requesting some briefing from the parties, the Administrative Law Judge of the ComptrollerÂs Office found that Nopak had a substantial nexus with Texas and was, therefore, subject to the franchise tax assessment.Â Nopak appealed this decision to the district court.Â Both parties filed motions for summary judgment based on the evidence that had been admitted at the administrative law hearing.[3]Â The district court granted the StateÂs traditional summary judgment motion and denied NopakÂs summary judgment motion.Â Nopak timely appealed. Â Â Â Â Â Â Â Â Â Â Â By one issue, Nopak appeals the district courtÂs grant of summary judgment in favor of the State and denial of NopakÂs motion for summary judgment.Â Nopak contends that the imposition of the Texas franchise tax against Nopak constitutes a violation of the United States Constitution because Nopak does not have a substantial nexus with the State of Texas. Standard of Review Â Â Â Â Â Â Â Â Â Â Â We review a trial court's decision to grant or to deny a motion for summary judgment de novo. Â See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Â Although the denial of summary judgment is ordinarily not appealable, we may review such a denial when both parties moved for summary judgment and the trial court granted one and denied the other. Â Id. Â When reviewing competing motions for summary judgment, we review the summary judgment evidence presented by each party, determine all questions presented, and render the judgment that the trial court should have rendered. Â Id.; FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., 301 S.W.3d 787, 792 (Tex.App.--Fort Worth 2009, pet. denied).Â When the trial court does not specify the basis on which it granted summary judgment, the judgment will be affirmed on any meritorious ground expressly presented in the motion. Â State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). Law and Analysis Nopak contends that it is entitled to summary judgment because it established, as a matter of law, that it lacks a substantial nexus with the state and, therefore, the imposition of the Texas franchise tax would be an unconstitutional abridgement of interstate commerce.Â The State responds that the evidence established, as a matter of law, that the activities of Nopak created a substantial nexus between the company and Texas and, therefore, the assessment of the Texas franchise tax against Nopak was constitutional and authorized by the laws of Texas. The United States Constitution specifically grants Congress the power to regulate commerce among the several states, which implicitly prohibits the states from actions that interfere with interstate commerce, such as taxation.Â See U.S. Const. art. I, Â§ 8; Rylander v. Bandag Licensing Corp., 18 S.W.3d 296, 298-99 (Tex.App.ÂAustin 2000, pet. denied).Â However, the Commerce Clause does not prohibit all direct state taxation of interstate commerce.Â Rylander, 18 S.W.3d at 299.Â A state tax on a foreign corporation will be sustained if the Âtax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.ÂÂ Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 51 L. Ed. 2d 326 (1977).Â NopakÂs challenge to the assessment of the Texas franchise tax is limited to whether a substantial nexus exists between Nopak and Texas. Texas imposes a franchise tax on each corporation that does business in the state.Â Tex. Tax Code Ann. Â§ 171.001(a) (Vernon 2008); INOVA Diagnostics, Inc. v. Strayhorn, 166 S.W.3d 394, 396 (Tex.App.ÂAustin 2005, pet. denied).Â A foreign corporation has a substantial nexus with Texas if the corporation can be taxed without violating the United States Constitution.Â 34 Tex. Admin. Code Â§Â§ 3.546(b) (2010) (Comptroller of Pub. Accounts, Taxable Capital; Nexus), 3.554(a) (2010) (Comptroller of Pub. Accounts, Earned Surplus: Nexus).Â The Supreme Court has established a bright-line rule to determine whether a taxing state has a sufficient nexus with the taxpayer to allow taxation: does the taxpayer have a Âphysical presence in [the] state.ÂÂ INOVA Diagnostics, Inc., 166 S.W.3d at 402 (citing Quill Corp. v. North Dakota, 504 U.S. 298, 314, 112 S.Ct. 1904, 119 L. Ed. 2d 91 (1992)).Â This bright-line test distinguishes companies whose only connection to the taxing state is by common carrier or the United States mail from those that have a physical presence in the taxing state, such as a small sales force, plant, or office.[4]Â See Quill Corp., 504 U.S. at 315.Â Thus, the constitutionality of the imposition of the Texas franchise tax on Nopak depends on the determination of whether Nopak had a physical presence in Texas.Â As a guide to this determination, the Comptroller has indicated that a representative of a foreign corporation in the state Âto promote or induce sales of the foreign corporationÂs goods or services . . .Â is indicative of a physical presence in the state.Â 34 Tex. Admin. Code Â§ 3.546(c)(4). The facts in this case are not in dispute.Â The dispute revolves around whether the activities of Sebbas were sufficient to create a substantial nexus between Nopak and Texas.Â The evidence establishes that Nopak is a foreign corporation that sells products in Texas; Sebbas was a regional manager for Nopak during the relevant time period and Texas was included in his region; and, other than the activities of Sebbas, NopakÂs only connection to the state was by common carrier and the United States mail.Â It is the job of NopakÂs regional managers Âto support the sales efforts of our distribution . . . companies with whom we have agreements.ÂÂ The regional managers are Âmore or less our liaisonÂ with the distributors of NopakÂs products.Â Sebbas described his job as Âmak[ing] sure that Nopak . . . is taking care of . . . the distributor, period, and that they are satisfied with their services.ÂÂ Being mindful that a corporation has a physical presence with the state if, inter alia, it has a sales force in the state, see Quill Corp., 504 U.S. at 315, we will look to the types of activities that Sebbas performed in the state to determine whether they were sufficient to establish that Nopak had a substantial nexus with the state.Â Dechant testified that one purpose of SebbasÂs presence in Texas was to allow customers to see a representative of Nopak periodically Âto keep us in a dominant position among the salespeople.ÂÂ Dechant further testified that Sebbas was presented by many distributors to be an expert on the Nopak product line and able to answer questions that the customers of the distributor might have.Â Dechant and Sebbas both testified that Sebbas would communicate advantages of Nopak products to distributors and their customers.Â While we fully acknowledge that Sebbas was not authorized to directly solicit or take orders for NopakÂs products, we conclude that his Texas activities were Âto promote or induce salesÂ of NopakÂs products and, therefore, were sufficient to conclusively establish that Nopak had a physical presence in the state.Â See Tyler Pipe Indus. Inc. v. Wash. State DepÂt of Revenue, 483 U.S. 232, 250, 107 S.Ct. 2810, 97 L. Ed. 2d 199 (1987) (approving of the state courtÂs holding that Âthe crucial factor governing nexus is whether the activities performed in this state on behalf of the taxpayer are significantly associated with the taxpayer's ability to establish and maintain a market in this state ....Â (emphasis added)).Â As such, we affirm the trial courtÂs implied determination that the assessment of the Texas franchise tax against Nopak does not violate the Commerce Clause. Nopak further contends that SebbasÂs activities in Texas were, at best, de minimis activities that should be ignored for taxing purposes.Â The substantial nexus requirement requires more than de minimis contact with the state before taxes may be assessed against a foreign company doing business through interstate commerce.Â See Wis. DepÂt of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231, 112 S.Ct. 2447, 120 L. Ed. 2d 174 (1992).Â Texas has defined de minimis activities to include Âthose [activities] that, when taken together, establish only a trivial additional connection with Texas.Â An activity regularly conducted within Texas pursuant to a company policy or on a continuous basis shall normally not be considered trivial.ÂÂ 34 Tex. Admin. Code Â§ 3.554(c)(3).Â An activity is more than de minimis if it serves an independent business function, separate from requesting orders, that the company would have reason to engage in whether or not it employed a sales force.Â See Wis. DepÂt of Revenue, 505 U.S. at 228-29.Â In Texas, an example of an activity that is an independent business function in the state is the Âinvestigating, handling, or otherwise assisting in resolving customer complaints.ÂÂ 34 Tex. Admin. Code Â§ 3.554(d)(7). Looking at the activities performed by Sebbas on behalf of Nopak, the evidence establishes that his primary job was investigating, handling, or otherwise assisting in resolving customer complaints.Â While Nopak focuses on the infrequency with which Sebbas would go with a distributor to the distributorÂs customer to Âput out firesÂ relating to those customerÂs complaints, there was evidence presented that Sebbas would take similar actions when it was a distributor that had a complaint regarding NopakÂs products or service.Â Based on the testimony of Dechant and Sebbas, it is hard to identify any services that Sebbas provided Nopak beyond extolling the virtues of NopakÂs products to distributors and attempting to resolve customer complaints.Â In addition, it appears that it is NopakÂs policy to have regional managers located throughout the country so that Nopak will have a continuous presence with its distributors. That the perception of Nopak having a local physical presence is a reason for Nopak to employ regional managers is shown through DechantÂs testimony that, ÂThereÂs an old axiom in our business that out of sight [is] out of mind, so we firmly believe that they need to see a representative of our company periodically . . . .ÂÂ Thus, SebbasÂs activities were performed in accordance with a company policy and on a continuous basis.Â Consequently, we affirm the trial courtÂs implied finding that SebbasÂs activities in Texas were more than de minimis and, therefore, justified the assessment of Texas franchise taxes against Nopak.Â Conclusion For the foregoing reasons, we conclude that the trial court did not err in granting the StateÂs motion for summary judgment and denying NopakÂs motion for summary judgment.Â Therefore, we affirm the judgment of the trial court. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Â [1] Susan Combs is the current Texas Comptroller of Public Accounts and, as a successor in interest, is a party to this appeal in her official capacity. [2] The testimony regarding the responsibilities of NopakÂs regional sales managers will be addressed in the analysis below. [3] Both Dechant and Sebbas were deceased by the time that the district court considered the competing motions for summary judgment. [4] We fully agree with NopakÂs contention that the physical presence required in Quill Corp. is not satisfied simply by Sebbas having chosen to live in Texas.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/4561301/	Case: 20-10162 Document: 00515544398 Page: 1 Date Filed: 08/28/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 28, 2020 No. 20-10162 Lyle W. Cayce Clerk BNSF Railway Company; Kansas City Southern Railroad Company; CSX Transportation, Incorporated; Grand Trunk Western Railroad Company; Norfolk Southern Railway Company; Illinois Central Railroad Company; Union Pacific Railroad Company; Belt Railway Company of Chicago, Plaintiffs—Appellees, versus International Association of Sheet Metal, Air, Rail and Transportation Workers - Transportation Division, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CV-789 Before Smith, Higginson, and Engelhardt, Circuit Judges. Kurt D. Engelhardt, Circuit Judge: This appeal arises out of a railway labor dispute between Plaintiffs, a group of railroad companies (collectively, “the Railroads”), and Defendant, International Association of Sheet Metal, Air, Rail, and Transportation Case: 20-10162 Document: 00515544398 Page: 2 Date Filed: 08/28/2020 No. 20-10162 Workers-Transportation Division (“SMART-TD”), a labor organization that represents the Railroads’ employees who are employed in the craft and/or class of train service. This dispute began—as so many other railway labor disputes have—when the Railroads proposed new and streamlined procedures for the operation of the train, and SMART-TD pumped the brakes on their progress. Despite its familiar origins, however, this case presents novel questions regarding a court’s authority to intervene in a railway labor dispute. Specifically, we consider whether the district court properly issued an injunction requiring SMART-TD to bargain on the Railroads’ proposal. We vacate and remand. I. In anticipation of the November 1, 2019 opening of a new round of collective bargaining, the Railroads sent a letter to SMART-TD’s President, notifying the union that the Railroads intended to seek changes in crew consist. It suffices to say that crew consist, the number of workers manning a train, has been a topic of fierce debate between the parties over the decades. 1 Crew consists in the early 1900s comprised as many as ten workers. But with the advent of various technological advances, fewer employees were required to operate a train, and the Railroads progressively sought to reduce crew size. 2 Invoking safety and efficiency concerns, SMART-TD and its predecessors resisted these proposals tooth and nail. Despite their best efforts, the current typical crew consist has been reduced to just one or two employees. 1 For a complete recitation of the storied history of crew consist, see Bhd. of R. R. Trainmen v. Akron & B. B. R. Co., 385 F.2d 581, 588-92 (D.C. Cir. 1967). 2 For example, when diesel fueled trains became ubiquitous in the 1960s, railroad companies sought to reduce crew consist by eliminating firemen—an obsolete position left over from the days of steam powered trains. 2 Case: 20-10162 Document: 00515544398 Page: 3 Date Filed: 08/28/2020 No. 20-10162 In exchange for reduced crew sizes, the Railroads offered unions certain benefits, including special allowance payments, a “productivity fund,” and a guarantee that crew size would only be reduced through a process of “pure attrition.” “Pure attrition” means that the positions would be eliminated only as the employees who held those positions died, retired, or voluntarily terminated their employment, rather than eliminating the positions through furloughs or layoffs. Because crew size is negotiated on a local basis, 3 there are a total of 45 distinct collective bargaining agreements (“CBA”) between SMART-TD and the Railroads. Most of these CBAs contain a moratorium provision, which bars the parties from making proposals to change “specific provisions” in the agreement until all employees who were working as of the date of the agreement have left via attrition. Of the 45 CBAs, 31 have a “standard” moratorium, which generally provides: The parties to this Agreement shall not serve or progress, prior to the attrition of all protected employees, any notice or proposal for changing the specific provisions of this Agreement governing pure attrition, car limits and train lengths, special allowance payment to reduced crew members, employee productivity fund deposits and the administration thereof. Seven of the CBAs have a moratorium provision that does not track this standard language. These moratoria read: 3 SMART-TD has a three-tiered structure: (1) the International, which functions as the administrative head, (2) General Committees of Adjustment (“GCA”), which are semi-autonomous mid-level bodies that are responsible for negotiating and enforcing their respective collective-bargaining agreements, and (3) locals, where membership is held. Crew consists are customarily bargained at the GCA level. 3 Case: 20-10162 Document: 00515544398 Page: 4 Date Filed: 08/28/2020 No. 20-10162 The parties to this agreement shall not serve or progress, prior to the attrition of all protected employees, any notice or proposal for changing the crew size and or productivity fund provided for in this agreement. As it pertains to this Article, protected employees are Trainmen with a seniority date as of July 28, 2003. The remaining seven either have no moratorium provision or one that has expired. The meaning of these provisions lies at the heart of this dispute. According to SMART-TD, The purpose of these agreements was to regulate crew size and how crew size would be reduced. Crews could only be reduced by “pure attrition,” i.e., only when those employees voluntarily left their positions. The moratoria bar proposals on crew size until the last protected employee left. There is no dispute that protected employees are still employed. In sum, SMART-TD takes the position that the Railroads are not permitted to request any changes in crew consist until the last protected employee under the moratorium has voluntarily left the position. Therefore, when the Railroads sent notice that they were seeking to change crew consist―while protected persons were still employed―SMART-TD refused to negotiate. Unsurprisingly, the Railroads disagree about the meaning of the standard moratorium. 4 They have interpreted it as a protection to [P]revent renegotiation of the quid pro quos given to employees in exchange for the last round of crew size reductions. Most, if not all, of the modern moratoriums were based on the “Milwaukee Road” agreement, which provided 4 As to the non-standard agreements, the Railroads served different Section 6 proposals seeking only the redeployment of existing crews, without any reduction in the size or consist of the crews. 4 Case: 20-10162 Document: 00515544398 Page: 5 Date Filed: 08/28/2020 No. 20-10162 various benefits to employees, such as special allowances, productivity funds, furlough protections, limits on train lengths, and the like. It is those employee benefits – not new changes in “crew consist” – that are the subject of the moratoriums. According to the Railroads, after SMART-TD was served with notice regarding crew consist proposals, collective bargaining was required under the applicable provisions of the Rail Labor Act (“RLA”). 45 U.S.C. § 152, et seq. Accordingly, given this impasse, the Railroads served their complaint on SMART-TD on October 25, 2019, alleging that its refusal to bargain over crew consist violated the RLA. On November 7, the Railroads moved for a preliminary injunction that would require SMART-TD to begin negotiating over the crew consist proposals. The district court held a hearing on December 19, during which the Railroads requested that the court convert its preliminary injunction to a permanent one, should the court find in its favor. The court did just that in an order on February 11, 2020. Namely, it permanently enjoined SMART-TD (1) “from refusing and/or failing to bargain in good faith with each of the Railroads over the November 2019 Crew Consist Proposals in the manner required by the RLA”; and (2) “from refusing and/or failing to bargain in good faith with the multi-carrier group of Railroads with respect to the Railroads’ November 2019 Alternative Wage Proposal.” SMART-TD timely appealed, and we granted its motion to expedite the appeal. 5 Case: 20-10162 Document: 00515544398 Page: 6 Date Filed: 08/28/2020 No. 20-10162 II. A trial court’s grant of a permanent injunction 5 is reviewed for abuse of discretion. State v. Ysleta Del Sur Pueblo, 955 F.3d 408, 413 (5th Cir. 2020), as revised (Apr. 3, 2020). The district court abuses its discretion if it “(1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction, (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive relief.” M. D. by Stukenberg v. Abbott, 907 F.3d 237, 248 (5th Cir. 2018). The district court’s order is entitled to deference, but we review de novo any questions of law underlying the decision. Ysleta, 955 F.3d at 413. III. The parties’ entitlement, and the court’s authority, to issue an injunction depend upon the type of dispute the court was presiding over, so we must first decide whether the district court properly classified the present dispute. We hold that it did, but that does not end the analysis. We must also determine if the injunction it issued was a proper remedy considering the type of dispute present. We hold that it was not. 5 There are four traditional criteria considered by the district court in deciding whether the movant is entitled to an injunction: (1) irreparable injury; (2) substantial likelihood of success on the merits; (3) a favorable balance of hardships; and (4) no “disserv[ice]” to the public interest. See Plains Cotton Co-op. Ass’n v. Goodpasture Comput. Serv., Inc., 807 F.2d 1256, 1259 (5th Cir. 1987); Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 471 (5th Cir. 1985). “The district court’s determinations as to each of the elements required for a preliminary injunction are mixed questions of fact and law, the facts of which we leave undisturbed unless clearly erroneous.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1462 (5th Cir. 1990). 6 Case: 20-10162 Document: 00515544398 Page: 7 Date Filed: 08/28/2020 No. 20-10162 A. Classifying the dispute The RLA, enacted in 1926, was “an agreement worked out between management and labor, and ratified by the Congress and the President.” Chicago & N. W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 576 (1971). The “heart” of the RLA is the duty imposed by 45 U.S.C. § 152, First upon management and labor [T]o exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof. Chicago & N. W. Ry. Co., 402 U.S. at 574. To effectuate peaceful dispute resolution, the RLA sets out a mandatory and “virtually endless” process of “negotiation, mediation, voluntary arbitration, and conciliation.” Burlington N. R.R. v. Bhd. of Maint. of Way Emps., 481 U.S. 429, 444 (1987). Specifically, the RLA delineates two tracks of resolution, depending upon whether the dispute is “major” or “minor.” Consol. Rail Corp. v. Ry. Labor Execs. Ass’n, 491 U.S. 299, 302–04 (1989) (“Conrail”). A dispute is “major” where a party seeks new agreement terms “affecting rates of pay, rules, or working conditions.” 45 U.S.C. § 152, Seventh; § 156. Major disputes “relate[] to . . . the formation of collective agreements or efforts to secure them.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945), adhered to on reh’g, 327 U.S. 661 (1946). Therefore, in a major dispute the “issue is not whether an existing agreement controls the controversy” or an “assertion of rights claimed to have vested in the past” but “[t]hey look to the acquisition of rights for the future.” Id. To initiate the major dispute procedures under Section 156 of the RLA, a party must first serve a Section 6 notice of the proposed changes. 45 7 Case: 20-10162 Document: 00515544398 Page: 8 Date Filed: 08/28/2020 No. 20-10162 U.S.C. § 156. Within thirty days after the notice is served, the parties are obligated to begin “conferences.” Id. If no agreement can be reached voluntarily through negotiation, “[m]ajor disputes go first to mediation under the auspices of the National Mediation Board; if that fails, then to acceptance or rejection of arbitration; and finally[,] to possible presidential intervention to secure adjustment.” Elgin, 325 U.S. at 725 (internal quotations and citations omitted). During the pendency of a major dispute, “the parties are obligated to maintain the status quo, and the employer may not implement the contested change in rates of pay, rules, or working conditions.” Conrail, 491 U.S. at 302–03. Finally, it is only once “this protracted process ends and no agreement has been reached, the parties may resort to the use of economic force,” such as striking. Id. at 303. Minor disputes, on the other hand, “contemplate[] the existence of a collective agreement already concluded” and “relate[] either to the meaning or proper application of a particular provision.” Elgin, 325 U.S. at 723. Thus, a proposed action creates a minor dispute “if the action is arguably justified by the terms of the parties’ collective-bargaining agreement. Where, in contrast, the employer’s claims are frivolous or obviously insubstantial, the dispute is major.” Conrail, 491 U.S. at 307. A party faces a “relatively light burden” to show that a dispute is minor, id., and “if there is any doubt as to whether a dispute is major or minor a court will construe the dispute to be minor.” Ry. Labor Execs. Ass’n v. Norfolk & W. Ry., 833 F.2d 700, 705 (7th Cir. 1987). In Section 153, the RLA provides a more streamlined process for minor disputes. See Elgin, 325 U.S. at 727–28. After failed negotiation, “[a] minor dispute . . . is subject to compulsory and binding arbitration before the National Railroad Adjustment Board . . . or before an adjustment board established by the employer and the unions representing the employees.” Conrail, 491 U.S. at 303–04 (citing 45 U.S.C. § 153). Striking and other self- 8 Case: 20-10162 Document: 00515544398 Page: 9 Date Filed: 08/28/2020 No. 20-10162 help tactics arising out of minor disputes are prohibited. Id. at 304. And, in a minor dispute, a party is permitted to move unilaterally on its “own interpretation of the agreement pending exhaustion of arbitration.” Int’l Bhd. of Teamsters v. Sw. Airlines, 875 F.2d 1129, 1133 (5th Cir. 1989) (“Teamsters”) (en banc); CSX Transp., Inc. v. United Transp. Union, 879 F.2d 990, 997 (2d Cir. 1989) (“The status quo provisions of the RLA generally do not apply in minor disputes, enabling the carrier to act on its own interpretation pending arbitration.”). SMART-TD and the Railroads disagree not only about how to classify the dispute but are also at loggerheads about how many disputes are present. We agree with the Railroads that there are two interrelated, but distinct, disputes. The first—what we will call the “moratorium dispute”—involves interpreting the moratorium to determine whether the Railroads are permitted to propose changes in crew consist before covered employees have voluntarily left their employment. The second—the “crew consist dispute”—is the more substantive dispute regarding how many employees will be required to man a train in the future. Classifying these disputes elucidates their differences. Turning first to the moratorium dispute. This dispute is minor if the Railroads’ interpretation―that the moratoria permitted the Section 6 proposals on crew consist―is arguably covered by the provision, or if it is not fictitious or merely colorable. See St. Louis Sw. Ry. Co. v. United Transp. Union, 646 F.2d 230, 233 (5th Cir. Unit A May 1981) (“UTU”). The district court found “the Railroads have met the ‘relatively light burden’ necessary to show that their interpretations of the CBAs are arguably justified such that the instant dispute is a minor one.” We agree. The standard moratorium provisions specifically preclude bargaining over “pure attrition, car limits and train lengths, special allowance payment to reduced crew members, [and] employee productivity fund deposits.” The plain language of these 9 Case: 20-10162 Document: 00515544398 Page: 10 Date Filed: 08/28/2020 No. 20-10162 moratoria does not explicitly preclude bargaining over crew consist, providing―at a minimum―a non-fictitious argument that Section 6 crew consist proposals are permissible. 6, 7 In fact, out of the 45 CBAs at issue, 31 contain the moratorium that does not specifically list “crew consist” as one of the topics that is off limits for bargaining. SMART-TD concedes as much but maintains that “[t]hose words did not have to appear because the very essence of these agreements [was] about crew size, as noted by the title of the articles themselves.” That may well be true. Regardless, SMART-TD’s argument only confirms that this dispute “may be conclusively resolved by interpreting the existing agreement,” which is “[t]he distinguishing feature of” a minor dispute. Conrail, 491 U.S. at 305. 6 This court, and others, have similarly found disputes over moratoria to be minor. See, e.g., UTU, 646 F.2d at 233; CSX Transp., Inc. v. United Transp. Union, 395 F.3d 365, 368 (6th Cir. 2005) (“We have previously held that a dispute over whether a moratorium provision can be interpreted to bar the serving of Section 6 notices is a minor dispute[.]”); Burlington N. Inc. v. R.R. Yardmasters of Am., No. 76 C 1750, 1976 WL 1570, at 3 (N.D. Ill. June 21, 1976). 7 Further supporting the Railroads’ interpretation is that seven of the CBAs do include moratorium provisions that specifically preclude negotiating crew consist. See supra at § I. This evidence tends to show that SMART-TD intended to protect crew consist in those seven moratoria, but not the others. See Flight Options, LLC v. Int’l Bhd. of Teamsters, Local 1108, 863 F.3d 529, 542 (6th Cir. 2017) (“A claim is ‘arguably justified’ if any reasonable labor arbitrator, applying appropriate principles of contract interpretation . . . could find that the contract does justify a party’s claimed right to take . . . an action.”). Because we have found the existing moratorium arguably allows the Railroads to serve their Section 6 crew consist notices, this dispute is distinguishable from Atlas, which SMART-TD relies on, and which was “not a case about whether the existing CBA arguably permits” an action. Atlas Air, Inc. v. Int’l Bhd. of Teamsters, 928 F.3d 1102, 1110 (D.C. Cir. 2019) (emphasis added). 10 Case: 20-10162 Document: 00515544398 Page: 11 Date Filed: 08/28/2020 No. 20-10162 Because the moratorium dispute is minor and negotiations have failed, it is subject to “compulsory and binding arbitration before the National Railroad Adjustment Board . . . or before an adjustment board established by the employer and the unions representing the employees.” Id. at 303–04. The board will conclusively determine whose interpretation of the moratorium prevails and, consequently, whether SMART-TD is required to bargain crew consist. Indeed, if the board finds that proposals to change crew consist are permitted, that dispute must be bargained because the crew consist dispute is major. This is because changing crew consist involves amending the existing CBAs. 8 Atlas, 928 F.3d at 1109 (“A dispute over the terms of a new or amended collective bargaining agreement is unequivocally major.”). Before these changes can be implemented, the parties must go through the “lengthy process of bargaining and mediation” imposed by Section 156 of the RLA, and if those procedures fail, the dispute will become subject to self-help measures. Conrail, 491 U.S. at 302. As presented, this case could involve two disputes: a minor dispute involving the interpretation of the moratoria and a major dispute over amending the CBAs to change crew consist. See UTU, 646 F.2d at 232 (finding that the railroad and union had “both a major and a minor dispute or a dispute having both major and minor aspects”). This distinction matters not only because it directs the disputes down different paths of resolution, but also because a court’s authority to issue an injunction depends, in part, upon the type of dispute it is presiding over. 8 Changing crew consist is routinely found to be a major dispute. See, e.g., Wheeling & Lake Erie Ry. Co. v. Bhd. of Locomotive Eng’rs & Trainmen, 789 F.3d 681, 693 (6th Cir. 2015); Burlington N. R.R. Co. v. United Transp. Union, 862 F.2d 1266, 1274–75 (7th Cir. 1988). 11 Case: 20-10162 Document: 00515544398 Page: 12 Date Filed: 08/28/2020 No. 20-10162 B. Authority to issue an injunction under the RLA Generally speaking, a court’s jurisdiction in a labor dispute is limited to preserving and enforcing the RLA’s dispute resolution procedures. There are only three scenarios contemplated by the RLA that could have justified the injunction, here. First, a court has authority to issue an injunction in a minor dispute, but only in “exceptional circumstances.” Allied Pilots Ass’n v. Am. Airlines, Inc., 898 F.2d 462, 465 (5th Cir. 1990); Int’l Ass’n of Machinists & Aerospace Workers, Airline Dist. 146 v. Frontier Airlines, Inc., 664 F.2d 538, 541 (5th Cir. 1981) (“Frontier”). Namely, where: (1) it is “necessary to preserve the jurisdiction of the grievance procedure”; or (2) “a disruption of the status quo would result in irreparable injury of such magnitude that it would render any subsequent decision meaningless.” Id. (quoting Teamsters, 875 F.2d at 1136); Frontier, 664 F.2d at 541–42. Second, in a major dispute, a court can issue an injunction: (1) to reinstate the status quo when a party improperly disrupts it; and (2) to enjoin a self-help measure when it is prematurely taken. Conrail, 491 U.S. at 302– 03; United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aerospace Workers, AFL- CIO, 243 F.3d 349, 362 (7th Cir. 2001). And, a court may do so “even without the traditional showing of irreparable injury to the other party.” United Air Lines, Inc., 243 F.3d at 362. Third, Section 152, First’s command “to exert every reasonable effort to make and maintain agreements” was “intended to be more than a mere statement of policy or exhortation to the parties.” Chicago & N. W. Ry. Co., 402 U.S. at 577. Rather, it is “a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis.” Id. One of those appropriate means is issuing an injunction requiring a party to bargain in good faith when it fails to do so. Id. 12 Case: 20-10162 Document: 00515544398 Page: 13 Date Filed: 08/28/2020 No. 20-10162 C. Authority to issue an injunction under the NLGA Further limiting a court’s authority to issue an injunction in a railway labor dispute is the Norris-LaGuardia Act (“NLGA”). 29 U.S.C. § 108, et seq. Congress enacted the NLGA in 1932 intending to “tak[e] the federal courts out of the labor injunction business.” Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 712 (1982) (quoting Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 369 (1960)) (emphasis omitted). By narrowing the courts’ jurisdiction to enjoin labor disputes, Congress hoped to stop courts from indiscriminately awarding injunctions against striking employees—a practice that had become commonplace across federal courts. See Nat’l Woodwork Mfrs. Ass’n v. N.L.R.B., 386 U.S. 612, 620 (1967) (stating that “[f]ederal court injunctions freely issued against all manner of strikes and boycotts under rulings that condemned virtually every collective activity of labor as an unlawful restraint of trade”). For example, Section 8 of the NLGA precludes injunctions except where the plaintiff has “ma[d]e every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” § 108. If the NLGA totally divested the courts of power to issue an injunction, however, the RLA’s mandates would ring hollow. “To accommodate the competing demands of the RLA and the Norris-LaGuardia Act, our cases establish that the Norris-LaGuardia Act does not deprive the federal court of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act.” Burlington N. R.R. Co., 481 U.S. at 445 (citing cases). But this exception is a limited one. “[W]hen a violation of a specific mandate of the RLA is shown, courts should hesitate to fix upon the injunctive remedy . . . unless that remedy alone can effectively guard the plaintiff’s right.” Id. at 446. 13 Case: 20-10162 Document: 00515544398 Page: 14 Date Filed: 08/28/2020 No. 20-10162 D. The District Court’s Injunction Here, the district court enjoined SMART-TD from (1) refusing and/or failing to bargain in good faith with each of the Railroads over the November 2019 Crew Consist Proposals in the manner required by the RLA; and (2) from refusing and/or failing to bargain in good faith with the multi- carrier group of Railroads with respect to the Railroads’ November 2019 Alternative Wage Proposal. On appeal, SMART-TD challenges only the first part of the injunction, so our review is limited accordingly. We have already established that there is a major dispute over crew consist and a minor dispute over the interpretation of the moratorium. We must next determine whether either of these disputes triggered the court’s authority to issue an injunction. Predictably, the parties disagree about what type of injunction the court issued. SMART-TD contends that the district court erroneously issued a status quo injunction, which is a major dispute remedy, in the moratorium dispute, which is minor. The Railroads insist that the injunction was issued under the major crew consist dispute and was ordered to enjoin SMART-TD’s violation of Section 152, First. The parties do seem to agree that the injunction was not granted as a minor dispute remedy. We concur, as the court made no findings that the injunction was either (1) necessary to preserve the jurisdiction of the grievance procedure; or (2) that disruption of the status quo would result in irreparable injury of such magnitude that it would render any subsequent decision meaningless. Teamsters, 875 F.2d at 1136. Without these necessary findings, we cannot affirm the district court’s injunction as a properly issued remedy in a minor dispute. Nor can we say that the injunction was warranted as a major dispute remedy. The district court concluded that the injunction “is necessary to preserve the status quo[,]” which, along with enjoining premature strikes, is 14 Case: 20-10162 Document: 00515544398 Page: 15 Date Filed: 08/28/2020 No. 20-10162 a proper ground to issue an injunction in a major dispute. Conrail, 491 U.S. at 302–03. The problem is that the injunction the court issued does not preserve the status quo. Compare with Chicago & N. W. Ry. Co. v. United Transp. Union, 471 F.2d 366, 368 (7th Cir. 1972). 9 During a major dispute, the status quo refers to “those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” Detroit & Toledo Shore R.R. Co. v. United Transp. Union, 396 U.S. 142, 153 (1969). According to the Railroads, here, “the ‘status quo’ requirement prohibits the carriers from unilaterally changing crew consist rules to eliminate or redeploy conductors―and prohibits SMART-TD from striking in response to the carriers’ proposals―until the bargaining process is complete.” The district court’s injunction does neither of those things. If purported to be a major dispute remedy to preserve the status quo, therefore, it was improper. Conrail, 491 U.S. at 302–03. Section 152, First is the only remaining ground that may validate the district court’s order. When the Supreme Court first established that Section 152, First’s duty to bargain in good faith was judicially enforceable, it 9 The Seventh Circuit affirmed the district court’s injunction after it found that an injunction was necessary to maintain the status quo [B]ecause a strike would (1) moot the appeal; (2) irreparably injure CNW and the public, because it would suspend the transportation of freight and passengers resulting in the loss of hundreds of thousands of dollars in revenue each day to CNW; (3) deprive the public of transportation, including 90,000 commuters daily, as well as mail, freight, etc.; (4) seriously impair government services, including both military and civilian personnel, supplies, material, etc.; (5) threaten the health and welfare of a whole section of the country because of a shortage of food, medicines, etc.; and (6) stop essential transportation services to millions of people. Chicago & N. W. Ry. Co., 471 F.2d at 367 n.2. 15 Case: 20-10162 Document: 00515544398 Page: 16 Date Filed: 08/28/2020 No. 20-10162 observed “that ‘whether action taken or omitted is in good faith or reasonable, are everyday subjects of inquiry by courts in framing and enforcing their decrees.’” Chicago & N. W. Ry. Co., 402 U.S. at 579 (quoting Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 548 (1937)). It therefore found “no reason to believe that the district courts are less capable of making the inquiry in the one situation than in the other.” Id. This focus on a court’s ability to make a good faith determination in the context of a railway labor dispute signifies that good faith is a threshold inquiry as to whether a party violated Section 152, First. Cf. Ass’n of Flight Attendants, AFL-CIO v. Horizon Air Indus., Inc., 976 F.2d 541, 544 (9th Cir. 1992) (“Horizon”) (citing Chicago & N. W. Ry. Co., 402 U.S. at 579) (“Thus the Court clearly held the duty to ‘exert every reasonable effort’ imposed by the RLA requires at least ‘the avoidance of bad faith as defined’ under the NLRA.’”). The district court stated that it “made findings and conclusions . . . that SMART-TD has refused to engage in good-faith bargaining as required by the RLA,” but identified no factual determinations in the opinion to support such a conclusion. It is true that many of the conventional factors bearing on good faith bargaining, such as “obstinate and unyielding” or “extremely harsh” demands, “movement toward the position of the other side,” or engaging in “take-it-or- leave-it” bargaining, are inapplicable, here, where there was no bargaining at all. Trans Int’l Airlines, Inc. v. Int’l Bhd. of Teamsters, 650 F.2d 949, 958 (9th Cir. 1980); Indep. Fed’n of Flight Attendants v. Trans World Airlines, Inc., 682 F. Supp. 1003, 1026 (W.D. Mo. 1988), aff’d, 878 F.2d 254 (8th Cir. 1989); Chicago & N. W. Ry. Co. v. United Transp. Union, 330 F. Supp. 646, 650 (N.D. Ill. 1971). But also relevant to the good faith question is “the proffered reasons for regressive bargaining,” Chicago Local No. 458–3M v. Nat’l Labor Relations Bd., 206 F.3d 22, 33 (D.C. Cir. 2000), and whether a “withdrawal of a proposal by an employer without good cause is evidence of a lack of good faith bargaining,” Mead Corp. v. N.L.R.B., 697 F.2d 1013, 1022 (11th Cir. 1983) (emphasis added). The 16 Case: 20-10162 Document: 00515544398 Page: 17 Date Filed: 08/28/2020 No. 20-10162 district court did not analyze SMART-TD’s reasons for its positional bargaining or whether its reliance on the moratorium constituted good cause for refusing to negotiate. 10 Because the requisite good-faith inquiry and accompanying factual findings are omitted, we are unable to affirm the injunction as proper under Section 152, First. But the Railroads are not entitled to an injunction requiring SMART- TD to bargain crew consist for additional reasons: (1) they cannot prove that an injunction is the only means of enforcing Section 152, First; (2) they cannot prove that there is a threat of an interruption to commerce; and (3) they cannot overcome the NLGA’s policy against injunctions. First, the Supreme Court has admonished that a court should avoid “freewheeling judicial interference in labor relations,” and should issue an injunction only where it is “the only practical, effective means of enforcing the command of § 2 First.” Chicago & N. W. Ry. Co., 402 U.S. at 582–83. Issuing an injunction is one way to force SMART-TD to bargain, but it is not the only way. To wit, the arbitration board may conclude―in a binding decision―that the Railroads’ interpretation of the moratorium is correct, 10 Clearly, not all refusals to bargain violate the RLA. For instance, Section 152, First applies only to disputes “concerning rates of pay, rules, and working conditions.” If the Railroads had made a proposal outside of these topics, SMART-TD would have grounds—in good faith—to refuse to bargain. Additionally, because the RLA is not intended to allow for “perpetual warfare,” parties may “bind themselves against reopening [contract negotiations] for a period reasonable under the particular circumstances at issue.” Seaboard World Airlines v. Transport Workers Union of Am., AFL-CIO, 443 F.2d 437, 439 (2d Cir. 1971) (citing, e.g., Flight Eng’s’ Int’l Ass’n v. Am. Airlines, Inc., 303 F.2d 5, 13 (5th Cir. 1962)). Thus, a moratorium would provide another good faith ground for a party to refuse to negotiate. Indeed, that the Railroads did not serve the same Section 6 notices on the seven properties with the moratoriums that explicitly include “crew consist” indicates that the Railroads believe SMART-TD would be justified in refusing to bargain on the reduction of crew size for those properties. Thus, the Railroads’ assertion that all refusals to bargain violate the RLA and are subject to injunction lacks merit. 17 Case: 20-10162 Document: 00515544398 Page: 18 Date Filed: 08/28/2020 No. 20-10162 that the moratorium does not preclude bargaining over crew consist, and that SMART-TD is therefore required to bargain crew consist. Conrail, 491 U.S. at 310 n.8 (finding that arbitrators have broad authority to “fashion an appropriate compensatory remedy which takes account of the delay”). Because this alternative path to enforce Section 152, First still exists, we vacate and remand. Until the Railroads have exhausted the procedures set forth in the RLA, including arbitration, we cannot say that an injunction is “the only practical, effective” means of enforcing the command of Section 152, First. Chicago & N. W. Ry. Co., 402 U.S. at 582–83. Second, we have found that Section 152, First applies only to actions that cause “interruption to commerce or to the operation of any carrier.” Burlington N. & Santa Fe Ry. Co. v. Bhd. of Maint. of Way Emps., 286 F.3d 803, 807 (5th Cir. 2002) (quoting 45 U.S.C. § 152, First). For that reason, injunctions granted under Section 152, First have been issued almost exclusively to enjoin a union’s strike that would have interrupted the service of transportation to the public. See, e.g., Piedmont Aviation, Inc. v. Air Line Pilots Ass’n, Int’l, 416 F.2d 633, 637 (4th Cir. 1969). 11 The Railroads assert that the delay in bargaining is disrupting industrial peace by “threaten[ing] the course of bargaining throughout the rail industry.” But they make no allegation that there is a threat of interruption to commerce or to their operations. The RLA encourages negotiations because “we [] assume that negotiation, as required by the decree, will [] result in agreement,” and as a result, evade disruptions to the 11 See also Chicago & N. W. Ry. Co., 330 F. Supp. at 648–49; Aircraft Serv. Int’l Inc. v. Int’l Bhd. of Teamsters AFL CIO Local 117, 742 F.3d 1110, 1120 (9th Cir. 2014), on reh’g en banc 779 F.3d 1069 (9th Cir. 2015) (issuing injunction where “Employees are unwilling to even ‘go through the motions’ under the RLA; rather, they wish not to bargain but to strike.”); but see Horizon, 976 F.2d 541. 18 Case: 20-10162 Document: 00515544398 Page: 19 Date Filed: 08/28/2020 No. 20-10162 industry. Virginian Ry. Co., 300 U.S. at 552. But this policy does not apply here, where it is not inevitable that disruptive self-help measures will ever become available to the parties. In other words, the district court’s order requires the parties to start down the major dispute bargaining process, where self-help measures could become available before the arbitration board determines such a process is necessary. In this rare circumstance, requiring the parties to bargain nudges the dispute closer to a strike, undermining the RLA’s principal goal of avoiding labor strikes. Burlington N. & Santa Fe Ry. Co., 286 F.3d at 807 (quoting Texas & N.O.R. Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 565 (1930) (“[S]trike prevention, not dispute resolution per se, was ‘the major purpose of Congress in passing the Railway Labor Act.’”)). The Supreme Court’s guidance in Conrail supports our decision. There, the Court rejected the idea that a minor dispute could be transformed into a major dispute if a party implemented the proposed change before arbitration. 491 U.S. at 308 (dismissing “the Union’s position [] that, while a dispute over the right to make the change would be a minor dispute, the actual making of the change transforms the controversy into a major dispute.”). Because the Court found the dispute “is properly deemed a minor dispute within the exclusive jurisdiction of the Board,” it refused to issue an injunction. Id. at 312. The Court recognized that “[t]he effect of this ruling . . . will be to delay collective bargaining in some cases until the arbitration process is exhausted.” Id. at 310. But it found “no inconsistency between that result and the policies of the RLA” because “[d]elaying the onset of that process until the Board determines on the merits that the employer’s interpretation of the agreement is incorrect will assure that the risks of self-help are not needlessly undertaken.” Id. at 309–10. So too, here. By vacating the injunction, we defer the minor moratorium dispute to the exclusive jurisdiction of the board, allow it to first decide whether SMART-TD is required to bargain, and potentially avoid 19 Case: 20-10162 Document: 00515544398 Page: 20 Date Filed: 08/28/2020 No. 20-10162 major dispute procedures and the availability of self-help measures all together. 12 Finally, our conclusion also keeps in mind the policy of the NLGA, which “suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff’s right.” Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 773 (1961). Indeed, Section 8 of the NLGA precludes injunctions except where the plaintiff has “ma[d]e every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” 29 U.S.C. § 108. The Railroads maintain that they complied with this provision by sending SMART-TD (1) “a letter offering to bargain over crew consist on a voluntary basis, without prejudice to either side” and (2) “a written claim, in which they offered to conference this matter, i.e., to try to resolve it, and proposed arbitration.” And, because SMART-TD failed to respond to these overtures, the Railroads assert they were not required to do anything further to comply with Section 8 of the NLGA. While the Railroads made valiant efforts to negotiate with SMART- TD, the fact remains that there is an administrative avenue provided by the RLA that has not been deployed: arbitration. Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W. R. R., 321 U.S. 50, 65 (1944) (“Arbitration 12 The Railroads contend that their right to move unilaterally in the minor moratorium dispute “eliminates any excuse for refusing to bargain over the pending crew consist Section 6 notices.” But asking the court to allow the Railroads to move unilaterally is a request to enforce Section 153’s minor dispute procedures. However, the Railroads failed to argue, and have therefore waived any argument, that such an injunction was (1) necessary to preserve the jurisdiction of the grievance procedure; or (2) that disruption of the status quo would result in irreparable injury of such magnitude that it would render any subsequent decision meaningless. Teamsters, 875 F.2d at 1136; Gann v. Fruehauf Corp., 52 F.3d 1320, 1328 (5th Cir. 1995). 20 Case: 20-10162 Document: 00515544398 Page: 21 Date Filed: 08/28/2020 No. 20-10162 under the Railway Labor Act was available, afforded a method for settlement Congress itself has provided, and until respondent accepted this method it had not made ‘every reasonable effort to settle’ the dispute, as Section 8 requires.”). And because this unexhausted remedy remains, an injunction is not the only effective way to guard the Railroads’ right to bargain in good faith with SMART-TD. 13 IV. The permanent injunction is VACATED. We VACATE and REMAND for additional proceedings consistent with this opinion. We rule 13 This unexhausted remedy is also what distinguishes this case from both Virginian Ry. Co., 300 U.S. at 552 and Horizon, 976 F.2d 541, the only cases the Railroads identity where a court issued an injunction under Section 152, First without an imminent threat of a strike. First, in Virginian Ry. Co. the Supreme Court was faced with a carrier’s refusing negotiation in violation of Section 152, First and of Section 152, Third’s “duties not to maintain a company union and not to negotiate with any representative of the employees other than respondent and the affirmative duty to treat with respondent.” 300 U.S. at 550. The newly formed union in Virginian had already sought and obtained certification by the National Mediation Board; thus, it, unlike the Railroads, had no procedural remedies left in the RLA to enforce its rights under Section 152, First and Third. Id. at 539. Similarly, in Horizon, the union endured two years of negotiations, including an intervention by the National Mediation Board, before the union sought an injunction under Section 152, First. 976 F.2d at 543. In contrast, the Railroads served SMART-TD with this lawsuit on October 25, 2019―before the new round for collective bargaining even began. Moreover, the district court in Horizon made specific factual findings that the carrier’s dilatory tactics were motivated by its bad-faith predisposition against unionization. Id. 546–47 (discussing the district court’s findings, including preferential treatment to non-unionized pilots and a handbook for supervisory employees that included a section on “union avoidance”); Ass’n of Flight Attendants v. Horizon Air Indus., Inc., No. 89-465-MA, 1990 WL 300312, at 3 (D. Or. Aug. 13, 1990) (discussing statement by the carrier that “unlike the flight attendants, the pilots were not organized, were not in an adversary relationship, and were Horizon’s ‘people.’”). The district court here made no similar findings regarding the motivation behind SMART-TD’s refusal to bargain. For these reasons, Horizon does not compel a conclusion that the district court’s order was proper under Section 152, First. 21 Case: 20-10162 Document: 00515544398 Page: 22 Date Filed: 08/28/2020 No. 20-10162 only on the instant permanent injunction. We place no limitation on the decisions that the district court may make on remand, and we intimate no view on the ultimate merits of any issue. Finally, we commend the district court for conscientiously addressing the complex issues presented by this case. 22	01-03-2023	08-28-2020
https://www.courtlistener.com/api/rest/v3/opinions/1875291/	288 Wis.2d 460 (2005) 706 N.W.2d 702 2005 WI App 254 TRETER v. VALONA. No. 2004AP002862. Court of Appeals of Wisconsin. October 18, 2005. Unpublished Opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875304/	490 So.2d 193 (1986) Diane EVERETT, As Personal Representative of the Estate of Wayne D. Everett, Appellant, v. John Wade CARTER; June Carter; Lynn Alaire Carter; Amos Gunn d/b/a Uncle Sam's Gun Shop and Pawn Shop; Thomas Labarbera and Sandra Jones d/b/a the Character Cage, Appellees. No. 85-1155. District Court of Appeal of Florida, Second District. June 20, 1986. Henry T. Courtney of Law Offices of Henry T. Courtney, and Patrice A. Talisman of Daniels & Hicks, P.A., Miami, for appellant. 194 Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Amos Gunn. CAMPBELL, Judge. Appellant, Diane Everett, as personal representative of the estate of Wayne D. Everett, appeals a final summary judgment in favor of appellee, Amos Gunn, d/b/a Uncle Sam's Gun Shop and Pawn Shop, in this wrongful death action. Finding that the trial court was correct in granting a summary judgment below, but for the wrong reasons, we affirm. A proper ruling, even if based on the wrong reason, should be affirmed. Stuart v. State, 360 So.2d 406 (Fla. 1978); Congregation Temple De Hirsch v. Aronson, 128 So.2d 585 (Fla. 1961); Jaffe v. Endure-A-Life Time Awning Sales, 98 So.2d 77 (Fla. 1957); U.S. Home Corporation v. Suncoast Utilities, Inc., 454 So.2d 601 (Fla. 2d DCA 1984); Moudy v. Southland Distributing Company of St. Petersburg, Inc., 452 So.2d 1045 (Fla. 2d DCA 1984). The undisputed facts giving rise to this appeal are as follows. On February 7, 1983, John Wade Carter, age nineteen, went to Uncle Sam's Gun Shop, which was owned and operated by Amos Gunn, appellee. Carter found a .44 magnum Ruger revolver at the gun shop which he liked, but was unable to purchase because he was under twenty-one years of age. A federally licensed firearm dealer is prohibited from selling or delivering any firearm other than a shotgun or a rifle to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age. 18 U.S.C. § 922(b)(1) (1976). Appellee Gunn was aware that Carter was under twenty-one years of age. Carter, however, placed a $20 deposit on the revolver and informed appellee Gunn that he would have his mother come in and buy it for him. The next day, Carter's twenty-eight-year-old sister, Lynn Elaine Carter, who was visiting the family home, went to the gun shop with Carter to purchase the revolver. She filled out the necessary forms and signed her name for the purchase. The gun was then delivered directly from appellee Gunn to Carter. It is undisputed that appellee Gunn knew he was delivering the revolver to Carter. Six weeks later on March 24, 1983, appellant's husband, Wayne D. Everett, was shot by Carter, who used the .44 magnum revolver which had been purchased from appellee Gunn. Carter was convicted of second degree murder concerning the death of Mr. Everett, and his sentence in that case was affirmed by this court in the case of Carter v. State, 464 So.2d 172 (Fla. 2d DCA), aff'd, 479 So.2d 117 (Fla. 1985). Appellant's cause of action against appellee Gunn is based upon a negligence per se theory growing out of appellee Gunn's unquestionable violation of section 922(b)(1). The trial court granted summary judgment for appellee Gunn, concluding that the legislative history of section 922 did not prohibit sales to family members over the age of twenty-one, even though the purpose of the sale might be to supply the gun to a family member under the age of twenty-one. Thus, the trial court held that section 922 was not violated and, therefore, appellee Gunn's actions could not constitute negligence per se. We are unable to agree with that conclusion because section 922(b)(1) clearly prohibits the delivery, as well as the sale, of a firearm to anyone less than twenty-one years of age. In the instant case, there was no question that the delivery was made to Carter who was nineteen years of age. It appears to us, however, that there exists an anomaly in the law in the State of Florida with respect to the sale and possession of firearms other than rifles or shotguns as a result of the irreconcilable provisions of Florida and federal law. While it is a violation of section 922(b)(1) to sell or deliver a firearm other than a shotgun or a rifle to any individual under twenty-one years of age, it is neither a violation of federal law nor Florida law for anyone over the age of eighteen to possess such a firearm. Thus, while Carter was prohibited from purchasing a firearm under the 195 federal firearm act, section 922, it was perfectly lawful for him to possess and own such a firearm. Therefore, we conclude that Carter's commission of a criminal act six weeks after the purchase and delivery of the firearm could not have been proximately caused by the delivery of the firearm in violation of section 922(b)(1). See Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980). Carter's criminal act of killing Mr. Everett was an independent intervening cause that was not within the realm of reasonable forseeability on the part of appellee Gunn. Anglin v. State of Florida Department of Transportation, 472 So.2d 784 (Fla. 1st DCA 1985); Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983); Leib v. City of Tampa, 326 So.2d 52 (Fla. 2d DCA 1976); Ward v. University of South, 354 S.W.2d 246 (Tenn. 1962). We find little to distinguish this case from the case of Robinson v. Howard Brothers of Jackson, Inc., 372 So.2d 1074 (Miss. 1979). That case involved a minor who represented himself to be an adult and purchased a firearm in violation of section 922(b)(1). The Supreme Court of Mississippi held in Robinson that the dealer who sold the weapon to the minor was not liable for the subsequent criminal act of the minor involving the murder of a woman with the illegally sold firearm. The Supreme Court of Mississippi, quoting from Prosser, held that "[t]he question of foreseeability is important in our case because there is less reason to anticipate premeditated and malicious acts as opposed to acts which are merely negligent." A clear statement on this question of foreseeability appears in W. Prosser, The Law of Torts, pp. 173, 174 (4th ed. 1971), where the author states: There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. (Footnote omitted.) Thus, we conclude that the summary judgment in favor of appellee Gunn was properly entered because the intervening criminal act of Carter, who was in lawful possession of the firearm, was an unforeseeable consequence of the violation of section 922(b)(1). We find this case distinguishable from K-Mart Enterprises of Florida, Inc. v. Keller, 439 So.2d 283 (Fla. 3d DCA 1983) due to the fact that Carter was under no legal prohibition under either federal or state law from possessing or owning the weapon in question. Affirmed. DANAHY, Acting C.J., and FRANK, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2609919/	467 P.2d 652 (1970) STATE of Oregon, Respondent, v. Mildred Jean WOOLARD, Appellant. Court of Appeals of Oregon, Department 2. Argued and Submitted March 19, 1970. Decided April 9, 1970. Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Solicitor Gen., Salem. Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ. LANGTRY, Judge. This is an appeal from conviction of larceny of a ring under ORS 164.310. Mr. Reingold and his son testified that defendant and a female companion visited Reingold's Jewelers in Portland on September 6, 1967, and tried on some rings. The owner discovered that a ring valued at $250 was missing and the police were called, but no arrest was made because he had not seen the ring taken. On the next day, testimony showed, defendant and a different companion, Beverly Jean McLeod, tried on several rings at another jewelry store in the same neighborhood. Together they chose a ring and the defendant left, saying she must check her parking meter. Miss McLeod left shortly thereafter to get money for a deposit on the ring, and a few moments later the ring, valued at $550, was discovered to be missing. Defendant was charged with theft in the second incident. Evidence of the first incident was received, over objection. Defendant assigns as error: (1) the court erred in allowing evidence of an unrelated crime to go before the jury, and (2) the court erred in instructing the jury that ten of their number was sufficient for conviction. The latter assignment was decided 653 adversely to defendant's contention in State v. Gann, 89 Or.Adv.Sh. 853, 463 P.2d 570 (1969). (1). Defendant admitted she was in Reingold's but denied she was with any companion on that occasion. She denied she was in the second store at all on the next day. She argues that evidence of her connection with the first alleged crime was irrelevant and prejudicial. She contends, relying on State v. Cruse, 231 Or. 326, 372 P.2d 974 (1962), where Cruse was charged with obtaining money under false pretenses by passing a worthless check, the evidence of similar crimes by the defendant may be received only as evidence of criminal intent in the crime charged. Testimony in Cruse included cross-examination about passing checks other than the one for which defendant was charged. The testimony was held proper because it related to matters about which defendant had testified on direct examination. The court also said: " * * This court has uniformly held in cases involving * * * obtaining money by * * * fraudulent means that evidence of other similar transactions is admissible to prove criminal intent * * * [citing cases]." 231 Or. at 333, 372 P.2d at 978. This statement does not mean that receiving evidence of other crimes for such a purpose is the only exception to the general rule against receiving evidence of other crimes. See State v. Moore, Or. App., 89 Adv.Sh. 605, 460 P.2d 866 (1969). "It is fundamental that the state is entitled to the benefit of any evidence which is relevant to the issue, even though it concerns the commission of collateral crimes. If evidence of a collateral crime tends to prove the commission of the crime charged in the indictment, the general rule of exclusion has no application." State v. Long, 195 Or. 81, 112, 244 P.2d 1033, 1047 (1952). "* * * The question is whether the collateral crimes tend to show motive, design or purpose for the crime charged * * *." Id. at 116, 244 P.2d at 1048. A more complete catalogue of the exceptions to the rule against admitting evidence of other crimes is found in State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A.L.R. 2d 1120 (1960), quoting from Dorsey v. State, 25 Ariz. 139-144, 213 P. 1011 (1923): "`To this general rule, however, there are certain well-recognized exceptions, in which evidence of other crimes is competent to prove the specific crime charged. This is true when it tends to establish: (1) Motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes, so related to each other that the proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.'" 87 Ariz. at 303, 350 P.2d at 761. The evidence received in the case at bar was proper under the fourth and fifth exceptions. State v. Howell, 237 Or. 382, 386-387, 388 P.2d 282 (1964); State v. La Rose, 54 Or. 555, 558-559, 104 P. 299 (1909); State v. O'Donnell, 36 Or. 222, 224-226, 61 P. 892 (1900). There was no error in admitting evidence of the first incident, even though the details of what occurred were disputed by the defendant. The determination of the facts and the inferences to be drawn therefrom were for the jury under proper instructions, which were given. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2019027/	222 B.R. 799 (1998) In re AFFILIATED FOOD STORES, INC., Debtor. UNITED STATES of America, Appellant, v. Joseph COLVIN, Liquidating Trustee of Affiliated Food Stores, Inc., et al., Appellees. No. 4:98-CV-015-A. United States District Court, N.D. Texas, Fort Worth Division. March 20, 1998. 800 Jon E. Fisher, U.S. Department of Justice, Tax Division, Dallas, TX, for appellant. John David Penn, Haynes & Boone, Fort Worth, TX, for Affiliated Food Stores, Inc. John R. Lee, Andrews & Kurth, Houston, TX, for Aetna Life Insurance Company. MEMORANDUM OPINION and ORDER McBRYDE, District Judge. This action comes before the court as an appeal from an order sustaining liquidating trustee's objection to claims of Internal Revenue Service of the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division, the Honorable Massie Tillman presiding. The court, having considered the briefs of appellant, United States of America, and appellees, Joseph Colvin, Liquidating Trustee of Affiliated Food Stores, Inc., ("Trustee") and Aetna Life Insurance Company ("Aetna"), the record on appeal, and applicable authorities, finds that the order should be reversed and the matter remanded to the bankruptcy court for further consideration. I. Jurisdiction This is an appeal from an order signed and entered November 26, 1997, sustaining the Trustee's objection to claims of appellant, and findings of fact and conclusions of law signed and entered December 11, 1997, supporting same. The court's jurisdiction exists pursuant to 28 U.S.C. § 158(a). II. Pertinent Facts and Underlying Proceedings On August 31, 1990, Affiliated Food Stores, Inc. ("Debtor") filed a voluntary petition for relief under Chapter 11 of Title 11, United States Code. The case was filed in the Fort Worth Division of the Northern District of Texas, but was transferred to the Dallas Division, where it was assigned Case No. 390-36169-RCM-11. According to the Trustee, the bankruptcy was filed as a result of the actions of Debtor's revolving credit lender, First City Texas-Dallas, which set off the unpaid amount of the Debtor's revolving line of credit against its deposits. The setoff caused Debtor's checks to its suppliers to be dishonored and its trade credit to be cut off. In June 1991, the bankruptcy court entered an order granting appellant a priority claim of almost 2.3 million dollars representing pre-petition income taxes and interest due for the years 1980, 1983, 1984, 1986, 1987, 1988, and 1989. On July 3, 1991, Debtor's plan of reorganization was confirmed. On August 21, 1991, appellant assessed taxes in the amount of its priority claim. Appellant and Debtor later reached an agreement that a net operating loss incurred in the last quarter of 1990 could be carried back to earlier tax years to reduce Debtor's tax liabilities. On April 15, 1993, the bankruptcy court entered an agreed order reducing the amount of appellant's priority claim by approximately $750,000.00. Debtor made quarterly payments pursuant to the confirmed plan. Appellant received approximately $836,000.00. On April 21, 1993, Debtor filed a second voluntary Chapter 11 petition in the Fort Worth Division of the United States Bankruptcy Court for the Northern District of Texas, which was assigned Case No. 493-41544-MT-11. According to the Trustee, bankruptcy was filed because of Debtor's deteriorating financial performance. (The Trustee was appointed on April 27, 1993.) Appellant filed proof of claim number 655, which was amended and replaced by claim number 755, in the amount of $1,038,181.50. Appellant sought priority treatment of its claim. The Trustee's first amended and final liquidating plans of reorganization listed appellant as a creditor with a priority claim of $1,034,000.00.[1] Under the final plan, which 801 was approved on February 28, 1994, the Trustee retained the right to object to claims within 180 days of the plan's effective date. On August 26, 1994, 178 days after the plan's effective date, the Trustee filed an objection to appellant's claim on the ground that it was not entitled to priority status under 11 U.S.C. § 507(a)(7).[2] Appellant responded, asserting that the objection was barred by res judicata and collateral estoppel and that the time periods for priority status under § 507(a)(7) should be tolled pursuant to the bankruptcy court's equitable powers under 11 U.S.C. § 105(a). On December 23, 1994, the bankruptcy court issued findings of fact and conclusions of law and entered an order granting the Trustee's objection to appellant's claim and allowing appellant an unsecured claim in the amount of $1,038,181.50. Appellant filed a motion to alter or amend, which was denied, then appealed the bankruptcy court's decision.[3] The appeal was heard by the Honorable Eldon B. Mahon. By memorandum opinion and order of December 16, 1996, Judge Mahon upheld the bankruptcy court's ruling in part,[4] but remanded the action so that the bankruptcy court could conduct a hearing to determine whether equitable tolling was appropriate. United States v. Colvin, 203 B.R. 930 (N.D.Tex.1996). Judge Mahon noted that "[w]ith only one or two exceptions, courts addressing the issue have held that the time periods for priority under 507(a)(7)(i) and (ii) should be tolled during intervals when the IRS is legally prohibited from collecting the funds owed." 203 B.R. at 940 (citations omitted). On remand, the parties engaged in discovery and filed briefs with the bankruptcy court. On October 29, 1997, the bankruptcy court conducted an evidentiary hearing on appellant's request for equitable tolling. By order signed and entered November 26, 1997, the bankruptcy court sustained the Trustee's objection to appellant's claim and ruled once again that appellant's claim in the amount of $1,038,181.50 was allowed as an unsecured claim. On December 11, 1997, findings of fact and conclusions of law were signed and entered. This appeal followed. III. Issues on Appeal Appellant raises 43 issues on appeal, which are condensed into five major topics. She argues that the bankruptcy court erred: (1) when it refused to toll the time periods for determining whether Debtor's unpaid tax liability was entitled to priority treatment; (2) when it failed to hold that the Trustee's conduct toward appellant was grossly inequitable; (3) when it accepted the Trustee's contrived allegations of inequitable conduct by appellant; (4) when it accepted the Trustee's attempts to construct arguments against tolling based upon how appellant applied payments she received after the first bankruptcy proceeding; and (5) in accepting carte blanche the Trustee's proposed findings of fact and conclusions of law. IV. Standard of Review To the extent the appeal presents questions of law, the bankruptcy court's judgment is subject to de novo review. Pierson & Gaylen v. Creel & Atwood (In re Consolidated Bancshares, Inc.), 785 F.2d 1249, 1252 (5th Cir.1986). Findings of fact, however, will not be set aside unless clearly erroneous. Memphis-Shelby County Airport Authority v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 783 F.2d 1283, 1287 (5th Cir. 1986). A finding is clearly erroneous, although there is evidence to support it, when 802 the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. The mere fact that this court would have weighed the evidence differently if sitting as the trier of fact is not sufficient to set aside the bankruptcy court's order if that court's account of the evidence is plausible in light of the record viewed in its entirety. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Since equity considerations are largely fact-driven, the bankruptcy court's refusal to grant equitable relief is reviewed on an abuse of discretion standard. Quenzer v. United States (In re Quenzer), 19 F.3d 163, 165 (5th Cir.1993). V. The Bankruptcy Court's Findings Appellant complains about the bankruptcy court having adopted wholesale, with minor cosmetic changes, the proposed findings of fact and conclusions of law prepared by the Trustee. She recognizes that the practice is not per se a ground for reversal, see, e.g., Triad Electric & Controls, Inc. v. Power Systems Eng'g, Inc., 117 F.3d 180, 187 (5th Cir.1997); Marine Shale Processors, Inc. v. EPA, 81 F.3d 1371, 1386 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997), but urges that, in this case, the bankruptcy court adopted a number of clearly erroneous findings, thus abandoning its duty to make independent findings. The court agrees that certain of the bankruptcy court's findings are not supported by the record. The mistakes range from the fairly insignificant, e.g., finding number 3 that the Trustee filed objections to thousands of claims, to the more serious, e.g., findings number 14, 15, and 16 that the plan, its predecessors, and disclosure statements were not misleading. The first amended disclosure statement for the Trustee's first amended liquidating plan of reorganization and Trustee's first amended liquidating plan of reorganization, Appeal Tr. Ex. 7, clearly would lead one to believe that appellant's claim falls under Class 3. In particular, Exhibit G thereto specifically lists the sum of $1,034,000.00 owed to appellant as falling under the heading "Administrative/Secured/Priority Claims." To make such a disclosure and then to maintain that appellant's claim was not a priority claim is highly misleading. Other findings suggest that incorrect standards were applied. For example, findings number 13 and 19 indicate a belief by the bankruptcy court that appellant had the burden to explain, and justify, the timing of the conduct of its audit, even though the audit admittedly occurred during the three years allowed by law. Badaracco v. Commissioner, 464 U.S. 386, 391-92, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984); Lilly v. United States (In re Lilly), 194 B.R. 885, 888 (Bankr.D.Idaho 1996). Even if the timing of the conduct of the audit were a proper factor to be weighed in the balancing of equities, appellant had no burden to justify the timing rather, the burden would be on the opposing parties.[5] Likewise, findings number 20 and 21 have no independent significance, because interest is subject to the same priority as the underlying tax. Jones v. United States (In re Garcia), 955 F.2d 16, 17 (5th Cir.1992). The manner in which appellant applied payments made pursuant to the first bankruptcy plan simply has no bearing on whether equitable tolling is appropriate. The bankruptcy court's findings with regard to appellant's alleged inequitable conduct are inappropriate. The record does not support finding number 38 that appellant made "an-untrue statement which [she] knew to be untrue when it was made" when she alleged that the carry-back of net operating losses resulted in a reduction of her claim "of over 50%." The record establishes without dispute that appellant's counsel made a mathematical error of absolutely no significance. Whether appellant's claim was reduced by 10% or 90%, the fact is that the claim has not been paid in full. The incorrect statement has no relevance in the weighing of equities. Further, the findings, number 39 and 40, that appellant has admitted she has an "Allowed Class 8 Claim" are 803 clearly erroneous. A review of the record discloses that appellant has vigorously argued that her claim is entitled to priority status and that, at the very least, such claim is an allowed unsecured claim under Class 8. Findings number 41 and 43, regarding appellant's case citations, incorrectly reflect that appellant did not accurately describe the cases she discussed and intended to mislead the bankruptcy court by such discussion. Moreover, those are not factors that should be considered in a weighing of equities. Finding number 42 is conclusory and does not identify any fact upon which appellant's equitable tolling claim was based that she withheld from discovery. As to finding number 44, the conduct of one party might be relevant and the conduct of another irrelevant at any point in time. Furthermore, the subject of that finding is not relevant to the weighing of equities. VI. The Need for Remand Because of the volume of the fact-findings, and the approach used, the court cannot determine what significance the bankruptcy court attached to any of the findings. Nothing in the record shows that appellant did anything that would preclude her from being entitled to benefit from equitable tolling. Moreover, the bankruptcy court does not address the key issue, which is whether equitable tolling should apply where the Internal Revenue service has had no opportunity to collect the taxes owed.[6] In light of the court's determination that a number of the findings of the bankruptcy court with regard to the plan, its predecessors and disclosure statements were clearly erroneous, a reassessment of the Trustee's behavior is in order. The court is not itself making findings in this regard, but suggests that the bankruptcy court do so. The court is concerned about the timing of the Trustee's actions, that is, leading appellant to believe she had a priority claim, then filing on the 178th day an objection to such claim. The court is also concerned about the misleading arguments made by the Trustee in the court below and in this court. For example, the Trustee has demonstrated that he is wont to take statements out of context and to attribute to his opponent arguments that simply are not being made. For example, the Trustee suggests, at page 19 of his brief, that appellant is relying on 11 U.S.C. § 108, when there is no question that appellant recognizes that, in light of Quenzer, only § 105 is at stake. Further, at page 20 of his brief, the Trustee suggests that appellant is calling for a "per se rule" when such is not the case. These are but two examples. VII. ORDER The court ORDERS that the order sustaining liquidating trustee's objection to claims of Internal Revenue Service be, and is hereby, reversed and that this action be, and is hereby, remanded to the bankruptcy court to determine whether equitable tolling should apply and to make specific findings as to the reasons for its determination. FINAL JUDGMENT In accordance with the court's memorandum opinion and order of even date herewith, The court ORDERS, ADJUDGES and DECREES that the order sustaining liquidating trustee's objection to claims of Internal Revenue Service, from which appeal is taken, be, and is hereby, reversed, and this action be, and is hereby, remanded to the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division, so that the court may determine whether equitable tolling should apply and make specific findings of fact and conclusions of law as to the reasons for its determination. NOTES [1] This fact was recited by Judge Mahon in his December 16, 1996, memorandum opinion and order on an earlier appeal by appellant. See also, e.g., Exhibit G to First Amended Disclosure Statement (Appeal Tr. Ex. 7). Judge Tillman nevertheless found that "[n]either the Final Plan nor its predecessors nor disclosure statements related thereto classified the IRS as having a priority tax claim in Class 3 of the Final Plan." Findings at ¶ 14. [2] Section 507(a)(7) has been renumbered to be § 507(a)(8). [3] Prior to the appeal, Aetna filed a motion to intervene in the Trustee's objection to the priority of appellant's claim. That motion was granted. [4] In particular, Judge Mahon determined that the Trustee's objection to priority of appellant's claim was not barred by res judicata or collateral or judicial estoppel and that Aetna's intervention was proper. [5] The court notes that the record reflects that the failure of Debtor to cooperate by producing requested records caused the audit to take longer than it otherwise might have taken. [6] This fact is established as a matter of law by the record.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1859204/	16 B.R. 176 (1981) In re T.E. MERCER TRUCKING COMPANY, Debtor. FRUEHAUF CORPORATION, Plaintiff, v. T.E. MERCER TRUCKING COMPANY, Debtor, and Ben Gilbert, Operating Receiver and Trustee, Defendants. In re G.E.M. STORAGE & TERMINAL COMPANY, INC., Debtor. FRUEHAUF CORPORATION, Plaintiff, v. G.E.M. STORAGE & TERMINAL COMPANY, Debtor, and Ben Gilbert, Operating Receiver and Trustee, Defendants. Ben GILBERT, Operating Receiver and Trustee; T.E. Mercer Trucking Company; and G.E.M. Storage & Terminal Company, Inc., Plaintiffs, v. FRUEHAUF CORPORATION, Defendant. Tommy G. MERCER and Wanda Jo Mercer, Intervening Plaintiffs, v. FRUEHAUF CORPORATION, Defendant. Bankruptcy Nos. BK 4-77-345, BK 4-77-346, Civ. A. No. CA 4-79-55. United States Bankruptcy Court, N.D. Texas, Fort Worth Division. August 11, 1981. 177 178 179 180 JOHN FLOWERS, Bankruptcy Judge. This memorandum announces my rulings on the summary judgment motions filed in the above-captioned cases. This case arose under the Bankruptcy Act of 1898 and I will hear it in two capacities, as a bankruptcy judge in connection with the adversary proceeding filed in the Bankruptcy Court by Fruehauf, and as a special master appointed by Judge Mahon of the U.S. District Court in connection with the suit pending in that court between the trustee, the debtors, Wanda Jo Mercer and Tommy Mercer as intervenors, and Fruehauf. However as it appears that the legal and factual issues are identical in all the proceedings, my rulings announced herein will be applicable to all the cases. All parties have sought summary judgment on issues arising out of § 20a of the Interstate Commerce Act. Fruehauf seeks summary judgment on numerous other legal issues including limitations, estoppel and subordination. The court record consists of various stipulations, interrogatories and depositions. On the current state of the record, most of the motions for summary judgment are denied in view of the issues of fact that must be resolved before a judgment may properly be rendered. In this memorandum I will discuss the operative legal principals in order to elucidate the parties as to the fact issues that remain unresolved. I. SECTION 20a OF THE INTERSTATE COMMERCE ACT Fruehauf Corporation has filed a complaint for relief from the stay asserting that T.E. Mercer Trucking Company and G.E.M. Storage & Terminal Company, Inc. are indebted to Fruehauf. The alleged indebtedness is evidenced by a series of voluminous loan agreements. Fruehauf claims mortgages and security interests in practically all assets of the debtor corporations, including equipment, vehicles, inventory, accounts, operating authorities and real property. The debtor corporations, the trustee and the intervenors[1] urge the application of § 20a of the Interstate Commerce Act as a defense to liability and affirmatively as the basis of a claim against Fruehauf.[2] Fruehauf replies that § 20a is inapplicable because the loan agreements evidencing the debt are not "securities" and therefore fall outside the jurisdiction of the Interstate Commerce Commission. Upon review of the authorities I am of the opinion that it is immaterial whether the loan agreements 181 fall within the purview of a "security" as defined by § 20a of the Interstate Commerce Act. "The starting point in every case involving the construction of a statute is the language itself." International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558, 99 S. Ct. 790, 795, 58 L. Ed. 2d 808 (1979). Section 20a of the Interstate Commerce Act provides in pertinent part: "ISSUANCE OF SECURITIES; ASSUMPTION OF OBLIGATIONS; AUTHORIZATION (2) It shall be unlawful for any carrier to issue any share of capital stock or any bond or other evidence of interest in or indebtedness of the carrier (hereinafter in this section collectively termed "securities") or to assume any obligation or liability as lessor, lessee, guarantor, indorser, surety, or otherwise, in respect of the securities of any other person, natural or artificial, even though permitted by the authority creating the carrier corporation, unless and until, and then only to the extent that, upon application by the carrier, and after investigation by the commission of the purposes and uses of the proposed issue and the proceeds thereof, or of the proposed assumption of obligation or liability in respect of the securities of any other person, natural or artificial, the commission by order authorizes such issue or assumption. The commission shall make such order only if it finds that such issue or assumption: (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to perform that service, and (b) is reasonably necessary and appropriate for such purpose." In 1935, the scope of the Interstate Commerce Act (ICA) was extended to cover common carrier by motor vehicle, see 49 U.S.C. §§ 301-327, Part II of the ICA. Section 214 of the ICA, 49 U.S.C. § 314 (now 49 U.S.C. § 11302) makes the provisions of Sections 20a(2)-(11) applicable to motor common carriers. Section 20a of the Interstate Commerce Act has been aptly described as an "early essay in securities legislation," see United States v. New York, New Haven & Hartford Railroad, 276 F.2d 525 (2nd Cir. 1959), cert. denied, 362 U.S. 961, 80 S. Ct. 877, 4 L. Ed. 2d 876 (1960). A threshold issue is whether this essay in securities legislation may be asserted by the trustee, the debtor corporation and the intervenors against Fruehauf's claim. A review of the legislative history and court interpretations of the purpose of § 20a provide some insight to whether these parties have standing to urge the application of the statute. The legislative history reflects that one of the purposes Congress enacted § 20a was to protect investors. Consider the somewhat optimistic arguments of Representative Rayburn who sponsored an early draft of the statute: "Of course, the credit of the railroads has been destroyed. But if we write into the law of the land a statute to the effect that before a railroad can issue new securities, before it can put them on the market it must come before the properly constituted government agency, lay the full facts of its financial situation before that body, tell that body what it intends to do with the money derived from the sale of the issue of securities and after it has received the approval of that regulating body and it goes out and puts those securities on the market then the Interstate Commerce Commission by this law is empowered at any time to call it to account and have it tell to that regulating body that it expended the money, the proceeds of the sale of securities, for the purposes for which it had made the application. Then we shall have railroad securities that will stand for value in the markets of the country and in the markets of all the world." 59 Cong.Rec. 8376 (1919). In Interstate Investors, Inc. v. United States, 287 F. Supp. 374, 387 (S.D.N.Y., 1968) 182 (three-judge court) aff'd per curiam, 393 U.S. 479, 89 S. Ct. 707, 21 L. Ed. 2d 687 (1969), the court stated the dominant Congressional purpose in enacting § 20a was to protect investors in the securities of railroads. The remedies for violations of the statute confirm that the statute is intended to protect investors. Section 20a(11) provides that the holder of a void security acquired directly from the carrier may at his option rescind the transaction and upon surrender of the security recover the consideration given therefor. If a voided security is acquired for value and in good faith and without notice that the issue or assumption is void, such person may in a suit hold jointly and severally liable for the full amount of the damage sustained by him, the carrier which issued the security and its directors and officers who participated in the authorizing, issuing or selling of the security. Interestingly, Congress omitted the "good faith" requirement with respect to the holders of void securities acquired directly from the carrier which appears to encourage the direct extension of credit to a carrier. Section 20a has somewhat of a dual function in view of the role given the Interstate Commerce Commission by the statute. The Commission was created for the purpose of facilitating commerce throughout the nation, Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S. Ct. 350, 51 L. Ed. 553 (1907). The Interstate Commerce Commission may approve an application for authorization to issue securities, only if it finds that such issue or assumption: (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to perform that service, and (b) is reasonably necessary and appropriate for such purpose. Section 20a(2). The Second Circuit has expounded upon the "in the public interest" function of Section 20a, ". . . we prefer a construction of Section 20a of the Interstate Commerce Act that gives effect to its remedial purposes to give the commission control over stock and bond issues in order to avoid for the future abuses in the issuance of securities whereby railroad properties have been bankrupted or saddled with almost overwhelming burdens of indebtedness, which have not increased the amount of or value of property devoted to the public service, have not improved the service rendered, and have on the whole had the effect of increasing the charges for the service," United States of America v. New York, New Haven & Hartford Railroad Co., et al, 276 F.2d 525 (2nd Cir. 1959). I find that the purpose and function of § 20a is twofold, (1) to protect investors from worthless issues of railroad and common carrier securities, and (2) to protect the public interest in the efficient and economical operation of interstate carriers. Consequently this "early essay" in securities regulation conceivably may operate to protect both purchasers of securities and the public interest by preserving the financial integrity of the railroad and common carrier securities. With the above considerations in mind, I turn to an issue that has been marginally addressed by the parties. The trustee and Mercer seek to avoid liability on the theory that the consolidated loan agreements are § 20a securities. It is argued that the securities are void because a statutory duty has been breached by the failure to have Commission approval of the issue. However, a breach of a statutory duty does not give rise to a private cause of action to every person injured by the statutory breach. The law clearly demands that the statutory breach must cause injury to one of the class that the statute is designed to protect, Greater Iowa Corporation v. McLendon, 378 F.2d 783, 790 (8th Cir. 1967); Cambridge Capital Corporation v. Northwestern National Bank, 350 F. Supp. 829 (D.Minn., 1972). 183 Section 20a does not purport to protect the issuer of securities. In fact it places the risk of non-compliance upon the issuer and its directors, officers, attorneys and other agents, who participated in the issuing of the voided security. The trustee and Mercer seek to shift the risk of noncompliance upon the holder (Fruehauf) by requesting the court to void the debt or in the alternative void the security interests and mortgages that secure the debt. The remedy for violation of § 20a proposed by the trustee, which in effect penalizes the investor, stands contrary to the primary purpose of the statute which is to protect investors. The trustee and debtor have focused on the use of the "security . . . shall be void" language. The court, however in interpreting a statute, must not be guided by a single sentence or member of a sentence, but must look to the provisions of the whole law and to its object and policy, Philbrook v. Glodgett, 421 U.S. 707, 95 S. Ct. 1893, 44 L. Ed. 2d 525 (1975). The statute clearly contemplates that the holder of an unauthorized § 20a security may assert a rescission claim against the issuer. If the § 20a security is in the form of a bond or other debt instrument secured by an interest in property, I am of the opinion that the bondholder's rescission claim under § 20a(11) would likewise be treated as secured in the bankruptcy context. It would be absurd to interpret this investor protective statute so as to give the investor a remedy of rescission, yet if such remedy is exercised the investor forfeits any liens securing the indebtedness. In interpreting a statute, the courts are to respect the policy of Congress so as not to impute to the statute a self-defeating, if not disingenuous purpose, Dalia v. U.S., 441 U.S. 238, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). The trustee and Mercer have raised the spectre of Fruehauf's heavy-handed lending practices in attacking Fruehauf's claim. Noting that the proceeds of the trucking company loan went toward the retirement of personal debts and beer inventories, the brief of the Plaintiff-Debtor raises the rhetorical question: "Is there the slightest doubt in the Court's mind what would have happened to this agreement had it been presented to the Interstate Commerce Commission for approval?" I have no serious doubts about how the Commission would have ruled with respect to some of the indebtedness in view of the posture taken by the Commission in numerous decisions, see Mutrie Motor Transportation, Inc., 116 Motor Carrier Cases 99 (1972). But I do entertain serious doubts that Congress intended § 20a to be used as a vehicle by carriers to avoid undesired investment obligations. This is not to say that I endorse Fruehauf's alleged conduct which suggests an intent on Fruehauf's part to circumvent I.C.C. review of the consolidated loan agreements. Fruehauf's conduct will be carefully scrutinized for misconduct that may mandate application of the court's equitable subordination powers. However Congress chose not to include a statutory remedy for misconduct on the part of the holder of a § 20a security. Consequently I hold that the trustee and Mercer lack standing to assert a claim based on the alleged violation of § 20a of the I.C.C. Act. Thus it is unnecessary to decide whether the consolidated loan agreements are § 20a securities.[3] Fruehauf's 184 motion for summary judgment on this issue will be granted. II. THE ALLOCATION OF DEBT LIABILITY AND USURY CLAIMS The court has under review a series of agreements regarding the indebtedness owing from what are described as the "Corporate Debtors" and the "Guarantors." These agreements were preceded by loans to various entities at different times, the details of which are not before the court. The parties agree at least some of the prior loans were to entities other than the "Corporate Debtors" and the "Guarantors." The initial consolidated loan agreement dated December 1, 1969, contains a listing and acknowledgment of existing obligations owing to Fruehauf. The agreement recites, "Whereas the parties hereto desire to consolidate the obligations owing to Fruehauf in a single loan arrangement without altering the existing obligations or security given therefor." After reciting various debts and future advances the agreements sets forth a payment schedule, with payments to be made by the Corporate Debtors. Apparently only two corporate entities survived to actively participate in the September 16, 1977 agreement, T.E. Mercer Trucking Company and G.E.M. Storage & Terminal Co., Inc. In this agreement the corporate debtor and guarantor parties "recognize, admit and affirm all of the foregoing indebtedness owing by them, individually, jointly or severally, to Fruehauf Corporation." Fruehauf was given the right to "undertake and order the liquidation of some, any and all of the assets of either or both of said corporations and/or the equipment company and/or claimed sole proprietorships and apply the net proceeds thereof to the indebtednesses owing by the debtor and guarantor parties to Fruehauf Corporation." Oddly enough none of the various agreements go so far as to recite that the corporate debtors are jointly and severally liable for the entire indebtedness. The trustee, debtors and intervenors contend that the 1969 agreement constituted simply a convenient means to include in one document provisions relating to different loans, and thus each entity is obligated only for the repayment of monies that went to its benefit. Fruehauf responds that the parties intended the corporate debtors to be co-obligors under the consolidated loan agreement in spite of the fact that they received unequal benefits. Fruehauf asserts that a "community of interest" provides sufficient consideration to create a joint and several obligation and thus each corporate debtor is liable for the entire indebtedness. The central issue is whether the parties intended the "corporate debtors" to be jointly and severally liable for the aggregate amount of indebtedness reflected in the various consolidated loan agreements or whether the parties intended the agreements to be a mere reaffirmation of existing indebtedness with each corporate debtor liable only for its historical share of the total indebtedness recited.[4] This issue is 185 important because it will determine the amount of each entity's liability to Fruehauf. Once each entity's liability is established the effective interest rate charged by Fruehauf may be calculated by comparing the interest charged to each entity's debt liability. If each corporate debtor were obligated for the entire indebtedness the interest to debt ratio would obviously be less than if each debtor is liable only for its historical share of the debt. Ultimately the court must interpret the language of the consolidated loan agreements. Under the parole evidence rule, the standard of interpretation of a written contract is usually the meaning that would be attached to it by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to, and contemporaneous with, the making of the contract other than the oral statements by the parties of what they intended it to mean, Zell v. American Seating Co., 138 F.2d 641 (2nd Cir. 1943). I believe it appropriate to allow the parties an opportunity to develop the circumstances surrounding the execution of the loan agreements for the purpose of ascertaining the parties' intent. Consequently I will deny summary judgment on the issue of whether each corporate debtor was intended to be liable on the entire consolidated indebtedness or only its historical share. Several subsidiary issues will arise upon my deciding the above issue. Assuming a finding that the "corporate debtors" intended to be jointly and severally liable for the entire consolidated indebtedness, the issue of sufficient consideration comes into view. The trustee, debtors and intervenors rely on V.T.C.S. art. 1302-2.06 which provides that no corporation "shall create any indebtedness whatever except for money paid, labor done, which is reasonably worth at least the sum at which it was taken by the corporation, or property actually received, reasonably worth at least the sum at which it was taken by the corporation." This statute is declaratory of the common law of ultra vires as it existed before its enactment, Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 423 S.W.2d 645 (Tex.Civ.App.Houston [14th Dist., 1967]). Historically Texas courts were reluctant to enforce one entity's indebtedness against a guarantor corporation where the guarantor received no substantial benefit from the guarantee, see Rio Grande Valley Gas Co. v. Grand Rapids Store Equipment Corporation, 57 S.W.2d 348 (Tex.Civ.App.San Antonio, 1933) no writ. hist. However by the enactment of art. 2.04 A of the Texas Business Corporation Act the legislature precluded a corporation from pleading ultra vires as the basis for a claim or defense when sued on its contract, Cooper Petroleum, supra; Inter-Continental Corp. v. Moody, 411 S.W.2d 578, (Tex.Civ.App. Houston, 1967) and Republic National Bank of Dallas v. Whitten, 383 S.W.2d 207 (Tex. Civ.App.Dallas, 1964) aff'd 397 S.W.2d 415 (Tex., 1966). Consequently the provisions of art. 1302-2.06 may only be asserted as the basis for a claim against the directors and officers who have benefited from the ultra vires activities. Thus in the event the consolidated loan agreements were intended to create a joint and several liability on the part of the debtor corporations, the trustee and Mercer may not assert art. 1302-2.06 as a defense to joint and several liability of each debtor corporation. I am further of the opinion that the trustee and Mercer may not assert art. 1302-2.06 for the purpose of determining each debtor corporation's principal balance owing in order to set up a usury claim against Fruehauf. Returning now to the primary fact inquiry and assuming I find the parties intended that the corporate debtors would be liable only for their historical portion of the consolidated indebtedness (as the trustee and Mercer contend), an alternative usury claim might be asserted under the rule of Windhorst v. Adcock Pipe and Supply, 547 S.W.2d 260 (Tex., 1977). This usury claim would be based on the fact that although each debtor corporation is liable only to the 186 extent of its historical portion of the consolidated indebtedness, Fruehauf charged or received from each debtor corporation interest on the entire indebtedness. The ratio of total interest received or charged vis-a-vis the amount actually owed by each corporate debtor could exceed the legal interest rates. To illustrate this usury theory, assume that three individuals, A, B, C, each purchases from store F a $200 item on credit. Each signs a promissory note for $200 payable at a lawful annual percentage rate of 18%. One year later the store sends A a statement charging interest in the amount of $108 (18% times $600) intending to hold A liable for the entire amount of interest charged. Under the Windhorst decision, A would have a usury claim against F whether or not any interest was actually paid. Assume that A, B, C and store F executed a consolidated agreement which lists all indebtedness owed by A, B, and C, however it provides that F may recover from A only its share of principal and interest, and likewise limits F's recovery from B and C to their proportionate share of accrued interest and principal. In such case F has "contracted" for legal interest. But further assume that F subsequently sends A a bill for the total accrued interest of $108. In such event F would have "charged" A usurious interest within the meaning of Article 5069-1.06 as interpreted by the Windhorst decision, supra. The action taken by F in billing A for the entire amount manifests an intent to repudiate the prior agreement and charge a usurious interest rate to A. The subjective intent of the creditor to charge only a legal rate of interest is immaterial, see Cochran v. American Savings and Loan, 586 S.W.2d 849 (Tex., 1979). To avoid usury penalties F must plead and prove that such charge and receipt of usury was a result of accidental and bona fide error. Finally it is possible to interpret the consolidated loan agreement in a manner such that the parties "contracted" for a usurious interest rate. Such construction would require my finding that although Fruehauf could hold each corporate debtor liable only for its historical portion of the consolidated debt, Fruehauf could nevertheless hold each corporate debtor responsible for the aggregate interest accruing on the entire consolidated debt. I find the language of the agreements sufficiently ambiguous so that as a matter of law I am unable to preclude such a construction. However it is fair to state at this juncture that to interpret the consolidated loan agreements so that the corporate debtors are not jointly and severally liable on the consolidated debt and yet are jointly and severally liable as to the accrued interest on the consolidated debt would be a bit strained. I am unable to conclude as a matter of law that Fruehauf is not liable for the usury penalties provided by article 5069-1.06 V.T.C.S. Consequently the motion for summary judgment on the usury issue is denied in view of the factual issues that remain unresolved. III. THE ISSUE OF STANDING In response to Fruehauf's motion for relief from the stay, the trustee answered and counterclaimed that Fruehauf was the partner, joint venturer or in the alternative the alter ego of the debtor. This position is based on the undisputed fact that at various times Fruehauf assumed management responsibilities and incurred debt for the debtor pursuant to the terms of the consolidated loan agreements. In its motion for summary judgment Fruehauf asserts that neither the trustee nor debtor has "standing" to assert the partnership, joint venture or alter-ego theory. The law of standing, the Supreme Court says, is a "complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations," U.S. ex rel. Chapman v. Federal Power Comm., 345 U.S. 153, 156, 73 S. Ct. 609, 612, 97 L. Ed. 918 (1953). The 187 federal courts are to look into the nexus between the status asserted by the litigant and the claim he presents to assure that he is a proper and appropriate party to invoke federal judicial power, Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 1953, 20 L. Ed. 2d 947 (1968). Fruehauf contends that the trustee does not have standing to recover alleged debts owing to the creditors of the bankrupt from the partner, joint venture or alter ego of the bankrupt. I hold the trustee does not have the right to collect debts from alleged non-bankrupt partner,[5] joint venturer or alter ego. Such cause of action belongs solely to each partnership creditor, see for example Krivo Industrial Sup. Co. v. National Distill., 483 F.2d 1098 (5th Circuit, 1973). The trustee however does have standing to assert the partnership, joint venture or alter ego status for the purpose of subordinating one creditor's claim to the claims of other creditors under the doctrine of equitable subordination. I will therefore grant Fruehauf's motion for summary judgment on the trustee's lack of standing issue except to the extent the trustee relies on the partnership, joint venture or alter ego theory as the basis for subordinating Fruehauf's claim to those of other creditors. IV. I.C.C. PERMIT ISSUE The trustee alleges Fruehauf took control and possession of Mercer and its I.C.C. permits without the approval of the Commission and such fact renders invalid any pledge of the permits. Fruehauf has moved for a summary judgment on this issue. It has received minimal attention in the briefs and arguments of counsel and no authorities have been cited in support or contrary to Fruehauf's motion. However in view of the representations of counsel during the hearing on this motion held on August 5, 1981, that this issue will receive further attention, I will at this point deny Fruehauf's motion for summary judgment on the void pledge issue. V. THE WAIVER AND ESTOPPEL ISSUES Fruehauf in its motion for summary judgment asserts that the debtor corporations and guarantors waived any defenses or counterclaims to Fruehauf's claims pursuant to the agreement of September 16, 1977 which states in pertinent part: "All of the undersigned debtor and guarantor parties hereto: Recognize, admit and affirm all of the foregoing indebtedness owing by them, individually, jointly or severally to Fruehauf Corporation, and acknowledge that all of the same have been matured and are now owing, past due, and not subject to credit offset or counter-claims of any kind." The trustee and Mercer have countered that such agreement was conditioned on certain subsequent events which never materialized. At the summary judgment hearing on August 5, 1981, Fruehauf urged that the 1977 agreement equitably estopped Mercer from asserting defenses and claims arising out of the loan agreements. Factual issues exist which preclude my granting a summary judgment on the waiver and estoppel theories. Waiver is operative only where the person charged has actual or constructive knowledge of all the material facts concerning the right or privilege involved. No one can be said to have waived that which he does not know, Bering Mfg. Co. v. Carter and Bro., 255 S.W. 243 (Tex.Civ.App.Beaumont, 1923) affirmed 272 S.W. 1105; see also 60 Tex. Jur.2d Waiver § 6, p. 187. A factual issue exists as to whether the corporate debtors relinquished a known right for a valuable consideration. As to Fruehauf's estoppel claim, Fruehauf must show that it acted upon Mercer's representations without knowledge of the falsity of such representations. 188 To successfully urge estoppel, Fruehauf must show not only ignorance of the true circumstances of a transaction, but also that there was no convenient or available means of acquiring knowledge of the truth with reference thereto, Holland v. Blanchard, 262 S.W. 97 (Tex.Civ.App.Dallas, 1924) err. dismd. A fact issue exists as to whether Fruehauf had knowledge of the existence of offsets, credits and counterclaims when Mercer signed the September 16, 1977 agreement. Furthermore the party claiming it was misled by the representations must show that it changed position in a manner that it will be injured if estoppel is not invoked, Stanolind Oil & Gas Co. v. Midas Oil Co., 173 S.W.2d 342 (Tex.Civ.App. Galveston, 1943) revd. on other grounds 179 S.W.2d 243. VI. THE "ANTITRUST" VIOLATION Fruehauf seeks a summary judgment on the anti-trust issue contending that no summary judgment evidence exists to support the anti-trust action alleged by the trustee and Mercer. While the anti-trust issue has received minimal attention in the pleadings and briefs of the parties, there is before the court excerpts from depositions, interrogatories and agreements which if viewed most favorably to the trustee and Mercer provide some faint evidence of an anti-trust violation. It is expected that the trustee and Mercer will more fully develop the alleged violations before the trial of this matter. At this juncture Fruehauf's motion for summary judgment is denied. VII. CONSOLIDATION Fruehauf seeks summary judgment denying consolidation of the bankruptcy estates of T.E. Mercer Trucking Company and G.E.M. Storage and Terminal in the event it is found that the corporate debtors are not jointly and severally liable for Fruehauf's total claims. The bankruptcy court has jurisdiction to consolidate proceedings and to merge the assets and the liabilities of the debtors. This jurisdiction is based on considerations of equity, one of the touchstones of the bankruptcy court's jurisdiction, Bank of Marin v. England, 385 U.S. 99, 87 S. Ct. 274, 17 L. Ed. 2d 197 (1966). However the court must be mindful that consolidation in bankruptcy is no mere instrument of procedural convenience but a measure vitally affecting substantive rights, In the Matter of Flora Mir Candy Corp., 432 F.2d 1060, 1062 (2nd Cir. 1970). In the case sub judice Fruehauf asserts that consolidation will injure its substantive rights. Of course Fruehauf's rights have been challenged and further fact finding must occur before the extent and priority of those rights may be determined. Controverted issues of fact are thus implicit in the consolidation issue, and Fruehauf's motion for summary judgment on consolidation is denied pending resolution of the enforceability and priority position of its claims. VIII. STATUTE OF LIMITATIONS Fruehauf asserts that the offsets, credits and defenses claimed by the trustee and Mercer are barred by limitations. However it is settled by many decisions that the statute of limitations is not applicable to matters set up strictly by way of defense, Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815 (1905); Morriss-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313 (Sec. A, 1936), 37 Tex.Jur.2d Limitations of Actions § 18. Fruehauf's motion for summary judgment on the statute of limitations issue is denied, however I reserve opinion as to whether the trustee's and Mercer's claims against Fruehauf are barred by limitations if asserted affirmatively as a ground for recovery rather than as a defense to the alleged indebtedness. IX. THE POST-PETITION RECEIVABLE ISSUE The trustee and Mercer seek to attack Fruehauf's secured status by questioning 189 whether post-petition receivables of Mercer may be substituted as Fruehauf's collateral for pre-petition receivables consumed by the trustee's post-petition operations. Again overriding this issue is the factual determination to be made as to the priority of Mercer's indebtedness to Fruehauf. Assuming that such indebtedness exists, and the security interests are not subordinated on other grounds, I will follow the rule of In the Matter of Sequential Information Systems, Inc., 4 C.C.H. Sec. Trans. Guide ¶ 51479 (S.D.N.Y., 1970). In that decision the court held that a creditor secured by inventory has no right, title or interest in and to and no claim upon inventory purchased by the debtor-in-possession subsequent to the filing of the petition for arrangement herein and any accounts receivable created from the sale thereof, except insofar as such inventory is paid for with funds of the debtor which is subject to the creditor's pre-petition lien. To the extent that Fruehauf traces the proceeds of encumbered pre-petition assets into post-petition property or accounts acquired by the trustee or debtor-in-possession, I hold it has an enforceable lien on such post-petition assets. Plaintiff's summary judgment motion is denied in view of the lack of a factual record before the court to determine which pre-petition and post-petition property is subject to the lien. X. EQUITABLE SUBORDINATION It is clear that a factual issue exists as to whether Fruehauf may be equitably subordinated to other creditors. Before the court may exercise its equitable power three conditions must be met: (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act, see In re Multiponics, 622 F.2d 709 (5th Cir. 1980); In the Matter of Mobile Steel Co., 563 F.2d 692, 700 (5th Cir. 1977). The claims however may be subordinated only to the extent necessary to offset the unfair advantage or the harm which the creditors suffered on account of the inequitable conduct, Mobil at 701. Fruehauf argues it should not be responsible for any creditor harm from its actions because creditors could have ascertained that Fruehauf had liens on substantially all of the debtor's property and any extensions of credit were imprudent. The doctrine of equitable subordination deals with inequitable conduct resulting in either unfair advantage or creditor harm and is not dependent on creditor reliance or prudence. Actual fraud need not be established, Multiponics at 720. As discussed earlier in the opinion, I will give significant attention to alleged conduct of Fruehauf in seeking to circumvent the review by the Interstate Commerce Commission of the consolidated loan agreements. If such intent to circumvent I.C.C. control is found and if I find that the conduct resulted in fewer assets available for distribution to the unsecured creditors, Fruehauf's claim will be subordinated to the extent the unsecured creditors were injured. The court will also look at the "creditor control" exercised by Fruehauf pursuant to the various consolidated loan agreements. These remarkable loan contracts gave Fruehauf joint control of all bank accounts of the Corporate Debtors requiring co-signatures for substantial checks, gave Fruehauf the right to place its designee on the Board of Directors of the Debtors; required all corporate by-laws, stock books and certificates to be delivered to Fruehauf's counsel; gave Fruehauf the right to have one of its employees participate in the day-to-day operations of the Debtor's premises with complete veto powers on any items or matters whatsoever; gave Fruehauf the right to require the liquidation of all assets of the Debtors and the various other ventures; gave Fruehauf the right to set salaries of officers and directors; required the Corporate Debtors to pledge all their stock, and provided in the event of a dispute between the Mercer management and the Fruehauf 190 monitoring agent that an appeal would lie to the Fruehauf management for final determination. The extensive creditor control evidenced by the loan agreement suggests that the debtor corporations were mere instrumentalities or the alter ego of Fruehauf. If Fruehauf's actual control was as dominant as the consolidated loan agreements indicate, such fact pattern may satisfy the inequitable conduct element of the trustee's subordination claim, see In re American Lumber Co., 5 B.R. 470 (D.Minn., 1980). If I find Fruehauf gained an unfair advantage or that creditors suffered harm as a result of its alleged control, the bankruptcy court's equitable powers may be invoked to subordinate Fruehauf's claims to the extent necessary to remedy the inequitable conduct. The trustee is allowed leave to amend its pleading so as to make a more definitive statement of Fruehauf's inequitable conduct and the nature and extent of any alleged damages. The determination necessary to resolve the subordination issue will require further evidentiary hearings. Consequently Fruehauf's motion for summary judgment on equitable subordination issue is denied. The foregoing constitutes my conclusions of law pursuant to F.R.C.P. 52 and my initial report as special master pursuant to F.R.C.P. 53(e). NOTES [1] The intervenors are the sole stockholders of the debtor corporations and are guarantors of much of the corporate debt. [2] At the summary judgment hearing on August 5, 1981 the debtor, trustee and intervenors announced they would no longer urge a usury claim based on the allegation the debt to Fruehauf is void under § 20a. This concession anticipated my ruling on this issue. A void debt may not be the subject of a usury claim. O'Quin v. Beanland, 540 S.W.2d 526 (Tex.Civ. App.San Antonio, 1976) no writ. hist. [3] The parties extensively briefed the issue of what evidences of indebtedness fall within the purview of § 20a. All recognize that Ex parte 275 [Association of American Railroad v. U.S.], 603 F.2d 953 (D.C.Cir.1979) is the leading authority. It sets forth two salient factors in determining whether a particular transaction is a security under § 20a. The first factor looks to general principals of federal securities laws to determine whether the debt is in the nature of a security. The Fifth Circuit follows the investment/commercial dichotomy test which is premised on the view that Congress' concern in enacting the securities laws was to regulate practices associated with investment transactions and that the securities laws were not designed to regulate commercial transactions. McClure v. National Bank of Lubbock, 497 F.2d 490 (5th Cir. 1974), focused upon two factors in determining whether "notes" are securities: (1) were the notes offered to some class of investors or were they acquired by the creditor for speculation or investment, (2) alternatively did the debtor obtain investment assets, directly or indirectly, in exchange for its notes. The investment/commercial dichotomy provides an analysis helpful in explaining the holdings in numerous I.C.C. cases cited by the parties, see Lehigh Valley Railroad Company, 1 Fed. Carrier Cases 328 (1939); Mutrie Motor Transportation, Inc., 116 M.C.C. 99 (1972) and Hays Freight Line, Inc., 39 M.C.C. 576 (1944). Ex parte 275 further recognized that § 20a was intended to be limited to "issues" of securities, and thus imposed an element that the security be in transferable form. A transferable evidence of indebtedness is one that has negotiable or quasi-negotiable characteristics; see REA Express, Inc. v. Alabama Great Southern, 427 F. Supp. 1157 (S.D.N.Y., 1976), and Transcontinental Bus System, Inc., 80 M.C.C. 54 (1959). The second element is met if the debt instrument is in a form that the issuer and initial holder of the instrument could reasonably anticipate that the instrument would be transferred to a member of the class that § 20a is designed to protect. However I find it unnecessary to apply this analysis to the consolidated loan agreement as I conclude that § 20a does not operate to deprive Fruehauf of its secured creditor status even in the event the agreement is a security. [4] I am addressing the in personam liability of each debtor corporation. The cross-collateralization agreements make each corporation's assets liable for the other's individual indebtedness. [5] Such is the implication of 11 U.S.C. § 23(i) [Bankruptcy Act § 5(i)] which provides that where only one partner is adjudged bankrupt, the partnership property shall not be administered unless by consent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601786/	228 P.3d 838 (2010) 2010 WY 41 NORTHFORK CITIZENS FOR RESPONSIBLE DEVELOPMENT, David Jamison, an individual, and Robert Hoszwa, an individual, Appellants (Petitioners), v. BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, Appellee Respondent, and Worthington Group of Wyoming, LLC, Appellee (Respondent-Intervenor). Worthington Group of Wyoming, LLC, Appellant (Respondent-Intervenor), v. Board of County Commissioners of Park County, Appellee (Respondent), and Northfork Citizens for Responsible Development, David Jamison, an individual, and Robert Hoszwa, an individual, Appellees (Petitioners). Nos. S-09-0148, S-09-0149. Supreme Court of Wyoming. April 8, 2010. 840 Representing Northfork Citizens for Responsible Development, David Jamison, and Robert Hoszwa: Debra J. Wendtland and Anthony T. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming. Argument by Ms. Wendtland. Representing Board of County Commissioners of Park County: James F. Davis, Deputy Park County Attorney, Cody, Wyoming. Representing Worthington Group of Wyoming, LLC: Laurence W. Stinson and Dawn R. Scott of Bonner Stinson, P.C., Cody, Wyoming. Argument by Mr. Stinson. Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ. VOIGT, Chief Justice. [¶ 1] Northfork Citizens for Responsible Development, David Jamison, and Robert Hoszwa (collectively Northfork) have appealed the district court's affirmance of the approval by the Board of County Commissioners of Park County (the Board) of a subdivision proposed by Worthington Group of Wyoming, LLC (Worthington).[1] Northfork raises evidentiary and procedural issues. In a cross-appeal, Worthington contends that Northfork's issues are moot because Worthington has built the subdivision. We find that the appeal is not moot. We affirm in part and reverse in part, and remand to the district court for further remand to the Board for proceedings consistent with this opinion. ISSUES [¶ 2] 1. Are Northfork's issues moot because, Northfork having sought neither a stay nor an injunction, Worthington built the subdivision while the appeal was pending? 2. Did the Board violate county regulations and state law by allowing county officials to waive mandated collection of information at an early stage of development on the ground that such information would be collected at a later stage? 3. Did the Board violate county regulations by approving a final plat that was not consistent with the sketch plan? 4. Is the Board's finding that the subdivision has a dependable water source supported by substantial evidence? 5. Did the Board's approval of the subdivision's open space plan violate county regulations? 6. Was Northfork unlawfully denied intervention in the contested case hearing? 7. Did the Board violate county regulations by allowing dedication of subdivision roads for only limited public use? 8. Did the Board violate county regulations and state law by allowing gated access to the subdivision? 9. Did the Board violate county regulations by allowing multi-family dwellings on a portion of the subdivision? FACTS [¶ 3] In Park County, the developer of a proposed subdivision must obtain sketch plan approval, final plat approval, and a special use permit. At issue in the instant case is the Board's application of that process and its eventual approval of the Copperleaf Subdivision (the subdivision), which is located on approximately 553 acres of land along the North Fork of the Shoshone River, west of Cody. In Northfork Citizens for Responsible Development v. Park County Board of County Commissioners, 2008 WY 88, ¶ 16, 189 P.3d 260, 264-65 (Wyo.2008) (Northfork I), this Court determined that the Northfork group, who are neighboring or area landowners, had standing to petition for judicial review of the Board's approval of the 841 subdivision. Upon remand, the district court affirmed the Board. These inter-related appeals followed. [¶ 4] In October 2004, Worthington submitted to the Park County Planning & Zoning Commission (the Commission) and the Board a sketch plan and special use permit application for development of the subdivision. Northfork filed numerous written objections and appeared at all Commission hearings regarding the project. The Commission held a public hearing on November 30, 2004, at which hearing Worthington agreed to change its proposed water source from individual wells to a centralized system. On December 8, 2004, the Board denied Northfork's attempted appeal of various "determinations and/or interpretations" made by the planning coordinator in his review of the sketch plan and special use permit application. In addition to finding, in effect, that the appeal was premature, the Board specifically stated the following: .... WHEREAS, evidence of adequate capacity for water and sewer is necessary between the sketch plan and final plat stage in the review process for approval or denial of a subdivision, but is not necessary at the sketch plan/special use permit stage during concurrent review; and WHEREAS, the [Commission] and the [Board] will have the ability to review the adequacy of water and sewer capacity as is required by both the [zoning regulations] and [development standards and regulations], as well as the other items listed in the written letter of appeal during the normal process of the subdivision/special use permit review; and WHEREAS, at the sketch plan/special use permit stage, under circumstances where the applicant has sought concurrent review of the sketch plan and special use permit application, the Planning Coordinator may waive items of information listed as required; .... [¶ 5] The Commission held a second public hearing on December 21, 2004, to continue discussing both the sketch plan and the special use permit application. On the same date, the Commission approved the sketch plan and recommended approval of the special use permit, conditioned to ensure that "[a]dequate services and infrastructure are available to serve the use, or the applicant has agreed to provide services and infrastructure in sufficient time to serve the proposed use[.]" [¶ 6] On December 28, 2004, Northfork appealed the Commission's resolution, raising many of the issues presently before the Court in this appeal, including procedural defects, insufficient information in the application, gated access, road dedication, open space requirements, multi-family dwellings, and water and sewer systems. The Board denied the appeal as it applied to the special use permit, finding that no such appeal right existed, but agreed to hear the appeal as it applied to sketch plan issues. The Board conducted a public hearing on January 25, 2005, and on February 8, 2005 issued a resolution in which it found against Northfork on some issues, found that some issues were not ripe for appeal because they were not sketch-plan issuesthis category including water and sewer servicesand remanded some issues to the Commission for further considerationthis category including open space requirements. Of special significance to the present appeal is the Board's interpretation of its subdivision regulations as not requiring certain sketch plan information in the context of a major subdivision development, because such information is to be provided at the final plat stage. [¶ 7] The Commission held a public meeting on March 15, 2005, to consider the matters remanded to it by the Board. As concerns this appeal, the Commission thereafter issued Resolution No. 2005-13, in which a "Revised Sketch Plan" with re-drawn open space boundaries was approved. The new open space plan consisted of connecting previously separate open space parcels with "corridors" dedicated as open space. Northfork's appeal of this resolution was denied by the Board on April 19, 2005, on the ground that the resolution involved only ministerial acts that remained subject to Board review. 842 [¶ 8] On March 31, 2005, the Board held a public hearing on Worthington's special use permit application. For the next couple of months Worthington and Northfork dueled over the water supply issue, eventually drawing both the State Engineer's Office and the Department of Environmental Quality (DEQ) into the fray. The details of that conflict will be discussed in more detail in the section of this opinion dealing with substantial evidence as to the water source. Suffice it to say for present purposes that, when the Board approved the special use permit via its Resolution No. 2005-40 on June 21, 2005, it did so based upon Worthington's agreement to provide "service and infrastructure in time to serve the proposed use." [¶ 9] Not surprisingly, the water supply issue survived approval of the special use permit, with Worthington identifying and then abandoning various water sources. On October 28, 2005, DEQ issued a "no adverse recommendations" letter based upon a proposed public water supply system using water taken from the North Fork of the Shoshone River, with a permit for 200 gallons per minute. Two months later, on December 28, 2005, Worthington filed the final plat for the subdivision. [¶ 10] The Board discussed and voted to approve the final plat at a regularly scheduled meeting on March 7, 2006. Resolution No. 2006-16, carrying that vote into effect, was issued on March 14, 2006. The Resolution contained the following lengthy finding in regard to the subdivision's water supply: The Board finds that DEQ, in consultation with the Wyoming State Engineer has reviewed the Developer's plan for a central water distribution system drawing water from the Northfork of the Shoshone River under a water permit issued by the Wyoming State Engineer in May 2005 for year-round direct flow in the amount of 200 gallons per minute, and that the subdivision at full build-out (131 lots) will not require said amount of water according to calculations in the file and otherwise of record undisputed by any other calculations of record, and that the Developer has provided information in the file that, after checking with the State Engineer, there has been no recorded regulation or "call" on water rights on the Northfork of the Shoshone River, however, opponents to this subdivision have submitted pleadings from a separate proceeding indicating that in 1977 there was a "call" on the Northfork of the Shoshone River during a dry year, however, the Board herein takes notice that in 1993 the Bureau of Reclamation completed a project on the Buffalo Bill Dam and Reservoir which has allowed for significantly more water storage in Buffalo Bill Reservoir than existed in 1977 and that such additional storage creates significantly different and more favorable circumstances relating to satisfaction of water rights than existed in 1977, including the availability of water in a State of Wyoming storage account available for purchase and/or exchange; and that DEQ, after reviewing the Developer's water system plan as required by law and pursuant to their own rules and regulations has provided the Board with a letter with no adverse recommendations regarding the water supply system and that said review requires a demonstration of quantity, quality and dependability of the water supply system and that said review satisfactorily accomplishes the purposes of the Park County subdivision regulations, and that even so the Board has reviewed the information presented itself, and finds that, the water system as reviewed herein is dependent solely on the May 2005 water permit and that the Board is not in its review considering the availability of domestic water from any wells located on the subject property or from irrigation rights or other source, though the Board recognizes that the Developer does have potential access to additional water for domestic purposes should the Developer seek to follow whatever necessary local, state and/or federal procedures exist in supplementing its 2005 direct flow water permit; and that the system provides that all water mains are within the boundaries of the subdivision and that individual service lines are available to each lot line[.] [¶ 11] On March 30, 2006, Worthington requested a contested case hearing (the hearing) to challenge five conditions the Board 843 had placed upon the subdivision: (1) dedication of subdivision roads to public use; (2) no multi-family dwellings; (3) no gated entrance; (4) no planting of fruit- or berry-producing trees; and (5) no stocking of fish in ponds.[2] Alleging to be "aggrieved or adversely affected in fact" by the Board's decisions, Northfork reacted by moving the Board to be allowed to intervene in the hearing procedures, including discovery, as a matter of right. The Board responded by requiring Northfork first to "demonstrate with specificity" the following: i. Their individual or collective ability to meaningfully contribute to the record in this matter in a manner which will [not] cause undue delay or prejudice to one or both current parties; ii. The nature and extent of harm they may collectively or individually suffer as it relates to each specific issue raised in the Worthington Group's contested case petition; iii. How the proposed interveners are collectively or individually so situated that the disposition of this contested case may, as a practical matter impair or impede the proposed interveners' collective or individual ability to protect their respective interests; iv. How the proposed interveners either collectively or individually allege their interests are not or will not adequately be represented by Park County and the Park County attorney; and v. That they have a significant interest in the present contested case proceeding, and not one that is merely contingent or similar to the interest of any member of the public at large. vi. The names or identities of the individual members of North Fork Citizens for Responsible Development; the ownership interest in any real properties or other assets that such members deem may be affected by the Copperleaf Subdivision Development; and a specific description of the existence of North Fork Citizens for Responsible Development as a legal entity, including its formation date. [¶ 12] While maintaining its objection to these special requirements, Northfork submitted responses, in which it emphasized the special harm to neighboring landowners and downstream water users that could result from approval of the subdivision. In a lengthy and detailed order, the Board denied Northfork's motion to intervene, concluding that Northfork had failed to provide sufficient information showing that individual Northfork members would be harmed by the subdivision to any greater extent than would be the general public. [¶ 13] The contested case hearing was held on July 12, 2006, and the Board issued its findings of fact and conclusions of law on October 3, 2006. In its order, the Board continued the prohibition against fruit- and berry-producing trees, and the prohibition against fish in the ponds, but reversed itself on the other issues: allowing limited dedication of roads to public use, allowing a gated entrance, and allowing multi-family dwellings on a portion of the platted area. Northfork filed a petition for review in the district court on November 1, 2006, challenging (1) Resolution No. 2005-40, which approved the special use permit; (2) Resolution No. 2005-53, which clarified the intention of Resolution No. 2005-40 in regard to the timing of water system and sewer system approvals; (3) Resolution No. 2006-16, which approved the subdivision permit and final plat; and (4) the Board's findings of fact and conclusions of law resulting from the hearing. Worthington was allowed to intervene in the court action to protect its interests. [¶ 14] On May 18, 2007, Worthington moved to dismiss the petition for review on the ground that Northfork was not aggrieved or adversely affected in fact by the Board's action. The district court issued a decision letter on July 23, 2007, and an order of dismissal on August 23, 2007, in which it concluded that the Northfork appellants lacked standing to challenge the Board's actions because they had not shown that they 844 possessed any interest in the matter different from that of members of the general public. As noted previously herein, Northfork appealed that ruling, and we reversed in Northfork I. Upon remand, the district court eventually made the following determinations: (1) Worthington's completion of the project did not render the matter moot because the Wyoming Rules of Civil Procedure did not require Northfork to obtain an injunction; (2) the Board's ratification in Resolution No. 2005-40 of the planning coordinator's waiver of water supply information at the special use permit stage did not violate county regulations; (3) the Board's decisions during the special use permit review process regarding water supply were supported by substantial evidence; (4) the Board's findings in regard to the open space requirements of a "grouped lot subdivision with density bonus" were supported by substantial evidence; (5) Resolution No. 2006-16 is not clearly contrary to the overwhelming weight of the evidence in regard to water supply; (6) the Board's adoption of Resolution No. 2006-16 as it relates to water supply was not arbitrary or capricious, and was in accordance with the law; (7) Resolution No. 2006-16 did not violate the county's open space regulations; (8) the Board did not err in denying Northfork's motion to intervene in the contested case hearing process because the Board, as a party, sufficiently represented Northfork's interests; (9) while there is a county regulation that subdivision roads be "offered" for public dedication, there is no county regulation that requires the Board to accept all offered roads as fully dedicated to public use; (10) inasmuch as subdivision roads need not be accepted for public use and maintenance, it follows that allowing a gated entrance to a subdivision that does not have roads fully dedicated to public use is not a violation of state law in the form of a county sub-delegating the regulation of traffic; and (11) the Board did not err in determining that an earlier variance allowing multi-family dwellings on a portion of the platted area had not expired. [¶ 15] The combined cases now before this Court consist of Worthington's appeal of the district court's rejection of its mootness argument, and Northfork's appeal from the rest of the district court's order and the underlying Board decisions. STANDARD OF REVIEW [¶ 16] A district court's decision on the question of mootness is an issue of law that we review de novo. Cooper v. Town of Pinedale, 1 P.3d 1197, 1201 (Wyo.2000). The other issues brought to the Court in this appeal require application of our standard for reviewing the actions of an administrative agency. That standard requires that we give no special deference to the decision of the district court, but consider the case as if it came directly from the agency. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 9, 188 P.3d 554, 557 (Wyo.2008). The statutory limits of our review are set forth in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009): (c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall: (i) Compel agency action unlawfully withheld or unreasonably delayed; and (ii) Hold unlawful and set aside agency action, findings and conclusions found to be: (A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (B) Contrary to constitutional right, power, privilege or immunity; (C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right; (D) Without observance of procedure required by law; or (E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute. [¶ 17] In Dale, we noted that this statute actually contains several different standards 845 of review, and that all are not applicable in any given instance. 2008 WY 84, ¶¶ 8-26, 188 P.3d at 557-62. We will not repeat that detailed analysis here. Rather, we will simply parse the statute and note that a reviewing court must set aside agency action where the agency: (1) acted arbitrarily; (2) acted capriciously; (3) acted contrary to law; (4) abused its discretion; (5) violated a constitution; (6) acted beyond its statutory authority; (7) failed to observe legally required procedures; or (8) made findings or reached conclusions unsupported by substantial evidence. We have defined "arbitrary and capricious" in the administrative agency review context as follows: The arbitrary and capricious test requires the reviewing court to review the entire record to determine whether the agency reasonably could have made its finding and order based upon all the evidence before it. The arbitrary and capricious standard is more lenient and deferential to the agency than the substantial evidence standard because it requires only that there be a rational basis for the agency's decision. Id. at ¶ 12, at 559 (internal citations and quotation marks omitted). In turn, we defined the substantial evidence test as follows: "In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions...." Id. at ¶ 11, at 558 (quoting Newman v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 12, 49 P.3d 163, 168 (Wyo. 2002)). DISCUSSION Are Northfork's issues moot because, Northfork having sought neither a stay nor an injunction, Worthington built the subdivision while the appeal was pending? [¶ 18] The doctrine of mootness has clear application in Wyoming: We have examined the mootness doctrine on numerous occasions. In Bard Ranch Co. v. Frederick, 950 P.2d 564, 566 (Wyo.1997), we said: Our general law on justiciability provides that courts should not consider issues which have become moot. We do not decide cases when a decision will have no effect or pertains only to matters that might arise in the future. A case is moot when the determination of an issue is sought which, if provided, will have no practical effect on the existing controversy. Therefore, if events occur during the pendency of an appeal that cause a case to become moot or make determination of the issues unnecessary, we will dismiss it. In re SNK, 2005 WY 30, ¶ 6, 108 P.3d 836, 837-38 (Wyo.2005) (most internal citations omitted). Of particular import to the instant case is the idea that the interests supporting standing may not necessarily persist throughout litigation: The doctrine of mootness encompasses those circumstances which destroy a previously justiciable controversy. This doctrine represents the time element of standing by requiring that the interests of the parties which were originally sufficient to confer standing persist throughout the duration of the suit. Thus, the central question in a mootness case is "whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties." Merchant v. State Dep't of Corrs., 2007 WY 159, ¶ 15, 168 P.3d 856, 863 (Wyo.2007) (quoting KO v. LDH (In re Guardianship of MEO), 2006 WY 87, ¶ 27, 138 P.3d 1145, 1153 (Wyo.2006) (internal citations omitted)). [¶ 19] Worthington's mootness argument is as follows: when Northfork filed its petition for review in the district court in November 2006, it sought neither a stay, nor an 846 injunction.[3] Consequently, nothing prevented Worthington from completing the subdivision, which it did. In its brief, Worthington describes the now-existing situation as follows: In asking the Court to review and overturn or remand the permits issued by [the Board], [Northfork] asks the Court to "undo" all the building and infrastructure that has been completed. To honor their request would necessarily impose tremendous hardship on the developers, residents, and purchasers. The relief sought by [Northfork]no more [subdivision]can only be obtained at significant hardship to others. At the time the lower court heard the appeal, [the subdivision] was (and remains) complete. Thirty-two home sites have been sold and 2 homes were currently under construction. Mr. Kudelski, one of the owners of the development company, uncontestedly points out that: In other words, the roads, potable water system, centralized sewer system, raw water system, electric and power infrastructure, and phone lines have all been installed and are currently being used. The landscaping has been completed and is quite extensive, including on-site ponds, berms, fencing, and the like. The gatehouse and gates have also been constructed, as has an entry way statue of elk in combat. [¶ 20] Worthington relies upon the legal and equitable principles set forth in Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353 (Colo.1986). The facts of that case are not complex. DeVilbiss, a neighboring landowner, contested a coal company's application for a special use permit to construct a coal-loading facility. The special use permit was granted, contingent upon the company's obtaining a height variance. The variance was also granted. DeVilbiss filed suit, alleging arbitrary and capricious agency action. Eventually, the Colorado Supreme Court found the matter to be moot because the facility had been constructed during the pendency of the action, and DeVilbiss had not sought a stay or preliminary injunction. Id. at 356-60. The Colorado court reasoned that: (1) a party who seeks to enjoin presumptively legal conduct, but who fails to seek a stay or a preliminary injunction, "must bear some responsibility for" the changed circumstances; (2) courts are more apt to find mootness from changed circumstances where the challenged conduct is legally permissible and done in good faith; and (3) the company had spent a large sum of money in completing the facility. Id.; see also Richland Park Homeowners Ass'n v. Pierce, 671 F.2d 935, 938 (5th Cir.1982).[4] [¶ 21] In response, Northfork contends that, in Ebzery v. City of Sheridan, 982 P.2d 1251 (Wyo.1999), this Court rejected the reasoning of DeVilbiss and also rejected application of the theory of "vested rights" in situations such as the one at hand. Although Ebzery involved a variance rather than a special use permit, we observed that "[a]ctions taken in reliance on a variance or permit while the time for appeal is pending are inherently unreasonable." Id. at 1257. In holding that the developer's expenditures did not render the underlying issues moot, we described such expenditures as a "calculated risk." Id. at 1256-57. Finally, we specifically recognized the vested rights doctrine described in Snake River Venture v. Board of County Commissioners, 616 P.2d 744 (Wyo. 1980), but we opined that "Snake River does not stand for the proposition that one who knows a variance is subject to appeal may render that appeal moot if only [he or she] act[s] quickly enough." Ebzery, 982 P.2d at 1257. [¶ 22] We do not believe that the distinction between a variance and a special use permit negates the application of the principles enunciated in Ebzery to the present case. Perhaps most importantly, those principles require parties to respect the judicial process and judicial resolution of disputes: 847 [W]e are not unmindful of Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353 (Colo.1986), which holds that the failure of one challenging a zoning variance to obtain a temporary injunction pending the outcome of an appeal renders the cause moot. The problem with this approach, however, is that it encourages the disregard of legal challenges and promotes construction which may subsequently be found to be in violation of an erroneously waived zoning regulation. In this regard, we consider the reasoning in Bat'tles v. Board of Adjustment and Appeals, 711 S.W.2d 297 (Tex.App.1986), to be sounder. The Bat'tles court rejected the notion that the failure to obtain a restraining order or to file a supersedeas bond renders the cause moot. That court concluded that as the statute concerning the grant or denial of a variance was silent on whether a bond or restraining order was required, the general law of civil suits applied, and that law does not require a losing plaintiff to seek a bond or a restraining order. We therefore reject the DeVilbiss approach and hold that just as a plaintiff who collects a judgment which is appealed but is not superseded takes the risk of having to make restitution, Ohio Cas. Ins. Co. v. Gantt, 256 Ala. 262, 54 So. 2d 595 (1951), so, too, does one who builds in accordance with a zoning variance which is appealed take the risk that it will have to tear down what it has built. Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537, 546 (1992). Expenditures made with knowledge of a court challenge are not expenditures made in good faith reliance upon a variance or permit. Id. at 547. We continue to hold that, in Wyoming, completion of a project under a variance or permit during the pendency of an appeal does not render the appellate issues moot. Did the Board violate county regulations and state law by allowing county officials to waive mandated collection of information at an early stage of development on the ground that such information would be collected at a later stage? [¶ 23] The gravamen of this allegation is that the Board violated state law by not complying strictly with its own zoning regulations, which failure requires reversal of the Board's actions.[5] Specifically, Northfork contends that the Board allowed Park County's planning coordinator to violate his authority to waive certain information requirements under Zoning Regulation 4-510 by allowing Worthington to apply for a special use permit without providing the water system information mandated by Zoning Regulation 4-505 and 4-510. Zoning Regulation 4-505 reads as follows: Special use permit approval is required before commencing or establishing any use specified in Table 2-1, Schedule of Uses, as requiring a special use permit. Special use permits are also required pursuant to Subsection 3-210-E, Nonconforming Uses, and Division 6-300, Airport Overlay District. Subdivisions are specified in Table 2-1, and therefore require a special use permit. In turn, Zoning Regulation 4-510 provides in pertinent part as follows: The following information shall be submitted to the Planning Department with any application for a special use permit unless the Planning Coordinator waives information requirements because the specified item(s) is not relevant to the project review. A. Written Material: .... 5. Evidence that an adequate water supply in terms of quantity, quality, and 848 dependability for the use is or will be available; .... (Emphasis in original.) [¶ 24] Northfork posits that a general waiver provision that allows the planning coordinator to waive the production of information "not relevant to the project review" simply cannot be extended so far as to relieve a developer from the duty of producing before approval of a special use permit application, information concerning the water source and supply for a major subdivision. Consequently, Northfork argues, the Board violated its own zoning regulations when it adopted Resolution No. 2005-40 on June 21, 2005, approving the special use permit for the subdivision, while having in hand only Worthington's agreement "to provide service and infrastructure in time to serve the proposed use," as opposed to actual information showing "an adequate water supply in terms of quantity, quality, and dependability." [¶ 25] The Board's response to the accusation that it did not follow its own rules focuses upon the distinction between an application solely for a special use permit, and an application for a special use permit coupled with an application for a subdivision permit. As an example of the former, the Board states that a person desiring to establish a commercial business on his or her property would be required only to apply for a special use permit. All use impacts would be reviewed prior to approval of a special use permit in that situation because that would be the extent of county review. [¶ 26] In the subdivision context, however, the developer is required to proceed through a three-step process. First, the subdivision is exposed to "sketch plan review" by the Commission. Second, as noted above, subdivision approval also requires special use permit application and approval. Finally, "final plat review" occurs prior to the Board's approval of a subdivision. The Board's point is that the planning coordinator's waiver of the presentment of certain information at one stage of the proceedings is acceptable where the information must be presented at a different stage of the proceedings prior to final approval. The Board further points out that, in addition to the waiver authority found in Zoning Regulation 4-510, set forth above (see supra ¶ 23), Park County's Development Standards and Regulations give the planning coordinator similar authority: These standards and regulations specify information to be submitted with permits, certificates, and other applications. Situations may occur when not all of the items listed will be needed because of the nature of the applicant's request.... The Planning Coordinator and/or County Engineer are hereby authorized to determine, based on the nature of the applicant's request, whether to waive the requirement to submit items of information or to require additional information. [¶ 27] "Administrative rules and regulations have the force and effect of law, and an administrative agency must follow its own rules and regulations or face reversal of its action." RME Petroleum Co. v. Wyo. Dep't of Revenue, 2007 WY 16, ¶ 40, 150 P.3d 673, 688 (Wyo.2007); see also In re Adoption of CF, 2005 WY 118, ¶ 42, 120 P.3d 992, 1005 (Wyo.2005). In assessing whether an agency has abided by its rules and regulations, we defer to the agency's construction of those rules and regulations, unless that construction is clearly erroneous or inconsistent with their plain meaning. RME Petroleum, 2007 WY 16, ¶ 44, 150 P.3d at 689; Swift v. Sublette County Bd. of County Comm'rs, 2002 WY 32, ¶ 10, 40 P.3d 1235, 1238 (Wyo.2002); Pinther v. State Dep't of Admin. & Info., 866 P.2d 1300, 1302 (Wyo.1994). [¶ 28] In the instant case, the Board has concluded that its rules and regulations allow it to schedule over time the receipt from a developer of information required in the sketch plan-special use permit-final plat-subdivision plan approval process. That conclusion, based upon the interrelatedness of the separate processes, is not clearly erroneous, nor is it inconsistent with the plain meaning of the rules and regulations, when all are read together. The subdivision approval process is time-consuming and in-depth. It involves numerous decisions, on many and various issues, and it involves continual and repeated status review by county staff members, the Commission, and the Board. It is 849 not unreasonable for the Board to determine that certain information, such as water source information, that might be required at an earlier stage in a simpler development, need not be provided until a later stage in a complex subdivision development. This is not a case where the Board granted a subdivision permit without requiring mandatory submissions of information; rather, it is simply a case where the Board accepted submission of that information in a timely manner as the subdivision application progressed. Did the Board violate county regulations by approving a final plat that was not consistent with the sketch plan? [¶ 29] Northfork contends that, in violation of Park County's Development Standards and Regulations, the subdivision's final plat was not consistent with its sketch plan. Because Northfork's argument in this regard is brief, it is easier simply to quote it rather than to paraphrase: One criteria [sic] for approval of a final plat is that the final plat "must" be "consistent with the approved sketch plan...." DSR Ch IV § 3. b. (3). Resolution No. 2006-16 is not consistent with the approved sketch plan. Prior to and during the sketch plan phase, [Worthington] repeatedly changed it's [sic] water source for the subdivision. Finally, after proposing to convert irrigation water to domestic use, the Park County Planning Coordinator proclaimed that [Worthington's] plan to convert irrigation water to domestic use was now "elemental" to the sketch plan. Completely contrary to that "elemental" plan, the final plat relies upon 2005 surface water from the river. Again, completely contrary to the mandate of DSR IV § 3 b. (3) the court below allowed the [Board] to waive the consistency requirement as to water. [¶ 30] Resolution of this issue begins, as it should, with recognition that the cited development standard does, indeed, require that "the proposed subdivision is consistent with the approved sketch plan...." That statement must, however, be read within the context of the entire process of subdivision development in Park County. Sketch plan review and approval are tasks assigned to the planning coordinator and the Commission. Final plat and subdivision plan approval are, however, accomplished by the Board. There are a host of requirements that the developer must meet between sketch plan and final plat; while the final plat is to be consistent with the sketch plan, it need not be identical to it, or the entire process could end after the sketch plan was approved. Changes are anticipated. For instance, the Development Standards and Regulations provide that, at the sketch plan phase, the planning coordinator is "to alert the applicant to ... any issues which need to be addressed prior to final plat submittal." [¶ 31] Specifically in regard to water, the Development Standards and Regulations require that a sketch plan be referred to the State Engineer, that the planning coordinator forward any concerns raised by the State Engineer to the developer, and that the developer "shall address these concerns to the satisfaction of the [State Engineer] prior to approval of the final plat." A completed sketch plan application is also subject to public review, including any comments as to how the proposed water system may negatively impact water quantity or quality, or may have inadequate water rights. Such provisions obviously contemplate modifications to the sketch plan. [¶ 32] The Development Standards and Regulations governing final plat review and approval are somewhat more demanding in regard to a subdivision's water supply, but even then there is "breathing room." What is required is "[a]dequate evidence that a water supply sufficient in terms of quality, quantity, and dependability will be available to ensure an adequate supply of water to the type of subdivision proposed." (Emphasis added.) Stated a second time, the requirement is that "[a]dequate provision has been made for water supply ... in accordance with these regulations and Wyoming State Law." Finally, underscoring the built-in recognition that there will be some change between the sketch plan and the final plat, the Development Standards and Regulations require that "[n]o change has occurred which would result in an inability to make the 850 findings required for approval of sketch plats [sic]." [¶ 33] The Board defends against Northfork's contentions by pointing out the above-mentioned Development Standards and Regulations (see supra ¶ 32), and by indicating that the change in Worthington's water supply planfrom water wells on individual lots to a centralized surface water source piped through a centralized water supply system was actually a vast improvement. Further, Northfork's claim that an "irrigation use to domestic use" conversion was proclaimed by the planning coordinator to be an elemental part of the sketch plan is inaccurate. What the planning coordinator actually reported to the Board in an internal memorandum was as follows: 2001 AmendmentsWater. As noted above, the 2001 Amendments to the Subdivision Regulations established the Simple Subdivision Procedure. Consequently, Attachment E (Sketch Plan Submittal Requirements) applied to Simple Subdivisions only. It did not replace the Sketch Plan Submittal Requirements listed in the Subdivision Regulations since 1994. Accordingly, no information on water rights or water quality is required of any applicant as part of the Sketch Plan submittal for a subdivision. The Wyoming Department of Environmental Quality has not delegated its review of domestic water or sewer systems to Park County, and there is no one on County staff to review such data. [Northfork] refers to an "ever-changing water system" for this proposal. So far, the only change has been for the applicants to commit to a central water system rather than individual wells. This was in response to several concerns expressed by area residents prior to, and during, the November 30th public hearing. This proposed system must be approved by both Wyoming DEQ and the Wyoming State Engineer's Office, prior to the applicants' submitting a Final Plat for this subdivision. This central water system is now an elemental part of the Sketch Plan for this project, and if there are substantial changes in the future the approved Sketch Plan will need to be amended. (Emphasis added.) A sketch plan was tendered with individual water wells. After staff input and public comment, a final plat was approved with a central water supply system. The Board did not err in determining that this was not such an "inconsistency" as to require denial of the final plat of the subdivision. Is the Board's finding that the subdivision has a dependable water source supported by substantial evidence? [¶ 34] Wyo. Stat. Ann. § 18-5-306 (LexisNexis 2009) sets the minimum requirements that must be met before a subdivision permit may be granted. In regard to water supply, the statute provides in pertinent part as follows: (a) The board shall require ... the following information to be submitted with each application for a subdivision permit...: .... (vi) A study evaluating the water supply system proposed for the subdivision and the adequacy and safety of the system. The study shall, at a minimum, include the following: .... (B) For all water supply systems except individual on-lot wells, a report submitted by the subdivider demonstrating the adequacy and safety of the proposed water supply system. The report shall address, at a minimum, the following issues: .... (VI) Where a centralized water supply system is proposed containing a new source of water supply to be developed, the report shall also demonstrate that the water supply system is sufficient in terms of quality, quantity and dependability and will be available to ensure an adequate water supply system for the type of subdivision proposed.... (Emphasis added.) Consistent with this statute, Park County's Development Standards 851 and Regulations provide in Section 3 of Chapter IV as follows: .... b. Final plat: .... (2) Submittal Requirements for Final Plats: The following information shall be submitted with any application for final plat approval unless specific items are waived by the Planning Coordinator as unnecessary.... (a) Written Material: .... Adequate evidence that a water supply sufficient in terms of quality, quantity, and dependability will be available to ensure an adequate supply of water to the type of subdivision proposed.... (Emphasis added.) [¶ 35] Northfork contends first that the conjunction "and" in both the statute and the regulation requires the subdivision developer to provide evidence not just of the quality and quantity of the water supply, but also of the dependability of that supply. See Prickett v. Prickett, 2007 WY 153, ¶ 11, 167 P.3d 661, 664 (Wyo.2007).[6] Next, Northfork notes the well-known principle that use of the word "shall" in both the statute and the regulation indicates that the requirements are mandatory. See Stutzman v. Office of Wyo. State Engineer, 2006 WY 30, ¶ 17, 130 P.3d 470, 475 (Wyo.2006). Northfork then equates the concept of "adequate evidence" with the legal term "substantial evidence," which we have defined as "relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions." See Dale, 2008 WY 84, ¶ 22, 188 P.3d at 561. Finally, Northfork argues that the record does not contain substantial evidence of the dependability of the subdivision's water supply, which is an "unperfected" 2005 surface right in the river. In fact, Northfork contends that the record contains no evidence that the water supply is dependable. [¶ 36] Worthington first proposed as a water supply ground water wells on individual lots. Public comment and opposition led Worthington to propose, instead, a centralized system based upon converted irrigation rights. After additional public comment and opposition, Worthington again revised its water supply proposal, this time to surface water from the river along with an exchange of water from the downstream Buffalo Bill Reservoir. The final proposal, accepted by the Board, was for a 200 gallons per minute surface water supply from the river, with a 2005 priority date. [¶ 37] Northfork concedes in its appellate brief that, given the subdivision's need for only 25 gallons per minute, the 2005 water right is adequate evidence of "quantity." Citing the dictionary definition of "dependable" as meaning "reliable," however, Northfork argues that Worthington's evidence fails that test. See Merriam-Webster's Collegiate Dictionary 310 (10th ed. 1999). Relying upon general concepts of Wyoming water law, Northfork argues that, in a dry year, a 2005 priority could be "shut off first" to satisfy earlier priorities. In fact, just such a "call" on the river in 1977 shut down all water rights in the area back to 1900 priorities. [¶ 38] More specifically, Northfork argues that the Board unreasonably relied upon DEQ's "no adverse recommendation" report because the Board knew that the report was based upon inaccurate information as to the proposed water supply. The final plat was approved on March 7, 2006. About a week earlier, DEQ identified for a deputy Park County attorney "the key letter that I used to determine water was dependable (adequate)." That letter, dated September 30, 2005, was sent to DEQ from the State Engineer's Office. The substantive portion of the letter reads as follows: 852 As was the case with the first submittal for this subdivision proposal, existing water rights as outlined under Wyoming Statute 18-5-306(a)(xi) have yet to be addressed. A tabulation of potentially subject rights was provided with the first State Engineer review comments. With the exception of the newly filed permit to recognize the proposed domestic supply use, and the yet to be filed reservoir permit to recognize the newly proposed recycling of treated wastewater for irrigation; the originally identified subject water rights remain identical to those identified under the first submittal. Additionally, it is my understanding that the subdivider continues to pursue plans to purchase stored water in Buffalo Bill Reservoir, has applied for permits to drill several miscellaneous use wells, and is investigating changing all or part of the existing senior irrigation water rights (either temporarily or permanently) to domestic use within the subdivision.... [¶ 39] As proof of its allegations, Northfork identifies portions of the agency record that show the following: (1) by October of 2005, the Board knew that Worthington had admitted in a petition filed with the State Engineer that issues of the sufficiency and reliability of its 2005 surface water permit required it to seek an additional source of supply in the form of reservoir water exchange; (2) by October of 2005, the Board knew that there would be no such reservoir water exchange; (3) by January of 2006, the Board knew that the final plat application listed no well water source of supply; and (4) by January of 2006, the Board knew there would be no conversion of irrigation water to domestic use. Finally, Northfork cites Rodgers v. State ex rel. Wyoming Workers' Safety & Compensation Division, 2006 WY 65, ¶ 23, 135 P.3d 568, 576 (Wyo.2006), as requiring administrative agencies to consider and weigh all material evidence offered by the parties, and to resolve conflicts in that evidence. To summarize, Northfork contends that it was unreasonable for the Board to conclude, from the record evidence, that a 2005 priority surface water right was a dependable source of supply for the proposed subdivision. [¶ 40] The Board's response to these allegations is reflected in this sentence from its appellate brief: "A surface water permit granted by the State of Wyoming for 200 gallons per minute to a subdivision with a need for 25 gallons per minute from a riverway water source that has been flowing uninterrupted through geologic time amounts to an adequate and dependable water source." More particularly, the Board refers to the following portion of Resolution No. 2006-16, wherein the final plat and subdivision permit were approved on March 7, 2006, as proof that the Board did not act in ignorance of the fact that the proposed water source was limited to the river permit: [T]he Board has reviewed the information presented itself, and finds that, the water system as reviewed herein is dependent solely on the May 2005 water permit and that the Board is not in its review considering the availability of domestic water from any wells located on the subject property or from irrigation rights or other source, though the Board recognizes that [Worthington] does have potential access to additional water for domestic purposes should [Worthington] seek to follow whatever necessary local, state and/or federal procedures exist in supplementing its 2005 direct flow water permit.... [¶ 41] The Board also argues that Worthington's exploration of alternative water sources does not, ipso facto, mean that the surface water right is not dependable or is inadequate. Rather, the Board considers Worthington's efforts in that regard simply as evidence of Worthington's thoroughness in ensuring the dependability of its water supply. Finally, the Board argues that it recognized and addressed the potential risk of a call or regulation of rights on the river, when it stated as follows in Resolution No. 2006-16: [O]pponents to this subdivision have submitted pleadings from a separate proceeding indicating that in 1977 there was a "call" on the Northfork of the Shoshone River during a dry year, however, the Board herein takes notice that in 1993 the Bureau of Reclamation completed a project 853 on the Buffalo Bill Dam and Reservoir which has allowed for significantly more water storage in Buffalo Bill Reservoir than existed in 1977 and that such additional storage creates significantly different and more favorable circumstances relating to satisfaction of water right than existed in 1977, including the availability of water in a State of Wyoming storage account available for purchase and/or exchange.... [¶ 42] In short, the Board found that the single incident of a call on the river in 1977, especially given a major change in circumstances after that date, was not such evidence of risk as to render the 2005 priority "undependable" as the subdivision's water supply. The findings of an administrative agency are given considerable deference during judicial review, meaning that the court does not disturb those findings unless they are clearly contrary to the overwhelming weight of the evidence. Dale, 2008 WY 84, ¶ 11, 188 P.3d at 558-59; EOG Res., Inc. v. Dep't of Revenue, 2004 WY 35, ¶ 12, 86 P.3d 1280, 1284 (Wyo.2004). In this instance, we cannot say that the Board's determination was contrary to the great weight of the evidence. Apparently, there has been one call on the river in recorded history. After that, reservoir storage was enhanced to alleviate area water shortage in the event of a similar dry year. The Board found that to be sufficient evidence of the dependability of the subdivision's water supply, and we will not second-guess the Board or substitute our judgment for that of the Board, where sufficient evidence exists in the record supporting that determination. Speculation that another dry year in the future potentially could cause a shortage does not overcome the record evidence. Did the Board's approval of the subdivision's open space plan violate county regulations? [¶ 43] The subdivision is located on land that was zoned GR-5, which zone is described as follows in Park County Zoning Resolution Section 2-405 F: F. General Rural 5-Acre (GR-5). The GR-5 district allows moderate-intensity land uses. Conventional subdivisions will average 5 acres per housing unit. A variety of uses is permitted in this district in recognition of the varied land uses typical of rural areas. This district is also intended to promote the retention of open space, agricultural land, wildlife habitat, riparian habitat and scenic areas and prevent development on unstable geologic features. (Emphasis added.) The subdivision was actually developed, however, under Zoning Resolution 2-615 E, under the concept of "lot grouping:" E. Lot Grouping Requirements: Grouped lot subdivisions shall meet all of the following requirements: .... 3. A minimum of 50 percent of the acreage of the parent parcel shall be open space configured as a separate parcel owned and managed by a homeowners' association or other entity or as a contiguous area comprised of portions of individual building lots restricted against development by a conservation easement. Such areas shall meet the open space requirements of the subdivision regulations and shall be indicated on the plat or record of survey.... (Emphasis added.)[7] The Zoning Resolution contains the following pertinent definitions in Division 7-200: Open Space: An area of land that is essentially unimproved and is set aside or reserved for agricultural purposes or to be maintained in a natural state. Parcel: A contiguous area of land owned and recorded as the property of the same person or a single entity. [¶ 44] Northfork contends that the Board violated these regulations by approving 854 the subdivision's final plat where the open space provided for therein was not a single contiguous parcel, was not entirely undeveloped, and did not fulfill Park County's policy that open space promote wildlife habitat and migration. A review of the final plat reveals that, indeed, the open space in the subdivision consists of one very large tract north of the housing lots, three separate tracts of relatively significant size within the subdivision, but largely surrounded by houses, a "beltway" surrounding the entire subdivision, and several narrow corridors connecting these various tracts. There appears to be no dispute that, taken together, these tracts cover approximately 53% of the entire subdivision. [¶ 45] The Board defends its approval of the subdivision's open space configuration with several arguments. First, it describes the subdivision as an "innovative design," apparently intending to mean that the open space configuration best fits the underlying subdivision design while meeting the purposes of the Zoning Resolution, because it allows open space to "pervade" the development. Next, the Board notes that the prohibition of exterior lot line fencing actually creates a much larger open space area than the specifically reserved 53%. The Board then notes that Northfork has incorrectly defined "open space" as specifically contemplating wildlife habitat and migration; neither of those terms being included in the definition of the term. The Board also points out the numerous connective corridors, and argues that any roadways crossing open space areas should be considered de minimis. Finally, the Board argues that it should be given broad discretion in interpreting and applying its own rule, and that its approval of the open space design is not clearly erroneous or contrary to the rule. [¶ 46] We will affirm the district court and the Board as to the open space requirements for the following reasons. First, the final plat clearly shows the provision of open space that meets the definition contained in the Zoning Resolution. It is land "reserved for agricultural purposes or to be maintained in a natural state." In reaching this conclusion, we note that the GR-5 zone requirements list separately "open space, agricultural land, wildlife habitat, riparian habitat and scenic areas." The term "open space" is not, as is argued by Northfork, defined by the equivalent terms that follow it in that list. Rather, open space is defined as cited above from a separate section of the Zoning Resolution, which definition includes only "agricultural purposes" and "natural state." See supra ¶ 43. The Lot Grouping requirements make no mention of wildlife at all. And even if we construed "open space" to include "wildlife habitat," Northfork has not shown that wildlife will be any more inhibited in utilizing the open space within this subdivision as designed than it would be open space in a single-parcel configuration. In making that statement, we do not consider the migration patterns of any particular species of wildlife, there being nothing in the record suggesting a concern within the Zoning Resolution in that regard, and there being nothing in the record showing the disruption of the migration patterns of any particular species. [¶ 47] Having reached these conclusions ourselves from reviewing the record, we cannot very well determine that the Board acted unreasonably or against the great weight of the evidence in concluding that this subdivision design meets the purposes of the Zoning Resolution's open space requirements. While we are not convinced that the numerous corridors make the separate tracts "contiguous," we are at the same time not convinced that the Board's acceptance of this "flaw" is so significant as to represent a violation of its own regulations. [¶ 48] Our standard for reviewing agency determinations is well established. We give deference to an agency's findings of fact and we do not reverse them unless they are contrary to the great weight of the evidence, or not supported by substantial evidence. Buehner Block Co. v. Wyo. Dep't of Revenue, 2006 WY 90, ¶ 10, 139 P.3d 1150, 1153 (Wyo.2006). On the other hand, we review de novo the interpretation and application of law. Id. This dichotomous approach applies to mixed questions of fact and law. Antelope Valley Improvement & Serv. Dist. v. State Bd. of Equalization, 992 855 P.2d 563, 566 (Wyo.1999). We consider the reasonableness of the agency's exercise of judgment, and we defer to the agency's interpretation of the language it normally implements, unless clearly erroneous. Buehner Block, 2006 WY 90, ¶ 11, 139 P.3d at 1153; Davis v. City of Cheyenne, 2004 WY 43, ¶ 6, 88 P.3d 481, 484 (Wyo.2004); Bryant v. State ex rel. Wyo. Dep't of Transp., 2002 WY 140, ¶ 9, 55 P.3d 4, 8 (Wyo.2002); Swift, 2002 WY 32, ¶ 10, 40 P.3d at 1238. [¶ 49] In the instant case, the Board considered the requirements of the GR-5 zone, the Board considered the requirements of Lot Grouping, the Board considered the definition of "open space," and the Board concluded that the subdivision's open space configuration met the purposes of the Board's Zoning Resolution. The facts really are not at issuethe final plat is in the record. And we cannot say that the Board committed an error of law in determiningthrough the exercise of its judgmentthat the open space tracts retained under the ownership of Worthington substantially complied with the open space requirements of the Zoning Resolution. Was Northfork unlawfully denied intervention in the contested case hearing? [¶ 50] A brief review of some administrative law concepts may be helpful as we begin this discussion. The Wyoming Administrative Procedure Act (the WAPA) is found at Wyo. Stat. Ann. §§ 16-3-101 through 16-3-115 (LexisNexis 2009). By definition, a board of county commissioners is an "agency" subject to the WAPA. Wyo. Stat. Ann. § 16-3-101(b)(i); Holding's Little America v. Bd. of County Comm'rs of Laramie County, 670 P.2d 699, 701-02 (Wyo.1983). Certain lengthy and specific requirements for contested case hearings under the WAPA are found at Wyo. Stat. Ann. § 16-3-107. A "contested case" is defined as "a proceeding including but not restricted to ratemaking, price fixing and licensing, in which legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing ... [.]" Wyo. Stat. Ann. § 16-3-101(b)(ii). In turn, a "party" is "each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party[.]" Wyo. Stat. Ann. § 16-3-101(b)(vi). [¶ 51] Significantly, we have repeatedly interpreted these statutes to mean that a proceeding is only a contested case if it is a trial type hearing that is required by law. In re Bd. of County Comm'rs, Sublette Co., 2001 WY 91, ¶ 13, 33 P.3d 107, 112 (Wyo.2001). The "trial type hearing" requirement does not come from the WAPA, itself, but from whatever underlying statute is at issue in the proceeding. See, e.g., Foster's Inc. v. City of Laramie, 718 P.2d 868, 874-75 (Wyo.1986); Diefenderfer v. Budd, 563 P.2d 1355, 1359 (Wyo.1977). In other words, if no statute or other law requires the "legal right, duties or privileges of a party" to be determined at a trial type hearing, no contested case proceeding is required. [¶ 52] We raise this issue because, although all involved, at the time, treated the hearing that took place on July 12, 2006 as a contested case hearing, we have not been made aware of any underlying statute or administrative regulation that required Worthington's "appeal" of the five conditions placed upon the final plat and subdivision permit to be conducted as a trial type hearing. In its brief, Northfork cites Wyo. Stat. Ann. §§ 16-3-101 and 102 for the proposition that the WAPA "governs all contested case proceedings." While that is true to the extent that all contested case hearings held pursuant to WAPA must conform to the requirements of Wyo. Stat. Ann. § 16-3-107, it does not answer the question of whether a trial type hearing was required in this instance. Northfork also cites to Rules for Contested Case Practice and Procedure Before the Park County Board of County Commissioners, Ch. 1, § 1, but those Rules appear nowhere in the record. [¶ 53] Belatedly, in a footnote in its appellate brief, the Board suggests that, "[d]espite having held one in this case, the Board does not believe that contested case hearings are applicable or necessary when a board of county commissioners reviews whether to grant or deny a discretionary land use permit." 856 This is, of course, an important question, because the contested case definitions and regulations of WAPA would not apply to a hearing that was not a contested case. We do not intend, at this late juncture, to say whether or not the reconsideration of permit conditions by a board of county commissioners is or should be a contested case proceeding. The hearing in this case was assumed by all to be a contested case hearing, was held as a contested case hearing, and has previously been judicially reviewed as if it were a contested case hearing. For the purposes of these related appeals, it was a contested case hearing. [¶ 54] The next question is how the determination as to whether Northfork should have been allowed to participate in the hearing should have been made. In that regard, we previously have applied the requirements of W.R.C.P. 24(a) governing "intervention of right" in a civil action to the issue of who is "entitled as of right to be admitted as a party" in a WAPA contested case. Amoco Prod. Co. v. Dep't of Revenue, 2004 WY 89, ¶¶ 14-16, 94 P.3d 430, 437 (Wyo.2004). Neither party suggests an alternative approach. W.R.C.P. 24(a) provides as follows: (a) Intervention of right.Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. [¶ 55] In the instant case, we are concerned with the three requirements of W.R.C.P. 24(a)(2): one, that the applicant claims an interest in the subject of the action; two, that the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and three, that the applicant's interest is not adequately represented by an existing party. We have already found in favor of Northfork in regard to the first two considerations. See Northfork I, 2008 WY 88, ¶¶ 12-16, 189 P.3d at 264-65. Upon remand, the district court found against Northfork on the third consideration: The Court finds that [Northfork has] failed to satisfy the third requirement.... The [Board] was appropriately a party to the contested case hearing since it was acting in its regulatory capacity during the subdivision review process and not in its adjudicatory capacity. As such, the [Board] had an interest in determining the ability of the developer to plan and construct a subdivision within the parameters as set forth by the Park County subdivision regulations. This Court can discern no reason why [Northfork's] interests are not completely aligned with the [Board's] interest with regard to the contested case proceeding. [Northfork] failed to identify any particular claims they would intend to make if allowed to intervene which show [Northfork's] interests are different than the [Board's] or that the [Board] would not adequately represent those interests. (Internal citations omitted.)[8] [¶ 56] Having reviewed this extensive record in great detail, we simply cannot agree with the district court's conclusion that the Board adequately represented Northfork's interests during the contested case proceedings. In fact, the record reveals the Board's unyielding opposition to any participation by Northfork throughout the entire process. The Board's attitude toward Northfork could more readily be described as adversarial than as representative. As we recognized in Northfork I, Northfork had particularized and protectable interests in the development, which interests do not appear 857 from the record to have been shared by, no less championed by, the Board. Remaining Issues [¶ 57] The remaining enumerated issuesroad dedication, gated access, and multi-family dwellingsare all issues that were heard and decided at the contested case hearing. Because we conclude that Northfork was wrongfully deprived of its right to intervene in that hearing, those remaining issues will be remanded as well. CONCLUSION [¶ 58] The fact that Worthington constructed the subdivision during the pendency of this appeal did not render moot the issues raised by Northfork. The Board did not violate state law or its own regulations in allowing county officials to waive the collection of certain information regarding the subdivision at early stages of the development, because the subdivision process provided that such information would be made available and evaluated prior to approval of the final plat and prior to granting of the subdivision permit. Changes in the water supply source during the development process did not render the final plat inconsistent with the sketch plan, inasmuch as the sketch plan process clearly contemplated such changes. The Board's conclusion that the subdivision's water supply was dependable was based upon substantial record evidence, with any potential conclusion to the contrary being mere speculation. The Board did not err as a matter of law in determining the open space configuration within the subdivision to be adequate under the Board's Zoning Resolution. The Board did err, however, in denying Northfork the right to participate in the contested case hearing. [¶ 59] The district court and the Board are reversed to the extent set forth above, and the case is remanded to the district court for further remand to the Board for further proceedings consistent herewith. NOTES [1] Over time, the legal identities of the developer and the contestants have changed somewhat, but those changes are not relevant to the issues involved herein. Consequently, we will refer to the former as "Worthington" and the latter as "Northfork" throughout this opinion. [2] The last two listed conditions were imposed to discourage the entry of bears into the subdivision. [3] See W.R.C.P. 62 and 65. [4] The rationale of DeVilbissthat a change in circumstances may render an existing controversy mootwas reaffirmed in Grange Insurance Association v. Hoehne, 56 P.3d 111, 114 (Colo.Ct. App.2002). [5] Northfork cites Ahearn v. Town of Wheatland, 2002 WY 12, ¶ 14, 39 P.3d 409, 415 (Wyo.2002), and Schoeller v. Board of County Commissioners of the County of Park, 568 P.2d 869, 876-77 (Wyo. 1977) in support of this proposition. Those cases actually hold that the zoning authority of counties and municipalities is limited to that derived from state statute, and county actions inconsistent with the statutes may mandate reversal. Similarly, two cases cited by Northfork as holding that "[c]ounty planning regulations must be strictly construed and followed" do not involve county planning or zoning regulations. See Amoco Prod. Co. v. Dep't of Revenue, 2004 WY 89, ¶¶ 19-21, 94 P.3d 430, 439 (Wyo.2004); and U.S. West Commc'ns, Inc. v. Wyo. Public Serv. Comm'n, 988 P.2d 1061, 1067 (Wyo.1999). [6] As part of this argument, Northfork also relies upon two well-known precepts of statutory construction: The same analysis is used to determine the meaning of administrative regulations as is used to determine the meaning of statutes. See State ex rel. Wyo. Dep't of Revenue v. UPRR Co., 2003 WY 54, ¶ 12, 67 P.3d 1176, 1183 (Wyo. 2003). Each word of a statute must be given meaning. See In re MN, 2007 WY 189, ¶ 4, 171 P.3d 1077, 1080 (Wyo.2007). [7] Although the Board makes the point that individual lots within the subdivision are to remain unfenced, which, in effect, adds what amounts to additional "open space," there is no suggestion in the record that the open space in the subdivision is made up of portions of individual building lots. Rather, the open space in this subdivision falls under that portion of the zoning resolution highlighted above. [8] The district court correctly points out that, technically, there are four requirements under W.R.C.P. 24(a), the fourth being timeliness of the filing of the application for intervention. See State Farm Mutual Auto. Ins. Co. v. Colley, 871 P.2d 191, 194 (Wyo.1994). The question of timeliness has not been raised in this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615143/	668 P.2d 406 (1983) 64 Or.App. 226 MARION COUNTY, Oregon and Land Conservation and Development Commission, Respondents, v. FEDERATION FOR SOUND PLANNING, Families for Responsible Government, Inc., Shaw Cause, Inc., James G. Tryon, David Pulliam, Donald Sutherland, Donald Earl, Michael J. Tryon, Emil A. Valish, Tomi Kellogg, David Stepp, Ronald C. Hanna, Richard R. Greb, Franklin D. Williams, Gene Sundin, Ernest E. Godfrey, Marlene Godfrey, and Corinne C. Sherton, Petitioners. No. CA A25412. Court of Appeals of Oregon. Argued and Submitted February 25, 1983. Decided August 10, 1983. Edward J. Sullivan, Salem, argued the cause for petitioners. On the brief was Corinne C. Sherton, Salem. Robert C. Cannon, Marion County Counsel, Salem, argued the cause and filed the brief for respondent Marion County. Mary J. Deits, Asst. Atty. Gen., Salem, argued the cause for respondent Land Conservation and Development Commission. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. Before GILLETTE, P.J., and WARDEN and YOUNG, JJ. GILLETTE, Presiding Judge. Petitioners[1] seek judicial review of an order of the Land Conservation and Development Commission (hereinafter LCDC or the Commission) acknowledging the Marion County Comprehensive Plan as being in compliance with the statewide land use planning goals. We conclude that LCDC erred by (1) approving the plan despite possible goal violations, (2) approving a goal exception that was taken under an invalid procedure and (3) failing to address certain of petitioner Families for Responsible Government's objections. Accordingly, we 407 reverse the acknowledgment order and remand to LCDC. Marion County first submitted its comprehensive plan to LCDC for acknowledgment in June, 1980. The following December, LCDC issued a "continuance order," citing a number of goal violations in the plan and granting the county 120 days to bring the plan into compliance. In May, 1981, the county submitted its second acknowledgment request. LCDC again found goal violations and granted the county an additional 150 days to make corrections. On April 1, 1982, the county submitted its plan for the third time. Petitioners filed objections, as they had to each previous acknowledgment request.[2] In May, the Department of Land Conservation and Development (DLCD) issued a staff report recommending acknowledgment. LCDC held a hearing on the acknowledgment request and, on June 10, 1982, issued an acknowledgment order. The present petition for judicial review followed. Petitioners first contend that LCDC erred by " * * issuing a compliance acknowledgment order for a plan containing violations of the goals on the ground that the violations were `de minimus.'" Petitioners' objection derives from the following language in section 3 of the acknowledgment order: "The Commission finds that Marion County's Plan is in compliance with the Statewide Planning Goals. There appear to be arguable deficiencies in the plan for certain areas (particularly exception areas: Ankeny and Talbot Interchanges, Chinook Phase 5, Drury, Steel Bridge and White Cloud), if measured in isolation against the Goals. However, in view of the complexities of the problems, the extent of involvement in good faith planning, the relatively small proportion of land at issue and the positive achievements of the plan in resource protection, the Commission finds that the plan, viewed as a whole, complies with the Goals, including Goal 2, and that discrepancies are of a de minimus nature, so that acknowledgment is warranted." Petitioners assert that this language demonstrates that LCDC acknowledged the plan, despite a finding of goal violations, because it deemed the violations unimportant in comparison to other factors. According to petitioners, ORS 197.251, the statute governing compliance acknowledgment, does not authorize such an action. LCDC responds to petitioners' contentions with the argument that "the legislature intended that LCDC be able to * * * grant acknowledgment if a jurisdiction * * had achieved substantial [as opposed to total] compliance with the goals." To support its position, LCDC relies on three statutes that appear in ORS chapter 197. ORS 197.040(1)(b) directs LCDC to "allow for the diverse administrative and planning capabilities of local governments" when the Commission designs its administrative rules. ORS 197.230(4) pertains to LCDC's goal drafting responsibilities, directing the Commission to "[d]esign goals to allow a reasonable degree of flexibility in the application of goals by state agencies * * * and [local governments]." ORS 197.340 instructs LCDC and others to "give the goals equal weight in the planning process." According to LCDC, these provisions illustrate the legislature's intent that LCDC "be flexible in carrying out its statutory responsibilities" and that they also somehow authorize the application of a "substantial compliance" standard to acknowledgment requests. We disagree. First, we note that the statutes LCDC cites have nothing to do specifically with LCDC's responsibility to acknowledge comprehensive plans. They therefore do not directly authorize the employment of a "substantial compliance" standard. As an aid to interpreting ORS 197.251, which does govern compliance acknowledgment, the three statutes may hurt LCDC's argument more than they help it. They demonstrate 408 that, when it intended LCDC to be "flexible" with respect to the performance of its statutory duties, the legislature was capable of saying so and fully aware of the need to express its intentions clearly. We now turn to the language of ORS 197.251. That statute provides, in pertinent part: "(1) Upon the request of a local government, the commission shall by order grant, deny or continue acknowledgment of compliance with the goals. * "* * * "(5) A commission order granting, denying or continuing acknowledgment shall include a clear statement of findings which sets forth the basis for the approval, denial or continuance of acknowledgment. The findings shall: "(a) Identify the goals with which the comprehensive plan and land use regulations comply and those with which they do not comply; and "(b) Include a clear statement of findings in support of the determinations of compliance and noncompliance. "* * ." (Emphasis supplied.) It is significant that the emphasized portions of the statute speak in terms of "comply" and "compliance with the goals," rather than "substantial compliance," "compliance with the spirit of the goals" or other words to that effect. LCDC cites no legislative history to indicate that the legislature intended "substantial" compliance to serve as the basis for acknowledgment, and we are aware of none. Were we to hold substantial compliance adequate, we would be reading into the statute words that are not there and a meaning that is not fairly implied. We may not do so. Accordingly, we hold that LCDC may only acknowledge a comprehensive plan if it finds that the plan fully complies with all applicable goals. Marion County attempts to justify LCDC's order on a different ground. The county contends that, in the first sentence of section 3 of its order, LCDC found full goal compliance and that the remaining sentences in that paragraph are merely "dicta." We disagree. The last three paragraphs of section 3 state: " * * "The Commission conclusion is further supported by the Commission obligation in ORS 197.230(1) to `consider existing comprehensive plans of local governments * * * in order to preserve functional aspects of land conservation and development,' and in ORS 197.230(4) to `allow a reasonable degree of flexibility in the application of Goals.' While these requirements are written as considerations in [the] adoption process, the Commission believes they must be relied upon in applying the Goals as well. This view is reinforced by the obligation of `the Commission, the department, and local governments to give the Goals equal weight in the planning process' (ORS 197.340)." "The Commission (in ORS 197.040[(1)](b)) is required to recognize differences among local governments. `In designing its administrative requirements, the Commission shall allow for the diverse administrative and planning capabilities of local governments.' "The Commission cautions other jurisdictions not to take parts of the plan or the report out of context and use them as standards because the determination of acknowledgment is limited to the facts in this case." We think that this language demonstrates that the Commission made a conscious decision to acknowledge a plan containing goal violations. Neither the statutory rationalization nor the warning to other jurisdictions would have been necessary if LCDC had perceived its action as an acknowledgment based on full compliance with all applicable goals. We therefore conclude that section 3 of the LCDC order can fairly only be read as a determination that the plan should be acknowledged despite possible goal violations in six areas: the Ankeny and Talbot interchange areas, Phase 5 of the Chinook subdivision, 409 the White Cloud and Drury subdivisions and the site of a proposed destination resort at Steel Bridge. Because ORS 197.251 requires LCDC to support each acknowledgment order with findings that the comprehensive plan conforms to all applicable goals, the Commission's action was erroneous.[3] Petitioners next contend that LCDC erred in approving the county's goal exception for the Shaw Square area. The exception permits rural residential development in an area where Goal 3 (Agricultural Lands) would otherwise apply to keep the land in agricultural use. Before we address this issue directly, a brief explanation of the "exceptions" process is in order. As a general rule, the "resource" goals[4] like Goal 3 and Goal 4 (Forest Lands) must be applied to lands that fit within pertinent goal definitions, e.g., "agricultural land" and "forest lands." However, in order to avoid excessive rigidity in the land use planning process and to achieve rational planning results for areas where it is impossible or undesirable to apply the resource goals, LCDC devised an "exceptions" process. The pertinent language appears in Goal 2 (Land Use Planning), Part II: "When, during the application of the statewide goals to plans, it appears that it is not possible to apply the appropriate goal to specific properties or situations, then each proposed exception to a goal shall be set forth during the plan preparation phases and also specifically noted in the notices of public hearing. The notices of hearing shall summarize the issues in an understandable and meaningful manner. "If the exception to the goal is adopted [by the local government], then the compelling reasons and facts for that conclusion shall be completely set forth in the plan and shall include: "(a) Why these other uses should be provided for; "(b) What alternative locations within the area could be used for the proposed uses; "(c) What are the long term environmental, economic, social and energy consequences to the locality, the region or the state from not applying the goal or permitting the alternative use. "(d) A finding that the proposed uses will be compatible with other adjacent uses." This provision makes consideration of factors (a) through (d) mandatory. After the adoption of Goal 2, as LCDC gained experience in the application of the exceptions process, it apparently concluded that the Goal 2, Part II requirements were not well-suited for application to all types of land that, in the Commission's view, merited exceptions. The process seemed particularly ill-suited to land that was already developed in a manner inconsistent with otherwise applicable resource goals ("built" land) and land which, although not yet "built," was "irrevocably committed" to such development. As LCDC has explained in its brief "[I]f property is already committed to a non-resource use, it makes little sense to make findings as to why the use should be provided for or what are possible alternative locations for the use." LCDC therefore devised a second exceptions process that was codified into LCDC's administrative rules in July, 1982.[5] OAR 660-04-015(2) 410 and 660-04-025. A local government seeking to take an exception under this alternative procedure is required to consider: (a) adjacent uses; (b) public facilities and services (water and sewer lines and the like); (c) parcel size and ownership patterns; (d) neighborhood and regional characteristics; (e) natural boundaries; and (f) other relevant factors. If, after considering those factors, the local government concludes that the land in question is "built upon or irrevocably committed," the government may take an exception without considering the four factors listed in Goal 2, Part II.[6] We turn again to the issue before us. All parties to this case concede that the county's exception for the "Shaw Square" area "was based on the `built and committed' standard." Petitioners attack the exception on the ground, inter alia, that the test in OAR 660-04-015(2) and 660-04-025 for "built or committed" exceptions does not comport with the requirements of Goal 2. We agree. In Willamette University v. LCDC, 45 Or. App. 355, 608 P.2d 1178 (1980), we held that LCDC could not repeal or amend a statewide planning goal through the exercise of its general rulemaking power. The issue in that case was the validity of an LCDC rule proclaiming lands within lawfully established city boundaries to be per se "urban" or "urbanizable" lands, as those terms are defined in the goals. The effect of the rule was to excuse local governments from the requirement that they apply and satisfy a five-part test in Goal 3 and a seven-part test in Goal 14 before converting "rural" land to "urbanizable" land. After a detailed discussion of the provisions and purposes of Goals 3 and 14, we said: "* * * [I]t is contrary to the purposes of Goals 3 and 14 to base the extent and timing of urban development on city boundaries that are not themselves based on the statewide planning goals. "LCDC, rather than this court, is the primary policy-maker in this field. Norvell v. Portland Area LGBC, 43 Or App 849, 604 P2d 896 (1979). LCDC thus is entitled to amend the statewide planning goals to embody the policy choice stated in OAR 661-01-305 [the disputed rule]. But as matters now stand, we find that OAR 660-01-305 is inconsistent with Goals 3 and 14. "Ordinarily, a conflict in an agency's regulations would raise the possibility that the latter is an implied repeal or amendment of the former. That possibility does not arise in this context. The legislature has delegated separate responsibilities to LCDC: first, and more specifically, to adopt the statewide planning goals, ORS 197.040(2)(a), 197.225; second and more generally, to `promulgate rules,' ORS 197.040(1)(b). In this statutory scheme, the goals occupy a preferred position. There are, for example, special procedures required, over and above the general rulemaking procedures of the Administrative Procedures Act, for LCDC's adoption or revision of the statewide planning goals. ORS 197.235 to 197.245. From this scheme, we conclude the legislature did not intend that the statewide planning goals could be indirectly repealed or amended by any exercise by LCDC of its general rulemaking power." 45 Or. App. at 373-74, 608 P.2d 1178. (Emphasis supplied.) See also 1000 Friends v. LCDC, 292 Or. 735, 642 P.2d 1158 (1982). In this case, LCDC's "built or committed" exceptions policy excuses local governments from the consideration of factors made mandatory by Goal 2. It may therefore be regarded either as a partial repeal of Goal 2, Part II, or as an amendment to that provision. As Willamette University v. 411 LCDC,supra, and the statutes governing goal adoption make clear, LCDC policy pronouncements of such magnitude must be promulgated in accordance with the procedural requirements for goal adoption. Because the "built or committed" exceptions process has not been promulgated as a goal amendment, it is not a lawful exceptions mechanism and challenged exceptions taken under it cannot stand.[7] LCDC erred by approving the county's exception for Shaw Square. Petitioner FRG next complains that its objections to the county's acknowledgment request, which were timely filed with DLCD, were " * * not forwarded to the commission, reviewed by the commission, responded to by the commission in its findings supporting its acknowledgment order, or placed in the record of LCDC's proceedings." According to FRG, these omissions constitute a material procedural error that impaired the fairness of the proceedings and the correctness of the agency's order, necessitating a remand under ORS 183.482(7).[8] LCDC counters with the following argument: "* * * The objection which petitioners refer to * * * was reviewed by and responded to by the Commission as part of the City of Salem acknowledgment, which occurred on the same day as the Marion County acknowledgment review. * * * "The reasons that the issues raised in petitioner FRG's objections were considered as part of the City of Salem's acknowledgment review rather than Marion County's is that the objections relate to an area of the county which is outside the city limits of Salem, but inside the established urban growth boundary. * * [T]he area which was included in the Marion County Acknowledgment request was `outside of adopted or acknowledged urban growth boundaries.' * * " We note first that LCDC appears to misapprehend the identity of the FRG objections in issue. In April, 1982, FRG filed separate objection letters in response to acknowledgment requests for both the Salem Area Comprehensive Plan and the Marion County Comprehensive Plan. The objections to the Salem Area plan involved an area that "currently lies outside of the Salem city limits, but is proposed to be included within the Urban Growth Boundary." FRG is not now concerned with those objections. Instead, FRG contends that LCDC failed to consider the objections it raised with respect to the Marion County Comprehensive Plan. Some of the concerns raised in that objection letter do refer to land between the Salem city limits and the urban growth boundary, but others criticize the Marion County plan as a whole.[9] The latter objections could not have been properly addressed in the acknowledgment proceedings for the Salem Area plan. 412 Neither LCDC nor the county point to any other attempt by LCDC to address FRG's objections. We must therefore decide whether LCDC was required to respond to FRG's objections. The statutes do not say. OAR 660-03-025 appears to require the director of DLCD to respond to timely filed objections, but the rule specifically provides that "the failure to respond to an objection which was timely filed shall not be grounds for invalidation of a Commission order * * ." Despite the language of that rule, we hold that LCDC must respond to properly raised objections and that the failure to do so is reversible error. The rationale for our decision lies in the statutory scheme for judicial review of LCDC orders. ORS 197.650(1) provides: "A commission order may be appealed to the Court of Appeals in the manner provided in ORS 183.482 [governing judicial review of orders in contested cases] by the following persons: "(a) A person who submitted comments or objections pursuant to ORS 197.251(2) and is appealing a commission order issued under ORS 197.251; " * ." A petitioner seeking judicial review under the terms of this statute must base the arguments on the objections (or comments) filed with DLCD; those objections will therefore frame the issues on appeal. Unless we have the Commission's decisions on those issues before us, along with the bases for those decisions, we cannot perform the judicial review functions required by ORS 183.482. LCDC erred by failing to respond to FRG's objections to the Marion County Comprehensive Plan.[10] Reversed and remanded.[11] NOTES [1] Petitioners include three citizen groups (Federation for Sound Planning, Families for Responsible Government (FRG), Shaw Cause, Inc.) and 15 individuals. [2] Shaw Cause, Inc., filed objections after all three acknowledgment requests. FRG did not file objections until the Marion County plan was before LCDC for the third time. [3] In a separate assignment of error, petitioners challenge the merits of the county's exception for the Steel Bridge area. Our disposition of petitioners' first assignment of error makes it unnecessary for us to consider further the issues raised with respect to the Steel Bridge exception. [4] "Resource" goals are the statewide planning goals whose purpose is to preserve various state resources, e.g., Goal 3, which is intended to "preserve and maintain agricultural lands," and Goal 4, which is intended to "conserve forest lands for forest uses." [5] The alternative exceptions process was in use as early as 1975. See 1000 Friends of Oregon v. Board of Commissioners of Marion County, LCDC No. 75-006 (1975). The procedures were further explained in a 1979 LCDC policy paper and elaborately detailed by the Land Use Board of Appeals (LUBA) in 1000 Friends of Oregon v. Clackamas Cty, 3 Or. LUBA 281 (1981). [6] The new LCDC rule, OAR 660-04-025(1), makes this clear: " * * If a conclusion that land is built upon or irrevocably committed is supported, the four factors in Goal 2 * * * need not be addressed." [7] OAR 660-04-025 actually did not take effect until after LCDC had acknowledged Marion County's comprehensive plan. The county's exceptions were therefore taken in accordance with an LCDC policy that had not yet been expressed in rule form. The validity of the rule is thus not technically an issue in this case, but the permissibility of applying it is, in view of the parties' agreement that the rule was effectively applied by LCDC. [8] That statute provides, in pertinent part: "* * * The court shall remand the order for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." [9] Objections 2 and 3 are: "2. The implementation measures are inadequate and in violation of Goal 2 because: "a. The implementing ordinances do not contain plan amendment criteria; "b. The standards relating to zone changes are inadequate, as described below, and are in violation of ORS 215.410(5); and "c. The standards relating to the approval of conditional uses are inadequate, as described below, and in violation of ORS 215.416(5); "3. The allowed conditional uses conflict with the zoning ordinance language and there is no clear implementation strategy between the plan, the applicable zone and the conditional use provisions, in violation of State-wide Planning Goal 2; "* * *." [10] Our holding simply extends to LCDC orders a rule that has long applied to the orders of other administrative agencies. See, e.g., Wasson v. AFSD, 59 Or. App. 634, 640 n. 3, 652 P.2d 358 (1982); Graham v. OLCC, 20 Or. App. 97, 104, 530 P.2d 858 (1975). [11] Petitioners' remaining assignment of error does not require discussion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1109659/	541 So.2d 818 (1989) STATE of Louisiana v. Saul JOHNSON. No. 87-KA-2770. Supreme Court of Louisiana. January 30, 1989. 820 William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Beryl McSmith, Jack Peebles, Asst. Dist. Atty., for plaintiff-appellee. Clyde Merritt, Craig Colwart, New Orleans, for defendant-appellant. CALOGERO, Justice. Saul Johnson was indicted by an Orleans Parish grand jury on two counts of first degree murder in connection with the deaths of Sue Windham and Earline Nunn. At trial, the prosecution sought to establish that he murdered Sue Windham while engaged in the perpetration of aggravated rape, and then murdered Earline Nunn while engaged in the perpetration of aggravated kidnapping. At the conclusion of the guilt phase of his bifurcated trial, the jury found defendant guilty on both counts of first degree murder. Following the sentencing phase of the proceedings, the jury unanimously recommended imposition of the death penalty for each murder, finding that numerous statutory aggravating circumstances were applicable to each homicide.[1] On appeal of his convictions and sentences, defendant raises eighteen assignments of error. The most serious issues raised on appeal concern (1) whether the prosecutor, during his closing rebuttal argument in the guilt phase of the trial, improperly drew the jury's attention to the fact that the defendant did not take the stand and testify on his own behalf; (2) whether the trial judge erred by allowing the jury to examine certain written exhibits during its deliberations, including court documents pertaining to a peace bond proceeding which one of the victims brought against the defendant shortly before his death; and (3) assuming that defendant murdered Earline Nunn, whether the evidence was sufficient to establish that the defendant was engaged in the perpetration of an aggravated kidnapping when he did so. For reasons hereafter set forth, we hold that that reversible error occurred during the guilt phase of the trial when the prosecutor improperly referred to the defendant's failure to testify on his own behalf. This error vitiates both convictions and requires that defendant be retried on both charges. We also find that the trial court erred by allowing the jury to examine certain written exhibits during its deliberations. With regard to the evidence, we find that the evidence was constitutionally sufficient to support a first-degree murder conviction 821 for the murder of Sue Windham. Therefore, for the homicide involving that victim, the defendant may be retried for first degree murder. We find that the evidence was insufficient to support the first degree murder conviction for the homicide involving Earline Nunn, and thus double jeopardy considerations preclude defendant's retrial on the identical charge. However, the evidence was constitutionally sufficient to support a second degree murder conviction for the killing of that victim. So the defendant may be retried for second degree murder on a charge pertaining to that homicide. Facts The following is a summary of the pertinent events leading up to defendant's conviction. On November 27, 1984, a hunter discovered the body of a woman in the woods along Michoud Boulevard, in east New Orleans. The police were notified and it was later discovered that this was the body of Sue Windham. The next day, police discovered the body of Earline Nunn in an area not far from the location of the first body. As established by the coroner's trial testimony and related exhibits, Sue Windham was killed by three gun shot wounds to the head, all fired at close range by a .38 caliber weapon. An autopsy was conducted on the morning that Sue's body was found. Vaginal swabs revealed the presence of semen and sperm which had been deposited within approximately 36 hours of the autopsy. There was also a recently-inflicted deep bruise on the victim's right thigh. Earline Nunn died of two gunshot wounds to the head, also believed by the coroner to have been fired from a .38 caliber weapon. This victim had numerous scratches on her body. According to the coroner, these scratches would have been consistent with the victim running through the wooded area in which her body was found. The coroner estimated that both women died at approximately the same time, some 36 to 48 hours before the first autopsy, which began at 9:55 a.m. on November 27. The evidence at trial established that defendant, although married to another, had for some time been involved in a stormy relationship with Earline Nunn. Sue Windham was Earline's cousin and shared an apartment with Earline on Dryades Street. The state's evidence against defendant at trial consisted primarily of (1) testimony relating to threats Johnson made against the victims in the weeks prior to the murders; (2) jewelry belonging to both victims that was found in the defendant's car after the murders; and (3) testimony by three individuals, consisting of defendant's sister-in-law and two inmates who were incarcerated in Orleans Parish Prison with defendant, who claimed that defendant had admitted killing both women. The State also introduced court documents and an affidavit (S-33) which showed that a month before the murders, Earline Nunn had sought to obtain a peace bond against defendant in municipal court. In her affidavit, Nunn alleged that on September 18, 1984, at approximately 7:30 a.m., defendant attempted to throw her over the balcony of her upstairs apartment. The court documents further show that at the time Earline was murdered (on or about November 26, 1984), a hearing in the municipal court case had already been scheduled for a date in December, 1984. Defendant called three witnesses during the guilt phase of the trial. Two testified that the state witness Henry Foster had routinely acted as an informer for the police. The remaining defense witness, Donald Robertson, testified that shortly after Thanksgiving, 1984 (which was shortly before the estimated date of the murders), he saw Sue and Earline being forced into a car by a man with a gun. He identified the man with the gun as Sue Windham's "supposed-to-be-boyfriend." He described the car as a four-door grayish-blue Oldsmobile.[2] Robinson admitted to having a criminal 822 record that included two first degree murder convictions and an armed robbery conviction. ASSIGNMENTS OF ERROR Prosecutor's Comment on Defendant's Failure To Take the Stand (Assignment Ten) The defendant did not testify on his own behalf during the guilt or penalty phase of the trial. During his closing rebuttal argument in the guilt phase, the prosecutor referred to the fact that the defendant had made statements to several people implicating himself in the deaths of the two women. He then stated that: I will submit to you that there can be no better evidence in a criminal proceeding but that evidence from the defendant's own mouth, not contradicted by anybody. Nobody came here and contradicted anything that was attributed to him, not one single person. Nobody took the stand. Defense counsel timely objected to these remarks by the prosecutor, and moved for a mistrial on the ground that the prosecutor had improperly directed the jury's attention to the fact that the defendant did not testify on his own behalf. The trial court denied the motion without reasons. La.C.Cr.P. art. 770(3) provides that the trial court "shall" declare a mistrial when the prosecutor "refers directly or indirectly to ... [t]he failure of the defendant to testify in his own defense...." Art. 770(3)'s prohibition against such prosecutorial comment safeguards the defendant from unfavorable inferences which might otherwise be drawn from his silence. State v. Fullilove, 389 So.2d 1282 (La. 1980). The rule helps implement the defendant's Fifth Amendment right against self-incrimination, and is constitutionally required. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Art. 770(3) prohibits both "direct" and "indirect" references to the defendant's failure to take the stand. When the prosecutor makes a direct reference to the defendant's failure to take the stand, a mistrial should be declared, and "it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant's silence." Fullilove, 389 So.2d at 1284. Nor, in the case of a direct reference, will this Court attempt to determine the effect that the remark had on the jury. Id. Where the reference to the defendant's failure to take the stand is not direct, this Court will inquire into the remark's "intended effect on the jury" in order to distinguish indirect references to the defendant's failure to testify (which are impermissible) from general statements that the prosecution's case is unrebutted (which are permissible). Id.; see also State v. Jackson, 454 So.2d 116 (La.1984). When our cases speak of the need to ascertain the "intention" of a prosecutor's reference to the unrebutted nature of the state's case, we of course do not envision the impossible task of reading what was actually in the prosecutor's mind at the time the statement was made. Instead, the test we have employed for determining the "intent" of such a statement is as follows. In cases where the prosecutor simply emphasized that the state's evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, we have held that the prosecutor's argument did not constitute an indirect reference to the defendant's failure to take the stand. See, e.g., State v. Jackson, 454 So.2d 116, 118 (La.1984); State v. Smith, 433 So.2d 688 (La.1983); State v. Latin, 412 So.2d 1357 (La.1982). On the other hand, where the defendant is the only witness who could have rebutted the state's evidence, "a reference to the testimony as uncontroverted focuses the jury's attention on the defendant's failure to testify" and mandates a mistrial. State v. Perkins, 374 So.2d 1234, 1237 (La.1979). See also State v. Fullilove, 389 So.2d 1282 823 (La.1980); State v. Harvill, 403 So.2d 706 (La.1981). In Harvill, for example, the sole evidence which the state presented against defendant was his taped confession. In closing argument, the prosecutor told the jury: "Did you hear one word up there today that said it wasn't true? One word? You didn't." Agreeing with the defendant's argument that the prosecutor's remarks warranted a mistrial, we reasoned that: The prosecutor's reference to the unrebutted character of the State's evidence was clearly a comment upon the failure of the defendant to testify in his own defense, as only the defendant could recant the taped confession which formed the entirety of the prosecution's case against him. 403 So.2d at 711. In this case, the challenged statements of the prosecutor focused on the absence of testimony in rebuttal to the testimony of those state witnesses who said that the defendant told them that he committed the crimes. Those witnesses were Dorothy Johnson (defendant's sister-in-law), and two inmates, John Williams and Henry Foster. Johnson testified that defendant told her in a conversation at her home that he committed the murders. There were no other persons assertedly present at time of this conversation. Nor were there any other persons assertedly present on the separate occasions when defendant admitted to Williams and Foster that he committed the crimes. It is obvious, then, that the only person who could have contradicted the testimony of these witnesses about what the defendant told them was the defendant himself. By emphasizing that the testimony of these witnesses was unrebutted ("Nobody came here and contradicted anything that was attributed to him [defendant], not one single person. Nobody took the stand."), the prosecutor indirectly referred to the defendant's failure to take the stand in violation of Art. 770(3). Art. 770(3) provides that a mistrial "shall" be declared when the prosecutor indirectly refers to the defendant's failure to testify on his own behalf. Because there was such a reference here, the trial court's failure to declare a mistrial constitutes reversible error. See State v. Fullilove, 389 So.2d 1282 (La.1980); State v. Perkins, 374 So.2d 1234 (La.1979). Certain language in the majority opinion in State v. Jackson, 454 So.2d 116 (La.1984) indicates that a violation of Art. 770(3) can be considered harmless error in a case where the evidence of the defendant's guilt is "overwhelming." Id. at 118. However, we question whether such a harmless error inquiry is ever appropriate, for Art. 770(3) mandates a mistrial, at that point in the trial when the motion is urged, in any case in which the prosecutor makes a direct or indirect reference to the defendant's failure to testify. When such an improper reference is made, the trial judge does not have discretion to deny the motion based on his perception that the error may prove to be harmless, a speculative judgment at best. Nor does the Code of Criminal Procedure allow the trial judge to attempt to minimize the effect of the error by simply admonishing the jury to disregard the prosecutor's remarks. Even if the harmless error doctrine is applicable to this issue in some cases, we cannot say that the prosecutor's improper reference to this defendant's failure to take the stand was harmless. The evidence against defendant consisted primarily of the testimony of certain witnesses regarding what the defendant had told them about the crimes, as well as certain other evidence, all circumstantial or peripheral. We can hardly conclude that the prosecutor's improper reference to the defendant's failure to take the stand and contradict the testimony of those who claimed that he had confessed the crime to them, was "harmless beyond a reasonable doubt." State v. Lee, 524 So.2d 1176, 1191 (La.1987); State v. Gibson, 391 So.2d 421 (La.1980). Evidence Viewed By Jury During Deliberations (Assignment of Error Number 11) In this assignment defendant complains that the trial judge erred by allowing 824 the jury to review certain pieces of evidence during deliberations. The record reflects that the trial judge allowed the jury to review the following exhibits in the jury room: the autopsy report on each victim (S-4 and S-8), the crime lab report (S-3) and the municipal court documents pertaining to Earline Nunn's request for the issuance of a peace bond against the defendant (S-32). The documents pertaining to the municipal court proceeding included an affidavit by Earline Nunn in which she attested that the defendant had attempted to throw her off of a balcony during an incident that occurred in September, 1984. Relying on La.C.Cr.P. art. 793, defense counsel objected to the jury's being allowed to view this evidence in the jury room. Art. 793 provides in pertinent part that: A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence.... Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict. The trial judge overruled defense counsel's objection and the jury was allowed to view these exhibits during its deliberations. The rule expressed by Art. 793 is that "the jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue which does not require examination of the verbal contents of the document." (emphasis in opinion) State v. Perkins, 423 So.2d 1103, 1109-10 (La. 1982). A jury can examine a written statement to ascertain or compare a signature, or to see or feel it with regard to its actual existence, but not for the purpose of examining its verbal contents. Id. The rationale for the rule expressed by Art. 793 appears to be the concern that if jurors are allowed to review the contents of written exhibits during their deliberations, they will place undue weight on such exhibits and not decide the case with an even balance concerning all of the evidence, and their own recall thereof. "[T]he Louisiana legislature has made the value-determination that, because of the presumed prejudice, documents received in evidence should be sent to the jury on its request only `when a physical examination thereof is required to enable the jury to arrive at a verdict.'" State v. Freetime, 303 So.2d 487, 489 (La.1974) (emphasis in opinion). As we have noted in the past, Freetime, 303 So.2d at 489, most other jurisdictions allow jurors to take documents or papers, with the exception of depositions, into the jury room. See 4 Wharton's Criminal Procedure 555 (Torcia 1976); Annt., 37 ALR 3d 238. But the Legislature has not seen fit to change our state's rule, the violation of which has usually resulted in the reversal of the defendant's conviction. See, e.g. Perkins, supra (trial judge committed reversible error by allowing jury to view a copy of defendant's statement in the jury room); Freetime, supra (conviction reversed where trial judge allowed jury to review defendant's confession during deliberations). See also State v. Passman, 345 So.2d 874 (La.1977) (trial judge correctly refused jury's request to examine police radio log). In this case, there was no need for the jurors to make a "physical examination" of the exhibits in question in order to arrive at a verdict. The only way in which these exhibits could be of any assistance to the jurors during their deliberations is if they were examined for their verbal contents. Such an examination is prohibited by Art. 793. Therefore, the trial judge erred by allowing the jury to examine these documents in the jury room. This error may have been inconsequential with regard to the autopsy and crime lab reports, as those documents, although necessary to the prosecution's case, were not directly pertinent to the issue of this defendant's guilt or innocence. The court documents from the municipal court peace bond proceeding, however, contained an affidavit in which the victim asserted that defendant had attempted to seriously harm her shortly before the murder. Certainly this is the kind of written document which 825 should not be examined for its verbal contents under the rule provided by Art. 793, a rule which presumes that the jury will give undue weight to any written exhibit which it examines for its verbal contents during deliberations. Because we have independently concluded that the prosecuter's reference to the defendant's failure to take the stand requires the reversal of both convictions, it is unnecessary for us to determine whether the violation of Art. 793, standing alone, warrants reversing defendant's convictions. On retrial, however, the jury should not be allowed to examine the verbal contents of written exhibits during deliberations. Sufficiency of Evidence (Assignment 12) Defendant alleges that the evidence was insufficient to support the guilty verdicts. The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979); State v. Rosiere, 488 So.2d 965, 968 (La.1986). In order to establish that the defendant was the perpetrator, the state presented three witnesses who testified that he told them that he had killed the victims. The state also linked the defendant to the crimes through the jewelry belonging to the victims which was found in his car. This evidence was sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was the person who killed both women. Similarly, the gun shot wounds to the heads of both women, inflicted at close range, demonstrate that the killer acted with specific intent to kill or inflict great bodily harm. Thus the evidence was sufficient to establish that defendant committed both murders and acted with specific intent. The remaining question is whether the state presented sufficient evidence to establish that both of these specific intent homicides constitute first degree murder as defined by La.R.S. 14:30. The evidence was also sufficient to establish that defendant murdered Sue Windham while he was engaged in the perpetration of an aggravated rape. La.R.S. 14:30(A)(1). Thus the evidence was constitutionally sufficient to support the first degree murder conviction for the Windham homicide. With respect to the Earline Nunn homicide, the state sought to prove at trial that Nunn was the victim of first-degree murder because she was killed while the offender was engaged in the perpetration of aggravated kidnapping. La.R.S. 14:30(A)(1). The aggravating kidnapping claim was the only basis on which the state relied to establish that this homicide was first-degree murder. The state did not argue that the homicide qualified as first-degree murder under any of the other circumstances enumerated under La.R.S. 14:30(A)(2)-(5). Nor did the judge instruct the jury on any possible basis other than aggravated kidnapping for finding that this homicide qualified as first-degree murder. La.R.S. 14:44 defines aggravated kidnapping as follows: Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control: (1) The forcible seizing and carrying of any person from one place to another; or (2) The enticing or persuading of any person to go from one place to another; or (3) The imprisoning or forcible secreting of any person. (Emphasis added) The jury could have found, based on Foster's testimony, that defendant's conduct satisfied part of the definition of aggravated kidnapping, i.e., "forcible seizing and carrying of any person from one place to 826 another." According to Foster, defendant admitted to tying up Earline and forcibly taking her to the area where the bodies were found. However, there was no evidence in support of a critical element of aggravated kidnapping: that the perpetrator seized the victim with the intent of forcing the victim or some other person to give up anything of value in order to secure the victim's release. The state argued at trial that "something of value" which the defendant sought to force Earline to relinquish was her plan to testify against him in judicial proceedings (the peace bond proceeding, and as a witness against him with respect to Sue's death). We find this argument unpersuasive. It may be that defendant's desire to prevent Earline from testifying against him in future judicial proceedings was a motive for the murder of this victim. Even if that were so, however, forcing the victim to relinquish her plan to testify by taking her life can hardly be construed as seeking something of value from the victim or another person in order to secure the victim's release. Without such evidence, there is no aggravated kidnapping. At trial the State did not argue that any other circumstance qualified the Nunn homicide as first-degree murder. In his instructions on the charge involving Earline, the trial judge informed the jury that first-degree murder is a murder committed when the offender is engaged in the perpetration of aggravated kidnapping. Thus the jury's first degree murder conviction on this charge had to be based on an implicit finding that the offender was engaged in the perpetration of an aggravated kidnapping.[3] The jury's verdict on this charge is not supported by the evidence and must be set aside. Perhaps the state could have attempted to prove at trial that this homicide was a first-degree murder because it was committed under circumstances where "the offender has a specific intent to kill or to inflict great bodily harm upon more than one person." La.R.S. 14:30(A)(3). We have held that this statutory definition of first-degree murder is satisfied when "the murderer specifically intended to kill more than one person and actually caused the death of one person and the risk of death or great bodily harm to at least one other person, all by a single act or by a series of acts in a single consecutive course of conduct." State v. Williams, 480 So.2d 721, 726 (La.1985). The state did not rely on La.R.S. 14:30(A)(3) at trial and the jury was never informed of this statutory basis for first degree murder. However, in the penalty phase of the trial, one of the statutory aggravating circumstances which the jury found applicable to each homicide was that defendant "knowingly created a risk of death or great bodily harm to more than one person." La.C.Cr.P. art. 905.4(A)(4). In Williams, 480 So.2d at 726, we held (and logic supports the proposition) that the same conduct which satisfies La.R.S. 14:30(A)(3)'s definition of first degree murder (specific intent to kill or inflict bodily harm on more than one person) also satisfies the aggravating circumstance set forth in Art. 905.4(A)(4) (knowingly creating a risk of death or great bodily harm to more than one person). Note, however, that the reverse is not necessarily true. Although the two statutory provisions are somewhat similar, conduct by which the defendant knowingly creates a risk of great bodily harm to more than one person [Art. 905.4(d)] need not always be under circumstances where there is specific intent to kill or inflict bodily harm on more than one person [La. R.S. 14:30(A)(3) ]. The aggravating circumstance set forth in Art. 905.4(A)(4) encompasses a broader range of conduct than the first degree murder definition set forth in La.R.S. 14:30(A)(3). 827 It can be be argued that the jury's finding in the penalty phase that defendant knowingly created the risk of death or great bodily harm to more than one person under art. 905.4(A)(4) indicates that it might have found the evidence to support specific intent to kill or inflict bodily harm on more than one person, and it would have relied upon La.R.S. 14:30(A)(3) to support the first degree murder conviction if it had been aware of that particular definition of first degree murder.[4] We conclude, however, that where the evidence is insufficient to establish first-degree murder under the only definition of that crime which was argued or provided to the jury, the conviction cannot be upheld based on speculation about what verdict the jury would have returned if it had been informed of a different statutory basis for concluding that the defendant's crime constituted first degree murder. And, more importantly, even if we were to somehow "borrow" the jury's finding in the penalty phase and make it that of the jury in the guilt phase, there would still be a deficiency, inasmuch as knowingly creating a risk of death or great bodily harm to more than one person (which the jury found in the second phase of the trial) does not of necessity encompass specific intent to kill or inflict bodily harm on more than one person (the requisite finding in the guilt phase to qualify the crime as first degree murder). In every homicide case, the prosecutor is free to attempt to establish that the defendant's conduct satisfied any or all of the definitions of first degree murder contained in La.R.S. 14:30(A)(1)-(5). Here the prosecution chose to seek a first-degree murder conviction on this charge based only on an aggravated kidnapping theory, one which was wholly unsupported by the evidence. When the prosecution chooses to limit its case in this fashion, a defendant cannot be convicted of first degree murder based on assumptions about what the jury would have found if the prosecution had presented its case differently.[5] Even if the jury had been given the opportunity to determine in the guilt phase that defendant acted with specific intent to kill more than one person, we would still have to resolve whether the evidence was sufficient to support a finding that the defendant committed both murders "by a series of acts in a single consecutive course of conduct." That inquiry would present a close issue in this case, one which we would perhaps decide in favor of the state.[6] But 828 we need not resolve that question here. The fact is that the jury was never given the opportunity to make a determination of whether the defendant's conduct satisfied La.R.S. 14:30(A)(3), and, as discussed above, the jury's penalty phase finding that defendant knowingly created a risk of death or great bodily injury to two or more persons cannot be "borrowed" and applied to the guilt phase.[7] In Baldwin v. Blackburn, 653 F.2d 942 (5th Cir.1981), the United States Court of Appeal for the Fifth Circuit relied upon a jury finding in the penalty phase that the defendant committed the murder while engaged in the perpetration of an armed robbery as a basis for upholding the defendant's first degree murder conviction. At the time that defendant Baldwin was tried, La.R.S. 14:30 defined first-degree murder as a specific intent homicide, punishable by death or life imprisonment. The statutory factors which now distinguish first degree murder from all other homicides, La.R.S. 14:30(A)(1)-(5), were not set forth in the first-degree murder statute. Second-degree murder, punishable by life imprisonment, was defined in pertinent part as a specific intent homicide "under circumstances that would be first degree murder under Article 30, but the killing is accomplished without any of the aggravating circumstances listed in Article 905.4 of the Louisiana Code of Criminal Procedure." La.R.S. 14:30.1(B) (prior to 1978 amendment). One of the aggravating circumstances under Art. 905.4 was that the offender was engaged in the perpetration of an armed robbery. In Baldwin, the prosecution presented evidence during the guilt phase of the trial which demonstrated that the murder occurred while the offender was engaged in the perpetration of an armed robbery. At the close of the guilt phase, the trial court instructed the jury that first-degree murder was the killing of a human being where the perpetrator acted with specific intent. The trial judge also instructed the jury that second degree murder was a specific intent homicide which would be first-degree murder but for the fact that none of the aggravating circumstances listed in L.C.Cr.P. art. 905.4 were present. The trial judge, however, did not tell the jury, prior to its guilt determination, what the aggravating circumstances under La.C.Cr.P. art. 905.4 were which qualified a homicide as first degree murder. In the guilt phase of the trial, then, the jury arguably was not given a sufficient explanation of the difference between first and second degree murder. At the conclusion of the guilt phase of the trial, the jury convicted the defendant of first degree murder. At the conclusion of the penalty phase of the trial, the jury found that the murder was committed while the offender was engaged in the perpetration of an armed robbery, and recommended the imposition of the death penalty. 829 In upholding the defendant's conviction and sentence, the federal appellate court stated that: The jury's combined findings in the guilt and sentencing portions of the trial permitted the imposition of the death penalty on appellant. The aggravating circumstance that led them to the imposition of this punishment existed regardless of when the jury was instructed to consider it, and it was necessarily a part of their determination of guilt. 653 F.2d at 952. Baldwin is distinguishable from this case because the aggravating circumstance found in the penalty phase (offender engaged in the perpetration of an armed robbery) was identical to the statutory definition which qualified the homicide as first degree murder. Art. 905.4 served two functions. It set forth the circumstances which distinguished first degree murder from second degree murder, and, simultaneously, it recited the necessary aggravating circumstances for the purpose of the sentencing inquiry. The Fifth Circuit concluded that, under this statutory scheme, the defendant's conviction and sentence should be upheld as long as the jury was instructed at some point in the proceedings to consider whether the offender was engaged in the perpetration of an armed robbery. In this case, of course, the jury was never instructed to consider whether the defendant acted with specific intent to kill or inflict great bodily harm upon more than one person. As we have already noted, the aggravating circumstance of knowingly creating the risk of death or great bodily injury to more than one person [Art. 905.4], which was a jury finding in the second phase of the trial after instructions thereon, is similar, but not the same as La.R.S. 14:30(A)(3). Conclusion The trial court's refusal to grant a mistrial after the prosecutor's improper reference to the defendant's failure to testify requires us to reverse both convictions and remand for new trials. Because we have found that the evidence was insufficient to support a finding that the murder of Earline Nunn was committed while the offender was engaged in the perpetration of an aggravated kidnapping, and because the jury did not find under R.S. 14:30(A)(3) that the defendant acted with specific intent to kill more than one person, double jeopardy bars defendant's retrial for first degree murder in connection with that homicide. He may be retried on a charge of second degree murder for Earline Nunn's death, and first degree murder for Sue Windham's death. Decree Defendant's convictions and sentences on both counts of first degree murder are reversed, and the case is remanded for a new trial for each or both homicide charges within the limits expressed in this opinion. CONVICTIONS AND DEATH PENALTY SENTENCES REVERSED; REMANDED FOR NEW TRIAL. DIXON, C.J., concurs with reasons. WATSON, J., concurs and assigns reasons. MARCUS and LEMMON, JJ., concur in part and dissent in part and assign reasons. DIXON, Chief Justice (concurring): I respectfully concur in the opinion, disagreeing with the conclusion that "knowingly created a risk of death or great bodily harm to more than one person" does not mean the same as "the offender has the specific intent to kill or to inflict great bodily harm upon more than one person." If a person knowingly does an act he has the specific intent to do it. Otherwise, I subscribe to the opinion. WATSON, Justice, concurring. The statutory law of Louisiana is very strict in its prohibition against the direct or indirect reference to the failure of defendant to testify in his own defense. LSA-C. Cr.P. art. 770(3). My personal belief is that the provision should be modified, but until it is, it seems to me impossible to say that 830 the prosecutor's needless statement "nobody took the stand" is anything but an indirect reference to defendant's failure to testify. Therefore, I respectfully concur. MARCUS, Justice (concurring in part and dissenting in part). I agree with the majority that the prosecutor improperly referred to defendant's failure to testify on his own behalf during the guilt phase of the trial and that the trial court erred by allowing the jury to examine certain written exhibits during its deliberations. These errors require that defendant's convictions and sentences be reversed. I also agree that the evidence is sufficient to support a first degree murder conviction for the death of Sue Windham and that defendant may be retried for her first degree murder. I disagree with the majority's finding that the evidence was insufficient to support a first degree murder conviction for the death of Earline Nunn. I consider that the jury could have found under La.R.S. 14:30(A)(1) that Earline Nunn was killed while defendant was engaged in the perpetration of an aggravated kidnapping in that defendant sought to force Earline to relinquish her plan to testify against him in judicial proceedings (the peace bond proceeding and as a witness against defendant with respect to Sue's death), thus meeting the requirement of La.R.S. 14:44 that the victim "give up anything of apparent present or prospective value." Moreover, I would find that the prosecution presented sufficient evidence to support a conviction of the first degree murder of Earline Nunn by defendant under La.R. S. 14:30(A)(3), that is, when defendant has "specific intent to kill ... more than one person." The jury found that defendant had the specific intent to kill Earline Nunn since a first degree murder conviction under La.R.S. 14:30(A)(1) requires "specific intent to kill." Likewise, the jury found the defendant had "specific intent to kill" Sue Windham under La.R.S. 14:30(A)(1). Therefore, the record supports that defendant killed a human being (Earline Nunn) when "the offender had a specific intent to kill ... more than one person." Furthermore, the record supports that the deaths of both victims were perpetrated "by a series of acts in a single consecutive course of conduct." Although there was sufficient evidence presented to support a first degree murder conviction for the death of Earline Nunn under La.R.S. 14:30(A)(3) by the jury, the trial judge failed to instruct the jury of this definition of first degree murder (the killing of a human being when the offender had specific intent to kill more than one person) during the guilt phase of the trial. In view of this trial error, defendant may be retried for the first degree murder of Earline Nunn as well as the other victim (Sue Windham). For the foregoing reasons, I concur in part and dissent in part. LEMMON, Justice, concurring in part and dissenting in part. I agree that the district attorney's indirect comment on defendant's failure to testify required the granting of a mistrial and that the trial judge's error in failing to do so warrants reversal of the conviction in this case. I decline, however, to join in the majority's unnecessary suggestion in dicta that such an error can never be harmless.[1] I disagree that the evidence was insufficient to support the first degree murder conviction for the killing of Earline Nunn. The evidence established beyond a reasonable doubt that the murder was committed when defendant had the specific intent to kill more than one person. La.R.S. 14:30 A(3). The trial court's failure to instruct the jury on this element of the crime arguably constitutes trial error which might entitle defendant to a new trial (which he has already received on other grounds). However, the failure to instruct the jury 831 properly does not make the evidence insufficient. Irrespective of the jury's reasons for returning the verdict of guilty of first degree murder, the state is entitled to retry defendant on that charge as long as the evidence was sufficient to prove his guilt of that crime in the first trial (which it was). I therefore dissent from denying the state the right to retry defendant for the first degree murder of Earline Nunn. NOTES [1] For the murder of Sue Windham, the jury found three statutory aggravating circumstances: (1) the offender was engaged in the perpetration of an aggravated rape; (2) the offender knowingly created the risk of death and great bodily harm to more than one person; and (3) the offense was committed in an especially heinous, atrocious and cruel manner. For the murder of Earline Nunn, the jury found four statutory aggravating circumstances: (1) the murder occurred during the course of an aggravated kidnapping; (2) the offender knowingly created the risk of death and great bodily harm to more than one person; (3) the offense was committed in an especially heinous, atrocious and cruel manner; and (4) the victim possessed material evidence against the defendant. [2] In its rebuttal case, the prosecution called to the stand Walter Tyson, who was Sue's boyfriend at the time of her death. Tyson testified that he had a gray Oldsmobile and that it had two doors rather than four like the car described by Robinson. He stated that he did not murder either victim, did not own a gun and never ordered them into his car. [3] In his instructions regarding the murder of Sue Windham, the trial judge instructed the jury that first-degree murder is a murder committed when the offender is engaged in the perpetration of an aggravated rape. The jury was given no other definition for first-degree murder at any time during the trial. [4] The State does not raise these arguments, but we nonetheless address them in this capital case, particularly because the resolution of the issue determines whether defendant can be retried for first degree murder for the Nunn homicide. [5] Of course, a jury that finds a defendant guilty of first degree murder is not required by law to list the particular circumstance or circumstances under La.R.S. 14:30(A)(1)-(5) on which it relied in reaching its verdict. In a case where the jury is advised of more than one of the circumstances which may constitute first degree murder under that statute, the first degree murder conviction should be upheld if there is sufficient evidence to satisfy any of the definitions of first degree murder provided to the jury. In such a case, the reviewing court will assume that the jury found the existence of facts fitting the statutory definition of the crime which was included in the judge's instructions and which was supported by the evidence. But here, no such assumption can be made, as the jury was told only that first degree murder is a specific intent homicide committed while the offender is engaged in the perpetration of an aggravated rape or aggravated kidnapping, and, with respect to the Nunn homicide, the evidence was insufficient to support a finding that the murder was committed under either of those circumstances. [6] The only specific evidence as to the sequence and timing of the murders came from the coroner's testimony that both victims died at approximately the same time, and Foster's testimony that the defendant said he murdered Sue first, waited about two hours, transported Earline to the scene where the bodies were found, and killed her there. Accepting Foster's testimony as valid for the purpose of the sufficiency of evidence question, the legal issue would be whether a rational jury could have found beyond a reasonable doubt that both murders were committed "by a series of acts in a single consecutive course of conduct." Williams, 480 So.2d at 726. While we do not resolve that issue here, we note that the apparent time delay between the two murders is significantly longer than the delay involved in other cases where we have upheld first degree murder convictions under La.R.S. 14:30(A)(3) or penalty phase jury findings under L.C.Cr.P. art. 905.4(d). See, e.g., State v. Perry, 502 So.2d 543 (La.1986) (defendant shot five persons in rapid succession); State v. Lowenfield, 495 So.2d 1245 (La.1985) (defendant's multiple victims were shot while sitting at a table); State v. Williams, 480 So.2d 721 (La.1985) (defendant shot and killed one person in a barroom and immediately fired upon others); State v. Glass, 455 So.2d 659 (La.1984) and State v. Wingo, 457 So.2d 1159 (La.1984) (defendants shot victims to death on bed, one after the other); State v. Welcome, 458 So.2d 1235 (La.1984) (defendant shot and killed first victim; reloaded; chased second victim down the street and shot her); State v. Monroe, 397 So.2d 1258 (La.1981) (two consecutive stabbings); State v. Sonnier, 402 So.2d 650 (La. 1981) (two consecutive shootings); State v. English, 367 So.2d 815 (La.1979) (two consecutive shootings); State v. Martin, 376 So.2d 300 (La. 1979) (four consecutive shootings). Regardless of the apparent time delay between the two homicides, however, it could be strongly argued that defendant's actions, from the time he arrived at the apartment until the time that he committed the second homicide, constituted a series of acts in a single consecutive course of conduct. [7] With respect to the jury's penalty phase determination that the defendant "knowingly created a risk of death or great bodily harm to more than one person," we note that the state did not argue the existence of this aggravating circumstance during the penalty phase, just as it had not tried to make a case during the guilt phase for the defendant acting with specific intent to kill more than one person. In his instructions during the penalty phase, however, the trial judge informed the jury of all aggravating circumstances listed under Art. 905.4, and that is what prompted the jury to find that defendant knowingly created the risk of death or great bodily injury to more than one person. [1] Because the statute provides for a mandatory mistrial when such comments occur, the trial judge erred in denying a mistrial. The mandatory mistrial provision, however, does not automatically mean that an error in denying a mistrial can never be harmless. Harmless error is an entirely different issue to be determined by an entirely different standard.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1470907/	447 S.W.2d 407 (1969) The STATE of Texas, Appellant, v. SPARTAN'S INDUSTRIES, INC. et al., Appellees. No. B-1255. Supreme Court of Texas. November 5, 1969. 408 James E. Barlow, Dist. Atty., San Antonio, Soloman Casseb, Jr., Bruce Robertson, John Gilliland, San Antonio, 409 Crawford Martin, Atty. Gen., Monroe Clayton, Asst. Atty. Gen., Austin, for appellant. Bloch & Walton, William H. Bloch, Corpus Christi, Lang, Cross, Ladon, Oppenheimer & Rosenberg, James D. Stewart, San Antonio, Oscar Spitz, Corpus Christi, Kampmann, Kampmann, Church & Burns, George A. Kampmann, San Antonio, Berman & Fichtner, Jay S. Fichtner, Dallas, for appellees. REAVLEY, Justice. The question in this case is the constitutionality of the Sunday (or Saturday) closing law, Article 286a. Vernon's Ann. Texas Penal Code. We uphold the statute. The suit was brought by the District Attorney of Bexar County, acting in the name of the State, to enjoin four discount stores operating in Bexar County, Spartan Industries, Inc., Barker's of San Antonio, Inc., Shoppers World of San Antonio, Inc. and Globe Stores, Inc., together with certain employees, from selling certain items of merchandise on the two consecutive days of Saturday and Sunday in violation of Article 286a. The defendants attacked the constitutionality of the statute in extensive pleadings, and the trial court agreed with their arguments when the case came on for trial. No statement of facts is before us, and the briefs state that no evidence was heard by the trial court. JURISDICTION The State has taken a direct appeal to this court under the terms of Article 1738a, Vernon's Ann.Texas Civil Statutes. A question of jurisdiction must be faced. It arises because the trial court judgment decrees "that each of the said Pleas in Abatement be and the same are hereby sustained, and that this cause be and the same is hereby dismissed * * " This disposition of the case, if we were not to look behind the recitation, would not fit the requirement of Article 1738a, which provides that direct appeals to this court may be taken from orders of trial courts "granting or denying an interlocutory or permanent injunction on the ground of the constitutionality or unconstitutionality of any statute * ." Upon reading the full transcript we find that defendants' only ground for their "plea in abatement" was the unconstitutionality of the statute. The trial court gives the unconstitutionality of the statute as the reason for its judgment and decrees "that Plaintiff, the State of Texas, take nothing by its suit for injunctive relief against the Defendants * " We treat the so-called plea in abatement as a plea in bar and, since the trial court's take-nothing judgment could be the only intended judgment, the language as to the dismissal is disregarded as meaningless. When the judgment is thus interpreted, it denied the permanent injunction sought by the State on the ground of the unconstitutionality of Article 286a, and this court has jurisdiction of the direct appeal. This holding may be compared to the one in Touchy v. Houston Legal Foundation, 432 S.W.2d 690 (Tex.Sup.1968). In Touchy, the defendants filed a plea in abatement based on lack of standing of the plaintiffs to maintain the suit, and also filed a motion for summary judgment that plaintiff take nothing. The trial court heard the two pleas at the same time and rendered judgment reciting that the plea in abatement was sustained and the cause was dismissed, and further reciting that the motion for summary judgment was granted. Since the asserted ground of the plea in Touchy was a proper ground of abatement, we dealt with that ground and with the action of the trial court in dismissing the case. If the trial court could not have reached the merits of the case, its recitation of a ruling on the summary judgment motion had to be regarded as meaningless. In the case at hand, there was no ground for abatement and we regard the language as to abatement and dismissal as meaningless. 410 The corporate defendants first argue that Section 1 of Article 286a prohibits consecutive day sales by "any person," and that this must be construed to apply only to natural persons and not to corporations. Since this question is entirely separate from any constitutional issue, we decline to consider it on the ground of the limitation of our jurisdiction in a direct appeal. Halbouty v. Railroad Commission of Texas, 163 Tex. 417, 357 S.W.2d 364 (Tex.Sup.1962). Article 286a was enacted by the Legislature in 1961. Section 4a of the statute as originally enacted permitted the sale of otherwise prohibited commodities when the purchaser certified to the seller that his need of the item was an emergency. The construction of this section brought the statute to this court in 1964 in State v. Shoppers World, Inc., Tex., 380 S.W.2d 107. The question there was whether the seller could rely on the purchaser's certificate, or whether the statute required that there be no sale in the absence of an actual emergency. The court upheld Sec. 4a by construing it not to require an objective determination by the seller. The State argues in the case before us that this court has already determined the constitutionality of Article 286a in its entirety, but the opinion makes it quite plain that the attack on Sec. 4a was the only constitutional issue considered. The defendant there had obtained certificates from its purchasers and, as the law was construed by this court, there had been no violation. The court of civil appeals had properly ruled that the State was not entitled to an injunction, and there was no cause for this court to rule further. The Legislature removed Sec. 4a from this Article in 1967. Citing Article I, Sections 15, 17 and 19 of the Texas Constitution, and Article XIV of the United States Constitution, appellees contend that Article 286a discriminates against them and denies them equal protection or immunity, that it denies them due process of law by virtue of vagueness or uncertainty of the prohibited act, that it takes or damages their business or property without compensation, that it authorizes the injunction of a nuisance where there is no nuisance in fact and thus denies the right to a jury trial on that issue, and that it denies them due process by prohibiting or unduly oppressing a lawful business in a manner which has no reasonable relation to the public health and welfare. Finally, they contend that the caption of the original Act of the Legislature failed to comply with Article III, Section 35 of the Texas Constitution. The statute has been upheld against similar attack in two of the courts of civil appeals in three opinions: Spartan Industries, Inc. v. State, 379 S.W.2d 931 (Tex.Civ.App.1964, no writ); Hill v. Gibson Discount Center, 437 S.W.2d 289 (Tex. Civ.App.1968, writ ref. n. r. e.); State v. Sundaco, Inc., 445 S.W.2d 606 (Tex.Civ. App., 1969, writ ref. n. r. e.). EFFECT AND OBJECTIVES OF THE STATUTE Before weighing specific constitutional appeals against the precedents, we should understand what the Legislature has done by its enactment of Article 286a. We may as well decide at the outset whether this enactment has a reasonable relation to the public welfare. Has the Legislature arbitrarily interfered with the merchants of Texas, or can it be said that a proper objective is served by this law? Whether the statute is a legitimate exercise of the police power of the state is central to most of the questions now before us. The full text of Article 286a is set forth in the appendix following this opinion. It specifically provides in Sec. 5a that the older Sunday closing laws are not repealed. Articles 286 and 287, Texas Penal Code, still prohibit sales, or the opening of a place of business, by any merchant and trader (subject to certain 411 exceptions for drug stores, hotels, restaurants, etc.). The penalty for violation of Article 286 is a fine of not less than twenty nor more than fifty dollars. Article 286a enumerates a long list of articles from clothing to motor vehicles, and gives the business man the choice of trading on either Saturday or Sunday, but provides that if he sells on both days, he may be subjected to injunction or greater penal penalty. To weigh the full effect of Article 286a we must decide whether it prohibits the sale by the same person of one or more of the named articles on Sunday when different articles, but ones named in the statute, were sold on the preceding Saturday. Thus, could a merchant close off his appliance department on Saturday and then operate on Sunday with nothing but his appliance department open? We construe the statute to prohibit this. It says that any person who sells on both days shall be guilty of a misdemeanor. Who sells what? Who sells "any clothing; clothing accessories; wearing apparel;" etc., meaning that if "any" named item is sold on one day, it is illegal to sell "any" named item on the other day. The statute does not say to the merchant that he may not sell clothing, or sell clothing accessories, or sell wearing apparel on consecutive days. The effect of separating each article between the semicolons and applying the prohibition only to consecutive day sales of a separate article, would be to have the Legislature permit a merchant to sell watches on Saturday and clocks on Sunday, blinds and draperies on Saturday and curtains on Sunday, washing machines and radios on Saturday and driers and television sets on Sunday. This would be a nonsensical plan to ascribe to the Legislature. To judge the reasonableness of this statute, we have before us only the face of the statute with no evidence, but it appears there that the principal plan is to close mercantile establishments and department stores on Sunday. This is the reason for the broad list of commodities, the injunction process, and the provision in Sec. 5 that the statute applies only to those "engaged in the business of selling such item[s]." The merchant is given a choice between Saturday and Sunday, but who will choose to close on Saturday except the Sabbatarian? Defendants plead that this suit is an attempt to prevent them "from remaining open on Sundays." Surely Saturday is still the far better day for sales than is Sunday. The most important feature of Article 286a, in practical effect, is Sec. 4 which authorizes an injunction to enforce the prohibition of the statute. Without this provision, the sanction of Article 286 is a fine of no more than $50. That sanction is not effective for the considerations of large businesses and busy prosecutors. Defendants plead that this injunction is an attempt to prevent them "from remaining open on Sundays." Indeed, that is the effect of the statute and the intent of the injunction suit. Without Article 286a the Sunday sale of all of these commodities would be prohibited by Article 286, and the defendants would be in violation of that law were they then to engage in the activities which they would protect by appeal to the Constitution. Apparently they are not seriously troubled by the prohibitions of the law in the absence of the injunctive process. Sunday closing laws have been attacked vigorously, both in and out of the courts, for discriminating against persons whose religion requires them to take a day of rest on some day of the week other than Sunday. McGowan v. Maryland, 366 U.S. 420, 512, 81 S.Ct. 1101, 1153, 6 L.Ed.2d 393, 448; Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; Mann and Garfinkel, The Sunday Closing Laws DecisionsA Critique, 37 Notre Dame Lawyer 323 (1962); Barron, Sunday in North America, 79 Harv.L.Rev. 42 (1965). By provision in Article 284, Texas has long permitted one to labor on Sunday if he actually observes another day of rest 412 for religious purposes. The choice of Saturday or Sunday for the sale of the articles enumerated in the current statute should, at least, remove objections on grounds of religion made by the Sabbatarians. Since the basis of constitutionality of Sunday closing laws has often been said to be the achievement of a single day of rest for all the family, and for the bulk of the community, it is understandable that opponents would argue that the purpose is breached by allowing merchants a choice between two days. When the question came before the Supreme Court of Michigan in Arlan's Department Stores, Inc. v. Kelley, 374 Mich. 70, 130 N.W.2d 892 (1964), three justices found this feature fatal to the statute and three justices upheld it in this respect. The Supreme Court of Minnesota in State v. Target Stores, Inc., 279 Minn. 447, 156 N.W.2d 908 (1968), found no constitutional defect here, but only "a legislative attempt to alleviate the indirect religious burden upon Sabbatarians." The objective of one day a week surcease from commerce is served by this statute. That surcease has never been unanimous, for exceptions are always allowed. The Legislature was entitled to expect that Article 286a would yield Sunday operations only by Sabbatarians and perhaps an occasional small storekeeper. EQUAL PROTECTION Defendants argue that they are the victims of discrimination, and are denied equal protection of the law, because the statute raises the penalty and threatens an injunction only against those who are in the business of selling the particularly enumerated articles. This same argument was put forward and answered in Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 589, 81 S.Ct. 1135, 6 L.Ed.2d 551, 557. The Pennsylvania statute under consideration imposed a higher penalty for the Sunday sale of named commodities, which were almost exactly the same as those named in Article 286a. The U. S. District Court had found that substantial surburban retail businesses had triggered large scale violations of the Pennsylvania general Sunday closing law, and that the small fine of the older law "was inadequate to deter the Sunday opening of large retail establishments which could easily absorb such small fines as an incidental cost of doing a profitable business. Moreover, it appeared that the types of commodities covered by this new enactment are principal categories of merchandise sold in these establishments which have made the problem of Sunday retail selling newly acute." The Supreme Court held that it was within the power of the state legislature to have concluded that these businesses were particularly disrupting and that their violation of the law was of a different dimension, requiring a different remedy. Mr. Justice Frankfurter, in his concurring opinion, upholds the statute because "it singles out the area where a danger has been made most evident, and within that area treats all business enterprises equally. That in so doing it may have drawn the line between the sale of a sofa cover, punished by a hundred-dollar fine, and the sale of an automobile seat cover, punished by a four dollar fine, is not sufficient to void the legislation." 366 U.S. 541, 81 S.Ct. 1197, 6 L.Ed. 2d 465. The Supreme Court of North Carolina upheld an ordinance which forbade the sale of enumerated commodities very similar to those of Article 286a, saying: "It is both reasonable and practical to require people to do their serious shopping for clothing, furniture, automobiles, household and office appliances, hardware, and building supplies on weekdays." Charles Stores Company, Inc. v. Tucker, 263 N.C. 710, 140 S.E.2d 370 (1965). Courts have on occasion invalidated statutes of this nature by doing as the defendants have done in their briefs, holding up the prohibition against the sale of a 413 camera as against the absence of such a prohibition against the sale of camera film and calling for a showing of a distinction related to a day of rest or the public welfare. However, the clear majority of the cases uphold statutes against such attack so long as the statutory scheme, viewed as a whole, is a valid one and so long as it treats all merchants alike without discriminating among competitors. If no one is allowed to sell automobiles, for example, the law is not regarded as discriminatory. Anno.: Validity of Discrimination by Sunday Law Between Different Kinds of Stores or Commodities, 57 A.L.R.2d 975. In Watts v. Mann, 187 S.W.2d 917 (Tex. Civ.App.1945, writ ref'd), the court had before it the constitutionality of Article 4646b, Vernon's Ann.Civ.St., which authorized an injunction against one who made three usurious loans within a period of six months. It was there argued that the law discriminated in favor of usurers who made fewer loans. The court held that it was entirely proper for the Legislature to treat the more serious threat to the law differently from the casual violation. It was pointed out that the pleading of the lenders themselves showed that prior usury laws were ineffective as to the operations of those lenders and that the injunction law was essential. The same can be said of the case at hand, where defendants plead that the public wants to buy from them on Sunday and will be served if the court does not interfere. VAGUENESS The defendants say that the prohibited commodities are set forth in terms so vague and indefinite as to render the statute unconstitutional. Constitutional due process requires that the prohibition of a penal statute must be understandable to a person of common intelligence. Defendants argue that the descriptions of commodities in this statute are so uncertain that the merchant who wants to comply with the law cannot know how to do so. However, virtually all of these terms are common words which will be understood by any merchant. If a marginal or questionable case could be posed for the application of the word "hardware," for example, this would be no ground for vitiating an entire legislative enactment. United States v. Petrillo, 332 U. S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947); Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951). Various types of Sunday closing laws in many states for many years have prohibited sales by the use of words very similar to those used in Article 286a. They have been upheld against attack for vagueness. Charles Stores Company, Inc. v. Tucker, 263 N.C. 710, 140 S.E.2d 370 (1965); State v. Solomon, 245 S.C. 550, 141 S.E.2d 818, 14 A.L.R.3d 1277 (1965); State ex rel. Eagleton v. McQueen, 378 S.W.2d 449 (Mo.Sup.Ct.1964); Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135; 6 L.Ed. 2d 551; Anno.: Validity of Sunday Law or Ordinance as Affected by Vagueness, 91 A.L.R.2d 763. POLICE POWER The defendants also contend that Article 286a, by interfering with their lawful business, takes their property without compensation, declares a nuisance where there is none, and deprives them of property without due process of law. These contentions are without merit if the statute is a valid exercise of the police power of the state. The Constitution does not require that compensation be paid for loss occasioned by the exercise of the police power. State v. Richards, 157 Tex. 166, 301 S.W.2d 597 (1957). It is true that the Legislature may not validly declare something to be a nuisance which is not so in fact, but that depends upon the question of whether that which is declared to be a nuisance endangers the public health, public safety, public welfare, or offends the public morals. In 414 Ex Parte Hughes, 133 Tex. 505, 129 S.W. 2d 270 (1939), the Supreme Court held that no injunction could be granted to stop the relator from collecting usury, since the laws of the state did not then define usury as a nuisance, either public or private. The Legislature then enacted a special statute against usurious lending and provided for an injunction for its enforcement. The statutory injunction was upheld in Watts v. Mann, 187 S.W.2d 917 (Tex.Civ.App.1945, writ ref'd). If the Legislature may prohibit an act, it may authorize an injunction against that act. Thus we are brought back to the question of the police power of the state, which turns upon the question of whether there is a reasonable relation between Article 286a and the health, recreation and welfare of the people of the state. It is not the function of the courts to judge the wisdom of a legislative enactment. It is only when a statute arbitrarily interferes with legitimate activities in such a manner as to have no reasonable relation to the general welfare, that this court may rule the statute to be unconstitutional on the grounds with which we are here concerned. With the long precedent for the constitutionality of Sunday closing laws in this State, and with the view we take of this statute as set forth above, we hold it to be validly related to the health, recreation and welfare of the people. CAPTION Defendants say that Article III, Sec. 35 of the Texas Constitution, which requires that the subject of an Act be expressed in its title, is violated in the caption of Article 286a for this reason: the caption says that the subject of the Act is to prescribe one list of items which may not be sold on Saturday and another list of items which may not be sold on Sunday. This is an unlikely construction of the caption. The caption need only state the general subject of the Act; it need not explain the details. Holding Article 286a to be constitutional against the attacks here made upon it, we reverse the judgment of the trial court and remand the cause to that court for further proceedings. CALVERT, C. J., and SMITH and GREENHILL, JJ., dissent. APPENDIX Article 286a, Texas Penal Code (Acts 1961, 57th Leg., 1st C.S., p. 38, ch. 15, eff. Nov. 7, 1961. As amended by Acts 1967, 60th Leg., p. 79, ch. 39, § 1, eff. Aug. 28, 1967). (Caption) An Act to prohibit the sale or offer of sale, on both the two (2) consecutive days of Saturday and Sunday, or the compelling, forcing, or obliging of employees to sell certain named items; providing exemptions; declaring violation to be a nuisance and authorizing persons to apply and obtain injunctions restraining violations of this Act; and declaring an emergency. Section 1. Any person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale or shall compel, force or oblige his employees to sell any clothing; clothing accessories; wearing apparel; footware; headwear; home, business, office or outdoor furniture; kitchenware; kitchen utensils; china; home appliances; stoves; refrigerators; air conditioners; electric fans; radios; television sets; washing machines; driers; cameras; hardware; tools, excluding non-power driven hand tools; jewelry; precious or semi-precious stones; silverware; watches; clocks; luggage; motor vehicles; musical instruments; recordings; toys, excluding items customarily sold as novelties and souvenirs; mattresses; bed coverings; household linens; floor coverings; lamps; draperies; blinds; curtains; mirrors; lawn mowers or cloth piece goods shall be guilty of a misdemeanor. Each separate sale shall constitute a separate offense. 415 Sec. 2. Nothing herein shall apply to any sale or sales for charitable purposes or to items used for funeral or burial purposes or to items sold as a part of or in conjunction with the sale of real property. Sec. 3. For the first offense under this Act, the punishment shall be by fine of not more than One Hundred Dollars ($100.00). If it is shown upon the trial of a case involving a violation of this Act that defendant has been once before convicted of the same offense, he shall on his second conviction and on all subsequent convictions be punished by imprisonment in jail not exceeding six (6) months or by a fine of not more than Five Hundred Dollars ($500.00), or both. Sec. 4. The purpose of this Act being to promote the health, recreation and welfare of the people of this state, the operation of any business whether by any individual, partnership or corporation contrary to the provisions of this Act is declared to be a public nuisance and any person may apply to any court of competent jurisdiction for and may obtain an injunction restraining such violation of this Act. Such proceedings shall be guided by the rules of other injunction proceedings. Sec. 5. Occasional sales of any item named herein by a person not engaged in the business of selling such item shall be exempt from this Act. Sec. 5a. It is the intent of the Legislature that Articles 286 and 287 of the Penal Code of Texas are not to be considered as repealed by this Act; provided, however, that the provisions of said Articles shall not apply to sales of items listed in Section 1 of this Act which are forbidden to be sold on the day or days named in this Act. CALVERT, Chief Justice (dissenting). Any objective evaluation of the constitutionality of Art. 286a[1] should proceed from the incontrovertible premise that the statute is not, as most people are inclined to think, a "Sunday closing law", or even, as the majority of this court has characterized it, a "Sunday (or Saturday) closing law". Rather, as will be demonstrated, it is a "Sunday opening law". Any suggestion that Art. 286a is a "Sunday closing law", or a "Sunday (or Saturday) closing law", either overlooks or ignores the fact that, by virtue of the statute's provisions, stores in which only the forty-six items or categories of merchandise listed in section 1 are sold or offered for sale may open and engage in business on Sunday under sanction of law for the first time in one hundred years! Moreover, before the enactment of Art. 286a, the opening and operation of such stores and the sale of the listed merchandise on Sunday was absolutely prohibited by Arts. 283 and 286; and but for the enactment of Art. 286a operation of such stores and sale of the listed merchandise on Sunday would still be prohibited by Arts. 283 and 286. And if, as the majority opinion suggests, the sanctions provided in Arts. 283 and 286 were inadequate and "not effective for the considerations of large businesses and busy prosecutors," thus dictating a need for injunctive process, that sanction could easily have been added by the Legislature for inforcement of the existing Sunday closing laws without the necessity of enacting a Sunday opening law. INCIDENTAL QUESTIONS Before writing at some length on my main point of disagreement with the majority, perhaps I should indicate certain incidental points of agreement and disagreement. I agree with the holding that the pleas of unconstitutionality were pleas in bar and not pleas in abatement, and that the judgment of dismissal was, therefore, improper, and may be treated as meaningless. Texas Highway Department v. Jarrell, 418 S.W. 416 2d 486 (Tex.Sup.1967); Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208 (1958); 1 Tex.Jur.2d 19-23, Abatement and Revival §§ 3-5. I agree that Rule 71, Texas Rules of Civil Procedure, authorizes us to treat the pleas in abatement as pleas in bar; that the take-nothing judgment may be considered as the only proper judgment, and that we have jurisdiction of the direct appeal. I agree that we do not have jurisdiction to decide whether section 1 of Art. 286a is applicable only to "persons" or whether it is applicable also to corporations. I agree that the constitutionality of Art. 286a was not decided in State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.Sup.1964). To the contrary, the opinion in that case indicates painstaking care that our decision concerned only a proper construction of Section 4a, since repealed. I disagree with the majority's interpretation of section 1 of Art. 286a. The majority has interpreted the section to mean that if one[2] of the enumerated articles of merchandise is sold on Saturday, the merchant is not only prohibited from selling that article on Sunday but is prohibited also from selling on Sunday any of the other forty-five items or categories of items. I suggest that the majority interpretation is not the proper grammatical interpretation of the section. The section provides that "[a]ny person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale * * any clothing; clothing accessories; * * lawn mowers or cloth piece goods shall be guilty of a misdemeanor." Use of the words "any" and "or" require, in the absence of something indicating a different legislative intent, that the section be interpreted to reads as follows: "Any person who sells any clothing on the consecutive days of Saturday and Sunday; or any clothing accessories on the consecutive days of Saturday and Sunday; or any lawn mowers on the consecutive days of Saturday and Sunday * * " The fact that the various items are separated by semicolons rather than by commas does not alter the rule, and I find nothing in the section supporting the majority finding of a different legislative intent. It hardly makes sense to find that the Legislature thought that a seller of motor vehicles on Saturday might sell bed coverings or household linens on Sunday and that he should be punished if he did. If the Legislature had intended to make a person selling one of the items on Saturday subject to penalties if he sold another on Sunday, it could have so provided in very simple language. DUE PROCESS As is apparent from the majority opinion, appellees attack the constitutionality of Art. 286a on a number of grounds. If any one of the grounds of attack is sound, the trial court's take-nothing judgment is correct and should be affirmed. In my opinion the statute is unconstitutional because it operates to deprive appellees of their property without due process of law in contravention of the Fourteenth Amendment to the Constitution of the United States and of § 19, Art. I, Constitution of Texas. Persons engaged in selling the items of merchandise listed in section 1, Art. 286a, are engaged in a legitimate activity, and a legislative prohibition of the sale of such items, or limitation on the right to sell them, can only be squared with constitutional due process if it is a legitimate exercise of the police power. The legislative prohibition or limitation contained in the statute does not represent a proper exercise of the police power unless there is a reasonable relationship between its proscriptions and the protection of the public health, safety, morals or general welfare. Standards for determining whether such a relationship exists are anything but precise. 417 We summarized them in State v. Richards, 157 Tex. 166, 301 S.W.2d 597, at 602 (1957), in these words: "The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive the state of the right to take private property by the exercise of such power in a proper and lawful manner, but it is essential that the power be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists. * * " Section 4 of Art. 286a declares that the Act's purpose is "to promote the health, recreation and welfare of the people of this state." But, the legislative declaration that the Act's purpose is to promote the health, recreation and welfare of the people is not enough; it must appear that there is a reasonable basis for a legislative conclusion that the proscriptions contained in the Act will in fact promote or protect the health, recreation and welfare of the people. " * * [T]he cases are in complete accord in holding that a mere assertion by the legislature that a statute relates to the public health, safety, or welfare does not of itself bring such statute within the police power of a state. Governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of the legislation in question. Hence, in the exercise of such power, the legislature cannot, by its mere fiat, make that reasonable which is indisputably unreasonable." 16 Am.Jur.2d 546, Constitutional Law § 281. If the rule were otherwise, "it would always be within legislative power to disregard the constitutional provisions giving protection to the individual." Houston & T. C. R. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, at 653 (1905). The Legislature has "[a] large discretion * * * to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests," State v. Richards, supra; "[b]ut a state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. * * * Constitutional protections having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers [the public] * * * and really tends to accomplish the purpose for which it was enacted." Jay Burns Baking Co. v. Bryan, 264 U.S. 504, at 513, 44 S.Ct. 412, at 413, 68 L.Ed. 813, 32 A.L.R. 661 (1924). In the forepart of this opinion I said that Art. 286a was a Sunday opening law rather than a Sunday closing law. Actually, of course, the statute does not speak to the opening or closing of mercantile establishments; it speaks only to the sale or offers for sale of the forty-six items or categories of merchandise. What possible relationship the sale or non-sale of the particular items of merchandise on the consecutive days of Saturday and Sunday can have to the public health, morals, recreation or welfare is not suggested by the State; and I have been unable to conjure up a reasonable relationship in my own mind. I judicially notice, as a matter of common knowledge, that drug stores and grocery stores, which are legally open on the consecutive days of Saturday and Sunday, sell and offer for sale a large number of the listed items on both days; and prohibition of the sale of such items on the two consecutive days does not by law require the closing of such stores. The utter incongruity of an effort to relate the provisions of Art. 286a to protection 418 of public health, recreation, or welfare is so patent as to be inescapable. Most modern drug stores sell hand mirrors, clocks and flashlights. Mirrors and clocks are listed in section 1; flashlights are not. Is a flashlight "hardware", and thus included in the list of items which may not be sold or offered for sale on the consecutive days of Saturday and Sunday? If it is, how has the public health, morals, recreation or welfare been benefited by a statute which, because he sold a flashlight on Saturday, prohibits the merchant from selling a mirror or clock, or even another flashlight, on Sunday? Being uncertain myself of the relationship between the proscriptions of Art. 286a and the health, recreation and welfare of the people, which may have been in the legislative mind, I turned for assistance to the brief filed in this court on behalf of the State. I found there only this relevant statement: "Obviously, Article 286a, Texas Penal Code, relates to many things for the good of the public generally. The act is calculated to decrease the number of mercantile establishments that remain open both Saturday and Sunday, thus relieving traffic congestion and affording more families a day for family recreation and other activity when all family members can be present. Thus by reducing traffic congestion, affording families an opportunity to relax together at a common time the public health, welfare and recreation is benefited. This brief will not be lengthened by reciting the many public benefits Article 286a, Texas Penal Code is calculated to give the public generally." Laws which reduce traffic congestion and laws which afford family members an opportunity to relax together at a common time undoubtedly have a reasonable relationship to public health, recreation and welfare; but, can it reasonably be said that Art. 286a will do either of these things? The State's argument of public benefits is premised upon the statement that "[t]he act is calculated to decrease the number of mercantile establishments that remain open on both Saturday and Sunday * ." The premise seems clearly to be false. Under the law as it existed at the time Art. 286a was enacted, no stores which dealt solely in some or all of the merchandise listed in section 1 could legally be open for business on Sunday. Art. 283 prohibited labor in the stores and Art. 286 prohibited any merchant or dealer in the merchandise from permitting his place of business "to be open for the purpose of traffic." If we assume that, with Art. 286a in effect, those persons who deal solely in some or all of the listed merchandise, and those persons who could not operate their places of business profitably on both days without selling some of the listed items of merchandise, would be forced by economic necessity to keep their places of business closed on either Saturday or Sunday, perhaps we could reasonably conclude that the Act is calculated to reduce the number of mercantile establishments which remain open on Saturday. Quite obviously, however, it is calculated to increase the number of establishments which remain open on Sunday, since, prior to Art. 286a, none was legally open on Sunday. The question thus posed by the State's argument is whether an Act authorizing Sunday operation of business establishments which, theretofore, were legally open only on Saturday, is calculated to reduce traffic congestion and to afford more family members a common time of relaxation. I think not. Before enactment of Art. 286a, weekend shoppers for any one or more of the forty-six items listed in section 1 were required to do their shopping on Saturday and had a choice of shopping at any store dealing in the listed merchandise. A decrease in the number of stores open on Saturday may be calculated to relieve traffic congestion on that day at those points where stores are closed, but it is most assuredly calculated to increase traffic congestion on Saturday at those points where stores choose to remain open on that day. Moreover, the mere closing on Saturday and opening on Sunday 419 of some of the affected stores is calculated to create traffic congestion on Sunday in areas where none has existed before on that day. Finally, the closing on Saturday and opening on Sunday of some of the affected stores is calculated to increase Sunday traffic congestion, more than proportionately, by bringing once again into the stream of traffic all of those shoppers who did not find merchandise to their liking, at prices to their liking, on Saturday. In so far as traffic congestion is concerned, the statute is thus calculated to have an effect of aggravating the evil it allegedly corrects. Perhaps the best evidence that the State's traffic-reduction argument is without merit is that the majority of this court has declined to embrace or approve it. The idea that the statute is calculated to afford more family members an opportunity to relax together at a common time seems altogether fanciful. The same argument has been universally used by courts to support and sustain the validity of Sunday closing lawsthey provide a common day of rest when all family members can come together for relaxation and recreation. It is difficult to see how the argument can now be used to support and sustain a Sunday opening law which is calculated to result in some members of families working on Saturday and resting on Sunday while other members rest on Saturday and work on Sunday. The practical effect of the statute in this respect appears to be just the reverse of its stated purpose. Just as with the traffic-reduction argument, the majority has also declined to embrace or approve the State's common-day-of-rest argument. Indeed, the majority has rejected as applicable here the common-day-of-rest philosophy, so eloquently pervading the majority and concurring opinions in the four 1961 Supreme Court Sunday closing law cases. Instead, the majority has invented a "one-day-a-week-surcease-from-commerce" philosophy, and suggests that the due process attack is without validity because the new philosophy should be more satisfactory to Sabbatarians. Relief of religious burdens may avoid complaints by Sabbatarians on religious grounds, but I am at a loss to understand how relief of such burdens can create a reasonable relation between the statute's proscriptions and the public health, recreation and welfare. I will examine this matter in somewhat greater depth in analyzing the 1961 Supreme Court cases. As requiring a different result from the one I have reached, the State has relied primarily upon four cases decided by the Supreme Court of the United States, to wit: McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961); Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); Braunfield v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed. 2d 563 (1961). The first case involved the validity of the Maryland Sunday laws. They proscribed all labor, business and other commercial activities on Sunday, with certain exceptions such as sale of foods, drugs, newspapers and gasoline, and certain other exceptions in particular localities. In the second case, the Court considered the validity of the Massachusetts Sunday laws which forbid the keeping open of shops and the doing of any labor, business or work on Sunday, with certain exceptions. A Pennsylvania law was under attack in the last two cases. It provides that whoever shall sell on Sunday certain items of merchandise shall be subject to a fine. The items listed are almost identical with some of those listed in section 1 of Art. 286a. The Supreme Court upheld the validity of the statutes of the three states against almost every conceivable constitutional attack, including violation of due process. It is to be noted, however, that the Maryland and Massachusetts statutes are true Sunday closing laws, comparable to the Texas statutes before enactment of Art. 286a, and that the Pennsylvania statute was considered as having the effect of a Sunday closing law. Notice should be taken at this point that crucial to the Court's decisions 420 was the common-day-of-rest philosophy. This, said the Court over and over again, was the sustainable purpose of the various laws. In McGowan v. Maryland, supra, the Court said: "The present purpose and effect of most of them [Sunday Closing laws] is to provide a uniform day of rest for all citizens * ." 366 U.S., at 445, 81 S.Ct., at 1115. " * * It is true that if the State's interest were simply to provide for its citizens a periodic respite from work, a regulation demanding that everyone rest one day in seven, leaving the choice of the day to the individual, would suffice. "However, the State's purpose is not merely to provide a one-day-in-seven work stoppage. In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, recreation and tranquilitya day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days." 366 U.S., at 450, 81 S.Ct., at 1118. "Obviously, a State is empowered to determine that a rest-one-day-in-seven statute would not accomplish this purpose; that it would not provide for a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together. Furthermore, it seems plain that the problems involved in enforcing such a provision would be exceedingly more difficult than those in enforcing a common-day-of-rest provision. "Moreover, it is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive and active entertainments, for dining out, and the like. * *" 366 U.S., at 451, 81 S.Ct., at 1118. If the Supreme Court of the United States has correctly stated the purpose of laws requiring the closing of mercantile establishments on one day a week, that purpose can be served only by laws which require closing on Sunday; it cannot be served by laws which give a merchant a choice of closing on any day of the week or on another specific day of the week. It follows that the proscriptions of Art. 286a have no reasonable relation to the health, recreation or welfare of the people; and, therefore, that the Article is an arbitrary exercise of the police power, and should be declared unconstitutional. SMITH and GREENHILL, JJ., join in this dissent. NOTES [1] All Article references are to Vernon's Texas Penal Code. [2] Emphasis mine throughout unless otherwise indicated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1903067/	748 So.2d 1286 (2000) Roy McCALMONT v. JEFFERSON PARISH SHERIFF'S OFFICE, et al. No. 99-CA-940. Court of Appeal of Louisiana, Fifth Circuit. January 12, 2000. Rehearing Denied February 7, 2000. 1287 W. Gregory Merritt, New Orleans, Louisiana, Attorney for Appellant, Roy McCalmont. Golden & Fonte, Kenneth C. Fonte, Edmund W. Golden, Metairie, Louisiana, Attorneys for Appellees, Jefferson Parish Sheriff's Office, et al. Panel composed of Judges CHARLES GRISBAUM, Jr., THOMAS F. DALEY and SUSAN M. CHEHARDY. CHEHARDY, Judge. In this personal injury matter, after a bench trial on the issue of liability only, the trial court found defendants free from fault. For the following reasons, we affirm. This lawsuit arose out of a May 21, 1994 vehicular accident on Louisiana Highway 45 in Jefferson Parish. At approximately 4:00 p.m., defendant, Deputy Charles DeWilde, was conducting speed enforcement operations on La. 45 and had pulled a southbound vehicle over for speeding. La. 45 is a rural two lane, two way road with no shoulders. The driver of the vehicle pulled over for speeding had stopped and parked just off the roadway, parallel to the highway, in a narrow, private driveway. There was not enough space for Deputy DeWilde's vehicle to also fully exit the roadway, so Deputy DeWilde pulled as far off the highway as he could, and kept the overhead emergency lights flashing on his marked patrol vehicle. Shortly thereafter, a vehicle being operated by Paul Gage, in which plaintiff was riding as a front seat passenger, approached the scene. Gage attempted to pass the police car on the left, crossed the center line and hit an oncoming northbound vehicle being driven by defendant, Harold Pavon, head-on. As a result of the accident, plaintiff suffered injuries. The matter was bifurcated and proceeded to a bench trial on the issue of liability only. Additionally, the bench trial proceeded against only two defendants, Deputy DeWilde and the Jefferson Parish Sheriff's Office. After hearing the testimony and the evidence presented, on March 19, 1999, the trial court rendered judgment, finding Deputy DeWilde and the Sheriffs Office free from fault. Plaintiff appeals, asserting eight assignments of error, which will be addressed in 1288 three groups: that the trial court erred in failing to find Deputy DeWilde (and therefore, the Sheriffs Office)[1] negligent; that the trial court erred in failing to apply the adverse presumption rule; and that the trial court erred in its reasons for judgment. With regards to the negligence of Deputy DeWilde, the deputy testified at trial that the driver of the vehicle he pulled over just prior to the accident, Renato Guanga, decided to stop his vehicle parallel to the road in a narrow driveway, then immediately exit his vehicle and approach DeWilde. DeWilde testified that he normally uses the public address system in his patrol car to direct a driver to pull over and park in a safer manner, but in this case, Guanga exited his vehicle too quickly. DeWilde's attention was therefore focused on Guanga. DeWilde testified that when faced with this kind of potential threat, he is trained to exit his vehicle to better assess the situation. DeWilde further testified that he did not feel comfortable until he observed Guanga's hands, his actions and demeanor, began talking to him, and directed him to walk away from the vehicles, further up the driveway. DeWilde testified that prior to exiting his vehicle, he pulled it as far off the roadway as safely possible, as there was a ditch which ran alongside the road. DeWilde further testified that while the traffic stop was not an ideal situation for safety (where both vehicles have completely exited the roadway), it was daylight, his overhead emergency lights were flashing, the stretch of road where they were stopped was straight (i.e., the vehicles were clearly visible to other motorists on the road), and that the Sheriffs Office policy in those kinds of situations is to conduct the traffic stop. Finally, DeWilde testified that even with his patrol vehicle partially on the roadway, there was enough room in the travel lane for another southbound vehicle to pass him, without having to cross the center line. At trial, the plaintiff took the stand next and testified that he and his friend, Paul Gage, had met earlier that day at a bar in the French Quarter to shoot pool and drink some beer. Plaintiff testified that Gage was drinking when he arrived, and they each drank three beers in about an hour and fifteen minutes while shooting pool. Plaintiff further testified that although Mr. Gage did not appear drunk, he had "a buzz" and he was on his way to being intoxicated. With regards to the accident, plaintiffs testimony conflicted with the testimony of Deputy DeWilde. Plaintiff testified that he remembered the police vehicle pulling out, further into the travel lane, just as Gage was attempting to pass. Plaintiff also testified that even with the police vehicle stopped near the side of the road, there was not enough room to pass without having to cross the center line. However, plaintiff admitted that the stopped police vehicle was visible from four hundred to one thousand yards away, and that there was enough time and distance for Gage to have stopped his vehicle without attempting to pass. The standard negligence analysis under La. C.C. art. 2315 is the duty-risk analysis. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, that the defendant owed a duty of care to the plaintiff, that the requisite duty was breached by the defendant, and that the risk of harm was within the scope of protection afforded by the duty breached. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. Mathieu v. Imperial Toy Corporation, 94-0952 (La.11/30/94), 646 So.2d 318; Mart v. Hill, 505 So.2d 1120 (La.1987). After reviewing the record before us, we find that plaintiff clearly did not present 1289 evidence at trial which affirmatively answered all four inquiries. Certainly, Deputy DeWilde owed a duty of care to all motorists on La. 45 to conduct speed enforcement operations in a safe manner, and testified at trial about his normal procedures regarding safety during these operations. Deputy DeWilde further testified that, because of Guanga's actions in pulling over in a narrow driveway, parking parallel to the highway, then immediately exiting his vehicle and approaching DeWilde as he was attempting to park, DeWilde became more concerned for his immediate safety, as his police training has taught him to be. He further testified that he did not feel safe until he had the opportunity to engage Guanga directly, view his actions and demeanor, and move him away from the vehicles. The trial court obviously found this to be a reasonable explanation, and considering the other factors involved (it was daylight, the stopped vehicles were clearly visible, the police car's overhead lights were flashing, etc.), the trial court found that Deputy DeWilde did not breach the duty he owed to plaintiff. While plaintiffs testimony conflicted with Deputy DeWilde's, it is well settled that a court of appeal may not upset the factual findings of a trial court absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two reasonable views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880, 882-83 (La.1993). After a thorough review of the record before us, we find ample evidence to support the trial court's determination that Deputy DeWilde was not at fault in causing plaintiffs injuries. As the trial court's conclusion is reasonable, and not manifestly erroneous or clearly wrong, it will not be disturbed on appeal. Plaintiff's next claim on appeal is that the trial court erred by not applying the adverse presumption rule to the lack of testimony from Renato Guanga, the driver of the vehicle who Deputy DeWilde pulled over just prior to the accident. Mr. Guanga was subpoenaed by counsel for defendants to testify at trial. On the day of trial, however, counsel for defendants released Guanga from the subpoena, and he did not testify. Counsel for plaintiff objected to Guanga's release, and proffered that had Guanga testified, his testimony would have been that DeWilde was writing the speeding ticket at the time of the accident. Plaintiff asserts that this testimony would have shown that DeWilde had been on the scene long enough to have gotten Guanga's vehicle and his police vehicle moved to a safer position before the Gage vehicle approached. We find this argument to be without merit. In our discussion above, we found that the trial court made a proper determination that DeWilde's actions after pulling over Guanga were reasonable, and not negligent. Whether the accident happened a few seconds or a few minutes after Guanga was pulled over is immaterial. In either instance, under the circumstances of this case, DeWilde was not negligent in not moving his stopped vehicle further off the roadway prior to the accident. Plaintiffs final claims on appeal are that the trial court erred in considering facts not in evidence and erred in its allocation of fault. These claims are related to the trial court's written reasons for judgment, which were issued separately from its March 19, 1999 judgment. In the reasons for judgment, Gage's blood alcohol level is listed at .16% and references to the testimony of officer Connie Moore are made. Plaintiff asserts that since no documentary evidence of Gage's blood alcohol level was introduced at trial, and that since Moore did not testify at trial, the court erred in considering facts not in evidence. Plaintiff further asserts that the trial court's apportionment of fault (75% to Gage and 25% to plaintiff) in its reasons for judgment is manifestly erroneous. 1290 On review, we note that the reference to Moore's testimony only supported DeWilde's testimony, and a fact not in disputethat DeWilde's police vehicle has its overhead lights flashing. Additionally, there was enough evidence submitted through plaintiffs own testimony to show that Gage was intoxicated and impaired when he tried to pass the stopped vehicles. Moreover, it is well settled that a trial court's judgment and reasons for judgment are two separate and distinct legal documents, and appeals are taken from the judgment, not the written reasons for judgment. Shear v. Shear, 96-934 (La.App. 5 Cir.5/28/97), 695 So.2d 1026, 1033, citing La. C.C.P. art.1918; Ziegel v. South Cent. Bell, 93-547 (La.App. 5 Cir.3/16/94), 635 So.2d 314; Succession of Velasquez-Bain, 471 So.2d 731 (La.App. 4 Cir.1985), writ denied, 476 So.2d 354 (La. 1985). As state above, we have determined that the trial court's judgment is not manifestly erroneous or clearly wrong. For the foregoing reasons, the March 19, 1999 judgment of the trial court, finding Deputy Charles DeWilde and the Jefferson Parish Sheriffs Office free from fault, is hereby affirmed. AFFIRMED. NOTES [1] Plaintiff alleged that the Sheriff's Office was liable under the theory of respondeat superior.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875365/	260 S.W.3d 856 (2008) Robert A. LAMBERSON, Appellant, v. STATE of Missouri, Respondent. No. WD 68200. Missouri Court of Appeals, Western District. August 26, 2008. Irene C. Karns, Columbia, MO, for appellant. Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for respondent; Anna L. Bunch, Jefferson City, MO, joins on the briefs, for respondent. Before JAMES M. SMART, JR., P.J., THOMAS H. NEWTON, and RONALD R. HOLLIGER, JJ. Order PER CURIAM. Robert Lamberson appeals the denial of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615150/	668 P.2d 326 (1983) 100 N.M. 210 STATE of New Mexico, Plaintiff-Appellee, v. Alfonso DIAZ a/k/a Lonnie Diaz, Defendant-Appellant. No. 6055. Court of Appeals of New Mexico. July 28, 1983. 328 Paul Bardacke, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. Janet Clow, Chief Public Defender, Linda Corr, Asst. Appellate Defender, Santa Fe, David Lane, Trial Atty., Silver City, for defendant-appellant. OPINION BIVINS, Judge. From convictions for commercial burglary and larceny of property, defendant appeals raising two points: 1. Did the prosecutor's comments during closing argument deprive defendant of his right to a fair trial? 2. Did defendant receive ineffective assistance of counsel? Because of the disposition under the first point, we do not reach the second issue. The prosecutor made the comments complained of during closing argument, primarily during the State's rebuttal. In his opening summation the prosecutor made references to the credibility of a co-defendant, James Marquez, who pled guilty and testified for the State. The prosecutor told the jury that he wished he could have brought in good, upstanding citizens to testify, "but fortunately people like you don't go around committing felonies in the middle of the night. It's crooks with other crooks, and I brought a crook [Marquez] and put him on the stand." (Emphasis added). Defendant did not object at that time, but at the end of the initial summation he moved for a mistrial. The trial court indicated that it would not consider any "motions" until the conclusion of all argument. After both sides had concluded their summations, the trial court excused the jury to deliberate and then proceeded to hear defendant's motion for mistrial and his objections made for the first time. While the court heard the motion and objections, the jury deliberated the case. Neither side objected to this procedure. Although we recognize that the trial court has wide discretion in dealing with and controlling counsel's argument to the jury, State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969), the procedure of hearing motions and objections after excusing the jury to deliberate is not to be followed. At the conclusion of the arguments, defense counsel stated that he would be perfectly satisfied with an admonishment. The trial court gave none; it denied the defendant's motion for mistrial and overruled his objections. Procedurally, we must consider the problem of whether defendant properly preserved the present issue for appeal. Generally, appellate courts will not review an allegedly improper remark by a prosecutor unless the defendant timely objects. State v. Tafoya, 94 N.M. 762, 617 P.2d 151 (1980); State v. Ruffino, 94 N.M. 500, 612 P.2d 1311 (1980); State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App. 1971). An exception to the general rule applies when a case involves fundamental error. State v. Ramirez, 98 N.M. 268, 648 P.2d 307 (1982); State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976); State v. Lara, 88 N.M. 233, 539 P.2d 623 (Ct.App. 1975). If, during the course of a trial, a prosecutor engages in more than one instance of misconduct, it is not necessary for review that the defendant object every time if the cumulative effect of such improper conduct by the prosecutor denies him a fair trial. State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App. 1974). Moreover, where the trial court addresses an untimely motion on the merits, an appellate court may review the question presented. State v. Ramirez, 92 N.M. 206, 585 P.2d 651 (Ct. App. 1978). The matter is properly before this Court. As to the substantive considerations raised, defendant claims that comments made by the prosecuting attorney during closing and rebuttal argument abrogated defendant's right to a fair trial. The State essentially argues that the prosecutor properly commented on the evidence and properly responded to comments made by defense counsel in his closing. In resolving the issue we must consider the following: 1) whether any comment 329 by the prosecutor served to pre-condemn defendant on the basis of the prosecutor's authority; 2) whether the prosecutor used any abusive language or improperly commented on the character of defendant; 3) whether the prosecutor improperly commented on the proof required to establish the intoxication defense; and 4) whether any prosecutorial misconduct warrants reversal. Before proceeding to address these considerations we note that this case does not involve 1) comment by the prosecutor on defendant's failure to testify, see State v. Baca, or 2) a remark by the prosecutor amounting to a personal belief that defendant committed the crimes charged, see State v. Vallejos. Defendant raised the issue of whether the prosecutor commented on defendant's silence but then withdrew it at the motion hearing. As to whether the prosecutor expressed a personal opinion about defendant committing the crimes charged, we note that a number of comments by the prosecutor could be interpreted that way; however, it must be kept in mind that defendant did not seriously question his involvement, rather he defended on the basis that intoxication prevented him from forming a specific intent. Therefore, any comment by the prosecutor, not amounting to a personal expression that the prosecutor believed defendant lacked the specific intent, could find support in the evidence. See State v. Herrera, 84 N.M. 46, 499 P.2d 364 (Ct.App. 1972). A. Reference to the authority of the prosecutor A prosecutor may not, in effect, pre-condemn a defendant on the basis of the authority he represents. State v. Vallejos. The following statements made by the prosecutor constituted improper references to his authority: The taxpayers pay me, pay the judge, even pay Mr. Lane, and they're gonna pay you for being here two days. Please remember ladies and gentlemen, that I represent the State, and just like Lonnie Diaz is represented by Mr. Lane, I represent you and all the other people in the Sixth Judicial District which covers three counties. You are my clients. I'm here to protect your rights. I'm here to protect the security of your homes, your places of business. The people of New Mexico come in here and presented this case to you * * . When you start putting judges on trial, Supreme Court Justices, prosecutors who represent the people * . Just remember, the style of this case is State of New Mexico versus Alfonso Diaz * . And the people of this district ask you to find him guilty of both counts. Clearly the prosecutor in this case made substantial reference to the authority he represented. As suggested in State v. Vallejos, such statements by the prosecutor can amount to a personal opinion with respect to the guilt of the defendant. In effect, the prosecutor encourages the jury to infer that he would not prosecute the case if he did not believe in the defendant's guilt. In the circumstances of this case, therefore, the comments referring to the prosecutor's authority could have had the effect of communicating to the jury that the prosecutor would not have brought the case against the defendant, unless the prosecutor believed defendant capable of forming a specific intent. Note that NMSA 1978, Code of Professional Responsibility; Canons and Disciplinary Rules, Rule 7-106(C)(4) (Repl.Pamp. 1982), states that when appearing in his professional capacity before a tribunal, a lawyer shall not assert his personal opinion as to the justness of a cause, as to the credibility of a witness or as to the guilt or innocence of an accused. But cf. State v. Martinez, 99 N.M. 353, 658 P.2d 428 (1983) (one derogatory remark). No justification exists for the prosecutor in this case to have referred, as extensively as he did, to the authority he represented. The remarks of the prosecutor regarding his own authority created the possibility that the jury may have based their decision on something other than the evidence presented. In jury arguments a prosecutor must confine himself to the facts 330 introduced in evidence and to the fair and reasonable inferences to be drawn therefrom. State v. Venegas, 96 N.M. 61, 628 P.2d 306 (1981); State v. Aguirre, 84 N.M. 376, 503 P.2d 1154 (1972). We address the question of whether those improper remarks warrant reversal later in this opinion. B. Abusive language or improper comment on the character of the defendant It is improper for a prosecutor to comment on the character of the accused, unless the defendant has placed his character in issue. State v. Gutierrez, 93 N.M. 232, 599 P.2d 385 (Ct.App. 1979); State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App. 1978). Under some circumstances, improper comment by the prosecutor does not constitute reversible error if the defendant invited it. State v. Jaramillo, 88 N.M. 60, 537 P.2d 55 (Ct.App. 1975); State v. Wesson, 83 N.M. 480, 493 P.2d 965 (Ct.App. 1972). Also, while a prosecutor may not use abusive language against the accused which tends solely to prejudice him, such language may be proper if appropriate to the facts in evidence. E.g., People v. Motherwell, 195 Cal. App. 2d 545, 16 Cal. Rptr. 140 (1961). We do not set out the remarks of the prosecutor in regard to this subpoint. We merely note that during closing arguments the prosecutor referred to defendant as a "yo yo", as "stupid", as a "thief", and as a "crook". In our view, the extent to which the prosecutor relied upon the vituperative language had the effect of inflaming the jury. We do not believe that defense counsel's use of an offensive term operates as an invitation to the prosecutor to make extensive use of the term. It is one thing to place defendant's character in issue and quite another to vilify and make him appear an evil person before the jury by the use of derogatory terms. The prosecutor improperly used the term "yo yo" four times and said that defendant must have been stupid because otherwise he would not be in court. We need not decide whether this alone warrants reversal in view of our disposition of the case. C. Comments regarding intoxication The prosecutor's comment that in order to establish the intoxication defense the defendant would have to produce expert testimony does not correctly state the law. In State v. Ennis, 99 N.M. 117, 654 P.2d 570 (Ct.App. 1982), we held, "Comment may be made on the failure to call a witness only `so long as the statement made cannot be construed as a comment on the failure of the defendant to testify.'" Id. at 573. The comment here, in addition to being incorrect, teeters dangerously on the border-line of suggesting that the jury should determine the facts from evidence not produced. The court's Instruction 9 told the jury the exact opposite. Defendant did not have the opportunity here, as in Ennis, to answer the State's comments because they were made in the prosecutor's final rebuttal closing. The prosecutor challenged the viability of the intoxication defense by telling the jury, in effect, that if they believed the defendant could not form an intent, then its verdict of not guilty would send a message to the community that would encourage similar crimes. He also suggested that if the defense could be proven in this case, then Marquez's attorney surely would not have permitted his client to plead guilty. The first comment does not address the merits of the defense. By suggesting that a verdict of not guilty would send a message, the prosecutor is telling the jury in effect to disregard the defense even if they find it meritorious. Specific intent is an essential element of the crimes of burglary and larceny. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973); State v. Rhea, 86 N.M. 291, 523 P.2d 26 (Ct.App. 1974). Counsel may not misstate the law. With respect to the second comment, Marquez's condition and defendant's condition at the time of the incident may or may not have been the same; Marquez's intent has no relevance to defendant's case. The judge alone instructs the jury as to the law, and 331 where counsel attempts to instruct, he invades the province of the court. State v. Payne, 96 N.M. 347, 630 P.2d 299 (Ct.App. 1981). As with the comments discussed under subparagraph A, whether we must reverse depends upon the cumulative effect of all the statements. D. Whether the improprieties warrant reversal This discussion has concluded that the prosecutor in this case made improper remarks to the jury, in that 1) he made overextensive references to the authority he represents, 2) he improperly made vituperative remarks about defendant, and 3) he derogated the defense of intoxication. Although the prosecution as well as the defense is allowed wide latitude in closing argument and the trial court has wide discretion in dealing with and controlling closing argument, State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App. 1970), there are certain perimeters beyond which counsel is forbidden to go. If the remarks of the prosecutor amounted to cumulative error, defendant's conviction must be reversed on the grounds of fundamental error. State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App. 1974). In State v. Vallejos, we said that the concepts of "fundamental error" and "fair trial" were sufficiently similar so that we would review the question of "fair trial" regardless of whether a defendant meets procedural requirements. The question then is whether the prosecutor's misconduct taken as a whole deprived defendant of a fair trial. We hold the cumulative impact did. Defendant did not deny his involvement in the incident; instead he defended on the basis that he lacked intent due to intoxication. Our Supreme Court in State v. Cummings, 57 N.M. 36, 253 P.2d 321 (1953), quoted with approval from Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935): The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. * * In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its non-existence. * * * Moreover, we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential. * * * We reverse the judgment and sentence and remand the case for new trial. IT IS SO ORDERED. WALTERS, C.J., and DONNELLY, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2898821/	NO. 07-08-0272-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 26, 2009 ______________________________ MICHAEL R. KRATZER, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2007-418623; HONORABLE BRADLEY S. UNDERWOOD, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Michael Kratzer, appeals his conviction for the offense of driving while intoxicated, third offense or more, and sentence of 40 years confinement in the Texas Department of Criminal Justice, Institutional Division. We affirm. Factual and Procedural Background On June 22, 2007, at around 1:30 a.m., Lubbock Police Department Officer Neinast observed appellant driving a vehicle in excess of the posted speed limit. Neinast pursued the vehicle for the purpose of executing a traffic stop. While in pursuit, Neinast observed appellant’s vehicle weaving over lane markers several times. When Neinast caught up to appellant and executed the stop, appellant stopped his vehicle in the middle of the street, rather than pulling to the side of the road. Neinast then approached appellant’s vehicle and observed appellant moving very slowly and having a “real difficult” time pulling out his wallet. Neinast also noted that appellant’s speech was slurred and that a strong smell of alcohol was emanating from appellant. Neinast instructed appellant to step out of the vehicle and, when appellant complied, Neinast observed appellant stumble and have to catch himself on the side of his vehicle. Neinast then performed three field sobriety tests on appellant. Appellant failed each of these tests. Neinast determined that appellant was intoxicated and placed him under arrest. Once appellant was placed under arrest, Neinast put him in the front seat of Neinast’s patrol car and turned the in-dash camera around to face the appellant. Neinast focused the camera on appellant’s lap to record paperwork that Neinast placed in appellant’s lap. Neinast then read appellant the statutory warnings enumerated in Texas Code of Criminal Procedure article 38.22, section 2(a). Neinast asked appellant if he understood his statutory warnings. Appellant did not respond verbally, but nodded his head in agreement. Neinast then asked appellant if he wanted to answer Neinast’s questions. Again, appellant did not respond verbally, but Neinast indicated that appellant did nod his head in agreement. As a result of questions asked by Neinast, appellant stated that he had (1) been drinking Budweiser, (2) consumed five beers, and (3) consumed his last beer at 11:30 p.m. Appellant was indicted for the offense of driving while intoxicated. The indictment alleged that appellant had been previously convicted of nine prior driving while intoxicated offenses and two other felonies. Before trial, appellant filed a motion to suppress the audio portions of the recording during which he made the statements identified in the previous paragraph. Appellant contended that, because he did not verbally waive his rights before making the statements, the statements were inadmissible under Texas Code of Criminal Procedure article 38.22, section 3(a). The trial court viewed the recording and then heard Neinast’s testimony before overruling appellant’s motion. At the close of the trial, the jury found appellant guilty of the offense of driving while intoxicated. At the punishment hearing, the trial court found the enhancement paragraphs to be true and sentenced appellant to 40 years incarceration. By one issue, appellant contends that the trial court erred in denying appellant’s motion to suppress the audio portions of the video recording because appellant did not knowingly and voluntarily waive his rights and the requirements of article 38.22 of the Texas Code of Criminal Procedure were not satisfied. Law and Analysis Appellant’s contention on appeal is that, under Texas Code of Criminal Procedure article 38.22, section 3(a), appellant’s statements recorded on the video recording are inadmissible because appellant did not audibly waive his rights before making the statements. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon 2005). Further, appellant’s issue relates solely to the denial of his motion to suppress. In reviewing a trial court’s ruling on a motion to suppress, the reviewing court must view the evidence in the light most favorable to the ruling. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006). When no findings of fact are entered by the trial court, we are to imply the findings necessary to support the trial court’s ruling so long as those implied findings are supported by the evidence when that evidence is viewed in the light most favorable to the ruling. Id. at 819. The trial court’s suppression ruling should be upheld if it is supported by the record and is correct under any theory of law applicable to the case. See St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). At a suppression hearing, the trial court is the sole judge of the credibility of witnesses and of the weight to be given to their testimony. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App. 1991). The trial court may believe or disbelieve all or any part of a witness’s testimony and, absent an abuse of discretion, we will not disturb its findings on appeal. Id. Section 3(a) of article 38.22 of the Texas Code of Criminal Procedure states that an oral confession of an accused that was made as a result of custodial interrogation is not admissible unless the accused was first given the statutory warnings and knowingly, intelligently, and voluntarily waived the rights identified in those warnings. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a). In the present case, Neinast testified that he read appellant the statutory warnings and that appellant acknowledged his understanding of these warnings by nodding his head. Neinast also testified that, after acknowledging his understanding of the warnings, appellant again nodded in agreement when asked if he wanted to answer Neinast’s questions. By its ruling, the trial court necessarily found that appellant’s nonverbal nodding was intended to indicate that appellant wanted to waive his rights. See Kelly, 204 S.W.3d at 819. As the record supports this implied finding, which is dependent on the trial court’s determination of the credibility of Neinast’s testimony, we must determine whether the law allows a nonverbal waiver of the statutory rights contained within the statutory warnings. See St. George, 237 S.W.3d at 725. The same contention made by appellant in the present appeal was presented in Barefield v. State, 784 S.W.2d 38, 40-41 (Tex.Crim.App. 1989). In Barefield, the appellant contended that his videotaped confession was inadmissible because he was not specifically asked, nor did he specifically volunteer, whether he wanted to waive his rights. Id. at 40. The Court of Criminal Appeals affirmed the trial court’s admission of this evidence at trial and held that, “We do not, however, interpret the oral confession statute to require an express verbal statement from an accused that he waives his rights prior to giving the statement.” Id. at 40-41. Rather, the reviewing court is directed to look at the totality of the circumstances to determine whether a confession was given voluntarily. Id. at 41. In its analysis, the Court indicated that the trial court’s finding that the confession was made after the appellant knowingly, intelligently, and voluntarily waived his rights was supported by the record and that there was no evidence that the confession was the product of promises or coercion. Id. Therefore, the Court concluded that the statements were admissible under Texas Code of Criminal Procedure article 38.22, section 3, and the trial court did not abuse its discretion in admitting the evidence. Id. In the present case, as in Barefield, the record supports the trial court’s implied finding that appellant indicated his desire to waive his rights by nodding his head, that this waiver was knowing, intelligent, and voluntary, and that there was no evidence that appellant was promised anything or in any way coerced into making the statements that he sought to suppress. Thus, we conclude that the trial court did not abuse its discretion in denying appellant’s motion to suppress and overrule appellant’s issue. Conclusion Having overruled appellant’s sole issue, we affirm the judgment 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/2983554/	July 15, 2014 JUDGMENT The Fourteenth Court of Appeals CHCA WEST HOUSTON, L.P. D/B/A WEST HOUSTON MEDICAL CENTER, Appellant NO. 14-13-00499-CV CHRISTA SHELLEY, Appellee ________________________________ This cause, an appeal from the order in favor of appellee, Christa Shelley, signed, May 17, 2013, was heard on the transcript of the record. We have inspected the record and find error in the order. We therefore order the order of the court below REVERSED and REMAND with instructions to the trial court (1) to dismiss appellee Christa Shelley’s claims with prejudice under Texas Civil Practice and Remedies Code section 74.351(b), (2) to conduct further proceedings to determine the amount of reasonable attorney’s fees to be awarded to appellant CHCA West Houston, L.P. d/b/a West Houston Medical Center (hereinafter “the Hospital”) under this statute, and (3) to award the Hospital reasonable attorney’s fees and court costs incurred by the Hospital. We further order that all costs incurred by reason of this appeal be paid by appellee Christa Shelley. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1875368/	176 B.R. 941 (1994) In re O.J. OSBORN, SSN XXX-XX-XXXX, Roma Lou Osborn, SSN XXX-XX-XXXX, Debtors. Bankruptcy No. 87-71480. United States Bankruptcy Court, E.D. Oklahoma. December 29, 1994. 942 943 Kenneth G.M. Mather, Trustee, Tulsa, OK. Keith J. Hocker, Norman, OK, for debtors. Mark Craige, Tulsa, OK, for Durant Bank & Trust. ORDER TOM R. CORNISH, Bankruptcy Judge. On the 12th day of October, 1994, the above-referenced matter came on for trial after the case was remanded to this Court by the Tenth Circuit, In re Osborn, 24 F.3d 1199 (10th Cir.1994) and the United States District Court for the Eastern District of Oklahoma. Counsel appearing were Mark Craige and Jim Hicks for Durant Bank & Trust and Keith Hocker and Greg Tontz for the Debtors. Both parties have filed proposed findings of fact and conclusions of law. After hearing testimony, arguments of counsel, and reviewing the file, this Court does hereby enter the following findings and conclusions in conformity with Rule 7052, Fed.R.Bankr. P., in this core proceeding: PROCEDURAL HISTORY In 1956, the Osborns purchased and claimed as their homestead property located 10818 Lake June Road, Dallas, Texas ("the Texas property"). The Osborns continued to reside there until they were required to leave by the U.S. Marshal after the sale of the property in January, 1991. The Osborns purchased property in southeast Oklahoma beginning in 1959 ("the Oklahoma property"), with the intent to reside there and enter into the farming business once Mr. and Mrs. Osborn retired. The Oklahoma property was mortgaged to Durant Bank & Trust ("DB & T" or "Bank"). The Osborns filed a Chapter 12 proceeding on July 9, 1987. After the Bank objected, the action was subsequently dismissed. The Bank filed an involuntary Chapter 7 proceeding against the Osborns on December 30, 1987 which was converted to Chapter 11 and thereafter reconverted back to Chapter 7. During the Chapter 11 case, the Osborns filed their original Schedule B-1 listing their real property. The Texas property was valued at $70,000 and a piece of rural property in Oklahoma was valued at $238,950. The Tenth Circuit noted in its opinion that many of the documents relating to the loans on the Oklahoma property listed an Oklahoma address for the Osborns. The original schedules in the Chapter 12 and this Chapter 7 proceeding listed the Oklahoma property as the Osborns' mailing address. The original bankruptcy petitions listed the Osborns' mailing address as Route 2, Box 118, Bokchito, Oklahoma. Mrs. Osborn later testified that she thought that she was to give the Oklahoma address because they were filing a business bankruptcy, which was connected to the Oklahoma property. In the appellate record before the Tenth Circuit, Mrs. Osborn had testified that she had made no express representation that the Oklahoma property was her homestead. She further testified that she had no understanding of the legal meaning of the word "homestead." On the other hand, Mr. Osborn had testified on several occasions that the Oklahoma 944 property was his homestead. He even testified at the first meeting of creditors that he and his wife lived on the property in Oklahoma. The Tenth Circuit also had before it the circumstances regarding the adequate protection lien on the Texas property. On July 6, 1988, the Bankruptcy Court granted the Bank an adequate protection lien on the Texas property, and allowed the Debtors to use cash proceeds from the sale of some of their cattle in order to maintain the herd, which was subject to the security interest of the Bank. The Osborns used over $11,000 of these proceeds. Notably, the Osborns did not object to that lien being put on the Texas property nor did they argue that the property was their homestead. The Bank filed an adversary proceeding seeking to deny the Osborns a discharge of their debt to the Bank. On January 9, 1990, an agreed journal entry of judgment was entered which provided that a debt of $225,000 to the Bank was nondischargeable and the parties asked Farmers Home Administration to reguarantee the loan. The judgment provided that if Farm Home did not reguarantee the loan, then the Bank had the right to execute upon the judgment and take other legal action as it deemed reasonable. Farm Home refused to reguarantee the loan. The Osborns then filed an amendment to their Schedule B-4 which claimed the Texas property as exempt. The Bankruptcy Court denied the amendment and the Debtors appealed. The District Court affirmed the Bankruptcy Court's decision and the Debtors appealed to the Tenth Circuit. The Tenth Circuit found: (1) The Osborns' appeal was not moot in light of the sale of the Texas property to a third party. The Tenth Circuit noted that where state law or the Bankruptcy Code provides some remedy that does not affect the validity of the sale, § 363(m) of the Bankruptcy Code does not moot the appeal. (2) In this case, the showing of prejudice was not sufficient to deny the amendment under Rule 1009. The Tenth Circuit noted: The bankruptcy court's order here is not clear whether there was merely a procedural denial of the amendment, or whether the homestead claim was rejected on the merits. In any event we hold that, insofar as the bankruptcy court's order was a denial of the procedural right to amend, the ruling was in error. That is not the end of the matter, however. "Whether the claims of exemption contained in that amendment will be approved if an interested party timely objects, however, is a separate issue." Redmond [v. Tuttle], 698 F.2d [414] at 417 [(10th Cir.1983)]. (3) The Tenth Circuit further stated: We feel the fashioning of such a remedy should first be considered by the bankruptcy judge. Moreover, the present record is inadequate for the making of a determination about possible relief for the Osborns, and the weighing of the equities relating to impressing a trust on the proceeds from the sale of the Texas property or to the extent of monetary relief that should be given to the Osborns from those proceeds or from the party that received them. The bankruptcy court should conduct proceedings to consider the equities and the fashioning of relief, consistent with this opinion. The denial of the amendment was reversed by the Tenth Circuit and remanded. The Tenth Circuit noted that the Bankruptcy Court entered an order allowing the Trustee to sell the Texas property. The Bankruptcy Court stayed the sale of the Texas property on the condition that the Osborns maintain insurance on the property and pay "reasonable rent" of $450 per month to the Bank. The reasonable rate of $450 per month was agreed to by Mrs. Osborn at a bankruptcy hearing and was not appealed. The Osborns failed to comply with the conditions and the Trustee sold the Texas property at auction for $27,000. As a result of this case being remanded back to this Court, this Court held a full day trial where the following evidence was received. FACTS BEFORE THE BANKRUPTCY COURT ON REMAND Mrs. Osborn testified that in 1956, she and Mr. Osborn purchased the property known as 10818 Lake June Road, Dallas, Texas and 945 resided there until 1991. Mr. and Mrs. Osborn had never been separated or divorced. In 1965, Mrs. Osborn began working for Proctor and Gamble in Dallas. At first, she only worked part-time and in 1962, she began working full-time. She continued her employment with Proctor and Gamble until she was laid off in 1992. She testified that her children attended schools in Texas although her youngest son moved to Oklahoma to live with her oldest son to finish high school. Mrs. Osborn testified that she and her husband first acquired property in Oklahoma in 1959 and later continued to acquire land in Oklahoma. In 1987, they owned 498 acres in Oklahoma subject to the Bank's mortgages. In 1987, the Osborns filed for relief under Chapter 12 of the Bankruptcy Code. At that time, there was no dwelling on the Oklahoma property. The Bank presented documents filed in these bankruptcy proceedings which listed the Osborns' address as Route 2, Bokchito, Oklahoma. Mrs. Osborn testified that this was their business address and she believed that address needed to be on the documents since they were filing a business bankruptcy in Oklahoma. However, she did testify that they received correspondence from the Bank at the Dallas address. Furthermore, Mrs. Osborn testified that their financial statements and tax returns included the Dallas address. Mrs. Osborn testified as to the expenses they were entitled to be reimbursed for as a result of the sale of the Texas property. The Osborns are claiming $600 for moving expenses; rent in Dallas after the eviction for 18 months at $600 per month for a total of $10,800; storage in Dallas of $70 per month for 18 months for a total of $1,260; storage of furniture in Oklahoma at $45 per month for 27 months for a total of $1,215; and rent in Oklahoma at $300 per month for 26 months for a total of $7,800. When they moved out of the Dallas home in 1991 for failure to pay the $450 per month rent, they moved into a $600 per month apartment. Mrs. Osborn testified that the house they were renting in Oklahoma belonged to their son and they have not paid any rent to their son as of the date of the trial even though they want reimbursed for $7,800. Evidence was presented that the Debtors' loan documents with the Bank did not reflect that the Texas property was their homestead. Further, the promissory note lists the Debtors' address in Bokchito, Oklahoma and it does not reflect that the address is a business address. The Debtors' original Chapter 11 Petition and Schedules listed their real property as follows: Description Value 10818 Lake June Rd. $ 70,000 Dallas, TX 498 acres $238,950 On Schedule B-4, the Debtors listed their homestead in Texas as exempt pursuant to Okla.Stat. tit. 31, § 1 (West 1991) and having a value of $70,000. However, at the § 341 meeting, Mr. Osborn testified that he had lived in the Eastern District of Oklahoma for 180 days. (See, DB & T's Exhibit 12, p. 2, lines 21-23). He further testified that at the time of filing the petition he maintained his residence in Bokchito, Oklahoma. Id. at p. 3, lines 15-17. On cross-examination by DB & T, Mr. Osborn testified that his wife lived on the Bryan County property with him. Id. at p. 5, lines 24, 25; p. 6, lines 1-4. He specifically testified as follows: Q. Okay. Now on your Schedule 34 [sic] where you've claimed certain property is exempt, it doesn't show a legal description but I think it looks like you're trying to claim the homestead in Dallas as exempt, or do you intend your property in Oklahoma to be exempt homestead? A. I intend to claim my property in Oklahoma as my exempt homestead. Id. at p. 6, lines 8-14. This Court entered an Order Allowing Use of Cash Collateral on July 6, 1988, which provided that a lien would be placed on the Texas property. No complaint was made at that time that the property was the Debtors' homestead. Also, it appears that the Debtors at one time agreed to deed the house in Dallas, Texas to the Bank for a $50,000 credit. (See DB & T's Exhibit 18). Again, the Debtors did not object to the giving up of the Texas property because it was their homestead. Furthermore, in a pleading prepared and signed by 946 the Debtors in a Bryan County, Oklahoma suit against DB & T, the Debtors stated the "Durant Bank & Trust Company took certain security interest on Plaintiffs' [Debtors'] principal dwelling . . ." (See, DB & T's Exhibit 14). Mr. Osborn testified at the Chapter 11 meeting of creditors that he did testify that his residence was in Bokchito, Oklahoma. However, at the hearing before this Court, he testified that it was his intent to reside there in the future and it was his intent to claim the Oklahoma property as exempt in the future. The Debtors presented evidence of their 1986 and 1988 tax returns which reflected an address of 10818 Lake June Road, Dallas, Texas. Gary Forbis, Executive Vice-President of Durant Bank & Trust, testified that over the course of the years in which the Osborns had done business with the Bank, correspondence had been sent to the Debtors at the Dallas address. Further, Mr. Forbis knew that the Debtors' residence was in Dallas but he did not know why mail was not sent to the Bokchito address, which was included on some of the loan documents. Additionally, the Debtors' tax returns reflect an address of 10818 Lake June Road, Dallas, Texas. In reference to the value of the Texas property, Mr. Osborn testified that he did not know why it was valued at $70,000 when it had been appraised at a value lower than that. Id. at p. 20, lines 16-25; p. 21, lines 1-6. Mrs. Osborn testified that she believed the value of the property to be between $60,000 and $70,000; however, she would defer her opinion to that of the appraisers. Evidence was presented by both parties as to the value of the Texas property. The Debtors presented expert testimony of Mike McClellan who is an appraiser in Dallas. He testified that he looked at comparables which sold between October 1990 and March 1991. His conclusion was that the house had a historical value of $55,000. However, on cross-examination, he admitted that he did not inspect the interior of the house nor closely inspect the exterior. He did not talk to the current owners of the house. He merely drove up to the front and made a visual inspection from there. Mr. McClellan further testified that the fact the house was located on a four lane divided street did not make any difference in the value of the house. The Bank presented expert testimony of Ralph Segers, who is a licensed real estate broker in Texas. He testified that he was familiar with the property since the Trustee had employed him to sell the subject property. He testified that he thought the property would bring between $25,000 and $30,000 at auction. In fact the sales price at auction was $27,000. The house needed a roof and Mr. Segers testified that the house was not in a desirable area. The Bank further presented testimony of Robert Pielsticker. He testified that he used comparable sales within a one mile square area. He testified that he believed the market value of the house was $37,000. He testified sales in the area were in the $30,000s. Mr. Pielsticker testified that the Debtors' appraiser had to go a considerable distance from the subject property in order to obtain his comparables. Mr. Pielsticker testified that it is preferable to locate comparables within the neighborhood. At the time of the § 341 meeting, Mrs. Osborn had been working for Proctor and Gamble in Dallas for twenty-five years. It seems ironic to this Court that she could not appear for the § 341 meeting because of work when the Bankruptcy Code specifically sets forth that one of the Debtor's duties is to appear and be examined. 11 U.S.C. § 341, see also, Id. at pp. 28, lines 17-19. The Debtors claimed a homestead exemption on the Oklahoma property until 1987. O.J. Osborn then initiated a Complaint of Erroneous Assessment and Petition for Correction in Bryan County, Oklahoma. After a hearing on the complaint, the Debtors were allowed to claim the Bryan County property as exempt in 1987. Furthermore, the Debtor, O.J. Osborn, signed a Voter's Registration Card, under the penalty of perjury, that he was a resident of the United States and Oklahoma. The Bank presented evidence that the Debtor, O.J. Osborn, voted in Oklahoma in 1982, 1984, 1986 and 1988. It is also noteworthy that in a state court action in Bryan County, Oklahoma, the Debtors filed pro se a "Notice of Rescission Against the 947 Liens and Mortgages" on October 4, 1990. That document stated, in pertinent part: In support of this Notice that O.J. Osborn and Roma Lou Osborn set out, and prior Notes, Durant Bank & Trust Company took certain security interest in Plaintiffs' principal dwelling . . . Within twenty days after this notice, Durant Bank & Trust Company is requested to file those documents that are necessary to release all the liens and mortgages. (See DB & T's Exhibit 14) This document was signed both by O.J. Osborn and Roma Lou Osborn. CONCLUSIONS OF LAW A. The first issue that must be addressed is whether any relief may be fashioned. The Tenth Circuit held that this Court must look to Texas law to determine whether there are remedies available to the Osborns that would not affect the validity of the sale. In re Osborn, 24 F.3d at 1204. Further, the Tenth Circuit determined that the Debtors' position in seeking monetary relief for the loss of their homestead has support based on a constructive trust theory in Texas law. Id. The Supreme Court of Texas in Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex.1974), as cited by the Tenth Circuit, discussed the "constructive trust" principles by stating "[c]onstructive trusts, being remedial in character, have a very broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice." Moreover, the court in Meadows agreed that a constructive trust on unidentifiable proceeds was inappropriate. Id. at 129. Restatement of Restitution § 160 (1937) provides: Where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it, a constructive trust arises. In the instant case, there are no identifiable proceeds remaining from the sale of the Texas property. The funds have been distributed to the interested parties, including the auctioneer and the Bank. As a result, no constructive trust can be imposed. Therefore, the issue becomes whether the merits of this case warrant a money judgment in favor of the Debtors against the Bank or other third parties. The award of a money judgment is within the equitable power of this court. Osborn at 1204. Section 74 of the Restatement of Restitution (1937) provides that: A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable or the parties contract that payment is to be final; if the judgment is modified, there is a right to restitution of the excess. The best available remedy in this case would be a money judgment based on a right to restitution, if any. The Tenth Circuit determined that procedurally the Debtors had a right to amend their schedules before the bankruptcy case is closed. Osborn, 24 F.3d at 1206; see also, Fed.R.Bankr.P. 1009(a). Therefore, this Court must weigh the equities to determine whether there should be a trust imposed on the proceeds from the sale or whether any monetary relief should be given to the Debtors. However, the Tenth Circuit did hold "that the rejection of the homestead claim of the Osborns respecting the Texas property was in error," when discussing whether the Debtors were estopped from claiming the Texas property as their homestead. After hearing all the evidence, this Court is not inclined to allow the Debtors to recover for the total loss of their alleged homestead in Dallas, Texas. The Debtors apparently have played fast and loose with the facts in order to confer upon themselves the most desirable result by claiming the Oklahoma property as exempt which had the effect of lowering the ad valorem taxes on the Bokchito property. Bryan County officials allowed the property to be exempt despite the fact that there was not even a dwelling on the property, which was in error. B. It is well settled in Texas law that the person seeking homestead protection has the initial burden to establish the 948 homestead character of the property. Bradley v. Pacific Southwest Bank (In re Bradley), 960 F.2d 502, 507 (5th Cir.1992) (citing Lifemark Corp. v. Merritt, 655 S.W.2d 310, 314 (Tex.Ct.App.1983 writ ref'd n.r.e.)). To meet this initial burden, the person claiming the homestead must show a "combination of both overt acts of homestead usage and the intention on the part of the owner to claim the land as a homestead." Id. (quoting Sims v. Beeson, 545 S.W.2d 262, 263 (Tex.Civ.App. 1976, writ ref'd n.r.e.)). The initial burden is a relatively easy burden. Id. As long as the person claiming homestead can show that he has used the property as homestead, that will suffice for the Texas courts to presume that the homestead claimant possesses the requisite intent. Id. Once the person claiming the homestead protection has met his initial burden of proof, then the burden shifts to the creditor to disprove the existence of the homestead. Id. C. Texas Constitution Art. 16 § 50 protects the homestead as follows: The homestead of a family, or of a single adult person, shall be and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of the purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of both spouses, in the case of a family homestead, given in the same manner as is required in making a sale and conveyance of the homestead nor may the owner or claimant of the property claimed as homestead, if married, sell or abandon the homestead without the consent of the other spouse, given in such a manner as may be prescribed by law. No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the owner alone, or together with his or her spouse, in case the owner is married. All pretended sales of the homestead involving any condition of defeasance shall be void. This amendment shall become effective upon its adoption. Vernon's Ann.Texas Const. Art. 16 § 50. Furthermore, the Texas Property Code § 41.001(a) provides that "[a] homestead and one or more lots used for a place of burial of the dead are exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property." Texas law is clear that homestead laws should be liberally construed in order to effectuate their beneficent purpose. In re Bradley at 507 (citations omitted). In In re Moody, 77 B.R. 566, 576 (S.D.Tex.1987), the court concluded that even though the debtor's machinations may have been prompted by the desire to remove his assets from execution by creditors, the trustee still could not enforce an equitable lien on the claimed homestead of the debtor. The Osborns have met the burden of proof to establish that the Texas property was their homestead. Both Debtors testified that the Texas property was really their homestead and that they believed they had to list the Oklahoma address on the bankruptcy schedules since they were filing a business bankruptcy. Therefore, the burden shifts to the Bank to disprove that the Texas property was the Debtors' homestead. The Bank attempted to disprove that the Texas property was the Debtors' homestead by showing that the address listed on the Debtors' bankruptcy reflected an address in Bokchito, Oklahoma. The Debtors' explanation was that they believed they had to list the address of their farm since they were filing a "business" bankruptcy. However, the creditor pointed out that there was no reference on any documents that reflected this was a business address. The creditor further pointed out that the Debtors had claimed a homestead exemption in Oklahoma from 1970 until 1987, when it was finally rejected by Bryan County officials. Most importantly, the creditor pointed out that O.J. Osborn had testified in the initial § 341 meeting that he resided in Oklahoma for 180 days preceding the filing of the bankruptcy and that he intended for his Oklahoma property to be exempt. The Tenth Circuit opinion discussed the possibility 949 of the Osborns being estopped from claiming the Texas property as exempt because of their representations that they were claiming the Oklahoma property as their homestead. As the Tenth Circuit noted, the rule in Texas is that estoppel must be based on the acts of both the husband and the wife. Osborn at 1209 (citing Martin v. Astin, 295 S.W. 584 (Tex.Comm.App.1927)). For that reason, the Tenth Circuit held "that the rejection of the homestead claim of the Osborns respecting the Texas property was in error." Id. This Court, after hearing lengthy testimony of both Mr. and Mrs. Osborn, concludes that much of their testimony is inconsistent with the documentary evidence. This Court would not be so inclined to fashion a remedy for the Osborns except for its unbending adherence to the spirit and mandate of the Tenth Circuit which directs this Court to give the Osborns something. After weighing the Debtors' right to a "fresh start" and the creditor's right to proceeds, this Court does hereby find that the Osborns' right to the Dallas home outweighs the Bank's right to full recovery of the proceeds obtained from the sale of the Debtors' homestead. Evidence presented to this Court on remand did not provide the Court with any factual basis to estop Mrs. Osborn from asserting that the Dallas property was her homestead. Thus, the Debtors cannot be estopped from asserting the Texas property was their homestead. Durant Bank & Trust received $16,649.80 from the proceeds of the sale of the Debtors' property in Texas, after payment of fees and expenses. However, Durant Bank & Trust should be entitled to an offset of the amount consumed by the Debtors of $11,071.30, as a result of the earlier cash collateral order which was never appealed. Evidence has been considered as to the value of the Texas property. The Court does not find credible Mrs. Osborn's testimony that the home was re-carpeted shortly before the eviction. This does not appear logical when considering the Osborns were not paying rent; were looking at certain eviction for nonpayment of rent; and also realizing that the ad valorem taxes were in arrears almost three years. This Court finds that the fair market value price was realized at the auction when $27,000 was the highest bid. The auction was advertised by the auctioneer. Further, the auctioneer held inspections on January 6, 1991 and January 13, 1991 prior to the sale at the house on January 15, 1991. The auctioneer placed an advertisement in the Dallas Morning News, the Dallas Morning Times and directly mailed approximately 1,500 2,000 advertisements to potential purchasers. At the auction itself, which was held on the premises, over 50 people attended and there were approximately 22 registered bidders. The U.S. Supreme Court has deemed a "reasonably equivalent value" for foreclosed property was "the price in fact received at the foreclosure sale, so long as all the requirements of the state's foreclosure law have been complied with." BFP v. Resolution Trust Corp., ___ U.S. ___, ___, 114 S. Ct. 1757, 1765, 128 L. Ed. 2d 556 (1994). In the instant case, the auctioneer gave notice of the sale. A brochure was printed describing the house. As a result, this Court finds that the sales price received at the Trustee's sale, as a foreclosure sale, was the fair market value of the house. In the Court's previous Order of August 17, 1990, the Trustee was authorized to pay, without further Order of the Court, the auctioneer a 5 percent commission plus reimbursement of out-of-pocket expenses. As a result, the auctioneer was paid $2,859.72. Taxes due to the Dallas City and School District for 1988, 1989 and 1990 in the amount of $3,080.23 and Dallas State and County taxes for 1988, 1989 and 1990 in the amount of $712.53, which were paid at the time of the sale, must also be deducted, in the total amount of $3,792.76. (See Asset Liquidation Report filed February 19, 1991). Reducing the value of the house by the expenses paid to the auctioneer, taxes due and the amount allowed by the Bankruptcy Court's cash collateral order, the Debtors should be allowed to recover $9,276.22 from Durant Bank & Trust. The Debtors further request an award of attorney fees. However, absent statutory authorization or contractual *950 obligation, a party is not entitled to attorney fees because he prevailed in the litigation. See, e.g., In re Hemingway Transport, 993 F.2d 915 (1st Cir.1993) (citing Runyon v. McCrary, 427 U.S. 160, 185, 96 S. Ct. 2586, 2601, 49 L. Ed. 2d 415 (1976)); In re Masnorth Corp., 36 B.R. 335, 355 (Bankr. N.D.Ga.1984). This Court is not aware of any statutory or contractual obligation which would entitle the Osborns to attorney fees. Therefore, the Court denies the Debtors' request for attorney fees. The Court does not find that the Debtors should recover the auctioneer fee, rent and/or storage expense because the Debtors had the option per Court Order to pay rent to the Bank, which they elected not to pay. Furthermore, the Debtors elected not to appeal any of the other prior Orders of the Bankruptcy Court pertaining to the sale. IT IS THEREFORE ORDERED that the Debtors are allowed to amend their Schedules and to claim the Texas property as exempt. The Osborns are entitled to recover a judgment of $9,276.22, inclusive of interest, against Durant Bank & Trust.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/994454/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-6703 FAYAZ ANJUM, Plaintiff - Appellant, versus UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert N. Maletz, Senior Judge, sitting by designation. (CR-92-96, CA-95-3288-HNM) Submitted: February 26, 1998 Decided: March 18, 1998 Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges. Affirmed by unpublished per curiam opinion. Fayaz Anjum, Appellant Pro Se. Lynne Ann Battaglia, United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals the district court's order denying his motion filed under 28 U.S.C. § 2255 (1994) (current version at 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997)). We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Anjum v. United States, Nos. CR-92-96; CA-95-3288-HNM (D. Md. Apr. 22, 1997). See Lindh v. Murphy, 521 U.S. ___, 1997 WL 338568 (U.S. June 23, 1997) (No. 96-6298). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615151/	668 P.2d 1175 (1983) Barbara Ann BARNES, Appellee and Cross-Appellant, v. Thomas Lee GAINES, Appellant and Cross-Appellee, Barbara Ann BARNES, Appellee and Cross-Appellant, v. Helen P. SHEEHAN and the First National Bank and Trust Company of Tulsa, as Guardian of the Estate of Helen P. Sheehan, Appellants and Cross-Appellees. No. 54112. Court of Appeals of Oklahoma, Division No. 3. March 15, 1983. Rehearing Denied May 3, 1983. Certiorari Denied June 20, 1983. Released for Publication July 21, 1983. Deryl L. Gotcher, Graydon Dean Luthey, Jr., Tulsa, for appellant Thomas Lee Gaines. Joseph A. Sharp, Michael P. Atkinson, Tulsa, for appellee/cross appellant Barbara Ann Barnes. J. Warren Jackman, J. David Jorgenson, Tulsa, for appellants/cross-appellees Helen P. Sheehan and The First Nat. Bank and Trust Co. of Tulsa. Released for Publication by Order of Court of Appeals July 21, 1983. 1177 HUNTER, Judge: This is an action brought by Barbara Barnes, as plaintiff, against Thomas Gaines, Helen Sheehan, and The First National Bank and Trust Company of Tulsa, Oklahoma, Guardian of the Estate of Helen Sheehan, as defendants, arising out of an automobile accident which occurred on March 3, 1978 in Tulsa, Oklahoma. A jury trial resulted in a verdict against all defendants in the sum of $105,581.18 actual damages and $30,000 punitive damages. The trial court ordered a remittitur of the $30,000 punitive damages award against defendants Helen Sheehan and the Bank. On November 12, 1976 the District Court of Tulsa County, Oklahoma found Helen Sheehan, an elderly widow who had earlier suffered a stroke, to be "... mentally incompetent because of advanced age and deterioration of faculties to manage her property and properly to care for herself ..." and appointed the First National Bank and Trust Company of Tulsa, Oklahoma 1178 as guardian of her estate. Mary Jane Nance was appointed guardian of the person of Helen Sheehan by the same order. Ruth Johnson, a licensed practical nurse, had been working as a nurse-companion for Helen since prior to the appointment of the guardians and arrangements were made to keep her on in that capacity. Ruth lived with Helen, was paid from Helen's trust and reported to Dee McDugle, a trust officer at the bank. On March 3, 1978 Helen Sheehan and Ruth Johnson were in the process of moving from an apartment to a rented house. Professional movers had been hired to move the heavy furniture and larger objects but Helen and Ruth were going to move the smaller valuable items, such as china, crystal, linens, etc., by automobile. The automobile was a 1977 Chrysler Cordoba titled in the name of the Bank as guardian of the estate of Helen Sheehan. The automobile was paid for from Helen's funds, with approval of the probate judge, and was furnished for her use. Ruth Johnson was the primary driver of the automobile. Thomas Gaines, who was the son of one of Mrs. Sheehan's prior nurses and who had previously been married to Ruth Johnson, appeared at the apartment on the day in question, and volunteered to assist in the moving. Helen was concerned that some of the items might be too heavy for Thomas to lift by himself and Thomas then suggested that he could get a friend to help him. Thomas, was an alcoholic, supposedly dry. He was going to pick up his friend at the Rebos Club or the 1014 Club. These are both places for members of Alcoholics Anonymous to gather and drink soft drinks. With the assent of Ruth Johnson and Helen Sheehan, Thomas Gaines took the Chrysler Cordoba automobile to go look for his friend. He was expected to return shortly. When Thomas found his friend they decided, instead of returning to the apartment, to go and have a drink of alcoholic beverage. They had several drinks, including a pint they bought, and Thomas drove out north of Tulsa some distance. Thomas became so drunk he experienced a period of black-out, during which he had no recollection. On the way back from north Tulsa, Thomas was admittedly driving approximately 70 miles per hour in a 35 mile per hour zone when he crossed the center line and struck the automobile being driven by Barbara Barnes, causing her to sustain injuries. Barbara Barnes brought this action against Thomas Gaines, Helen Sheehan, The Bank as guardian of Helen's estate and the Bank in its individual capacity, on the theories of negligence, agency and, in the alternative, negligent entrustment. She did not join Mary Jane Nance, the guardian of the person of Helen Sheehan, nor did she join Ruth Johnson. At the trial Thomas Gaines admitted to being drunk and speeding. Thomas had filed a motion in limine requesting the trial judge to instruct the plaintiff not to present evidence that shortly after the accident, during the time the police were investigating, Thomas stole the police car and left the scene. The court overruled the motion in limine and, when the evidence was presented at trial, overruled Thomas's objection to that evidence and admitted it. The trial judge refused to allow the jury to consider the negligent entrustment theory, ruling that there was no evidence to warrant an instruction on that issue. The Bank's demurrer to the evidence was sustained and the Bank's in its individual capacity, was dismissed from the suit. Helen Sheehan's demurrer was overruled and, at the close of the evidence, the matter was submitted to the jury. The jury found Thomas Gaines to be 100% negligent and awarded damages as above stated. Thomas Gaines filed his appeal urging that the overruling of his motion in limine and allowing the introduction of evidence that he stole the police car, over his objection, was substantial prejudicial error requiring reversal and/or the court should have ordered a remittitur and failure to do so requires reversal. 1179 Helen Sheehan filed her appeal raising several propositions of error. First, error in overruling her demurrer and motion for directed verdict on the basis that the evidence established, as a matter of law, that Thomas Gaines was on a "frolic of his own" at the time of the occurrence; second, error in failing to sustain her motion for judgment notwithstanding the verdict, on the same basis; third, error in admitting incompetent, immaterial and prejudicial evidence and argument over her objection; fourth, error in giving instructions number 8 and 13; and fifth, error in denying the motion for judgment notwithstanding the verdict on the additional ground that an adjudicated incompetent person has no capacity to appoint an agent. Barbara Barnes, the plaintiff, filed her cross-appeal presenting three propositions of error: first, error in sustaining the demurrer of the Bank; second, error in vacating the award of punitive damages against Helen Sheehan and the Bank as her guardian; and third, error in refusing to submit the negligent entrustment theory to the jury. I. We will first address the contentions of Defendant Gaines. Generally the admission or exclusion of evidence rests in the sound discretion of the trial judge and, in the absence of prejudice to the complaining party, erroneous rulings will not require a reversal. Title 12 Ohio St. 1981 § 2104 provides: A. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected, and; 1. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; Timely objection was made to the introduction of the evidence concerning defendant Gaines stealing the police car after the accident occurred. Although this evidence may have been relevant to the issue of punitive damages, it cannot be said that it was relevant to the issues of his negligence or the plaintiff's damages or any other fact of consequence to the determination of the primary action between the parties. We, therefore, hold that the admission of evidence of the crime of stealing the police car after the accident, over timely objection, was error because it substantially affected the right of defendant Gaines to a fair trial on the primary issues before the jury. The probative value of the evidence was substantially outweighed by the danger of unfair prejudice and, in this case, was a needless presentation of cumulative evidence on the question of punitive damages. See 12 Ohio St. 1981 §§ 2401, 2402, 2403. The judgment against defendant Thomas Gaines is REVERSED AND REMANDED for a new trial. II. We next consider the contentions of the defendant Helen Sheehan. Her first two assignments of error, relating to the question of whether the defendant Gaines was "on a frolic of his own" as a matter of law, will be discussed together. The question presented on a motion to direct a verdict is whether, admitting the truth of all the evidence in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict in favor of such party. Phillips Petroleum Co. v. Ward, 181 Okl. 462, 74 P.2d 614 (1937). It is to be noted that the agency of the defendant Gaines, if in fact such agency existed, was general and not special; that he was given no fixed route of travel; that the defendant Sheehan exercised no apparent control over his movements. Whether there has been a deviation so material or substantial as to constitute a complete departure is usually a question of fact. In some cases the deviation may be so 1180 marked, and in others so slight relatively, that the court can say that no conclusion other than that the act was or was not a departure could reasonably be supported; while in still others the deviation may be so uncertain in extent and degree in view of the facts and circumstances as to make the question of what inferences should be drawn from the evidence properly one for the jury. Phillips Petroleum Co. v. Ward, supra. We are aware of the Oklahoma cases which hold that when the question of whether or not a servant was acting within the scope of his employment at the time of an injury to a third person occasioned by his negligence and the evidence on the question is conflicting or such that conflicting inferences may be drawn therefrom and a conclusion adverse to the party presenting a motion for directed verdict rendered, the motion should be overruled and the issue submitted to the jury. See Fore v. McMillian, 272 P.2d 1036 (Okl. 1954), and cases cited therein. We believe that the rule of law applicable to the facts herein, by which it is to be determined whether Gaines was engaged in the master's business or was engaged upon a separate independent mission of his own, is best stated in Carder v. Martin, 120 Okl. 179, 250 P. 906, 907 (1926), as follows: It is true that decisions may be found in other jurisdictions holding that, where there has been a departure by the servant from the route marked out by the master, an accident occurring while the servant is returning to the place of departure will not be regarded as outside the scope of the master's business, since the servant, having accomplished his own purpose, will be regarded as within his line of duty while returning to the place from which he departed. We think, however, that the correct test to be applied is, not so much whether the conduct of the servant was a departure or a mere deviation from his line of duty, but whether, taking into consideration the purpose of his mission, and the distance traveled, it could be said that the servant was stepping aside, in some marked or unusual manner, for some purpose wholly disconnected with his employment. See also, Heard v. McDonald, 172 Okl. 180, 43 P.2d 1026 (1935). When Gaines picked up his friend at the 1014 Club he immediately embarked on an entirely separate and independent mission of his own and in nowise connected with the mission of his master. He abandoned the master's mission when he left the 1014 Club to engage upon his separate independent mission of obtaining alcoholic beverages and drinking them. He was not the master's servant or agent, nor could the master be legally responsible for his acts, until he had returned to the place where he abandoned the master's mission. The trial court should have sustained Sheehan's motion for a directed verdict at the conclusion of the testimony, and not having done so, it committed reversible error. III. Defendant Sheehan's fifth proposition of error, that an adjudicated incompetent person has no capacity to appoint an agent, is also well taken. Title 15 Ohio St. 1981 § 24 provides: After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until his restoration to capacity is judicially determined. But if actually restored to capacity, he may make a will, though his restoration is not thus determined. This section has been applied in several cases. In Fixico v. Fixico, 186 Okl. 656, 100 P.2d 260, (Okl. 1940), the statute was held to preclude enforceability of a purported contract entered into by one judicially declared an incompetent, although such contract had been acquiesced in by the guardian and the county court. The plain wording and intent of § 24 supra, is to preclude the incompetent from 1181 entering any contract, designating any power or waiving any right. Section 24, supra, declares further that the ward cannot act until his restoration to capacity has been accomplished by a judicial determination. Thus, under statutes dealing with guardians and wards, the ward has no capacity to perform such an act as designating an agent, or hiring a servant and any attempt to do so is void. Title 15 Ohio St. 1981 § 25 provides: A minor, or a person of unsound mind, of whatever degree is civilly liable for a wrong done by him, in like manner as any other person. Decisions under § 25, supra, holding incompetents civilly liable for wrongs committed by them, have been limited to those fact situations where the incompetent committed the act personally, or it was committed by his agent, servant or employee in his presence or at his direction. The general rule is that he is not liable for the negligent act of a person employed by his guardian where such act was not committed at his direction or in his presence. Gillet v. Shaw, 117 Md. 508, 83 A. 394 (1912); ANNOTATION: 40 A.L.R. 2d 1104. This was not a case of the owner of an automobile becoming a passenger, thereby having the rights and duty, to prevent the driver from driving in a reckless or dangerous manner or in violation of law. There was no opportunity to restrain the driver for which failure to do so would render her responsible for the consequences, as was the case in Ellis v. Fixico, 174 Okl. 116, 50 P.2d 162 (1935). Our attention has not been directed to any Oklahoma case directly in point nor have we been able to discover any. A closely analogous case is that of Wagnon v. Carter, 539 P.2d 735 (Okl. 1975) where the Supreme Court held that since a minor did not have the capacity to appoint an agent, he could not be held liable on the theory that a person he allowed to drive his father's car was his agent and the driver's negligence could be imputed to him. Applying the same reasoning in the application of 15 O.S. § 24 to the facts of this case, we hold that where the beneficial owner of an automobile was an adjucated incompetent without capacity to appoint an agent when the automobile accident occurred, she cannot be held liable on the theory that the person she allowed to drive was her agent and that the negligence of such agent can be imputed to her. IV. Defendant Sheehan objected to instruction number 8 before it was given and again during plaintiff's closing argument. Plaintiff's counsel, during closing argument, utilized instruction number 8 to argue his negligent entrustment theory to the jury in spite of the fact that the trial judge had ruled that that theory was not sustained by the evidence and was not to be submitted to the jury. Instruction number 8 read as follows: You are instructed that Ruth E. Johnson is known in law as the "agent, servant or employee" of the defendants Helen P. Sheehan and the First National Bank and Trust Company of Tulsa as Guardian of the Estate of Helen P. Sheehan. Because of this relationship, the defendant Sheehan and her legal Guardian are bound by and become liable for acts and omissions, if any, if you find from a preponderance of the evidence, that such acts or omissions, if any, operated to become the proximate cause of plaintiff's claimed injuries and damages herein. This was an improper instruction, not supported by the evidence, and could only be used if there was evidence to support the negligent entrustment theory as well as evidence to support the theory that Ruth Johnson was an agent, servant or employee of the guardian. The broad standard governing the limitations on counsel in argument is stated in Atchison, Topeka & Santa Fe Rwy. Co. v. Coulson, 371 P.2d 914, (Okl. 1962) where the Supreme Court stated in the Syllabus as follows: The argument of counsel to the jury should at all times be confined to the 1182 questions in issue and the evidence relating thereto adduced at the trial, and such inferences, deductions, and analogies as can reasonably and properly be drawn therefrom. In Roberts v. Lewis, 441 P.2d 350, (Okl. 1968), the Court said: 1. Great latitude is allowed counsel in discussing facts and issues, and counsel may show environments of case, comment upon bias or interests of parties and witnesses, discuss reasonableness or unreasonablenesses, of evidence and its probative effect or lack of probative effect, but such latitude extends only to facts and issues raised by the evidence. 2. If counsel, in argument, goes outside of the record, or indulges in inflammatory language to influence the jury to return a verdict favorable to his clients, or if he makes respresentations of fact to the jury, unsupported by any evidence, and calculated to injure the opposing side, and such argument is not in retaliation for other improper argument by opposing counsel, this constitutes "misconduct", and requires a reversal unless it clearly appears that no injury resulted to the other side. At page 355, in Roberts, supra, the Court said: Where matters of a highly prejudicial nature have been brought before the jury, even when not manifestly motivated by bad faith, we have regarded such procedure as reversible error unless it can be affirmatively ascertained from the record that no harm resulted therefrom. See the discussion in Pratt v. Womack, Okl. 359 P.2d 223, 227, 228, and Green Construction Co. v. Lampe, 174 Okl. 351, 50 P.2d 286, See also Horany v. Paris, Okl., 369 P.2d 636, 637, quoting People v. Ah Len, 92 Cal. 282, 28 P. 286, 287, 27 Am.St. Rep. 103. Plaintiff's counsel, during his closing argument, told the jury: Now, the Court, you can refer back to his instruction on proximate cause, but it means: The thing that cause the accident. Using your good common sense, the thing that caused the accident was the intention (sic) and the want of care of the defendant Sheehan and the defendant bank, in allowing and permitting Thomas Gaines to get behind the wheel of that car. Now, the court has let in plaintiff's exhibit 26. You want to look at the speeding violations and please do when you get back in the jury room. Do any of you think that is the kind of driver ... [Emphasis added.] At that point defendant Sheehan's counsel interposed an objection to the argument relating to the theory of negligent entrustment. The trial judge said: I understand that. I would sustain the objection to this regard: That previous convictions could not be used to determine negligence in this case. Plaintiff's counsel continued: Well, for whatever it is worth, you may so consider it, because you are the trier of facts. Now, let's take two or three other little facts. Gosh, I don't want to miss anything, but Ruth Johnson knew about this one, like she said first, but two prior speeding violations. And, then... . [Emphasis added]. Defense counsel again objected and the court sustained the objection but did not admonish the jury. Plaintiff's counsel continued: ... Under the testimony that Judge Beasley has let in, Gaines was convicted of public drunk ten days before this accident happened. And, what's the producing cause of this terrible kind of injury? [Emphasis added]. Defense counsel again objected and the court overruled the objection. Plaintiff's counsel continued: They know what it is. It is letting Tom Gaines behind that wheel by the one who had a long, intimate knowledge of what kind of a person he was, and what kind of a driver he was. And, you can be the judge of her credibility and figure out what or whether the Plaintiff is entitled to recover against the defendant Sheehan 1183 and the defendant Bank. [Emphasis added]. Whereupon defense counsel objected and asked for permission to make a record. Out of the hearing of the jury, defense counsel moved for a mistrial and pointed out to the court that plaintiff's counsel was continuing to argue negligent entrustment even after the court had sustained his objections to such argument. The court did say, during the colloquy between attorneys, to plaintiff's counsel, "But, you do need to stay off negligent entrustment." After further argument defense counsel requested the judge to remove instruction 8 from those given to the jury and to instruct the jury to disregard it. The court overruled the motion for mistrial and the motion to remove instruction 8 from the jury's consideration. Upon resumption of plaintiff's counsel's closing argument he stated: Oh yes. It's letting Thomas Gaines behind the wheel by Ruth Johnson. The totality of the knowledge that was available to her about Gaines ... [Emphasis added]. Once again defense counsel objected and the court sustained the objection and admonished the jury as follows: One theory that the Court has made a legal determination on was negligent entrustment, and that is not submitted to you, Ladies and Gentlemen. There is a theory of agency that is submitted to you against the Defendant Sheehan, and you can determine that issue. Plaintiff's counsel continued: All right sir. However, Ladies and Gentlemen, you'll be able to take these instructions with you and read them together. And, I direct your attention to instruction number eight. When you get back in the jury room, you'll have an opportunity to read it at your pleasure, and you can interpret it and apply the facts to it. Where ... . They designated Ruth Johnson would be the driver of this particular car. And, in part, just insofar as it is covered by instruction number eight, it is her actions that we complain of. We say that they were not prudent, that they were not the actions of a person who would use all reasonable means necessary to satisfy themselves that that was the kind of driver that they'd want to have behind the wheel. [Emphasis added]. Defense counsel: I object again. The Court: I'll sustain the objection. Defense counsel: May I approach the bench again? The Court: I'll admonish the jury to disregard it. During the final portion of Plaintiff's counsel's closing argument he once again argued the negligent entrustment theory: ... It is not fair to ignore the facts of who owned the car and who had the ability to control who was in it. The reason these defendants are here, . .. is because they are legally responsible in money damages for the acts of their for the negligence of their acts, ... What is a judgment against Gaines worth? He told you: Nothing. But, that's not a sufficient reason for her to have a judgment against these defendants. There must be actionable negligence, and who did they turn the car over to? A friend, a child? An alcoholic, with a public drunk conviction ten days old. [Emphasis added]. Defense counsel objected again and plaintiff's counsel responded: We're going on the negligence of Sheehan and the negligence of the bank as the court has covered in this instruction. The Court: I'll note your objection. I think I've obviously made a ruling on it. At the close of the argument defense counsel again requested the court to remove instruction number 8 from the printed instructions and admonish the jury to disregard it or, in the alternative to grant a mistrial. The court overruled this request. On at least four different occasions, the trial judge either sustained an objection by defense counsel to a remark by plaintiff's counsel, or, in a mild way, asked the jury not to consider them and, in effect 1184 recognized them as improper. The Oklahoma Supreme Court has recognized that their refusing to reverse because of their inability to predict that a new trial would result in a different, or smaller, verdict, permits a plaintiff to deliberately inject into a case beneficial prejudice which experience has demonstrated will usually be reflected in a larger recovery. Where plaintiff, or his counsel acting for him, has done this, by inflammatory language, or representations of fact unsupported by evidence, and calculated to injure his adversary, and unprovoked by improper conduct on the part of the latter, or opposing counsel, this is "misconduct" as defined in Roberts, supra, and can be rectified by this court, unless it clearly appears that such conduct did not have its usual prejudicial effect. It is our opinion that the remarks by plaintiff's attorney, herein referred to, constitute "misconduct" under the circumstances of this case. We therefore conclude that the verdict in this case is excessive, and falls into the same category as those obviously resulting from passion and prejudice. For all of the above reasons, the judgment against the defendant Sheehan and the Bank as her guardian is REVERSED. V. We now direct our discussion to the allegations of error presented by appellee, Barbara Ann Barnes, on her cross-appeal. Appellee's first proposition is that the court erred in not submitting the negligent entrustment theory to the jury. She alleges that the evidence that defendants Sheehan and the Bank and their employee, Ruth Johnson, knew of defendant Gaines alcoholism and his propensity to receive traffic citations was sufficient to raise a question for the jury. This proposition is not supported by the record. Taken in its best light for Appellee, the evidence merely established that defendant Sheehan knew Gaines was an alcoholic. She may have known about Gaines receiving one speeding ticket. She believed that he was dry and had been for at least 90 days. There was no evidence that Gaines had ever received an alcohol related traffic citation. Since we have held that Ruth Johnson was not an agent, servant or employee of either defendant Sheehan or the Bank, her knowledge could not be imputed to them. In any event, there was no evidence that Ruth Johnson knew anything more than that Gaines was an alcoholic, supposedly dry, and that he had had some speeding tickets in the past. The trial courts ruling that there was no evidence on which to allow the negligent entrustment theory to go to the jury was correct and appellee's first proposition is without merit. VI. Appellee's second contention is that the court erred in sustaining the demurrer of the bank in its individual capacity. She argues that Ruth Johnson was employed by the Bank and that defendant Gaines was, therefore, a sub-agent of the Bank and the Bank would be liable for the negligence of its agent. She relies on Fisher v. McNeeley, 110 Wash. 283, 188 P.2d 478 (1920) and In re Lathers Will, 137 Misc. 222, 243 N.Y.S. 366 (N.Y. 1930). The evidence in this case does not support appellee's contention that Ruth Johnson was an agent, servant or employee of the Bank. The Bank was the guardian of the estate of Helen Sheehan. The guardian of the estate of an incompetent person is charged with the responsibility of managing the property of his ward. The guardian of the person is charged with the responsibility of the custody, support, health and education of the ward and may fix the residence of the ward. See, 30 Ohio St. 1981 §§ 15, 16. Ruth Johnson, if she was an agent rather than an independent contractor, was an agent of the guardian of the person of Helen Sheehan, Mary Jane Nance, who was not a party to this action. Appellee's second contention is therefore also without merit. VII. Appellee's final contention is that the court erred in vacating the award of punitive *1185 damages against defendants' Helen Sheehan and the Bank. She argues that lack of capacity is not available to a defendant under a general denial and since appellants Sheehan and the Bank filed only a general denial, the defense was waived. Under the facts in this case, we do not agree that the defense was waived because not specifically pled. The appellee injected the issue of defendant Sheehan's incompetency in her petition, naming the Bank as Guardian. Appellee attempted to establish that defendant Sheehan was competent enough to appoint an agent or hire a servant or employee. Her efforts failed to overcome the statutory presumption of incompetency which arises from the fact that a court of competent jurisdiction has found it necessary to appoint a guardian and that the guardianship is still in existence. Title 15 Ohio St. 1981 § 26 provides: A minor or person of unsound mind cannot be subjected to exemplary damages, unless at the time of the act he was capable of knowing that it was wrongful. The general rule of law is, and this statute provides, that punitive or exemplary damages cannot be recovered from an insane person, or one of unsound mind. Section 26, supra, provides for an exception when the person of unsound mind, at the time of the act, was capable of knowing it was wrongful. No case has been cited, nor have we found any, where punitive damages were allowed against a person of unsound mind for acts of their agents or the agents of their guardian, not committed in their presence or under their direction. Although defendant Sheehan might have been held liable under 15 Ohio St. 1981 § 25, supra, for a tortious act committed by her personally, under the negligent entrustment theory, this theory was not supported by any evidence in this case and was properly excluded from the jury's consideration by the trial judge. It therefore follows that since there was no evidence to support any theory of direct negligence on the part of defendant Sheehan, she could only be held liable, if at all, under a theory of respondeat superior. The trial court's ruling vacating the award of punitive damages against defendant Helen Sheehan and the Bank as her guardian was correct and appellee's final proposition is likewise without merit. It is therefore ordered that the judgment of the trial court is Reversed and Remanded with directions to enter judgment for appellees Sheehan and Bank and for a new trial as to defendant Gaines. REVERSED AND REMANDED. HOWARD, J., concurs. WILSON, P.J., concurs in part and dissents in part.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615153/	668 P.2d 1362 (1983) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bill Robert LESH, Defendant-Appellant. No. 82SA316. Supreme Court of Colorado, En Banc. August 29, 1983. Rehearing Denied September 26, 1983. 1363 J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Jeffrey Weinman, Nathan B. Coats, Asst. Attys. Gen., Denver, for plaintiff-appellee. David F. Vela, State Public Defender, Deborah S. Waldbaum, Thomas M. Van Cleave, III, Deputy State Public Defenders, Denver, for defendant-appellant. 1364 NEIGHBORS, Justice. The defendant appeals the judgment of conviction entered by the district court upon the jury's verdict finding him guilty of driving after judgment prohibited, section 42-2-206, C.R.S.1973. The defendant urges two grounds for reversal: (1) the elemental instruction failed to include the requirement that the defendant had knowledge his driver's license was revoked, and (2) the defendant's plea of guilty to a charge of driving while ability impaired, a predicate for the order of revocation, was accepted by the trial court in violation of Crim.P. 11. We reverse the defendant's conviction based on issue (1) and affirm the trial court's ruling on issue (2). I. The defendant was stopped for a traffic violation in Ft. Collins, Colorado on July 1, 1979. The officer requested that the defendant produce his vehicle registration and driver's license. The officer checked the status of the driver's license and learned that it had been revoked. The officer reported this information to the defendant who expressed surprise. The defendant was then arrested. At trial, an employee of the Department of Revenue (Department) testified that the defendant's file maintained by the Department contained an order of suspension based on a finding that the defendant was an habitual traffic offender. The order was dated January 4, 1979, and became effective on January 24, 1979. The Department's file also contained a postal return receipt signed by the defendant acknowledging he had received the "order of revocation/habitual offender." The Department's file also included three notices of hearings mailed to the defendant informing him that the Department intended to revoke his driving privileges. The employee of the Department also testified as to the basis for the Department's determination that the defendant was an habitual traffic offender. The defendant testified that he had no recollection of receiving the order revoking his driver's license. He also stated that he was "quite surprised" to learn that his license had been revoked. The jury returned its verdict finding the defendant guilty of the charge. The defendant was sentenced to the Department of Corrections for one year plus one year of parole. II. The defendant's first argument is that the trial court erred in refusing to give his tendered instructions on the elements of the crime and his theory of the case. The thread common to both instructions is that the prosecution must prove that the defendant had knowledge of the revocation order as an element of the crime. We agree with the defendant's position. The statutory scheme governing habitual traffic offenders is found in sections 42-2-201 to -208, C.R.S.1973. An habitual traffic offender is a driver who has accumulated the designated number of convictions for specific traffic offenses within the prescribed time periods. Section 42-2-202, C.R.S.1973 (1982 Supp.). A driver who operates a motor vehicle while his license is under revocation by reason of his status as an habitual traffic offender is guilty of driving after judgment prohibited, a class 5 felony. Section 42-2-206(1), C.R.S.1973. The trial court may not grant probation or suspend any part of the sentence unless the defendant establishes to the satisfaction of the trial judge at the sentencing hearing that he or she had to drive because of an emergency. People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980). The Department is granted the authority to revoke the license of an habitual traffic offender in section 42-2-203, C.R.S.1973. That section requires that the Department 1365 comply with the hearing procedures enumerated in sections 42-2-123(7) to -123(12), C.R.S.1973, before issuing a revocation order. Section 42-2-123(12), C.R.S.1973 (1982 Supp.), provides that if a defendant fails to appear for the revocation hearing after receiving proper notice, the order of revocation shall be entered immediately by the Department. This statute also contains the following provision which is at issue in this case: "[S]uch suspension or revocation shall not be effective until twenty days after notification of such action has been mailed to such licensee by registered or certified mail, return receipt requested, at his last known address as shown by the records of the department. Proof of such mailing is sufficient notice under this section." (Emphasis added.) The People claim that the emphasized language establishes the requirement that proof of mailing is expressly made sufficient notice under the statute and, therefore, the issue of whether the defendant had knowledge, either actual or constructive, is not relevant. The defendant counters this argument by citing section 42-2-117(2), C.R.S.1973, the general statute governing the requirements for notices issued by the Department to drivers. That enactment establishes that proof of notice given in any one of four prescribed ways constitutes "prima facie proof of said denial, cancellation, suspension, or revocation." (Emphasis added.) The statute states in pertinent part: "Evidence of a registered return receipt of a notice mailed to the last known address of the licensee, or evidence of a copy of the notice mailed to the last known address of the licensee, or evidence of delivery of notice in person to the last known address of the licensee, or evidence of personal service upon the licensee of the order of denial, cancellation, suspension, or revocation of the license by the executive director of the department, or by his duly authorized representative, is prima facie proof of said denial, cancellation, suspension, or revocation." The statute establishes that a prima facie case on the element of notice is established by evidence that: (1) the Department received a registered return receipt for a notice that was mailed; (2) a copy of the notice was mailed; (3) the notice was personally delivered to the last home address of the driver; or (4) the notice was personally served upon the driver. In construing these two statutes, we are required to give effect to both enactments. Hyrup v. Kleppe, 406 F. Supp. 214 (D.Colo.1976); Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980); People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977); Lininger v. City of Sheridan, 648 P.2d 1097 (Colo.App.1982). We hold that under section 42-2-123(12), C.R.S.1973 (1982 Supp.), the legislature has adopted proof of mailing by registered or certified mail, return receipt requested, as the appropriate method to be used by the Department for giving notice of the order of revocation. However, section 42-2-117(2), C.R.S.1973, establishes that such notice is only prima facie proof and does not create a conclusive presumption. Accordingly, the People are required to prove the element of knowledge of the revocation order in a driving after judgment prohibited case. The People claim that the defendant was not prejudiced when the trial court refused his tendered instructions because he was permitted to testify to his lack of knowledge during the trial. This argument is not persuasive. Juries are presumed to follow the court's instructions. People v. Smith, 620 P.2d 232 (Colo.1980); People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979); People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976). Even if the jury believed the defendant's testimony that he had no knowledge of his status as an habitual traffic offender because his license had been revoked, the jury was logically required to return a verdict of guilty. Under the instructions given by the court, the defendant 1366 was guilty of the charge if three elements were established: (1) the defendant was an habitual offender; (2) he was driving a motor vehicle; and (3) the revocation order was in effect. Our decision is consistent with the result reached by other appellate courts that have faced a similar issue. In State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545-46 (1976), the North Carolina Supreme Court stated: "[W]e believe that the legislature also intended that there be actual or constructive knowledge of the suspension or revocation in order for there to be a conviction under this statute. We reach this conclusion for the reason that G.S. 20-16(d) requires the Department to provide notice and an opportunity for a hearing in order for there to be a lawful suspension. For the purposes of a conviction for driving while license is suspended or revoked, mailing of the notice under G.S. 20-48 raises only a prima facie presumption that defendant received the notice and thereby acquired knowledge of the suspension or revocation. Thus, defendant is not by this statute denied the right to rebut this presumption." (Emphasis in original.) (Citations omitted.) See also State v. Chester, 30 N.C.App. 224, 226 S.E.2d 524 (1976); Jeffcoat v. State, 639 P.2d 308 (Alaska App.1982); State v. Orr, 246 Ga. 644, 272 S.E.2d 346 (1980); State v. Kemp, 106 Wis. 2d 697, 318 N.W.2d 13 (1982); State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977). Because we have determined, as a matter of statutory construction, that knowledge of the order of revocation is an essential element in a driving after judgment prohibited prosecution, we need not address the defendant's constitutional argument that the absence of a mens rea element in the statute creates a strict liability crime which violates due process. III. The defendant's second argument for reversal is the claimed invalidity of his conviction based on a plea of guilty entered on May 23, 1978, to a charge of driving while ability impaired, which was one of the convictions upon which his habitual traffic offender status was based. The record establishes that the guilty plea was entered on behalf of the defendant by his attorney. A defendant may attack on constitutional grounds the validity of any conviction for a traffic offense upon which his or her status as an habitual traffic offender is predicated. People v. Roybal, 618 P.2d 1121 (Colo.1980) (Roybal I); People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979). The defendant made a prima facie showing that the plea was constitutionally infirm when he offered the tape recording of the providency hearing which established that: (1) he was not present in court when the plea was accepted, and (2) his attorney advised the court only that he told the defendant he had a right to proceed to trial. Crocker v. Colorado Department of Revenue, 652 P.2d 1067 (Colo.1982). See also People v. Roybal, 617 P.2d 800 (Colo.1980) (Roybal II). The burden then shifted to the prosecution to establish that the plea was entered and the conviction obtained in accordance with constitutional requirements. People v. Meyers, 617 P.2d 808 (Colo.1980); People v. Roybal, supra (Roybal II). We first note that Crim.P. 11(c) and sections 16-7-202 and 16-7-206(1), C.R.S.1973 (1978 Repl.Vol. 8), authorize an attorney to enter a plea of guilty on behalf of the client in traffic and misdemeanor cases, except for class 1 misdemeanors or where the possible sentence exceeds one year. At the Crim.P. 35(c) hearing, the defendant's attorney testified that he fully advised his client of his rights enumerated in Crim.P. 11(b). The defendant does not specifically attack the sufficiency of the advisement given by the attorney. However, the defendant claims that the county judge who accepted the plea of guilty had a duty to personally ascertain whether the defendant voluntarily and knowingly entered the plea. We reject this rigid approach. 1367 A defendant who pleads guilty or nolo contendere to any criminal offense waives the following fundamental constitutional rights: (1) the privilege against self-incrimination; (2) the right to trial by jury; (3) the right to confront one's accusers; (4) the right to insist that the prosecution's proof at trial establish guilt beyond a reasonable doubt; (5) the right to present witnesses through the use of compulsory process; (6) the right to testify in defense of the charge; and (7) the right to a speedy and public trial. People v. Meyers, supra. Before a conviction based upon a plea of guilty or nolo contendere satisfies constitutional requirements, the record must establish that the plea was entered voluntarily and understandingly. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Crim.P. 11 prescribes the procedure which will ensure that those requirements are met before such a plea is accepted by the trial court. People v. Roybal, supra (Roybal II). Before today, we have not addressed the issue of the apparent tension between the constitutional requirements of Boykin and the statutes enacted by the legislature and Crim.P. 11(c) which authorize the entry of guilty pleas by counsel on behalf of defendants in non-felony cases. In Mills v. Municipal Court, 10 Cal. 3d 288, 515 P.2d 273, 110 Cal. Rptr. 329 (1973), the California Supreme Court considered this precise question. The court held that a guilty plea entered by counsel on behalf of the defendant in a misdemeanor case is valid if it is accompanied by an explicit and adequately documented showing that the defendant was aware of his or her constitutional rights and knowingly and intelligently waived them. We adopt this principle of law. We fully recognize the practical realities faced by county and municipal courts in which thousands of less serious offenses are filed each year. The convenience of the parties and the courts should be given deference, but only so long as the constitutional rights of the defendant are fully respected. Mills v. Municipal Court, supra. We agree with the analysis of the California court. "When viewed as a whole, Boykin and Tahl do not preclude the state from establishing a procedure, applicable to cases involving less serious offenses, which permits a defendant, at his own option, to appear and plead guilty through counsel, so long as such procedure affords adequate protection to the constitutional interests at stake." 10 Cal.3d at 304-305, 110 Cal. Rptr. 329, 515 P.2d 273. We hold that before accepting a plea of guilty or nolo contendere to a misdemeanor or traffic offense, the trial court must be satisfied that the defendant's decision to acknowledge guilt has been made knowingly and understandingly. Mills v. Municipal Court, supra; State v. Nordstrom, 331 N.W.2d 901 (Minn.1983); City of Cleveland v. Whipkey, 29 Ohio App. 2d 79, 278 N.E.2d 374 (1972); Crew v. Nelson, 88 S.D. 162, 216 N.W.2d 565 (1974). See also State v. Jones, 404 So. 2d 1192, 1196 (La.1981) (Dennis, J., Dixon, C.J., and Calogero, J., concurring); State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981). This practice is necessary because a waiver of fundamental constitutional rights cannot be presumed from a silent record. Boykin v. Alabama, supra. In addition, where the underlying convictions form the basis for a substantive offense or sentence enhancement, such convictions based on pleas of guilty must be obtained in compliance with constitutional standards. People v. Shaver, 630 P.2d 600 (Colo.1981). A trial court may assure itself that the plea of guilty or nolo contendere is being entered by the defendant in accordance with constitutional requirements by (1) complying with Crim.P. 11(b), (2) insisting that a written plea agreement signed by the defendant and his attorney is filed with the court, or (3) interrogating counsel about the nature of the advisement given to the client 1368 by the attorney and the client's responses. The court must be concerned with reality and not ritual. A formalistic recitation by the trial judge at the providency hearing is not a constitutional requirement. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973). In this case, the county court's findings that the "waiver is knowing and intelligent" and "the plea is voluntary" are not supported by the record. The county court had totally inadequate facts from which to determine that the guilty plea was knowingly and understandingly made before it accepted the plea offered by the defendant's lawyer. The absence of any evidence in the record to support the trial court's findings presents the issue of whether this defect in the providency hearing can be cured at a Crim.P. 35(c) hearing. We have not addressed this question precisely. However, our decisions have implied a recognition of the People's right to cure such a deficiency by offering evidence at a Crim.P. 35(c) hearing which establishes that the defendant's plea was constitutionally obtained. The defendant's evidence was sufficient to make out a prima facie case that the plea was not knowingly and understandingly made. The burden then devolved upon the People to establish by a preponderance of the evidence the constitutional validity of the guilty plea. Watkins v. People, 655 P.2d 834 (Colo.1982) ("Once a prima facie showing is made, the conviction is not admissible unless the prosecution establishes by a preponderance of the evidence that the conviction was obtained in accordance with the defendant's constitutional rights." 655 P.2d at 837); People v. Meyers, supra ("In the face of a silent record [of a providency hearing], it was incumbent upon the prosecution to demonstrate by considerably greater evidence than present here that the defendant's plea was knowingly made." 617 P.2d at 815); People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974) ("[T]he defendant's attorney for the prior hearing and sentencing may testify in the 35(b) hearing that the defendant knew and understood all the elements of the crime charged." 185 Colo. at 319-20, 524 P.2d 604). See also People v. Shaver, supra; People v. Alvarez, 181 Colo. 213, 508 P.2d 1267 (1973); People v. Brewer, 648 P.2d 167 (Colo.App.1982). The People met their burden in this case. The attorney who entered the plea on behalf of the defendant testified as a prosecution witness that he gave a full and complete advisement to the defendant at the time the accused decided to accept the plea agreement. The defendant testified, not that such an advisement was not provided, but that he could not remember the advisement. Based on this evidence, the trial court properly resolved the guilty plea issue against the defendant. See People v. DeLeon, 625 P.2d 1010 (Colo.1981). Since the record contains sufficient probative evidence to support the findings of the trial court, its ruling is binding on appeal. Marez v. Dairyland Insurance Co., 638 P.2d 286 (Colo.1981); Gebhardt v. Gebhardt, 198 Colo. 28, 595 P.2d 1048 (1979); Martinez v. Martinez, 638 P.2d 834 (Colo.App.1981). The judgment is reversed. This case is remanded to the trial court for a new trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/729243/	99 F.3d 1142 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.ALEXANDER BINZEL CORPORATION, and Alexander Binzel GmbH &Co., KG, Plaintiffs-Appellants,v.NU-TECSYS CORPORATION and Karl-Heinz Binzel, Defendants-Appellees. No. 95-3967. United States Court of Appeals, Seventh Circuit. Argued Sept. 18, 1996.Decided Oct. 17, 1996. Before CUMMINGS, BAUER and EVANS, Circuit Judges. ORDER 1 Alexander Binzel Corporation (Binzel U.S.) brought this action in the district court alleging trademark and trade dress infringement and unfair competition by defendants. Upon defendants' motion, the district court ordered that Alexander Binzel GMbH & Co., KG (Binzel Germany), the German parent of Binzel U.S., be made a party to the action and it was added as a plaintiff. The district court ordered a stay of its proceedings pending completion of agreed-upon arbitration in Germany. Thereafter, Binzel-Germany instituted arbitration proceedings against Karl-Heinz Binzel. The arbitration tribunal rendered a partial arbitral award on March 11, 1995 (A14-A25). Thereafter, plaintiffs moved for reinstatement of the district court's action on active calendar for all purposes. The motion to reinstate was denied on November 14, 1995, resulting in this appeal. The district court has not yet entered a final judgment but merely denied the American plaintiff's motion to reinstate. The court has neither confirmed nor rejected the partial arbitral award rendered in Germany in March 1995 nor has the action been dismissed. We have no jurisdiction because there is no final order nor an order refusing an injunction within 28 U.S.C. § 1202(a)(1). 2 Appeal dismissed for want of jurisdiction.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/4516820/	C-Track E-Filing Nevada Appellate Courts Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search	01-03-2023	03-17-2020
https://www.courtlistener.com/api/rest/v3/opinions/1152550/	481 So. 2d 1013 (1986) Carlos J. CASHIO, et al. v. James A. SHORIAK, et al. No. 85-C-1493. Supreme Court of Louisiana. January 13, 1986. 1014 Stephen M. Irving, Baton Rouge, for plaintiff-applicant. Randall J. Cashio, Baton Rouge, for defendant-respondent. MARCUS, Justice. Carlos J. Cashio, developer of Bon Lieu subdivision and owner of several subdivision lots, his wife, and Mr. and Mrs. William C. Harden, Sr., owners of a subdivision lot, filed this suit for injunctive relief against defendants, each of whom owns a subdivision lot, to enforce building restrictions established and duly registered in 1975 and 1977 which limit the right to erect signs in the subdivision. At the time this suit was filed, each defendant was displaying a sign in his yard (with some defendants displaying a few signs) similar to those distributed by candidates during political campaigns. Each sign measures eighteen by thirty inches, has a white background with red lettering, contains the statement "We Have A Right To Clean Water," and is attached to a wooden stake three feet long. The covenant which plaintiffs seek to enforce is contained in paragraph 14 of the restrictions and provides that: No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one square foot, one sign of not more than five square feet advertising property for sale or rent, or signs used by a builder to advertise the property during the construction and sales period. Defendants contend that neither Cashio nor the other subdivision lot owners originally intended for the covenant's proscription to include political yard signs. Alternatively, they argue that the right to enforce the restriction has been waived by the failure to object to frequent and continuous violations and that enforcement of paragraph 14 in this case would violate their first amendment right to free speech. After a hearing, the trial court rejected defendants' arguments finding first that paragraph 14 clearly and unambiguously conveys an intent to prohibit the display of political yard signs; secondly, that the past violations had been too few in number and too infrequent to constitute a waiver;[1] and finally, that the case presented no constitutional issues since defendants were aware of the restriction when they bought their lots. Accordingly, the court granted the preliminary injunction prohibiting defendants from displaying the challenged signs. Defendants appealed. The court of appeal affirmed with one judge dissenting.[2] On defendants' application, we granted certiorari to review the correctness of that decision.[3] The issues presented for our determination are: (1) whether Cashio and the other subdivision lot owners originally intended for the prohibition to include small political yard signs; (2) if the restriction does apply to small political yard signs, whether it has been abandoned by frequent and continuous violations; and (3) if the covenant applies to political yard signs and is still valid, whether enforcement of it will violate defendants' right to freedom of speech. 1015 The law is clear that building restriction clauses constitute real rights, not personal to the vendor, and inure to the benefit of all other grantees under a general plan of development, and are real rights running with the land; and that the remedy of the other grantees to prevent a violation of the restrictions by another is by injunction. Edwards v. Wiseman, 198 La. 382, 3 So. 2d 661 (1941). It is undisputed in the instant case that the building restrictions constitute a general plan of development which was properly filed, thus giving constructive knowledge of its contents to all prospective purchasers.[4] Restrictive covenants are to be construed strictly. Clark v. Manuel, 463 So. 2d 1276 (La.1985). Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La.Civ. Code art. 783.[5] Apart from the rule of strict interpretation, documents establishing building restrictions are subject to the general rules of the Louisiana Civil Code governing the interpretation of juridical acts. Id., comment (c); Allen v. Forbess, 345 So. 2d 950 (La.App. 2d Cir.1977). According to these general rules, interpretation of a contract is the determination of the common intent of the parties. La.Civ. Code art. 2045.[6] When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La.Civ.Code art. 2046.[7] The authority cited above establishes the rule of interpretation that when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit. La.Civ.Code art. 2046, comment (b); Maloney v. Oak Builders, 256 La. 85, 235 So. 2d 386 (1970). Article 2046, however, establishes an exception to this rule. Even if the words are fairly explicit, it is our duty to refrain from construing them in such a manner as to lead to absurd consequences. Texaco v. Vermilion Parish School Board, 244 La. 408, 152 So. 2d 541 (1963); National Roofing and Siding Co. v. Giaise, 434 So. 2d 85 (La.App. 5th Cir.1982), writ denied, 435 So. 2d 443 (La. 1983). When a literal interpretation will produce absurd consequences, the court may consider all pertinent facts and circumstances, including the parties' own conclusion of the instrument's meaning, rather than adhere to a forced meaning of the terms used. La.Civ.Code art. 2046; Kendrick v. Garrene, 233 La. 106, 96 So. 2d 58 (1957); Cardos v. Christadoro, 228 La. 975, 84 So. 2d 606 (1955). The lower courts found that the words of the contract are clear and explicit. Paragraph 14 unambiguously prohibits the display of any signs that do not meet one of the three enumerated exceptions, none of which are applicable here. The court of appeal also determined that a literal interpretation of the covenant would not lead to absurd consequences, reasoning that the purpose of the restriction was to prevent the subdivision from becoming littered with yard signs and thus to promote the beauty of the neighborhood. The court did not believe that this purpose was an absurd consequence. Accordingly, it interpreted the restriction literally and found that defendants' 1016 political signs were included within the covenant's ban. The court of appeal's reasoning was flawed. It confused consequences with purposes. The two are not the same. A purpose is "something that one sets before himself as an object to be obtained...." Webster's Third New International Dictionary, 1847 (1961). A consequence, on the other hand, "is something that is produced by a cause ... a natural or necessary result...." Id. at 482. It is the absurdity of the consequences of a literal interpretation, and not the absurdity of the parties' purpose, which determines whether the court can search beyond the language of the contract for the parties' true intent. La. Civ.Code art. 2046. If a literal interpretation will lead to absurd consequences, then the court can go beyond the forced meaning and consider all pertinent facts. The words of paragraph 14 are clear and explicit. This covenant provides that "[n]o sign of any kind shall be displayed...." If interpreted literally, this provision would ban all signs, aside from the three types excepted. In addition to the clean water signs, Bon Lieu residents would have to remove Season's Greetings signs, Merry Christmas signs, Beware of Dog signs, political candidate signs, and residents' name signs.[8] We believe that banning these types of signs would be an absurd result. Since a literal interpretation of the sign restriction would lead to absurd consequences, we must go beyond the words and review other evidence in our search for the parties' true intent. It is well settled in the jurisprudence that in interpreting controversial clauses in a contract the court is guided by the interpretation the parties themselves placed upon the agreement and their understanding of it as shown by their actions. Superior Oil Co. v. Cox, 307 So. 2d 350 (La.1975); Elliott v. Dupuy, 242 La. 173, 135 So. 2d 54 (1961). Thus, the conduct of the parties is relevant in determining their common intent. Defendants were not the first Bon Lieu residents to erect signs which did not qualify under one of paragraph 14's three exceptions. In fact, for the six to seven year period prior to the commencement of this lawsuit approximately half of the subdivision residents had, at one time or another, erected political yard signs with ten to fifteen of these signs being displayed during each major election. Yet, the instant litigation represents the first attempt to enforce the restrictive covenant against political yard signs. We believe that this acquiescence in the display of political yard signs indicates that the parties did not originally intend for these signs to be covered by paragraph 14's proscription. Additional evidence that neither Cashio nor the other residents originally intended to include small political yard signs within the covenant's proscription can be found within the four corners of paragraph 14. The restriction lists three exceptions to the absolute ban. A lot may contain "one professional sign of not more than one square foot, one sign of not more than five square feet advertising the property for sale or rent, or signs used by a builder to advertise the property during the construction and sales period." All three of these exceptions pertain to small commercial signs. This fact indicates that the purpose of this restriction was to keep commercial signs, other than those specifically enumerated, out of the subdivision. Thus, the nature of the exceptions sheds some light on the intended scope of the general prohibition. We believe that when Cashio drafted the restriction, he did not intend for it to apply to small political yard signs, and that if he had, he would have so stated in unmistakable terms. Under the circumstances, we conclude that neither Cashio nor the other subdivision residents originally intended for the restrictive covenant to apply to small political yard signs. Therefore, defendants' 1017 signs are not included within the restriction's prohibition. Since paragraph 14 does not prohibit defendants from displaying their signs, the trial court abused its discretion when it granted the preliminary injunction. Accordingly, we reverse the judgment of the court of appeal affirming the trial court's ruling. Because we base our decision on the finding that the restriction does not apply to defendants' signs, we need not rule on defendants' other two contentionsthat the covenant has been abandoned and that it violates defendants' constitutional right to freedom of speech. Decree The judgment of the court of appeal affirming the trial court's granting of a preliminary injunction is reversed. It is ordered that there be judgment in favor of defendants and against plaintiffs dismissing plaintiffs' demand for a preliminary injunction at their costs. The case is remanded to the trial court for further proceedings in accordance with law. BLANCHE, J., dissents and assigns reasons. BLANCHE, Judge (dissenting). Blanche, J. dissents, being of the opinion that the banning of all signs in the subdivision except those permitted by Paragraph 14 of the restrictions does not lead to absurd consequences and would enforce the restriction as written. NOTES [1] The court also found that the past violations were of a different character than those involved in this case. It based this finding on a distinction between defendants' signs which express political views on a subject that is not voted on and those supporting political candidates. It then held that although the restriction may have been waived as to political candidate signs, it could still be enforced against the signs challenged in this case. We find no merit in this distinction. Like the signs displayed in the past, defendants' signs express opinion on political issues. The existence or nonexistence of an upcoming election is irrelevant. [2] 472 So. 2d 264 (La.App. 1st Cir.1985). [3] 475 So. 2d 1097 (La.1985). [4] The law relative to building restrictions is presently codified at La.Civ.Code arts. 775 to 783. According to the official comments, the code articles do not change the law. [5] La.Civ.Code art. 783 was enacted by Acts 1977, No. 170, § 1, eff. Jan. 1, 1978. Thus, this article is new. However, it does not change the law. Rather, it codifies Louisiana jurisprudence. La. Civ.Code art. 783, comment (a). See, e.g., Salerno v. Delucca, 211 La. 659, 30 So. 2d 678 (1947). [6] La.Civ.Code art. 2045 was enacted by Acts 1984, No. 331, § 1, eff. Jan. 1, 1985. Thus, this article is new. However, it does not change the law. Rather, it states a principle which underlies La.Civ.Code arts. 1945, 1949, 1950 and 1956 (1870). La.Civ.Code art. 2045, comment (a). [7] La.Civ.Code art. 2046 was enacted by Acts 1984, No. 331, § 1, eff. Jan. 1, 1985. Thus, this article is new. However, it does not change the law. Rather, it makes applicable to contracts the principle contained in La.Civ.Code art. 13 (1870) for interpretation of laws and reproduces the substance of La.Civ.Code art. 1945(3) (1870). La.Civ.Code art. 2046, comment (a). [8] Testimony at the hearing established that the signs listed above were present in the subdivision.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249751/	273 F.2d 499 ALUMINUM COMPANY OF AMERICA, Appellant,v.Sam H. LOVEDAY et al., Appellees. No. 13782. United States Court of Appeals Sixth Circuit. Dec. 31, 1959. R. R. Kramer, Knoxville, Tenn., John H. Morgan, Frank L. Seamans and William H. Eckert, Pittsburgh, Pa., Gaines A. Tyler, Jr., R. Arnold Kramer, Knoxville, Tenn., on brief, for appellant. John P. Davis, Jr., Knoxville, Tenn., Fred H. Henry, Maryville, Tenn., Richard L. Carson and J. H. Doughty, of Hodges, Doughty & Carson, Knoxville, Tenn., on brief, for appellees. Before McALLISTER, Chief Judge, and MARTIN and WEICK, Circuit Judges. PER CURIAM. 1 In this protracted litigation in the Eastern District of Tennessee, the trial judge granted the motions for new trial of certain plaintiffs whose cattle had been injured and whose property had been damaged from injurious gases sent forth from the plant of appellant, Aluminum Company of America. The correctness of the action of the trial judge is challenged by direct appeal and, in the alternative, by petition for writ of certiorari. 2 The principal reason for granting a new trial by the district court was based on affidavits and testimony of jurors regarding remarks of one of the jurors concerning his personal observation of cattle: that, during the trial, he had visited the critical area, viewed the cattle, and had returned to the jury room and reported to his fellow jurors, in substance, that the cattle were about the best looking he had seen in a long time. The United States District Judge expressed the opinion and made a finding that the conduct of the juror had prejudiced the claims of the plaintiffs in the minds of some of the jurors. 3 The appellees contend that the order from which the appeal was taken is not a final order and, therefore, is not appealable; that this court has no jurisdiction to hear the appeal, nor to grant the writ of certiorari for which the appellant prays; and that the district court had full authority and jurisdiction to act upon and grant the motions for new trial. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185; City of Louisa v. Levi, 6 Cir., 140 F.2d 512, 513; Turnbull v. United States, 6 Cir., 139 F.2d 126; Borg-Warner Corporation v. Whitney, 6 Cir., 121 F.2d 444; Gillespie v. Schram, 6 Cir., 108 F.2d 39; Grand Trunk Western R. Co. v. McHie, 6 Cir., 100 F.2d 86. 4 It is well settled that an appeal does not lie from an order granting a new trial. Ford Motor Co. v. Busam Motor Sales, Inc., 6 Cir.,185 F.2d 531, 533, citing authorities; Frank Mercantile Corporation v. Prudential Insurance Co. of America, 3 Cir., 115 F.2d 496. Chief Justice Taft, when a member of this court in 1897, stated that a motion for a new trial is addressed to the discretion of the court and is not the subject of review, when in the exercise of his discretion the trial court either grants or denies the motion. Felton v. Spiro, 6 Cir., 78 F. 576. 5 We are aware of the splendid contribution made to due process of law by Mr. Justice Lamar, in McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300, in which he wrote most eloquently to the effect that a juror may not be permitted to impeach his own verdict by revealing proceedings in the jury room. In our opinion, however, this authority is not applicable here for the reason that, disregarding what the recreant juror may have told his fellow jurors about the fine appearance of the cattle, he, as one of the jury panel, by his extraneous action in viewing the cattle and determining that they looked fine, disqualified himself to sit as a juror. When he sat, he polluted the jury's verdict. 6 The same result is reached, whether or not our review is bottomed upon the motion of the appellee to dismiss the appeal, or to deny the petition of appellant for writ of certiorari. The action taken by the district court was in the exercise of his jurisdiction and was not such abuse of his judicial discretion as to constitute reversible error. 7 Accordingly, the appeal is dismissed, the petition for writ of certiorari is denied, and the judgment of the district court granting the motions for new trial is affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2897569/	NOS. 07-07-0088-CR 07-07-0089-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 25, 2008 ______________________________ FELIPE HERNANDEZ, JR., APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; NO. 15,436-B, 15,437-B; HONORABLE JOHN BOARD, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Felipe Hernandez, Jr., was convicted of aggravated robbery in two causes and received seven year sentences in both cases, with the imposition of the sentences being suspended for a period of ten years. The State subsequently filed a motion to revoke appellant’s probation in both causes alleging that appellant had violated the terms and conditions of probation by committing a new offense. The trial court subsequently found the allegations in the State’s motion to revoke probation true and sentenced appellant to concurrent terms of seven years incarceration in the Institutional Division of the Texas Department of Criminal Justice. We affirm. Appellant’s attorney has filed an Anders brief and a motion to withdraw. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can arguably be predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgments. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Appellant has not filed a response. By his Anders brief, counsel raises grounds that could possibly support an appeal, but concludes the appeal is frivolous. We have 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, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous. 2 Accordingly, counsel’s motion to withdraw is hereby granted and the trial court’s judgments are affirmed. Mackey K. Hancock Justice Do not publish. 3	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2615149/	668 P.2d 1114 (1983) 100 N.M. 237 STATE of New Mexico, Plaintiff-Appellee, v. Henry BLEA, Defendant-Appellant. No. 7097. Court of Appeals of New Mexico. July 21, 1983. Paul Bardacke, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. Janet Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellate Defender, Santa Fe, for defendant-appellant. OPINION DONNELLY, Judge. Convicted in Bernalillo County Metropolitan Court of Unlawfully Carrying a Deadly Weapon under Albuquerque City Ordinance § 2-8(A), defendant appealed to the Bernalillo County District Court. After a trial de novo, the trial court again convicted defendant; he appeals. At the time of his arrest, defendant was carrying in his pockets the pieces to an inoperable voltage tester, including an ice-pick-like part with a one and one-half inch point. The issue presented here is whether 1115 the concealed carrying of this instrument, designed for use for innocent purposes, is per se a "weapon which is capable of producing death or great bodily harm," as described by the ordinance § 2-8, supra.[1] On September 11, 1982, at almost midnight, two Albuquerque police officers stopped defendant and three others for jay walking. There had been "trouble" in the area during the night before and defendant's companions were wearing clothes which identified them as members of a local "gang." When asked for his identity, defendant responded with a false name. One officer realized this, since he had been involved in a prior incident with defendant. Defendant eventually admitted his true name. During a pat-down search, the police discovered that defendant was carrying the parts to the broken voltage tester the pointed section in one pocket, the wire, some plastic, and the clip in another. According to the police, defendant never overtly indicated any intention to use the tester as a weapon. At least one police officer was aware the item had a benign use. Defendant testified that he had found the voltage tester near his sister's house but did not know what it was; he was planning to find out what it was and repair it himself or with his brother-in-law's assistance. The trial court without a jury convicted defendant of Unlawfully Carrying a Deadly Weapon under § 2-8, supra, on the theory that defendant was guilty if he merely (1) possessed (2) a concealed article (3) which could be used as a weapon without regard to its use or intended use, or his purpose for carrying the item. Defendant argues that, unless the instrument found concealed on him is a deadly weapon per se as defined in the statute, he cannot be found guilty of the offense without proof that he either used or intended to use the item as a deadly weapon. He urges that mere possession of an article designed for innocent purposes, unrelated to violence, constitutes no crime in other jurisdictions where similar ordinances or statutes have been construed. Mere proof that the voltage meter part could be used as a weapon is not enough, defendant contends. Albuquerque City Ordinance § 2-8(A), supra, proscribes carrying a concealed deadly weapon, on the person, or in close proximity thereto. Section 2-8(B) defines "deadly weapon" as "any firearm or any weapon which is capable of producing death or great bodily harm, including but not restricted to, any type of dagger, metallic knuckles, switchblade, poniard, dirk knife, sword cane, sharp pointed cane or rod, slingshot, bludgeon, knum chucks, straight razor, or slapper." No express mention is made of any item or type of item manufactured for innocent, non-violent purposes which nonetheless has a potential violent use, e.g., a pen, a nail file, or a screwdriver.[2] We, like other jurisdictions, construe this statute to include the factual test whether, under the surrounding circumstances, the purpose of carrying the object 1116 was for use as a weapon. See, e.g., Scott v. United States, 243 A.2d 54 (D.C.App. 1968); State v. Rackle, 55 Haw. 531, 523 P.2d 299 (1974); People v. Vaines, 310 Mich. 500, 17 N.W.2d 729 (1945); State v. Green, 62 N.J. 547, 303 A.2d 312 (1973); see also State v. Gonzales, 85 N.M. 780, 517 P.2d 1306 (Ct. App. 1973). This does not mean that proof of intent to actually use the article to inflict bodily harm is necessary; the test is whether the purpose of carrying the item was its use as a weapon. See Leftwitch v. United States, 251 A.2d 646 (D.C.App. 1969). Factors to be considered include (1) the nature of the instrument, i.e., its size, shape, condition and possible alteration; (2) the circumstances under which it is carried, i.e., the time, place and situation in which defendant is found with it; (3) defendant's actions vis-a-vis the item; and (4) the place of concealment. See State v. Gonzales, supra; Scott, supra; Green, supra; State v. Baldwin, 571 S.W.2d 236 (Mo. 1978). We interpret the Albuquerque City Ordinance catch-all phrase as fashioned to give the necessary "flexibility of scope to bring within its ambit instruments closely associated with criminal activity whose sole design and purpose is to inflict bodily injury or death upon another human being." See State v. Rackle, supra. It was not, however, intended to attach strict criminal liability to any person who happens to be carrying a pencil, hammer, flashlight or nail file in his pocket, handbag or back pack. Defendant contends that the use of the word "weapon" in the catch-all phrase indicates that the ordinance was not intended to prohibit any object capable of inflicting bodily harm or death but to restrict only the carrying of weapons, that is, instruments designed to fight with, for offensive or defensive use. See Com. v. Sampson, 383 Mass. 750, 422 N.E.2d 450 (1981). If an object is not specifically listed as a deadly weapon, in order to convict under the ordinance, the prosecution must prove as a matter of fact that defendant carried the instrument because it could be used as a weapon. See People v. Morris, 8 Mich. App. 688, 155 N.W.2d 270 (1968). The specifically enumerated objects in the ordinance are weapons by design. A voltage tester, or other utilitarian tool or object is not per se a weapon; it may, however, become a weapon by its actual use, e.g., State v. Gonzales, supra, or by the purpose for which it is carried. E.g., State v. Candelaria, 97 N.M. 64, 636 P.2d 883 (Ct.App. 1981); Baldwin, supra; see also State v. Walden, 41 N.M. 418, 70 P.2d 149 (1937). Hence, a factual finding as to defendant's intent or purpose in carrying the object is necessary to determine guilt or innocence of an accused charged with carrying a concealed article not expressly listed as a deadly weapon by the ordinance. Culpability under the carrying a concealed weapon ordinance when the object is not specifically listed as a deadly weapon per se, requires the physical act of defendant to be combined with the requisite criminal intent. See State v. Fuentes, 85 N.M. 274, 511 P.2d 760 (Ct.App. 1973). In such case a criminal intent is required under the offense here charged. The criminal intent required herein is an intent to carry or to use the concealed object as a weapon. We remand for a specific factual finding as to whether defendant possessed the requisite criminal intent at the time of the alleged offense. See NMSA 1978, Crim. P.R. 38(d) (Repl.Pamp. 1980). If the court finds that the defendant did have the requisite intent, this conviction is affirmed. If not, the conviction is reversed and the cause remanded to the trial court to set aside defendant's judgment and sentence. IT IS SO ORDERED. WALTERS, C.J., and BIVINS, J., concur. NOTES [1] Albuquerque City Ordinance § 2-8: UNLAWFULLY CARRYING DEADLY WEAPONS. A. Unlawfully carrying a deadly weapon consists of carrying a deadly weapon concealed in a manner making it not readily visible on the person or in close proximity thereto, so that the weapon is readily accessible for use; except: 1. In the person's residence or on real property belonging to him as owner, lessee, tenant or licensee; or 2. In a private automobile or other private means of conveyance for the lawful protection of his person or property, or the person or property of another; or 3. By a peace officer in the lawful discharge of his duties; or 4. On a target range, as authorized by law. B. "Deadly weapon," in this section means any firearm or any weapon which is capable of producing death or great bodily harm, including but not restricted to, any type of dagger, metallic knuckles, switchblade, poniard, dirk knife, sword cane, sharp pointed cane or rod, slingshot, bludgeon, knum chucks, straight razor, or slapper. C. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm. [2] See also NMSA 1978, § 30-1-12(B) (defining "deadly weapon"); NMSA 1978, § 30-7-2 (unlawful carrying of a deadly weapon).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615162/	668 P.2d 1150 (1983) Lloyd James KAY, Appellant, v. The STATE of Oklahoma, Appellee. No. F-81-756. Court of Criminal Appeals of Oklahoma. August 16, 1983. D.D. Hayes, Muskogee, for appellant. Jan Eric Cartwright, Atty. Gen., Dena L. Bates, Asst. Atty. Gen., Oklahoma City, for appellee. 1151 OPINION BRETT, Judge: The appellant, Lloyd James Kay, was charged with Unlawful Cultivation of Marijuana and Unlawful Possession of Marijuana with Intent to Distribute in violation of 63 Ohio St. 1971, §§ 2-509(1) and 2-401 B(2) in Case No. CRF-80-494. The appellant, represented by counsel, waived a jury trial and was tried in the District Court of Muskogee County before the Honorable William H. Bliss. The trial court found the appellant guilty on both counts and sentenced him to five (5) years' imprisonment on each count, to run concurrently, and further ordered him to pay a fine of ten thousand dollars ($10,000). From this judgment and sentence, the appellant has perfected his appeal to this Court. After a preliminary hearing, the appellant and the State entered into a written stipulation of the following facts. At approximately 5:00 p.m. on October 24, 1980, Richard Slader, a police officer for the Muskogee Police Department, received a telephone call from a confidential informant that a barn on and a field near the appellant's premises contained marijuana. Upon receipt of this information, Officer Slader prepared an affidavit and obtained a search warrant for the Kay premises. Since the Kay farm was located approximately five miles outside the city limits of Muskogee, Officer Slader contacted Gary Rogers, a member of the Oklahoma Highway Patrol, to assist in the execution of the warrant. Rogers, another highway patrolman and several Muskogee City Police officers, including Officer Slader, went to the appellant's farm. At approximately 9:00 p.m. on the same evening, the officers arrived at the appellant's farm and Rogers handed him the search warrant. The other officers proceeded to search the premises. The officers found a considerable amount of marijuana in the barn on the appellant's premises and even more marijuana growing in a field near the Kay farm. Officer Slader testified that he searched the barn and field, signed the return on the warrant and took charge of all the evidence, delivering it to the crime lab. In his sole assignment of error, the appellant contends that the trial court erred by overruling his motion to suppress the evidence obtained as a result of the search. The appellant argues that the officers did not follow several statutorily required procedures for executing a search warrant, and therefore the evidence obtained with that warrant should have been suppressed. First, the appellant maintains that the search warrant did not have a directive which would specifically include highway patrolmen, therefor Patrolman Rogers could not serve the warrant. That warrant contains the following directive: To the Sheriff of Muskogee County or any Police Officer in the State of Oklahoma. All search warrants must substantially comply with the form provided in 22 Ohio St. 1981, § 1226 which contains the following directive: "to any Sheriff, policeman or law enforcement officer in the County of ____." In addition, 22 Ohio St. 1981, § 1227, provides that: A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution. The question raised in the appellant's assignment of error is whether Patrolman Rogers had the authority to serve the warrant. Title 74 Ohio St. 1981, § 149 authorizes officers of the State Highway Patrol to exercise the power of search and seizure. However, this Court interpreted that section, 1152 which has remained unchanged since its enactment in 1939, in Mitchell v. State, 74 Okla. Crim. 416, 127 P.2d 211 (1942). In Mitchell, the search warrant read as follows: To any sheriff, constable, marshal or policeman in the County of Pontotoc, and any peace officer in Pontotoc County, Oklahoma, Greeting: Three investigators for the Department of Public Safety served the search warrant in Mitchell. As stated in Mitchell: [T]his Court intends to give full effect to the legislative enactment conferring the right of search and seizure on state investigators and highway patrolmen in certain instances, but it will not by inference extend the right of an investigator or patrolman to make such search and seizure where the warrant is not specifically directed to them. Id., at 213. The search warrant in the instant case was not specifically directed to any highway patrolmen. Therefore, Patrolman Rogers did not have the authority to serve the warrant. However, this Court did include an exception to this rule which is similar to 22 Ohio St. 1981, § 1227. In Mitchell, this Court stated that a highway patrolman could assist in the search is an officer of the county to whom the writ was directed was present. Thus Patrolman Rogers could serve the warrant if he assisted the Sheriff of Muskogee County or any police officer authorized to conduct a search of the Kay farm. This leads to the appellant's next argument which is that the Muskogee police officers did not have the authority to conduct a search and seizure outside the city limits of Muskogee. In Graham v. State, 560 P.2d 200 (Okl.Cr. 1977), this Court stated that exceptions "to the general rule that a police officer's authority cannot extend beyond his jurisdiction," could be created either by statute or caselaw. This Court recognized such an exception in the recent case of Guthrie v. State, 668 P.2d 1147 (Okl.Cr. 1983), in which we held that a municipal police officer may properly serve a warrant anywhere in the county when directed to do so in the search warrant. Therefore, the police officers, in the instant case, had the authority to conduct the search and Patrolman Rogers, who assisted them, could properly serve the warrant based on the language of 22 Ohio St. 1981, § 1227. See also, 11 O.S.Supp. 1982, § 28-114. The appellant's final contention is that the magistrate improperly inserted a direction that the warrant could be served at any time of the day or night. Relying on 22 Ohio St. 1981, § 1230. The appellant argues that the affidavit did not indicate that the marijuana would be quickly destroyed, moved or concealed and therefore, the judge could only direct the officers to serve the warrant during the daytime. However, the likelihood that the appellant could destroy, move or conceal an unknown quantity of marijuana before the following morning is great enough that the judge did not abuse his discretion in so directing. For the above and foregoing reasons, the judgment and sentence of the trial court is hereby AFFIRMED. BUSSEY, P.J., and CORNISH, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1878445/	181 B.R. 195 (1995) In re SACRED HEART HOSPITAL OF NORRISTOWN, Debtor. SACRED HEART HOSPITAL OF NORRISTOWN, Plaintiff, and The Official Committee of Unsecured Creditors of Sacred Heart Hospital of Norristown, Intervening Plaintiff, v. INDEPENDENCE BLUE CROSS, Defendant. Bankruptcy No. 94-13275DAS. Adv. No. 95-0035DAS. United States Bankruptcy Court, E.D. Pennsylvania. April 19, 1995. 196 Vincent J. Marriott, III, Matthew M. Strickler, Ballard Spahr Andrews & Ingersoll, Philadelphia, PA, special counsel for debtor. Eric Kraeutler, Morgan, Lewis & Bockius, Philadelphia, PA, for defendant. Neal D. Colton, Dechert Price & Rhoads, Philadelphia, PA, for Creditors' Committee. Robert Lapowsky, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, PA, for AllMed Financial Corp. John J. Koresko, Koresko & Noonan, Norristown, PA, for certain former employees of debtor. Claudia Z. Springer, Duane Morris & Heckscher, Philadelphia, PA, for Mun. Bonds Investors Ins. Co. J. Gregg Miller, Pepper, Hamilton & Sheetz, Philadelphia, PA, for Midlantic Bank. Frederic Baker, Asst. U.S. Trustee, Philadelphia, PA. OPINION DAVID A. SCHOLL, Chief Judge. A. INTRODUCTION Presently before the court are two motions arising out of the above-captioned adversary proceeding. The first is the motion of the Plaintiff/Debtor, SACRED HEART HOSPITAL OF NORRISTOWN ("the Debtor"), for summary judgment in its favor on the claims it brought against INDEPENDENCE BLUE CROSS, ("IBC"), the Defendant ("the S/J Motion"). In the Complaint, the Debtor essentially seeks a determination that it is 197 entitled to an upward adjustment in the amount of capital cost reimbursements that it was previously paid by IBC under each of the Hospital Agreements between the parties that were in effect prior to July 1, 1992. The Debtor claims that adjustments are mandated by the prior Hospital Agreements and have become due as a result of the loss it realized upon the sale of its hospital in the course of this bankruptcy case. The second is a Motion of IBC for a determination that the instant proceeding is non-core; a request that the proceeding be stayed pending arbitration pursuant to the arbitration clause in the 1992 Hospital Agreement; or, as a secondary alternative, that the Complaint be dismissed with prejudice for failing to state a claim upon which relief can be granted under Federal Rule of Bankruptcy Procedure ("F.R.B.P.") 7012(b), incorporating Federal Rule of Civil Procedure ("F.R.Civ.P.") 12(b)(6) (the Stay/Dismissal Motion or "the S/D Motion"). At the outset, we note our reluctance to either grant the S/J Motion or dismiss the proceeding pursuant to the S/D Motion. We are then left with either relegating the disposition of the merits to a jury trial in the District Court, or arbitration. Given this alternative, we exercise our discretion to initially allow arbitration to take place for a discrete four-month period, after which we will monitor the arbitration process and may reconsider this referral. In making this disposition, we need not decide whether this proceeding is core, although we would be inclined to characterize it as core, nor make any definitive pronouncements on the merits. B. FACTUAL AND PROCEDURAL HISTORY Prior to commencing its bankruptcy case, the Debtor operated an acute-care non-profit hospital facility ("the Hospital") located in Norristown, Pennsylvania. On May 25, 1994, approximately one week after ceasing operations at the Hospital, the Debtor filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in this court. As we previously observed in two prior Opinions of this court arising from this case, reported at 177 B.R. 16, 18-19 (1995) (motion of ex-employees to file a class proof of claim denied); and 175 B.R. 543, 546-48 (1994) (home health care service provider denied an assertion of an alleged trust against certain accounts receivable), the Debtor's Chapter 11 case has been in a liquidation mode from its inception. In furtherance of the liquidation process, the Debtor, in October, 1994, sold the Hospital, its principal asset, to Montgomery County for what was, at that time, a surprisingly high bid of $7.05 million, as the result of an auction sale conducted under the supervision of this court. It is this sale or, more appropriately, certain alleged ramifications of this sale, which underlie the Debtor's claims in this proceeding. We should also note that a hearing to consider confirmation of the Debtor's Amended Plan of Reorganization was conducted on April 12, 1995. Objections of a single dissenting creditor, AllMed Financial Corporation, are to be addressed in Briefs to be filed by May 10, 1995. In the Complaint in this proceeding, filed on January 24, 1995, the Debtor alleged that, despite the attractiveness of the sale price at that time, it experienced a book loss in the approximate amount of $12 million on the sale of the Hospital, because the Hospital's value was listed on its books as $19 million. Further, the Debtor alleged that the capital cost reimbursements which were previously paid to it by IBC under each of the prior Hospital Agreements must be adjusted, according to the terms of those agreements, to take into account the loss realized by it in the sale. More specifically, the Debtor asserted that, as a result of the 1994 sale of the Hospital, it was entitled to payment of additional capital cost reimbursements for each of the years that the Agreements were in effect. On February 15, 1995, the Debtor filed a Motion to bifurcate the trial of this proceeding ("the Bifurcation Motion"). On that same date, the Official Committee of Unsecured Creditors of the Debtor ("the Committee") filed a motion to intervene in this proceeding. On February 23, 1995, after an expedited hearing on the Bifurcation Motion, as requested by the Debtor, and after a colloquy with the parties, we issued an Interim Order directing the Debtor to file and serve a planned motion for summary judgement 198 on its claims, and directing IBC to file a similarly-planned motion to dismiss the Complaint, on or before March 3, 1995. Per this Order and a later extension, the parties were given until March 22, 1995, to file appropriate supporting and responsive briefs relevant to the anticipated Motions. By Order entered on February 24, 1995, the court granted the Committee's motion to intervene. See Phar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d 1228 (3d Cir.1994) (creditors' committee can intervene in either a core or non-core proceeding as of right). We also scheduled a status hearing on this proceeding for April 5, 1995. By our Order dated March 28, 1995, the parties were informed that we would entertain oral argument on the pending Motions at this status hearing. On February 17, 1995, IBC filed a Motion seeking withdrawal of the reference of this proceeding to this Bankruptcy Court. IBC's motion is pending in the District Court. On February 24, 1995, we denied IBC's request for a stay of further proceedings pending a decision of the District Court on the withdrawal of reference motion. See, e.g., Business Communications, Inc. v. Freeman, 129 B.R. 165, 166 (N.D.Ill.1991); In re Adelphi Institute, Inc., 112 B.R. 534, 538 (S.D.N.Y. 1990); and City Fire Equipment Co. v. Ansul Fire Protection Wormald U.S., Inc., 125 B.R. 645, 649-50 (N.D.Ala.1989) (en banc) (bankruptcy courts should supervise a bankruptcy proceeding in which a jury trial is demanded until the time of trial). At the argument on April 5, 1995, the parties informed the court that the withdrawal of reference motion had been scheduled for a hearing before the Honorable J. William Ditter, Jr., of the District Court, on April 26, 1995. The S/J Motion and the S/D Motion were filed and briefed by March 22, 1995. On March 3, 1995, IBC also made a formal demand for a jury trial. In the course of the argument on April 5, 1995, we indicated our probable intention to refer the substantive matters in issue to arbitration. The Debtor countered by contending that the arbitration process was likely to be complicated by the intervention of other medical services providers who would wish to resolve similar issues in the context of this same arbitration process. Despite failing to request or obtain permission to present any further briefs, the Debtor saw fit to submit a lengthy letter-brief to the court dated April 6, 1995, arguing that the absence of material disputed facts justified our granting the S/J Motion. IBC, while pointing out the impropriety of this submission, also presented a short letter-brief of April 11, 1995, containing a substantive reply. We were obliged to point out to the parties, for reasons which are exemplified by the disorder in the submission process effected by these letters, that such submissions were inappropriate, see In re Jungkurth, 74 B.R. 323, 325-26 (Bankr.E.D.Pa.1987), aff'd sub nom. Jungkurth v. Eastern Financial Services, Inc., 87 B.R. 333 (1988), and that any further like submissions would be met with sanctions. C. DISCUSSION 1. TESTIMONY REGARDING THE PARTIES' INTENTIONS AND ASSUMPTIONS IN REFERENCE TO THE DEBTOR'S RIGHTS UNDER THEIR SUCCESSIVE HOSPITAL CONTRACTS IS NECESSARY TO RESOLVE THE SUBSTANTIVE ISSUES PRESENTED IN THIS PROCEEDING, PRECLUDING THE ENTRY OF SUMMARY JUDGMENT IN FAVOR OF THE DEBTOR OR DISMISSAL OF THE COMPLAINT IN THIS PROCEEDING AT THIS JUNCTURE. Summary judgment is a procedure established to permit prompt disposition of actions in which there is no genuine issue of material fact. See, e.g., In re Summit Airlines, Inc., 160 B.R. 911, 916 (Bankr.E.D.Pa.1993). Pursuant to F.R.Civ.P. 56(c), applicable here pursuant to F.R.B.P. 7056, summary judgment is proper only when the record before the court, including any relevant "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits," shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. 199 On a motion for summary judgment, the court's role is to determine "whether there is a genuine issue [of fact to be determined at] trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In this regard, only facts which may affect the outcome of the case are considered "material." Id. at 255, 106 S.Ct. at 2514. The moving party has the initial burden of demonstrating the absence of any genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Additionally, the evidence in the record is to be viewed in the light most favorable to the non-moving party. Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). However, if the nonmoving party fails to adduce sufficient evidence in connection with an essential element of the case for which it bears the burden of proof at trial, then the moving party is entitled to judgment in its favor as a matter of law. See, e.g., Celotex, supra, 477 U.S. at 322, 106 S.Ct. at 2552; J.F. Feeser, Inc. v. Serv-a-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991); and In re After Six, Inc., 1995 WL 108209, slip op. at 3-4 (Bankr.E.D.Pa. March 7, 1995). In the matter sub judice, the Debtor contends that each of the Hospital Agreements in effect from 1971 through June 30, 1992 (collectively the "Prior Agreements"), required IBC to reimburse it for the "reasonable cost" of treatment for IBC subscribers and included a component for the depreciation of capital assets used in providing patient care. The Debtor further asserts that the Prior Agreements provided for adjustment to be made to the reimbursable capital costs paid in prior years to take into account the gain or loss realized upon the sale of depreciable assets in a subsequent period. The Debtor adds that, while the Agreements in effect prior to 1982 referenced Medicare principles as a part of the general terms of reimbursement, the Agreements in effect between 1982 and June 30, 1992, specifically provided for an adjustment in costs in the same manner as provided by the Medicare program. In this regard, the Debtor cites 42 C.F.R. § 413.134(f)(1) and (3), which in pertinent part state as follows: (1) General. Depreciable assets may be disposed of through sale, scrapping, trade-in, exchange, demolition, abandonment, condemnation, fire, theft, or other casualty. If disposal of a depreciable asset results in a gain or loss, an adjustment is necessary in the providers allowable cost. . . . The treatment of the gain or loss depends upon the manner of disposition of the asset, as specified in paragraphs (f)(2) through (6) of this section. . . . The gain or loss . . . has no retroactive effect on a proprietary provider's equity capital for years prior to the year of disposition. . . . . . (3) Sale within 1 year after termination. Gains and losses realized from a bona fide sale of depreciable assets within 1 year immediately following the date on which the provider terminates participation in the Medicare program are also included in the determination of allowable cost, in accordance with the procedure specified in paragraph (f)(2) of this section. The Debtor argues that, since it is undisputed that it sold the Hospital in October 1994, within one year after it terminated participation in the Medicare program, the depreciation loss it experienced as a result of the sale must be included in the determination of allowable costs payable by IBC for the services that the Debtor provided to IBC subscribers under each of the Prior Agreements. Accordingly, the Debtor contends that it is entitled to have the amounts previously paid under the Prior Agreements adjusted, in accordance with Medicare principles, to include additional depreciation expenses which it alleges became due only after the sale of the Hospital in 1994. We must therefore consider whether IBC has successfully demonstrated the existence of any questions of material fact which would preclude summary disposition of the matter in favor of the Debtor. See Summit Airlines, supra, 160 B.R. at 917. In fulfilling this obligation, IBC must do more than simply show that there is some "metaphysical doubt" as to the material facts. In re H.R. Hindle & Co., Inc., 149 B.R. 775, 783 (Bankr. E.D.Pa.1993), citing Mashushita Electric Industrial 200 Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The court concludes that IBC has met this burden. In response to the Debtor's Motion, IBC posits that, at the time that the sale of the Hospital took place, the Agreements pursuant to which the Debtor asserts its claim had been superseded by a new Hospital Agreement which took effect on or about July 1, 1992. For example, the 1990 Hospital Agreement provides, in pertinent part, that "[t]his Agreement shall commence on July 1, 1992 and shall continue in effect for three (3) years thereafter until June 30, 1995." As noted by IBC, compensation under the 1992 Agreement was to be paid on a "Prospective Per Diem or Per Charge Basis, and that Outpatient Covered Services [were to] be paid on a Prospective Percentage of Charges basis," as described in Exhibit A to the 1992 Agreement. IBC points out that the 1992 Agreement did not provide for compensation based on the reasonable cost reimbursement principles of the Prior Agreements or the Medicare program. The dichotomy between the Debtor's claims and the terms of the 1992 Agreement raises questions of material fact as to whether, in entering into the 1992 Agreement, IBC intended to continue to be responsible for any outstanding obligations to the Debtor arising under the Prior Agreements. The highly subjective, fact specific nature of any "intent inquiry" makes the resolution of such a question particularly unsuitable for determination on a motion for summary judgment. See, e.g., Pine Top Ins. Co. v. Bank of America Nat'l Trust & Savings Ass'n, 969 F.2d 321, 352 (7th Cir.1992); and In re Kelley, 151 B.R. 790, 791 (Bankr.S.D.Tex.1992). The role of the court on a motion for summary judgment is not to weigh the evidence and determine the truth of the matters presented, but merely to determine whether there exists any genuine factual issues which must be tried. In light of the overriding significance of the parties' intentions in entering into this series of contracts, we find that the issues raised cannot properly be resolved in the context of the S/J Motion. Accordingly, the court must deny the S/J Motion. As a second alternative to its request that the parties' dispute must be submitted to arbitration, IBC argues that this matter may be resolved substantively in its favor by our granting the motion to dismiss prong of its S/D Motion. However, relative to even the burden of a party seeking the entry of summary judgment in its favor, the burden on a party seeking dismissal pursuant to F.R.Civ.P. 12(b)(6) is rigorous. It is black-letter law that a motion to dismiss "`is viewed with disfavor and is rarely granted' and that such relief is `to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" In re Nutri/System, Inc., 1994 WL 96963, slip op. at 2 (Bankr.E.D.Pa. March 23, 1994), quoting 5A C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE, § 1357, at 598, 604 (1969). See also, e.g., In re TM Carlton House Partners, Ltd., 110 B.R. 185, 187 (Bankr.E.D.Pa.1990); and In re Dinkins, 79 B.R. 253, 257 (Bankr. E.D.Pa.1987). The Third Circuit Court of Appeals has stated that, when considering a F.R.Civ.P. 12(b)(6) motion, a court must accept all allegations in the complaint, and all reasonable inferences that can be drawn therefrom, as true, and view them in the light most favorable to the non-moving party. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989); and Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 106 S. Ct. 267, 88 L. Ed. 2d 274 (1985). A complaint should not be dismissed for failing to state claim unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of a claim that would entitle the plaintiff to relief. See City of Philadelphia v. Lead Industries Ass'n, 994 F.2d 112 (3d Cir.1993), citing Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The strongest argument levelled by IBC in favor of a summary disposition in its favor is based upon § 22.8 of the 1992 Hospital 201 Agreement, the so-called "integration clause," which states as follows: 22.8 Entire Agreement This Agreement and amendments thereto, as added from time to time pursuant to the terms of this Agreement, constitute the entire understanding and agreement of the parties hereto and supersedes any prior written or oral agreement pertaining to the subject matter hereof. In certain contexts, it has been held that the presence of a provision such as the foregoing signifies the parties' intention that the writing containing that provision is the final embodiment of the parties' agreement. See, e.g., Caplan v. Oxford Finance Cos., Inc., 1988 WL 111995 (E.D.Pa. Oct. 21, 1988). Also noted by IBC in this regard is the general principle that, where a written contract is unambiguous on its face, the agreement "`must be held to express all of the negotiations, conversations and agreements made prior to its execution and neither oral testimony, . . . nor prior written agreements, . . . or other writings are admissible to explain or vary the terms of the contract.'" Synthes (U.S.A.) v. Shimer, 1994 WL 361382 (E.D.Pa. July 12, 1994), quoting McGuire v. Schneider, Inc., 368 Pa.Super. 344, 349, 534 A.2d 115, 117-18 (1987). Thus, IBC argues, by force of a rule of substantive law, e.g., the parol evidence rule, the parties are precluded from even arguing that any other terms not consistent with those found in the 1992 Hospital Agreement are valid. See, id.; Caplan, supra, slip op. at 1; Beckman v. Vassall-Dillworth Lincoln-Mercury, Inc., 321 Pa.Super. 428, 438, 468 A.2d 784, 789 (1983); and Pisiechko v. Diaddorio, 230 Pa.Super. 295, 326 A.2d 608 (1974). The foregoing notwithstanding, however, we find that the Debtor has alleged facts which, if true, might at least establish that the parties had engaged in a course of conduct under the 1992 Hospital Agreement pursuant to which IBC continued to recognize certain payment obligations to the Debtor for services rendered to IBC subscribers prior to the 1992 Agreement. In particular, the Debtor alleges that IBC continued to require it to file cost reports for prior years, and has audited its reports for prior years. IBC admitted that it had not completed its review of the Debtor's cost reports for the period ending June, 1992. This course of conduct, if proven, would possibly provide an inroad for the Debtor to establish that IBC has at least some continuing liability for the reimbursement of reasonable cost expenses relating to those services under the 1992 Agreement. Given this possibility, IBC has failed to demonstrate that the Debtor can prove no set of facts that would entitle it to judgment in its favor. Accordingly, the motion to dismiss must be denied, and we are compelled to conclude that testimony regarding the parties' intentions and assumptions regarding the Debtor's rights under all contracts in the series of Agreements between the parties is necessary to resolve their dispute. Thus, this court cannot decide the parties' disputes on the basis of either party's substantive dispositive motion. To finally decide this proceeding, reach this end, a factual hearing will be necessary in some forum. Since it appears unlikely that this court could represent that forum, see pages 203-04 infra, we are faced with the choice of sending the parties to the District Court for a jury trial or to arbitration to resolve this matter. It is not a difficult choice to conclude that, initially at least, the parties should be relegated to the potentially swifter and cheaper alternative of arbitration. 2. THE STRONG FEDERAL POLICY FAVORING ARBITRATION OF DISPUTES WHERE SAME IS CONTRACTUALLY AGREED UPON SHOULD PREVAIL HERE, AT LEAST ON A TEMPORARY BASIS, IN LIGHT OF OUR DOUBTS AS TO WHETHER THIS PROCEEDING IS CORE OR NON-CORE AND AS TO WHETHER THIS COURT COULD CONDUCT THE NECESSARY JURY TRIAL. In Zimmerman v. Continental Airlines, Inc., 712 F.2d 55, 57-59 (3d Cir.1983), cert. denied, 464 U.S. 1038, 104 S. Ct. 699, 79 L. Ed. 2d 165 (1984), the court weighed the strong federal policy in favor of enforcement of agreements among contracting parties to arbitrate certain disputes against the broad 202 jurisdictional grant provided in the Bankruptcy Code to center all litigation relevant to bankruptcy cases in the bankruptcy courts. Although Zimmerman involved a straight-forward accounts receivable proceeding (and therefore would, under the Code amendments adopted in 1984, have probably constituted a noncore proceeding), the court there had little difficulty in concluding that the special cause of expedition of bankruptcy administration by courts created for that purpose prevailed over the policy in favor of absolute enforceability of arbitration clauses, at least where the bankruptcy court exercised its "sound discretion" against deferral to arbitration. Id. However, the court analyzed the issue somewhat differently in Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149, 1155-57 (3d Cir.1989). Comparing the contemporary legal landscape to that which the court found in existence at the time of the Zimmerman decision, the Hays & Co. court found that the national policy favoring arbitration had become stronger, while the 1984 amendments to the Bankruptcy Code triggered by the decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982), had weakened the policy of centering all matters related to bankruptcy cases in the bankruptcy courts. The court therefore concluded that, in noncore proceedings, a creation of the 1984 Bankruptcy Code amendments in which district courts alone, rather than the bankruptcy courts, were empowered to enter final orders unless the parties consented to allow the bankruptcy courts to do so, the bankruptcy courts had very limited discretion to refuse to enforce valid arbitration clauses. The pronouncements in Hays & Co. did not appear to extend, in full force and effect, to core proceedings. 885 F.2d at 1155-56. Therefore, this court has concluded that, as to core proceedings, this court may exercise its full panoply of discretion, as authorized in Zimmerman, in determining whether to refer a proceeding before it to arbitration. See In re Glen Eagle Square, Inc., 1991 WL 71782 (Bankr.E.D.Pa. May 1, 1991), aff'd, 132 B.R. 115 (E.D.Pa.1991). In fact, we stated in Glen Eagle, slip op. at 1, citing In re FRG, 115 B.R. 72, 74 (E.D.Pa. 1990), that "[a]s to core proceedings, deferral should not be the norm, . . . and relief to allow arbitration to go forward should be granted only if the balance of hardships tips in favor of the party seeking arbitration." The different analysis utilized to determine whether deferral to arbitration is appropriate depending upon whether a proceeding is core or noncore in nature requires this court to address the issue of whether this proceeding is in fact core or noncore. In Beard v. Braunstein, 914 F.2d 434, 443-45 (3d Cir.1990), the court held that a proceeding based on hotly-disputed claims of breaches of a pre-petition contract which were partly pre-petition and partly post-petition was noncore. Since Beard does not engage in an analysis of the bankruptcy policy of centering litigation in the bankruptcy court forum, this court has been unwilling to apply the analysis of Beard broadly when such policies are in issue. We have held, for instance, that a debtor's "garden variety" proceedings to collect liquidated pre-petition accounts receivable are core proceedings. See In re Lila, Inc., 133 B.R. 588, 590 (Bankr.E.D.Pa.1991). Accord, In re Leco Enterprises, Inc., 125 B.R. 385, 387-91 (S.D.N.Y.1991); and In re Allegheny, Inc., 68 B.R. 183, 189-91 (Bankr.W.D.Pa.1986). We have also consistently held that proceedings which raise claims of post-petition breaches of pre-petition contracts are core in nature. See, e.g., In re 222 Liberty Associates, 110 B.R. 196, 199 (Bankr.E.D.Pa.1990); and In re Jackson, 90 B.R. 126, 129-30 (Bankr. E.D.Pa.1988), aff'd, 118 B.R. 243 (E.D.Pa. 1990). Most other courts addressing this issue, both in this jurisdiction, In re Nutri/System, Inc., 159 B.R. 725, 726 (E.D.Pa. 1993); and Valley Forge Plaza Associates v. Fireman's Fund Ins. Co., 107 B.R. 514, 517-18 (E.D.Pa.1989), and in other jurisdictions, see, e.g., In re Arnold Print Works, Inc., 815 F.2d 165, 168-72 (1st Cir.1987); and Hughes-Bechtol, Inc. v. Construction Management, Inc., 144 B.R. 755, 757-58 (S.D.Ohio 1992), have concurred. Cf. In re S.G. Phillips Constructors, Inc., 45 F.3d 702, 705-06 (2d Cir.1995) (where creditor files a 203 proof of claim, core status is established, irrespective of nature of claims involved, citing Langenkamp v. Culp, 498 U.S. 42, 44, 111 S. Ct. 330, 331, 112 L. Ed. 2d 343 (1990)); In re Harris Pine Mills, 44 F.3d 1431, 1435-38 (9th Cir.1995) (claim arising post-petition, out of a post-petition sale of debtor's assets, is core); and In re Meyertech Corp., 831 F.2d 410, 414-18 (3d Cir.1987) (counterclaim to a creditor's proof of claim is core, despite raising underlying substantive state law issues). But see In re National Enterprises, Inc., 128 B.R. 956, 961 (E.D.Va.1991). The parties do not dispute that the terms of the 1992 Hospital Agreement require them to submit disputes arising under that Agreement to binding arbitration. In pertinent part, § 16.1 of the 1992 Agreement states as follows: 16.1 Informal Settlement of Disputes. Any dispute or question arising between the parties hereto and involving the application, interpretation, or performance of this Agreement, shall be settled, if possible, by amicable and informal negotiations. However, if any such issue(s) cannot be resolved in this fashion, said issue(s) shall be submitted to binding arbitration, following the procedures set forth below. By letter dated February 15, 1995, IBC made a demand for arbitration of the claims raised in this proceeding by the Debtor. With respect to selection of the arbitration panel, the 1992 Agreement unambiguously provides, at § 16.3, as follows: 16.3 Selection of Arbitration Panel The question(s) or dispute(s) shall be referred to arbitration before a panel composed of one arbitrator designated by Hospital, one arbitrator designated by Blue Cross, and a third person chosen by the two thus designated within thirty (30) days of their appointment. If the two designated arbitrators cannot mutually agree upon a third person within forty-five (45) days, either of the two arbitrators may request the American Arbitration Association ["AAA"] to provide a panel or panels from which the third arbitrator shall be selected by the two designated arbitrators in accordance with the rules of the AAA. The Debtor argues that arbitration of its claims raised in this proceeding is not possible because the mechanism for arbitrating claims under the Prior Agreements, under which it bases its claims in part, cannot be accomplished. These Agreements also unequivocally provide for arbitration of disputes, but state that the arbitration is to be selected from a list prepared by a Contract Administration Committee, which no longer exists and therefore can no longer present any such list. However, noting, per IBC's counter-argument, that 9 U.S.C. § 5 permits a court to appoint an arbitrator in the case of an arbitrator vacancy, and further noting the underlying disputed issue as to whether the Debtor can assert rights under any pre-1992 Agreement in any event, it appears to us to be logical for this court to decree that the method for selecting arbitrators under §§ 16.1 and 16.3 of the 1992 Hospital Agreement should control. We will ultimately so order. One other issue bears mention. IBC has demanded a jury trial should this matter have to proceed to disposition in court. The Debtor has not identified any grounds for striking IBC's jury demand, thereby causing us to assume that same is timely and valid. It is clear that, if this proceeding were determined to be noncore, the necessary jury trial would have to be conducted in the District Court. Beard, supra, 914 F.2d at 442-43. Accord, In re Orion Pictures Corp., 4 F.3d 1095, 1101 (2d Cir.1993). With respect to this court's power to conduct jury trials in core proceedings, we begin by noting that, prior to the enactment of the provision of the Bankruptcy Reform Act of 1994 ("the BRA") relative to conduct of jury trials by bankruptcy judges, 28 U.S.C. § 157(e), it was unclear whether bankruptcy judges could conduct a jury trials. However, a substantial majority of Courts of Appeals held that they could not do so. See In re Clay, 35 F.3d 190, 196-98 (5th Cir.1994); In re Stansbury Poplar Place, Inc., 13 F.3d 122, 127-28 (4th Cir.1993); In re Grabill Corporation, 967 F.2d 1152, 1153-55 (7th Cir.1992); In re Baker & Getty Financial Services, Inc., 954 F.2d 1169, 1173 (6th Cir.1992); In re Kaiser Steel Corp., 911 F.2d 380, 391-92 204 (10th Cir.1990); In re United Missouri Bank, N.A., 901 F.2d 1449, 1456-57 (8th Cir. 1990). Contra, In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.1989), vacated, 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 126 (1991); In re Reading China & Glass Co. Inc., 126 B.R. 35, 37 (E.D.Pa.1991); and In re Jackson, 118 B.R. 243, 253 (E.D.Pa.1990). Upon the enactment of 28 U.S.C. § 157(e), effective October 22, 1994, it has been established that bankruptcy judges can conduct jury trials, at least in core proceedings, but only "if specially designated to exercise such jurisdiction by the district court and with the express consent of all the parties." Neither this bankruptcy judge nor any other judge in this district has been so specially designated and, even if there were such a designation, it is uncertain whether IBC would consent to our conducting the necessary jury trial. The Debtor nevertheless argues that (1) if 28 U.S.C. § 157(e) were applied only to adversary proceedings arising in cases filed after October 22, 1994, but see After Six, supra, slip op. at 5 (this court assumes that 28 U.S.C. § 157(e) applies to a proceeding filed after October 22, 1994, even though the underlying bankruptcy case in issue was filed prior to that date); and (2) if this court adhered to the minority view that it could conduct a jury trial in a core proceeding under the pertinent legal authority as it existed prior to the enactment of the BRA; and (3) if this proceeding were unmistakably designated as core; and (4) if the court then exercised its discretion not to defer to contractually-mandated arbitration in any event, then (and only then), this court could conduct the necessary jury trial. To state the weight and number of the contingencies which would have to be resolved in the Debtor's favor to allow us to conduct a jury trial is itself sufficient to indicate how we must exercise our discretion. Given the wasted time and expense which would result if we conducted a jury trial and then were determined to be incorrect in doing so on any of the four contingent bases should an (inevitable) appeal follow, we would be almost certain to stay any order so holding even if we were bold enough to enter it, thus resulting in further delay. Compare Jackson, supra (court stayed its hand in conducting the jury trial which it deemed it was empowered to do pending appeal, and the case settled after a two-year appeal process). We therefore conclude that it would represent an abuse of discretion to conduct a jury trial of this proceeding in this court. Since the only real alternative to a District Court jury trial is the relegation of the parties' dispute to arbitration, we easily conclude that it is an appropriate exercise of our discretion to defer the decision-making process to arbitration, irrespective of whether this proceeding is core (as we suspect it is) or noncore. The policy of centering litigation in this court, which militates against both a narrow scope of core proceedings and a broad policy of deferral to arbitration, cannot be served here. We also note that the instant proceeding raises difficult issues of fact regarding intentions of the parties in the context of reimbursements due to hospitals by service providers, with which arbitrators selected may have far more expertise than this court. This context is similar to that of the Medicare reimbursement field, lack of expertise in which prompted us to defer to an administrative tribunal on the basis of primary jurisdiction in In re St. Mary Hospital, 125 B.R. 422, 427-32 (Bankr.E.D.Pa.1991). In recognition of the argument of the Debtor and the Committee on April 5, 1995, that the arbitration process may become convoluted by the intervention of other medical providers, and subject the issue at hand to even greater delay in the decision-making process than the prospect of a District Court jury trial, we will continue to exercise considerable oversight over the arbitration process. See In re TRE Scalini, Inc., 178 B.R. 237, 240 (Bankr.C.D.Cal.1995) ("a six-month time frame is presumptively the appropriate timing for completing an arbitration pursuant to an arbitration agreement. If an arbitration is not completed in that time, the Court has the discretion to vacate the stay pending arbitration."); and St. Mary Hospital, supra, 125 B.R. at 432-33 (court deferred to the administrative process in issue for only 120 205 days; it is to be noted that, after several consensual continuances, that dispute was amicably and reasonably expeditiously resolved). We will therefore enter an Order[1] staying any further judicial actions in this proceeding for a period of about 120 days, in deference to the arbitration process established in the parties' 1992 Hospital Agreement during that interval. D. CONCLUSION An Order effecting the conclusions reached in this Opinion will be entered. ORDER AND NOW, this 19th day of April, 1995, upon consideration of the Motion of the Plaintiff-Debtor, SACRED HEART HOSPITAL OF NORRISTOWN ("the Debtor"), for Summary Judgment in its favor ("the S/J Motion"), and the Motion of the Defendant, INDEPENDENCE BLUE CROSS ("IBC"), for Determination That Matter Is Non-Core, for Recommendation of Stay of Proceedings or Dismissal of Complaint ("the S/D Motion"), the Briefs supporting same, and the arguments of counsel relevant to same on April 5, 1995, it is hereby ORDERED as follows: 1. The S/J Motion is DENIED. 2. The S/D Motion is GRANTED in part, only as set forth in paragraphs 3 and 4 infra, and DENIED in all other respects. 3. The parties shall forthwith proceed under the arbitration proceeding set forth in §§ 16.1 and 16.3 of the Hospital Agreement of July 1, 1992. 4. All matters in this court in this proceeding shall be stayed, pending a further status hearing scheduled as follows, to which time the court will also continue the Debtor's Motion to bifurcate the trial of this proceeding: WEDNESDAY, AUGUST 16, 1995, at 9:30 A.M. and shall be held in Bankruptcy Courtroom No. 4 (Room 3620), Third Floor, United States Court House, 601 Market Street, Philadelphia, PA 19106. NOTES [1] Since this Order is not, in any respect, a "final order," we may enter it ourselves, as opposed to merely recommending this disposition to the District Court, even if this matter were determined to be a noncore proceeding. See 28 U.S.C. § 157(c)(1); In re Fleet, 103 B.R. 578, 587 n. 5 (E.D.Pa.1989); and After Six, supra, slip op. at *1.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875408/	260 S.W.3d 913 (2008) Thomas TROTTER and Madeleine Trotter, Appellants, v. William DISTLER and Margaret Distler, Respondents. No. ED 90352. Missouri Court of Appeals, Eastern District, Division Five. September 2, 2008. 914 Arthur Muegler, Jr., St. Louis, MO, for appellants. Thomas Plunkert, Leritz, Plunkert & Bruning, St. Louis, MO, for respondents. NANNETTE A. BAKER, Chief Judge. Introduction Thomas Trotter and Madeleine Trotter (Collectively, "Plaintiffs") appeal from a judgment and order of the Circuit Court of St. Louis County dismissing their petition against William Distler and Margaret Distler (Collectively "Defendants") for failure to comply with the court's order. We reverse and remand. Factual and Procedural Background On March 7, 2006, Plaintiffs filed a four-count petition against Defendants. In Plaintiffs' petition, they alleged damages for serious, permanent and disabling injuries to Thomas Trotter's rotator cuff. Defendants filed an answer to the petition. On May 5, 2006, Defendants requested that Plaintiffs prepare and execute a medical authorization form to allow Defendants to obtain medical information about Thomas Trotter. Plaintiffs did not prepare and execute the medical authorization form. On October 11, 2006, Defendants sent a letter to Plaintiffs, requesting Plaintiffs to prepare and sign the medical authorization form. Plaintiffs signed the form, which allowed Defendants to obtain copies of medical records and invoices from a Dr. Martin and St. John's Mercy Medical Center. On January 29, 2007, Defendants sent another request for Plaintiffs to sign a medical authorization directed to Dr. Joseph Kennington. On January 30, 2007, Defendants filed a motion to compel discovery, which was set for a hearing on April 25, 2007. On March 15, 2007, Plaintiffs amended their petition to remove their original claim for personal injury as actual damages. The trial court held a hearing on April 25, 2007 on Defendants' motion to compel and ordered Plaintiffs to execute medical authorization forms supplied by Defendants within 10 days. On May 1, 2007, Plaintiffs executed a medical authorization form supplied by Defendants but with a limitation inserted by Plaintiffs. On May 29, 2007, Defendants filed a motion for sanctions claiming that by inserting the limiting language in the medical authorization form, Plaintiffs had failed to produce as ordered by the court. On June 14, 2007, the trial court heard oral arguments on Defendants' motion for sanctions and sustained the motion. The trial court ordered Plaintiffs to "reimburse [Defendants] $330.00 for failure to provide an executed medical authorization as provided, as ordered." The court further ordered 915 Plaintiffs "to execute said authorization within 5 days." Plaintiffs delivered an executed medical authorization to Defendants on June 15, 2007. However, Plaintiffs did not reimburse Defendants as ordered by the court. On July 26, 2007, Defendants filed a motion to dismiss for Plaintiffs' failure to reimburse Defendants as ordered the court. A hearing was set for August 22, 2007. Plaintiffs failed to appear at the hearing and the court granted the motion to dismiss for Plaintiffs' failure to comply with its June 14, 2007 order. Plaintiffs appealed. Plaintiffs claim five points on appeal. The principal issue on appeal is whether the trial court abused its discretion in granting Defendants' motion to dismiss Plaintiffs' cause of action. Standard of Review A trial court has discretion in the choice of remedies in response to the failure to disclose evidence or witnesses during discovery. Wilkerson v. Prelutsky, 943 S.W.2d 643, 648 (Mo. banc 1997). We may disturb the trial court's discovery sanctions decision only upon a clear showing of abuse of discretion. Zimmer v. Fisher, 171 S.W.3d 76, 79 (Mo.App. E.D. 2005). "Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Wilkerson, 943 S.W.2d at 648 (internal quotation marks omitted) quoting Anglim v. Missouri Pacific R.R., 832 S.W.2d 298, 303 (Mo. banc 1992). We have previously concluded that "[a]ny Rule 61.01 sanction in excess of that which is necessary to accomplish the purposes of discovery may be an abuse of discretion." J.B.C. v. S.H.C., 719 S.W.2d 866, 872 (Mo.App. E.D. 1986). Discussion We will discuss Plaintiffs' third point first because it is dispositive of the present appeal. In their third point, Plaintiffs claim that the trial court abused its discretion in entering the August 22, 2007 sanctions order for the following reasons: Defendants' unverified motion to dismiss did not allege prejudice from Plaintiffs' failure to produce; Defendants did not suffer any prejudice; Defendants offered no evidence of "prejudice" or "contumacious disregard of the courts authority;" the court did not conduct an evidentiary hearing; the court did not make required findings of prejudice and "contumacious disregard for the court's authority"; there was no failure to produce documents to justify the dismissal; and, Defendants' motion was not properly before the trial court since Defendants failed to file a "Certificate of Attempt to Resolve." Plaintiffs argue that Defendants failed to carry their requisite burden of alleging and proving "prejudice" and "contumacious disregard for the court's authority" and as such, the trial court should not have sustained Defendants' motion for sanctions. Additionally, Plaintiffs argue that the trial court should not have entertained Defendants' motions because Defendants failed to file a "Certificate of Attempt to Resolve" before moving for sanctions as required by Local Rule 33.5.[1] 916 Generally, before "imposing sanctions on an errant party, the trial court must first determine whether, in a particular situation, the opposing party was prejudiced." Norber v. Marcotte, 134 S.W.3d 651, 659 (Mo.App. E.D.2004). Additionally, dismissal of an action should be ordered "only in extreme situations showing `a clear record of delay or contumacious conduct' by a party." Foster v. Kohm, 661 S.W.2d 628, 632 (Mo.App. E.D.1983). The burden is on the moving party to prove the allegations of a motion for sanctions for failing to cooperate in discovery matters. Norber, 134 S.W.3d at 659. "The rules of civil procedure are `rules of practice and procedure to promote the orderly administration of justice.' When properly adopted, the rules of court are binding on courts, litigants, and counsel, and it is the court's duty to enforce them." Sitelines, L.L.C. v. Pentstar Corp., 213 S.W.3d 703, 707 (Mo.App. E.D.2007) (internal citations omitted). As a preliminary matter, the trial court dismissed Plaintiffs' action for failure to reimburse Defendants $330.00 as ordered by the court. At the time of the dismissal, Plaintiffs had cured the discovery defect that led to the $330.00 sanction: Plaintiffs had executed the medical authorization form as provided and within the prescribed time frame. Therefore, the sanction of dismissal was solely for the Plaintiffs' failure to reimburse Defendants. Defendants' motion to dismiss did not allege any prejudice to Defendants as a result of Plaintiffs' failure to pay $330.00 as ordered by the court in its June 14, 2007 order. Nor did the motion allege any contumacious disregard for the trial court's authority. The motion simply stated that because Plaintiffs had failed to reimburse the Defendants, their (Defendants') petition should be dismissed.[2] The parties agree that the trial court did not make the required findings of prejudice and contumacious disregard. However, Defendants argue that a determination of those requirements should be inferred from the trial court's ruling. Defendants also concede that they did not file a "Certificate of Attempt to Resolve" with the court before filing a motion for sanctions as required by the court's own Rule 33.5. Given that the only conduct that triggered the sanction of dismissal was Plaintiffs' failure to reimburse Defendants, we find that the trial court abused its discretion under the circumstances of this case. The court did not hold an evidentiary hearing to determine what evidence supported the allegations in Defendants' motion to dismiss. In addition, the record does not show that the court made any findings of prejudice suffered by Defendants and/or whether Plaintiffs had contumaciously and deliberately failed to pay the $330.00 ordered by the court. Most importantly, Plaintiffs argue, and we agree, that the trial court's June 14, 2007 order was not specific as to when Plaintiffs were required to reimburse Defendants and what would constitute the penalty for non-compliance. "A discovery order which purports to be self-enforcing will be strictly construed. The imposition of sanctions without notice must be approached with caution because there are frequently two sides of an event which is alleged to trigger the self-effectuating discovery sanctions. Therefore, unless the conduct which is to trigger the sanctions is specifically expressed in clear and unequivocal 917 terms and unless the sanctions themselves are spelled out with specificity, a danger exists that the party or parties against whom the order is entered will not understand what conduct is required for compliance and will not be apprised of the consequences for noncompliance." Hammons v. Hammons, 680 S.W.2d 409, 411 (Mo.App. E.D.1984). In the present case, the trial court's June 14, 2007 order only directed Plaintiffs to reimburse Defendants $330.00 for failure to execute the medical authorization form. The order did not set a deadline by which the sum was to be paid nor did it state what would constitute the penalty for non-compliance. Without some specificity as to what would constitute compliance, failure to reimburse Defendants in the six-week period between the order date and the date of Defendant's motion to dismiss can hardly qualify as a disregard of the court's authority. In addition, the court violated its own rule by hearing oral arguments and taking the Defendants' motion under submission without requiring Defendants to file a "Certificate of Attempt to Resolve." Defendants have not shown that they attempted to collect the $330.00 or to resolve the issue with Plaintiffs before filing the motion to dismiss. This may account for why there was no "Certificate of Attempt to Resolve" before the court as required by the court's own rules. Lastly, the sanction imposed by the court appears to be in excess of what was necessary to further the goals of discovery. Plaintiffs had already executed the medical authorization form as ordered by the court so that there was nothing preventing the trial from proceeding on its normal course. The trial court could have ordered Plaintiffs to reimburse Defendants immediately or within a certain time frame under the threat of dismissal or it could have imposed additional monetary sanctions to be paid by a date certain. Dismissal, under the circumstances of this case, was drastic and excessive. Defendants cite to Shahab v. Ryan's Family Steak Houses, Inc., 184 S.W.3d 605 (Mo.App. E.D.2006) and Jones v. Eagan 715 S.W.2d 596 (Mo.App. E.D.1986) for the proposition that failure to pay monetary sanctions alone is sufficient grounds for dismissal. However, Shahab is a per curiam order and as such, has no precedential value. In addition, this case can be distinguished from Jones because the plaintiff in Jones never answered discovery requests, nor did he pay the $100.00 sanction for failing to respond to discovery as ordered by the court. Id. at 597. Furthermore, the plaintiff failed to offer any justification or excuse for his failure to comply with the court's order to compel discovery or pay the sanction. Id. In the case before us, Plaintiffs have not only cured the discovery defects but have also offered the absence of a temporal limitation in the court's June 14, 2007 order as an excuse for their failure to reimburse Defendants at the time of dismissal. Accordingly, under facts of the case before us, Shahab and Jones do not support Defendants' proposition. Point III is granted. Conclusion We find that the trial court abused its discretion when it dismissed Plaintiffs' cause of action for failure to comply with a court order. The case is reversed and remanded for further proceedings consistent with this opinion. CLIFFORD H. AHRENS, and PATRICIA L. COHEN, JJ., concur. NOTES [1] Local Rule 35.5 states, "The Court will not hear oral argument nor take under submission any ... motions for sanctions to enforce discovery unless there is filed with the Court, together with the notice of hearing, a certification signed by the attorney for the party calling for the hearing which states that he has attempted to discuss the matter with opposing counsel in a good faith effort to resolve the disputed issues." [2] Plaintiffs failed to appear at that hearing and we do not have the benefit of a transcript of what Defendants argued before the trial court at the August 22, 2007 hearing on Defendants' motion to dismiss.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615173/	668 P.2d 1126 (1983) Charles Troy COLEMAN, Appellant, v. The STATE of Oklahoma, Appellee. No. F-79-600. Court of Criminal Appeals of Oklahoma. July 11, 1983. Rehearing Denied September 19, 1983. As Corrected September 19, 1983. D.D. Hayes, Muskogee, for appellant. Jan Eric Cartwright, Atty. Gen., Dena L. Bates, Asst. Atty. Gen., Oklahoma City, for appellee. 1129 OPINION BUSSEY, Presiding Judge: Charles Troy Coleman was convicted of Murder in the First Degree, in Muskogee County District Court, Case No. CRF-79-76. In the second stage of the trial, pursuant to 21 Ohio St. 1981, § 701.10, the jury assessed the death penalty. At approximately 4:15 p.m. on February 9, 1979, John Seward was found in the basement of his sister's home, dead as a result of a single shotgun wound to the back of his head. His wife, Roxie Seward, was found next to him, dead as a result of four shotgun wounds inflicted from only inches away. Determined to be missing from the home of Mr. and Mrs. B.L. Warren were the Seward's wallets, Mrs. Warren's turquoise watch, packages of frozen meat stamped "Hogle, Not for Sale," and various other food items. Later that same day, shortly after 6:00 p.m., the defendant was stopped and arrested for traffic violations. A search of the camper pickup truck he was driving revealed the Seward's wallets, the packaged meat and other various food items, which were subsequently identified by Mrs. Warren at trial as being from her pantry. 1130 I. In his first assignment of error, the defendant alleges that the trial court erred in failing to suppress all evidence obtained as a result of the warrantless search of his pickup truck. Specifically, the defendant alleges the following: That the warrantless search was not justifiable as incident to an arrest for a traffic offense; that his vehicle was illegally impounded on private property; that the alleged inventory search was a subterfuge; and that there was no consent to search the vehicle. At approximately 6:00 p.m. on the afternoon in question, Officer Ralph Rose, an off-duty dispatcher for the Wagoner County Sheriff's Department, motioned at the defendant for speeding and passing in a no passing zone, by shaking his finger at him as he passed. Officer Rose testified that Coleman pulled his pickup truck to the side of the road, and a conversation ensued which culminated when Coleman got back into his vehicle. As the defendant departed at a high rate of speed, Officer Rose testified that he observed the passenger in the defendant's truck drinking a beer. Rose turned on his red lights and pursued the defendant at speeds up to 100 miles per hour. With the assistance of Highway Patrol Trooper Glen Smithson and Wagoner County Sheriff Tommy Gilbert, Officer Rose stopped the defendant's vehicle and placed him under arrest for various traffic violations and possible driving under the influence of intoxicating liquor. Since Officer Rose observed the defendant speeding, passing in a no passing zone, attempting to elude an officer and exhibiting intoxicated behavior, he had probable cause to arrest Coleman, pursuant to 22 Ohio St. 1981, § 196, for committing misdemeanors in his presence. Thus, Coleman's initial arrest was proper and valid. The defendant relies upon Lee v. State, 628 P.2d 1172 (Okl.Cr. 1981) and Kelly v. State, 607 P.2d 706 (Okl.Cr. 1980), to support his argument that his vehicle was on private property and therefore the law enforcement officers were without authority to impound it without a request by the property owner. We are of the opinion that the facts in the instant case are distinguishable from the facts in Lee, supra, and Kelly, supra. In the instant case the vehicle in question was involved in a high speed, hot pursuit chase which ended only when the defendant pulled into a residential driveway and stopped. Coleman initially contended that he lived at the residence; however, Sheriff Gilbert was personally acquainted with the people who owned the property, and knew that neither the defendant nor others whom he subsequently claimed to be visiting lived there. It was obvious to the officers that the defendant had merely driven his vehicle into the residential driveway to seek sanctuary. From Sheriff Gilbert's association with the actual residents and the presence of perishable foodstuffs in plain view in the truck's camper, it was apparent that the vehicle would have to be removed from the property. Coleman was in custody; his companion who had been observed drinking beer was properly forbidden to drive the vehicle; and, the defendant was unable to make other arrangements for the safekeeping of his belongings. We are of the opinion that the officers acted properly when they impounded the defendant's vehicle for the purpose of caretaking the defendant's property in accordance with South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). Trooper Smithson testified that he handed an inventory sheet to Officer Rose and instructed him to inventory the truck while he and Sheriff Gilbert transported the Colemans to the Wagoner County Jail. Furthermore, the trooper stated that while taking the defendant into custody, he had observed, in plain view, open wallets in the truck's glove compartment bearing the names "Seward," and a box of frozen meat stamped "Hogle, Not for Sale," in the truck's camper, and that he routinely questioned Coleman about them. In route to Wagoner, his investigatory instincts having been aroused, Trooper Smithson radioed the scene of the ongoing homicide investigation in Muskogee County and inquired whether 1131 the victims' names were "Seward" and if meat stamped "Hogle, Not for Sale," had been taken. Upon receiving an affirmative reply, Trooper Smithson immediately stopped his cruiser, handcuffed Jeanette, read both Colemans their Miranda rights, turned his vehicle around and transported the Colemans to the Muskogee County Jail. Officer Rose stated that pursuant to a radio communication from Trooper Smithson, informing him that the Colemans had been arrested as suspects in the Muskogee murders, he stopped his inventory, without having written anything on the inventory sheet, and waited for homicide investigators to arrive. Both Officer Rose and Trooper Smithson testified that the inventory initiated at the time of the defendant and his passenger's arrest was pursuant to established departmental policy. As stated above, the wallets, the meat marked "Hogle, Not For Sale" and the other foodstuffs were all found during the initial stages of the inventory. The fact that neither Officer Rose nor the other officers had yet to reduce the findings of their inventory to writing is immaterial. The record discloses the good faith in which the inventory was initiated. It was only the sudden focus upon the defendant as a murder suspect which prevented completion of the list. Although Agent Chrisco may have had time to arrange for a search warrant to be obtained while the pickup was being towed to Muskogee, we need not reach the issue of the appropriateness of his actions. The evidence complained of had previously been legally discovered, and was properly in police custody by virtue of the impoundment of the vehicle and the contents thereof. Swain v. State, 621 P.2d 1181 (Okl.Cr. 1980); South Dakota v. Opperman, supra.[1] Thus, we find that the arrest of the defendant and the subsequent impoundment and inventory of his vehicle were proper, and the evidence of which the defendant now complains was properly admitted. This assignment of error is without merit. II. In his second assignment of error, the defendant alleges that the trial court erred in failing to exclude statements made by him at the time of his arrest, because he did not immediately receive the Miranda warnings. Defendant complains of three separate incidents in which Officer Smithson testified that the defendant made inculpatory statements to questions regarding the wallets, groceries, and the defendant's reasons for stopping at the residence where he was arrested.[2] 1132 We initially note that the defendant failed to object to Trooper Smithson's testimony at the time it was offered at trial. This Court has consistently held that when no specific objections are made at trial to the admission of a defendant's inculpatory statements, such objections cannot later be made as assignments of error on appeal. Long v. State, 567 P.2d 110 (Okl.Cr. 1977). See also, U.S. v. Holliday, 474 F.2d 320 (10th Cir.1973). In addition, the defendant did not include this assignment of error in his motion for new trial nor in his petition in error, and has not properly preserved this assignment of error for review. Hawkins v. State, 569 P.2d 490 (Okl.Cr. 1977); Chronister v. State, 538 P.2d 215 (Okl.Cr. 1975). Furthermore, even if the alleged error had been properly preserved for review, we are of the opinion, after having carefully reviewed the record before us, that the questions asked of the defendant were purely investigatory in nature, and were not accusatory. The law enforcement officer who asked the questions had no inkling that Coleman had been involved in a homicide, at the time the questions were asked; thus, it cannot be said that the purpose of the questioning was to elicit a confession. The defendant was arrested for traffic violations and possible D.U.I., and it was not until Trooper Smithson called the homicide scene, while in route to the Wagoner County Jail, that the defendant became the "focus" of a homicide investigation, and he was immediately read his Miranda rights warning at that time. See, Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). Thus, we are of the opinion that the questioning was not improper. Moreover, even if the questioning had been improper, it is well established that the admission of statements obtained in violation of Miranda may be said to constitute harmless error.[3]Harryman v. Estelle, 616 F.2d 870 (5th Cir.1980), cert. denied 449 U.S. 860, 101 S. Ct. 161, 66 L. Ed. 2d 76; Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In determining whether the harmless error rule is applicable, we must determine whether, absent the unconstitutional defect, "the evidence remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of the accused beyond a reasonable doubt." Chapman, supra. A review of the record reveals that evidence of Coleman's guilt, although circumstantial, was overwhelming. The fact that the statements were admitted had no effect on the other substantial evidence introduced against Coleman at trial. As discussed in the first assignment of error, the Sewards' wallets and the Warrens' meat and groceries, were discovered, pursuant to a valid search, in the defendant's pickup only two hours after the homicides. Also, 1133 at the time of his arrest, approximately $210.00 in cash and a $2.00 bill were found in the defendant's shirt pocket. Mrs. Warren, the victim's sister, testified that her brother carried large sums of money and a $2.00 bill for good luck in his wallet. At trial, two witnesses identified the defendant's white camper pickup truck as being similar to a white camper pickup they had seen in front of the Warrens' residence at the approximate time of the homicides. Jeanette Coleman, the defendant's "alleged common law wife," testified that at approximately 3:30 on the afternoon of February 9, 1979, the defendant left their residence with a shotgun and shells and returned at approximately 4:15. Defendant's brother, Vernon Dale Coleman, Sr., testified that after the defendant's arrest on the evening of February 9, he retrieved a 28 gauge shotgun (State's Exhibit No. 19) and a box of Federal brand, No. 6 load shotgun shells from the defendant's residence and conveyed the evidence to Muskogee County Investigator Gary Sturm between February 10 and February 11, 1979. Tom Jordan, a ballistics specialist, testified that State's Exhibit No. 19 was an uncommon gauge and brand of shotgun and was consistent with the weapon and ammunition used in the Seward homicides. Finally, Eli Maghee, who was incarcerated with Coleman prior to trial, testified that the defendant recounted the details of the homicides and explained the reasons for the murders as being that, "you just don't leave any witnesses cause you got a lot less chance of getting convicted." Further, the defendant does not allege that the admission of the statements precluded him from introducing exculpatory evidence or hindered his defense in any manner.[4] The second assignment of error is without merit. III. In his third assignment of error, the defendant argues that the trial court erred by admitting, over objection, allegedly prejudicial photographs. Specifically, Coleman complains of State's Exhibits No. 12F and 121, which were black and white photographs of the murder victims taken at the scene of the homicides, and State's Exhibit No. 18A, which was a color photograph taken before the autopsy depicting the entrance wound in the back of the victim's head. We are of the opinion that in accordance with the test set forth in Oxendine v. State, 335 P.2d 940 (Okl.Cr. 1958), the probative value of the evidence in question outweighs any prejudicial effect. See also, Glidewell v. State, 626 P.2d 1351 (Okl.Cr. 1981). In the instant case, the photographs of the victims at the scene of the crime tend to show that the victims were killed in an execution type manner in the basement. Also, the photograph of the entry wound in the back of the victim's head corroborates the ballistics expert's testimony and the pathologist's testimony that the shotgun was fired at point blank range. These photographs show definitely that the intent was to kill. Finally, the admission of allegedly gruesome photographs is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Glidewell v. State, supra. We note that the trial court excluded several other photographs for their prejudicial effect and determined that Exhibits 12F, 12I and 18A were probative and admissible. This assignment of error is without merit. IV. In his fourth assignment of error, the defendant alleges that the trial court erred by allowing Jeanette Coleman, the defendant's alleged common law wife,[5] to testify. 1134 He contends that her testimony violates the husband/wife privilege under 22 Ohio St. 1981, § 702 and 12 Ohio St. 1981, § 2504. In Lavicky v. State, 632 P.2d 1234 (Okl.Cr. 1981), we said that although 22 Ohio St. 1981, § 702 has not been specifically repealed, the legislature intended that 12 Ohio St. 1981, § 2504 supercede all prior legislation on the subject. Accordingly, the statute to apply in the present case is 12 Ohio St. 1981, § 2504 which provides in pertinent part: A. A communication is confidential for purposes of this section if it is made privately by any person to his spouse and is not intended for disclosure to any person. B. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse. At trial, Jeanette Coleman testified in regard to the events of the day of the homicide. Our initial inquiry is whether her testimony breached any confidential communications. Jeanette testified that on the day of the homicide, the defendant came home at approximately 3:30, retrieved a shotgun and shells from their bedroom, left in his white camper pickup, and returned at approximately 4:15 p.m. We are of the opinion that this testimony did not concern a privileged communication. The privilege does not extend to matters learned through observation of the spouse's non-communicative acts which are not intended to be confidential. See, Moore v. State, 270 Ark. 592, 605 S.W.2d 445 (Ark. 1980); State v. Benner, 284 A.2d 91 (Me. 1971). In the instant case, the defendant had been hunting earlier that day and therefore Jeanette's suspicions weren't aroused when he left for the second time with the shotgun. It is clear that the defendant's conduct occurred without any intent by him that his conduct be kept confidential. State v. Benner, supra. Jeanette also testified that, prior to going grocery shopping the defendant stated that they owned the groceries in the back of the camper. Finally, she stated that at the scene of their arrest, the defendant gave her a turquoise watch to keep, and then requested she give it back when they were being transported to Muskogee. We are of the opinion that this testimony also did not breach any confidential communications. Communications are not confidential if made in the presence of third parties. Lavicky v. State, supra. Since these statements of the defendant, to which Jeanette testified, were made in the presence of third parties, his contention is without merit. Accordingly, this assignment of error is also without merit. V. In his fifth assignment of error, Coleman contends that the trial court committed reversible error by admitting evidence of his escape from the county jail, evidence of the burglary of the Warren residence and evidence of the murder of Roxie Seward. We initially find, from a review of the record, that the State complied with procedures necessary to introduce evidence of other crimes, as set forth by Burks v. State, 594 P.2d 771 (Okl.Cr. 1979). The State furnished the defendant with written notice, ten days before trial,[6] of its intent to introduce evidence of the escape, burglary and murder. In the notice of intent to introduce evidence of other crimes, and at the time the evidence was offered, the prosecutor specified the exception under which the evidence was sought to be admitted.[7] Additionally, the trial court gave the jury a limiting instruction regarding evidence of other crimes. Further, it is well established that evidence of an escape from custody by an accused is admissible as showing consciousness of guilt. Odum v. State, 651 P.2d 703 (Okl.Cr. 1982). See also, Brinlee v. 1135 State, 608 F.2d 839, 10th Cir.1979, cert. denied 444 U.S. 1047, 100 S. Ct. 737, 62 L. Ed. 2d 733 (1980). Finally, we note that the burglary of the Warren residence and the murder of Roxie Seward can be considered to be a part of the res gestae of the murder of John Seward. Burks v. State, supra. The burglary and murder were committed contemporaneously with the murder of John Seward and were inseparable parts of a single criminal episode; the charges should have been filed in a single information, listing the various counts. See, Chaney v. State, 612 P.2d 269 (Okl.Cr. 1980). We find no merit in the defendant's fifth assignment of error. VI. In his sixth assignment of error, the defendant argues that he was denied a fair trial by reason of the district attorney's improper and inflammatory remarks made during closing argument. We initially note that although defense counsel moved for a mistrial based on improper prosecutorial remarks at the conclusion of State's argument, he did not interpose an objection to any of the statements during the course of closing argument. Since no objection was made at the time the alleged prejudicial statements were made, nor was any request made for an admonishment to the jury regarding them, the error has not been properly preserved for review. Smith v. State, 594 P.2d 784 (Okl.Cr. 1979). Although defense counsel failed to object to the numerous instances of alleged prosecutorial misconduct, we shall review the record for fundamental error. Cobbs v. State, 629 P.2d 368 (Okl.Cr. 1981). While some of the remarks were unnecessary and are not to be condoned,[8] they were not so grossly improper, in light of the evidence presented, as to have affected the verdict of the jury; thus, no modification or reversal is required. See, Chaney v. State, supra. VII. In his seventh assignment of error, the defendant alleges that reversible error occurred at trial by reason of the prosecutor's knowing use of perjured testimony. Prosecution witness, Eli Maghee, was incarcerated with the defendant during the summer of 1979, and testified as to conversations he had with Coleman. 1136 Citing 21 Ohio St. 1981, § 496, the defendant alleges a discrepancy exists between witness Maghee's testimony at the defendant's preliminary hearing in Tulsa County for the murder of Russell Lewis and Maghee's testimony at the trial in Muskogee County for the murder of John Seward, because at the preliminary hearing in Tulsa Maghee did not testify as to his conversations with the defendant regarding the murders of the Sewards in Muskogee County. A review of the preliminary hearing transcript from the Tulsa County case reveals that there was no questioning by the State's counsel on the subject of the Seward murders. Obviously, the omission of testimony lacks an essential element of perjury. See, Holt v. State, 506 P.2d 561 (Okl.Cr. 1973). Further, at trial in the present case, the defense counsel had ample opportunity to cross-examine witness Maghee concerning any inconsistent statements which he might have given. Taylor v. State, 555 P.2d 1073 (Okl.Cr. 1976). The jury was properly instructed in regard to the weight and credibility to be given the testimony of any witness. We find this assignment of error to be without merit. VIII. In his eighth assignment of error, the defendant alleges that he should have received a preliminary hearing on the bill of particulars. Specifically, he argues that since a preliminary hearing is required in all after former conviction of a felony (AFCF) cases, the same requirement should be had in capital cases. We have recently rejected this argument in Brewer v. State, 650 P.2d 54 (Okl.Cr. 1982). In Brewer, supra, we stated that 21 Ohio St. 1981, § 701.9 apprises the defendant of all possible penalties he faces. In addition, 21 Ohio St. 1981, § 701.10 specifically states that "only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible." These procedures eliminate any element of surprise; therefore, this assignment of error is without merit. IX. In his ninth assignment of error, the defendant alleges that the trial court improperly admitted evidence in the second stage which was not previously made known to him. In support of his argument he cites 21 Ohio St. 1981, § 701.10, and alleges that he did not receive notice in the Bill of Particulars that the State intended to introduce evidence that he kidnapped an Arizona highway patrolman after his escape from county jail. The Bill of Particulars contained the following pertinent language: 5. That there exists a probability that the defendant Charles Troy Coleman will commit future criminal acts of violence that will constitute a continuing threat to society, based on the following: * * * * * * On the 23rd day of April, 1979, after the defendant had been bound over for trial for the murders of John and Roxie Seward, and it appearing that he would be held accountable for these two deaths and would be taken to trial for the commission of the murders, he did then and there escape from lawful confinement in the Muskogee County jail, fleeing beyond the borders of the State of Oklahoma, further illustrating his contempt and total disregard for the rules of a structured and orderly society and creating a further danger to other lives, including those of the law abiding citizens of this state, and in other areas of this nation; ... We are of the opinion that the defendant did receive sufficient notice of the evidence which the State intended to introduce in support of the aggravating circumstance.[9] The Bill of Particulars is specific in its 1137 allegation of defendant's escape from the county jail, and the defendant kidnapped the Arizona highway patrolman on the five day spree subsequent to his escape. Furthermore, the defendant was made aware of the evidence because the Arizona highway patrolman had testified to the details of the kidnapping at the preliminary hearing in the Tulsa County murder, a transcript of which had been provided defense counsel. In Chaney v. State, supra, we said that 21 Ohio St. 1981, § 701.10 is designed to give the defendant appropriate notice of the evidence of aggravating circumstance(s). We are of the opinion that in the instant case the State complied with this requirement. Accordingly, this assignment of error is without merit. X. In his tenth assignment of error, the defendant complains that four prospective jurors were excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). In Chaney v. State, supra, we said: In Witherspoon, the Supreme Court held that persons cannot be excused from jury service for cause just because they are opposed to the death penalty. They can be excused for cause if their views are so strong that they would refuse to return a verdict of guilty, where it was justified, because the defendant could be sentenced to death. Prospective jurors can also be excused for cause if they have decided in advance that they will not vote to impose the death penalty, regardless of the circumstances. However, the questioning in this area during voir dire cannot be too specific: `... The most that can be demanded of a venireman .. . is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings ...' (Emphasis original). In the instant case, we believe that it was proper to excuse the jurors for cause. All four jurors stated unequivocably that they would not impose the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.[10] See also, Parks v. State, 651 P.2d 686 (Okl.Cr. 1982). We therefore find this assignment of error to be without merit. XI. In the final assignment of error, the defendant alleges that three of the convictions relied upon to establish the aggravating circumstance were void and therefore the sentence of death should not have been imposed. At trial, an authenticated copy of the minute entries from the District Court Clerk of Elmore County of the State of Alabama, which reflect the defendant's convictions in three cases, was admitted as evidence of his prior conviction of a felony involving the use or threat of violence.[11] Defendant argues that these convictions are void because they do not show on their face that he knowingly and voluntarily waived his federal constitutional rights before entering a guilty plea. However, the record does indicate that he was represented by counsel upon entering his pleas of guilty. See, Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967). The record also reveals that an appeal was never perfected from the 1967 convictions. Defendant has not alleged that there are pending collateral attacks on the convictions through post-conviction relief. See, State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (Ariz. 1980). We are of the opinion that the Alabama convictions were properly introduced. See, Ashlock v. State, 643 P.2d 324 (Okl.Cr. 1982). Further, 1138 the State introduced another 1973 conviction[12] from the Superior Court of San Luis Obispo County in the State of California, which supports the aggravating circumstance that he was convicted of a prior felony involving the use or threat of violence. Defendant's final assignment of error is without merit. XII. Pursuant to our statutorily imposed duty under 21 Ohio St. 1981, § 701.13, we now hold: 1) The sentence of death was not imposed "under the influence of passion, prejudice or any other arbitrary factor." This was indeed a merciless execution of two innocent people who intruded upon the defendant as he burglarized a home. However, a complete review of the record reveals that the trial court was sensitive to the nature of the case and that defendant's attorney competently protected his constitutional rights. We are of the opinion that the defendant received a fair and impartial trial; 2) The evidence supports the jury's finding of statutory aggravating circumstances as enumerated in Section 701.12. The basis for this holding should be clear from the body of this opinion.[13] 3) We have made a comparison of this case with other first degree murder cases before this Court and we find that the death penalty is not excessive.[14] The jury found five aggravating circumstances present in the instant case. We find that the evidence supports all five aggravating circumstances. We find no reason to disturb or modify the imposition of the death sentence. Accordingly, the judgment and sentence is AFFIRMED. CORNISH and BRETT, JJ., concur. NOTES [1] During Agent Chrisco's testimony at the defendant's trial, a list of items taken from the appellant's truck after it had been towed to the garage was introduced. We do not find Officer Chrisco's testimony to constitute error, since he simply enumerated the items which had already been discovered. [2] Specifically the defendant complains of the testimony by Officer Smithson as follows: OFFICER SMITHSON: A. I uh, went back and asked Mr. Coleman if what his last name was and he told me. And I asked him what his in-laws' name was, and he told me that, and I don't remember what his in-laws' name what he said they were, but it was not Seward. And, at that point, I went over and asked Mrs. Coleman the same questions, and neither of her answers were Seward either. So, I went back then and asked, Mr. Coleman where he had got the wallet. And he told me he had been to the Eight-Ball the night before, which is a Club in Muskogee, and he said that he had picked up a woman and her husband there who were having an argument and they had pickup trouble and they gave them a ride home. He said, apparently, she had left her wallet in the pickup and about this time Sheriff Gilbert and Ralph Rose was in the rear of the vehicle looking in it and they had discovered some groceries and meat and stuff in it and they called me over to look at it, and on the meat it had a name stamped HOGLE, and it was processed meat, and it had NOT FOR SALE stamped on it. I went back and asked Mr. Coleman about this and he told me that they had been to the Warehouse Market to buy groceries and he said that they bought their groceries there. I asked him if he bought all of them there, and he said: Yes, we bought all of our groceries at the Warehouse Market. And, at this time I asked him, or I told him that he could not buy the meat there. And I asked him: Where did you get the meat that's stamped NOT FOR SALE? You can't buy it at Warehouse Market. He told me that apparently the meat was left in the vehicle, also, from the night before cause the people had left meat in there when they took them home. He said: `We were all very drunk. Didn't know what we were doing.' * * * * * * OFFICER SMITHSON: A. This is a picture of the groceries and frozen meat items that were also found in the rear of the pickup. I asked him about it, and he stated he had bought it at Warehouse Market. MR. TURPEN: Q. And he later stated what? A. He later stated that it belonged to the people that he had picked up at the Eight-Ball. MR. TURPEN: Q. The night before? A. Yes, sir. * * * * * * A. Okay. About that residence. Did you ever inquire as to why they stopped there? A. Yes, I did. I asked Mr. Coleman why they had stopped at this residence. He said: We live here. And I asked his wife later the same question. She verified MR. PEARSON: Asked who later? I'm sorry. A. His wife. And she verified it. I asked them if they had a key to the residence? They said: `No.' And later Mr. Coleman said: `It's a friend of ours house' and he called the friend's name. I don't remember what the name was. Sheriff Gilbert was there. He knew who lived there, who had built the house, and he stated that was not the name of the people that owned the house. [3] The record in this case reflects no evidence that defendant's statement was involuntary. [4] Defendant's defense was that he did not have time to commit the murder; that Eli Maghee had a reputation of being untruthful and that his sister-in-law had given him $400 in cash the week of the homicides. [5] The trial court ruled that Jeanette Coleman was the common law wife of the defendant's older brother Abe Coleman, whom she had not divorced; therefore, she could not be the defendant's common law wife. [6] The State filed a notice of intent to offer evidence of other crimes on August 27, 1979, and trial began on September 25, 1979. [7] The State advised that the evidence was offered as an exception to other crimes evidence based on res gestae as well as proof of identity of the defendant and defendant's intent to kill. [8] The transcript reads in part as follows: Folks, what do we talk about when we talk about First Degree Murder? We're talking about we're talking about this man's head! I don't mean to be shocking, ladies and gentlemen of the Jury, but we're talking about this man's head being turned into a puddle of blood and gray hairs at the bottom of the stairs. That's the reality of it. I'm not trying to shock anybody. That's the reality of it. That a living human being's head was turned into a puddle of blood and hair because of him, based on the evidence. (Tr. 787). * * * * * * But I want you to think about the last few seconds in John Seward's life as he's being marched down those stairs with his wife, you know, to what became a human slaughter house, and think about the horror he must have felt. And think about the terror he must have felt as he spent his last few seconds on this earth a man who, I suggest to you, had the right to die with more dignity. Let's think about it. (Tr. 788). * * * * * * Last witness. Mrs. Warren. Mrs. Warren described this the home she lived in here that's where she lives. It's nice to live in a home where your brother was murdered in the back basement. Think about that, please. John Seward is dead and gone forever. Plus, there's more than one victim. We all suffer a little, but think of the family that's still living in the home and where her brother was murdered in the basement. See, it points out that there's more than one victim when it comes to cold-blooded murder. When a man does what this man did, Charles Coleman, on that day, February 9th, when he takes them down into the basement of the home and murders them in cold-blood, if you will, when you do that, you see you got more than one victim. You've got more than just Roxie and John Seward, you see, you got a family. You got people left behind. See, this was a pretty expensive shopping spree. I mean, a lot of people have suffered, if you know what I mean, based on the evidence, I mean, from the witness stand, that Mrs. Warren testified about. (Tr. 830). [9] The aggravating circumstance is found in 21 Ohio St. 1981, § 701.12.2 which provides in part: Aggravating circumstances shall be: * * * * * * 7. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; or .. . [10] Defendant objected to the following jurors being excused for cause: Juror Geisinger; Juror Barnes; Juror Halpain; Juror Crager. [11] 21 Ohio St. 1981, § 701.12 provides that: Aggravating circumstances shall be: (1) The defendant was previously convicted of a felony involving the use or threat of violence to the person. [12] Defendant has not challenged the validity of this conviction. [13] The jury found that the evidence supported the following five circumstances: 1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) the defendant knowingly created a risk of death to more than one person; 3) the murder was especially heinous, atrocious or cruel; 4) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 5) the existence of probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. [14] We have compared this case with cases in which the defendant received the penalty of death: Stafford v. State, 665 P.2d 1205 (Okl.Cr. 1983); Davis v. State, 665 P.2d 1186 (Okl. Cr. 1983); Ake v. State, 663 P.2d 1 (Okl. Cr. 1983); Smith v. State, 659 P.2d 330 (Okl.Cr. 1980); Parks v. State, 651 P.2d 686 (Okl.Cr. 1982); Jones v. State, 648 P.2d 1251 (Okl.Cr. 1982); Hays v. State, 617 P.2d 233 (Okl.Cr. 1980); Eddings v. State, 616 P.2d 1159 (Okl.Cr. 1980) (Remanded for resentencing, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1), Chaney v. State, 612 P.2d 269 (Okl.Cr. 1980). We have also compared Coleman's sentence in light of cases in which death sentences have been modified to life imprisonment: Glidewell v. State 663 P.2d 738 (Okl.Cr. 1983); Johnson v. State, 662 P.2d 687 (Okl.Cr. 1983) (53 OBAJ 730, Okl.Cr. 1982; opinion withdrawn); Boutwell v. State, 659 P.2d 322 (Okl.Cr. 1983); Driskell v. State, 659 P.2d 343 (Okl.Cr. 1983); Jones v. State, 660 P.2d 634 (Okl.Cr. 1983); Munn v. State, 658 P.2d 482 (Okl.Cr. 1983); Odum v. State, 651 P.2d 703 (Okl.Cr. 1982); Burrows v. State, 640 P.2d 533 (Okl.Cr. 1982); Franks v. State, 636 P.2d 361 (Okl.Cr. 1981); Irvin v. State, 617 P.2d 588 (Okl.Cr. 1980). We have also considered this case in light of cases in which the defendant's convictions and sentences of death were reversed or otherwise remanded for subsequent proceedings: Hatch v. State, 662 P.2d 1377 (Okl.Cr. 1983); Hall v. State, 650 P.2d 893 (Okl.Cr. 1982); Brewer v. State, 650 P.2d 54 (Okl.Cr. 1982); Hager v. State, 612 P.2d 1369 (Okl.Cr. 1980).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615176/	35 Wash. App. 598 (1983) 668 P.2d 1294 THE STATE OF WASHINGTON, Respondent, v. GLENN LAMONT THOMAS, Appellant. No. 11852-8-I. The Court of Appeals of Washington, Division One. August 29, 1983. Elizabeth Selleck of Washington Appellate Defender Association, for appellant. 600 Norm Maleng, Prosecuting Attorney, and John L. Austin III, Deputy, for respondent. CALLOW, J. Glenn Lamont Thomas appeals his conviction for unlawful imprisonment, alleging that he was improperly charged under a general statute where a more specific statute applied to the same offense and that prior acts of misconduct were improperly admitted. Glenn Thomas, age 19, and Tina Moore, age 18, had known each other for 5 years and had a child, Cassandra Moore, born May 23, 1980. The couple have never been married. Tina and Cassandra lived with Tina's mother, Sharon Moore. Subsequent to an incident in which Thomas purportedly assaulted Tina Moore, Tina and her mother instituted civil proceedings to establish parentage and custody of Cassandra. Pursuant to these proceedings, on October 21, 1981, the King County Superior Court issued a restraining order prohibiting Thomas from molesting, harming, bothering, striking or disturbing the peace of Cassandra, Tina, or her family, or removing Cassandra from the custody and care of Tina and her parents. On January 26, 1982, the Superior Court issued a judgment establishing Thomas as Cassandra's father and awarding custody to Tina Moore and ordered the matter transferred to family court for investigation and recommendation as to visitation rights. Tina Moore testified that on March 16, 1982, as she was departing from a Metro bus, Thomas approached her on foot and asked her to talk with him. She refused. Thomas then took the child from Tina Moore's arms and left the area. The next day, Thomas called the Moore home and asked Tina to meet with him. After two more phone calls, Tina agreed to meet with Thomas to give him Cassandra's prescription medicine. Seattle police officers went to the scheduled meeting place, instead of Tina, and apprehended Thomas after a chase. Thomas was arrested and charged by information with violation of RCW 9A.40.040, unlawful 601 imprisonment. Before trial, Thomas moved to dismiss the charge on the grounds that RCW 26.09.300, regarding violation of temporary restraining orders, more specifically applied to his conduct. Hearing on the motion was reserved for trial. At trial, Thomas made a motion in limine to exclude evidence of prior assaults upon Tina Moore, her father, and brother. The State argued that these prior acts of misconduct were admissible to show common plan, the nature of the parties' relationship and identification. The court denied the motion without elaborating on its reasons. Subsequently, the State introduced testimony on the prior assaults. Following the close of the State's case, the defendant renewed his earlier motion to dismiss the unlawful imprisonment charge and additionally argued that custodial interference, RCW 9A.40.050, more specifically applied to his conduct. The trial court denied the motion. The defense then rested without presenting additional evidence. The defendant requested instructions to the jury requiring him to be convicted of the lesser crime of custodial interference, if there was a reasonable doubt as to which of the crimes had been proved, defining custodial interference, and setting forth its elements, all in the words of WPIC 4.11, 39.20, and 39.21. The jury was instructed on both unlawful imprisonment and the lesser offense of custodial interference as requested. These instructions became the law of the case. State v. Robinson, 92 Wash. 2d 357, 597 P.2d 892 (1979). The jury found Thomas guilty of unlawful imprisonment. He appeals. The issues presented are: 1. Did the trial court err in denying Thomas's motion to dismiss the unlawful imprisonment charge? (a) Did the crime of custodial interference more properly apply to Thomas's conduct, in light of the principle of statutory construction that where a general and a special statute prohibit the same conduct, the accused may only be charged under the special statute? (b) Was Thomas's right to equal protection violated by 602 prosecution and conviction for unlawful imprisonment, a felony, rather than custodial interference, a misdemeanor? (c) Was the defendant improperly charged with unlawful imprisonment, rather than with violation of a superior court temporary restraining order? 2. Did the trial court properly admit evidence of prior threats and assaultive behavior by the defendant under ER 404(b)? 3. If the trial court erred in admitting evidence of Thomas's prior misconduct, was this error prejudicial? We turn to the first issue of whether the crime of custodial interference more properly applied to Thomas's conduct, in light of the principle of statutory construction that where a general and a special statute prohibit the same conduct, the accused may only be charged under the special statute. The defendant contends that the crimes of custodial interference and unlawful imprisonment both apply to his conduct but that the crime of interference more specifically applies to the problem of child snatching by a noncustodial parent. The defendant contends that statutory construction requires that he be prosecuted under the more specific statute. State v. Danforth, 97 Wash. 2d 255, 643 P.2d 882 (1982); State v. Walls, 81 Wash. 2d 618, 503 P.2d 1068 (1972). The State's position is that the elements of proof and available defenses of the two statutes are different and therefore the asserted principle of statutory construction does not apply. State v. Cann, 92 Wash. 2d 193, 595 P.2d 912 (1979); State v. Darrin, 32 Wash. App. 394, 647 P.2d 549 (1982). [1, 2] Where general and specific laws address the same subject matter, the specific law applies to the exclusion of the general. State v. Danforth, supra at 258. A corollary of this rule is that where a general and a specific statute forbid the same conduct, the accused may only be charged under the more specific statute. State v. Danforth, supra at 258. The threshold question is whether the two statutes 603 proscribe the same conduct. RCW 9A.40.040(1) states: A person is guilty of unlawful imprisonment if he knowingly restrains another person. RCW 9A.40.010(1) states: "Restrain" [as used in RCW 9A.40] 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, or (b) any means including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and if the parent, guardian, or other person or institution having lawful control or custody of him has not acquiesced. RCW 9A.40.050(1) states: A person is guilty of custodial interference if, knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution. The essence of unlawful imprisonment is restraint and restriction while the essence of "custodial interference" is the taking from custody. Further, the unlawful imprisonment statute focuses on the person restrained as the direct victim of the crime, while the custodial interference statute speaks of the custodian and not the person actually taken as the victim. In addition, it would be possible to restrain someone (by locking a door) without taking him anywhere, but not possible to take someone someplace without also restricting him and interfering with his liberty. Restraint is an element of unlawful imprisonment not specifically included in the custodial interference statute. This additional element ordinarily would set forth separate and distinct crimes. As defined in RCW 9A.40.010(1), "restraint" includes substantial interference with the personal liberty of a child under 16 years of age, even if the victim acquiesces to the interference. Thus, in the case of a child under 16 years of age, consent of the victim is not a defense to 604 unlawful imprisonment. Consent of the parent or guardian, on the other hand, is a defense to unlawful imprisonment. RCW 9A.40.010(1). Similarly, consent of the parent or guardian is a defense to custodial interference, because it presumably would give the actor the legal right to take the child. The act of taking or enticing a young child from legal custody is also necessarily a restriction on the child's movements which interferes substantially with the child's liberty. If a young child is taken or enticed from custody, the child is then subject to the supervision and control of the person interfering with that custody. Restriction on the child's movements is an inherent part of such supervision and control. It is immaterial to the commission of either unlawful imprisonment or custodial interference whether the actor intended his actions to be an affront to the victim restricted in the exercise of his liberty or to the custodian of the victim. See RCW 9A.40.020(1) and.030(2). The elements of unlawful imprisonment are necessarily present in situations where the lesser offense of custodial interference is violated and therefore the two statutes proscribe the same conduct. It follows that the principles of statutory interpretation require that the defendant be charged with the specific, rather than with the general crime. State v. Danforth, supra. Here, custodial interference is the specific crime. Custodial interference only applies in situations where the victim is entrusted by authority of law to the custody of another person and the actor interferes with that custody. Unlawful imprisonment is not similarly limited to custody situations. Therefore, Thomas should have been charged with the specific crime of custodial interference rather than the general crime of unlawful imprisonment. We next address whether Thomas's right to equal protection was violated by prosecution and conviction for unlawful imprisonment, a felony, rather than custodial interference, a misdemeanor. [3] It is a violation of equal protection for a prosecutor 605 to be given discretion to charge a defendant with a felony or misdemeanor based upon identical conduct. State v. Zornes, 78 Wash. 2d 9, 475 P.2d 109 (1970); State v. Martell, 22 Wash. App. 415, 591 P.2d 789 (1979). State v. Cann, supra at 197, stated: Thus the prosecutor has a basis for distinguishing between persons who can be charged under one or the other statute, and is not at liberty to charge under the general statute a person whose conduct brings his offense within the special statute. Under such circumstances, there is no denial of equal protection of the laws. Here, the State was not at liberty to prosecute Thomas under the unlawful imprisonment statute but rather should have charged him under the specific statute forbidding custodial interference. Therefore, the statutory scheme requires the prosecution to charge the defendant under the specific statute which is a gross misdemeanor and does not deny a defendant the equal protection of the laws. See State v. Bower, 28 Wash. App. 704, 711, 626 P.2d 39 (1981). We construe the statutes as not granting a prosecutorial discretion where the elements of the two statutes coexist. See, e.g., State v. Zornes, supra; State v. Martell, supra. The next issue presented is whether the defendant was improperly charged with unlawful imprisonment, rather than with violation of a superior court temporary restraining order. RCW 26.09.300(1) states: Any person having had actual notice of the existence of a restraining order issued by a court of competent jurisdiction in an action for the dissolution of a marriage under this chapter who refuses to comply with the provisions of such order when requested by any peace officer of the state shall be guilty of a misdemeanor. The defendant argues that under the principles of statutory construction discussed previously, he should have been charged with violation of RCW 26.09.300, a misdemeanor, rather than unlawful imprisonment. We disagree. [4] First, although child custody proceedings are provided for in RCW 26.09, since the temporary restraining 606 order was not issued in a dissolution action, Thomas could not have been charged under RCW 26.09.300 for violation of that order. By its terms, RCW 26.09.300 only applies in dissolution actions. Second, even if RCW 26.09.300 encompasses restraining orders issued in nondissolution custody proceedings, the temporary restraining order issued against the defendant was not in effect at the times relevant to this case. The restraining order was issued on October 21, 1981, in a civil paternity proceeding. A judgment and order establishing parentage and support was issued in that proceeding on January 26, 1982. The court awarded custody of the child to her mother and transferred the matter to family court for visitation and recommendations. Although the visitation question was left open, the court's order as to custody and parentage was final and therefore effectively terminated the temporary restraining order. See generally 2 L. Orland, Wash. Prac. § 613 (3d ed. 1972). The transfer to family court for recommendation on visitation rights did not prolong the temporary restraining order. Finally, RCW 26.09.300 does not more specifically proscribe the same conduct as RCW 9A.40.040. A restraining order can be violated in any number of ways, but RCW 9A.40.040 can only be violated by the knowing restraint of another person. The elements of a violation of RCW 26.09.300 are (a) knowledge of the existence of a valid restraining order, (b) issued by a court of competent jurisdiction, (c) in a dissolution action, and (d) refusal to comply with the order, (e) when requested to do so by a peace officer. RCW 26.09.300 is not applicable to the circumstances. See State v. Darrin, supra at 396-97. The next issue is whether the trial court properly admitted evidence of prior threats and assaultive behavior by the defendant under ER 404(b). ER 404(b) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, 607 opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [5] ER 404(b) is to be read in conjunction with ER 402 and 403. State v. Saltarelli, 98 Wash. 2d 358, 361, 655 P.2d 697 (1982). Whether the evidence makes the existence of any fact that is of consequence to the determination of the action more or less probable must be considered. ER 402. The test is "`whether the evidence as to other offenses is relevant and necessary to prove an essential ingredient of the crime charged.'" State v. Saltarelli, supra at 362 (quoting State v. Goebel, 40 Wash. 2d 18, 21, 240 P.2d 251 (1952)). The probative value of relevant evidence must be balanced against its prejudicial effect. ER 403. Evidence may not be admitted to prove his bad character in order to show that the accused probably acted in conformity with his previous actions. Saltarelli, at 362. Further, as stated in State v. Tharp, 96 Wash. 2d 591, 597, 637 P.2d 961 (1981): [B]efore exercising its discretion to admit the prior [criminal conduct], the trial court should weigh the necessity for its admission against the prejudice that it may engender in the minds of the jury. Without such balancing and a conscious determination made by the court on the record, the evidence is not properly admitted. (Citation omitted.) At the commencement of trial, Thomas's counsel moved to exclude any reference to past assault against the child's mother and members of her family. The trial judge heard arguments from the State and Thomas on the admissibility of evidence of this prior conduct under ER 404(b). The State argued that the evidence was admissible to show identification and course of conduct or plan, and specifically to show that the mother did not agree to the taking of her child and that Thomas's conduct was intended to agitate the mother rather than to exercise parental rights over the child. At the close of the argument, the court stated, "I am inclined to agree [with the State]. The motion in limine 608 will be denied." The court did not discuss admissibility or make a "conscious determination on the record," as required in State v. Tharp, that the probative value of the evidence be weighed against its prejudicial effect. We find that the relevance of the evidence for any purpose permitted in ER 404(b) was outweighed by its prejudicial effect. At trial, the prosecutor questioned the child's mother about two prior assaults against her and elicited testimony from the child's grandmother as to previous assaults on members of the mother's family. This evidence was not necessary to prove an element of the crime charged or admissible for any of the purposes set forth in ER 404(b). First, as stated, the crime of unlawful imprisonment prohibits the knowing restraint of another person, and the actor's purpose for committing the action is irrelevant. RCW 9A.40.040. Further, identification was not an issue in the case. It was not disputed that Thomas took the child or that he was the person whom the police apprehended. The one "essential ingredient" of the case to which the evidence of prior assaults might be relevant is the question of consent of the mother. Restraint, as used in RCW 9A.40.040, is defined in RCW 9A.40.010 as including restriction on the movements of a child less than 16 if the parent or person having custody has not acquiesced. Thomas's prior assaults, particularly those against the mother, do indicate that the mother was unlikely to have agreed and that their relationship was such that Thomas was likely to take the child regardless of the mother's wishes. However, the mother's testimony indicated that Thomas forcibly took the child from her arms. Thomas's counsel did not attempt to discredit this testimony on cross examination or offer contradictory evidence. Therefore, although relevant, the evidence of past misconduct was unnecessary to the case. Additionally, the evidence was potentially prejudicial. The jury could infer from the past misconduct that Thomas was of bad character and was likely to act in conformity with his character. See ER 404(b). Further, the evidence could have misled the jury into believing that 609 Thomas's possible intent to harm the child's mother or her family was relevant to their determination of guilt or innocence. See ER 403. The probative value of the evidence concerning the mother's consent did not outweigh its prejudicial effect. See ER 403. Our holding that the admission of the evidence of prior misconduct was error leads us to inquire as to whether the error was prejudicial. [6] The test for whether an improper evidentiary ruling constitutes reversible error was stated in State v. Tharp, supra at 599: [W]e apply the rule that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. State v. Cunningham, 93 Wash. 2d 823, 613 P.2d 1139 (1980). The elements of the crime charged were clearly established by the uncontroverted testimony of the child's mother, supported by the testimony of the arresting officer and the child's grandmother. Thomas did not take the stand in his own defense nor offer any other evidence that would negate any essential element of the crime. Therefore, it is not reasonably probable that the admission of the evidence of the defendant's prior misconduct materially affected the outcome of the trial. The trial court's denial of Thomas's motion in limine was not reversible error. The jury convicted the defendant of unlawful imprisonment and not of the lesser charge of custodial interference, which was the proper statute under which it was required that he be charged. We must reverse the conviction and sentence and remand the cause for retrial for violation of RCW 9A.40.050. SWANSON and CORBETT, JJ., concur. Reconsideration pending March 15, 1984.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601835/	228 P.3d 161 (2009) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Stanley Leonard STEVENSON, Defendant-Appellant. No. 06CA1612. Colorado Court of Appeals, Div. II. February 19, 2009. Rehearing Denied March 19, 2009. 164 John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. Samler & Whitson, P.C., Eric A. Samler, Hollis Whitson, Denver, Colorado, for Defendant-Appellant. Opinion by Judge CONNELLY. Defendant, Stanley Leonard Stevenson, was convicted by a jury and sentenced to twenty-four years in the Department of Corrections for first degree burglary and aggravated robbery. The most significant appellate issue stems from the People's decision to grant defendant use-and-derivative-use immunity to compel his testimony at a codefendant's trial. By granting defendant such immunity before his own prosecution, the People undertook a heavy burden of proving affirmatively that the trial evidence derived from sources wholly independent of the immunized testimony. The trial court did not find, and on this record could not properly have found, that the People carried this heavy burden. Accordingly, while we reject defendant's remaining challenges, we remand for hearings and findings on defendant's immunity claim. I. General Background Defendant and a codefendant (who was tried first and convicted based in part on defendant's immunized testimony) broke into the victim's apartment. Officers responding to a neighbor's report of hearing screams from the apartment arrested defendant inside. The codefendant escaped, as did a female and a male confederate who had been waiting in a car outside. The victim could not identify either man who broke into his apartment. Other evidence proved defendant was one of the men: (1) deputy sheriffs arrested defendant inside the apartment with a box-cutter and knife in his pockets; (2) the female confederate testified defendant and the codefendant had entered the apartment; and (3) defendant's post-arrest statements, including a videotaped statement, admitted some details of the events. The defense conceded defendant was inside the apartment but claimed he went there to collect a debt. It maintained that the codefendant committed most of the alleged acts and that defendant lacked criminal intent for the charged crimes. II. The Immunity Issue A. Background After the first jury was sworn, defense counsel orally moved for a mistrial and to dismiss based upon the prosecution's improper use of immunized testimony. Counsel explained to the trial judge, who had not presided over the codefendant's trial, that the People had compelled defendant's testimony under a grant of immunity. After hearing from both sides, the court granted a mistrial 165 and scheduled the motion to dismiss for briefing and hearing. The prosecutor conceded that even though he was not the prosecutor in the codefendant's trial, he and an investigator had attended that trial when defendant gave immunized testimony. The prosecutor further conceded having considered that testimony in framing a plea offer to defendant. Finally, the prosecutor conceded he and others in his office had discussed using the immunized testimony for possible impeachment before concluding this would be improper. The prosecutor nonetheless denied having any present recall of the particulars of defendant's immunized testimony. He denied having made any improper use of the testimony and argued that any use would have been harmless error. The parties subsequently stipulated that the issues could be decided without a hearing based on the facts and arguments presented in the briefs. The court denied the motion to dismiss the case. The court noted that because neither side had provided the transcript of defendant's immunized testimony, it had "no basis to find that the District Attorney has improperly used the immunized testimony to acquire any information or evidence, either directly or indirectly." The court added, however, that the prosecutor's claim to have no present recollection of the testimony "strains credulity." Noting that the prosecutor "has had full exposure" to the immunized testimony, the court wrote "it may be highly improbable that this prosecutor will not make some use of the compelled testimony as the trial unfolds." Accordingly, the court "strongly recommend[ed] that the case be reassigned to a prosecutor who is not, and shall not be, privy to the immunized testimony in any way." The District Attorney's Office did not follow the court's strong recommendation. The prosecutor reported that he, his supervisor, and the District Attorney had reviewed the court's order, but did not reassign the case: "Our decision was to have me try the case, and I have been admonished concerning the care I need to take." Immunity issues resurfaced at trial when defense counsel objected that the prosecutor was framing jury voir dire questions based on a theory of complicity and information about a knife derived from the immunized testimony. The court was not persuaded as to complicity but warned that any suggestion a specific knife was used would be improper if it derived from immunized testimony. Defense counsel again moved to dismiss after the jury returned guilty verdicts. The court then was provided the transcript of defendant's immunized testimony for the first time. It again denied the motion, ruling that "[d]uring this entire trial, the prosecution made no reference to or improper use of the defendant's immunized testimony." B. Discussion 1. Legal Overview Our federal and state constitutional privileges against compelled self-incrimination, though phrased differently, are functionally identical. Compare U.S. Const. amend. V (no person "shall be compelled, in any criminal case, to be a witness against himself") with Colo. Const. art. II, § 18 (no person "shall be compelled to testify against himself in a criminal case"). The former's reference to being a "witness" against oneself and the latter's reference to "testify[ing]" against oneself mean the same thing. See United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) ("The word `witness' in the constitutional text limits the relevant category of compelled incriminating communications to those that are `testimonial' in character."). Likewise, the federal and Colorado immunity statutes are functionally identical. Both formerly granted full "transactional" immunity to individuals compelled by court order to testify on matters that might incriminate them. Will Hood, Witness Immunity Under Colorado Law, 27 Colo. Law. 37 (Dec.1998). The federal statute, as amended in 1970 and upheld in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), provides "use-and-derivative use" immunity for compelled testimony. 18 U.S.C. § 6002. Colorado's immunity statute, as first amended 166 in 1983 and modeled on the federal statute, provides the same protection. § 13-90-118(1), C.R.S.2008; see People v. Reali, 895 P.2d 161, 165 (Colo.App.1994) (Reali I) (Colorado immunity statute "contains essentially the same provisions as those considered in Kastigar"), denial of post-conviction relief aff'd, 950 P.2d 645 (Colo.App.1997) (Reali II). Kastigar, the leading case on immunity issues, held that a defendant "need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources." 406 U.S. at 461-62, 92 S.Ct. 1653. This burden, moreover, "is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S.Ct. 1653. Later Supreme Court decisions continue to emphasize the "heavy burden" imposed on the government when it seeks to prosecute a previously immunized defendant. See, e.g., Braswell v. United States, 487 U.S. 99, 117, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988) (grant of immunity "can have serious consequences," because "[e]ven in cases where the Government does not employ the immunized testimony for any purposedirect or derivativeagainst the witness, the Government's inability to meet the `heavy burden' it bears may result in the preclusion of crucial evidence that was obtained legitimately"). Most recently, in Hubbell, the Court dismissed an indictment and reiterated the "affirmative duty on the prosecution, not merely to show that its evidence is not tainted by the prior testimony, but `to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.'" 530 U.S. at 40, 120 S.Ct. 2037 (quoting Kastigar, 406 U.S. at 460, 92 S.Ct. 1653). Colorado cases likewise construe immunity protections broadly. In People v. Casselman, 196 Colo. 304, 583 P.2d 933 (1978), the district attorney charged a defendant with theft of wheat some six months after attending a bankruptcy hearing in which the defendant had testified subject to immunity protections. The supreme court, "deem[ing] it highly improbable that the prosecution did not make some use of the testimony," affirmed dismissal of the charges because the district attorney had made "a prima facie use of the defendant's immunized testimony" by attending the hearing, and "the prosecution had not met its heavy burden of affirmatively establishing that the evidence it used as a basis for the charges was derived solely from independent sources." Id. at 307, 583 P.2d at 935-36. Casselman approvingly quoted an Eighth Circuit case that broadly described the possibly improper uses of immunized testimony to "`include assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea-bargain, interpreting evidence, planning cross-examination, and otherwise generally planning [trial] strategy.'" Id. at 307, 583 P.2d at 935 (quoting United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.1973)). The division in Reali I noted that Casselman "appears to have adopted" the Eighth Circuit's broad view that Kastigar proscribes even non-evidentiary uses of immunized testimony. 895 P.2d at 166-67. The division held this apparent proscription of non-evidentiary use was not dispositive for two reasons: first, because there was a "demonstrable use" of the testimony in preparing the charges in Casselman; and "[s]econd, and perhaps more significant, defendant here made a detailed, non-immunized statement describing her part in the killing before giving any immunized testimony." Id. at 167. It concluded that any improper use of the testimony was harmless beyond a reasonable doubt. Id. The division in Reali II rejected collateral challenges to the sufficiency of the hearing and fact-finding proceedings. It concluded the trial court had conducted the "functional equivalent" of a Kastigar hearing: a "lengthy evidentiary hearing" on a motion to dismiss "during which several witnesses, including a deputy district attorney and the district attorney, testified." 950 P.2d at 647. It added that "[i]n ruling on the motions, the trial court correctly noted that the prosecution had the burden of proving there was an 167 independent legitimate source for the evidence." Id. A then-prosecutor and current Supreme Court Justice wrote that Kastigar "in theory leaves open the possibility of prosecuting the witness, [but] in practice such prosecutions are difficult and rare." Samuel A. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L.Rev. 27, 56 (1986). Justice Alito explained "one of two steps usually must be taken": (1) "the government may meticulously document the source of all of its evidence"; or (2) "the attorneys and investigators who have heard or reviewed the immunized testimony may withdraw completely from any subsequent participation." Id. The burdens were illustrated in the Iran-Contra prosecutions. United States v. Poindexter, 951 F.2d 369 (D.C.Cir.1991); United States v. North, 910 F.2d 843, modified, 920 F.2d 940 (D.C.Cir.1990). The special prosecutor there: (1) "canned" the evidence prior to congressional immunity grants; and (2) erected a metaphorical "wall" shielding prosecutors and investigators from the testimony. See 3 Wayne R. LaFave et al., Criminal Procedure § 8.11(c), at 283-284 (3d ed.2007). Nonetheless, even these steps proved unsuccessful, and the convictions were reversed because witnesses had been exposed to the immunized testimony. See id. 2. Burden of Proof and Standard of Review The adjective "heavy," as used in Kastigar to describe the prosecution's burden of disproving use or derivative use, "refers to the difficulty of proving a negative, not the standard of proof." Aiken v. United States, 956 A.2d 33, 45 n. 39 (D.C.2008). The prosecution must make the requisite showing by a preponderance of the evidence. See, e.g., United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir.2003); United States v. Daniels, 281 F.3d 168, 180 (5th Cir.2002); United States v. Nanni, 59 F.3d 1425, 1431-32 (2d Cir.1995); United States v. Bartel, 19 F.3d 1105, 1112 (6th Cir.1994); North, 910 F.2d at 854. Where a trial court "uses correct legal principles," Kastigar findings are reviewed under the clear error standard. United States v. Harris, 973 F.2d 333, 337 (4th Cir.1992). Remand is required if a trial court does not make the requisite findings using the correct Kastigar standard or procedures. See, e.g., United States v. Dudden, 65 F.3d 1461, 1469 (9th Cir.1995); United States v. Schmidgall, 25 F.3d 1523, 1530-31 (11th Cir.1994); United States v. Rinaldi, 808 F.2d 1579, 1584 (D.C.Cir.1987); United States v. Tantalo, 680 F.2d 903, 908 (2d Cir.1982). 3. Application to this Case The trial court here never made an affirmative finding that the People's evidence derived entirely from sources other than the immunized testimony. The court's pretrial ruling, made without a transcript of defendant's immunized testimony, stated only that it had "no basis to find that the District Attorney has improperly used the immunized testimony to acquire any information or evidence, either directly or indirectly." But Kastigar places the burden on the prosecution affirmatively to disprove use and derivative use. And without knowing the particulars of the immunized testimony, the trial court could not properly have made the required finding. See United States v. Cantu, 185 F.3d 298, 303 (5th Cir.1999) ("a district court conducting a Kastigar hearing must have the defendant's immunized statements in order to decide the issue fairly") (citing United States v. Williams, 817 F.2d 1136, 1138 (5th Cir.1987)). The court's post-trial ruling also was legally insufficient. It ruled that "[d]uring this entire trial, the prosecution made no reference to or improper use of the defendant's immunized testimony." Again, the court did not find, nor was there any record basis for finding, that none of the prosecution's evidence derived from immunized testimony. The prosecution was never subjected to the "heavy" and "affirmative" burden of proving that its trial evidence "derived from a legitimate source wholly independent of the compelled testimony." Kastigar, 406 U.S. at 460, 92 S.Ct. 1653. 168 There are several ways, undetectable from a trial record, in which there could be an impermissible derivative use. Here, for example, both the prosecutor and the investigator (herself a witness) met with trial witnesses in advance of their testimony. Indeed, after the codefendant's trial, the prosecutor met alone with the crime victim and later claimed the victim's ability to recall new details resulted from "improved" memory. Any communications by a prosecutor or investigator in witness preparation meetings relaying information derived from defendant's immunized testimony would be impermissible. Poindexter, 951 F.2d at 373 ("a prohibited `use' occurs if a witness's recollection is refreshed by exposure to the defendant's immunized testimony, or if his testimony is in any way `shaped, altered, or affected,' by such exposure") (citing North, 910 F.2d at 860-61, 863); see also Schmidgall, 25 F.3d at 1528 ("Prohibited indirect derivation includes using immunized testimony to help shape the questioning of another witness."). 4. Instructions on Remand The district court on remand should begin by identifying precisely the information in defendant's immunized testimony that was not previously known to the prosecution. The People then must prove by a preponderance of the evidence that none of this information was used directly or indirectly in defendant's prosecution. That showing must be made "witness-by-witness" and "if necessary, ... line-by-line and item-by-item." North, 910 F.2d at 873; see also United States v. Ford, 176 F.3d 376, 381 (6th Cir.1999) (approvingly quoting North on this point). And the People cannot carry their burden simply by negating taint but instead must demonstrate affirmatively a non-immunized source for their evidence. See Hubbell, 530 U.S. at 40, 120 S.Ct. 2037; Kastigar, 406 U.S. at 460, 92 S.Ct. 1653. The district court also should require the prosecution affirmatively to demonstrate a wholly independent source for all strategic decisions, such as use of a complicity theory, challenged by defendant. In requiring such a showing, we do not now hold that Kastigar proscribes so-called "non-evidentiary" uses of immunized testimony. While Casselman could be read that broadly, courts are divided on whether Kastigar extends to non-evidentiary uses. See Reali I, 895 P.2d at 166-67 (citing cases). We cannot decide what non-evidentiary uses are prohibited without knowing what, if any, were made. Notably, the non-evidentiary use issue exists here only because the District Attorney's Office rejected the district court's strong, and very appropriate, recommendation that the case be tried by an untainted prosecutor. See generally 3 Wayne R. LaFave, supra, Criminal Procedure § 8.11(c), at 288 ("the assignment of the prosecution to prosecutors and investigators who have no knowledge of the contents of the immunized testimony is deemed advisable even by courts taking a narrower view of what Kastigar prohibits") (citing cases). The district court must make precise findings on the extent to which the prosecution has or has not carried its burden of disproving impermissible use of the immunized testimony. Only then should it consider whether any such use was harmless beyond a reasonable doubt. Cf. United States v. Ponds, 454 F.3d 313, 328-29 (D.C.Cir.2006) (referring to need for "precise" findings, and "remand[ing] the case to the district court to consider the degree of the government's impermissible use and to determine whether that use was harmless beyond a reasonable doubt"). III. Remaining Issues A. Double Jeopardy and Speedy Trial Defendant raises constitutional double jeopardy and statutory speedy trial challenges resting on the same premise: that the court did not need to grant the defense-requested mistrial but instead could have resolved the Kastigar issues without discharging the jury. We review these issues of constitutional and statutory law de novo. See People v. Castaneda, 187 P.3d 107, 109 (Colo.2008); People v. Carr, 205 P.3d 471, 473 (Colo.App.2008). Defendant's double jeopardy challenge to the necessity of the mistrial fails because defendant sought the mistrial. A 169 defense "motion for a mistrial is generally considered to operate as a waiver" of double jeopardy protections, People v. Espinoza, 666 P.2d 555, 558 (Colo.1983), and at a minimum precludes any later challenge to the necessity of the mistrial. See Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (where "the defendant himself has elected to terminate the proceedings against him," "the `manifest necessity' standard has no place in the application of the Double Jeopardy Clause"). Double jeopardy does not preclude retrial in this context unless the prosecution "conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Kennedy, 456 U.S. at 679, 102 S.Ct. 2083; see also Espinoza, 666 P.2d at 558-59 (following Kennedy and People v. Baca, 193 Colo. 9, 562 P.2d 411 (1977), which "held that prosecutorial misconduct did not provide a basis for a claim of double jeopardy in the absence of evidence that the prosecutor was attempting to save his case for another day by triggering a mistrial"). Defendant cannot satisfy Kennedy because the prosecution plainly did not intend to provoke defendant into seeking a mistrial after the jury was impaneled; instead, defense counsel concededly made a strategic choice to delay the Kastigar objections until that time. The statutory speedy trial challenge fails for a similar reason. Defendant, who consented to a trial outside the normal six-month time limits, does not and could not challenge the original trial date. See § 18-1-405(4), C.R.S.2008 (allowing defense waivers of statutory deadlines). The retrial, which occurred within three months of the mistrial date, complied with the speedy trial statute. See § 18-1-405(6)(e) (excluding "period of delay caused by any mistrial, not to exceed three months for each mistrial"), applied in Mason v. People, 932 P.2d 1377 (Colo.1997). Defendant's only argument against this exclusion is that "the mistrial was based on juror inconvenience, and this is not a valid reason for a mistrial." But, as with double jeopardy, defendant's mistrial motion waived any challenge to the need for the mistrial. Cf. People v. Duncan, 31 P.3d 874, 877-78 (Colo.2001) (analogizing to Kennedy, in holding that defense continuance motion waives speedy trial challenge unless prosecutorial misconduct was designed expressly to "`goad' the defendant into waiving that right" to speedy trial). B. Discovery Violations and Sanctions The district court sanctioned the prosecution for a conceded discovery violation by dismissing two criminal counts, including a crime of violence sentencing enhancer. Defendant argues this sanction was insufficient. Because trial courts have broad discretion in this area, "an order imposing a discovery sanction will not be disturbed on appeal unless it is manifestly arbitrary, unreasonable, or unfair." People v. Lee, 18 P.3d 192, 196 (Colo.2001). The violation was the prosecutor's failure to disclose the victim's inconsistent pretrial preparation session statements. The inconsistency involved the number of times the victim had been duct-taped: he testified at the codefendant's trial to two such duct-tapings, told the prosecutor in a subsequent preparation session that he had been duct-taped more than twice, and then testified at defendant's trial that he had been duct-taped four times. The trial court did not abuse its discretion by dismissing two counts instead of granting a mistrial of the entire case. Discovery sanctions serve "the dual purposes of protecting the integrity of the truth-finding process and deterring discovery-related misconduct." Id. A trial court's paramount obligation is "to restore `a level playing field'" so as "to advance the search for truth." Id. at 197. It can do so by ordering production of the withheld material and, if necessary, granting a continuance to allow its effective use. See Crim. P. 16(1)(III)(g). If necessary, the court may impose a deterrent sanction, but it generally "should impose `the least severe sanction that will ensure that there is full compliance with the court's discovery orders.'" Lee, 18 P.3d at 197 (quoting People v. Cobb, 962 P.2d 944, 949 (Colo. 1998)). 170 Defendant here does not argue that any further sanction was necessary to restore a level playing field. The prosecutor should have made prior disclosure of the victim-witness's inconsistent statements about the purported number of duct-tapings, but the delayed disclosure did not prevent defense counsel from conducting effective impeachment on this ground. A mistrial was not necessary "to cure any prejudice resulting from the violation," Lee, 18 P.3d at 197, but instead was sought as a punitive sanction. Granting a mistrial solely to sanction the prosecution, however, would have spawned unnecessary delay and collateral damage to the interests of the court, witnesses, jurors, and public in resolving this case. The trial court did not abuse its discretion by concluding that dismissal of two criminal counts was a more appropriate punitive sanction. Defendant nonetheless argues the sanction was insufficiently severe in light of the prior "pattern of prosecutorial misconduct and discovery violations." But it was this prior pattern that justified a punitive sanction at all. Standing alone, nondisclosure of inconsistencies regarding the duct-taping arguably would not have supported a punitive sanction, especially given the trial court's finding it was the product of prosecutorial "thoughtlessness." The trial court had already remedied the major prior violations by granting defendant a personal recognizance bond and ultimately precluding the prosecution from introducing DNA evidence. Defendant has not shown any abuse of discretion regarding the manner in which the trial court addressed the prosecution's discovery violations. C. The Juror Question Defendant argues the trial court erred in allowing a juror question under Crim. P. 24(g), asking the woman who drove with defendant and the codefendant to the victim's apartment why she did not like defendant. We disagree. Defense counsel's cross-examination elicited this dislike of defendant. The parties stipulated during the redirect questioning of this witness that to address this point the prosecutor could introduce but not expound on a profane and threatening letter defendant had written to the witness. The juror's question was asked at the end of redirect. Defense counsel objected only that the question was precluded by the parties' stipulation and had been asked and answered. The court overruled those objections and put the juror's question to the witness. The witness answered that she and defendant did not get along very well even "before this happened," that she did not "care for anybody that was involved in this any longer," and that she also did not like defendant because he "won't tell the truth about everyone's intentions that night." Defendant argues the stipulation should have precluded the juror's question why the witness did not like defendant. But, as the trial court recognized, this stipulation did not purport to cover juror questions. In any event, it did not bar this particular question. At most, the stipulation precluded further questioning on the contents of defendant's letter to the witness. This letter may have been one reason why the witness disliked defendant but it was not necessarily the only reason for that dislike. Accordingly, the trial court properly ruled that the juror's question was not precluded for the reasons raised at trial and renewed on appeal. Defendant did not argue at trial and does not argue on appeal that the juror's question was substantively objectionable. Nor did defendant move to strike any part of the witness's answer explaining her dislike of defendant. We therefore do not consider possible substantive objections to the question and answer. D. The Prosecutor's Closing Argument Defendant finally argues reversal is required based on remarks in the prosecutor's rebuttal closing argument. Because defendant did not raise an objection in the trial court, he must satisfy the plain error standard. See Crim. P. 52(b). This means he must show the remarks were "flagrantly, glaringly, or tremendously improper," Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.2005) (internal quotations omitted), and 171 "so undermine[d] the fundamental fairness of the trial as to cast serious doubt on the reliability of the jury's verdict." People v. Welsh, 176 P.3d 781, 788 (Colo.App.2007). The prosecutor, in arguing that defendant personally had committed some of the violent acts, attacked the credibility of some of defendant's post-arrest denials. In the remarks now challenged on appeal, he added: [You jurors] have to consider the circumstances under which the witnesses have testified. Now you heard [defendant's] words. He didn't testify. You heard his words. They weren't under oath, as opposed to every other person that you've heard from who swore to tell you the truth. On the one hand, a prosecutor may not ask a jury to infer guilt from a defendant's constitutionally-protected right not to testify. Griffin v. California, 380 U.S. 609, 614-15, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). On the other hand, reference to a defendant's failure to testify is not necessarily unconstitutional if it does not ask the jury to infer guilt from the failure to testify but instead fairly responds to a defense contention. See United States v. Robinson, 485 U.S. 25, 34, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988) ("It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant's exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence."); United States v. Ivory, 532 F.3d 1095, 1101 (10th Cir.2008) ("the prosecutor's remark referred to the failure of the Defendants to testify, but the remark's purpose was not to encourage the jury to infer guilt from silence by suggesting that a defendant who does not testify must have something to hide") (holding that Robinson rather than Griffin controlled the case). We need not decide whether the remarks in this case crossed the line drawn by Griffin and Robinson. Even assuming they did, the normal plain error standards apply to constitutional errors challenged for the first time on appeal. People v. Miller, 113 P.3d 743, 748-50 (Colo.2005). Applying those standards, we conclude any error in the remarks did not so undermine the fairness of the trial as to cast serious doubt on the jury's verdict. The evidence was strong, the remarks now challenged were a relatively small part of closing argument, and the jury was instructed it could draw no adverse inference from defendant's failure to testify. IV. Conclusion The case is remanded for further proceedings consistent with this opinion. If the trial court finds after those proceedings that the prosecution has carried its affirmative Kastigar burdens, or that any Kastigar violations were harmless beyond a reasonable doubt, it shall leave the convictions intact and the judgment shall stand affirmed; otherwise, it shall vacate the convictions. Any party adversely affected by a final trial court ruling on the Kastigar issue may file a new notice of appeal challenging that ruling. Judge CASEBOLT and Judge ROY concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2066563/	957 A.2d 377 (2008) G.M., Petitioner v. DEPARTMENT OF PUBLIC WELFARE, Respondent. No. 765 C.D. 2008. Commonwealth Court of Pennsylvania. Submitted on Briefs August 8, 2008. Decided September 26, 2008. 378 Justin R. Lewis, Pittsburgh, for petitioner. Jeffrey P. Schmoyer, Sr. Counsel and Allen C. Warshaw, Chief Counsel, Pittsburgh, for respondent. BEFORE: McGINLEY, Judge, and COHN JUBELIRER, Judge, and BUTLER, Judge. OPINION BY Judge McGINLEY. G.M. (Petitioner) petitions for review of an order of the Secretary of the Department of Public Welfare (DPW) that upheld an order of the Bureau of Hearings and Appeals' (Bureau) dismissal of G.M.'s appeal of a founded report of child abuse. On May 10, 2007, a founded report of child abuse was filed by the Allegheny County Office of Children, Youth and Families (OCYF) which named Petitioner as the perpetrator of child abuse against N.G., Petitioner's step-daughter. In June of 2008, DPW's Office of Child Line and Abuse Registry (Child Line) informed Petitioner by letter that he was named as the perpetrator in a founded report of child abuse and that he had forty-five days to appeal. Petitioner responded that the founded report of child abuse should be expunged because Petitioner "pled nolo contendere to the corruption of minors ... [and][u]nlike a guilty plea, a plea of nolo contendere does not admit or deny the charges and can be rejected by a Judge...." Appeal from the Founded Report, September 5, 2007, at 3; Reproduced Record (R.R.) at 5. On December 18, 2007, the Bureau issued a Rule to Show Cause that directed Petitioner "to respond ... by filing, as applicable, a written explanation detailing the basis for your argument that the appeal should or should not continue to a hearing, any relevant statutory, regulatory or decisional authority in support of your argument, and any relevant court orders and supporting documentation." (emphasis added). Rule to Show Cause, December 18, 2007 at 1; R.R. at 7. On January 30, 2008, Petitioner responded: 13. In pleading nolo contendere Appellant [Petitioner] did not admit to any conduct constituting "sexual abuse or exploitation." 14. Under 23 Pa.C.S. § 6303, an "indicated" report must be supported by "substantial evidence" of the alleged abuse, based upon (1) available medical evidence; (2) the child protective service investigation; or (3) an admission of the acts of abuse by the perpetrator. Appellant's Response to Rule to Show Cause, January 30, 2008, Paragraphs 13 and 14 at 3; R.R. at 27. On April 11, 2008, OCYF responded: 2. The Hampton Township Police Department had filed a Criminal Complaint against Appellant [Petitioner] charging him with Unlawful Contact with a Minor, Indecent Assault, Endangering Welfare of Children and Corruption of Minors.... .... 4. On March 7, 2007, ... the Appellant [Petitioner] in the case at bar pled nolo contendere and accepted a plea bargain based upon one count of corruption of minors.... 5. Pursuant to Pa.Code 55 § 3490.4, a judicial adjudication has occurred involving the exact same circumstances 379 involved in the allegation of child abuse, thus Appellant [Petitioner] is not entitled to expunction of the Child Line, nor a hearing on the merits. See 55 § 3490.106(a). (emphasis added). Response to Rule to Show Cause, April 11, 2008, Paragraphs 4 and 5 at 1-2; R.R. at 8-9. On March 6, 2008, the Bureau dismissed Petitioner's appeal and concluded that Petitioner "failed to provide sufficient reasons why this matter should not be dismissed... [s]pecifically, an Order issued by the Court of Common Pleas of Allegheny County in which Appellant [Petitioner] pled nolo contendere to the charge of Corruption of Minors." Bureau Order, March 6, 2008, at 1; R.R. at 31. After reconsideration, DPW upheld the Bureau's decision on April 24, 2008. On appeal[1], Petitioner contends that he was entitled to a hearing based on DPW's failure to notify him concerning the change in the investigation report from "indicated" to "founded."[2] Specifically, Petitioner asserts that because a "founded" report of child abuse constituted an adjudication he was entitled to a notice of hearing and an opportunity to be heard. Section 504 of the Administrative Agency Law (Agency Law), 2 Pa.C.S. § 504, provides that "[n]o adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard...." In R.F. v. Department of Welfare, 801 A.2d 646 (Pa.Cmwlth.2002), this Court determined that a founded report of child abuse was an adjudication and as such granted the perpetrator the right to appeal and an opportunity to be heard. However, in R.F., this Court emphasized that where "there is an entry of a guilty plea or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse, an appeal would `in most instances, constitute a collateral attack of the adjudication itself, which is not allowed.'" (emphasis added). Id. at 649, quoting J.G. v. Department of Public Welfare, 795 A.2d 1089, 1093 (Pa.Cmwlth. 2002). In R.F. v. Department of Public Welfare, 845 A.2d 214 (Pa.Cmwlth.2004), this Court analyzed what constituted the "same factual circumstances." In R.F., the Berks County Children and Youth Services (CYS) had received a report of suspected sexual abuse of D.F. allegedly perpetrated by R.F., the father. On February 24, 1999, criminal charges were filed against R.F. Pursuant to a plea offer, R.F. pled nolo contendere to endangering the welfare of a child. On May 2, 2000, CYS filed an amended report and changed "indicated" to "founded." R.F. appealed and argued that the nolo contendere plea was not 380 predicated on an allegation of sexual abuse of a child. Following a hearing, the Hearing Officer found "that the nolo contendere plea involved the same factual circumstances as those involved in the allegation of child abuse" and DPW denied R.F.'s request to expunge. Id. at 217. On appeal, this Court reversed: In order to maintain a `founded report,' DPW requires a criminal disposition against a perpetrator on a charge where the finding of guilt or the evidence proffered by the Commonwealth to which the defendant enters a nolo contendere plea is based on sexual abuse.... The charge of Endangering the Welfare of a Child does not mandate an inference of sexual abuse.... In addition, simply because R.F. entered a plea of nolo contendere to Endangering the Welfare of a Child, DPW may not infer that the plea was to an act of sexual abuse, especially in light of the colloquy surrounding the entering of that plea.... In that discussion, R.F. stated that he did not have sexual contact with his daughter D.F., and the judge responded that "[t]here is no allegation of that and nobody's-the Commonwealth's not even offering to be able to prove that." Moreover, the Assistant District Attorney admitted that sexual abuse was not part of the factual basis for R.F.'s offering of the plea of nolo contendere and, instead, his plea was based upon the generic language that he violated his duty of care to a child. (emphasis added, footnotes and cites omitted). R.F., 845 A.2d at 218. Here, the evidence proffered by the Commonwealth concerning the underlying criminal proceedings was based upon the same factual circumstances contained in OCYF's Child Protective Services Investigative Report.[3] The Court: The district attorney's office is going to give a summary of the case against you. I want you to pay attention to it because when she's done, I'm going to ask your attorney and then you if you have any additions or corrections you want to make to that summary. Do you understand that? Defendant: Yes. The Court: Go ahead. Laura Ditka, attorney for the Commonwealth: Your Honor, if this case would have proceeded to trial, the primary witness would have been ... [N.J.], who would have testified that the defendant [Petitioner] was married to her mother when she was 15 years of age and in the 9th grade. On two separate occasions, he [Petitioner] approached her, once in which he began a conversation about what kind of underwear she was wearing and then attempted to stick his hand inside her sweatpants, touch her thigh. (emphasis added). And on another occasion when she was on her bed, he came and began to rub her back, stuck his hand under her shirt and touched her right breast. (emphasis added). That substantially would have been the Commonwealth's case. The Court: Any additions or corrections...? 381 Counsel and Defendant: ... No. .... The Court: I'll accept your plea [nolo contendere] and find the defendant has understood the proceedings today and he's entered into his plea knowingly, intelligently, and voluntarily. Notes of Testimony, March 7, 2007, at 5-6 and 8; R.R. at 17-18 and 20. Unlike, in R.F., the same factual circumstances that resulted in the criminal proceedings were the basis for the "founded" report of sexual child abuse.[4] Because Petitioner's challenge is nothing more than an attack on the underlying criminal matter, he is not entitled to a hearing pursuant to Section 504 of the Agency Law, 2 Pa.C.S. § 504. Accordingly, this Court affirms. ORDER AND NOW, this 26th day of September, 2008, the order of the Secretary of the Department of Public Welfare in the above-captioned matter is affirmed. NOTES [1] This Court's review is limited to a determination of whether constitutional rights have been violated, an error of law was committed, or necessary findings of fact were unsupported by substantial evidence. J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth.2002), citing Bird v. Department of Public Welfare, 731 A.2d 660 (Pa.Cmwlth. 1999). [2] Section 6303(a) of the Child Protective Services Law (Law), 23 Pa.C.S. § 6303, defines the term "founded report" as: A child abuse report made pursuant to this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstance involved in the allegation of child abuse. (emphasis added). [3] Child Protective Service Investigation Report stated that N.G. was a "16 year old female" and that the "perpetrator [Petitioner] put his right hand in a hole in pants touching vaginal area" and that the "[p]erpetrator [Petitioner] reportedly also went into bedroom and grabbed breast." Child Protective Service Investigation Report, June 6, 2007, at 1; Certified Record. [4] Section 6303(a) of the Law, 23 Pa.C.S. § 6303 defines the term "sexual abuse or exploitation" as "[t]he employment, use, persuasion, inducement, enticement or coercion of any child to engage in or assist any other person to engage in any sexually explicit conduct...."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1628925/	956 S.W.2d 562 (1997) COASTAL CEMENT SAND INC., Consolidated Carriers, Inc., and Southwest Texas Ready Mix Inc., Appellants, v. FIRST INTERSTATE CREDIT ALLIANCE, INC., Now Known As Orix Credit Alliance, Inc., Appellee. No. 14-95-00867-CV. Court of Appeals of Texas, Houston (14th Dist.). April 10, 1997. Rehearing Overruled December 23, 1997. 564 Gary L. McConnell, Angleton, for appellants. Douglas R. Little, Houston, for appellee. Before YATES HUDSON and FOWLER, JJ. MAJORITY OPINION YATES, Justice. This is an appeal from an order granting summary judgment in favor of First Interstate Credit Alliance, Inc., now known as ORIX Credit Alliance ("ORIX"). Coastal Cement Sand, Inc., Consolidated Carriers, Inc., and Southwest Texas Ready Mix, Inc. (collectively appellants) filed suit against ORIX, alleging ORIX had contracted for usury. Appellants argue the trial court erred in granting summary judgment in favor of ORIX and in denying appellants' cross-motion for partial summary judgment because 1) ORIX failed to state explicitly any grounds for summary judgment in its motion, 2) the trial court relied on improper summary judgment evidence, and 3) the contract was usurious. We conclude the contract is usurious on its face, and we reverse the judgment of the trial court. Background Between April 1984 and January 1991, each appellant executed a number of promissory notes and security documents in favor of ORIX. There are fifteen notes at issue in this appeal.[1] One of the loans was repaid in full, and the others were refinanced, in some cases more than once. Despite the presence of an acceleration clause in each of these notes, ORIX did not unilaterally accelerate the maturity of any of these notes. Each of the refinanced loans matured as a result of appellants' requests for refinancing, and ORIX collected only the principal and the accrued, earned interest. It never collected usurious interest. Appellants sued ORIX, alleging that ORIX "contracted for" a usurious rate of interest, 565 and appellants sought damages under article 5069 of the Texas Revised Civil Statutes. Tex.Rev.Civ. Stat. Ann. art. 5069, § 1.06 (Vernon 1987 & Supp.1996). Appellants argued ORIX contracted for usurious interest because a contingency existed on the face of the notes that might allow ORIX to collect usurious interest if the notes were accelerated. ORIX moved for summary judgment, and appellants filed a partial cross-motion for summary judgment. The partial cross-motion for summary judgment reserved only the issue of attorneys' fees. The trial court granted ORIX's motion for summary judgment. Summary Judgment Grounds In the first point of error, appellants argue ORIX failed to expressly present any grounds in its motion for summary judgment. The relevant portions of ORIX's motion state: 3. As ORIX will show in its Memorandum of Authorities in Support of its Motion for Summary Judgment ("Memorandum"), Plaintiffs' theory of liability is incorrect as a matter of law. Although ORIX denies that the language of the promissory notes is sufficient under the authorities to render them usurious in the abstract, more importantly Texas law clearly requires that the Court consider the terms of the entire contract between the parties, and not one isolated portion, to determine the true intent of the parties to the contract before considering whether this contract was usurious at the time it was made. 5. As the parties have agreed that there are no genuine issues of material fact, summary judgment is proper. Because a proper consideration of the summary judgment evidence and the law will reveal that Plaintiffs' claim for usurious contracting against ORIX fails as a matter of law, ORIX is entitled to summary judgment that Plaintiffs take nothing. ORIX filed a Memorandum of Authorities in Support of its Motion for Summary Judgment, detailing the reasons it believed it was entitled to summary judgment. The Memorandum sought the application of certain contract construction rules, and it argued the loans were not usurious. It also maintained that New York law, rather than Texas law, applied. Finally, it raised a number of defenses, including statute of limitations, novation, bona fide error, full performance, and a defense based on Southwest Texas Ready Mix, Inc.'s bankruptcy. ORIX was required to state each of these grounds in its motion. The Texas Supreme Court has held a summary judgment motion "must expressly present the grounds upon which it is made." McConnell v. Southside Independent Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (plurality opinion). The motion must "stand or fall on the grounds expressly presented." Id. Although a trial court may consider a brief or memorandum for guidance in making its determination whether the moving party is entitled to judgment, it may not refer to the brief or memorandum to determine whether the grounds are expressly presented. Id. We agree with appellants that ORIX failed to present each of these grounds in its motion. The only possible ground inferred from ORIX's motion is that the contracts were not usurious as a matter of law. ORIX certainly could have stated this ground much clearer, but we conclude the motion contained the "ground" that the ORIX notes were not usurious as a matter of law. "Grounds may be stated concisely, without detail and argument. But they must at least be listed in the motion." McConnell, 858 S.W.2d at 340 (quoting Roberts v. Southwest Texas Methodist Hosp., 811 S.W.2d 141, 146 (Tex.App.San Antonio 1991, writ denied)). On the other hand, nothing in the motion itself suggests that New York law applies or that ORIX asserted a number of defenses. Those grounds not explicitly stated within the motion will not be addressed in determining whether the trial court erred in granting the motion for summary judgment. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 805 (Tex.1994) (refusing to address collateral estoppel because it was not a ground in the motion, but addressing the other grounds presented). ORIX argues its Memorandum was incorporated into its motion for summary judgment.[2]566 ORIX further contends this incorporation is sufficient to meet the requirements of McConnell. ORIX relies upon a decision of the Amarillo Court of Appeals, which declared, "our reading of McConnell convinces us that grounds found in a brief that is incorporated into a summary judgment motion should be deemed as being presented in the motion." Howell v. Murray Mortgage Co., 890 S.W.2d 78, 85 (Tex.App.Amarillo 1994, writ denied) (emphasis added). The result in Howell appears to contradict the mandate in McConnell. In McConnell, the summary judgment motion specifically referenced the supporting brief. McConnell, 858 S.W.2d at 344 (Hecht, J., dissenting). In his dissent, Justice Hecht argued "the motion may state the grounds for summary judgment by reference to other documents as long as the opposing party is provided with adequate information to oppose the motion, and the summary judgment issues are defined." Id. at 345 (emphasis added). In a footnote, however, the plurality rejected this argument and reasoned such an approach would "inject an element of uncertainty into every rule, no matter how clearly stated." Id. at 341 n. 4. The plurality then discussed the dangers of creating exceptions to the plain meaning of Rule 166a: Carving exceptions to this simple requirement that the motion for summary judgment state the specific grounds frustrates the purpose of Rule 166a(c). Eventually the exceptions would consume the rule, and inject uncertainty into summary judgment proceedings concerning what issues were presented for consideration. Furthermore, it is certainly not unduly burdensome to require the movant to state the specific grounds in the motion for summary judgment. Id. at 341. Because our reading of McConnell precludes the holding in Howell, we choose not to follow Howell. Finally, ORIX argues appellants cannot contend they were "in any way misled, or unaware, about the grounds ORIX relied upon for its summary judgment." However, the standard enunciated in McConnell does not require any showing that the opposing party was misled concerning the grounds for summary judgment. The standard is simply whether the grounds are explicitly stated in the motion itself. McConnell, 858 S.W.2d at 341. A motion does not state the grounds for summary judgment if it simply references an accompanying brief or memorandum of authorities that contains the grounds for summary judgment. McConnell, 858 S.W.2d at 341. Likewise, if the motion explicitly states only some of the grounds for summary judgment but references an accompanying brief or memorandum of authorities that contains other grounds for summary judgment, the summary judgment can be upheld only on those grounds explicitly stated in the motion. Accordingly, only the ground stated in the motion for summary judgment (that the contracts were not usurious as a matter of law) will be considered in determining whether the trial court erred in granting the motion for summary judgment. Thus, appellants' first point of error is overruled in part and sustained in part. Improper Summary Judgment Evidence In their second point of error, appellants argue the trial court relied on defective summary judgment evidence. The summary judgment evidence at issue includes an order from the United States District Court (the "federal order"), a declaration of Jacob M. Mehl (the "Mehl Declaration"), and an affidavit from ORIX's counsel, Douglas R. Little (the "Little affidavit"). The federal order granted summary judgment in favor of ORIX in previous litigation with claims similar to those presented here. Appellants were not involved in that litigation. The Mehl Declaration was filed in the federal case, and 567 ORIX attached a copy of the Declaration to their summary judgment motion in this case. The Little affidavit explained the nature of the documents and swore they were true and correct copies. Appellants argue the Mehl Declaration is inadmissible because the Little affidavit does not swear that the facts contained in the Mehl document are true and correct. Affidavits must be made on personal knowledge, set forth facts admissible into evidence, and show affirmatively that the affiant is competent to testify to the matters stated. Tex.R. Civ. P. 166a(f). "Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Id. Copies of documents attached to a properly prepared affidavit indicating the copies are "true and correct" are sworn copies. Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986). Without the notarization or jurat, the unsworn statement is not an affidavit, and it is not proper summary judgment evidence. Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 889 (Tex.App.Houston [1st Dist.] 1987, no writ). An affidavit is not sufficient unless the statements are direct and unequivocal and perjury can be assigned upon them. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). The affiant must swear or affirm under oath that the facts stated are true. Gerstacker v. Blum Consulting Engineers, Inc., 884 S.W.2d 845, 848 (Tex.App.Dallas 1994, writ denied). The Mehl Declaration does not contain a notarization or jurat. Thus, standing alone it does not amount to an affidavit. The Little affidavit swears the unsworn Mehl Declaration is a true and correct copy. However, it does not swear the facts contained within the Mehl Declaration are true and correct. Nor does it indicate that Little has personal knowledge of the facts contained in the unsworn statement. Therefore, we regard the Mehl Declaration as a true and correct copy of the statement, but we cannot consider the facts contained within the Declaration as proper summary judgment evidence. ORIX contends the Mehl Declaration is admissible under Rule 1005 of the Rules of Evidence. Tex.R. Civ. Evid. 1005[3]. Even if the declaration met the requirements of Rule 1005, the affidavit also must be based on personal knowledge. Tex.R. Civ. P. 166a(f). The requirement that the facts alleged constitute admissible evidence is only one of the requirements of a proper affidavit under Rule 166a(f). Because the Little Affidavit does not suggest that the unsworn statements contained in the Mehl Declaration are based on Little's personal knowledge, it does not meet the requirements of Rule 166a(f). Appellants also argue the federal court order was improper summary judgment evidence. ORIX asserts the federal order was not offered as summary judgment evidence, but was provided to the trial court only as persuasive authority. Therefore, we will not consider the federal order as part of the summary judgment proof. Appellants reason that because the trial court did not specify the grounds it granted summary judgment upon, "it must be implied the Court considered the objectionable evidence in making its decision." We disagree. It is just as likely the court did not rely upon that evidence. Thus, we address the merits of the motion for summary judgment without reference to these three documents. Appellants' second point of error is overruled. Usury 1. Background and Standards. In its third point of error, appellants argue the trial court erred in granting summary judgment in favor of ORIX "on the grounds presented in its separate memorandum of authorities." As discussed above, the 568 grounds found only in the Memorandum of Authorities will not be addressed. The trial court may have properly granted summary judgment based solely on the grounds explicitly stated in the motion itself. Thus, only those grounds will be addressed in determining whether the trial court erred in granted summary judgment. The standard of review for a motion for summary judgment is well-settled. The movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; in deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and every reasonable inference must be resolved in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Each of the fifteen notes were pre-printed forms with certain empty blanks. The first blank is entitled "(Total of Note)." Each note also has blanks for the city, state, date, and the mortgagee, which in each case here was ORIX. For each of these notes, the total sum was then restated and broken down into fixed, equal principal installments with one final balloon payment. The precomputed interest was included in the stated face amount of each note so that an equal monthly payment amortization schedule, with a final balloon payment, could be prepared. ORIX prepared the contracts in this manner for the convenience of the borrower so that the borrower would know in advance the amount of the monthly payment to retire the total indebtedness over the total term of the Loan Contract. Each note contained the following clause: ... with interest from the date hereof payable on the unpaid amount at the maturity of each installment, until maturity at the rate of -0-% per annum and after maturity at the highest legal contract rate, and if placed in the hands of an attorney for collection, a reasonable sum as attorneys' fees. Upon non-payment of any installment or interest when due, all remaining installments shall, at the option of the holder and without notice or demand, become immediately due and payable together with interest, collection charges and attorneys' fees. (emphasis added). The record does not explicitly state why zero was inserted into the blank for the annual interest rate, but we infer ORIX placed the zero in the "per annum" space because the total amount of indebtedness already included the total amount of interest due over the period of the loan. Texas statutory law provides monetary penalties against any person who "contracts for, charges or receives interest which is greater" than the maximum, legal interest rate. Tex.Rev.Civ. Stat. Ann. art. 5069, § 1.06(1). Because the usury statutes are penal in nature, they must be strictly construed. Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 476 (Tex.1988). Courts will presume the parties intended to enter into a non-usurious contract. Smart v. Tower Land & Inv. Co., 597 S.W.2d 333, 341 (Tex.1980). When a party is claiming damages against one who "contracts for" usurious interest, they must show the contract, as construed, is usurious on its face. "The contract under construction will not be found usurious on its face unless it expressly entitled the lender, upon the happening of a contingency or otherwise, to exact interest at a rate greater than that allowed by law." Id. (emphasis added). To determine whether the lender is expressly entitled to collect usurious interest on the face of the contract, the terms used in the acceleration clause are of utmost importance. Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 328 (Tex.1984). For example, a provision that calls for the maturation of a "debt" is not usurious because interest does not become part of the "debt" until earned. Id. However, the acceleration of a "note" includes the face amount and unearned interest, raising the possibility the note is usurious on its face. Id. Both parties cite Jim Walter Homes, Inc. v. Schuenemann to determine whether the term "installments" includes only the principal, or the principal plus unearned interest. However, the parties strongly disagree as to the applicability and effect of Schuenemann to this case. 569 2. Does Schuenemann apply? The Schuenemanns had the option to purchase a house from Jim Walters Home, Inc. for a "cash price" of $17,735. Id. at 327. Instead, they elected the "time price" of $37,008, which included a time price differential, or finance charge, of $19,273 over the cash price. Id. The Schuenemanns sued Jim Walters Homes, Inc., alleging the contract was a usurious time price differential contract in violation of the Texas Consumer Credit Code. Id. at 326. The trial court granted the Schuenemanns' motion for summary judgment. Id. On appeal, the Texas Supreme Court considered three different documents to determine the entire agreement between the parties. Id. at 327. The building contract stated both the cash price and the time price of the house, it listed the 11.4% annual interest rate, and it contained an acceleration clause declaring "the remainder of said debt" immediately due upon default. Id. The installment note bore a face amount of $37,008. Id. Only by reference to the building contract could one determine that $19,273 of that amount was a finance charge. Id. The installment note provided for acceleration of "all the remainder of said installments due and said note will mature and it shall become due and payable." Id. The final contract, the lien contract, allowed the acceleration of "the entire remaining unpaid balance of said note." Id. at 328. The Court concluded the acceleration clauses in the installment note and the lien contract created the potential for the collection of usury. Id. at 329. In reaching this conclusion, the Court refused to give effect to nonusurious language contained in the building contract because it was "merely an inaccurate description of the acceleration terms actually agreed upon by the parties." Id. 330-31. For the same reason, the Court also refused to apply the rule that if a contract is capable of two interpretations, one usurious and the other non-usurious, the non-usurious interpretation applies. Id. at 331-32. ORIX contends that Schuenemann was decided under Subtitle 2 of the Consumer Credit Code and does not apply to this situation because the Texas Supreme Court has dispensed with the presumption of legality in Subtitle 2 cases.[4]See Gonzalez v. Gainan's Chevrolet City, Inc., 690 S.W.2d 885, 887 (Tex.1985). With the presumption of legality removed, it would be easier to find a contract usurious under Subtitle 2 than under Subtitle 1. While the Court may have removed this presumption after the decision in Schuenemann, it is clear that Schuenemann was not decided on those grounds. The Court specifically stated that it would continue to adhere to the presumption of legality in Credit Code time differential cases. Schuenemann, 668 S.W.2d at 332. Thus, Schuenemann cannot be distinguished on this basis. ORIX next contends the decision in Schuenemann turned on the phrase "said note" rather than "said installments." Because the clause in this case uses the term "installment" without the term "said note," ORIX contends Schuenemann does not apply. The Schuenemann Court indicated the "said note" language in the installment contract was analogous to the language used in an earlier decision, which held the contracts were usurious. Id. at 329; see also Clements v. Williams, 136 Tex. 97, 147 S.W.2d 769 (1941). ORIX points to the lack of the term "said note" as a critical distinction between its notes and the notes in Schuenemann. However, we do not read the holding as limited as ORIX does. First, the Schuenemann installment note used the term "installment" as well as "said note." Schuenemann, 668 S.W.2d at 327 ("... declare all the remainder of said installments due and 570 said note will mature ..."). Second, the determining factor for the Court was that the defendant could have collected usurious interest on the face of the note. The Court announced, "[w]e therefore hold that the default maturity clause in the installment note and lien contract unambiguously call for the collection of unearned time price differential." Id. Furthermore, in the footnote following this holding, the Court discussed both "installment" and "note." Id. at 329 n. 3. Rather than distinguishing "said note" from "said installments," the Schuenemann contract treated the installments as part of the note. We also agree with appellants that the language in the notes drafted by ORIX and the installment note in Schuenemann are nearly identical. The Schuenemann installment note states, "[I]n the event of default in payment of any installment for a period of thirty days, the holder of this note may, at its option, declare all the remainder of said installments due and said note will mature and it shall at once become due and payable." Id. at 327. In comparison, the ORIX notes state, "Upon non-payment of any installment or interest when due, all remaining installments shall, at the option of the holder and without notice or demand, become immediately due and payable together with interest." With the exception of "said note" included in the Schuenemann installment contract, there is no major difference between the clauses. Finally, an even more striking similarity between Schuenemann and this case is that on the face of both the ORIX notes and the Schuenemann note, the interest was already calculated into the total amount due. Id. One cannot separate the original principal in the total from the unearned interest simply by examining the notes. For all these reasons, we conclude Schuenemann is sufficiently analogous to the situation here, and we rely upon it as indicated. 3. Are the notes usurious on their face? Turning to the merits of the notes at issue here, ORIX argues the notes do not expressly allow any contingency on their face that would allow it to collect usury. The contract requires the borrower to repay the total amount of the note with interest at zero percent per annum "and after maturity at the highest legal contract rate." ORIX argues that if it were to mature the debt by acceleration it could not do so beyond the "highest legal contract rate." ORIX asserts this exhibits a clear intention by ORIX that "[e]xcess pre-computed interest included in the installments was simply to be rebated." However, the meaning of that phrase is unclear. On the one hand, the highest legal contract rate could indicate the contract rate of zero percent per annum. If that interpretation is correct, the acceleration of "all remaining installments ... [which] shall become immediately due and payable together with interest" would only mean the installments (with the previously added interest) would become immediately due. Therefore, usury could be collected by ORIX. The other interpretation, and the interpretation that ORIX apparently advances, is that after acceleration, the installments plus the highest legal contract rate of interest is immediately due. However, because the installments already include interest, the addition of the highest legal rate of interest would again create the possibility of charging usury. Contrary to ORIX's contention, the clause does not indicate any excess will be rebated. Where the term "installment" refers to a total that includes principal and unearned interest, an acceleration of all "installments" raises the possibility the note is usurious on its face. Thus, just as in Schuenemann, a contingency exists on the face of the note itself that would allow for the collection of usurious interest. Finally, ORIX contends that the obvious meaning of the contract is that "installments" means "principal." However, this argument conflicts with the language of the contract. The contract never uses the term principal and expressly charges a zero percent per annum interest rate. ORIX cites no authority indicating that "installments" refers only to principal. Indeed, ORIX concedes in its summary judgment memorandum that "the installments as listed on the face of each of the notes do include a component of unearned interest." Therefore, standing alone, 571 the notes contain language that would allow for the collection of unearned interest in the event of acceleration. 4. Do the accompanying security agreements or prior dealings of the parties remove the contingency? ORIX insists the notes must be read together with the accompanying security agreements. ORIX contends that each security agreement contains a valid acceleration clause and a savings clause. The first paragraph of each security agreement states it is given to secure the payment, "with interest thereon," of the "Mortgage Obligations." The second paragraph defines Mortgage Obligations as "any and all loans, advances, payments" etc. Paragraph three reads: Mortgagor [appellants] covenants and agrees with and warrants ... that Mortgagor will fully and faithfully pay, perform and fulfill all of the Mortgage Obligations, with late charges thereon from and after maturity, whether by acceleration or otherwise, at the rate of 1 /15 of 1% per day except where such rate is in excess of the maximum permitted by applicable law, in which event the rate shall be such maximum lawful rate. Paragraph five contains the following language: If Mortgagor shall default in the prompt payment, performance or fulfillment of any of the Mortgage Obligations, ... all Mortgage Obligations shall at once, at the option of the Mortgagee, become immediately due and payable ... In paragraph ten, it provides: [i]f any one or more provisions hereof are in conflict with any statue or law and therefore not valid or enforceable, then each such provision shall be deemed null and void but to the extent of such conflict only and without invalidating or affecting the remaining provisions hereof. ORIX first contends that the language in paragraph five is a valid acceleration clause and that it should be construed together with the acceleration clause in the promissory notes. It argues, in essence, that no Texas decision exists interpreting "Mortgage Obligations" as usurious, and therefore, given the presumption of legality, the clause is valid. However, this acceleration clause is ambiguous as to whether it will accelerate only the debt plus earned interest or if it allows ORIX to accelerate unearned interest as well. Again, the problem can be traced back to the inclusion of all unearned interest into the stated total amount due. Reference to "Mortgage Obligations" does not clarify this problem in the original promissory notes. Furthermore, Schuenemann dictates that an acceleration clause in the security agreement such as this should not be used to determine the terms of the acceleration clause in the promissory note. Schuenemann discussed this issue at length: Although at the outset we construed all three instruments together to determine the entire agreement between the parties, we conclude that for the limited purpose of determining the terms of acceleration for which the parties contracted, the clear terms of the acceleration provisions in the installment note and lien contract should be interpreted without reference to the description thereof contained in the building contract. Courts have shown a reluctance to hold that acceleration of maturity provision which clearly call for the collection of unearned interest are vitiated by mere intimations of contrary intent found elsewhere in the contract. Invoking the rule that the documents are to be construed together does not in any way imply that we must give weight to a purported description of acceleration terms to be agreed upon, when the terms of acceleration actually agreed upon are set forth in unambiguous language. Schuenemann, 668 S.W.2d at 330-31 (citations omitted). In this case, the terms of acceleration were set out in the original promissory notes. Thus, as in Schuenemann, we will not read the acceleration terms of these promissory notes and the security agreements together. Second, ORIX contends that the language in paragraph ten amounts to a valid savings clause. A savings clause may cure "an open-ended contingency provision the operation of which may or may not result in a 572 charge of usurious interest." First State Bank v. Dorst, 843 S.W.2d 790, 793 (Tex. App.Austin 1992, writ denied). A savings clause is ineffective if it directly contradicts the explicit terms of the contract. Id. Appellants respond by arguing the clause is only a severability clause and does not expressly disclaim an intention to collect usurious interest. We agree. Furthermore, because by its own terms the clause only applies to the "provisions hereof," it applies only to the security agreements, not the promissory notes. Therefore, the acceleration clause contained in the promissory notes is not a "provision hereof." Finally, ORIX contends that prior dealings of the parties proves the parties had no intent to collect usurious interest. Because ORIX never collected usurious interest from the parties on these notes or previous notes, ORIX claims there was no intent to do so. Because our inquiry is whether the contract allows a contingency that might allow for the collection of usury, the intent of the parties is not relevant to determine whether a contract is usurious on its face. Furthermore, determining the intent of the parties from prior dealings is a fact issue that, in isolation, would justify reversing the summary judgment. 5. Conclusion. When ORIX included the total amount of interest into the total amount of the loan, it was obligated to expressly disclaim any intent to collect usurious interest. See Smart, 597 S.W.2d at 341. ORIX did not meet this burden. Given the holding in Schuenemann, we must conclude that the ORIX notes expressly allow ORIX to collect a rate of interest greater than allowed by law on their face. Regrettably, ORIX failed to heed the admonition of the Schuenemann court: In literally scores of cases, the courts of this state have been called upon to decide whether a contract is usurious because it contains an acceleration provision which allows the collection of unearned interest or finance charges. In view of this, we fail to understand why acceleration clauses are drafted which do not include a sentence expressly disavowing any intention to collect excessive unearned interest or finance charges in the event the obligation is accelerated. To leave the matter open to doubt is to invite litigation and risk the harsh penalties of article 5069. To settle the matter clearly in the contract between the parties is a service to the creditor, the debtor, and the taxpayers of this state. Schuenemann, 668 S.W.2d at 333 n. 6 (citation omitted). We sustain appellants' third point of error. In the fourth point of error, appellants complain the trial court erred in denying their partial cross-motion for summary judgment. Our record does not contain an order by the trial court denying appellants' cross-motion. Because appellants did not obtain a ruling on the partial crossmotion for summary judgment, this point was not preserved for appeal. Tex.R.App. P. 52(a). Thus, we will not reverse and render judgment as appellants request. The normal procedure when an appellate court reverses an order granting summary judgment is to remand the case for a new trial. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); Montgomery v. Blue Cross and Blue Shield of Texas, Inc., 923 S.W.2d 147, 151 (Tex. App.Austin 1996, writ filed). An exception exists when both parties move for summary judgment "and the trial court grants one of the motions and denies the other." Montgomery, 923 S.W.2d at 151 (emphasis added); see also Jones, 745 S.W.2d at 900. Because we do not have an order evidencing the trial court's denial of the cross-motion, the exception does not apply, and we do not render judgment in favor of appellants. We overrule appellants' fourth point of error. The judgment of the trial court is reversed and remanded for further proceedings. FOWLER, Justice, concurring. I concur in the opinion of the court but I write separately to make two specific points. First, I agree that Howell v. Murray Mortgage Co. misstated the holding in McConnell v. Southside Independent Sch. District when it concluded that McConnell would allow grounds not contained in a motion for summary judgment, but only incorporated by 573 reference, to be considered in support of the motion. Howell v. Murray Mortgage Co., 890 S.W.2d 78, 85 (Tex.App.Amarillo 1994, writ denied); McConnell v. Southside Independent Sch. District, 858 S.W.2d 337 (Tex. 1993). McConnell was crystal clear that this could not happen. McConnell, 858 S.W.2d at 341. However, I do not agree that the result in Howell is contrary to McConnell. The issue in McConnell was whether a court could consider grounds in support of a motion for summary judgment when those grounds were contained in a separate document or contained in evidence attached to the summary judgment motion. McConnell, 858 S.W.2d at 338. The Supreme Court clearly held that a "motion must stand or fall on the grounds expressly presented in the motion" and they cannot be incorporated by reference. Id. at 341. The issue in Howell was whether the court could consider grounds contained in the same document as the motion but placed under a different-numbered paragraph than the paragraph containing the motion. Howell, 890 S.W.2d at 85. Clearly Howell & McConnell did not involve the same situations and McConnell did not address the Howell situation. In short, in my opinion, the Howell court reached the right result, but gave wrong reasons for reaching the holding.[1] Regardless of the accuracy of Howell's language, the opinion has no significance to the appeal before this Court because this appeal involves a McConnell situationgrounds and defenses not contained in the motion and discussed only in a separate document from the motion. The second reason I write separately is to emphasize what our holding does and does not do. It does not hold that the defenses raised in the brief accompanying the motion for summary judgment are invalid. As noted in the opinion, we specifically did not, and could not, consider these defenses because they were not properly before the court. The opinion does hold that the notes were usurious on their faces and therefore ORIX could not prevail on its claim that they were not usurious on their face. NOTES [1] The parties filed a Joint Stipulation of Uncontested Facts with attached exhibits. The joint stipulation references twenty different promissory notes, labeled A through U. A copy of each of the twenty notes are attached as exhibits to the Joint Stipulations. In appellants' Third Amended Original Petition, it references sixteen notes. One of those notes was signed by Sprint Sand & Gravel, Inc., a party that non-suited its claims according to ORIX's Brief and is not a party to this appeal. That note is not referenced in the Joint Stipulations. A number of variances appear in the record. One note is in the petition but not in the stipulations. The Third Amended petition refers to a note signed by Coastal Cement Sand, Inc. on September 3, 1985 for $182,311.20. However, this note is not mentioned in the Joint Stipulation. A minor discrepancy exits between the stipulation and the exhibits. Note "B" was signed on November 5, 1986 according to the copy of the note, but the Joint Stipulation references it as November 6, 1986. Another discrepancy exists between the Joint Stipulation, the note, and the Third Amended Original Petition. Note "I" was signed on April 4, 1984, but the Joint Stipulation states April 24, 1984. At the same time, the note indicates the amount as $413,889.52. However, the Third Amended Petition indicates the amount is $354,172.26. The final discrepancy is between the Third Amended Petition and the Joint Stipulation. The Third Amended Petition indicates that a loan was signed by Southwest Texas Ready Mix, Inc. on November 1, 1986 for $1,219,901.09. However, the Joint Stipulation (and attached copy of the note) indicates Southwest Texas Ready Mix, Inc. signed a note on September 24, 1986 in the amount of 1,237,762.40. Both parties seem to agree that the notes that are referenced in the Joint Stipulations are at issue, with the exception of notes labeled as A, H, O, P, and U. Appellants concede that notes A, H, O, P, and U do not contain the objectionable acceleration clause that is the subject of this appeal. ORIX argues those five notes are not contained in the Third Amended Petition, and therefore, appellants cannot seek relief on them. Thus, we will address these issues only in relation to the notes contained in the Joint Stipulations, with the exception of notes A, H, O, P, and U. Also, because note "L" is a modification only to the repayment schedule of note "K," we will not treat it as a separate note. Thus, there are fifteen notes at issue in this appeal. [2] The motion for summary judgment states, "As ORIX will show in its Memorandum of Authorities in Support of its Motion for Summary Judgment (`Memorandum'), Plaintiffs' theory of liability is incorrect as a matter of law." ORIX later explicitly incorporated the summary judgment evidence into the motion by stating, "Incorporated into this motion as evidentiary support are [the five documents]." (emphasis added). The paragraph incorporating the summary judgment evidence concluded by stating, "ORIX also submits its Memorandum in support of this motion." [3] Texas Rule of Civil Evidence 1005 states: The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. [4] Title 79 of the Texas Civil Statutes contains three subtitles. Subtitle 1, entitled "Interest," deals generally with the maximum, legal rate of interest and provides penalties for charging or receiving an usurious rate of interest. Tex.Rev. Civ. Stat. Ann. art. 5069 §§ 1.01 -1.14 (Vernon 1987 & Supp.1996). Subtitle 2, entitled "Consumer Credit," generally deals with special loans, including mortgage, retail installments, and motor vehicle installment loans, and it also provides penalties for violations of these provisions. TEX.REV.CIV. STAT. ANN. art. 5069 §§ 2.10-8.06 (Vernon 1987 & Supp.1996). Appellants brought this action under article 5069, section 1.06, which falls under Subtitle 1. [1] Part of the problem with Howell is that its use of the word "incorporated" is confusing. The opinion says that the grounds in support of the motion in Howell could be considered because the motion "incorporated the brief which contained the grounds in support of the summary judgment," meaning that the brief and its grounds were contained in the motion, not incorporated by reference. The opinion uses the word "incorporated" not only when it means "contained within" but also when it means incorporated by reference, and this is why the opinion is misleading and sometimes incorrect.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2368478/	452 F. Supp. 2d 230 (2006) UNITED STATES of America, v. Jeffrey STEIN, et al., Defendants. In re United States of America, v. Jeffrey Stein, et al., Defendants. Jeffrey Stein, et al., Plaintiffs, v. KPMG LLP, Defendant. No. SI 05 Crim. 0888(LAK). No. 06 Civ. 5007(LAK). United States District Court, S.D. New York. September 6, 2006. 231 232 233 234 235 Justin S. Weddle, Kevin M. Downing, Stanley J. Okula, Jr., Margaret Garnett, Assistant United States Attorneys, Michael J. Garcia, United States Attorney, Charles A. Stillman, Stillman Friedman & Schechtman, P.C., Robert S. Bennett, 236 Skadden, Arps, Slate, Meagher & Flom LLP, Attorneys for KPMG LLP. David Spears, Spears & Imes LLP, Attorney for Jeffrey Stein and on, the advancement claim only, John Lanning. Michael Madigan, Robert H. Hotz, Jr., Christopher T. Schulten, Akin Gump Strauss Hauer & Feld LLP, Attorneys for John Lanning on the indictment. Robert S. Fink, Caroline Rule, Fran Obeid, Kostelanetz & Fink, LLP, Attorneys for Richard Smith. Stanley S. Arkin, Joseph V. DiBlasi, Elizabeth A. Fitzwater, Arkin Kaplan Rice LLP, Attorneys for Jeffrey Eischeid. Ronald E. DePetris, Marion Bachrach, Dana Moskowitz, DePetris & Bachrach, LLP, Attorneys for Philip Wiesner. Steven M. Bauer, Karli E. Sager, Latham & Watkins, LLP, Attorneys for John Larson on the indictment. Stephen Willey, Savitt & Bruce, LLP, Attorney for John Larson on the advancement claim. David C. Scheper, Julio V. Vergara, Overland Borenstein Scheper & Kim LLP, Attorneys for Robert Pfaff. Susan R. Necheles, Hafetz & Necheles, Attorney for Richard Rosenthal. Diana D. Parker, Attorney for Larry DeLap. John R. Wing, Lankier Siffert & Wohl LLP, Attorney for Larry DeLap on the indictment. John F. Kaley, Doar Rieck Kaley & Mack, Attorney for Steven Gremminger. Cristina Arguedas, Ann Moorman, Arguedas, Cassman & Headly, LLP, Michael Horowitz, Michelle Seltzer Cadwalader, Wickersham & Taft LLP, Attorneys for Gregg Ritchie on the indictment. David Campbell Smith, McNamara, Spira & Smith, Attorney for Gregg Ritchie on the advancement claim. George D. Niespolo, Duane Morris LLP, Attorney for Randall Bickham on the indictment. Marc Fenster, Russ August & Kabat, Attorney for Randall Bickham on the advancement claim. Michael S. Kim, Leif T. Simonson, Kobre & Kim LLP, Attorneys for Mark Watson. John A. Townsend, Townsend & Jones LLP, Attorney for Carol Warley on the indictment and the advancement claim. James R. DeVita, Bryan Cave LLP, Attorney for Carol Warley on the indictment. Russell M. Gioiella, Richard M. Asche, Litman, Asche & Gioiella, LLP, Attorneys for Carl Hasting. David B. Pitofsky, Richard Mark Strassberg, Goodwin Proctor LLP, Attorneys for David Greenberg on the indictment. Leonard F. Lesser, Simon Lesser P.C., Attorney for David Greenberg on the advancement claim. OPINION KAPLAN, District Judge. TABLE OF CONTENTS Facts ........................................................................... 239 I. The Advancement Complaint ............................................... 239 II. Agreements Between KPMG and Certain of the KPMG Defendants .............. 239 237 A. The Pre-Criminal Referral Agreements Between KPMG and Messrs. Greenberg and Wiesner ....................................... 239 B. The Fee Letters ...................................................... 240 C. The Post-Fee Letter Agreements ....................................... 241 III. The Hasting Action and related Proceedings .............................. 241 Discussion ........................................................................ 242 I. This Court Has Ancillary Jurisdiction to Determine the Claims of the KPMG Defendants for Advancement of Legal Expenses For Defending this Criminal Case ..................................................... 242 II. The KPMG Defendants Are Not Obliged to Arbitrate Their Claims for Advancement ............................................................ 246 A. Legal Standards ...................................................... 247 B. There Is No Evidence that Nine of the KPMG Defendants Are Parties to Any relevant Arbitration Agreement........................ 248 C. In Any Case, Agreements Requiring Arbitration of Claims for Advancement of Legal Expenses to Defend this Criminal Case Are Void as Against Public Policy ................................... 253 III. The Implied Contract Claim Is Legally Sufficient ........................ 260 IV. KPMG's Defenses ......................................................... 263 A. The Merger Clause .................................................... 270 B. KPMG's Due Process Argument .......................................... 273 VI. The KPMG Defendants' Motion to Compel Advancement ....................... 275 Conclusion ........................................................................ 275 This is said to be the largest criminal tax case in our nation's history. The indictment charges nineteen defendants, seventeen of them formerly partners or employees of the giant accounting firm, KPMG, with conspiracy and tax evasion.[1] The Court previously held that the government violated the Fifth and Sixth Amendment' rights of the defendants formerly associated with KPMG (the "KPMG Defendants") by causing KPMG.under threat of indictment and destruction of the firmto depart from its uniform prior practice of paying the legal expenses of KPMG personnel in all cases in which they were named in consequence of their activities on behalf of the firm. It found that KPMG would have paid those expenses whether legally obliged to do so or not but for the government's improper conduct, a finding that is binding as between the defendants and the government. The 238 Court, however, deferred the request of the KPMG Defendants to dismiss the indictment based upon the government's misconduct, reasoning that dismissal might prove inappropriate if KPMG were obligated to advance the defense costs, in which case all or much of the harm caused and still threatened by the government's actions might be remedied or avoided. The Court held that it has ancillary jurisdiction over the claims against KPMG for advancement of defense costs and permitted the assertion of those claims in this case. In addition, it postponed the criminal trial for approximately four months, in part to afford KPMGwhich already had participated in the criminal case insofar as the KPMG Defendants sought a remedy from KPMGa fuller opportunity to defend against those claims. The KPMG Defendants, as contemplated by the Court's previous opinion ("Stein I"),[2] served a summons and complaint on KPMG in the criminal case for advancement of defense costs. KPMG has moved to dismiss for lack of subject matter jurisdiction and on the merits. KPMG's principal argument is that the complaint should be dismissed because the KPMG Defendants are obliged to arbitrate their claim for advancement of defense costs. But the argument is flawed. Even assuming that arbitration were a possibility where, as here, the dispute arises in a criminal case, KPMG has not established that at least nine of the sixteen KPMG Defendants are parties to any relevant arbitration agreement. In any event, and notwithstanding that courts ordinarily will enforce arbitration clauses, even with respect to claims for indemnification and advancement of legal fees, this is not an ordinary situation. In this context, enforcement of any applicable arbitration clause with respect to the issue of advancement of defense costs would compromise the Court's ability to ensure a speedy trial, protect the public interest by avoiding possible dismissal of the criminal charges for unconstitutional government interference with the defendants' rights where prompt adjudication of the advancement issue might provide a sufficient remedy, safeguard the defendants' rights to a fundamentally fair trial, and seek to avoid imposing defense costs on the taxpayers, which is what will occur to the extent that any of the KPMG Defendants go broke trying to defend themselves. Accordingly, after careful consideration, the Court has concluded that enforcement of any applicable arbitration clause, to the extent that it would require arbitration of claims for advancement of legal expenses in this case, would be against public policy. This Court will resolve the advancement claims on the merits. KPMG argues also that the advancement claims of a number of the KPMG Defendants are foreclosed by the KPMG partnership agreement and, in any case, have been released. Its partnership agreement argument is without merit. As one of the KPMG Defendants in fact may have released KPMG from any obligation to advance defense costs, however, the motion to dismiss as to him is converted into one for summary judgment on that issue. In a number of other instances, the release issue presents a question of fact for trial. In still others, it is without merit. KPMG makes also a number of other arguments. It attacks the subject matter jurisdiction of the Court and the legal sufficiency 239 of the advancement complaint. It raises as well a number of procedural contentions. These arguments, however, all fail. The advancement claims will proceed to a prompt trial except perhaps in the case of one KPMG Defendant whose claim may be subject to dismissal on summary judgment. Facts The Court assumes familiarity with Stein I and its subsequent opinion, which granted in part the KPMG Defendants' motion to suppress statements made to the government.[3] These give the background against which this matter arises.[4] It suffices for present purposes to summarize briefly both the KPMG Defendants' complaint for advancement of defense costs and a number of agreements to which KPMG refers in its motion. The Court summarizes also proceedings in the one arbitration that has been commenced concerning these issues. I. The Advancement Complaint The advancement complaint contains three claims for relief. The first alleges that there is an implied contract pursuant to which KPMG is obliged to advance the legal fees and expenses incurred by any KPMG employee[5] for the defense of legal proceedings against the employee arising from and within the scope of the performance of the employee's duties and responsibilities at KPMG.[6] The second, on behalf of defendant Stein alone, alleges breach of the express written contract that is described in Stein I.[7] Finally, KPMG Defendants Smith, Larson, DeLap, Ritchie, Bickham, Hasting, Rosenthal and Greenberg assert a third claim, as an alternative to the first, under Sections 2802(a) and 16401(a) of the California Labor and Corporations Codes, respectively.[8] All three claims seek the same reliefa declaratory judgment and an order directing KPMG to pay defense costs incurred to date and to be incurred in the futures.[9] II. Agreements Between KPMG and Certain of the KPMG Defendants KPMG seeks dismissal on the merits on the basis of a number of agreements between it and some of the KPMG Defendants.[10] A. The Pre-Criminal Referral Agreements Between KPMG and Messrs. Greenberg and Wiesner KPMG entered into agreements with Messrs. Greenberg and Wiesner prior to 240 being informed that the Internal Revenue Service had made a criminal referral to the Justice Department. On September 5, 2003, it concluded a Settlement Agreement and Release of Claims with Mr. Greenberg (the "Greenberg Agreement") pursuant to which Greenberg released and discharged KPMG, in pertinent part, "from any and all causes of actions, . . . contracts, . . . claims, liabilities, . . . and demands, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, . . . which Greenberg has or may have against [it] . . . by reason of any and all acts, omissions, events or facts occurring or existing prior to the date hereof as it relates to Greenberg's membership in KPMG and his resignation from that partnership."[11] On or about August 28, 2003, it entered into a Withdrawal Agreement with Mr. Wiesner (the "Wiesner Agreement") that contained different language. In pertinent part, Mr. Wiesner released KPMG from "each and every claim, cause of action, . . . and demand for relief of any kind of nature whatsover that [he] ever had or now has against [KPMG], including but not limited to any claim arising out of or in any way relating, directly or indirectly, to [Wiesner's] partnership or employment at [KPMG] and [Wiesner's] withdrawal therefrom."[12] The Agreement went on to say: "The consideration offered herein is accepted by [Wiesner] as being in full accord, satisfaction and settlement of any and all claims or potential claims, and [Wiesner] expressly agrees that [Wiesner] is not entitled to and shall not receive any further recovery of any kind from [KPMG] . . . and that in the event of any further proceedings whatsoever based upon any matter released herein, [KPMG] . . . shall have no further monetary or other obligation of any kind to [Wiesner], including any obligation for any costs, expenses and attorneys' fees incurred by or on behalf of [Wiesner]." Two differences in language bear mention. First, the Greenberg Agreement, but not the Wiesner Agreement, explicitly released KPMG from all contracts. Second, the Greenberg Agreement, in addition to releasing existing claims, perhaps spoke in futuro, releasing claims "anticipated or not anticipated." The Wiesner Agreement released only claims that Wiesner "ever had or now has," thus suggesting that it had no effect with respect to claims that might arise in the future. It then went on, however, to add the language set forth in the block quote above. The significance of this language is considered below. B. The Fee Letters KPMG claims that ten of the sixteen remaining KPMG Defendants[13] signed letters that acknowledged that KPMG has no legal obligation to advance legal expenses in this case. It has provided a template which, it claims, was used in each of the ten instances.[14] 241 The letter in question was written by KPMG's counsel, Skadden Arps, dated March 11, 2004, and thus sent shortly after most of the KPMG Defendants were advised by the government that they were subjects of the investigation.[15] It provided in pertinent part: "This Firm has been asked to convey the decision made by KPMG LLP (`KPMG') regarding the payment of reasonable legal fees and related expenses for [blank] in connection with the federal grand jury investigation regarding certain tax strategies commenced recently in the Southern District of New York" (the Investigation'). "KPMG, in consultation with counsel, has determined that it has no legal obligation to pay any of [blank] legal fees or expenses in connection with this investigation. Consistent with its past practices, however, KPMG is prepared to pay reasonable legal fees and legal expenses associated with [blank] representation of [blank] in connection with this investigation, subject to the conditions set forth in this letter. KPMG's decision to pay [blank] legal fees and expenses is made in its sole discretion, and KPMG reserves the right to cease the payments at any time for any reason with respect to ongoing services." The template letter then went on to set forth the conditions described in Stein I, including the condition that payments would cease if the defendant were charged with criminal wrongdoing.[16] It concluded with the paragraph: "If [blank] wishes to have KPMG pay reasonable legal fees and related expenses in connection with his representation in this investigation, please have [blank] sign this letter below and return it to me." This was followed by the words "REVIEWED AND AGREED" and a space for a signature. C. The Post-Fee Letter Agreements KPMG subsequently entered into agreements with three of the KPMG Defendants: Messrs. Eischeid and Rosenthal and Ms. Warley. All contain release language identical to that in the Wiesner Agreement.[17] The Rosenthal Agreement, however, unlike those agreements, contains provisions pursuant to which KPMG arguably agreed to defend and indemnify Mr. Rosenthal.[18] As the release in the Rosenthal Agreement expressly excluded claims against KPMG arising thereunder,[19] it specifically preserved Mr. Rosenthal's claims under its indemnification and advancement provisions. III. The Hasting Action and Related Proceedings KPMG here seeks dismissal in favor of arbitration.[20] It therefore is appropriate 242 to review what has occurred in a state court action brought by defendant Hasting long before the initial round of motions in this case. In September 2005, Mr. Hasting sued KPMG in California state court, seeking among other things an order requiring KPMG to pay the cost of his defense in this case. KPMG filed a petition to stay the action pending arbitration and, initially at least, prevailed on that point.[21] KPMG then sought written discovery from and took the deposition of Mr. Hasting in the arbitration. It sought testimony and other evidence directly relevant to the indictment in this case. Indeed, although the record is not entirely clear, it evidently sought discovery as well from other defendants in this case.[22] Mr. Hasting declined to respond to the written discovery and invoked the Fifth Amendment at his deposition, apparently in response to questions that related to this criminal case.[23] KPMG thereupon moved before the arbitration panel to preclude him from introducing any evidence to support his claims or to refute KPMG's ,defenses. Alternatively, it sought an order staying any arbitration hearing until the conclusion of this case.[24] Discussion I. This Court Has Ancillary Jurisdiction to Determine the Claims of the KPMG Defendants for Advancement of Legal Expenses For Defending this Criminal Case This Court held in Stein I, over KPMG's objection, that it has ancillary jurisdiction over the fee advancement dispute between the KPMG Defendants and KPMG.[25] This holding flowed naturally from the Second Circuit's recent decision in Garcia v. Teitler,[26] where the Court held that a district court had subject matter jurisdiction to resolve a fee dispute between criminal defendants and their former attorney where recovery of the disputed retainer was important to the ability of the criminal defendants to retain counsel of their choice in the criminal matter. It flowed also from United States v. Weissman,[27] in which Judge Haight exercised ancillary jurisdiction in another criminal case in this Court to resolve a dispute between a criminal defendant and his former employer concerning the employer's obligation to advance defense costs. Although KPMG was heard fully on this issue previously, it attempts to argue the point again. Garcia is in point here. KPMG's principal attempt to deal with the case is again to argue that the dispute in Garcia was between defendants in a criminal case and their former attorney, who was an officer of the court and who had been before the court in the underlying criminal litigation, whereas KPMG is not a former attorney for the KPMG Defendants. But this distinction remains unpersuasive. KPMG's argument ignores the Circuit's rationale for finding ancillary jurisdiction in Garcia. In holding that the district court had ancillary jurisdiction to resolve the fee dispute between the defendants 243 and the former attorney, the Court of Appeals said the following: "At its heart, ancillary jurisdiction is aimed at enabling a court to administer `justice within the scope of its jurisdiction.' [Morrow v. District of Columbia, 417 F.2d 728, 737 (D.C.Cir. 1969)] (internal quotation marks omitted); see also Jenkins v. Weinshienk, 670 F.2d 915, 918 (10th Cir.1982) (Ancillary jurisdiction rests on the premise that a federal court acquires jurisdiction of a case or controversy in its entirety. Incident to the disposition of the principal issues before it, a court may decide collateral matters necessary to render complete justice.'). Without the power to deal with issues ancillary or incidental to the main action, courts would be unable to `effectively dispose of the principal case nor do complete justice in the premises.' Morrow, 417 F2d at 738 n. 36 (internal quotation marks and citation omitted); id. at 740 (The major purpose of ancillary jurisdiction . . . is to insure that a judgment of a court is given full effect; ancillary orders will issue when a party's actions, either directly or indirectly, threaten to compromise the effect of the court's judgment.'). Along these lines, the Supreme Court has instructed that ancillary jurisdiction may be exercised `for two separate, though sometimes related, purposes: (1) to permit disposition of claims that are, in varying respects and degrees, factually interdependent by a single court, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.' [Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379-80, 114 S. Ct. 1673, 128 L.E d.2d 391 (1994)] (internal citations omitted). "Whatever the outer limits of ancillary jurisdiction may be, we hold that resolving a fee dispute after an attorney withdraws following a Curcio hearing is within a district court's ancillary powers, as it relates to the court's ability to `function successfully.' Indeed, we have long approved of the exercise of ancillary jurisdiction by district courts to resolve fee disputes arising in civil cases. In National Equip. Rental, Ltd. v. Mercury Typesetting Co., 323 F.2d 784 (2d Cir.1963), for example, we held that a district court had power `ancillary to its conduct of the litigation,' to `condition the substitution of attorneys in litigation pending before it upon the client's either paying the attorney or posting security for the attorney's reasonable fees and disbursements.' Id. at 786. As we explained, this is because the termination of the attorney/client relationship relates to the `protection of the court's own officers.' Id. at 787 n. 1; see also Petition of Rosenman Cohn Freund Lewis & Cohen, 600 F. Supp. 527, 531 (S.D.N.Y. 1984) (court has jurisdiction over law firm's proceedings to establish a lien against judgment for the recovery of attorney's fees); Marrero v. Christiano, 575 F. Supp. 837, 839 (S.D.N.Y.1983) (court has ancillary jurisdiction to entertain petition to fix lien for attorney's fees). "In Grimes v. Chrysler Motors Corp., 565 F.2d 841 (2d Cir.1977), moreover, we held that a district court could exercise ancillary jurisdiction to resolve a fee dispute between attorneys in an underlying personal injury suit, as it related to the distribution of settlement funds. Id. at 844. The `distribution of the . . . settlement funds and . . . determination of appropriate disbursements,' we explained, `was clearly ancillary to [the district court's] approval of the settlement in the [underlying] case.' Id. Finally, 244 in Cluett, Peabody & Co., Inc. v. CPC Acquisition Co., Inc., 863 F.2d 251 (2d Cir.1988), a case in which a law firm sought attorney's fees from its client for services rendered in an underlying federal action, we held that the district court properly exercised ancillary jurisdiction as the `fee dispute was properly related to the main action. Id. at 256. "In light of these decisions, appellant concedes that `[h]ad the underlying federal case [here] been a civil suit, [the] fee dispute' could have been resolved pursuant to a court's ancillary jurisdiction powers. We reject appellant's attempts to distinguish these cases on the ground that the present dispute arises from a criminal matter; the fee dispute here was properly related to the main action, and in managing that proceeding, it was necessary for the court to resolve it. "The genesis of the present dispute was a Curcio hearing, which is itself ancillary to the underlying criminal action. Such proceedings are necessary, as a district court must, on the one hand, ensure that a defendant's representation does not raise any conflict of interest and, on the other hand, protect a defendant's Sixth Amendment right to effective assistance of counsel, which includes the rightalbeit qualifiedto counsel of one's own choosing. See United States v. Jones, 381 F.3d 114, 119 (2d Cir.2004); United States v. Perez, 325 F.3d 115, 125 (2d Cir.2003); see also United States v. Gonzalez-Lopez, 399 F.3d 924, 928-29 (8th Cir.2005) (discussing right of defendant to counsel of his own choosing balanced against the need of the court to administer justice). A court's administrative duties, including ancillary hearings if necessary, are similarly related to legal representation for indigent defendants who have a right to appointed counsel. See United States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989) (citing Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)); see also 18 U.S.C. 3006A(a)(1)(H) (requiring district courts to set up a plan for the representation of indigent defendants and requiring, as part of that plan, representation of those entitled to counsel under the Sixth Amendment). Any or all of these concerns, which a court undoubtedly has the authority (and hence, jurisdiction) to address, necessarily implicate attorney's fees. "Although both Garcia and Alvarez have been able to obtain new counsel, the record reflects that they are of limited means and that the funds paid to Teitler may be needed to pay their new counsel. Garcia v. Teitler, 2004 WL 1636982, at 5. In order to guarantee a defendant's right to choose his own counsel where, as here, his criminal case is ongoing, and to avoid the possibility of defendants becoming indigent and requiring the appointment of counsel, a district court must be able to exercise ancillary jurisdiction to resolve a fee dispute. See Novinger v. E.L DuPont de Nemours & Co., Inc., 809 F.2d 212, 217 (3rd Cir.1987) (noting that while [a]ttorneys' fee arrangements . . . are matters primarily of state contract law . . . the federal forum has a vital interest in those arrangements because they bear directly upon the ability of the court to dispose of cases before it in a fair manner'); United States v. Weissman, No. S2 94 CR 760, 1997 WL 334966, at 6 (S.D.N.Y. June 16, 1997) (exercising ancillary jurisdiction to decide whether, under an indemnity agreement, a company was required to continue to advance funds for defendant's legal proceedings as `resolution of [the] dispute might impact . . . the conduct of the 245 matter that gives rise to the court's original jurisdiction'). In fact, both defendants here are currently represented by counsel provided pursuant to the Criminal Justice Act, 18 U.S.C. 3006A (`CJA'), which allows the court to recover funds from a defendant when the court finds that such funds are available. 18 U.S.C. 3006A(f); see also United States v. Bracewell, 569 F.2d 1194, 1197 (2d Cir.1978) (noting that the reimbursement statute, which was duly enacted to carry out salutary policies . . . creates a constitutionally proper ground for depriving a financially able defendant of available funds which, in fairness, should be remitted to the public coffers'); cf. United States v.. Parker, 439 F.3d 81, 105 (2d Cir.2006) (noting that the district court must be involved in managing CJA funds so as to `discourag[e] a few opportunistic attorneys from utilizing substantial partial retainers that, after quickly being exhausted, would then require the use of CJA funds'). As such, it is in the interest of the court to resolve the fee dispute here, and the court must, therefore, be able to exercise ancillary jurisdiction in order to do so."[28] In this case, this Court already has determined that the government violated the rights of the KPMG Defendants to due process and to the assistance of counsel by interfering with KPMG's advancement of legal fees and other defense costs. The overarching issue is what to do about it. The KPMG Defendants urge the Court to dismiss the indictment. The Court, bearing in mind the Supreme Court's admonition that dismissal is a last resort, has concluded that determination of the KPMG Defendants' claimed right of advancement of defense costs should be decided, if possible, before a determination is made on the dismissal issue. Dismissal of course would defeat the public interest in having this indictment decided on the merits rather than as a result of inappropriate actions by the prosecution. Proceeding without resolving the advancement issue now would threaten the right of these defendants "to choose [their] own counsel where, as here, [their] criminal case is ongoing."[29] It would entail also "the possibility of defendants becoming indigent." [30] Thus, resolution of the fee dispute relates to the Court's ability to "function successfully"[31] and is "necessary to [its ability to] render complete justice."[32] In such circumstances, as the Circuit has held, "a district court must be able to exercise ancillary jurisdiction to resolve a fee dispute."[33] KPMG argues also that this Court inappropriately relied upon Weissman,[34]246 which it claims "understandably has not been followed by any other court."[35] But KPMG's rhetoric overlooks the fact that Weissman was relied upon by our Circuit in Garcia for the precise point at issue here-the district court's ancillary jurisdiction in a criminal case to resolve a fee dispute with a non-party where that is related to the ability of the court to "function successfully" and to "render complete justice."[36] Insofar as KPMG moves to dismiss for want of subject matter jurisdiction, the motion is denied.[37] II. The KPMG Defendants Are Not Obliged to Arbitrate Their Claims for Advancement KPMG next asserts that the complaint should be dismissed because the KPMG Defendants are obliged to arbitrate their claim for advancement of defense costs.[38] This argument ultimately is unpersuasive. To begin with, it is important to bear in mind that this is not an ordinary commercial dispute. By virtue of the government's unconstitutional interference with KPMG's advancement of defense costs, the question whether KPMG is obliged to advance those costs has become an integral part of a federal criminal case. The necessity for its decision arises first and foremost from the Court's need to decide the 247 KPMG Defendants' motion to dismiss the indictment or otherwise sanction the United States for the government's violation of their Fifth and Sixth Amendment rights[39] Thus, it is doubtful whether the Federal Arbitration Act ("FAA")[40] has any bearing here.[41] But it is unnecessary to determine whether questions arising in criminal cases categorically are inappropriate for arbitration. Careful analysis demonstrates that the advancement dispute in this case is not arbitrable even under the FAA. A. Legal Standards The FAA established an "emphatic federal policy in favor of arbitral dispute resolution."[42] Nevertheless, "arbitration is simply a matter of contract between the parties; it is a way to resolve those disputesbut only those disputes that the parties have agreed to submit to arbitration."[43] Hence, issues as to the existence and validity of an agreement to arbitrate always are for courts, not for arbitrators.[44] Moreover, notwithstanding the federal policy in favor of arbitration, the FAA places contracts requiring arbitration "on equal footing with all other contracts."[45] The party seeking to compel arbitration bears "the burden of demonstrating by a preponderance of the evidence the existence of an agreement to arbitrate",[46] just as the party seeking relief under any other alleged contract has the burden of proving that contract's existence. Moreover, agreements to arbitrate 248 under the FAA are subject to avoidance "upon such grounds as exist at law or in equity for the revocation of any contract."[47] Assuming the existence and validity of an agreement to arbitrate, the question whether a particular dispute is to be resolved by litigation or arbitration also is for the court "unless there is clear and unmistakable evidence from the arbitration agreement, as construed by the relevant state law, that the parties intended that the question of arbitrability shall be decided by the arbitrator."[48] This presumption, however, is reversed where the question is the scope of issues intended to be resolved by arbitration. In such cases, ambiguity concerning the scope of the arbitrable issues is decided in favor of arbitration.[49] But this principle is not boundless. Arbitration of a particular grievance will not be ordered where "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute."[50] With these principles in mind, we turn to the present controversy, assuming arguendo that the FAA controls. B. There Is No Evidence that Nine of the KPMG Defendants Are Parties to Any Relevant Arbitration Agreement KPMG's argument relies primarily on the 2003 KPMG partnership agreement (the "2003 Agreement"),[51] which provides in pertinent part: "Any dispute between the Firm and any Member or Separated Member or between or among Members or Separated Members arising out of or relating to the Firm or the accounts or transactions thereof or the dissolution or winding up thereof, the construction, meaning or effect of any provision of this Agreement, or the rights or liabilities of a Member or Separated Member or such Member's or Separated Member's representatives (Disputes'), shall be submitted for resolution 249 by arbitration in accordance with the procedures set forth in this [section]."[52] None of the KPMG Defendants remains employed by the firm[53] KPMG therefore relies heavily on the language in the 2003 Agreement that obligates a Separated Membera former partner or principal to Arbitrate certain disputes with the firm. But it is undisputed that eight of the KPMG defendantsMessrs. Bickham, DeLap, Greenberg, Lanning, Larson, Pfaff, Ritchie, and Watsonleft KPMG prior to October 1, 2003, the date on which the 2003 Agreement became effective.[54] One additional defendant, Mr. Wiesner, left the firm after the effective date of the 2003 Agreement,[55] but entered into an agreement with KPMG that provides that his relationship to the firm is governed by the partnership agreement as amended and restated as of April 15, 2002.[56] There is no evidence he ever became a party to the 2003 Agreement.[57] In consequence, these nine defendants are not bound by the 2003 Agreement. To be sure, those KPMG Defendants who at one time were partners in KPMG or its predecessor firms were parties to prior partnership agreements. The KPMG Defendants have submitted copies of some of them, the authenticity of which KPMG, does not dispute, albeit with no indication of which defendants signed which agreements. But KPMG points specifically to no prior partnership agreement that required former partners to arbitrate claims against the firm following their departures[58] Indeed, the evidence is clearly to the contrary. 250 KPMG argues that each partner and principal "is bound by the terms of the last agreement under which he performed services as a partner at the firm, pursuant to which he received benefits."[59] It is undisputed that all of the KPMG Defendants were employed by KPMG after the effective date of the 1997 agreement[60] and that most remained so employed in 2002 and more recently.[61] Hence, on KPMG's alternate theory, the nine KPMG Defendants at issue here would be subject to the 1997 or 2002 partnership agreement.[62] Those agreements, however, are inconsistent with KPMG's position. The 1997 and 2002 agreements both defined "Members" as "the Partners and the Principals" of the firm.[63] Both defined retired and withdrawn partners and principals as "Separated Members."[64] Both distinguished between Members and Separated Members in various ways. The arbitration clause in each of those agreements, however, applied only to disputes "between the Firm and any Member" without any mention of disputes between the Firm and any Separated Member.[65] Thus, the clear terms of those arbitration clauses unambiguously foreclosed the existence of any obligation on the part of Separated Members to arbitrate disputes with the firm. KPMG's addition in the 2003 Agreement of Separated Members to those obliged to arbitrate disputes with the firm was a clear admission, though none was required, that Separated Members were not obliged to arbitrate under prior versions of the agreement.[66] 251 KPMG's reply memorandum argues that the issue of arbitrability itself is arbitrable. But that argument too is unpersuasive, at least with respect to these nine KPMG Defendants. As indicated, the issue whether there is an agreement to arbitrate is for the court. KPMG has offered no evidence that these defendants ever were parties to the 2003 Agreement upon which it relies. KPMG's next fallback position stands it in no better stead. Assuming without deciding that each defendant is bound by the partnership agreement in effect when he or she left the firm (or, in the case of Mr. Rosenthal, by the 2002 partnership agreement as specified in his withdrawal agreement), each of these nine defendants is subject either to the 1997 or the 2002 agreement. The language of those agreements demonstrates that the obligation of former partners to arbitrate ended when their status as partners terminated.[67] KPMG's final argument with respect to these nine KPMG Defendants is that their obligations to arbitrate under pre-2003 versions of the agreement survived the termination of their employment[68] in light of Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionary Workers' Union.[69] To be sure, the Supreme Court there held that parties to a collective bargaining agreement ("CBA") containing an arbitration clause are presumed to intend that the obligation to arbitrate survive the expiration of the CBA, in the absence of strong contrary indications, where the dispute 252 is "over a provision of the expired agreement."[70] But Nolde Brothers does not carry the day here for at least two reasons. First, Nolde Brothers did no more than establish a rebutable presumption applicable in the absence of evidence that the parties did not intend arbitration of post-termination disputes.[71] Here, however, the express language of the 1997 and 2002 agreements negates any obligation on the part of former partners to arbitrate disputes with the firm following their termination by excluding former partners from the definition of Members and limiting the obligation to arbitrate to Members.[72] And if this were not clear enough, the 2003 change in the agreement underscored it. Thus, Nolde Brothers does not apply. Second, even putting this point to one side, Nolde Brothers was limited by Litton Financial Printing Division v. NLRB.[73] The Court there held that the Nolde Brothers presumption applies only to a dispute that "has its real source in the contract" containing the arbitration clause. It went on to say that the case did "not announce a rule that postexpiration grievances concerning terms and conditions of employment remain arbitrable.[74] KPMG has not demonstrated that the dispute concerning advancement of defense costs arises out of any version of its partnership agreement. Its partnership agreements, so far as the record discloses, always have been silent on the issues of advancement and indemnification. In consequence, even if the parties were presumed to have intended arbitration of post-termination disputes concerning the partnership agreements, the presumption would not apply to this post-termination , dispute about a subject never addressed in those agreements. Accordingly, even if the language of the pre-2003 partnership agreements did not negate any intent to have post-termination disputes with former partners resolved by arbitration, this dispute would not be arbitrable.[75] The facts concerning the seven remaining KPMG Defendants vary. Mr. Stein and, evidently, Mr. Rosenthal have withdrawal or termination agreements that contain arbitration clauses. Other KPMG Defendants perhaps signed the 2003 Agreement. But it is unnecessary to decide whether whatever arbitration agreements there may be otherwise apply to the advancement issue, whether the determination would be for the Court or for arbitrators,[76] or, for that matter, to rely on the 253 preceding discussion alone as to the other nine KPMG Defendants. Enforcement of any applicable arbitration clauses, in the perhaps unique and certainly unusual context of this case, would violate public policy. C. In Any Case, Agreements Requiring Arbitration of Claims for Advancement of Legal Expenses to Defend this Criminal Case Are Void as Against Public Policy The Supreme Court has made clear that courts may not enforce contracts that "violate[] some explicit public policy."[77] This includes contracts for the arbitration of disputes.[78] The question whether a contract is contrary to public' policy "is ultimately one for resolution by the courts."[79] To make this determination, a court must "assess whether there is some competing statute or policy sufficient to outweigh the strong federal policy favoring arbitration, and hence to foreclose arbitration of the dispute raised by plaintiff."[80] The competing policy "must be well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests."[81] Here, a number of important and well defined considerations combine to require the conclusion that enforcement of any requirement of arbitration of the KPMG Defendants' claim for advancement of the costs of defending this case would violate public policy. First, each of these defendants has a right under the Sixth Amendment and the Speedy Trial Act to a speedy tria1.[82] The interest in a speedy trial, moreover, does not belong to defendants alone. As the Second Circuit wrote in United States v. Gambino, "the public has as great an interest in a prompt criminal trial as has the defendant. Certainly, the public is the loser when a criminal trial is not decided expeditiously, as suggested by the aphorism, `justice delayed is justice 254 denied.'"[83] That is why a defendant may not waive the protections of the Speedy Trial Act.[84] Second, each of these defendants has a right under the Fifth and Sixth Amendments to a fundamentally fair trial.[85] This includes the right to representation by counsel of his or her choice to put on the defense each wishes to present [86] and to use the funds lawfully available to each in order to do so.[87] Third, there is an obvious public interest in having these criminal charges decided on the merits. If KPMG, in time for the determination to have an impact in this case, were found to be obligated to advance defense costs, the harm done and threatened by the government's prior misconduct may be remedied or avoided. This in turn could avoid dismissal or other sanctions that otherwise could terminate or hamper the prosecution. Fourth, should a defendant become indigent during the course of this case, he or she would be entitled under the Constitution and the Criminal Justice Act "CJA") to the appointment of counsel and other necessary defense services at public expense.[88] The CJA requires the district court to "be involved in managing CJA funds" in order to protect the public fisc.[89] Moreover, it expressly provides that whenever a district court "finds that funds are available for payment from or on behalf of a person furnished representation" under the CJA, it may direct reimbursement of the government out of those assets.[90] Thus, the public has a demonstrable interest in ensuring that it is not forced to bear the cost of defending any of these defendants if private funds are lawfully available to them, and the Court has a clear mandate to determine whether funds are available for payment on behalf of persons furnished representation. Nor is the Court obliged to await a defendant's indigency; it has jurisdiction at least in some circumstances to act to avoid that eventuality.[91] Fifth, there is a public interest in protecting the jurisdiction and ensuring the proper functioning of the federal courts. By giving United States district courts exclusive jurisdiction to try indictments charging offenses against the United States, the Constitution and laws of our nation placed the responsibility for determining the outcome of federal criminal charges in the hands of federal court juries and judges selected and protected in accordance with Article III of the Constitution. 255 This responsibility necessarily carries with it the authority and the duty to "do complete justice,"[92] to "function successfully,[93] "and "to see that [defendants in a criminal case are] denied no necessary incident of a fair trial."[94] The placement of this responsibility in the federal courts serves exceptionally important ends. At the broadest level, it is an important structural feature of our system of government. At a more specific level, the choice of federal courts' for the determination of federal criminal cases ensures that such matters are decided by neutral decision makers, who are insulated from competing commercial or other interests, and that they are decided in public fora Finally, it bears emphasis also that states permit, and in some cases re quire, advancement of defense costs by employers in order to "fill[ ] the gap . . . so the [employer] may shoulder interim costs," and that its value "is that it is granted or denied while the underlying action is pending."[95] Thus, there is a strong public interest in the timely resolution of any disputes concerning advancement of defense costs.[96] Indeed, both New York and Delaware have created special mechanisms to ensure prompt determination of such matters.[97] Requiring arbitration of the KPMG Defendants' claim for advancement of defense costs would undermine or threaten to undermine all of these public interests. It would place an important and perhaps out-come-determinative decision in a pending criminal case in the hands of private arbitrators in a private forum. It would limit the ability of the district court to ensure that the proceedings against the defendants are fair in all respects. It would undermine the, district court's responsibility under the CJA to ensure, should any of the defendants become indigent,[98] that property available to such a defendant rather than public fundsis used for his or her defense. And it would implicate the public interests in a speedy trial and in a determination on the merits. A major risk of arbitration of the advancement claims, especially in this case, is its unpredictable timing and the likelihood of delay. The sources of this problem are several, above and beyond the inherent problems of scheduling proceedings involving multiple arbitrators and attorneys, each with his or her own schedule. First, the arbitration clause in the 2003 Agreement provides for a panel of three arbitratorsone to be appointed by the claimant, one by KPMG, and a third by agreement of the two party-designated arbitrators.[99]256 The selection process thus affords an opportunity for delay, and KPMG obviously has no interest in having the advancement dispute decided quickly. Indeed, its behavior in the Hasting arbitrationwhere it first obtained a court order compelling arbitration and now seeks in substance a non-merits dismissal or a stay of any arbitration hearing pending the outcome of this case from the arbitration panelmakes that clear. Moreover, if arbitration of the advancement claims does not result in a confirmed arbitration award well before this case is tried, the issue for practical purposes will have become moot.[100] Hence, the material possibility that an arbitration panel would not be chosen quickly, which could result in litigation concerning the constitution of the panel, or that arbitration proceedings otherwise would be delayed cannot be ignored.[101] This problem would be magnified by the number of claimants here. There are sixteen KPMG Defendants and therefore possibly sixteen separate claimants.[102] KPMG has pointed to no provision in the arbitration clauses upon which it relies for a consolidated arbitration proceeding.[103] If consolidation were sought, the issue of its availability likely would lead to pre-hearing litigation both in district and appellate courts, and the weight of authority is against consolidation.[104] Thus, the best 257 case scenariomeasured by speed alone would be extensive litigation concerning the availability of consolidated arbitration proceedings followed by a consolidated arbitration and then the usual post-award litigation over confirmation or vacatur of the award. The worst case would be sixteen separate arbitrations, each with its own potential for holding up this case.[105] s a practical matter, then, deferring a decision on the advancement issue in favor of arbitration would force the Court to do violence to one important public interest or another: It could await the outcome of the arbitration(s) and the attendant litigation in order to avoid mooting the advancement issue and to ensure that the KPMG Defendants, should they prevail, would have the money in time to use it to prepare for and try this case. In that event, there would be little reason to think that a trial in this case would be "speedy" by anyone's definition. It could simply proceed with the case without regard to the advancement dispute. In that event, the Court, for reasons discussed at length in Stein I,[106] would be obliged to consider dismissing the indictment or imposing other sanctions on the government that would undermine the public's interest in obtaining a verdict purely on the merits of the charges against these defendants. Given these considerations, it is important to focus on exactly what lies on the arbitration side of the balance. Even viewing the matter without regard to KPMG's tactics, it is KPMG's purely private interest, albeit an interest entitled to 258 weight in light of the FAA, in having the advancement issue litigated before arbitration panels, each of which includes one member chosen by KPMG or, stated more broadly, in insisting upon adherence to an arbitration clause and thus choosing the forum in which the advancement dispute will be resolved.[107] The issue, then, is whether this private KPMG interest is decisively outweighed by, among other things, the KPMG Defendants' constitutional rights to a fair trial with counsel of their choice, their and the public's interests in a speedy trial, and the public interests in having this indictment decided purely on its merits (rather than in a decision dictated or influenced by sanctions imposed on the government) and in avoiding, if possible, the cost of all or part the defense being cast on the public treasury. This is not a close call. When one considers KPMG's tactics in the Hasting matter, the balance tips even more decisively in favor of the KPMG Defendants. KPMG knows full well that any responsible attorney would advise any of the KPMG Defendants to invoke the Fifth Amendment in arbitration proceedings rather than testify concerning matters at issue in this case.[108] That is what Mr. Hasting did. KPMG's responseseeking a preclusion order tantamount to dismissal of Mr. Hasting's advancement claim or a stay of the arbitration hearing until this case is concluded, which would moot the advancement issuedemonstrates that KPMG in fact has no more interest in having the advancement issue decided on the merits in arbitration than it has in having this Court decide it. It seeks to take advantage of the pendency of this indictment to provoke invocation of the Fifth Amendment in the arbitral forum and thus to defeat any rights the KPMG Defendants may have without the question ever being decided on its merits. But arbitration is a means designed to promote the just and speedy private resolution of disputesnot a weapon for use by the strong to deprive those less able to pursue their claims of any timely resolution at all. Courts have held arbitration clauses void as against public policy in far less compelling circumstances.[109] In DeGaeta 259 no v. Smith Barney, Inc.,[110] for example, the court held an arbitration clause unenforceable as against public policy to the extent that it would have prevented an employeea prevailing party in an employment discrimination suitfrom recovering legal fees to which she was entitled under Title VII. After recognizing that "the fee action in this dispute arises against the backdrop of an overarching `liberal federal policy favoring arbitration,'"[111] in the court held that the arbitration clause violated the federal policy, set forth in Title VII and in Supreme Court precedent, of awarding legal fees to prevailing parties in order to encourage plaintiffs of limited means to pursue meritorious suits, thereby serving as "private attorneys] general."[112] Board of Education of Buffalo v. Buffalo Council of Supervisors & Adminsitrators[113] also is instructive. A collective bargaining agreement ("CBA") there prohibited discipline or reprimand of covered employees without just cause and provided for a grievance procedure culminating in binding arbitration for claimed violations. The union filed a grievance and demanded arbitration of a claim that the employer school board had violated the CBA in that a board member had verbally attacked one of its members at a public board meeting. The Appellate Division acknowledged New York's strong policy favoring arbitration of employment disputes. It concluded that the grievance arguably was within the scope of the arbitration clause. Nevertheless, it held that arbitration of that grievance, would offend public policy because permitting the assertion of such a claim would discourage "free, open, and vigorous legislative discussions."[114] The public interests at issue here are at least as important as those at issue in DeGaetano, Board of Education of Buffalo, and similar cases[115] Accordingly, the 260 Court holds that any arbitration clause that otherwise would require arbitration of claims for advancement of defense costs in this pending criminal case is, to that extent, void as against public policy. This is a very narrow holding. The Court does not suggest that advancement disputes concerning civil litigation are not arbitrable. Nor does it hold even that all advancement disputes concerning criminal cases are not arbitrable. Finally, there has been no suggestion that any arbitration clause otherwise applicable here would be void as against public policy with respect to any counterclaims KPMG may assert, claims by the KPMG Defendants for indemnification for pre-indictment defense costs, or a host of other issues that might be imagined. The Court intimates no opinion on those matters. III. The Implied Contract Claim Is Legally Sufficient KPMG asserts also that the defendants have failed to state an implied contract claim upon which relief may be granted. They move to dismiss Count I of the advancement complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [20] As previously noted, this is a criminal case to which the Civil Rules do not apply. The Criminal Rules, however, do not regulate practice in the respects required for resolution of the advancement dispute. The Court therefore exercises its authority under Criminal Rule 57(b) to apply the Civil Rules insofar as they cover matters not dealt with by the Criminal Rules.[116] KPMG's legal sufficiency argument rests in part on an alleged lack of evidentiary detail in the complaint and in part on its assertion that it always paid the legal expenses of KPMG employees who were sued as a result of their employment pursuant to voluntary, unilateral decisions by KPMG made on a case by case basis. In other words, the prior payments, KPMG says, were not made out of any legal obligation, but as a matter of grace. In seeking dismissal on these bases, KPMG overlooks both the procedural rules and the relevant substantive law. To begin with, the Federal Rules of Civil Procedure require only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief.[117] Exactly how short and plain is evident from the official forms annexed to the rules. Official Form 5, the exemplar of la, complaint for goods sold and 261 delivered, for example, reads in its entirety as follows: "1. Allegation of jurisdiction." "2. Defendant owes plaintiff ___ dollars for goods sold and delivered by plaintiff to defendant between June 1, 1936 and December 1, 1936."[118] There is no need to plead evidence.[119] Moreover, "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."[120] Measured by this standard, the implied contract claim is more than sufficient. Nor does KPMG's assertion that it has paid legal expenses in the past as a matter of grace rather than pursuant to a contract warrant dismissal at this stage. This factual contention does not appear in the complaint and so is not properly considered in ruling on a motion to dismiss for legal insufficiency. And while Civil Rule 12(b) permits (but does not require) a district court, on a motion to dismiss, to consider matters outside the complaint, the consideration of such matters converts the motion into one for summary judgment.[121] Motions for summary judgment must be based upon affidavits or other evidence that "would be admissible in evidence [at trial], and [that] . . . show affirmatively that the affiant is competent to testify to the matters stated therein."[122] As KPMG's factual assertions concerning its past payment of legal expenses of its employees are unsupported by affidavits made on personal knowledge or by other admissible evidence, its motion, insofar as it rests on these assertions, would have to be denied even if the Court were disposed to convert the motion into one for summary judgment, which on this point it is not. KPMG's argument misunderstands also the nature of a contract implied in fact. "A contract implied in fact may result as an inference from the facts and circumstances of the case, although not formally stated in words, and is derived from the presumed intention of the parties as indicated by their conduct. It is just as binding as an express contract arising from declared intention, since in the law there is no distinction between agreements made by words and those made by conduct."[123] In other words, a contract implied in fact, depending upon the circumstances, may arise from a course of conduct.[124] Thus, even if KPMG in fact subjectively believed that it paid the defense costs of its employees for all these years as a matter of grace rather than of legal obligation, that would not be conclusive. Indeed, it probably would not even be relevant, as the formation 262 of contracts is based on the parties' objective manifestations of assent, not their uncommunicated subjective views.[125] Finally, KPMG's reply memorandum contends, for the first time, that Delaware law indicates "that any mandatory obligation to advance expenses must be set forth in the partnership agreement or other contract."[126] The Delaware Revised Uniform Partnership Act, however, provides that Delaware partnerships may indemnify their members "from and against any and all claims and demands whatsoever" subject only to "[s]uch standards and restrictions, if any, as are set forth in its partnership agreement."[127] This language, found also in the Delaware Limited Liability Company Act,[128] is intended "to give the maximum effect to the principle of freedom of contract."[129] And neither the Delaware statute of frauds nor any other provision of Delaware law prevented KPMG from becoming obligated to advance defense costs by virtue of a contract implied in fact.[130] The cases upon which KPMG relies are entirely inapposite.[131] As noted, the issue on a Rule 12(b)(6) motion is whether the claimant would be permitted to prove facts under its complaint that would entitle it to relief. Here, the KPMG Defendants quite plainly would be permitted to prove that KPMG routinely paid the legal expenses of its employees sued in KPMG-related cases, 263 that this was an important part of the benefits it gave its employees in light of the large volume of litigation brought against and investigations of accounting firms and their personnel, and that there was no statement or agreement that this was not an integral part of the employment bargain between the firm and its employees. Were they to do so, a reasonable trier of fact could well find the existence of an implied in fact contract. Indeed, it might do so on the basis of less.[132] Accordingly, insofar as KPMG moves to dismiss Count I on the ground that it fails to state a claim upon which relief may be granted, the motion must be denied. IV KPMG's Defenses KPMG advances a number of defenses based on materials outside the complaint the 2003 Agreement, the Fee Letters, and agreements between KPMG and a few of the KPMG Defendants. As KPMG moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), there are only two theories pursuant to which these materials properly could be considered. First, a court acting on a Rule 12(b)(6) motion may consider documentary evidence that is neither set out in nor attached to the complaint where that evidence fairly may be said to have been incorporated by reference as, for example, where the complaint refers to and relies upon it despite a failure to set it forth in extenso.[133] The advancement complaint does not do so here except with respect to Mr. Stein's contract and the Fee Letters.[134] Accordingly, the Court considers the Stein contract and the Fee Letters, but not the other documents, in resolving the 12(b)(6) motion. Second, as noted above, a district court may convert a Rule 12(b)(6) motion into one for summary judgment and then consider materials outside the pleading. Even if the Court were to convert here, however, a motion for summary judgment by KPMG on these grounds would fail in most respects. A The Merger Clause KPMG argues that no contract may be implied in fact because the 2003 Agreement provides that: "This Agreement (i) constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the Members with respect to the subject matter hereof and (ii) except to the extent set forth herein, is not intended to confer upon any person other than the parties hereto any rights or remedies."[135] KPMG is right, of course, that "a contract cannot be implied in fact . . . where there is an express contract covering the subject matter involved."[136] But it 264 does not follow that the 2003 Agreement forecloses the KPMG Defendant's implied contract claim. This is so for two reasons. First, the language upon which KPMG relies states that the partnership agreement is "the entire agreement . . . among the Members." It says nothing about agreements between members and KPMG, the firm.[137] Moreover, the arbitration clause in the 2003 Agreement, as distinguished from its merger clause, specifically refers both to disputes among members and to disputes between a member and the firm.[138] It thus makes quite clear that the drafters distinguished between (a) relationships among the members of the firm and (b) relationships between members and the firm as an entity. This distinction is significant, as the two relationships are quite different. The Delaware Revised Uniform Partnership Act, under which KPMG is organized, provides that "[a] partnership is a separate legal entity which is an entity distinct from its partners" except in a limited circumstance not pertinent here.[139] Thus, whatever effect the merger clause in the partnership agreement may have with respect to foreclosing other alleged agreements among KPMG's members, it has none at all with respect to agreements between KPMG's members and the firm itself. KPMG would not prevail on this argument even if the Court were to assume that the merger clause applied to disputes between KPMG as an entity and its members. The version of the partnership agreement upon which KPMG relies purports to be the entire agreement of the parties only "with respect to the subject matter [t]hereof." But the agreement is entirely silent on the subjects of indemnification and advancement of defense costs. Hence, the subject matter of the alleged implied in fact contractindemnification and advancementis not "the subject matter" of the partnership agreement. Were any confirmation of this conclusion required, one would need to look no farther than the Rosenthal Agreement. It stated in relevant part: "NOW, THEREFORE, for good and valuable consideration, receipt whereof is acknowledged, the Partnership and the Partner agree as follows: * * * "7. Indemnification. * * * To the extent that the Partner is a `subject' or `target' of any investigation by the U.S. Department of Justice or any U.S. Attorney's Office . . ., the Partnership has no obligation to indemnify Partner for the costs of his defending such an investigation but may voluntarily do so, to the extent and under such terms and conditions 265 as the Partnership believes are in the best interests of the Partnership."[140] If, as KPMG claims, the merger clause in the partnership agreement foreclosed any obligation to indemnify its partners because indemnification is within "the subject matter" of the partnership agreement, then this language in the Rosenthal Agreement was entirely unnecessary. Its inclusion by KPMG therefore is highly probative because it shows that KPMG in fact did not construe the partnership agreement as it now asserts it should be construed.[141] Finally, KPMG suggests also that the "subject matter" of the partnership agreement is the entire relationship between KPMG and its partners and, in consequence, that there can be no contractual obligations between KPMG and its partners that are not found in that agreement.[142] But there would be a major flaw in that argument even if one were to overlook the important distinction between KPMG, on the one hand, and its members, on the other. If the merger clause meant to say that the partnership agreement is the entire agreement among the members or between the members and the firm, it would have been easy enough to say so. But it does not say that. It says that it is "the entire agreement . . . among the Members with respect to the subject matter hereof" Accepting KPMG's argument impermissibly would render the italicized language, which defines the scope of the merger clause, superfluous. The meaning of the phrase "subject matter hereof' `must be determined by reference to the contents of the partnership agreement. As the agreement is silent as to advancement and indemnification, the merger clause would not foreclose the implied in fact contract claim even if it applied to agreements between the firm and its members, which it does not.[143] B. The Fee Letters KPMG argues that the signatures of those of the KPMG Defendants who are said to have signed the Fee. Letters beneath the words "REVIEWED AND AGREED" evidenced agreement that KPMG had no obligation to advance or pay their legal expenses and that it was doing so conditionally, during the investigatory stage only, as a result of a discretionary decision on its part. In substance, it seeks summary judgment on this basis. There is, however, a salient difficulty with this contention. The Fee Letters said that KPMG had determined that it had no legal obligation to pay, but was prepared to do so conditionally upon request. Thus, by their own terms, they are not clear whether a recipient's signature at the foot signified agreement that KPMG's determination 266 was correct or simply agreement with the proposition that KPMG was taking that position. And while this is plain on the face of the letters themselves, it becomes even clearer when considered in the context in which the Fee Letters were executed. When KPMG wanted to make clear that an agreement with a partner included an admission by the partner that KPMG had no legal obligation to pay fees on the partner's behalf, it knew how to accomplish that. Once again, the Rosenthal Agreement illustrates the point. As noted previously, it stated in relevant part that "the Partnership and the Partner agree . . . [that to the extent that the Partner is a `subject' or `target' of any investigation by the U.S. Department of Justice or any U.S. Attorney's Office . . ., the Partnership has no obligation to indemnify Partner for the costs of his defending such an investigation but may voluntarily do so, to the extent and under such terms and conditions as the Partnership believes are in the best interests of the Partnership."[144] The Fee Letters, however, contained no such language. There is a world of difference between these two interpretations of the Fee Letters. If the signatures, as KPMG claims, evidenced agreement that there was no legal obligation to pay, they probably would be fatal to the signatories' claim that KPMG is bound to advance defense costs. But agreement by a KPMG Defendant that KPMG had determined that there was no legal obligation would have no more significance here than agreement by a KPMG Defendant that KPMG had determined that the New York Yankees won the 1955 World Series (which in fact was won by the Brooklyn Dodgers). The signatory in that case would have acknowledged and agreed only that KPMG had made a determination contrary to fact. But it would not have agreed that KPMG's determination was correct. The interpretation of an unambiguous contract is a question of law for the Court.[145] Ambiguity, however, "exists where a contract term could suggest more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business."[146] Where the terms or the inferences that reasonably may be drawn from the terms are susceptible of more than one meaning, the construction of the contract presents an issue of fact.[147] The Fee Letters at least are reasonably susceptible of the interpretation that favors the KPMG Defendants. They certainly do not unambiguously favor KPMG. They therefore cannot be construed in favor of KPMG as a matter of law.[148] Summary 267 judgment for KPMG would be inappropriate. C. The Alleged Releases Both the pre and post-Fee Letter agreements between KPMG and a handful of the KPMG Defendants contained releases. Although the argument section of KPMG's memorandum of law does not contend that the releases are defenses to these claims, there is a comment in its description of these agreements in its statement of facts to the effect that they relieved it "of any obligation to advance legal fees."[149] Accordingly, the Court addresses that point. 1. The Greenberg Agreement There is little or no lack of apparent clarity in Mr. Greenberg's agreement with KPMG. On September 5, 2003, after the termination of his employment with KPMG, he released KPMG "from any and all causes of actions, . . . contracts, . . . claims, liabilities, . . . and demands, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, . . . which Greenberg has or may have, against [it] . . . by reason of any and all acts, omissions, events or facts occurring or existing prior to the date hereof as it relates to Greenberg's membership in KPMG and his resignation from that partnership . ." Greenberg's employment ended with that agreement, so any implied contract arising by reason of events during the course of his employment existed and at least arguably was released as of its date. Hence, even if there was an implied contract to advance defense costs to. Greenberg, it appears likely that he released KPMG from it. As the language of the Greenberg Agreement seems clear, the Court will convert so much of KPMG's Rule 12(b)(6) motion as seeks dismissal of Mr. Greenberg's claim based on the release in his agreement into a motion for partial summary judgment for that relief. Nevertheless, Mr. Greenberg has not previously been given the requisite notice that summary judgment is sought against him and an opportunity to present opposing evidence.[150] The parties shall submit any additional evidence or other papers on that motion no later than 10 days after the date of this order. 2. The Eischeid, Warley and Wiesner Agreements The Eischeid, Warley and Wiesner Agreements differ substantially from the Greenberg Agreement. The release language in their three agreements, however, is identical. Each begins by releasing KPMG from "each and every claim, cause of action, . and demand for relief of any kind or nature whatsoever that Partner ever had or now has against [KPMG], including but not limited to any claim arising out of or in any way relating, directly or indirectly, to Partner's partnership or employment at [KPMG] and Partner's withdrawal therefrom."[151] None refers to contracts. As all of these agreements antedated the indictment in this case, all antedated the existence of any claim for advancement of the costs of defending it. Those therefore were not claims that Eischeid, Warley and 268 Wiesner, as of the date of their agreements, "ever had or now has." In consequence, if the agreements had stopped at that point, they obviously would have afforded no defense to these defendants' advancement claims. Each, however, went on to say: "The consideration offered herein is accepted by Partner as being in full accord, satisfaction and settlement of any and all claims or potential claims, and Partner expressly agrees that Partner is not entitled to and shall not receive any further recovery of any kind from [KPMG] . . . and that in the event of any further proceedings whatsoever based upon any matter released herein, [KPMG] . . . shall have no further monetary or other obligation of any kind to Partner, including any obligation for any costs, expenses and attorneys' fees incurred by or on behalf of Partner."[152] KPMG implies that the paragraph quoted immediately aboveparticularly the language to the effect that KPMG would have no further obligation for any legal feeschanges this result. It suggests that the language should be read in isolation and that it released any claim for legal fees and expenses, regardless of circumstances. But it cannot properly be read in isolation, and KPMG's is not the only reasonable interpretation of the language if, indeed, it is reasonable at all. Eischeid, Warley and Wiesner agreed that KPMG would have no further obligation only for any legal fees "in the event of any further proceedings . . . based on any matter released herein." The "matter released herein" is defined in the prior paragraph. It consisted of certain claims that Eischeid, Warley and Wiesner, respectively, "ever had or now has"in other words, claims that existed as of the date on which their agreements were signed. Unlike the Greenberg Agreement, it did not include contracts that existed as of those dates. Hence, it certainly cannot be said that these releases unambiguously require the conclusion that KPMG seeks. As the matter will go to trial, the question whether the releases favor the KPMG Defendants as a matter of law or whether, instead, they present issues of fact, shall abide the event. 3. The Rosenthal Agreement The Rosenthal Agreement contains the same release language as the Eischeid, Warley and Wiesner Agreements. The release therefore does not foreclose Mr. Rosenthal's implied contract claim for advancement of defense costs.[153] 269 V. KPMG's Procedural Objections Are Without Merit KPMG argues that a "summary" process to resolve the KPMG Defendants' claims for advancement of legal expenses would violate its rights for several reasons. Upon examination, each of its contentions is baseless, academic, or both. At the outset, however, it is well to begin with what is meant here by a summary process. It means, first of all, an expeditious resolution of the matterexpedited discovery to the extent that discovery is appropriate and a prompt trial of any genuine issues of material fact. Although this dispute between the KPMG Defendants and KPMG concerning advancement of defense costs is part of the criminal case because it is integral to determination of the remedy for the government's violation of the KPMG Defendants' rights,[154] the Court, as previously noted, is empowered by Rule 57(b) of the Federal Rules of Criminal Procedure to "regulate practice in any manner consistent with federal law, these rules, and the local rules of the district."[155] It intends to do that by applying the Federal Rules of Civil Procedure to the extent they are consistent with the Criminal Rules."[156] Summary process refers, secondly, to the consequences of applying controlling substantive law to identify the issues properly considered in determining whether these defendants are entitled to advancement of expenses. That controlling law, as will appear, suggests strongly that issues such as the existence of any right to indemnification, any claim by KPMG to setoff or recoupment, and any KPMG counterclaims relating to the alleged actions of the KPMG Defendants while at KPMG, if KPMG injects them here, probably cannot properly delay prompt resolution of the advancement issue and, if the result is favorable to the KPMG Defendants, enforcement of that right. 270 That is all that is meant by summary process.[157] With that in mind, the Court turns to KPMG's arguments. A. Rule 57 Specifically Authorizes a Speedy Hearing KPMG first argues that the Federal Rules of Civil Procedure do not authorize a summary proceeding here. In view of the preceding discussion of just what is meant by a summary proceeding, it perhaps is unnecessary even to address this argument. Nevertheless, the Court does so in the interest of' clarity and completeness. To the extent that KPMG means that the Federal Rules of Civil Procedure do not authorize expeditious treatment of the advancement claim, it is mistaken. Rule 57 expressly authorizes a court hearing a declaratory judgment action to "order a speedy hearing . . . and [to] advance [the case] on the calendar."[158] KPMG nevertheless argues that this is warranted "only when the action involves `an issue of law on undisputed or relatively undisputed facts,'"[159] citing Rechler Partnership v. Resolution Trust Corp.[160] But it miscites the case and misunderstands the law. The Rechler case did not say that a speedy hearing in a declaratory judgment action is appropriate "only" when the action involved few or no disputed facts. Rather, the Rechler court, in the course of concluding that a speedy hearing was appropriate, referred to the following statement in the 1937 Advisory Committee note on Rule 57: "A declaratory judgment is appropriate when it will `terminate the controversy' giving rise on undisputed or relatively undisputed facts, it operates frequently as a summary proceeding, justifying docketing the case for early hearing as on a motion, as provided for in California (Code Civ.Proc. (Deering, 1937) § 1062a), Michigan (3 Comp.Laws (1929) § 13904), and Kentucky (Codes (Carroll, 1932) Civ.Pract. § 639a-3)." Whatever precisely that statement meant, any suggestion that declaratory judgments, or speedy hearings in declaratory judgment actions, are restricted to cases in which the facts are entirely or nearly undisputed is, at best, obsolete. District courts have discretion to hold prompt hearings or trials in declaratory judgment cases, as indeed they do in all other cases, regardless of whether the facts are mostly undisputed.[161] The question 271 in every case instead is whether a prompt resolution may be reached, consistent with the interests of justice and the rights of all parties to due process of law, not some tallying of the number and nature of any disputed issues of fact or law. In any event, KPMG has not pointed to many, if any, disputed issues of fact of the sort that require extensive evidentiary development. In short, it has failed to advance a single persuasive reason for failing to proceed expeditiously with this matter, subject of course to assuring all parties of a fair opportunity to be heard. KPMG suggests also that the Court is not authorized to conduct a summary advancement proceeding under Section 145(k) of the Delaware General Corporation Law[162] or Sections 724(a) and 1319(a)(4) of the New York Business Corporation Law.[163] To the extent that these statutes authorize particular state courts to conduct statutorily defined proceedings of particular types, KPMG is correct, although the issue is academic.[164] To the extent that. KPMG implies, however, that the elements of a claim for the advancement of legal expenses, or the defenses available to such a claim, are governed not by the substantive law of the relevant state, but by the Federal Rules of Civil Procedure or some other body of law, it assuredly is not. It has been clear since Erie R.R. Co. v. Tompkins[165] that "[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state."[166] The question whether KPMG is obliged to advance legal expenses to the KPMG Defendants, including both the elements of the claims to advancement and the availability of defenses thereto, is not governed by the United States Constitution or any act of Congress. It therefore is governed by state law. As this Court pointed out in Stein I, the critical point about advancement of defense costsas distinguished from, among other things, claims for indemnification after the factis that its value "is that it is granted or denied while the underlying action is pending."[167] It protects the "ability [of the employee] to mount . . . a defense . . . by safeguarding his ability to meet his expenses at the time they arise, and to secure counsel on the basis of such assurance."[168] In consequence, the scope of an advancement proceeding "is limited to determining the issue of entitlement according to the corporation's advancement provisions.'"[169] "Neither indemnification 272 nor recoupment of sums previously advanced are appropriate for litigation" in such a proceeding. They necessarily are reserved for subsequent determination.[170] Nowhere is this clearer than from the line of Delaware cases that distinguishes between advancement and indemnification and requires companies to advance the cost of defending claims that allege wrongs to the companies, even lawsuits brought by companies themselves against former officers and directors.[171] The fundamental principle is that a company that undertakes to advance defense costs may not avoid that obligation by claiming that the litigation against its former employee for which the employee seeks advancement of defense costs accuses the employee of conduct that, if proved, would foreclose indemnification or establish a breach of the employment contract or of a fiduciary or other duty owed to the company. Nor may the company try the merits of its claims against an employee "in order to assert a set-off or recomponent [sicreoupment] as an advancement defense."[172] This principle concerns something considerably more than merely the procedure by which an advancement claim is presented. If a right to advancement of defense costs exists, the inherent nature of the right is to receive the funds as the defense costs are incurred. Postponement of determination whether such a right exists would render the right meaningless. By the time a decision were reached, the underlying proceeding would be overthe occasion for advancing defense costs would 273 have passed and its purpose would have been defeated. In consequence, determination of a claim for advancement cannot wait until the underlying case is over, when an employee's right to indemnification may be determined. Nor can it wait until an employer decides whether to pursue any independent claims that it may have against the employee or, if it has brought such claims, until the employer's claims are determined. These considerations make clear that rules governing the issues properly considered in determining a claim for advancement of defense costs are matters of substance, not procedure. Erie and its progeny therefore require that this Court apply state law. In consequence, to the extent that KPMG suggests that a "summary" proceeding is not appropriate because the scope of the issues properly considered in determining the KPMG Defendants' claims for advancement is governed by the Federal Rules of Civil Procedure or some other federal law, it is mistaken. This view is strongly supported by Gasperini v. Center for Humanities, Inc.,[173] where the Supreme Court dealt with the effect in federal court of N.Y. CPLR § 5501(c), which empowers the Appellate Division of the New York Supreme Court to order a new trial when a jury verdict "deviates materially from what would be reasonable compensation." The Court recognized that the state statute "is both `substantive' and `procedural': `substantive' in that § 5501(c)'s `deviates materially' standard controls how much a plaintiff can be awarded; `procedural' in that § 5501(c) assigns decisionmaking authority to New York's Appellate Division."[174] Insofar as the statute assigned review of jury awards to the Appellate Division, it of course could not be applied in federal courts. The Court held, however, that the "deviates materially" standard is part of the substantive law of New York and that federal courts are obliged to give it effect.[175] So too here. Procedures established by the pertinent state for litigating advancement disputes in its own courts, like those governing appellate review of New York State court jury awards, do not apply here. The substantive policies that control the nature and scope of the issues that are pertinent in an advancement proceeding, however, must be given effect in federal courts. B. KPMG's Due Process Argument KPMG asserts also that no summary proceeding may be conducted because KPMG is entitled to due process of law. It argues that "[t]his, includes the right under the Federal Rules to conduct discovery and develop a factual record regarding each individual [KPMG] Defendant's claims."[176] KPMG's rhetoric, however, gets in the way of substance. Of course KPMG is entitled to due process. It is entitled to an appropriate opportunity to develop evidence and, to the extent that there are genuine issues of material fact, to a trial of those issues. 274 But it is not entitled to discovery for its own sake, or to a trial broader than is necessary to decide any material factual issues, any more than would any litigant in a garden variety civil case. So it is critical to focus on what really is at issue here. Some of the KPMG Defendants were employed in California and assert that they are entitled to advancement of legal expenses under California law simply by virtue of their employment. KPMG has not questioned any of the facts upon which they rely. All of the KPMG Defendants, save Mr. Stein, assert that there is an implied in fact contract between them and KPMG pursuant to which KPMG is obliged to advance defense costs. They rely on KPMG's past practices and, apparently, the litigation-prone nature of the business in which KPMG is engaged. None of this, at least thus far, seems to be in dispute although other facts also may prove material. Mr. Stein relies upon a written contract, the terms of which are undisputed. In short, the advancement issue is a relatively simple matter. California law and the Stein agreement either mean what the KPMG Defendants claim or they do not. There either is or is not a contract implied in fact, primarily by KPMG's undisputed past practices and the nature of the business and the employment relationships in question. If there are any disputes concerning historical facts, they appear to be limited. Nor is the law especially complex. There is no reason why the claim of the KPMG Defendants for advancement of their defense costs cannot and should not be resolved expeditiously and fairly. It is not now entirely clear exactly how this will play out. But some preliminary observations may be helpful in understanding the Court's approach. It remains to be seen whether KPMG will assert any affirmative defenses. Should it do so, and should their sufficiency be challenged, the Court will determine that question in the ordinary course. It will do so in accordance with the Rules of Civil Procedure unless a Rule of Criminal Procedure requires a different course, which seems unlikely. Likewise, it remains to be seen whether KPMG will assert counterclaims. Even if it should do so, however, and even if the Court were to conclude that it has subject matter jurisdiction over them, the Rules of Civil Procedure would provide ample flexibility for an expeditious resolution of the advancement claims if that continues to seem appropriate. Rules 56(d) and 42(b) would permit partial summary judgment on or a separate trial of the advancement claim. Rule 54(b) would permit entry of final judgment on the advancement claims, regardless of how they are decided, notwithstanding the continued pendency of counterclaims. Indeed, the Court would have discretion under Rule 62(h) to stay or decline to stay enforcement of such a judgment pending resolution of any KPMG counterclaims.[177] All of these matters remain to be determined. But the bottom line is clear. KPMG's seizure on the words "summary proceeding" should not obscure the reality of what has been and remains to be done here. What KPMG is entitled to is notice and a fair opportunity to be heard. It has had the former. By the time the Court reaches any conclusion on the advancement 275 issue as to the KPMG Defendants who have not released those claims, it will have had the latter. And it will have had it with the protections inherent in the Federal Rules of Civil Procedure, regardless of whether they are strictly applicable here. VI. The KPMG Defendants' Motion to Compel Advancement Although an immediate resolution of the advancement issuewhich now has been pending for a considerable periodwould be highly desirable, the Court has concluded that a decision on the present record is not advisable. While much of the evidence received in the hearing that preceded Stein I probably is admissible against ICPMG,[178] KPMG did not examine witnesses there. Moreover, although the parties should have submitted affidavits or declarations on these motions authenticating the documentary evidence upon which they rely, they did not uniformly do so. In consequence, and to give the parties a full opportunity to be heard, the Court will try the remaining claims of the KPMG Defendants for advancement save for the possibility that Mr. Greenberg's claim may be resolved by summary judgment. Moreover, the parties may conduct expedited discovery in preparation for that trial.[179] The parties shall serve and file witness and exhibit lists and exchange copies of their premarked exhibits no later than October 11, 2006.[180] The trial will commence on October 17, 2006 at 9:30 a.m. Any jury demand shall be served and filed no later than September 9, 2006. Any motion to strike a jury demand shall be served and filed no later than September 12, 2006, with any opposition served and filed no later than September 15, 2006 and any reply papers served and filed no later than September 18, 2006. Conclusion KPMG's motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted is converted into a motion for summary judgment dismissing the claim of Mr. Greenberg and, to that extent, will be dealt with as indicated above. It is denied in all other respects. The claims of the KPMG Defendants for advancement of defense costs are set for trial as indicated above. SO ORDERED. NOTES [1] One of the nineteen, a former KPMG employee, has pleaded guilty. Three defendants are charged also with obstruction in violation of 26 U.S.C. § 7212 and 18 U.S.C. § 2. [2] 435 F. Supp. 2d 330 (S.D.N.Y.2006). [3] United States v. Stein, 440 F. Supp. 2d 315 (S.D.N.Y. 2006) ("Stein II"). [4] KPMG argues that the findings made in Stein I are not binding upon it. It is not clear that this is correct, as KPMG participated to some extent in the proceedings that gave rise to that opinion. But the point is academic, as the Court does not here rely on those findings in order to resolve the matters now before the Court. [5] For ease of expression, the Court uses the term "employee" to include partners, principals and employees. [6] Cpt. ¶¶ 40-42. The complaint asserts, in the alternative, that the failure to advance defense costs is a breach of the implied covenant of good faith and fair dealing inherent in the KPMG partnership agreement. Id. ¶ 41. [7] Id. ¶¶ 43-46. [8] Id. ¶¶ 47-52. [9] Id. ¶¶ 40, 46, 52. [10] Both sides have submitted such documents by attaching them to their memoranda of law without filing authenticating affidavits. As neither side has objected, the Court assumes the, authenticity of this documentary evidence except where otherwise indicated. [11] KPMG Mem. Ex. 6, ¶ 8. [12] Id. Ex. 7, ¶ 6(a). [13] Messrs. Bickham, DeLap, Gremminger, Hasting, Lanning, Rosenthal, Smith, Watson, and Wiesner and Ms, Warley. Id. at 8-9 nn. 5-6. [14] KPMG has not provided any affidavit or other admissible evidence supporting its assertions. Nor has it furnished copies of letters signed by any of the defendants. While copies of such letters, signed by all or most of the ten defendants, were received in evidence at the hearing that preceded Stein I, KPMG objects to reliance on the Stein I findings on the ground that it did not have an opportunity to object to evidence offered or to examine witnesses in the hearing that preceded that decision. In consequence, the Court declines to rely on evidence adduced at that hearing unless and until it is offered and received in evidence in proceedings subsequent to KPMG's formal joinder. Nevertheless, as KPMG would not be, entitled to relief based upon these letters even if they were in evidence, the Court assumes the accuracy of KPMG's assertion that the template letter attached to its memorandum of law in fact was sent to and signed by a number of the defendants. [15] Id. Ex. 3; see Stein I, 435 F.Supp.2d at 345-46. [16] KPMG Mem. Ex. 3. [17] See id. Ex. 8 ¶ 8(a); id. Ex. 10116(a). [18] The Rosenthal Agreement is similar to that between KPMG and Mr. Stein. Compare id. Ex. 11, ¶¶ 6-8 with Stein I, 435 F.Supp.2d at 339 & n. 25, 356 n. 119. [19] KPMG Mem. Ex. 11, ¶ 8(b). [20] KPMG's notice of motion seeks neither to compel nor to stay these proceedings pending arbitration. Docket item 13, 06 Civ. 5007. [21] Docket item 520, 05 Crim. 0888 (KPMG Memorandum), Att. 1. [22] KPMG Defs. Mem. Ex. 10, at 1-2. [23] See id. 16 & Ex. 10, at 1. [24] Id. Ex. 11, at 1-2. [25] Stein I, 435 F.Supp.2d at 377-78. [26] 443 F.3d 202 (2d Cir.2006). [27] No. S2 94 Crim. 760(CSH), 1997 WL 334966 (S.D.N.Y. June 16, 1997). [28] 443 F.3d at at 208-10. See also Matter of Stabile (United States v. N.Y. Racing Ass'n), 436 F. Supp. 2d 406 (E.D.N.Y.2006). [29] Id. at 209. [30] Id. [31] Id. at 208 (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379-80, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994) (internal quotation marks omitted)). [32] Id. (quoting Jenkins v. Weinshienk, 670 F.2d 915, 918 (10th Cir.1982) (internal quotation marks omitted)). [33] Id. at 209. It bears noting also that the attorney in question in Garcia had withdrawn as counsel in the underlying criminal litigation. When the fee dispute arose, he no longer was before the Court any more than any other lawyer. Moreover, by the time the appeal was heard, he had died. Id. at 202 n. 1. [34] 1997 WL 334966. [35] KPMG Mem. 33. [36] Garcia, 443 F.3d at 209-10. KPMG denigrates Weissman on the additional ground that it is "unpublished" (KPMG Mem. 33), presumably a reference to the fact that it is published on Westlaw and Lexis but not in the printed volumes of the Federal Supplement. The Court ordinarily would pass such a contention without comment save for the fact that KPMG's memorandum cites eight cases that are "unpublished" in the same sense as well as one that does not appear even in the computer assisted legal research services. The fundamental point, however, is that the force of a judicial decision depends upon its inherent persuasiveness and logic, not upon whether its author sent it to West Publishing Company for inclusion in a print reporter. This Court, like the Second Circuit, finds Weissman quite persuasive. [37] KPMG asserts also that "[t]he Court's declaration of ancillary jurisdiction, and the Complaint itself, rest almost entirely on one . . . unsupported finding: that `[a]bsent the Thompson Memorandum and the actions of the [United States Attorney's Office], KPMG would have paid the legal fees and expenses of all of its partners and employees both prior to and after indictment, without regard to cost.'" KPMG Mem. 4. It goes on to complain that "no witness . . . was asked the hypothetical question of what KPMG would have done `[a]bsent the Thompson Memorandum and the actions of the United States Attorneys' [sic] Office." Id. These assertions are utterly lacking in merit. To begin with, there was ample evidence to support the Court's finding. Indeed, it rested heavily on a stipulation between the government and the KPMG Defendants that was promoted by and rested on representations by KPMG. It rested also on the testimony of KPMG's general counsel. See Stein I, 435 F.Supp.2d at 340 & n. 27, 352 & n. 92. The finding of ancillary jurisdiction, moreover, depended on the existence of a dispute as to KPMG's legal obligation to advance defense costs and the significance of that issue to the proper resolution of this case, not on the finding that it would have paid absent the government's interference. Id. at 377-78. The lack of any hypothetical question as to what KPMG would have done, even assuming that such a question would have been proper and that there was a witness competent to answer it, is no more persuasive. The government had every opportunity to ask such a question but elected not to do so. And since the Court does not rely upon the findings in Stein I as against KPMG, KPMG could not possibly be aggrieved by that failure. [38] Docket item 13, 06 Civ. 5007. [39] See Stein I, 435 F.Supp.2d at 373-81. As discussed in more detail below, some of the forms of a civil actionfor example, the issuance and service of a summons and complaint on KPMG and the use of a civil docket number purely as a matter of conveniencehave been employed pursuant to the Court's power under FED.R.CRim.P. 57(b) to regulate practice in a criminal case in any manner consistent with federal law where the criminal rules do not otherwise prescribe the mode of procedure, not because this is a civil action subject to the Federal Rules of Civil Procedure. [40] 9 U.S.C. § 1 et seq. [41] The analogy to the role of arbitration with respect to issues of patent validity is instructive. Arbitration clauses requiring arbitration of issues of patent validity formerly were void as against public policy in view of the preeminent public interest in such questions. Beckman Instruments, Inc. v. Tech. Dev. Corp., 433 F.2d 55, 62-63 (7th Cir.1970) ("[W]e are in accord with the district court's view that . . . questions [of patent validity] are inappropriate for arbitration proceedings and should be decided by a court of law, given the great public interest in challenging invalid patents."). Although that rule was changed by the enactment of 35 U.S.C. § 394(a), the fact remains that the public interest in matters of patent validity trumped the FAA until Congress enacted specific legislation to the contrary. [42] Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985); see also, e.g., Buckeye Check Cashing v. Cardegna, ___ U.S. ___, ___. 126 S. Ct. 1204, 1207, 163 L. Ed. 2d 1038 (2006); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001); Shearson/Am. Exp. Inc. v. McMahon, 482 U.S. 220, 225-26, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987). [43] First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). [44] E.g., LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 198 (2d Cir.2004). [45] EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 122 S. Ct. 754, 151 L. Ed. 2d 755 (2002). [46] Tellium, Inc. v. Corning, Inc., No. 03 Civ. 8487(NRB), 2004 WL 307238, at 5 (S.D.N.Y. Feb.13, 2004) (citing Progressive Cas. v. C.A. Reaseguradora Nacional, 991 F.2d 42, 46 (2d Cir.1993)); Roller v. Centronics Corp., No. 87 Civ. 5715(JFK), 1989 WL 71200, at 2 (S.D.N.Y. Tune 22, 1989) (citing Nederlandse Erts-Tankersmaatschappij, N.V. v. Isbrandtsen Co., 339 F.2d 440, 442 (2d Cir.1964)). [47] 9 U.S.C. § 2. See also Doctor's Assoc., Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996) ("[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2 [of the FAA]."); United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987); W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum and Plastic Workers of Am., 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983); 1 DOMKE ON COMMERCIAL ARBITRATION § 39:9 (2006) ("DOMKE"). [48] E.g., PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1198 (2d Cir.1996). [49] Id. [50] AT&T Techs., Inc. v. Commc'n Workers of Am., 475 U.S. 643, 650, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Nay. Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960)); accord Paramedics Electromedicina Comercial. Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 653 (2d Cir.2004); Smith/Enron Cogeneration Ltd. P'ship v. Smith Cogeneration Int'l Inc., 198 F.3d 88, 99 (2d Cir.1999); WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir.1997). [51] One preliminary point must be made with respect to the 2003 Agreement and all of the other KPMG partnership agreements referred to in this opinion. As noted, it was KPMG's burden to demonstrate the existence of an agreement to arbitrate. Supra n. 46. Yet, as the KPMG Defendants asserted at oral argument, KPMG has not submitted any affidavit or other admissible evidence authenticating any of these agreements or establishing that the conditions prerequisite to their effectiveness (e.g., the 2002 agreement provided that it could not be amended or changed absent the written consent of two-thirds of the members voting, KPMG Defs. Ex. 2, § 19.1, thus putting into question the effectiveness of the 2003 Agreement) were satisfied. In consequence, the KPMG Defendants are technically correct in saying that KPMG has not carried its burden. As KPMG's motion must be denied even assuming that the copies of partnership agreement(s) it relies upon are authentic and were properly adopted, it is unnecessary to rely on this ground, which in any case probably could be cured. The subsequent discussion assumes authenticity and due adoption. [52] KPMG Mem. Ex. 4 (emphasis in original). [53] See id. 8-9 ("[a]ll but one of the Stein Defendants were at one time or another members of the partnership of KPMG. . . . One of them was a Senior Manager. . . .") (emphasis added); KPMG Reply Mem. 6 (referring to KPMG Defendants as "former partners"), 9 (referring to "the[ ] former status [of KPMG Defendants] as partners of the firm"); see also Cpt. ¶¶ 5-20. [54] E.g., Cpt ¶¶ 6, 10, 11, 12, 14, 15, 16, 20; Superseding Ind. ¶¶ 9, 13, 14, 17, 18, 19, 24. See also KPMG Reply Mem. 6-7 (arguing that half of the KPMG Defendants are subject to pre-2003 partnership agreements). [55] Cpt ¶ 9. [56] KPMG Mem. Ex. 7, ¶ 5 and first WHERAS clause. [57] The copy of the 2003 Agreement attached to KPMG's memorandum of law is followed immediately by copies of signature pages apparently bearing the signatures of most of those of the KPMG Defendants who were partners in the firm. KPMG Mem. Ex. 4. Close inspection of those signature pages, however, shows that they were not parts of the 2003 Agreement, as all bear earlier dates as follows: Bickham (partnership agreement signed July 1, 2000), DeLap (articles of partnership dated July 1, 1975), Eischeid (articles of partnership as amended as of April 1, 1987), Gremminger (partnership agreement effective July 1, 1997), Lanning (articles of partnership dated July 1, 1981), Pfaff (same), Ritchie (articles of partnership as amended July 1, 1987), Rosenthal (same), Stein (same), Watson (July 1, 1997), and Wiesner (articles of partnership July 1, 1987). There is no signature page for Mr. Greenberg (a page for someone named Greenfield having been included instead, presumably in error). The signature pages provided for Mr. Smith and Ms. Warley have 1995 and 1993 "received" stamps, but it is impossible to tell what documents these page were taken from. The signature page for Mr. Hasting includes no date nor any indication of what document it was taken from. [58] KFMG does note that two of these nine defendants, Messrs. Bickham and Larson, signed a Senior Manager's Agreement in addition to a partnership agreement, which required arbitration of "any claim or controversy arising out of or relating to this Agreement or the breach thereof . . . or any claim or controversy that in any way relates to the terms or conditions of KPMG's employment of Senior Manager." KPMG Mem. 24-25; KPMG Ex. 5 ¶ 14. Like the pre-2003 partnership agreements, however, the Senior Manager's Agreements did not purport to bind former employees and, in fact, stated that they would continue in effect only until the termination of the manager's employment. KPMG Ex. 5 ¶¶ 2, 5. [59] KPMG Defs. Mem. Ex. 3; see also KPMG Reply Mem. 7. [60] KPMG so conceded at oral argument. [61] Cpt. ¶¶ 5-20; Superseding Ind. ¶¶ 8-24. [62] It might be noted that the 2002 agreement stated that it amended and restated a previous agreement that was effective as of February 13, 2001. KPMG Defs. Mem. Ex. 2, at 1. Neither KPMG nor the KPMG Defendants have provided or otherwise relied upon any such 2001 agreement, so the Court cannot take its contents, whatever they may have been, into account in deciding this matter. Moreover, as the portions of the 1997 and 2002 agreements relevant to this point are identical, there is no reason to suppose that any 2001 or other intervening agreement was any different. [63] KPMG Defs. Mem. Ex. 2, § 1.29; id. Ex. 5, § 1(aa). [64] Id. Ex. 2, §§ 11.1, 1.42; id. Ex. 5, §§ 13(a), 1(a1). [65] Id. Ex. 2, § 17(i) (2002 agreement); id. Ex. 5, § 19(a) (1997 agreement). [66] KPMG contends that the addition of the phrase "or Separated Member" to the arbitration clause in the 2003 Agreement was designed only to make clear that former members had an obligation to arbitrate disputes with the firm concerning their conduct after they left the firm and that this was motivated by aspects of the Sarbanes-Oxley Act. KPMG Reply Mem. 11. But the argument is untenable. First, the language of the arbitration clause in the 2003 Agreement does not support KPMG's argument that the change related only to disputes concerning post-termination conduct by Separated Members. The clauses in the 1997 and 2002 agreements, on the one hand, and the 2003 Agreement, on the other, are substantially identical save for the insertion of Separated Members among those obliged to arbitrate. There was no change in the scope of the matters within the obligation to arbitrate. While the 2003 Agreement did impose certain new obligations on members that survive their separation from the firm, thus perhaps increasing the possibility of disputes between separated members and the firm, the fact remains that disputes between former partners and the firm were entirely foreseeable from the day the firm was founded. Such disputes could have arisen with respect to events that occurred while the former partners were members of the firm (e.g., embezzlement, receipt of kickbacks) or with respect to events that occurred afterward (e.g., misuse of confidential information or taking advantage of business opportunities that came to the knowledge of the separated member as a partner or principal in the firm). See, e.g., Int'l Equity Invests., Inc. v. Opportunity Equity Partners, Ltd., 407 F. Supp. 2d 483, 498-99 (S.D.N.Y.2005) (discussing duties of former partner to partnership and remaining partners); RESTATEMENT (SECOND) OF TRUSTS § 170 cmt. c (1959); RESTATEMENT (THIRD) OF AGENCY § 8.01 cmt. c (2006). So the 2003 addition of Separated Members to those obligated to arbitrate confirmed that there was no obligation on the part of Separated Members to do so under prior versions of the agreement with respect to disputes concerning either pre or post-termination events. Second, KPMG's assertions concerning the motive for the 2003 change are contained only in its unsworn memorandum of law. Although they would not change the result even if accepted, the Court declines to accept such factual contentions, as there is no evidence to support them. [67] The question whether individuals who were parties to the 1997 or 2002 partnership agreement remained bound to arbitrate disputes with the firm, even after their associations with the firm ended, conceivably might be characterized either as a question of whether there was an agreement to arbitrate or in terms of the scope of the arbitration clause. It is unnecessary, however, to determine which characterization better fits the facts here. If characterized as an issue going to the existence of an agreement to arbitrate, the question would be for the Court. If characterized as an issue going to the scope of the arbitration clause, the issue nevertheless would be for the Court because the language is such that " "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT&T Techs. Inc. v. Comms. Workers of Am., 475 U.S. 643, 650, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). Thus, even if KPMG had established that each of these nine defendants actually signed the 1997 or 2002 partnership agreements, the question whether they are obliged, after their departure from the firm, to arbitrate a dispute such as this would be for the Court in either case. [68] KPMG Reply Mem. 2, 8-11. [69] 430 U.S. 243, 97 S. Ct. 1067, 51 L. Ed. 2d 300 (1977). [70] Id. at 255, 97 S. Ct. 1067. [71] Id. at 253, 97 S. Ct. 1067. [72] Notwithstanding the presumption in favor of arbitrability that applies in other circumstances, the Supreme "Court [has] specifically instructed lower federal courts faced with post-expiration disputes to determine whether parties had agreed to arbitrate these disputesi.e., to determine arbitrabilityeven if that analysis requires the court to interpret the arbitration agreement, a task normally remitted to an arbitrator under a broad arbitration clause." CPR (USA) Inc. v. Spray, 187 F.3d 245, 255 (2d Cir.1999) (citing Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 208-09, 111 S. Ct. 2215, 115 L. Ed. 2d 177 (1991)). [73] 501 U.S. 190, 111 S. Ct. 2215, 115 L. Ed. 2d 177 (1991). [74] Id. at 205-06, 111 S. Ct. 2215. [75] The other cases relied upon by KPMG on this point are inappposite. None involved a situation in which the underlying agreement so clearly negated an intent to arbitrate posttermination disputes. Several were decided before Litton clarified the holding of Nolde Brothers. [76] CPR (USA), Inc., 187 F.3d at 255, suggests strongly that it would be for the Court. Moreover, the issue of arbitrability would not be free of doubt. [77] W.R. Grace & Co., 461 U.S. at 766, 103 S. Ct. 2177; see also Misco, Inc., 484 U.S. at 42, 108 S. Ct. 364. [78] See Casarotto, 517 U.S. at 686-87, 116 S. Ct. 1652 ("[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2 [of the FAA]."); Misco, 484 U.S. at 42, 108 S. Ct. 364; W.R. Grace & Co., 461 U.S. at 766, 103 S. Ct. 2177; 1 DOMKE § 39:9. Many states, including Delaware and New York, also prohibit the enforcement of arbitration provisions that contravene public policy. Matter of C'tee of Interns and Residents, 86 N.Y.2d 478, 484, 634 N.Y.S.2d 32, 34, 657 N.E.2d 1315 (1995); see also Matter of Blackburn, 87 N.Y.2d 660, 665, 642 N.Y.S.2d 160, 163-64, 664 N.E.2d 1222 (1996); Board of Ed. of City of Buffalo v. Buffalo Council of Sup'rs and Administra tors, 52 A.D.2d 220, 229, 383 N.Y.S.2d 732, 737 (4th Dept.1976); 5 N.Y. JUR. 2d, Arbitration & Award § 31 (2006); Worldwide Ins. Group v. Klopp, 603 A.2d 788 (Del. 1992) (clause limiting judicial review of arbitral award void as against public policy); Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 911 (Del.1989); 10 WEST'S DEL.CODE ANN. § 5701. [79] W.R. Grace, 461 U.S. at 766, 103 S. Ct. 2177; Misco, 484 U.S. at 43, 108 S. Ct. 364. [80] Booker v. Robert Half Intl, Inc., 315 F. Supp. 2d 94, 98 (D.D.C.2004) (quoting Mitsubishi Motors, 473 U.S. at 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444), aff'd, 443 F.3d 77 (D.C.Cir.2005). [81] W.R. Grace, 461 U.S. at 766, 103 S. Ct. 2177 (internal quotation marks omitted); Misco, 484 U.S. at 43-44, 108 S. Ct. 364; 1 DOMKE § 39:9. [82] 18 U.S.C. §§ 3161 et seq. [83] United States v. Gambino, 59 F.3d 353, 360 (2d Cir.1995), cert. denied, 517 U.S. 1187, 116 S. Ct. 1671, 134 L. Ed. 2d 776 (1996); see also, e.g., United States v. Yagid, 528 F.2d 962, 966 (2d Cir.1976) ("[The purpose of all the [district court] Plans for Achieving Prompt Disposition of Criminal Cases has been to serve the public interest in the prompt adjudication of criminal cases, and not `primarily to safeguard defendants' rights.'"]) (citation omitted). [84] Gambino, 59 F.3d at 360. [85] See generally Stein I, 435 F.Supp.2d at 356-62 (collecting authorities). [86] Id. at 357-58, 365-66. [87] Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989); Stein I, 435 F.Supp.2d at 365-66. [88] E.g., Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); 18 U.S.C. § 3006A. [89] Garcia, 443 F.3d at 210 (citing United States v. Parker, 439 F.3d 81, 105 (2d Cir. 2006)). [90] 18 U.S.C. § 3006A(f). [91] Garcia, 443 F.3d at 210. [92] Id. at 208 (quoting Morrow v. District of Columbia, 417 F.2d 728, 740 (D.C.Cir.1969)). [93] Id. (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379-80, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)). [94] Powell v. Alabama, 287 U.S. 45, 52, 53 S. Ct. 55, 77 L. Ed. 158 (1932); see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 552-53, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976) (noting the "trial court's duty to protect the defendant's constitutional right to a fair trial"). [95] Stein I, 435 F.Supp.2d at 355 (quoting Kaung v. Cole Nat'l Corp., 884 A.2d 500, 509 (Del.2005)). [96] Although this is matter governed by state law, it is an appropriate consideration because respect for the proper role of the states in our federal system itself is an important public interest. [97] 8 WEST'S DEL.CODE ANN. § 145(k) (2006); N.Y. Bus. CORP. L. §§ 724(a), 1319(a)(4). [98] This is not a remote possibility given the exceptional burdens of this extraordinary case. [99] The 1997 and 2002 agreements are the same in this respect. KPMG Defs. Mem. Ex 2 § 17(ii); id. Ex. 5 § 19(b). [100] The qualification refers only to the possibility that an advancement issue might remain as to the costs of any appeal. [101] In one current case, a former KPMG partnernot any of the defendants here made an arbitration demand on KPMG on October 28, 2005. There were delays in selecting arbitrators, owing in part to lengthy discussions over whether KPMG would challenge the claimant's arbitrator. The first formal conference after selection of the panel occurred on June 6, 2006, more than seven months after service of the demand on KPMG. The claimant then sought an October 2006 hearing at a time when the arbitrators were available. KPMG, however, successfully objected to setting a date. As of August 14, 2006, more than nine months after service of the demand, there was no hearing date set, and no documents had been produced by KPMG. KPMG Defs. Mem. Ex. 9 (Stoner Decl.) passim. [102] The number of claimants in arbitration could depend upon an appellate court's view of this Court's conclusion that nine of the sixteen are not parties to any relevant agreement to arbitrate this matter, as well as consideration of that issue as to the other seven. [103] Indeed, those clauses may well be inconsistent with consolidation. The requirement of panels of three arbitrators, with one selected by each side and the third by the two party-designated arbitrators, at least arguably supports the proposition that consolidation would be contrary to the agreements because it would be inconsistent with the agreed-upon method for selecting the panels. [104] It is unclear whether the Second Circuit would construe the FAA to permit consolidation of separate arbitrations arising under the same or similar agreements where the agreement or agreements are silent on the point. In Compania Espanola de Petroleos, S.A. v. Nereus Shipping, S.A., 527 F.2d 966 (2d Cir. 1975), cert. denied, 426 U.S. 936, 96 S. Ct. 2650, 49 L. Ed. 2d 387 (1976), it permitted consolidation. Many courts, however, view Government of United Kingdom of Great Britain and Northern Ireland v. Boeing Co., 998 F.2d 68 (2d Cir.1993), as having overruled Compania Espanola on this point. E.g., Phila. Reins. Corp. v. Employers Ins. of Wausau, 61 Fed.Appx. 816, 820 (3d Cir.2003); Red Ball Interior Demolition Corp. v. Palmadessa, 947 F. Supp. 116, 119 (S.D.N.Y.1996); Specialty Bakeries, Inc. v. Robhal, Inc., No. A97-1057, 1997 WL 379184, at 3 (E.D.Pa.1997). One Second Circuit panel recently declined to decide the continuing vitality of Compania Espanola in light of Government of United Kingdom. Hartford Acc. & Indem. Co. v. Swiss Reinsurance Am. Corp., 246 F.3d 219, 229-30 (2d Cir.2001). Another has construed Government of United Kingdom as having "rejected as no longer sound some of the reasoning in" Compania Espanola. Emery Air Freight Corp. v. Bhd. of Teamsters, Local 295, 185 F.3d 85, 90 (2d Cir.1999). At least the Fifth, Sixth, Eighth, Ninth and Eleventh Circuits have held that consolidation of arbitrations is impermissible under the FAA absent agreement by the parties. Am. Centennial Ins, Co. v. Nat'l Cas. Co., 951 F.2d 107 (6th Cir.1991); Baesler v. Cont'l Grain Co., 900 F.2d 1193, 1195 (8th Cir.1990); Protective Life Ins. Corp. v. Lincoln Nat'l Life Ins. Corp., 873 F.2d 281, 282 (11th Cir.1989); Del E. Webb Constr. v. Richardson Hosp. Auth., 823 F.2d 145, 150 (5th Cir.1987), abrogated on other grounds as recognized in Pedcor Mgmt. Co., Inc. Welfare Benefit Plan v. Nations Personnel of Texas, Inc., 343 F.3d 355, 363 (5th Cir.2003); Weyer-haeuser Co. v. Western Seas Shipping Co., 743 F.2d 635, 637 (9th Cir.), cert. denied, 469 U.S. 1061, 105 S. Ct. 544, 83 L. Ed. 2d 431 (1984). Moreover, it must be borne in mind that any arbitrations involving claims of Messrs. Stein and Rosenthal would be governed not by the various KPMG partnership agreements, which themselves vary in some degree, but by their own personal written contracts. The one thing that may be said with virtual certainty is that the issue of consolidation, if consolidation even were sought by a party, would lead to extensive litigation on the merits. Moreover, in view of the possibility of conflict among circuits, it would be likely to lead to competing actions in different circuits to compel or stay arbitration, as parties sought to procure a decision in a circuit in which they perceived the law to be more favorable to their positions. [105] To be sure, the Court is dealing with contingencies rather than certainties. Perhaps as many as sixteen arbitrations could be completed and awards made and confirmed in plenty of time to permit preparation for the already once-postponed January 2007 trial. But that is a remote possibility. Moreover, whether the Court's doubts would prove justified is not even the important point. The unpredictability of the process itself is a difficulty. If the advancement claims were to be arbitrated, trial of this case could not be scheduled with any degree of confidence until all of the arbitrations were concluded. And the scheduling of a trial that may last eight months or more, with all the competing demands on the attorneys' schedules and the Court's docket, is no easy matter in the best of circumstances. [106] 435 F. Supp. 2d at 373-80. [107] While the record is virtually silent on the point and the Court does not rely upon it, in a giant firm such as KPMG, it is quite likely that the inclusion of an arbitration clause in the partnership agreement was dictated by senior management rather than the product of an open discussion and agreement among hundreds or thousands of partners and regarded by all or most of the partners as a non-negotiable condition of their employment. [108] As the advancement proceeding in this Court is part of the criminal case and arises in the context of the KPMG Defendants' motion to dismiss the indictment or for other relief as a result of the government's violation of their rights, their testimony here probably could not be used against them at trial, at least on the government's case in chief. See Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). In any case, it is unlikely that it would be necessary to examine any of the KPMG Defendants concerning anything relevant to the charges in the indictment in order to decide whether they are entitled to advancement of defense costs by KPMG given the limited nature of the issues pertinent to that question. [109] See, e.g., Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 669-70 (6th Cir.2003) (arbitration provision in employment contract was unenforceable as against public policy to the extent that it required employees to shoulder much of the costs of arbitration, which discouraged them from seeking to vindicate their statutory rights); Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 893-95 (9th Cir.), cert. denied, 535 U.S. 1112, 122 S. Ct. 2329, 153 L. Ed. 2d 160 (2002) (arbitration provision in employment contract was unenforceable as against public policy to extent that it required employees to pay half the costs of arbitration, restricted access to remedies available under anti-discrimination statutes, and required employee to arbitrate all grievances without a similar requirement for the employer); Booker, 315 F.Supp.2d at 104-05 (arbitration provision partially unenforceable because it did not permit punitive damages for employment discrimination and therefore violated federal and local anti-discrimination statutes); DeOrnellas v. Aspen Square Mgmt., Inc., 295 F. Supp. 2d 753, 763 (E.D.Mich.2003) (portion of arbitration] agreement prohibiting arbitrator from awarding attorney's fees prevailing party would otherwise be entitled to under state whistleblower's statute was void as against public policy); see also Blackburne, 87 N.Y.2d at 665, 642 N.Y.S.2d at 163-64, 664 N.E.2d 1222 (public policy prohibited enforcement of arbitration provision where arbitration would have resulted in "impermissible delegation of the sovereign authority to procure, allocate and disburse Federal funds"); Susquehanna Valley Cent. School Dist. at Conklin v. Susquehanna Valley Teachers' Ass'n, 37 N.Y.2d 614, 616-17, 376 N.Y.S.2d 427, 429, 339 N.E.2d 132 (1975) (noting that public policy concerns often prohibit arbitration of "[s]chool matters [and] . . . matters affecting marriage, child custody, and the like . . ."); Matter of Aimcee Wholesale Corp. v. [Tomar Prods.], 21 N.Y.2d 621, 626, 289 N.Y.S.2d 968, 971, 237 N.E.2d 223 (1968) (agreement requiring arbitration of antitrust dispute unenforceable because "the enforcement of our State's antitrust policy should not be left within the purview of commercial arbitration"). [110] 983 F. Supp. 459 (S.D.N.Y.1997). [111] Id. at 465. [112] Id. at 465, 470. [113] 52 A.D.2d 220, 383 N.Y.S.2d 732 (4th Dep't 1976). [114] Id. at 229-30, 383 N.Y.S.2d at 737-38. [115] See also Durst v. Abrash, 22 A.D.2d 39, 43-44, 253 N.Y.S.2d 351, 354 (1st Dept.1964) (arbitration clause in usurious agreement unenforceable as against public policy), aff'd on opinion below, 17 N.Y.2d 445, 266 N.Y.S.2d 806, 213 N.E.2d 887 (1965). The KPMG Defendants' contention that enforcement here of any otherwise applicable arbitration clauses would be against public policy draws support, moreover, from the fact that courts have discretion, in light of the public interest in such questions, to decline to enforce an agreement to arbitrate a "core" bankruptcy matter where the dispute arises under provisions of the Bankruptcy Code that "inherently conflict" with the FAA or where arbitration "would necessarily jeopardize the objectives of the Bankruptcy Code." MBNA America Bank, N.A. v. Hill, 436 F.3d 104, 108 (2d Cir.2006) (internal quotation marks omitted); In re U.S. Lines, Inc., 197 F.3d 631, 640 (2d Cir.1999); see also In re Gandy, 299 F.3d 489, 495 (5th Cir.2002). [116] See United States v. Khan, 325 F. Supp. 2d 218, 227 (E.D.N.Y.2004) (explaining that "[w]here there is no specific rule on a subject covered in the Federal Rules of Criminal Procedure, the civil rule or practice may be borrowed" pursuant to Rule 57(b) of the Federal Rules of Criminal Procedure, which "explicitly provides that when there is no controlling law, `a judge may regulate practice in any manner consistent with federal law'"); see also United States v. Ruggiero, 726 F.2d 913, 925-26 (2d Cir.1984), abrogated on other grounds, Salinas v. United States, 522 U.S. 52, 118 S. Ct. 469, 139 L. Ed. 2d 352 (1997). [117] FED.R.Civ.P. 8(a). [118] Id. Form 5. [119] Swierkiewicz v. Sorema, 534 U.S. 506, 510-11(200), 122 S. Ct. 992, 152 L. Ed. 2d 1; Twombly v. Bell Atlantic Corp., 425 F.3d 99, 111 (2d Cir.2005), see also Utility Metal Research, Inc. v. Generac Power Sys., 179 Fed. Appx. 795 (2d Cir.2006). [120] Conley v. Gibson, 355 U.S. 41, 46-47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Accord, Bruce v. United States Dep't of Justice, 314 F.3d 71, 73-74 (2d Cir.2002); Carroll v. LeBoeuf, Lamb, Green & MacRae, L.L.P, 392 F. Supp. 2d 621, 625 (S.D.N.Y.2005); Charlton v. New York, No. 03 Civ. 8986, 2006 WL 406315, at 3 (S.D.N.Y. Feb.22, 2006). [121] FED.R.Civ.P. 12(b). [122] Id. 56(e). [123] Beth Israel Med.Ctr. v. Horizon Blue Cross and Blue Shield of New Jersey, 448 F.3d 573, 582 (2d Cir.2006). [124] See, e.g., Ward v. Nat'l Geographic Soc'y, 208 F. Supp. 2d 429, 437-40 (S.D.N.Y.2002). [125] E.g., Rosoff v. Mountain Laurel Ctr. for Performing Arts, 317 F. Supp. 2d 493, 499 & n. 37 (S.D.N.Y.2004); Faulkner v. Nat'l Geog. Soc'y, 294 F. Supp. 2d 523, 531 n. 30, reconsideration denied by 296 F. Supp. 2d 488 (S.D.N.Y.2003), aff'd sub nom. Faulkner v. Nat'l Geographic Enters., Inc., 409 F.3d 26 (2d Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 833, 163 L. Ed. 2d 707 (2005); Ward, 208 F. Supp.2d at 439; Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911) (L.Hand, J.), aff'd, 201 F. 664 (2d Cir.1912), aff'd, 231 U.S. 50, 34 S. Ct. 20, 58 L. Ed. 115 (1913). [126] KPMG Reply Mem. 16. The fact that this argument is raised for the first time in a reply memorandum is sufficient to warrant its rejection. E.g., Ruggiero v. Warner Lambert Co., 424 F.3d 249, 252 (2d Cir.2005) ("Arguments made for the first time in a reply brief need not be considered by a court.") (quoting Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710, 720 n. 7 (S.D.N.Y.1997), aff'd, 159 F.3d 1347 (2d Cir.1998) (table)). [127] 6 WEST'S DEL CODE ANN. § 15-110 (2006). There is nothing in KPMG's partnership agreement that restricts advancement of defense costs. [128] Id. § 18-108. [129] Senior Tour Players 207 Mgmt. Co. LLC v. Golftown 207 Holding Co. LLC, 853 A.2d 124, 126 (Del.Ch.2004) (quoting id. § 18-1101(b)). [130] The latter assumes, without deciding, that Delaware law will govern the question whether there is an implied contract here, as distinct from the question whether KPMG, a Delaware limited liability partnership, had the power to enter into such a contract. [131] Morgan v. Grace, No. Civ. A. 20430, 2003 WL 22461916 (Del.Ch. Oct.29, 2003), simply noted, in the context of construing written agreements concerning advancement of defense costs, that the court would not "rewrite those agreements to provide for a right the parties clearly did not intend." Id. at 2. Delphi Easter Partners Ltd. v. Spectacular Partners, Inc., Civ. A. No. 12409, 1993 WL 328079 (Del.Ch. Aug.6, 1993), in the context of granting partial summary judgment compelling advancement of defense costs pursuant to an unambiguous partnership agreement so requiring, said that "[t]he public policy of Delaware is to allow advancement, if the partnership agreement so provides." Id. at 8. Neither case addressed the question whether an obligation to advance defense costs could rest on a contract implied in fact or anything remotely approaching that issue. The taking of language out of context in this manner to advance arguments that are not supported by the cases from which the language is taken consumes resources and energies of all concerned without benefit to anyone. [132] KPMG claims also that the alleged implied in fact contracts fail for lack of consideration and lack of mutual assent. Certainly the KPMG Defendants would be entitled to prove, even assuming that such proof were necessary, that they were aware of KPMG's uniform practice of advancing defense costs and provided their services to the firm in part on account of that practice. [133] See, e.g., Global Network Comms., Inc. v. City of New York, 458 F.3d 150 (2d Cir.2006). [134] See Cpt. ¶ 33. [135] KPMG Mem. 43-46 & Ex. 4 ¶ 19.7. [136] Miller v. Schloss, 218 N.Y. 400, 406-07, 113 N.E. 337 (1916). The implied in fact contract claim would appear to be governed either by New York or Delaware law except in the case of those KPMG Defendants who were employed in California, whose claims may be governed by California law. KPMG asserts that there are no material differences between the law of New York and Delaware for purposes of this motion (KPMG Mem. 41 n. 20) and it tacitly assumes that California law is to the same effect. [137] KPMG's reply memorandum contains the following assertion: "Given that the KPMG Partnership Agreement is, by its own terms, the `entire agreement, and supersedes all prior agreements and understandings, both written and oral' between KPMG and KPMG partners, these former partners cannot seek to modify that agreement by reference to an inchoate historical practice." KPMG Reply Mem. 18 (emphasis added). The italicized language, however, does not appear in the partnership agreement, which says instead that it is "the entire agreement . . . among the Members," without referring to the firm. [138] It provides in relevant part that "[a]ny dispute between the Firm and any Member or between or among Members" of certain character is subject to arbitration. KPMG Mem. Ex. 4, § 17(i) (emphasis supplied). [139] 6 WEST'S DEL.CODE ANN. § 15-201(a) (2006). [140] KPMG Mem. Ex. 11, ¶ 7 (emphasis supplied). [141] See, e.g., Fireman's Fund Ins. Cos. v. Siemens Energy & Automation, Inc., 948 F. Supp. 1227, 1233-34 & n. 15 (S.D.N.Y.1996) (practical construction of contract by parties properly considered in construing terms) (citing cases). [142] KPMG Mem. 43-44. [143] See, e.g., Brady v. i2 Technologies, Inc., No. Civ. A. 1543-N, 2005 WL 3691286, at 3 (Del.Ch. Dec. 14, 2005) (clause in agreement providing for indemnification and reciting that the agreement was the entire agreement with respect to the "subject matter" did not foreclose claim for advancement). This latter point applies fully to the senior management agreement that pertained to the employment relationships of John Larson and (until they became partners) Randy Bickham and Carl Hasting. See KPMG Mem. 44 n. 22. [144] KPMG Mem. Ex. 11, ¶ 17 (emphasis supplied). [145] E.g., Alexander & Alexander Servs. Inc. v. These Certain Underwriters at Lloyd's, London, 136 F.3d 82, 86 (2d Cir.1998). [146] British Int'l Ins. Co. v. Seguros La Republica, S.A., 342 F.3d 78, 82 (2d Cir.2003) (internal quotation marks omitted). [147] See, e.g., id. [148] This conclusion is not altered in the case of Ms. Warley by KPMG's reference to what purports to be her attorney's response, attached to KPMG's memorandum as Exhibit 9, to the Fee Letter. While the attorney's letter, assuming its authenticity, might well have a bearing on the interpretation of any agreement formed by Ms. Warley's signature at the foot of the Fee Letter, the exhibit was not incorporated by reference in the complaint. And even if the Court were to convert KPMG's Rule 12(b)(6) motion into one for summary judgment on this point, an issue of fact as to the meaning of the alleged agreement would remain. KMPG of course is at liberty to offer the letter at trial. [149] KPMG Mem. 9. [150] E.g., Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir.1991). [151] Emphasis added. [152] Emphasis added. [153] Although KPMG has not raised the point, Mr. Rosenthal's situation is more complicated for another reason. Paragraph 7 of the Rosenthal Agreement provides in part that KPMG will indemnify him "through, and pursuant to the terms of, its Professional Indemnity Insurance Program to the same extent it would if [he] had remained a Member of the Firm." It then goes on to add: "To the extent that the Partner is a `subject' or `target' of any investigation by the U.S. Department of Justice or any U.S. Attorney's Office . . ., the Partnership has no obligation to indemnify Partner for the costs of his defending such an investigation but may voluntarily do so, to the extent and under such terms and conditions as the Partnership believes are in the best interests of the Partnership." KPMG Mem. Ex. 11 ¶ 7. This language is notable in at least two respects. First, as there is an express contract between Mr. Rosenthal and KPMG with respect to indemnification for the cost of defending the government's investigation, Mr. Rosenthal could not claim that there is an implied in fact contract governing that subject. As he does not here seek indemnification or other relief with respect to the cost of defending the government's pre-indictment investigation, however, this is of no moment. The more important point is that the Rosenthal Agreement is silent with respect to KPMG's obligations in respect of the cost of defending the indictment as opposed to the pre-indictment investigation. This stands in marked contrast to Skadden Arps' March 11, 2004 letter to most of the KPMG Defendantsa letter that preceded the Rosenthal Agreement by more than three months. That document set forth KPMG's willingness to pay fees, up to a maximum of $400,000 and subject to other conditions, for the cost of defending the government's investigation but said further that KPMG would not pay anything further if the recipient were indicted. In other words, before it entered into the Rosenthal Agreement, KPMG drew .a sharp distinction between payment of defense costs for the investigation and paying the costs of defending any indictment. Yet in the Rosenthal Agreement itself, it spoke only to the former issue. In these circumstances, there appears to be no express contract between Rosenthal and KPMG with respect to payment of postindictment defense costs. In consequence, the Rosenthal Agreement is not an obstacle to the maintenance of Mr. Rosenthal's implied contract claim. [154] The Court has said this from the start. E.g., Stein I, 435 F.Supp.2d at 377-80. Indeed, the only basis of subject matter jurisdiction is ancillary jurisdiction derived from the Court's jurisdiction over the indictment. Id. KPMG nevertheless insists that it is a separate civil case. KPMG of course is entitled to disagree with the Court's conclusion that it has ancillary jurisdiction and, if relief is granted against it, to appeal at an appropriate time. Repetition of a characterization that the Court already has held to be incorrect, however, accomplishes nothing. [155] FED.R.Cium.P. 57(b). [156] See Ruggiero, 726 F.2d at 925-26; Khan, 325 F.Supp.2d at 227. [157] To the extent that the KPMG Defendants maintain that KPMG is not entitled to a trial of any genuine issues of material, fact, the Court disagrees. [158] FED.R.Civ.P. 57. [159] KPMG Mem. 36. [160] No. 90-3091, 1990 WL 711357, at 7 (D.N.J. Sept.7, 1990). [161] No one knows this better than KPMG's counsel, Skadden Arps, which is prominent for, among other things, handling contested corporate takeovers. Litigation in such matters often has been conducted on an expedited basis, including expedited trials or extensive expedited preliminary injunction hearings where necessary. Indeed, brief research has disclosed the following cases in which Skadden Arps participated in trials held only a short time after commencement of the actions: Mason Capital, Ltd. v. Kaman Corp., No.3:05CIV1470 (MRK), 2005 WL 2850083 (D.Conn. Oct.31, 2005) (trial three weeks after filing of complaint with expedited discovery, several briefs, stipulations and proposed findings during the "brief interim between filing and trial"); IBP Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 299 F. Supp. 2d 1024, 1027 (D.S.D.2003) (citing In re IBP, Inc. Shareholders Litig., 789 A.2d 14, 23 & n. 1 (Del.Ch.2001)) (explaining that in a related case the Delaware Chancery Court held expedited trial after parties conducted "massive amounts of discovery" in only six weeks); United States v. Sungard Data Systs., Inc., 172 F. Supp. 2d 172, 179 (D.D.C.2001) (trial on merits consolidated with preliminary injunction hearing and held two weeks after filing of complaint following expedited discovery and briefing). Doubtless many other examples, involving both Skadden Arps and other law firms, could be cited. [162] 8 WEST'S DEL.CODE ANN. § 145(k) (2006). [163] N.Y. Bus. CORP. L. §§ 724(a), 1319(a)(4) (McKinney 2003). [164] As noted in Stein I, there is no jurisdictional obstacle to a federal court determining an advancement dispute under state law. 435 F. Supp. 2d at 379 n. 237. [165] 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed., 1188 (1938). [166] Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996) (quoting Erie, 304 U.S. at 78, 58 S. Ct. 817) (internal quotation marks omitted). [167] Stein I, 435 F.Supp.2d at 355 (quoting Kaung, 884 A.2d at 509). [168] Weissman, 1997 WL 334966 at 16. [169] Kaung, 884 A.2d at 509 (quoting Homestore, Inc. v. Tafeen, 886 A.2d 502, 503 (Del. 2005)). [170] Steven A. Radin, "Sinners Who Find Religion": Advancement of Litigation Expenses to Corporate Officials Accused of Wrongdoing, 25 REV. LITIG. 251, 265-66 (2006). [171] E.g., Ridder v. CityFed Fin. Corp., 47 F.3d 85 (3d Cir.1995) (advancement required for defense of bank employees sued by RTC, as receiver, to recover alleged damages to the bank); Pearson v. Exide Corp., 157 F. Supp. 2d 429, 438 (E.D.Pa.2001) (company could not invoke claim that former officers would not be entitled to indemnification to defeat claim for advancement of defense costs in criminal case and civil claims filed by the company); Citadel Holding Corp. v. Roven, 603 A.2d 818 (Del.1992) (ordering advancement of cost of defending action brought by company itself); Radiancy, Inc. v. Azar, No. Civ. A. 1547-N, 2006 WL 224059 (Del.Ch. Jan.23, 2006) (company required to advance to former officers and directors costs of defending suits brought by the former employer that alleged breach of fiduciary duty, fraud and waste); Weinstock v. Lazard Debt Recovery GP, LLC, No. Civ. A. 20048, 2003 WL 21843254 (Del.Ch. Aug.8, 2003); Morgan v. Grace, 2003 WL 22461916 (ordering advancement despite fact that conduct alleged in underlying action, if proved, would preclude indemnification); Reddy v. Elec. Data Sys. Corp., No. Civ. A. 19467, 2002 WL 1358761 (Del.Ch. June 18, 2002); Greco v. Columbia/HCA Healthcare Corp., No. Civ. A. 16801, 1999 WL 1261446 (Del.Ch. Feb.12, 1999) (requiring company to advance to former executive costs of defending federal criminal investigation and claims filed by the company itself); see also Envirokare Tech Inc. v. Pappas, 420 F. Supp. 2d 291 (S.D.N.Y.2006). [172] Reddy, 2002 WL 1358761, at *9 & n. 26. Reddy rested this conclusion in part on § 145(k) of the Delaware General Corporation Law, which is not applicable here because KPMG is a partnership. Some other cases speak in terms of that statute. But the principle is not found in the language of § 145(k) and in any event antedates its enactment in 1994. It rests ultimately on the propositions that advancement of defense costs serves important interests, e.g., Stein I, 435 F.Supp.2d at 355 (collecting cases); Homestore, Inc. v. Tafeen, 888 A.2d 204, 210-11, 218 (Del.2005), that a right to advancement is independent of any right to indemnification, e.g., Kaung, 884 A.2d at 509-10; Citadel Holding Corp., 603 A.2d at 822, and that disputes concerning advancement must be determined promptly if any right to advancement is to be meaningful, Kaung, 884 A.2d at 509; Homestore, Inc. v. Tafeen, 886 A.2d 502, 505 (Del.2005). Thus, it applies equally to partnerships. [173] 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659. [174] Id. at 426, 116 S. Ct. 2211. [175] In order to do so, the Court crafted a means of effectuating New York's substantive policy of providing for review of jury awards that was consistent with the federal court structure. It held that "practical constraints combine with Seventh Amendment constraints to lodge in the district court, not the court of appeals, primary responsibility for application of § 5501(c)'s `deviates materially' check" on jury awards. Id. at 438, 116 S. Ct. 2211. [176] KPMG Mem. 38. [177] See AmerisourceBergen Corp. v. Dialysist 2006). West, Inc., 445 F.3d 1132, 1137 (9th Cir. [178] For example, the stipulation of fact between the government and the KPMG Defendants concerning KPMG's past practices appears to have been based upon or identical to representations made to those parties by KPMG. The testimony of Joseph Loonan, KPMG's general counsel, and Messrs. Rauh, Pilchen, and Michael of Skadden Arps, are admissions that properly would be considered against KPMG under FED.R.Evio. 801(d)(2). See United States v. Capri, 111 Fed.Appx. 32, 35 (2d Cir.2004). [179] Document requests, if any, shall be responded to within five business days. Unless otherwise ordered, depositions shall be limited to a Rule 30(b)(6) deposition by the KPMG Defendants of KPMG and to depositions by KPMG of the KPMG Defendants, and depositions of the latter each shall be limited to two hours or such length as the parties may agree upon, shall be confined to whether KPMG is obliged to advance defense costs, and shall not go into matters pertinent to the indictment. All discovery shall be concluded by October 6, 2006. The parties are encouraged to stipulate to the relevant facts, the vast majority of which appear to be undisputed, to the maximum extent possible. [180] Each side shall supply the Court with a set of premarked exhibits.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619246/	394 P.2d 657 (1964) Wilbern B. PATTERSON, as parent, next friend and natural guardian of Wilbern David Patterson, a minor, and Mary Beth Patterson, Appellants, v. Bill L. CUSHMAN and Helen Cushman, Appellees. No. 360. Supreme Court of Alaska. August 3, 1964. 658 G.F. Boney, of Burr, Boney & Pease, Anchorage, for appellants. Daniel A. Moore, Jr., of Plummer, Delaney & Wiles, Anchorage, for appellees. Before NESBETT, C.J., and DIMOND and AREND, JJ. AREND, Justice. The plaintiff, Wilbern B. Patterson, brought this action as next friend on behalf of his minor son for injuries sustained by the latter as a consequence of the alleged negligent operation by the defendant, Helen Cushman, of an automobile maintained as a family car by herself and her husband, the other defendant. From a verdict and judgment of nonliability in favor of the defendants, the plaintiff prosecutes this appeal. Pertinent facts will be raised as they may be required for an understanding of each issue as it is being discussed in this opinion. The first issue raised by the plaintiff concerns the trial court's refusal to strike the defendants' affirmative defense of contributory negligence and its subsequent treatment of the question of contributory negligence by children in its instructions to the jury. These instructions were quite lengthy and it would serve no useful purpose to set 659 them forth verbatim in this opinion. In essence they informed the jury that neither negligence[1] nor contributory negligence were ever presumed; that in order to prevail upon their defense of contributory negligence the defendants would have to prove the same by a preponderance of the evidence; and that any evidence of negligence on the part of the injured child proximately contributing to the accident and the resulting injuries would bar recovery by him. The plaintiff complains that the instructions laid so much stress upon contributory negligence that the minor was deprived of a fair trial; and he contends that the court should have stricken the defense of contributory negligence, or at least have instructed the jury, as requested by him, that a child under seven years of age cannot as a matter of law be guilty of negligence or contributory negligence. In other words, he is saying that Alaska should adopt what has become known as the Illinois rule, or the rule of conclusive presumption, that "[A] child under seven years of age is incapable of such conduct as will constitute contributory negligence, and the court may so declare as a matter of law * * ."[2] The reason behind the rule seems to be that "a child under 7 years of age lacks the discretion, judgment and mental capacity to discern and appreciate circumstances of danger that threaten its safety."[3] Arrayed against the proponents of the "Illinois Rule" are those jurisdictions which have rejected the claim that some arbitrary age, such as four, five, six or seven, should be set below which a child must be conclusively presumed to be incapable of contributory negligence.[4] They recognize the presumption of incapacity but regard it as one which is rebuttable. Common sense is on their side for it dictates that there are other factors besides a child's age, e.g., judgment and experience, which must be considered in order to properly determine the child's capacity for contributory negligence. As stated by Judge Jayne in Hellstern v. Smelowitz:[5] "It seems entirely reasonable to suppose that the capacity of an infant to understand and to avoid dangers to which it is exposed in a given set of circumstances does not depend so much upon the chronological age of the infant as upon the infant's psychological development." "The ripening of the mental faculties of children in general must, we think, have been accelerated by the progressive enlargement of a child's scope of observations and experiences in our modern environment." "Under the so-called Illinois rule a boy who is one day under seven years of age may be guilty of the most flagrant contributory carelessness and yet evidence of his exceptional precocity and breadth of judgment and experience cannot be introduced to overcome 660 the illusory presumption of babylike puerility."[6] We reject the Illinois rule of conclusive presumption and adopt for Alaska the view that a child of less than seven years of age is rebuttably presumed to be incapable of contributory negligence. As to such a child there are two issues to be decided: (1) Whether the child has the capacity to be contributorily negligent, and (2) whether he was in fact contributorily negligent. These issues might well both be jury questions unless fair minded men in the exercise of reasonable judgment could not differ on the inferences to be drawn from the evidence.[7] With respect to the first issue mentioned in the preceding paragraph, the evidence in the instant case was such as to leave no doubt in a reasonable mind that the child was capable of some degree of care and of taking some precautions for his own safety. He knew the danger from automobiles and had been warned by his parents to watch out for vehicles and not to play in the streets. Under these circumstances the trial court would have had to rule as a matter of law that the child was capable of contributory negligence,[8] leaving for the jury only the issue of whether he was in fact contributorily negligent. The trial court properly defined ordinary care as applicable to the child in this case by instructing the jury that "A child is guilty of contributory negligence when he does something which an ordinary child of like age, intelligence, and experience would not do under the circumstances and conditions of a given case, or when he fails to take such precautions for his own safety as an ordinarily prudent child of like age, intelligence, and experience would take under the same circumstances and conditions. * * " During the course of the trial the plaintiff called as a witness one Donald Redman who testified that immediately preceding the accident he saw the child playing "walking with one foot on the sidewalk or curb and one down off the curb into the street" and then stumbling out into the street and falling into or coming into contact with the right front fender of the defendant's car. Redman was then shown an unsworn written statement made by him one week after the accident to Air Force Police officers investigating the accident[9] from which the following portion was read into the record: "I saw Mrs. Cushmans [sic] [defendant's] car driving less than three feet from the curb where this little boy was walking `up and down'. I saw her car strike the child. I do not know whether her right front bumper struck the child, or whether her right front fender struck the child, but I do know that I saw the right front corner of the car strike the boy * ." The witness readily admitted making the statement and explained that in it he had failed to say how the boy got off the curb. On cross examination he identified an earlier written statement, given by him to the Air Force Police only one day after the accident, in which he related: "I was following the car involved in accident, she [the defendant, Helen Cushman] was traveling about 15 MPH when this small boy stumbled and fell from curb into the car. The boy was walking with one foot on curb and other foot in gutter when he stumbled and fell into on coming traffic; the car had no way of avoiding the accident." 661 The plaintiff tried twice but without success to get admitted into evidence as a prior inconsistent statement, the written statement made by the witness Redman six days after the accident. The defendants objected to the admission of the statement on the grounds that "the witness is the best evidence," that he "testified as to what he actually observed" and that the statement did not add or detract from anything explained by his testimony. The plaintiff contends that the statement was admissible for purposes of impeachment and that it was error for the court to exclude it. We do not think so. Redman admitted making the statements contained in the writing in question. That ended the inquiry. The material portions of the statement had been read to the jury, leaving no need for further proof on the subject.[10] The written statement would not have contradicted Redman any more than his admission had already done.[11] The third issue raised by the plaintiff is that the trial court erred in giving its instruction No. 7 which reads: "In the present action certain testimony [of the witness Owczarski, who was apparently unavailable at the time of trial] had been read to you by way of deposition.[12] "You are instructed that you are not to discount this testimony for the sole reason that it comes to you in the form of a deposition. It is entitled to the same consideration, the same rebuttable presumption, that the witness speaks the truth, and the same judgment on your part with reference to its weight, as is the testimony of witnesses who have confronted you from the witness stand." The plaintiff argues that the instruction was erroneous because it overlooked the value attached to a witness' demeanor in court and in effect told the jury that they should give the same weight to evidence produced by deposition as they would to evidence coming from the witness testifying in open court. The defendants reply that this is not so, for the instruction merely directed the jurors that they must in weighing the testimony of a witness from the stand apply their individual judgment to the value of his testimony and demeanor and that they must apply no less amount of judgment to the testimony of a witness presented by way of deposition. We consider the defendants' interpretation of the instruction to be correct and one that any reasonably intelligent jury would have made.[13] This instruction coupled with the other instructions given by the court for 662 judging the credibility of witnesses left to the jury alone the determination of how much weight and credibility should be attached to the testimony of the several witnesses, whether testifying orally or by deposition. A second objection of the plaintiff to instruction No. 7 is that it amounts to a comment by the trial court upon the weight of the evidence and, therefore, violates Civil Rule 51(b) set forth in the margin.[14] We fail to read any such meaning into the instruction as given. If the court had instructed the jury that they must give the same weight to deposition evidence as to oral testimony by a witness in open court, the plaintiff might have had cause for complaint.[15] For his next major issue the plaintiff has mingled four specifications of error and treated them under the single charge that the trial court committed prejudicial error by failing to instruct the jury concerning the standard of care owed by the defendant Helen Cushman to the plaintiff's minor child.[16] The plaintiff contends that, since it was established at the trial that children were playing in the area of the accident at the time it occurred,[17] the court should have instructed the jury that where children are known or may be reasonably expected to be in the vicinity, the driver of a car must exercise greater care for the protection of such children than would be required of him in the case of persons of mature years. While there are decisions which hold that a higher degree of care is required toward children than toward adults,[18] we believe that the better view is that expressed by Dean Prosser as follows: "Although the language used by the Courts sometimes seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding a greater amount of care.[19]" Under this view that there are no degrees of care as a matter of law and in the absence of any statute to the contrary, the trial judge need only instruct the jury that the defendant is required to exercise toward the plaintiff ordinary care under the 663 circumstances.[20] By its instruction No. 15 the trial court informed the jury: "In order to exercise ordinary care one must employ his faculties in order to observe and discover the danger, if the danger is visible and obvious, or if the surrounding circumstances and conditions are such as to indicate the presence of danger to a reasonable or ordinarily careful and prudent man, and a failure to discover such visible and obvious danger, when their attention is expected or should be given to the road ahead, amounts to the want of ordinary care. "Every driver is under obligation to provide against all such dangers to others as he, under the circumstances, ought reasonably to expect might probably arise. "Independently of any other rule or statute, it is the duty of every motor vehicle operator to keep a careful lookout ahead and to the sides in order to see any other traveler or vehicle which may be within or approaching his line of travel, and it is his duty to take all reasonable care and precaution to avoid collision with any other traveler or vehicle, and to that end to limit his rate of speed and so control the movement of his vehicle that he is not likely to endanger and does not endanger the property, life, or limb of any person." The foregoing instruction was preceded by instruction No. 12 which defined negligence and ordinary care as those terms applied to the defendant.[21] We find that these two instructions provided the jury with a sufficient test for negligence under the facts of this case. The record discloses that from the time that counsel for the parties made their opening statements and thenceforth throughout the entire trial, the jury was made fully aware that the case involved a six-year old child playing on the street when the accident occurred and that children because of their impulsive tendencies create a dangerous situation when playing in the area along a highway where vehicles travel. To have made special mention of these circumstances in the instructions would have accomplished no useful purpose in this case.[22] Along with its instructions, the court asked the jury to answer the following special interrogatories, which were answered as indicated: "1. Was the plaintiff Wilbern David Patterson guilty of contributory negligence? Yes ___________ (Yes or No) 664 "2. Was the defendant guilty of negligence? No ___________ (Yes or No) "3. If you find the defendant guilty of negligence, was that negligence the proximate cause of the injury received by the plaintiff? ____________[23] ____________ (Yes or No)" This brings us to the next question raised by the plaintiff, which is: Having elected to submit the foregoing interrogatories to the jury, did the trial court err in refusing to submit certain additional interrogatories requested by the plaintiff? One of the requested interrogatories was in three parts as follows: "(A) Did Mrs. Cushman fail to keep a proper lookout for children on April 28, 1962, just prior to the accident? "(B) If your answer to the previous interrogatory is in the affirmative, do you find that her failure to keep a proper lookout for children was a proximate cause of the plaintiff's injury? "(C) If your answer to previous interrogatory is in the affirmative, in what amount has the plaintiff been damaged?" The plaintiff also requested that the jury be asked to answer the interrogatory, "Was the six year old Plaintiff, WILBERN DAVID PATTERSON, capable of being negligent on April 28, 1962?"[24] The plaintiff contends that, since he had attempted to prove that the defendant, Helen Cushman, had failed to maintain a proper lookout and that the injured child was incapable of negligence due to his tender years, those issues were determinative of the ultimate questions of primary and contributory negligence in this case and should have been submitted to the jury by way of special interrogatories. By the court's failure to give the requested instructions, the plaintiff claims, the jury's answers to the interrogatories given became immaterial and, more important, the theory of the plaintiff's case was never submitted to the jury and there was no way of telling whether or not the general verdict resulted from the jury's disobedience to the court's instructions. Our Civil Rule 49(c), like Rule 49(b) of the Federal Rules of Civil Procedure, provides that a general verdict may be accompanied by interrogatories upon one or more issues of fact, the decision of which is necessary to a verdict.[25] The number 665 and form of the interrogatories rested in the sound discretion of the trial judge. We cannot say that he abused his discretion or committed error, for in our opinion he presented to the jury fairly the issue as to liability by the three interrogatories which he elected to submit and by his instructions 13-A and 15 regarding the child's capacity and the duty of a motorist to maintain a proper lookout.[26] At the conclusion of all the evidence the plaintiff moved for a directed verdict on the ground that as a matter of law the evidence demonstrated beyond any reasonable doubt that the defendant, Helen Cushman, was negligent in failing to keep a proper lookout. As a second ground for his motion, he urged that the child in the case being under seven years of age was conclusively presumed, as a matter of law, to be incapable of negligence or, in the alternative, that, if the presumption of incapacity is held to be rebuttable, the presumption had not been overcome in this case. After the jury had brought in the verdict for the defendant, the plaintiff moved for judgment notwithstanding the verdict. Both motions were denied and the plaintiff charges this as error but relies only on the first ground urged below in support of the two motions directed at the verdict. In his brief on appeal the plaintiff has marshalled eight facts from which, he alleges, the court should have concluded that Helen Cushman did not maintain a proper lookout for the child involved and was thereby negligent as a matter of law. Even though these facts, which are set forth in the margin below,[27] were undisputed, as the plaintiff claims, they were not dispositive of the issue of primary negligence, for there still remained the element of proximate cause. The child testified that the car hit him as he was walking along with one foot on the curb and one foot on the street. The only two eye witnesses to the accident, however, testified that the child, hopping along with one foot on the curb and one foot in the street, lost his balance when the one foot missed the curb, stumbled and fell into the side of the right front fender of the defendant's car which was traveling at about fifteen miles per hour about three to four feet out from the curb. Helen Cushman herself stated that she had no knowledge of the child's presence until she heard a "real sharp thud" on the right hand side of her 666 car. She stopped the car, got out and went back around the car where she found the injured child lying with his feet by the rear fender. Under such a state of the record, it cannot be said that the probative facts as to Helen Cushman's negligence, assuming that the jury's finding that she was not negligent is incorrect, being the proximate cause of the accident are undisputed and that reasonable minds could draw but one inference from them. The issue here turned on controverted facts and the credibility of witnesses and was properly left to the jury to decide.[28] Lastly, the plaintiff charges that the trial court erred in awarding court costs to the defendants. The factual situation in that respect as to events transpiring in 1963 is this: The verdict of the jury was docketed on February 1, without any direction by the court as to the entry of a judgment. On February 5 the defendants as the prevailing party filed their cost bill, dated February 1, which was noticed for hearing and heard before the clerk of the court on February 6. The plaintiff objected to the cost bill on several grounds, whereupon the defendants withdrew their cost bill and decided to submit another one at a later date. On February 8, after hearing oral argument by counsel on the subject of attorney's fees, the trial judge allowed such fees in favor of the defendants, directing that a judgment be prepared accordingly and indicating that he would sign and have it entered that very day. A formal judgment was duly submitted by the defendants, approved as to form by counsel for the plaintiff, and filed. It reads in pertinent part as follows: "IT IS ORDERED, that the plaintiffs take nothing, that the action is dismissed on the merits, and that the defendants recover from the plaintiffs, Wilbern B. Patterson and Wilbern David Patterson [the minor], their costs and attorneys fees in the amount of $875.00 and recover from the plaintiff, Mary Beth Patterson [the minor's mother], attorneys fees in the amount of $25.00." [Emphasis supplied.] On February 15, the defendants served and filed a second cost bill for $373.12, covering such items as service fees, witness fees, and charges for reporting and transcribing depositions. These claimed costs were objected to by the plaintiff on the ground that they had been waived by the form of judgment submitted to the court for execution on February 8 and on the further ground that the bill had not been timely served and filed. As to the latter ground, the plaintiff pointed out that Civil Rule 79(a) requires that a party entitled to costs shall serve a cost bill on the other party "[w]ithin 10 days after the entry of judgment." He then argued that the general verdict constituted the judgment is this case and having been docketed on February 1, it caused the service and filing of the February 15 cost bill to be untimely. On March 26 the clerk of the court taxed the costs in the amount of $257.72. That amount was thereafter approved by the trial court and included in an "Amended Judgment on General Verdict" executed and filed on April 18, pursuant to hearing on a motion of the defendants, filed on April 3 under Civil Rule 60(b),[29] for relief from the judgment entered on February 8. Relief from the prior judgment was sought for the reason that plaintiff's counsel had inadvertently included the word "costs" in the judgment and 667 failed to leave a blank space for the insertion of costs to be later taxed. In the meantime, on March 8 with all parties represented, the court had held a hearing on the plaintiff's motion for judgment notwithstanding the verdict and in the alternative for a new trial. The motion was denied on March 8 at the conclusion of the hearing, and on March 13 the plaintiff filed notice of appeal from the judgment of February 8 and the order last mentioned. Preliminarily to sustaining the costs as allowed by the clerk, the trial court had stated from the bench: "[T]he records show that the jury returned their verdict in open court on February the 1st. The court has listened to the transcription of the testimony and the court at that time did not enter an order staying the entry of the judgment until the formal judgment was entered; therefore under the ruling of the Supreme Court[30] the [trial] court * * * is going to hold that the judgment was entered on February the 1st, that the filing of cost bill by the defendant in this case was timely, that since the record indicates no adverse ruling to the defendant by the Clerk on the first cost bill, although another more comprehensive one is filed on the 14th, the court in the absence of any ruling by the Clerk is going to find that it was timely filed. Now the court will hear argument as to the items." The plaintiff concedes that a good argument can be made that the judgment was really entered in this case on February 8. However, he contends that, if the trial judge correctly interpreted our decision in Vogt v. Winbauer[31] to mean that entry of the verdict in the civil docket on February 1 was tantamount to entry of judgment on the verdict, then the cost bill of February 15 was filed too late under the ten-day rule and should have been disallowed. In this connection the plaintiff maintains that the second cost bill cannot be treated as an amendment of the cost bill filed on February 5, because the latter was withdrawn by the defendants. The record does not disclose the exact wording of the clerk's entry in the civil docket on February 1 regarding the verdict. However, we do not consider that important here, because in the instant case the jury returned a general verdict accompanied by answers to interrogatories. In such a situation the following provision contained in Civil Rule 58 is controlling: "[T]he court shall direct the appropriate judgment to be entered upon a special verdict or upon a general verdict accompanied by answers to interrogatories returned by a jury pursuant to Rule 49." [Emphasis supplied.] Since the court gave no directions on February 1 for the entry of a judgment on the general verdict and answers to interrogatories returned by the jury but waited until February 8 to perform that act by directing that a formal judgment be prepared, executed and entered as of the latter date, we conclude that the formal judgment docketed on February 8 marked the commencement of the ten-day period for the service and filing of a cost bill 668 and, therefore, the bill filed on February 15 was timely.[32] The plaintiff objects to certain items taxed as costs in the cost bill filed on February 15 but cites us to no authority in support of his position. We have examined the bill and the affidavit attached thereto and have considered the items allowed by the clerk and later confirmed by the trial judge. We find that the cost bill was submitted in proper form and we perceive no error in the rulings below on the items taxed to which objection has been made. Finally in connection with the controversy over the allowance of costs in this case, the plaintiff contends that the trial court erred in entering the April 18 amended judgment on the general verdict, after the appeal had already been docketed in the state supreme court. As noted earlier the defendants claimed relief from the judgment of February 8 because their counsel had inadvertently and by mistake included therein the word "costs" instead of leaving a blank space for the insertion of costs to be later taxed. The relief thus sought is provided for by Civil Rule 60(a) which reads: "Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party * . During the pendency of an appeal or petition for review to the supreme court, such mistakes may be so corrected before the record is filed in the supreme court, and thereafter may be so corrected with leave of the supreme court." [Emphasis added.] While notice of appeal in this case was filed on March 13, 1963, the record on appeal was not filed in the supreme court until January 7, 1964. So on April 18, 1963, when the trial court entered the amended judgment in this case, it still had the authority to do so without leave of the supreme court. Finding no error, we affirm the judgment as amended. NOTES [1] Negligence was defined by the court in its instructions to the jury as "the want of ordinary care; that is, the want of such care as an ordinarily reasonable and prudent person would exercise under like circumstances." [2] Romine v. City of Watseka, 341 Ill. App. 370, 91 N.E.2d 76, 79 (1950). For other cases following the "Illinois Rule," see Ward v. Music, 257 S.W.2d 516, 518 (Ky. Ct. App. 1953); Walston v. Greene, 247 N.C. 693, 102 S.E.2d 124, 126 (1958). [3] Walston v. Greene, supra note 2. See also the dissenting opinion of Justice McAllister in Tyler v. Weed, 285 Mich. 460, 280 N.W. 827 (1938), in which he stated: "[T]he age of seven years can be said to be the threshold over which a human being passes from the realm of imagination and dream to the world of reality and fact." 280 N.W. at 832. [4] Jones v. Wray, 169 Cal. App. 2d 372, 337 P.2d 226 (1959); Ruggiero v. Mello, 333 Mass. 295, 130 N.E.2d 555 (1955); Eckhardt v. Hanson, 196 Minn. 270, 264 N.W. 776, 107 A.L.R. 1 (1936); Camardo v. New York State Rys., 247 N.Y. 111, 159 N.E. 879 (1928); other cases discussed in Annot., 77 A.L.R. 2d 917, 924-25 (1961). [5] 17 N.J. Super. 366, 86 A.2d 265 (1952). [6] Id. 86 A.2d at 270-271. [7] Grace v. Kumalaa, 386 P.2d 872, 877-78 (Hawaii 1963); Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, 452 (1939). [8] Dixon v. Stringer, supra note 7. [9] The accident in question occurred on Elmendorf Air Force Base, adjacent to the City of Anchorage. The parties involved were all Air Force personnel and members of their families. [10] Webb v. City of Seattle, 22 Wash.2d 596, 157 P.2d 312, 319, 158 A.L.R. 810 (1945). See also 4 Jones, Evidence § 937 (5th ed. 1958); McCormick, Evidence, § 37, at 68 (1954). [11] Babbitt v. Say, 120 Ohio St. 177, 165 N.E. 721, 723 (1929). [12] In his brief the plaintiff singles out the following testimony given by the deponent Owczarski regarding a conversation he had with the injured child in the x-ray room at the hospital shortly after the accident: "A Yes, I asked him what he was doing in the street and he said he was coming home from the show and walking with one foot on the curb and one foot on the street and flipping a coin which landed out in the street and he ran after it. I asked him if he looked for any cars and he said no." [13] For appellate court decisions approving instructions relating to the consideration to be given by the jury to depositions of witnesses, see In re Pohlmann's Estate, 89 Cal. App. 2d 563, 201 P.2d 446, 452 (1949); Newman v. Los Angeles Transit Lines, 120 Cal. App. 2d 685, 262 P.2d 95, 102 (1953), in which the court inferentially approved an instruction that "the jury are not to discount testimony received by way of deposition for the sole reason that it was in [the] form of a deposition;" that the deposition "is entitled to the same rebuttable presumption of verity and the same judgment of the jury with reference to its weight as that of any witness appearing on the stand"; Coburn v. Moline, E.M. & W. Ry., 243 Ill. 448, 90 N.E. 741, 743 (1909); Olcese v. Mobile Fruit & Trading Co., 211 Ill. 539, 71 N.E. 1084, 1087 (1904); Pyle v. McNealy, 227 Mo. App. 1035, 62 S.W.2d 921, 923-924 (1933); Hillis v. Kessinger, 88 Wash. 15, 152 P. 687 (1915). [14] Civil Rule 51(b): "The court shall instruct the jury that they are the exclusive judges of all questions of fact and of the effect and value of evidence presented in the action. * " [15] See Central of Georgia Ry. v. Holmes, 223 Ala. 188, 134 So. 875, 876-77 (1931). [16] The specifications of error referred to in the opinion above are Nos. 3, 4, 7 and 12. No. 3 concerned the failure of the trial court to give the plaintiff's proposed instruction No. 1 relating to the duty of the defendants to maintain a proper lookout. No. 4 discussed the higher duty of care owed by persons dealing with children. No. 7 covered the failure of the trial court to give plaintiff's proposed instruction No. 8 regarding the higher duty of care required of an operator of a motor vehicle toward children. No. 12 charges error on the part of the court for failing to amplify its instruction No. 15 by mention of the special obligation of a motor vehicle operator "to look out for children playing in or near the streets." [17] The record leaves no doubt that there were quite a few children playing in the vicinity of the accident at the time it occurred, although Helen Cushman claims that she did not see them until right after the accident. [18] Beliak v. Plants, 84 Ariz. 211, 326 P.2d 36, 39-40 (1958); Guyton v. City of Los Angeles, 174 Cal. App. 2d 354, 344 P.2d 910, 913 (1959); Audette v. Lindahl, 231 Minn. 239, 42 N.W.2d 717, 719 (1950); Le Doux v. Martinez, 57 N.M. 86, 254 P.2d 685, 687-89 (1953); Kroft v. Grimm, 225 Or. 247, 357 P.2d 499, 502 (1960); Gabbard v. Knight, 202 Va. 40, 116 S.E.2d 73, 77 (1960). [19] Prosser, Torts, 147-48 (2d ed. 1955). [20] Hughes v. MacDonald, 133 Cal. App. 2d 74, 283 P.2d 360, 365 (1955); Watson v. Riggs, 79 Ga. App. 784, 54 S.E.2d 323, 325 (1949); Mohan v. New England Tel. & Tel. Co., 333 Mass. 766, 129 N.E.2d 619 (1955); Quarcini v. Blackwell, 13 A.D.2d 616, 213 N.Y.S.2d 623, affirmed 10 N.Y.2d 843, 221 N.Y.S.2d 730, 178 N.E.2d 432 (1961); Alvarez v. Paulus, 8 Utah 2d 283, 333 P.2d 633, 634 (1959). [21] The following is the full text of instruction No. 12: "In his complaint in this action and by his testimony, plaintiff claims that he was injured as a result of the negligence of the defendant. All questions of negligence or absence of negligence are for your determination. "In this connection, it is necessary to know what is meant by negligence. Negligence means the want of ordinary care; that is, the want of such care as an ordinarily reasonable and prudent person would exercise under like circumstances, and so, in determining whether or not the defendant was negligent on the occasion in question, you must determine whether he did or did not exercise ordinary care in what he was doing or attempting to do at or immediately before the time of the accident; that is to say, whether he did or did not exercise such care as an ordinarily reasonable and prudent person would exercise under like circumstances. If he failed to exercise such ordinary care, he was negligent; but if he did exercise such ordinary care, then he was not negligent." [22] See Hughes v. MacDonald, supra note 20. [23] The jury were told that "if your answer to question No. 2 is `no' then you may draw a line in the space for No. 3. If your answer to No. 2 is `yes' then you must answer question No. 3." [24] A third requested interrogatory of the plaintiff related entirely to the question of damages, an issue which the jury never reached because of its general verdict for the defendants. Under the circumstances we need not consider the trial court's refusal to submit the interrogatory to the jury. [25] Civil Rule 49(c) reads as follows: "The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict or may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial." [26] For cases holding that the number and form of issues submitted by way of special interrogatories, if they, along with the instructions to the jury, fairly present the ultimate questions of fact to be determined, is a matter resting in the sound discretion of the trial judge, see Norfolk Southern Ry. v. Davis Frozen Foods, 195 F.2d 662, 664, 666 (4th Cir.1952), cert. denied 346 U.S. 824, 74 S. Ct. 41, 98 L. Ed. 349 (1953); Travelers Ins. Co. v. Truitt, 280 F.2d 784, 789 (5th Cir.1960); Texas & Pac. Ry. v. Griffith, 265 F.2d 489, 493-494 (5th Cir.1959). Contra: Gelfand v. Strohecker, 150 F. Supp. 655, 662-63 (N.D.Ohio 1956), aff'd 243 F.2d 797 (6th Cir.1957); Tillman v. Great Am. Indem. Co., 207 F.2d 588, 593 (7th Cir.1953). [27] The facts claimed by the plaintiff to be undisputed with respect to the failure of Helen Cushman to maintain a proper lookout were as follows: "1. The defendant, Helen Cushman, did not observe the infant plaintiff at the time she was driving her vehicle. "2. The defendant, Helen Cushman, did not observe any other children in the area before the impact. "3. Quite a few children were walking on the sidewalk and lawns adjacent to Juniper Street [on which the accident occurred] and moving in the direction of the accident and within the unobstructed view of the defendant. "4. The infant plaintiff was in plain view of Mrs. Cushman prior to the accident. "5. After the accident, Mrs. Cushman saw many children in the area. "6. Juniper Street is a four-lane street and Mrs. Cushman was driving in the right lane. "7. The children were walking and playing in a residential area adjacent to Juniper Street. "8. Mrs. Cushman lived in the general area and was familiar with its residential character." [28] Capital Transit Co. v. Bingman, 94 U.S. App.D.C. 75, 212 F.2d 241, 242 (1954); American Auto. Ins. Co. v. Albert, 102 F. Supp. 542 (D.Minn. 1952); Drews v. Mason, 29 Ill. App. 2d 269, 172 N.E.2d 383, 385 (1961); 2B Barron & Holtzoff, Federal Practice and Procedure § 1079 (1961). Cf. Ahlstrom v. Cummings, 388 P.2d 261 (Alaska 1964). [29] Civil Rule 60(b) provides in part as follows: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: "(1) mistake, inadvertence, surprise or excusable neglect. * " [30] The reference of the trial court in the quotation above to a "ruling of the Supreme court" is to our decision in Vogt v. Winbauer, 376 P.2d 1007 (Alaska 1962). In that case we held that the thirty-day period within which notice of appeal must be given by the appellant begins to run on the day when judgment on the verdict is noted by the clerk in the civil docket and not on the day when a formal written judgment, signed by the trial judge, is filed and entered in the civil docket. [31] Supra note 30. [32] We call attention of the bench and bar to the fact that in Vogt v. Winbauer, supra note 31, the jury had returned a general verdict involving no answers to interrogatories. Under such circumstances only the first clause of Civil Rule 58 applies by its provision that "unless the court otherwise directs * * judgment upon the verdict of a jury shall be entered forthwith by the clerk."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1042318/	cc: Hon. Elizabeth Goff Gonzalez, District Judge Curtis Billy Bonilla Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk 2	01-03-2023	09-27-2013
https://www.courtlistener.com/api/rest/v3/opinions/1255802/	199 Va. 961 (1958) ALVANIA MENDOZA v. COMMONWEALTH OF VIRGINIA. Record No. 4782. Supreme Court of Virginia. April 28, 1958. Louis B. Fine, for the plaintiff in error. Present, Hudgins, C.J., and Eggleston, Spratley, Buchanan, Whittle and 1. Alvania Mendoza was convicted for producing an abortion on Vills Lee Green. There was medical testimony, based on an autopsy, that death was caused by septicema resulting from a criminal abortion and that a fetus was found in the woman's bed. Defendant signed a full confession. This evidence was sufficient to show the corpus delicti and that defendant was the criminal agent. 2. Defendant's confession was not inadmissible on the ground that at the time she made the confession the arresting officers did not warn her that her statements might be used against her. Though the officers might better have warned her, the confession was unquestionably voluntary and thus admissible. 3. Defendant's allegations of error for refusal to grant instructions and for admission of evidence were not well founded. 4. In his closing argument the attorney for the Commonwealth stated the punishment set for crime of abortion and that defendant's conduct had caused loss of life. Such statements were not, as contended by defendant, prejudicial and did not constitute an appeal to passion or prejudice. Error to a judgment of the Corporation Court of the city of Norfolk. Hon. H. Lawrence Bullock, judge presiding. The opinion states the case. Thomas M. Miller, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth. HUDGINS HUDGINS, C.J., delivered the opinion of the court. This writ of error brings under review a verdict and judgment sentencing Alvania Mendoza, hereinafter designated the accused, to three years confinement in the penitentiary for producing an abortion on Villis Lee Green. The accused's first contention is that the lower court committed reversible error in refusing to strike the evidence or to set aside the verdict on the ground that the Commonwealth failed to prove the corpus delicti. Villis Lee Green, a married woman, died on August 22, 1956. Her body was exhumed on August 29, 1956, and an autopsy performed by Doctors Charles O. Barclay, Jr. and Robert J. Faulconer. Dr. Barclay, Medical Examiner for the city of Norfolk, testified that he concluded from the examination of the body that she had been pregnant and "died from septicema resulting from a septic criminal abortion." Dr. Faulconer testified that he and Dr. Barclay made a complete and thorough autopsy of Mrs. Green and found the uterus enlarged; that there were tissues or cells on the walls of the womb that are found with afterbirth; that the cells were well preserved "indicating they were alive at the time of the patient's demise," and that she died from septic abortion. Joseph Green, husband of the decedent, testified that prior to August 21, 1956, his wife's health was good; that on that day, she complained of severe pain and bleeding; that he, at her request, called on the accused. He said, "I asked her [the accused] if she did any work on my wife, Villis, and she didn't know her name and when I told her Kate she knowed her and I told her my wife was having a lot of pain and I would like for her to come to see her to see what she could do for her, and she told me that she had -- she was three months gone and she was going to have a lot of pain anyhow, and for me to go to the drugstore and get some medicine, called something she wrote down, and she gave me $1.10 to get it." The accused also told this witness to see a Dr. Burke, whose name and address she wrote on a slip of paper that was filed as an exhibit and 963 reads as follows: "838 Church Street upstairs, Dr. Burke, phone number Madison 23403." Green bought the medicine and asked Dr. Burke to call on his wife, which he did. Dr. Burke told Green to clean his wife's bed which was very bloody. In doing so, he found a fetus, said to be about three months old, that he threw in the commode. After the doctors reported their conclusions from their examination of decedent's body, detective D. C. Steppe, officer Neighbors, Reid W. Spencer, Assistant Commonwealth's Attorney, and decedent's husband went to the home of the accused with a search warrant and a warrant for her arrest. She was in the back of the house peeling an apple. She jumped up from a sitting position and put her hands behind her. Spencer caught hold of her arm and Steppe caught the other arm and took from her hand a "hypo syringe and needle." She then turned and pointed to the decedent's husband and said, "I didn't do anything but what you told me to do. He brought his wife here for me to help her out, that he had more children than he could take care of." Spencer asked her, "Did you help her out?" She said, "Well, I tried to." The accused was taken to the police station where she made a confession describing in detail how she produced the abortion, for which she said she charged decedent $50.00 and received $20.00 in cash. This confession was later transcribed, signed by her and read to the jury but the court refused to permit it to be filed as an exhibit in the case. The evidence is not only sufficient to prove the corpus delicti, but it proves that the accused was the criminal agent. The accused's next contention is that the court erred in permitting L. L. Buskey, a police officer, to read her confession to the jury. This contention is based on the sole ground that at the time she made the confession the officers did not warn her that her statements might be used against her. "In Virginia, it is the function and duty of the trial judge in the first instance before admitting a confession, to determine from the evidence, in the absence of a jury, whether the confession has been freely and voluntarily made. In this decision of a question of fact he has a wide discretion. Omohundro" Commonwealth, 138 Va. 854, 121 S.E. 908. "Thus the admissibility of a confession is a question for the court, and not for the jury. The court does not vouch for the confession, 964 but admits it to the jury to be considered and weighed like other evidence. * * " Upshur Commonwealth, 170 Va. 649, 655, 197 S.E. 435. Campbell Commonwealth, 194 Va. 825, 75 S.E.2d 468. The circumstances under which the confession was made are as follows: The officers arrived at the accused's home at about 4:00 p.m., August 29, 1956. They read, and gave the accused a copy of, a search warrant, searched the house, arrested her and took her to police headquarters where they arrived at about 5:15 p.m. There, in the presence of the officers and Dr. Barclay, the accused described what acts she had performed on decedent. She said that she made an instrument approximately 1/4 to 3/16 of an inch in circumference and two inches long out of elm bark, to which she tied a string in such manner that it could not slip off the bark. She sterilized the bark and string, washed her hands in "Lysol" and with her hands inserted the bark in the womb of decedent. The accused was given a piece of pine wood from which she made a similar instrument and to which she tied a string. These were filed as an exhibit in the case. At 5:50 p.m., thirty-five minutes after her arrival at police headquarters, the oral statements of the accused were transcribed by a stenographer in question and answer form, read and signed by the accused. The objection to the introduction in evidence of the confession was not made until after the court had determined that it had been voluntarily made, had admitted it in evidence and the witness had been cross-examined in detail as to what took place in the interview with the accused. Following this extensive examination the court took a recess, and on reconvening the accused for the first time raised an objection to the introduction of the confession, and moved the court to strike it from the record. She offered no evidence tending to show that the confession was not freely and voluntarily made. Later she took the stand in her own behalf and admitted that she made the confession, read and signed it but claimed that she was sick, had high blood pressure, was on the "verge of a stroke" and made the statements in order to get rid of the officers. There is no statute in Virginia requiring an officer to warn an accused in custody that any statement he may make concerning the crime with which he is charged may be used against him. However, we think the better and safer course for an officer to pursue, when a prisoner is about to make a statement, is to warn him that it may be used against him. If the confession is voluntarily made, it is admissible; 965 if not, it should be excluded. The fact that the accused was under arrest when questioned by the officers and was not warned that her statements might be used against her, does not render her confession inadmissible. The general rule is well stated in State Thomas, 241 N.C. 337, 85 S.E.2d 300, 302, as follows: "It is not essential to the competency of the defendant's confession that the officers should have cautioned him that any statement made by him might be used against him, and should have informed him that he was at liberty to refuse to answer any questions, or to make any statement, and that such refusal could not thereafter be used to his prejudice. It suffices if the statement were voluntary. * * " James Commonwealth, 192 Va. 713, 66 S.E.2d 513; State Lord, 225 N.C. 354, 34 S.E.2d 205; State Matthews, 231 N.C. 617, 58 S.E.2d 625, cert. den. 340 U.S. 838, 71 S. Ct. 24, 95 L.ed. 615; 5 Michie's Jur., Criminal Procedure, \| 56, p. 405; 22 C.J.S., Criminal Law, \| 822, p. 1441; 20 Am. Jur., Evidence, \| 505, p. 435. The accused claimed that she was suffering from high blood pressure and had been advised by her doctors to avoid "excitement and chaos." In support of this claim she called Elizabeth Whitehurst, her daughter, who testified that she lived in the home with her mother; that the accused had suffered with high blood pressure for more than 10 years, was under the constant care of several doctors, was unable to stand any excitement, was required to take medicine regularly and was sick in bed two to three times a month. After admitting on cross-examination that she had talked to officers Neighbors and Buskey about her mother's condition, this witness was asked: "Didn't you tell detective Neighbors at that time that your mother had promised you she was not going to do that any more, referring to the abortion?" The accused promptly objected to the question and its admissibility was argued in the absence of the jury. When the jury returned the Commonwealth's Attorney changed the question to read as follows: "Was it because of your mother's condition of health that you had this discussion with her concerning abortions?" The witness answered: "No, sir. That was five years ago when she promised me that." We find no reversible error in the court's refusal to sustain the accused's objection to this question and answer. There is no merit in the accused's contention that the lower court erred in refusing to give 10 instructions requested by her. The court gave 14 instructions, three requested by the Commonwealth and 11 966 requested by the accused, which fully and fairly informed the jury of the legal principles applicable to the evidence in the case. Furthermore, the grounds of objection and the assignments of error to the rulings of the court on the instructions were not made and preserved as required by Rules 1:8 and 5:1, \| 4. The accused's final contention is that the court erred in overruling her objection to that part of the closing argument on behalf of the Commonwealth included in the following extract from the record. "Mr. Spencer [Assistant Commonwealth's Attorney]: This is one of the most serious offenses that can be committed in the Commonwealth of Virginia, and our Legislature thinks it sufficiently serious that they have fixed the punishment from three to ten years." "One life has departed from this earth because of her conduct. One life which never came into being departed and was released and flushed down the drain." "Mr. Fine [attorney for the accused]: We object to that. She is being tried for abortion, not manslaughter." "The Court: The motion is overruled." "Mr. Fine: Note an exception sir, because it is prejudicial and misleading." "The Court: The instructions apply to the crime of abortion." "Mr. Spencer: I refer to the crime of abortion, the punishment for which is from three to ten years in the penitentiary. That is what she is being tried for." There is no merit in this contention. This argument was not an appeal to passion or prejudice. It was a correct statement of the maximum and minimum punishment prescribed by Code, \| 18-68 for producing a criminal abortion, and a statement of facts supported by the record. For the reasons stated the judgment of the trial court is affirmed. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875527/	706 N.W.2d 58 (2005) In re Petition for DISCIPLINARY ACTION AGAINST John T. ANDERSON, Jr., a Minnesota Attorney, Registration No. 2549. No. A05-335. Supreme Court of Minnesota. November 28, 2005. ORDER On August 11, 2005, this court suspended respondent John T. Anderson, Jr., from the practice of law for a period of 60 days. Respondent has filed with this court an affidavit for reinstatement and the Director of the Office of Lawyers Professional Responsibility has filed with this court an affidavit certifying respondent has complied with all conditions for reinstatement. Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that, effective immediately, respondent John T. Anderson, Jr., is reinstated to the practice of law in the State of Minnesota. Respondent is placed on supervised probation for two years subject to the terms set forth in the court's August 11, 2005, order. BY THE COURT: /s/Russell A. Anderson Associate Justice	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875436/	288 Wis. 2d 460 (2005) 706 N.W.2d 702 2005 WI App 254 STATE v. BLONIGEN.[] No. 2004AP002498 CR. Court of Appeals of Wisconsin. October 5, 2005. Unpublished Opinion. Affirmed. NOTES [] Petition to review filed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2541698/	707 F. Supp. 2d 1145 (2010) In re MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION [This Document Relates To All Cases.]. MDL No. 1840. No. 07-1840-KHV. United States District Court, D. Kansas. March 4, 2010. Opinion Denying Motion for Reconsideration and for Emergency Stay March 26, 2010. 1147 MEMORANDUM AND ORDER KATHRYN H. VRATIL, District Judge. Plaintiffs bring putative class action claims for damages and injunctive relief against motor fuel retailers in Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, the District of Columbia and Guam. Plaintiffs claim that because defendants sell motor fuel for a specified price per gallon without disclosing or adjusting for temperature expansion, they are liable under state law theories which include breach of contract, breach of warranty, fraud and consumer protection. Following a transfer order of the Judicial Panel on Multidistrict Litigation ("JPML"), the Court has jurisdiction over consolidated pretrial proceedings in these actions. See 28 U.S.C. § 1407; Doc. #1 filed June 22, 2007. This matter comes before the Court on Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 ("Plaintiffs' Motion For Review") (Doc. #1195) filed June 11, 2009 and Defendants' Motion For Review Of Magistrate O'Hara's Orders (Docs. 1080, 1196) ("Defendants' Motion For Review") (Doc. # 1214) filed June 25, 2009. For reasons stated below, the Court sustains plaintiffs' motion and overrules defendants' motion. I. Legal Standards Upon objection to a magistrate judge order on a non-dispositive matter, the district court may modify or set aside any portion of the order which it finds to be clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a);[1] 28 U.S.C. § 636(b)(1)(A). With regard to fact findings, the Court applies a deferential standard which requires the moving party to show that the magistrate judge order is clearly erroneous. See Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 494 (D.Kan.1997). Under this standard, the Court is required to affirm the magistrate 1148 judge order unless the entire evidence leaves it "with the definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948)); see also Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D.Kan.1991) (district court generally defers to magistrate judge and overrules only for clear abuse of discretion). With regard to legal matters, the Court conducts an independent review and determines whether the magistrate judge ruling is contrary to law. See Sprint Commc'ns Co. v. Vonage Holdings Corp., 500 F. Supp. 2d 1290 (D.Kan.2007); see also 11 Charles Alan Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice And Procedure § 3069 (2d ed., 2009 update). Under this standard, the Court conducts a plenary review and may set aside the magistrate judge decision if it applied an incorrect legal standard or failed to consider an element of the applicable standard. See, e.g., Owner-Operator Indep. Drivers Ass'n, Inc. v. C.R. England, Inc., No. 2:02-CV950 TS, 2009 WL 5066679, at 2 (D.Utah Dec.16, 2009); Jensen v. Solvay Chem., Inc., 520 F. Supp. 2d 1349, 1350 (D.Wyo.2007); Dias v. City & County of Denver, Colo., No. CIVA07CV00722-WDMMJW, 2007 WL 4373229, at 2 (D.Colo. Dec.7, 2007); McCormick v. City of Lawrence, Kan., No. 02-2135-JWL, 2005 WL 1606595, at 2 (D.Kan. July 8, 2005). Cf. Weekoty v. United States, 30 F. Supp. 2d 1343, 1344 (D.N.M.1998) (applying de novo review to magistrate judge legal determination on non-dispositive matter). II. Procedural History On May 28, 2009, Magistrate Judge James P. O'Hara issued a memorandum and order on the following discovery motions: Plaintiffs' Motion To Compel Discovery And Memorandum In Support (Doc. #668) filed December 8, 2008; Plaintiffs' Motion To Compel Discovery From Petroleum Marketers and Convenience Store Association of Kansas And Memorandum In Support (Doc. # 738) filed February 2, 2009; and defendants' Motion To Quash And For Protective Order (Doc. # 999) filed April 9, 2009. See Doc. # 1080. In the first motion, plaintiffs sought information and documents from certain defendants relating to their communications with trade associations, weights and measures organizations and government agencies. See Doc. # 668. Defendants objected that producing the information would infringe their First Amendment right to freely associate to pursue political, social and economic ends. See Doc. # 697 filed January 9, 2009 at 1, 10-23. Defendants also asserted that under the doctrine set forth in E.R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965) (the "Noerr-Pennington doctrine"), the documents which plaintiffs sought were inadmissible and therefore irrelevant and that plaintiffs' requests were unduly burdensome. See Doc. # 697 at 3, 23-29. In the second motion, plaintiffs sought documents from the Petroleum Marketers and Convenience Store Association of Kansas ("PMCA-KS"), a non-party trade association of petroleum distributors, retailers and convenience stores in Kansas, regardingamong other thingsits membership, financial contributors and lobbying and strategy efforts concerning ATC for retail motor fuel. See Doc. # 738 and Exhibit A thereto. Various defendants who are members of that organization objected that producing the documents would infringe their First Amendment rights to free speech and freedom to associate to pursue 1149 political, social and economic ends.[2]See Doc. # 783 at 1, 7-32. Defendants also asserted that under Noerr-Pennington, the documents were inadmissible and therefore irrelevant and that plaintiffs' requests were unduly burdensome. Id. at 2, 21-30. In the third motion, defendants sought to quash subpoenas which plaintiffs had issued to the California Independent Oil Marketers Association ("CIOMA"), the Petroleum Marketers Association of America ("PMAA"), the Association for Convenience and Petroleum Retailing ("NACS"), NATSO, Inc. and the Society of Independent Gasoline Marketers of America ("SIGMA"), all of which are non-party trade associations of petroleum distributors, retailers, truck stop operators and/or convenience store owners. See Doc. # 999 filed April 9, 2009; Doc. # 1000 filed April 9, 2009 at 3.[3] The subpoenas sought documents regardingamong other things trade association membership, financial contributors and lobbying and strategy efforts concerning ATC for retail motor fuel. See Doc. #601 filed October 16, 2008; Doc. # 662 filed December 5, 2008; Docs. #964, #965, #966, all filed March 27, 2009. Various defendants who are members of those organizations asserted that the subpoenas violated their First Amendment right to associate and that under Noerr-Pennington, the documents were inadmissible and therefore irrelevant. See Doc. # 1000 at 1-2, 7-18. Defendants also argued that the joint-defense/common-interest privilege protected against disclosure, see id. at 2, 19-20, and that the subpoenas imposed unreasonable and undue burdens on defendants and the trade associations. See Doc. # 1000 at 21-23. Judge O'Hara found that the parties' dispute involved three categories of information: (1) membership lists of trade associations, (2) financial contributors of trade associations and (3) information relating to past political activities of defendants, including lobbying and legislative affairs of their trade associations. See id. at 7-8.[4] Regarding membership lists and financial contributors, Judge O'Hara found that the First Amendment right to associate protected against compelled disclosure of confidential information. See id. at 8, 16, 19. He ruled that to the extent such information had been publicly disclosed, however, the First Amendment privilege did not apply. See id. at 8. As to defendants' past political activities, Judge O'Hara found that the First Amendment protected against compelled disclosure of internal trade association communication concerning legislative and lobbying efforts regarding ATC for retail motor fuel. See id. at 9-12, 18-19. He ruled, however, that the First Amendment did not protect all communications between defendants and trade associationsor within trade associationsregarding ATC for retail motor 1150 fuel. See id. at 13. With regard to information relating to lobbying and legislative affairs of trade associations, Judge O'Hara found that the First Amendment privilege only applied to "internal evaluations of lobbying and legislation, strategic planning related to advocacy of their members' positions, and actual lobbying on behalf of members." Id. at 13. Judge O'Hara found that the First Amendment did not protect against compelled disclosure of other communication to, from or within trade associations. Id. As to plaintiffs' motions to compel (Docs. #668 and #738), Judge O'Hara sustained the motions in part. See Doc. # 1080 at 19-20, 25. With respect to both motions, he found that the First Amendment right to associate protected against disclosure of confidential membership and financial contributor information and internal trade association communications regarding legislative affairs and lobbying efforts concerning ATC for retail motor fuel. See id. at 8-19. He sustained plaintiffs' motions to compel membership and financial contributor information which had been publically disclosed, see id. at 8-9, and communications to, from or within trade associations which did not constitute internal communications regarding legislative affairs and lobbying efforts concerning ATC for retail motor fuel. See id. at 12-13.[5] Judge O'Hara further ordered that (1) by July 26, 2009, defendants produce non-privileged documents and prepare a new privilege log, using his order as a guide, and (2) by July 10, 2009, plaintiffs file any motions for in camera review regarding application of First Amendment privilege to specific documents. See Doc. # 1080 at 24-25.[6] Judge O'Hara sustained defendants' motion to quash. See Doc. # 1080 at 23, 25. He found that the First Amendment right to associate protected against disclosure of confidential membership and financial contributor information and internal trade association communications regarding legislative affairs and lobbying efforts concerning ATC for retail motor fuel. See id. at 8-20. As to remaining documents, he found that the burden on trade associations to review and produce the documents outweighed plaintiffs' need for them. See id. at 22-23. Judge O'Hara ordered that by July 10, 2009, plaintiffs could serve on the trade associations "much narrower and targeted subpoenas for specific categories of documents 1151 (that the court has not deemed privileged)." Id. at 23 (emphasis in original).[7] On June 11, 2009, defendants filed a motion which asked Judge O'Hara to reconsider his ruling on plaintiffs' motions to compel and their motion to quash. See Doc. # 1192. Defendants asserted that the First Amendment categorically protects against disclosure of strategic communication between trade associations and similar groups regarding lobbying and legislative affairs concerning ATC for retail motor fuel. See Doc. # 1193 at 1-2, 7-8. On June 15, 2009, Judge O'Hara overruled defendants' motion, finding that defendants had merely re-asserted arguments which had been fully considered and rejected. See Doc. # 1196 at 3. III. Analysis Plaintiffs do not dispute Judge O'Hara's ruling that the First Amendment protects against disclosure of trade association confidential membership and financial contributor information. They object, however, to that part of Judge O'Hara's order of May 28, 2009 (Doc. #1080) which held that the First Amendment protects against disclosure of internal trade association communications regarding legislative and lobbying activities regarding ATC for retail motor fuel. See Plaintiffs' Motion For Review (Doc. # 1195) at 7. Defendants object to the orders of May 28 and June 15, 2009 (Doc. # 1196). Defendants assert that the First Amendment protects against disclosure of communication between trade associations and other similar groups regarding collective lobbying and legislative activity concerning ATC for motor fuel. See Defendants' Response To Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 And Defendants' Memorandum In Support Of Motion To Review Magistrate Judge Orders (Docs. 1080, 1196) ("Defendants' Memorandum") (Doc. # 1215) filed June 25, 2009 at 28-29. Defendants also assert that the First Amendment protects against disclosure even those documents which are publicly available. See id. at 33-37. The United States Constitution guarantees a right to associate to engage in activities which the First Amendment protects, including speech, assembly, petition for the redress of grievances and the exercise of religion.[8]See Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984); NAACP v. State of Ala., 357 U.S. 449, 462-63, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958).[9] These First Amendment protections apply in the context 1152 of discovery orders. See Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir.1987). Specifically, the Supreme Court has recognized that in the context of discovery, the First Amendment creates a qualified privilege from disclosure of certain associational information. See NAACP, 357 U.S. at 462, 78 S. Ct. 1163. The privilege is not absolute. See Buckley v. Valeo, 424 U.S. 1, 65-66, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam); Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir.2010). In evaluating claims of associational privilege in the discovery context, the Court applies a burden-shifting analysis. See Perry, 591 F.3d at 1160-61; McCormick, 2005 WL 1606595, at 7; Wyoming v. USDA, 239 F. Supp. 2d 1219, 1236 (D.Wyo.2002), appeal dismissed as moot, 414 F.3d 1207 (2005); In re GlaxoSmithKline PLC, 732 N.W.2d 257, 270-71 (Minn. 2007).[10] First, the parties asserting the 1153 privilege must make a prima facie showing that the privilege applies. See Perry, 591 F.3d at 1160; GlaxoSmithKline, 732 N.W.2d at 269-70; McCormick, 2005 WL 1606595, at 7. To make this showing, defendants must demonstrate an objectively reasonable probability that compelled disclosure will chill associational rights, i.e. that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See NAACP, 357 U.S. at 462-63, 78 S. Ct. 1163; Perry, 591 F.3d at 1160; Wyoming, 239 F.Supp.2d at 1236-37; GlaxoSmithKline, 732 N.W.2d at 270. If defendants make a prima facie showing, the burden shifts to plaintiffs to demonstrate a compelling need for the requested information. Id. In the Tenth Circuit, to determine whether plaintiffs have a compelling need, the Court considers the following factors: (1) the relevance of the information sought; (2) plaintiffs' need for the information; (3) whether the information is available from other sources; (4) the nature of the information sought; and (5) whether defendants have placed the information in issue. See Grandbouche v. Clancy, 825 F.2d 1463, 1466-67 (10th Cir. 1987) (citing Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir.1977));[11]McCormick, 2005 WL 1606595 at 7; see also Point Rushton, LLC v. Pac. Nw. Reg'l Council of United Bhd. of Carpenters & Joiners of Am., No. C09-5232BHS, 2009 WL 5125395, at 4 (W.D.Wash. Dec.18, 2009) (balancing Grandbouche factors against First Amendment associational rights); Christ Covenant Church v. Town of Sw. Ranches, No. 07-60516-CIV, 2008 WL 2686860, at 7-8 (S.D.Fla. June 29, 2008) (same). After examining these factors, the Court determines "whether the privilege must be overborne by the need for the requested information." Grandbouche, 825 F.2d at 1466. A. Whether Judge O'Hara Incorrectly Ruled That The First Amendment Protects Against Disclosure Of Internal Trade Association Communications Regarding Legislative Affairs And Lobbying Efforts Concerning ATC For Retail Motor Fuel (Plaintiffs' Objection) Plaintiffs contend that Judge O'Hara incorrectly ruled that the First Amendment protects against disclosure of internal trade association communications concerning legislative affairs and lobbying efforts regarding ATC for retail motor fuel. Specifically, plaintiffs assert that he incorrectly found that (1) a presumptive privilege applies to internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel; (2) defendants made a prima facie showing that the First Amendment right to associate 1154 protects such communications; and (3) defendants' First Amendment interest in not disclosing such information outweighs plaintiffs' need to obtain it.[12] 1. Whether Judge O'Hara Incorrectly Found That Such Communications Are Presumptively Privileged Plaintiffs assert that internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel are not presumptively privileged under the First Amendment. Judge O'Hara found that where information goes to core associational activity, it is presumptively prima facie privileged. See Memorandum And Order (Doc. # 1080) at 7-9. With regard to confidential membership and financial contributor information, he found that such information involves core associational activity and is presumed privileged and that the balance of factors weigh against disclosure. See id. at 8, 16. Plaintiffs do not object to that ruling. With regard to internal trade association communications regarding legislative and lobbying on ATC for retail motor fuel, however, it is unclear whether Judge O'Hara applied a presumptive privilege.[13] Judge O'Hara found that based on Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL 852521 (D.Kan. March 16, 2007), internal trade association communications regarding lobbying and legislative issues are prima facie privileged. See Doc. # 1080 at 9-10. He also found, however, that (1) a reasonable probability exists that disclosure of internal trade association communication regarding lobbying and legislative issues would deter membership due to fear that exposure of their beliefs would subject members to economic reprisal or other public hostility; and (2) plaintiffs could use information regarding trade association lobbying and legislative strategy to gain an unfair advantage in current congressional debates over ATC for retail motor fuel. See Doc. # 1080 at 11-12.[14]1155 Judge O'Hara therefore concluded that defendants had met their burden to show that disclosure would have a chilling effect on the exercise of associational rights. See id. at 12. To the extent that Judge O'Hara may have presumed First Amendment privilege for internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel, his conclusion is contrary to law. Both plaintiffs and defendants contend that Heartland presumed First Amendment privilege with regard to trade association lobbying and legislative efforts. See Plaintiffs' Motion For Review (Doc. # 1195) at 9-10 (Heartland incorrectly found generalized privilege for trade association lobbying and legislative strategy); Defendant's Memorandum (Doc. # 1215) at 7-8 (under Heartland, disclosure of trade association lobbying and legislative activity presumptively chills First Amendment rights).[15] If Heartland presumed such a privilege, it 1156 appears to be the only case which has done so. While it appears that some courts may have found presumptive privilege for group membership, financial contributors and past political activities of group members, see, e.g., Wyoming, 239 F.Supp.2d at 1237; Beinin v. Ctr. for Study of Popular Culture, No. C 06-02298 JW, 2007 WL 1795693, at 3 (N.D.Cal. June 20, 2007) (apparently assuming chilling effect of disclosing names or groups which supported lawsuit); Int'l Action Ctr. v. United States, 207 F.R.D. 1, 3-4 (D.D.C. 2002) (apparently assuming chilling effect of disclosing membership and volunteer lists, contributor lists and past political activities and names of individuals who planned to attend political protests), those cases apparently concerned the identity and political activities of group members and contributorsissues which the parties here do not contest. The cases did not address internal group lobbying and legislative communications. In a matter of first impression, the Ninth Circuit recently addressed the scope of First Amendment privilege against compelled disclosure of similar information internal campaign communications. See Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.2010). In that case, plaintiffs challenged Proposition 8, which amended the California Constitution to provide that California only recognizes marriage between a man and a woman. See id. at 1152. Proponents of Proposition 8 intervened to defend the lawsuit, and plaintiffs sought to discover information relating to their internal campaign communications regarding campaign strategy and advertising. See id. The proponents sought a protective order based on First Amendment associational privilege. The district court declined to issue a protective order, finding that the proponents had not identified any way in which First Amendment privilege could apply, except perhaps as to the identity of rank-and-file volunteers. See Perry v. Schwarzenegger, 264 F.R.D. 576, 580-81 (N.D.Cal.2009).[16] The proponents then sought a writ of mandamus, which the Ninth Circuit granted. See Perry, 591 F.3d at 1152. In Perry, the Ninth Circuit found that the district court had erred in finding as a categorical matter that First Amendment associational privilege does not apply to disclosure of internal campaign communications. See id. at 1161-63. The Ninth Circuit found that the existence of a prima facie case turns not on the type of information sought, but on whether disclosure of the information will have a deterrent effect on the exercise of protected activities. In this regard, the Ninth Circuit found that participating in campaigns is unquestionably a protected activity and that disclosure of internal campaign communications can have a chilling effect on protected activity. See id. at 1162-63.[17] Turning to the facts in its case, the Ninth Circuit found that the proponents had demonstrated a prima facie showing of chill on their associational rights. See id. at 1163-64. Specifically, the Ninth Circuit found that the proponents had presented declarations from several individuals which attested to the impact that compelled disclosure would have on participation and formulation of 1157 strategy. See id. at 1163. One declaration stated as follows: I can unequivocally state that if the personal, nonpublic communications I have had regarding this ballot initiative-communications that expressed my personal political and moral views-are ordered to be disclosed through discovery in this matter, it will drastically alter how I communicate in the future.... I will be less willing to engage in such communications knowing that my private thoughts on how to petition the government and my private political and moral views may be disclosed simply because of my involvement in a ballot initiative campaign. I also would have to seriously consider whether to even become an official proponent again. Id. (emphasis added).[18] The Ninth Circuit found that because the proponents had made a prima facie showing that disclosure could have a chilling effect, the burden shifted to plaintiffs to demonstrate a need for the information which was sufficient to justify the deterrent effect on the proponents' associational rights. See id. at 1164. The Ninth Circuit found that plaintiffs had not demonstrated sufficient need for the information.[19]See id. at 1165. It issued a writ of mandamus and directed the district court to enter a protective order consistent with its opinion. See id. In Perry, the Ninth Circuit cited with approval Judge O'Hara's finding that disclosure of trade association internal lobbying and legislative communications might reasonably interfere with association rights and his finding that First Amendment privilege protected only private, internal communications on the matter. See id. at 1165, n. 12. The Ninth Circuit, however, did not presume that such communications are prima facie privileged. Instead, it required the proponents to demonstrate that disclosure would create an objectively reasonable probability of chill on First Amendment rights. The proponents did so by presenting declarations which demonstrated that compelled disclosure of internal campaign communications could deter membership in their organization. In another case, In re GlaxoSmithKline PLC, 732 N.W.2d 257 (Minn.2007), the Minnesota Supreme Court addressed First Amendment privilege with regard to communications between pharmaceutical manufacturers, lobbyists and trade associations concerning the importation of drugs from Canada. The case involved state investigation of a pharmaceutical company's alleged antitrust violations. Under a confidentiality agreement and protective order, the pharmaceutical company produced documents regarding its communications with other pharmaceutical manufacturers, lobbyists 1158 and trade associations regarding importation of drugs from Canada. See id. at 262. With regard to certain documents, the state disagreed with the company's confidentiality designation and sought to publically release them under Minnesota law. See id. The pharmaceutical company and trade associations sought to protect them against public disclosure based on First Amendment associational rights. See id. at 267. The trial court issued a protective order based in part on the First Amendment right to petition. See id. at 263. The Minnesota court of appeals reversed, finding that federal courts have rejected a discovery privilege based on the right to petition. See In re GlaxoSmithKline PLC, 713 N.W.2d 48, 56 (Minn.App. 2006). The Minnesota court of appeals then addressed whether First Amendment associational rights precluded public disclosure. See id. It rejected the argument, finding no evidence in the record to support a finding that the proposed disclosure would interfere with associational rights. See id. at 57. The pharmaceutical company petitioned for review by the Minnesota Supreme Court. In granting review, the Minnesota Supreme Court addressed as a matter of first impression whether infringement on First Amendment associational rights may form the proper basis for a protective order. See GlaxoSmithKline, 732 N.W.2d at 268. It found that a district court had discretion to enter such an order and outlined a two-step analysis. See id. at 269. It directed that under the first step, the party seeking a protective order must establish a prima facie showing of potential chilling effect on its associational rights. Second, if the party meets this burden, the district court should balance the competing interests. See id. With regard to the prima facie showing, the Minnesota Supreme Court stated that through "objective and articulable" facts, the party seeking protection must make an evidentiary showing of a reasonable probability of chill on an association right. See id. at 271. The Minnesota Supreme Court remanded the case to the district court to determine whether to issue a protective order based on First Amendment associational rights. See id. at 273. Perry and GlaxoSmithKline are consistent with the weight of authority which requires that a party seeking First Amendment association privilege demonstrate an objectively reasonable probability that disclosure will chill associational rights, i.e. that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See, e.g., NAACP, 357 U.S. at 462-63, 78 S. Ct. 1163; United States v. Comley, 890 F.2d 539, 544 (1st Cir.1989); Wyoming, 239 F.Supp.2d at 1236-37. Although some cases may support a presumptive privilege regarding group membership and financial contributor information, e.g., Wyoming, 239 F.Supp.2d at 1237; Beinin, 2007 WL 1795693, at 3; Int'l Action, 207 F.R.D. at 3-4, only one caseJudge Bostwick's opinion in Heartlandhas even arguably presumed prima facie privilege with regard to trade association internal lobbying and legislative activities. The Supreme Court has cautioned that an evidentiary privilege should be strictly construed and accepted only to the very limited extent that excluding relevant evidence "has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960) (Frankfurter, J., dissenting)). In light of this policy and established weight of authority, Judge O'Hara's decision would be contrary to law if it presumed that internal trade association 1159 communications with regard to legislative and lobbying on ATC for retail motor fuel are prima facie privileged under the First Amendment. 2. Whether Judge O'Hara Incorrectly Found That Defendants Made A Prima Facie Showing That Disclosing Such Communications Would Chill Their Associational Rights As noted, to meet their burden of showing a prima facie case of First Amendment associational privilege, defendants must through "objective and articulable" facts make an evidentiary showing of a reasonable probability of chill on an association right. GlaxoSmithKline, 732 N.W.2d at 271; see also NAACP, 357 U.S. at 462-63, 78 S. Ct. 1163; Wyoming, 239 F.Supp.2d at 1236-37. Plaintiffs assert that Judge O'Hara did not require defendants to make this showing. In concluding that defendants had met their burden to show that disclosure would have a chilling effect, see Doc. # 1080 at 12, Judge O'Hara found (1) a reasonable probability that disclosure of internal trade association communication regarding lobbying and legislative issues would deter membership due to fear that exposure of their beliefs would subject members to economic reprisal or other public hostility; and (2) plaintiffs could use information regarding trade association lobbying and legislative strategy to gain an unfair advantage in current congressional debates over ATC for retail motor fuel. See Doc. #1080 at 11-12. Plaintiffs contend that defendants produced no evidence to support these findings. See Plaintiffs' Motion For Review (Doc. # 1195) at 8-9, n. 3. Defendants disagree, asserting that they demonstrated a reasonable probability that disclosure would chill association rights. See Defendants' Memorandum (Doc. # 1215) at 8 n. 33. In their briefs on the underlying motions, defendants argued that disclosure would have a chilling effect on membership. They produced no evidence, however, to support their assertion. See Doc. # 783 at 15; Doc. # 697 at 15-16.[20] Defendants 1160 also argued that plaintiffs could use the information to gain undue advantage in the ongoing public policy debate on ATC for retail motor fuel. See Doc. #783 at 14; Doc. #1000 at 8. Again, defendants presented no evidence on this point. Nor did they explain the "unfair" advantage to which they referred.[21] Defendants did present declarations from trade associations which stated that producing the requested information would cause undue burden on association resources and negatively effect their ability to advocate on behalf of members before legislative and regulatory bodies. See Doc. # 1055 at 14-15. In part, this evidence goes to whether the discovery requests are unduly burdensome. More fundamentally, it implies that under the First Amendment, trade associations cannot be compelled to dedicate to discovery requests resources which they could otherwise use to petition the government. Defendants cite no authority for this extreme proposition and they have not demonstrated an objectively reasonable probability that compelled disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See NAACP, 357 U.S. at 462-63, 78 S. Ct. 1163; Perry, 591 F.3d at 1160; GlaxoSmithKline, 732 N.W.2d at 270; Wyoming, 239 F.Supp.2d at 1236-37. In sum, on this record, defendants have not shown an objectively reasonable probability that compelled disclosure of internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel would chill associational rights. The Court therefore reverses Judge O'Hara's decision on this ground. 3. Whether Judge O'Hara Incorrectly Found That The Balance Of Factors Weighs In Favor Of Non-Disclosure Even if defendants had demonstrated a prima facie showing of First Amendment privilege with regard to internal trade association communications concerning legislative and lobbying on ATC for retail motor fuel, plaintiffs have shown that the balance of factors weighs in favor of disclosure. Judge O'Hara applied the Grandbouche factors and found that plaintiffs had not shown a particular need for the information which outweighed defendants' First Amendment associational interest. See Memorandum And Order (Doc. #1080) at 14-19.[22] As noted, to determine whether plaintiffs' need for the 1161 information outweighs defendants' First Amendment interest in not disclosing it, the Court considers the following factors: (1) the relevance of the information sought; (2) plaintiffs' need for the information; (3) whether the information is available from other sources; (4) the nature of the information sought; and (5) whether defendants have placed the information into issue. See Grandbouche, 825 F.2d at 1466-67. As to the first factorthe relevance of the information soughtplaintiffs assert that information regarding internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel is highly relevant to their claim that defendants conspired to oppose implementation of ATC for retail motor fuel in the United States and defendants' contentions regarding the availability, feasibility and legality of ATC. See Doc. # 1195 at 13. Judge O'Hara found that although the information might be minimally relevant to plaintiffs' claims, it did not have "certain relevance" or go to the heart of plaintiffs' claims. Doc. # 1080 at 18. He did not, however, explain his findings in this regard. Defendants contend that under Noerr-Pennington, their petitioning efforts cannot form the basis for liability and therefore the information is irrelevant to plaintiffs' claims.[23]See Defendants' Memorandum (Doc. # 1215) at 19-20, 24-25. This argument ignores the fact that exceptions to immunity may apply, see, e.g., Assoc. Container Transp. (Australia) Ltd. v. United States, 705 F.2d 53, 59 (2d Cir. 1983) (Noerr-Pennington does not protect abuses of governmental process), and that the Noerr-Pennington doctrine itself does not bar discovery.[24]See N.C. Elec. Membership Corp. v. Carol. Power & Light Co., 666 F.2d 50, 52-53 (4th Cir.1981). Judge O'Hara found that the parties do not dispute that defendants 1162 joined together in trade associations to oppose ATC. This fact alone demonstrates the relevance of the requested information. On this record, internal trade association communications relating to legislative and lobbying on ATC for retail motor are directly relevant to plaintiffs' claim that defendants conspired to oppose implementation of ATC and defendants' contentions regarding the availability, feasibility and legality of ATC. The first factor therefore weighs in favor of disclosure. As to the second factorplaintiffs' need for the informationplaintiffs assert that they need the information to determine what occurred within the trade associations with regard to the alleged conspiracy and defendants' contentions regarding the availability, feasibility and legality of ATC. Judge O'Hara found that plaintiffs had not demonstrated a particular need for the information. This court disagrees. The second factor weighs in favor of disclosure. As to the third factorwhether the information is available from other sources plaintiffs assert that they cannot obtain the information from other sources. Judge O'Hara found that plaintiffs could discover information about defendants' contentions regarding the availability, feasibility and legality of ATC through interrogatories and by examining public positions taken by the trade associations. These methods of discovery, however, would not necessarily reveal the same information. Also, they would not reveal information regarding the alleged conspiracy. The third factor weighs in favor of disclosure. As to the fourth factorthe nature of the information soughtJudge O'Hara found that the "nature of the information soughtshowing the strategic processing done by associations as they prepare to advocate on behalf of their collective membersis highly privileged because it involves a core associational activity protected by the First Amendment." Doc. # 1080 at 19. Plaintiffs do not address the fourth factor. Based on this record, the fourth factor appears to weigh against disclosure.[25] As to the fifth factorwhether defendants placed the information into issueplaintiffs assert that by claiming that ATC was unavailable, impossible, impractical or illegal, defendants have put in issue their state of mind and their conduct regarding efforts to create particular standards regarding ATC. Judge O'Hara did not address this factor. Information regarding internal trade association communications with regard to legislative and lobbying on ATC issues appears to be directly relevant to defendants' assertions that ATC was unavailable, impossible, impractical or illegal. Indeed, if defendants did not assert a defense that ATC is impossible, impractical or illegal, the Court might decline to order the requested discovery. Accordingly, the fifth factor weighs strongly in favor of disclosure. In light of the above analysis, the balance of factors weighs heavily in favor of disclosure. Thus, even if defendants had demonstrated a prima facie showing of First Amendment privilege with regard to internal trade association communications concerning legislative and lobbying on ATC for retail motor fuel, the Court would reverse Judge O'Hara's ruling. On this 1163 record, plaintiffs have demonstrated a compelling need for the information which outweighs any First Amendment interest in not disclosing it. The Court therefore finds that the First Amendment associational privilege does not protect against disclosure of internal trade association legislative and lobbying activities regarding ATC for retail motor fuel. B. Whether Judge O'Hara Incorrectly Found That The First Amendment Does Not Protect Against Disclosure Of Communication Between Trade Associations Regarding Collective Lobbying And Petitioning Activity (Defendants' Objection) Defendants assert that Judge O'Hara incorrectly ruled that the First Amendment does not protect against disclosure of collective lobbying and legislative communication between trade associations and similar groups regarding ATC for motor fuel. To support their assertion, defendants cite case law which suggests that under certain circumstances, the First Amendment may protect against disclosure of communication between organizations. See Doc. # 1215 at 29-31 (citing Fed. Election Comm'n v. Machinists Non-Partisan Political League, 655 F.2d 380, 386-90, 395-96 (D.C.Cir.1981) (assuming FEC could show compelling interest to subpoena communication among political groups, FEC lacked subject matter jurisdiction to investigate matter); Beinin, 2007 WL 1795693, at 4 (First Amendment privilege applied to names of e-mail correspondents who offered plaintiff verbal support in litigation); Wyoming v. USDA, 208 F.R.D. 449, 455 (D.D.C.2002) (First Amendment protects against disclosure of communication among non-party environmental advocacy groups where information sought did not go to heart of lawsuit and plaintiff could obtain needed information from defendants and did not try to do so before making extraordinarily broad discovery request); Int'l Action Ctr., 207 F.R.D. at 3-4 (First Amendment precluded discovery of information regarding plaintiffs' political activities and affiliates where defendant did not show relevance or that it had pursued alternative sources); GlaxoSmithKline, 732 N.W.2d at 267-73 (district court has discretion to issue protective order based on First Amendment right to associate; remanding case for district court to decide whether First Amendment protects public disclosure of pharmaceutical company communication with lobbyists and trade associations); Britt v. Superior Court of San Diego County, 20 Cal. 3d 844, 143 Cal. Rptr. 695, 574 P.2d 766, 770-77 (1978) (vacating on First Amendment association privilege grounds trial court discovery order which required individual plaintiffs to disclose private association affiliations and activities); Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 105 Wash.App. 813, 21 P.3d 1157, 1162-64 (2001) (First Amendment protects from disclosure correspondence between non-profit organizations where plaintiff did not show relevance and materiality or that it had tried to obtain information by other means)). These cases, however, do not compel a conclusion that the First Amendment precludes disclosure of communications between trade associations in this case. To invoke First Amendment associational privilege, defendants must demonstrate or make a prima facie showing that the privilege applies. See McCormick, 2005 WL 1606595, at 7.[26] Here, Judge O'Hara 1164 found that defendants had not made a prima facie showing that First Amendment privilege applies to lobbying and legislative communications between trade associations regarding ATC for retail motor fuel. See Doc. # 1080 at 12-13. Although defendants do not articulate it in so many words, they apparently contend that Judge O'Hara should have applied a presumptive privilege to legislative and lobbying communication between trade associations and similar groups regarding ATC for retail motor fuel.[27] For reasons discussed above, the Court disagrees that a presumptive privilege applies. On the facts of this case, defendants have not shown an objectively reasonable probability that disclosure of lobbying and legislative communications between trade associations regarding ATC for retail motor fuel would chill their First Amendment rights. Judge O'Hara's conclusion that defendants have not shown a prima facie privilege is not clearly erroneous or contrary to law.[28] The Court will not set aside Judge O'Hara's ruling on this ground. C. Whether Judge O'Hara Incorrectly Found That The First Amendment Does Not Protect Against Disclosure Of Publicly Available Documents (Defendants' Objection) Defendants assert that Judge O'Hara erred in finding that the First Amendment associational privilege does not protect against disclosure of information which is publically available. Judge O'Hara found that the privilege protected against disclosure of confidential information regarding trade association membership, financial contributors and internal lobbying and legislative activity. See Doc. # 1080 at 8. With regard to information which has been publicly disclosed, however, he found that 1165 defendants had not shown a reasonable probability that disclosure of such information would chill First Amendment rights. See id. Defendants assert that in deciding whether they had met their prima facie burden, Judge O'Hara should not have considered whether information is publically available. Defendants assert that whether information is publically available is not part of the prima facie analysis, but a factor to consider under the second-step balancing test. See Doc. # 1215. Defendants miss the point. The Court reaches the second-step balancing test only if defendants satisfy their prima facie burden to show a First Amendment privilege. See McCormick, 2005 WL 1606595, at 7. If defendants do not make that prima facie showing, the Court need not conduct the balancing test. As noted, to demonstrate a prima facie case, defendants must show an objectively reasonable probability that compelled disclosure will chill First Amendment associational rights, i.e. that it will deter membership in the trade associations because of fear that exposure of members' beliefs will result in threats, harassment or reprisal which may affect physical well-being, political activities or economic interests. See NAACP, 357 U.S. at 462-63, 78 S. Ct. 1163; Wyoming, 239 F.Supp.2d at 1236-37; GlaxoSmithKline, 732 N.W.2d at 270. When information is already publically available, compelled disclosure will presumably have much less of a chilling effectif anyon First Amendment rights. Certainly, in this case, defendants did not demonstrate that disclosure of publically available information would chill their associational rights. Judge O'Hara did not err in concluding that defendants had not met their burden to show a reasonable probability that disclosure of such information would chill First Amendment rights. See, e.g., Anderson v. Hale, No. 00 C 2021, 2001 WL 503045, at 5-6 (N.D.Ill. May 10, 2001) (defendants could not make prima facie showing that associational privilege applied to publically identified group members). The Court will not reverse Judge O'Hara's ruling on this ground. IT IS THEREFORE ORDERED that Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 (Doc. # 1195) filed June 11, 2009 be and hereby is SUSTAINED. The Court reverses that portion of Judge O'Hara's order of May 28, 2009 (Doc. #1080) which found that the First Amendment protects against disclosure of internal trade association legislative and lobbying activities regarding ATC for retail motor fuel. IT IS FURTHER ORDERED that Defendants' Motion For Review Of Magistrate O'Hara's Orders (Docs. 1080, 1196) (Doc. # 1214) filed June 25, 2009 be and hereby is OVERRULED. MEMORANDUM AND ORDER Plaintiffs bring putative class action claims for damages and injunctive relief against motor fuel retailers in Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, the District of Columbia and Guam. Plaintiffs claim that because defendants sell motor fuel for a specified price per gallon without disclosing or adjusting for temperature expansion, they are liable under state law theories which include breach of contract, breach of warranty, fraud and consumer protection. Following a transfer order of the Judicial Panel on Multidistrict Litigation ("JPML"), the Court has jurisdiction over consolidated pretrial proceedings in these actions. See 28 U.S.C. § 1407; Doc. #1 filed June 22, 2007. This matter 1166 comes before the Court on the Joint Motion To Reconsider March 4, 2010 Memorandum & Order (Doc. 1583) ("Joint Motion") (Doc. #1590) which certain defendants and third party trade associations filed March 15, 2010 and the Application For Emergency Stay Of March 4, 2010 Order (Doc. 1583) (Doc. #1592) which defendants and certain third party trade associations filed March 16, 2010.[1] For reasons stated below, the Court overrules both motions. I. Legal Standards A court has discretion whether to grant a motion to reconsider. Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir.1995). A motion which asks the Court to reconsider a nondispositive order "must be based on (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice." D. Kan. Rule 7.3(b). In general, a motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact or presents newly discovered evidence. Sump v. Fingerhut, Inc., 208 F.R.D. 324, 327 (D.Kan.2002) citing Nat'l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d. 1250, 1256 (D.Colo.2000). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan. 1994), aff'd, 43 F.3d 1484 (10th Cir.1994). Such motions are not appropriate if movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991). Reconsideration may be appropriate, however, if the Court has misapprehended the facts, a party's position or the controlling law. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); accord O'Connor v. Pan Am Corp., 5 Fed.Appx. 48, 50 (2d Cir.2001). II. Analysis On March 4, 2010, the Court entered a memorandum and order which sustained plaintiffs' motion to review Judge O'Hara's order of May 28, 2009 (Doc. # 1080) and overruled defendants' request to review Judge O'Hara's orders of May 28 and June 15, 2009 (Doc. # 1196).[2]See Doc. # 1583. Specifically, the Court found that (1) to the extent that Judge O'Hara may have presumed a First Amendment privilege for internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel, his conclusion 1167 would be contrary to law, see id. at 15-21; (2) defendants did not show an objectively reasonable probability that compelled disclosure of such communications would chill associational rights, see id. at 21-24; (3) the balance of factors weighed heavily in favor of disclosure, see id. at 24-28; (4) defendants did not show an objectively reasonable probability that disclosure of lobbying and legislative communications between trade associations regarding ATC for retail motor fuel would chill First Amendment rights, see id. at 28-30; and (5) defendants did not show a reasonable probability that disclosure of publically available documents would chill First Amendment rights, see id. at 31-32. Defendants assert that by requiring them to demonstrate a prima facie showing of chill on First Amendment rights, the Court imposed an erroneous standard. In its previous ruling, the Court found that to invoke associational privilege, defendants must demonstrate an objectively reasonable probability that compelled disclosure would chill associational rights, i.e. that disclosure would likely deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See Memorandum And Order (Doc. # 1583) at 10-11 (citing NAACP v. State of Ala., 357 U.S. 449, 462-63, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); Perry v. Schwarzenegger, 591 F.3d 1147, 1160-61 (9th Cir. 2010); Wyoming v. USDA, 239 F. Supp. 2d 1219, 1236-37 (D.Wyo.2002), appeal dismissed as moot, 414 F.3d 1207 (10th Cir. 2005); In re GlaxoSmithKline PLC, 732 N.W.2d 257, 270-71 (Minn.2007)). Defendants assert that established precedent required the Court to presume that associational privilege applies to trade association documents related to lobbying and legislative affairs. See Memorandum In Support Of Joint Motion To Reconsider March 4, 2010 Memorandum & Order (Doc. 1583) ("Defendants' Memorandum In Support Of Motion To Reconsider") (Doc. # 1591) filed March 16, 2010 at 3-9. In support of their assertion, defendants largely repeat the arguments which they made in their motion to review. See Defendants' Response To Plaintiffs' Motion To Review And Set Aside The Magistrate Judge's Order Dated May 28, 2009 And Defendants' Memorandum In Support Of Motion To Review Magistrate Judge Orders (Doc. 1080, 1196) ("Defendants' Memorandum In Support Of Motion To Review Magistrate Orders") (Doc. # 1215) filed June 25, 2009 at 8-14. The Court has fully considered and rejected defendants' argument in this regard, and it is not persuaded by its reiteration. See Voelkel, 846 F.Supp. at 1483 (motion to reconsider not second opportunity to rehash arguments or dress up arguments that previously failed). Defendants contend that the Court erred in finding that they had not shown an objectively reasonable probability that compelled disclosure would chill associational rights. See Memorandum And Order (Doc. # 1583) at 21-24. Specifically, through evidence that compelled disclosure would interfere with trade association lobbying efforts, defendants assert that they demonstrated a prima facie showing of chill on associational rights. See Defendants' Memorandum In Support Of Motion To Reconsider (Doc. # 1591) at 12-18. Defendants apparently contend that they can demonstrate chill on associational rights by showing that disclosure will negatively impact their right to petition the government. Courts have generally held that efforts to petition the government are not protected from discovery. See, e.g., N.C. Elec. Membership Corp. v. Carolina P & L Co., 666 F.2d 50, 52-53 (4th Cir. 1981); Stalling v. Union Pac. R.R. Co., No. 01 C 1056, 2003 WL 21688235, at 2 (N.D.Ill. July 17, 2003); In re GlaxoSmithKline, 1168 732 N.W.2d at 273. Defendants cite no authority which supports the proposition that because they have formed an association, their right to petition is somehow entitled to heightened protection. In its previous order, the Court rejected similar arguments. See Memorandum And Order (Doc. # 1583) at 23-24. It will not reconsider its ruling on this ground. See Voelkel, 846 F.Supp. at 1483. Defendants seek to supplement the evidentiary record. They contend at the time they briefed the issue before Judge O'Hara, they reasonably relied on existing case law which presumed a prima facie privilege and that they had no idea that the Court would expect them to show a reasonable probability of chill on associational rights. The Court disagrees. Only one caseJudge Bostwick's opinion in Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLBDWB, 2007 WL 852521 (D.Kan. March 16, 2007)even arguably presumed prima facie privilege with regard to trade association internal lobbying and legislative activities. See Memorandum And Order (Doc. # 1583) at 21. The weight of long-standing authority requires that to invoke discovery privilege, one must show a reasonable probability of chill on associational rights. See, e.g., NAACP, 357 U.S. at 462-63, 78 S. Ct. 1163; United States v. Comley, 890 F.2d 539, 544 (1st Cir.1989); Wyoming v. USDA, 239 F.Supp.2d at 1236; In re GlaxoSmithKline plc, 732 N.W.2d at 271. Plaintiffs argued this point below. See Plaintiffs' Motion To Compel Discovery And Memorandum In Support (Doc. #668) filed December 8, 2008 at 9-11. Moreover, at oral argument, Judge O'Hara stated that he would not hesitate to deviate from Heartland if he believed that Judge Bostwick had wrongly decided it. See Transcript of Status Conference on May 13, 2009 (Doc. # 1587-1) filed March 8, 2010 at 43:24 to 44:1. Defendants have not shown good cause to supplement the record at this late date. See Van Skiver, 952 F.2d at 1243 (motion to reconsider not forum for new supporting facts which could have been presented originally). The Court will not reconsider its ruling on this ground. Defendants assert that the Court should have reversed Judge O'Hara's ruling which "denied categorically that intergroup communications could be protected by the First Amendment privilege." Defendants' Memorandum (Doc. # 1591) at 23. In its previous order, the Court found that to invoke associational privilege for legislative and lobbying communications between trade associations and similar groups regarding ATC for retail motor fuel, defendants must show an objectively reasonable probability that disclosure of such communications would chill associational rights. See Memorandum And Order (Doc. # 1583) at 30. Defendants did not do so. Defendants seek to supplement the record, but they are too late and have not established good cause to do so. See Van Skiver, 952 F.2d at 1243. The Court will not reconsider its ruling on this ground. Defendants complain that in balancing whether plaintiffs had shown a compelling need for the requested information, the Court applied the wrong standard. See Defendants' Memorandum In Support Of Motion To Reconsider (Doc. # 1591) at 25-26. The Court disagrees, and will not reconsider its ruling on this ground. Finally, defendants assert that the Court erred in not ruling that the common interest privilege protects some of the requested documents from discovery. Defendants did not argue this issue in their motion to review the magistrate judge rulings. See Defendants' Memorandum In Support Of Motion To Review Magistrate Orders (Doc. #1215) at 27-33.[3] The 1169 Court will not reconsider its ruling on this ground. See Van Skiver, 952 F.2d at 1243 (motion to reconsider not forum for new arguments which could have been presented originally). Based on the foregoing analysis, the Court overrules defendants' motion to reconsider. In light of this ruling, defendants' motion for emergency stay is moot and overruled as such. IT IS THEREFORE ORDERED that the Joint Motion To Reconsider March 4, 2010 Memorandum & Order (Doc. 1583) (Doc. # 1590) which defendants and certain third party trade associations filed March 15, 2010 be and hereby is OVERRULED. IT IS FURTHER ORDERED that the Application For Emergency Stay Of March 4, 2010 Order (Doc. 1583) (Doc. # 1592) which defendants and certain third party trade associations filed March 16, 2010 be and hereby is OVERRULED as moot. NOTES [1] With regard to timely objections to a magistrate judge ruling on a non-dispositive matter, Rule 72(a) provides that the district judge must "modify and set aside any part of the order that is clearly erroneous or is contrary to law." Rule 72(a), Fed.R.Civ.P.; see also 28 U.S.C. § 636(b)(1)(A). By contrast, with regard to timely objections to a magistrate judge report and recommendation on a dispositive matter, Rule 72(b)(3) provides that the district judge must conduct a de novo review and "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Rule 72(b)(3), Fed. R.Civ.P.; see also 28 U.S.C. § 636(b)(1). [2] The PMCA-KS joined in defendants' briefing. See Third Party Joinder By Petroleum Marketers And Convenience Store Association Of Kansas (Doc. # 987) filed April 7, 2009. [3] CIOMA, PMAA, NACS, NATSO and SIGMA joined in defendants' motion to quash. See Doc. # 1003 filed April 13, 2009; Doc. # 1016 filed April 23, 2009; Doc. # 1020 filed April 27, 2009; Doc. # 1032 filed May 1, 2009. Defendants' motion to quash did not address the subpoena to PMCA-KS. See Doc. # 999 at 1 n. 6. [4] Judge O'Hara noted defendants' argument that plaintiffs' discovery requests and subpoenas sought information in these three categories. See id.; see also Doc. # 697 filed January 9, 2009 at 1-2; Doc. # 1000 filed April 9, 2009 at 9-10. Plaintiffs did not dispute that categorization. See Doc. #714 filed January 20, 2009; Doc. # 1023 filed April 28, 2009. Judge O'Hara made no contrary findings and analyzed the First Amendment issues based on these categories. This Court therefore accepts this categorical approach to the issues on review. [5] Judge O'Hara stated as follows: In addition to documents containing information that would disclose the trade associations' internal evaluation of lobbying strategies, positions on legislation, and actual lobbying, however, defendants have withheld documents with a much more tenuous connection to the "past political activities" of the associations and their members. For example, defendants have objected to providing information about any communication that they have had with trade associations regarding the subject of temperature adjustment in retail sales of motor fuel. Defendants also assert a privilege over documents shared among multiple trade associations. Likewise, as defense counsel stated at the May 13, 2009, oral argument, defendants contend that all internal communications of trade associations, regardless of whether the communications relate to lobbying or legislative strategies, are subject to the associational privilege. The court wishes to make clear that defendants have met their prima facie burden only with respect to the associations' internal evaluations of lobbying and legislation, strategic planning related to advocacy of their members' positions, and actual lobbying on behalf of members. Any other communications to, from, or within trade associations are not deemed protected under the First Amendment associational privilege. Id. at 11-12 (footnotes omitted). [6] On June 25, 2009, Judge O'Hara entered an order which stayed these requirements pending this Court's review of his memorandum and order. See Doc. # 1213. [7] It appears that the stay which Judge O'Hara entered on July 25, 2009 does not apply to this deadline. See Doc. #1213 and Doc. # 1202 filed June 19, 2009. [8] The First Amendment provides as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. U.S. Const., Amend. I. [9] In NAACP v. Alabama, the state sought to enjoin activities of the National Association for the Advancement of Colored People ("NAACP") because it had not complied with state foreign corporation filing requirements, from which the NAACP claimed it was exempt. The trial court issued an ex parte restraining order and ordered the NAACP to produce records which included members' names and addresses. The NAACP claimed that the order to produce documents violated the First Amendment and did not comply with it. The trial court found the NAACP in contempt and imposed a $100,000 fine. The Alabama Supreme Court refused to review the contempt judgement, and the United States Supreme Court granted certiorari review. In NAACP v. Alabama, with regard to associational rights, the Supreme Court stated as follows: Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. 357 U.S. at 460, 78 S. Ct. 1163 (citations omitted). [10] Grandbouche appears to be the only case in which the Tenth Circuit has addressed the First Amendment associational privilege with regard to discovery disputes between private litigants. In Grandbouche, the National Commodity and Barter Association ("NCBA"), an organization which espoused dissident views on the federal tax system, claimed that various agents of the Internal Revenue Service had illegally seized information from the NCBA to harass and intimidate its members and deter membership. In discovery, defendants sought NCBA membership information to refute the claim that their actions deterred membership. Plaintiffs objected based on First Amendment associational rights. The district court found that the First Amendment did not apply to discovery orders in private litigation and ordered plaintiffs to produce the information. 825 F.2d at 1466. Plaintiffs did not comply, and the district court dismissed the action as a sanction under Rule 37(b)(2)(C), Fed.R.Civ.P. On appeal, the Tenth Circuit found that an order compelling discovery can invoke First Amendment scrutiny. Id. Specifically, it found that when the subject of a discovery order claims a First Amendment privilege not to disclose certain information, the court must conduct a balancing test before it can order disclosure. Id. The Tenth Circuit did not discuss the need to make a prima facie showing of chill on associational rights, however, or who bears the burden in this regard. Although the Tenth Circuit has not articulated a burden-shifting analysis with regard to private discovery disputes regarding associational privilege, it has applied a burden-shifting analysis to claims of associational privilege with respect to grand jury subpoenas. See, e.g., NCBA v. United States, 951 F.2d 1172 (10th Cir.1991). In NCBA, in connection with a money laundering investigation, a grand jury subpoenaed bank documents regarding the NCBA. The NCBA moved to quash, arguing that the subpoenas infringed First Amendment associational rights. The district court found that the NCBA had made a prima facie showing of chill on associational rights and ordered an evidentiary hearing. See id. at 1174. After the hearing, the district court found that the government had shown a compelling need for the records and could not obtain the information by less intrusive means. Id. The district court therefore declined to quash the subpoenas. On appeal, the Tenth Circuit affirmed. It found that when a party makes a prima facie showing of First Amendment infringement, the government must show a compelling need for the information and that a substantial relationship exists between the records sought and that compelling need. See id. at 1174. The Tenth Circuit agreed with the district court that the government had demonstrated a compelling need for the information. See id. Although the Tenth Circuit has not applied a burden-shifting analysis with regard to private discovery disputes regarding associational privilege, the district courts which have addressed the issue in this circuit apparently agree that it applies. See Wyoming, 239 F.Supp.2d at 1236-37; Heartland Surgical Specialty Hosp. LLC v. Midwest Div., Inc., No. 05-2164-MLW-DWB, 2007 WL 852521, at 3 (D.Kan. March 16, 2007); McCormick, 2005 WL 1606595, at 7. [11] In Grandbouche, the Tenth Circuit found that before ordering disclosure of information which the First Amendment protects, the court must balance the following factors to determine whether the need for information outweighs the First Amendment privilege: (1) relevance; (2) need; (3) availability from other sources; and (4) nature of the information sought. Id. at 1466. The Tenth Circuit also stated that the court must determine the validity of the claimed First Amendment privilege and consider whether the opposing party has put the information in issue. See id. at 1466-67. Here, the Court considers the validity of the privilege in determining whether defendants have made a prima facie showing that the privilege applies. [12] Plaintiffs also assert that Judge O'Hara incorrectly found that the Noerr-Pennington doctrine precludes disclosure of internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel. See Plaintiffs' Motion For Review (Doc. # 1195) at 11-12. Judge O'Hara found that Noerr-Pennington does not directly bar discovery and that even without considering it, plaintiffs had not shown a compelling need for internal trade association communications with regard to legislative and lobbying on ATC for retail motor fuel. See Doc. # 1080 at 19 n. 4. [13] Judge O'Hara stated that "[w]hile some courts have espoused a general recognition that the `past political activities' of associations and their members are core associational activities entitled to a presumption of privilege, case law provides little guidance on the type of information that might fit under the past-political-activity umbrella." Doc. # 1080 at 9 (citing Wyoming, 239 F.Supp.2d at 1237; Int'l Action Ctr. v. United States, 207 F.R.D. 1, 3 (D.D.C.2002)). He noted that even if such information is not presumed privileged, defendants could still satisfy their prima facie burden "by demonstrating that disclosure of the information would chill the associations' First Amendment rights." Id. [14] Specifically, Judge O'Hara stated as follows: The court finds the reasoning in [Heartland] applies equally well in this case. As in [Heartland], the trade associations' internal communications and evaluations about advocacy of their members' positions on contested political issues, as well as their actual lobbying on such issues, "would appear to be a type of political or economic association that would . . . be protected by the First Amendment privilege." It is undisputed that a primary purpose of each of the trade association is to advocate on behalf of its collective members. . . . If the trade associations were forced to disclose confidential communications exchanged in conjunction with pursuing their right to advocate, there is a reasonable probability that such disclosure would interfere with the core of the associations' activities by inducing members to withdraw from the associations, or dissuading others from joining the associations, because of fear that exposure of their beliefs would subject them to economic reprisal or other public hostility. The court is not persuaded, as suggested by plaintiffs, that this likely harm could be eliminated by protecting the identities of the associations' members. Current or potential members of an association could reasonably fear that exposure of their beliefs expressed in private legislative strategy sessions or lobbying could subject them, as members of the motor fuel industry as a whole, to economic reprisal or public hostility. Moreover, it is undisputed the trade associationsand defendants as membersare engaged in current congressional debates over temperature-adjusted retail sale of motor fuel. Disclosure of the associations' evaluations of possible lobbying and legislative strategy certainly could be used by plaintiffs to gain an unfair advantage over defendants in the political arena. The court therefore concludes that defendants have met their burden of showing the production of trade association strategic lobbying documents and evaluations of legislation would have a chilling effect. Id. at 10-12 (footnotes and citations omitted). [15] In Heartland, an antitrust case, plaintiff sought to compel discovery regarding lobbying and legislative efforts by the Kansas Hospital Association ("KHA"), non-party hospital trade association. KHA objected based on First Amendment association privilege. Plaintiff argued that KHA had not made a prima facie showing that producing the information would have a chilling effect on its members. See Heartland, 2007 WL 852521, at 4. Magistrate Judge Donald W. Bostwick disagreed. He found that producing KHA's internal legislative strategy would appear to interfere with KHA's internal organization and lobbying activities and would therefore have a chilling effect on the organization and its members. See id. at 4. Judge Bostwick concluded that information regarding KHA's legislative and lobbying strategy is "precisely the type of internal associational activity and past political activity that the First Amendment was designed to protect." Id. at 5. He concluded that KHA had met its prima facie burden to show that the privilege applied and that the balance of factors weighed against disclosure. See Heartland, 2007 WL 852521, at 5-7. Judge Bostwick did not explicitly state that he was applying a presumptive prima facie privilege. Rather, based on his conclusion that the First Amendment was intended to protect against disclosure of internal associational activity and past political activity, he appears to have implicitly assumed that KHA had made a prima facie showing of associational privilege. In doing so, he followed Wyoming v. USDA, 239 F. Supp. 2d 1219 (D.Wyo.2002), where the district court noted that federal courts have consistently found that disclosure of internal associational activitiesi.e. membership lists, volunteer lists, financial contributor information and past political activities of memberssatisfy a prima facie showing of First Amendment privilege because disclosure of these activities chills freedom of association. See id. at 1237. In Wyoming, the court addressed discovery of communications between organizations, however, not internal associational activity, and the district court did not presume a prima facie privilege. See id. at 1239-40. [16] Plaintiffs in Perry did not seek membership lists. See id. at 578-79. [17] Specifically, the Ninth Circuit stated as follows: [D]isclosure of internal campaign information can have a deterrent effect on the free flow of information within campaigns. Implicit in the right to associate with others to advance one's shared political beliefs is the right to exchange ideas and formulate strategy and messages, and to do so in private. Compelling disclosure of internal campaign communications can chill the exercise of these rights. Id. at 1162-63 (footnote omitted). [18] The Ninth Circuit quoted this declaration as an example of the evidence which the proponents produced. The opinion does not reveal the substance of the other declarations. The Ninth Circuit noted that although the evidence lacked particularity, it was consistent with the "self-evident conclusion" that plaintiffs' discovery requests implicated First Amendment interests. Id. at 1163. [19] In determining whether plaintiffs had demonstrated sufficient need for the information, the Ninth Circuit found as follows: Plaintiffs can obtain much of the information they seek from other sources, without intruding on protected activities. Proponents have already agreed to produce all communications actually disseminated to voters, including "communications targeted to discrete voter groups." Whether campaign messages were designed to appeal to voters' animosity toward gays and lesbians is a question that appears to be susceptible to expert testimony, without intruding into private aspects of the campaign. Whether Proposition 8 bears a rational relationship to a legitimate state interest is primarily an objective inquiry. Id. at 1164-65 (footnote omitted). [20] Defendants'"evidence" was as follows: [C]an there be any doubt that while this litigation is pending, a company will consider membership in a trade association but ultimately decide against membership out of fear that its confidential activities and strategies will be disclosed; and as a result, that its ability to advocate its positions on public policies will be made less effective in the political arena. Many companies who are not involved in this litigation likely would elect not to join such entities or would withdraw from membership entirely, notwithstanding their belief in the mission of the entities or their desire to make their speech and point of view more effective. * * * Most alarming is the fact that at the very same time that the issue of temperature compensation is being deliberated and studied extensively in the federal and state political branches by government officials charged with developing weights-and-measures standards, plaintiffs attempt to use the coercive power of this federal court to compel disclosure regarding defendants' protected lobbying and petitioning activities with respect to the same issue. Compelled disclosure of this information could have adverse effects on the ability of trade associations and their members "to collectively advocate" positions on temperature compensation by "inducing members to withdraw from the organization or dissuading others from joining the organization because fear of exposure of their beliefs will lead to . . . harassment [or] [economic] reprisal," [Heartland], 2007 WL 852521, at 3, or to "interfere[ence] with the internal organization or affairs of the group." Id. at 4. * * * [C]an there be any doubt that while this litigation is pending, a company will consider and ultimately decide against membership out of fear that its activities will be disclosed, that it will be attacked in the public by consumer groups, that it will be harassed for documents by plaintiffs, or that it will face economic reprisal in the form of being compelled to undertake an expensive and laborious effort to produce information for plaintiffs in this litigation? Doc. #783 at 15; #697 at 15-16. These propositions, however, are not so self-evident as to relieve defendants of their burden to prove an objectively reasonable chill on the exercise of associational rights. One could just as plausibly argue that faced with litigation which challenges long-standing industrywide practices, opponents would stampede to man the barricades and trade associations would enjoy a surge of membership and financial support. For this reason, skillful rhetoric is not a substitute for evidence which demonstrates that disclosure will deter membership due to fears of threats, harassment or reprisal from either government officials or private parties which may affect members' physical well-being, political activities or economic interests. See Sherwin-Williams Co. v. Spitzer, No. 1:04CV185(DNH/RFT), 2005 WL 2128938, at 5 (N.D.N.Y. Aug. 24, 2005) (speculation of membership withdrawal insufficient for prima facie showing). [21] Even if plaintiffs gained an unfair political advantage, it is not clear how that advantage would chill the exercise of defendants' associational rights or those of others. [22] Judge O'Hara did not specifically discuss each factor individually. He stated as follows: The court finds that plaintiffs have not met their burden of overcoming the First Amendment privilege attached to the associations' lobbying and legislative documents. Although the information might meet the minimal relevancy standards of Fed.R.Civ.P. 26(b)(1), it does not meet the heightened "certain relevance" and need standards applicable in this First Amendment context. As noted above, there is no dispute in this case that defendants joined together in trade associations to advocate against ATC. If plaintiffs wish to challenge defendants' contentions about their knowledge of ATC issues at the retail level, plaintiffs can directly inquire through interrogatories. Likewise, plaintiffs can obtain information about whether defendants helped create the very circumstances under which defendants claim it was impractical, impossible, or illegal to use ATC at retail by examining the readily available public positions taken by the trade associations. The nature of the information soughtshowing the internal strategic processing done by associations as they prepare to advocate on behalf of their collective membersis highly privileged because it involves a core associational activity protected by the First Amendment. Plaintiffs have not shown that they have a particular need in obtaining this information such that the First Amendment protection accorded it should be overborne. Doc. # 1080 at 18-19. [23] The Noerr-Pennington doctrine protects from antitrust liability concerted efforts to restrain or monopolize trade by petitioning the government or influencing public officials. See Noerr, 365 U.S. at 136, 81 S. Ct. 523; Pennington, 381 U.S. at 670, 85 S. Ct. 1585. [24] Defendants' argument also overlooks whether trade association efforts to lobby the National Conference on Weights and Measures ("NCWM") constitute quasi-legislative activity. The parties hotly contest this issue. Plaintiffs contend that because the NCWM is not a governmental entity, the First Amendment does not protect lobbying efforts directed toward it. Defendants disagree and assert that they constitute valid efforts to influence governmental action. See Doc. # 1215 at 14-17. To determine whether such conduct constitutes a valid effort to influence governmental action, the Court must examine the context and nature of the activity to determine whether it constitutes political or commercial activity. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 501-05, 108 S. Ct. 1931, 100 L. Ed. 2d 497 (1988). Judge O'Hara did not address this issue. [25] The Tenth Circuit has not explained the fourth factor. Other courts have looked to whether the nature of the information is privileged and central to First Amendment values. See Point Rushton, 2009 WL 5125395, at 5; Christ Covenant Church, 2008 WL 2686860, at *9. To the extent the fourth factor focuses on whether the information sought implicates First Amendment rights, it appears redundant to the requirement that defendants make a prima facie showing of chill on associational rights. [26] As noted, to demonstrate a prima facie case, defendants must show an objectively reasonable probability that compelled disclosure will chill First Amendment rights, i.e. that it will deter membership in the trade associations because of fear that exposure of members' beliefs will result in threats, harassment or reprisal which may affect physical well-being, political activities or economic interests. See NAACP, 357 U.S. at 462-63, 78 S. Ct. 1163; Perry, 591 F.3d at 1160; Wyoming, 239 F.Supp.2d at 1236-37; GlaxoSmithKline, 732 N.W.2d at 270. [27] Defendants argue that Judge O'Hara's ruling is inconsistent because the same First Amendment rationale applies to internal legislative and lobbying activity by trade associations and lobbying and legislative communication between trade associations. See Doc. #1215 at 31-33. Defendants may have a point, but the inconsistency arises from a premise which the Court concludes is contrary to law: Judge O'Hara's finding that the First Amendment protects against disclosure of internal trade association legislative and lobbying activities. By reversing that finding, the Court cures the inconsistency. [28] In finding that defendants had shown a prima facie privilege, Judge O'Hara stated as follows: Defendants also assert a privilege over documents shared among multiple trade associations.. . . The court wishes to make clear that defendants have met their prima facie burden only with respect to the associations' internal evaluations of lobbying and legislation, strategic planning related to advocacy of their members' positions, and actual lobbying on behalf of members. Any other communications to, from, or within trade associations are not deemed protected under the First Amendment associational privilege. Doc. # 1080 at 12-13. In a footnote, with regard to documents shared among multiple trade associations, Judge O'Hara stated as follows: When information is shared among trade associations, its highly confidential nature is tarnished. The further information gets from the heart of an association the less it is connected to the association's core associational activities. Moreover, the association's willingness to share the information diminishes the possibility that the information is of the type that would put the association at risk of losing members if the information were disclosed. Recognizing such shared information as protected would expand too far the privilege designed to protect the rights of individuals to associate. Id. at 12-13 n. 27. [1] The motion to reconsider states that it is filed on behalf of "certain" defendants (which it does not identify) and the following trade associations: NATSO, Inc., California Independent Oil Marketers Association, Petroleum Marketers Association of America, Inc. and Petroleum Marketers and Convenience Store Association of Kansas, Inc. See Doc. # 1590. Attorneys for the following defendants appear on the signature page: Circle K Stores, Inc., Kum & Go, LC, Murphy Oil USA, Inc., Pilot Travel Centers, LLC, Marathon Petroleum Company, LLC, Speedway Super America LLC, Sheetz, Inc., Mac's Convenience Stores, LLC, RaceTrac Petroleum, Inc., QuikTrip Corporation, The Pantry, Inc. and Wawa, Inc. See id. at 29. The same defendants and trade associations filed the application for emergency stay. See Doc. # 1592. The Court refers collectively to these defendants and trade associations as "defendants." [2] The following trade associations joined in defendants' request for review: NATSO, Inc., Petroleum Marketers Association of America, Inc., Association for Convenience and Petroleum Retailing, Society of Independent Gasoline Marketers of America and California Independent Oil Marketers Association. See Doc. #1216 filed June 26, 2009; Doc. # 1233 filed July 16, 2009; Doc. # 1237 filed July 17, 2009; Doc. # 1252 filed July 30, 2009. [3] In their motion to review the magistrate rulings, defendants argued only that the First Amendment protected intergroup associational documents. See Defendants' Memorandum In Support Of Motion To Review Magistrate Orders (Doc. # 1215) at 27-33. In a footnote, defendants compared the First Amendment privilege to the common interest privilege as follows: Although at a higher level due to the First Amendment constitutional implications, the protection from disclosure of confidential communications afforded groups with common political stances under the First Amendment privilege is comparable to the joint-defense/common-interest privilege in multi-defendant litigation, which protects confidential communications shared among otherwise distinct parties and third parties (i.e., "actual or potential co-defendants") when the information is exchanged "`for the limited purpose of assisting in their common cause.'" Burton v. R.J. Reynolds Tobacco Co., 167 F.R.D. 134, 139 (D.Kan. 1996) (citation omitted). That privilege "encompasses shared communications to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings." Id. See Defendants' Memorandum In Support Of Motion To Review Magistrate Orders (Doc. # 1215) at 32 n. 88. Defendants did not assert that Judge O'Hara had made an erroneous ruling with regard to the common interest privilege.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615178/	668 P.2d 282 (1983) The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, In and For the COUNTY OF CLARK, the Honorable Joseph S. Pavlikowski, District Judge, Respondent. No. 14668. Supreme Court of Nevada. August 31, 1983. 283 Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Las Vegas, for petitioner. Keith E. Galliher, Las Vegas, for respondent. OPINION PER CURIAM: Theresa Fagan, real party in interest, was originally charged with two violations of Clark County, Nev., Code § 12.08.020 (1976) which provides that: It is unlawful for any person to accost, solicit, or invite another in any public place or in or from any building or vehicle by word, gesture or any other means to commit, offer, agree or afford an opportunity to commit an act of prostitution. The justice's court, however, upon Fagan's motion, dismissed the charges against her. In so doing, the court concluded that it would violate Fagan's due process right to privacy under Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), if she were to be prosecuted under the above ordinance, since the alleged acts of solicitation occurred in a private hotel room. On appeal, the district court affirmed the justice's court's order, and the state then brought the present petition for a writ of certiorari, contending that the district court erred in affirming the dismissal.[1] We agree. It is generally accepted that while the Due Process Clause does protect many aspects of intimate sexual relations privately engaged in between consenting adults, a state may nevertheless constitutionally regulate and prohibit commercialized sexual activities, such as prostitution and solicitation. See Lutz v. United States, 434 A.2d 442 (D.C. 1981); State v. Henderson, 269 N.W.2d 404 (Iowa 1978). The right to privacy simply does not extend to commercial sexual activities, even when such activities take place in a private area such as a private hotel room. See Lutz v. United States, supra; Com. v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143 (1981). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-66, 93 S. Ct. 2628, 2639-2640, 37 L. Ed. 2d 446 (1973) (right to privacy only encompasses and protects "personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing," and not such things as commercialized obscenity). We have considered Fagan's contentions in opposition to the petition, and find them to be without merit. Accordingly, we hereby 284 grant the writ of certiorari. We vacate the district court's order affirming the decision of the justice's court which dismissed the charges against Fagan. The case is remanded to the justice's court for trial on the merits. NOTES [1] Contrary to Fagan's argument, we conclude that a writ of certiorari will properly issue to review the lower courts' decisions, since by finding that the ordinance could not constitutionally be applied to Fagan's conduct, the lower courts did in fact "pass upon the constitutionality" of the ordinance as required by NRS 34.020(3).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983612/	Abatement Order filed July 3, 2014 In The Fourteenth Court of Appeals ____________ NO. 14-14-00281-CR ____________ MACEDONIO PEREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 69127 ABATEMENT ORDER The clerk’s record and reporter’s record have not been filed in this appeal. The district clerk and court reporter have informed the court that appellant has not paid or made arrangements to pay the fees to prepare the records. See Tex. R. App. P. 37.3(c)(2)(A). This court is unaware whether appellant is entitled to proceed without the payment of costs. See Tex. R. App. P. 37.3(c)(2)(B). Accordingly, we enter the following order. See Tex. R. App. P. 35.3(c). We ORDER the judge of the 300th District Court to immediately conduct a hearing at which appellant, appellant’s counsel, if any, and counsel for the State shall participate, either in person or by video teleconference, to determine whether appellant desires to prosecute his appeal, and, if so, whether appellant is indigent and, thus entitled to a free record and appointed counsel on appeal. The judge may appoint appellate counsel for appellant if necessary. The judge shall see that a record of the hearing is made, shall make findings of fact and conclusions of law, and shall order the trial clerk to forward a record of the hearing and a supplemental clerk’s record containing the findings and conclusions. The transcribed record of the hearing, the court’s findings and conclusions, and a videotape or compact disc, if any, containing a recording of the video teleconference shall be filed with the clerk of this court on or before August 4, 2014. The appeal is abated, treated as a closed case, and removed from this court’s active docket. The appeal will be reinstated on this court’s active docket when the trial court’s findings and recommendations are filed in this court. The court will also consider an appropriate motion to reinstate the appeal filed by either party, or the court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this court’s order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date. It is so ORDERED. PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2897822/	NO. 07-08-0042-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 23, 2008 ______________________________ In re JERRY DALE JENKINS, Relator _________________________________ Memorandum Opinion on Original Proceeding for Writ of Mandamus _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before the court is a document filed by Jerry Dale Jenkins entitled “Request for Appellate Records[,] Clerk’s File Docket Sheet, Clerk’s Court Docket Sheet, and the Minutes Read and Signed, and the Order of Cases Furnished Without Charge.” Therein he contends that the trial court denied his request for a return of his property and asks that we “grant [his] motion . . . and . . . enter an order directing the County . . . and District Attorney and Sheriff to forthwith return said Property to Jerry Dale Jenkins.” Furthermore, he requests that we “order the Hall County District Clerk . . . [to] provide true and correct copies of every specific documents [sic] requested and legal documents pertaining to cause numbers: 3247 and 3248. . . free of charge, . . . .” We deny the requests for the following reasons. First, t o the extent that Jenkins is attempting to mandamus the district clerk in order to obtain a free record, we lack authority to do so. Courts of appeals may only issue writs of mandamus 1) against a district or county court judge within the court’s district or a district court judge who is acting as a magistrate at a court of inquiry under Chapter 52 of the Texas Code of Criminal Procedure within the court’s district and 2) to preserve its jurisdiction. Tex. Gov’t Code Ann. §22.221 (Vernon Supp. 1999). Since it has not been alleged that the district clerk is acting as a judge subject to our mandamus powers or that the writ is necessary to preserve our jurisdiction over a pending appeal, we have no authority to grant the relief requested. The same would be true of the relief sought against the county and district attorneys and the sheriff. Second, to the extent that Jenkins is also asking for mandamus against the judge to direct the return of his property, the rules of procedure obligate one seeking such relief to accompany his petition with an appendix. Tex. R. App. P . 52.3(j). The latter must include, among other things, a certified or sworn copy of the document showing the matter complained of. In this case, the document showing the matter complained of would be the motion purportedly requesting his property. Yet, it was not appended to his document. We also note other instances of his failure to comply with the applicable rules of procedure. For example , his application lacks 1) a section identifying the parties and counsel, 2) a table of contents, 3) an index of authorities, 4) a statement of the case, and 5) a statement of the issues presented. Those are required to be included in a petition seeking extraordinary relief. Tex. R. App. P . 52.3. And, that Jenkins may be acting pro se does not relieve him of complying with those requirements. Holt v. F.F. Enters. , 990 S.W.2d 756, 759 (Tex. App. – Amarillo 1998, pet. denied). Third, to the extent that Jenkins asks us to grant the motions to return his property and to provide a free appellate record, we cannot do that. Our authority does not permit us to adjudicate a matter pending in a trial court without the trial court first acting upon it. See O’Donniley v. Golden, 860 S.W.2d 267, 269 (Tex. App.–Tyler 1993, orig. proceeding) (when a trial court has yet to act, authority entitles us only to order the trial court to act; it does not allow us to tell the trial court what decision to make). Accordingly, Jenkins’ “Request for Appellate Records, Clerk’s File Docket Sheet, Clerk’s Court Docket Sheet, and the Minutes Read and Signed, and the Order of Cases Furnished without Charge” motion/document is denied. Brian Quinn Chief Justice	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1646163/	480 So.2d 1095 (1985) Gary Allen NASH v. DAMSON OIL CORPORATION. No. 55067. Supreme Court of Mississippi. November 6, 1985. Rehearing Denied January 15, 1986. 1096 Stanford Young, David Slaughter, Waynesboro, for appellant. Thomas W. Tyner, Joseph W. Hurston, H. Alex Brinkley, Aultman, Tyner, McNeese, Weathers & Gunn, Hattiesburg, for appellee. Before ROY NOBLE LEE, P.J., and ROBERTSON and ANDERSON, JJ. ROBERTSON, Justice, for the Court: This case arises out of the efforts of an operating lessee under an oil and gas lease to fit itself within the suit we tailored in Doubleday v. Boyd Construction Company, 418 So.2d 823 (Miss. 1982) and thus avoid common law tort liability to an injured worker employed by a service and repair contractor. Keeping the necessary bodily contortions disguised, the lessee convinced the trial court of the fit and obtained summary judgment in its favor. As tailors of the Doubleday suit, we recognize that it was made for another occupying a different station in life. We reverse and remand. II. A. Damson Oil Corporation, a Delaware corporation, is qualified to do and is doing business in the State of Mississippi. At all pertinent times Damson was the lessee of the producing unit in the Sabine No. 4-A oil well located in the northeast quarter of the southeast quarter of Section 21 and the northwest quarter of the southwest quarter of Section 22, Township 7 North, Range 7 West, Wayne County, Mississippi. On March 16, 1978, Damson Oil entered into a Master Service Contract with Trigger Contractors, Inc., an independent contractor doing business in Wayne County, Mississippi. The contract called for Trigger's performance of "certain work with respect to oil or gas wells, as well as any other services" which Damson Oil might require from time to time or until the contract be cancelled. Of relevance to the case at bar, the contract provided: MASTER SERVICE CONTRACT * * * * * III. It is expressly understood and agreed that all work to be performed by Contractor [Trigger] for Company [Damson Oil] shall be and is an independent contractor, Company being interested in the results obtained; Company shall have no direction or control of the Contractor or its employees and agents except in the results to be obtained. The work contemplated herein shall meet the approval of Company, and be subject to the general right of inspection for Company to secure the satisfactory completion thereof. The actual performance and superintendence of all work hereunder shall be by Contractor, but company or its representatives shall have unlimited access to the operations to determine whether such work is being performed by contractor in accordance with all the provisions of this Contract and the work order, or other written contracts if any. Contractor shall be entirely responsible for its own acts and the acts of its employees and agents while engaged in the work to be 1097 performed for Company, and in no instance shall Contractor or its employees or agents act as the agent or employee of Company. * * * * * XI. At any and all times during the term of this Agreement, Contractor agrees to carry insurance of the types and in the minimum amounts as provided for in Articles 1 through 7 of the Certificate of Insurance, [including workers' compensation insurance], a copy of which is attached hereto and made a part hereof. Contractor shall, upon request, furnish Company with certified copies of all policies. Prior to commencement of work hereunder, Contractor shall furnish Company with certificates showing its current insurance coverage and shall update them as required to keep them current so long as this Agreement is in effect. XII. All such policies shall be carried in a company or companies acceptable to Company, and shall be maintained in full force and effect during the term of this Agreement, and shall not be cancelled, altered or amended without ten (10) days prior written notice having been furnished to Company. All insurance policies of Contractor, whether specifically mentioned above or not, shall be endorsed to waive subrogation against Company, and against all parties endorsed to waive subrogation against Company, and against all parties for whom Company may be working with the exception of state statutory workmen's compensation insurance, but including all insurance carried by Contractor protecting against loss of, or damage to, its property and equipment employed in the performance of any work order issued hereunder. XIII. Company shall be named as an additional insured under all policies in force and effect pursuant to the listings and requirements of the Certificates of Insurance attached hereto. XIV. In order to eliminate controversies between Contractor, and Subcontractors and Company and its joint owners, if any, and their respective insurers, Contractor agrees to indemnify and hold harmless Company and any or all "Partners" of Company who wholly or partially bear the cost of operations hereunder, ... . [Emphasis added] Having reference to Paragraph XI above, one of the types of coverage provided for in Articles 1 through 7 of the certificate of insurance was workers' compensation insurance. Pursuant thereto, Trigger had procured from the Travelers Insurance Company, Policy No. UB-976E700-79 to afford workers' compensation insurance coverage to its employees. This policy was in effect prior to and subsequent to the date of the accident in question. On or about March 3, 1980, pursuant to the provisions of the Master Service Contract, Trigger was installing a flow line and hook up to Sabine No. 4-A oil well. The installation of this flow line involves the placing of a check valve along the line to prevent the back flow of oil and/or water into the well. Gary Allen Nash, Plaintiff below and Appellant here, alleges that W.L. Trigg, an employee of Damson Oil instructed Wayne Cooley on how to install the check valve. These instructions, we are told, resulted in the valve being placed backwards. Trigg then advised Nash to tighten a stuffing box seal on the pumping unit where the valve had been installed. As Nash was tightening the stuffing box, the valve blew out and hit him in the right eye causing severe injury. B. Gary Allen Nash has been afforded compensation by his employer Trigger Contractors, Inc., and its carrier, Travelers Insurance Company. Thirty-three months later, 1098 however, on December 20, 1982, Nash commenced this action by filing his complaint in the Circuit Court of Wayne County, Mississippi. Nash named Damson Oil Corporation, Appellee here, as sole Defendant below and asserted that Damson was "any other party" within the compensation act, Miss. Code Ann. § 71-3-71 (1972) against whom his common law action for personal injuries was preserved. Nash charged negligence, as described above. Damson, of course, responded with a denial and the assertion of various defenses. On April 20, 1983, Damson filed a motion to dismiss or, in the alternative, for summary judgment. See Rule 12(b)(6) and 56, Miss.R.Civ.P. As grounds therefor, Damson asserted that it was an employer within the meaning and contemplation of the Mississippi Workers' Compensation Act as construed in Doubleday v. Boyd Construction Co., 418 So.2d 823 (Miss. 1982), and that Nash's exclusive remedy was compensation, Miss. Code Ann. § 71-3-9 (1972), payment of which Trigger had already secured. Being of the opinion that Doubleday governed and that the state of the record was such that the motion should be treated as one for summary judgment, the Circuit Court on July 13, 1983, entered judgment summarily in favor of Damson Oil Corporation and against Gary Allen Nash finally dismissing the complaint. From that judgment, Nash appeals. III. This appeal presents a question of statutory construction. If Damson Oil Corporation is a "contractor" who is an "employer" within the Mississippi Workers' Compensation Act, Miss. Code Ann. §§ 71-3-7 and -9 (1972), Damson wins. On the other hand, if Damson is not a "contractor" and thus not a statutory employer, Nash is entitled to proceed further in the trial court. We approach this question realizing that we do not write on a clean slate. Damson's case is predicated upon the exclusiveness of liability section of the Act, Miss. Code Ann. § 71-3-9 (1972) which reads: The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee... . Nash, however, was not directly employed by Damson. Nash drew his paycheck from Trigger Construction, Inc. Trigger has provided compensation insurance and secured payment of benefits to Nash as required by the Act. Damson attempts to piggyback itself onto Trigger's status as an employer via Doubleday and particularly the following language from the Act, Miss. Code Ann. § 71-3-7 (Supp. 1984): In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment. [Emphasis supplied] Construing this language, Doubleday held that, when a highway construction project general contractor who subcontracted out a portion of the construction project and required the subcontractor to secure compensation benefits to its employees, the contractor became a statutory employer entitled to the protection of the exclusiveness of liability provisions of Section 71-3-9. In Doubleday the general contractor, Boyd Construction Co., had no ownership interest in the premises. Moreover, the contractor in Doubleday occupied the position persons of common understanding would label general contractor or prime contractor. Thus, Boyd was the kind of "contractor" contemplated by Section 71-3-7. The case at bar turns not on whether Damson required Trigger to secure compensation for Nash but whether Damson was the kind of "contractor" contemplated by the statute. The thrust of the statutory rule at issue is the obligation imposed upon a general contractor to secure payment of compensation to employees of his subcontractors. Miss. Code Ann. § 71-3-7 (Supp. 1984). The statute imposes a coverage obligation on one who hires an irresponsible intermediary (one who fails to secure compensation insurance) to perform a regular 1099 and recurring part of the person's business. See Boyd v. Crosby Lumber and Manufacturing Co., 250 Miss. 433, 166 So.2d 106 (1964). In Mosley v. Jones, 224 Miss. 725, 80 So.2d 819 (1955) Jones brought a personal injury suit against B & M Construction Co. [Mosley] charging negligence in the construction of a scaffold which fell, injuring Jones. Chaney, a subcontractor of Mosley, had hired Jones as a plasterer in furtherance of his subcontract. Chaney had not secured workers' compensation insurance for his employees. Because Chaney [subcontractor] was an irresponsible intermediary, B & M [contractor] was liable to Jones [employee of subcontractor] for compensation by virtue of Section 71-3-7. This Court held that B & M was the "statutory employer" of Jones and that Jones' exclusive remedy was workers' compensation benefits. In Mills v. Barrett, 213 Miss. 171, 56 So.2d 485 (1952), the contractor we held liable for payment of workers' compensation benefits to the injured employee of a subcontractor was also obligated under the Act to provide compensation for the benefit of the injured employee of a subcontractor. We have already explained that Doubleday proceeds upon the same premise. There is another side to the coin. Where the "contractor" invoking the protections of the exclusiveness of liability statute is not itself liable for compensation to the injured worker, illogic, if not absurdity, would attend our sustaining that contractor's exclusivity defense. The fact that such a contractor may require one with whom he contracts to carry compensation insurance for the benefit of the worker in question is of little consequence where the subcontractor in fact secures such insurance. What makes the suit too tight a fit is that on such facts nothing in law obligates such a contractor to secure compensation insurance. The point becomes clear in the context of the familiar and oft noted trade-off represented by the Workers' Compensation Act, Miss. Code Ann. § 71-3-1, et seq. (Supp. 1984). The worker has given up his right to sue his employer in tort for substantial damages in exchange for a certain, albeit more modest, recovery. The employer, on the other hand, has accepted an obligation to afford compensation without reference to fault and has also waived various traditional common law defenses in exchange for protection from a sizable judgment in a personal injury damage suit. See Dunn, Mississippi Workmen's Compensation, § 2 (3d ed. 1982). Applied to the case at bar, one of the benefits secured by employers in this trade-off is protection from suit under the exclusiveness of liability section. Miss. Code Ann. § 71-3-9. Here, Trigger has secured compensation for Nash. Notwithstanding, Damson, one who has assumed none of the burdens or obligations of the Act, is seeking to secure this benefit of the exclusivity defense. The symmetry of the Act and its attendant trade-off requires on either side that the benefits of the trade are available only to those who are by law subject to the burdens and obligations of it. We reached a similar result in Falls v. Mississippi Power & Light Company, 477 So.2d 254, 255 (Miss. 1985). In Falls, the plaintiff brought a wrongful death suit against Mississippi Power & Light Company charging negligence in the maintenance of high voltage power lines. MP & L was a permitee under a special use permit granted it by the National Park Service allowing MP & L to run its power lines across and along the Natchez Trace Parkway. The permit imposed certain provisions and conditions upon MP & L. Plaintiff's decedent was employed by Deviney Company and was trimming and cutting the tops from pine trees under and around MP & L's power lines when the accident occurred. MP & L had required that Deviney secure workers' compensation insurance for the protection of Deviney's employees. In Falls this Court distinguished Doubleday and held that MP & L was not a statutory employer of plaintiff's decedent. The Court held that the special use 1100 permit granted MP & L by the National Park Service did not constitute ... [MP & L] as a general or prime contractor for work to be done by Deviney Company along the right-of-way of ... [MP & L] pursuant to its contract with ... [MP & L]. 477 So.2d at 258. A sub silentio basis for the decision is that, on the facts of the case, nothing in Section 71-3-7 imposed upon MP & L the duty to secure or pay compensation to employees of Deviney Company. Because MP & L was not the sort of "contractor" contemplated by the statute, and because Deviney had secured compensation for the benefit of Falls' dependents, MP & L had no duties imposed by the Act and thus would not be allowed to enjoy any of the benefits of the Act. Neither MP & L in Falls, nor Damson here, may gain tort immunity by voluntarily electing to say it had compensation obligations which in fact and in law it did not have. Because of the operative language employed in Section 71-3-7, counsel seek to lead us into a linguistic bog surely attendant upon any effort to define with precision such terms as "contractor" and "subcontractor" and "independent contractor". Regretably, these terms have not been statutorily defined in a way that is helpful here. Damson correctly notes that every subcontractor is an independent contractor but an independent contractor may or may not be a subcontractor. Dunn, Mississippi Workmen's Compensation, § 10 (3d ed. 1982). The point, however, does not carry us far. Without question Damson is a contractor in a generic sense. Damson has a contractual relationship with the owners of the land imposing various duties and obligations upon each. Damson is also a contractor in the sense that it has a contract with Trigger imposing obligations and duties upon each. The operative point is that Damson's interest, use and activities with respect to the premises are wholly different in nature from those of one ordinarily considered a general or prime contractor the sort of contractor we believe contemplated by Doubleday, see Section 71-3-7. Damson's position with respect to the premises is similar to that of Mississippi Power & Light Company in Falls and unlike that of Boyd Construction Co. in Doubleday. Damson is an operator or even in a sense an owner pro hac vice, a lessee. On the other hand, Damson lies outside the common understanding of such terms as "prime contractor" or "general contractor". Therefore, Damson is not the sort of "contractor" within the meaning and contemplation of Section 71-3-7.[1] Damson in brief and in argument consistently reminds us that it required Trigger to secure compensation. The argument proves too much, for carried to its rational limits it would mean that any time A has a contractual relationship with B, A, by contract requiring B to secure compensation coverage for B's employees, would be entitled to the protections of the exclusiveness of liability provisions of the Act as a statutory employer, even though A be a grievous tortfeasor. Under Damson's theory, for example, a building lessee who is a business concern who contracts with a firm to recarpet the interior could escape third party liability for injuries caused by its own negligence merely by including in the recarpeting contract a requirement that the contractor procure compensation insurance and name the business concern as an additional insured with waiver of subrogation. The result is not changed if the business concern is obligated to the owner to recarpet the interior. The lessee is simply not a "contractor" within Section 71-3-7. We would not tolerate such a subterfuge for one minute and pause only slightly longer before rejecting that tendered by Damson. The judgment of the Circuit Court of Wayne County is reversed. The case is remanded to the docket of that Court whereupon proceedings may recommence 1101 as though Damson's motion for summary judgment had been overruled. REVERSED AND REMANDED. PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER, SULLIVAN and ANDERSON, JJ., concur. DAN M. LEE, J., concurs in result only. SULLIVAN and DAN M. LEE, JJ., specially concur. ROY NOBLE LEE, Presiding Justice, concurring: I concur with the majority opinion, but feel compelled to reiterate the meat of the decision in view of the fact that the special concurring opinion of Justice Sullivan is, in my view, misplaced. The meat in the coconut is the obligation which Mississippi Code Annotated § 71-3-7 (Supp. 1984) places upon the general/prime contractor to secure, or assure, workmen's compensation insurance coverage on the employees of a subcontractor. Whether the general contractor obtains the coverage, or requires the subcontractor to secure it, is immaterial. That obligation grants the general contractor immunity from a tort action by an employee of the subcontractor. On the other hand, if there is no obligation to secure the compensation coverage, as was true in Falls v. Miss. Power & Light Co., 477 So.2d 254 (Miss. 1985), the obtaining of such coverage, though laudible, does not grant the immunity. The special concurring opinion, page 1102, finds nothing in the statute which guides the determination of why Boyd Construction Company in Doubleday, was a "contractor" within § 71-3-7 and why Mississippi Power & Light Company and Damson Oil Corporation were not. The answer is simple. In Doubleday, the Mississippi State Highway Department let a general contract for highway construction to Boyd Construction Company, the general or prime contractor. Boyd sublet a part of the construction work to W.T. Ratliff, Inc., who became the subcontractor. Boyd required, in the subcontract with Ratliff, that Ratliff secure workmen's compensation coverage to be carried for the protection of the subcontractor's employees, which benefits were paid to Doubleday as a result of personal injuries sustained when struck by an automobile while working on the construction job. Thus, Boyd Construction Company was immune from a tort action by Doubleday, not because of the workmen's compensation coverage, but because the statute § 71-3-7 imposed the obligation on Boyd Construction Company to assure that compensation coverage was in effect on Ratliff's employees. Compare Doubleday with Falls v. Miss. Power & Light Co., and Nash v. Damson Oil Corporation. In Falls, Mississippi Power & Light Company was not a contractor in the sense that Boyd Construction Company was a general/prime contractor. Mississippi Power & Light was the company or owner. Damson Oil Corporation occupied the same position as company or owner. Mississippi Power & Light and Damson Oil Corporation were in the same status as the Mississippi State Highway Department in Doubleday. Neither Mississippi Power & Light Company nor Damson Oil Corporation sublet work to a subcontractor. Mississippi State Highway Department in Doubleday had no subcontractors. Therefore, Mississippi Power & Light Company and Damson Oil Corporation were not within, or covered by, § 71-3-7. That is the simple answer. I trust that this brief explanation helps dissolve the smoke and confusion generated by the special concurring opinion of my esteemed colleague, Justice Sullivan. PATTERSON, C.J., WALKER, P.J., and HAWKINS, J., join this opinion. SULLIVAN, Justice, specially concurring: I agree with the decision announced today that Gary Allen Nash is entitled to the 1102 opportunity to prove his common law tort claim against Damson Oil Corporation, notwithstanding the exclusiveness of liability provisions of the Mississippi Workers' Compensation Act. The Court's opinion, however, seems to be gently leading us into a linguistic bog whereunder some contractors are the kind of contractors within Section 71-3-7, and therefore entitled to tort immunity, while other contractors are not. The same may be said of our recent decision in Falls v. Mississippi Power & Light Company, 477 So.2d 254 (Miss. 1985). These two cases are admirable efforts to limit the scope of our decision in Doubleday v. Boyd Construction Company, 418 So.2d 823 (Miss. 1982). My concern is that I find nothing within the statute which reliably guides the determination of why Boyd Construction was a "contractor" within Section 71-3-7 and why Mississippi Power & Light and Damson Oil were not. The fount from which this linguistic confusion flows is the Doubleday case. In that case a highway construction project general contractor subcontracted out a portion of the project and required the subcontractor to secure workers' compensation insurance for its employees. The subcontractor secured such insurance, as a result of which Boyd Construction was relieved of any compensation it may have had to the subcontractor's employees. When one of the subcontractor's employees was injured and brought a tort action against Boyd, Doubleday held that Boyd was the kind of "contractor" contemplated by Section 71-3-7 and that it enjoyed tort immunity under Section 71-3-9. The fundamental error of the Court's opinion in Doubleday is its constant references to "legislative intent" in the enactment of Sections 71-3-7 and 71-3-9. To the best of my knowledge, this 1948 statute was enacted without any authoritative statement of legislative intent. There is no legislative declaration of purpose that would inform the construction of these provisions of the Act. There are no published committee reports, floor debates, or anything else. Under these circumstances, what the Court in Doubleday says about legislative intent can only be our best guess as to what the legislative intent should have been. In such circumstances, we are better advised to concentrate on what the legislature said and not our speculations as to what it intended. What the legislature has said here is, quoting from Section 71-3-7, In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment. (Emphasis supplied). In Doubleday, and in Falls, and in the case at bar, the subcontractor had in fact secured payment of compensation to its employees. In each case that compensation was secured via a policy of workers' compensation insurance wherein the subcontractor was the insured and the premium was paid by the subcontractor. Doubleday emphasizes and Damson Oil argues that some significance ought to attach to the fact that the contract between the contractor [Boyd, MP & L, Damson] and the subcontractor [Ratliff, Deviney, Trigger] required each subcontractor to purchase and obtain in effect workers' compensation insurance. What this notion overlooks is that in each of these cases the subcontractor was independently obligated to secure compensation insurance. Each of these subcontractors is an "employer" within Mississippi Code Annotated § 71-3-3(e) who would have been statutorily obligated to afford compensation under the Act if the contract were wholly silent. Leaving the contract aside, each of these subcontractors would have been guilty of a misdemeanor had it failed to secure compensation and would have been subject to punishment by fine or imprisonment or both. Miss. Code Ann. § 71-3-83 (1972). It is a complete fiction to suggest that the contractor in these cases has "secured" the payment of compensation to the injured employees of the subcontractors. In each of these cases, the compensation was secured by the subcontractor/employer. Under 1103 Section 71-3-7, the contractor need secure compensation only when the subcontractor has failed to do so. Since the subcontractors in these three cases did not default on their statutory obligations, the contractor's secondary obligation never matured. Therefore, the contractors were not "liable for" and did not "secure" the payment of compensation under Section 71-3-7. The fact that the employers acted above and beyond their statutory obligations by arranging for the subcontractor to provide compensation insurance (which the subcontractors were already statutorily obligated to do) is beside the point. Because the subcontractors met their Section 71-3-7 obligations, the contractors' duty was never triggered and the contractors therefore had no opportunity to default on or to satisfy their statutory obligations. Despite these considerations, Doubleday concluded that the contractor there Boyd Construction was entitled to tort immunity under Section 71-3-9. Falls and today's case give lip service to this idea, only each goes on to say that the contractors there Mississippi Power & Light and Damson are not the kind of contractors contemplated by Doubleday, whatever all of that means. The sort of contractors as are contemplated by Doubleday are cast in the role of the relief pitcher who never gets into the game. He need do nothing. As long as the starting pitcher performs, the relief pitcher receives equal benefits. A contractor is certainly not an "employer" of the subcontractor's employees for all purposes and at all times under our Workers' Compensation Act. Otherwise, there would be two pitchers on the field at the same time. Both the contractor and the subcontractor would be directed to make compensation payments required under the Act and both would be simultaneously entitled to the assignment of the injured worker's right to recover damages from third parties. Everything directed by the Act would be done in duplicate. The most that may be said is that a contractor becomes an "employer" within the meaning of Section 71-3-7 when and only when the subcontractor has defaulted on its statutory obligations. It follows that a contractor is an "employer" entitled to the immunity of Section 71-3-9 only when the subcontractor has defaulted on its statutory obligation and the contractor has stepped in and in fact secured the payment of compensation to the subcontractor's injured employee. There are two public purposes (which exist without regard to any notion of legislative intent) which I believe point powerfully toward the construction of the Act I would give it. It is within our actual and judicial knowledge that the benefits afforded under our Act are among the lowest in the nation. It is similarly within our actual and judicial knowledge that, if compensation benefits were the sole source of income for an injured worker, that worker would be well below the minimum subsistence level by American standards. Without doubt, we are required to construe the Act liberally, sensibly and reasonably. Such a construction hardly mandates taking away third party tort claims when the language of the Act of the legislature has not clearly done so. Second, no doubt great restraint should be exercised in suggesting the overruling of a case such as Doubleday which has been on the books for only three years. It would undermine the integrity of our system were our citizens to come to expect wholesale changes in the law every time there are changes in court personnel. On the other hand, where a recent prior decision is demonstrably in error and clearly so it is difficult to conceive of any public purpose to be served by perpetuating the mischief it has spawned. As an original proposition, I would have found the majority opinion in Doubleday unquestionably wrong. As the matter now stands, and as the Falls and Nash cases demonstrate, Doubleday has produced arbitrary constructions of the statute. The simple solution that commends itself to me is overruling Doubleday. *1104 For these reasons, I join in today's decision insofar as it reverses and remands to allow Nash to proceed with his tort action as though Damson's motion for summary judgment had been overruled. I would prefer that the Court's rationale were based upon a simple consideration of what a simple statute clearly says, which, of course, would necessitate an unequivocal overruling of Doubleday. DAN M. LEE, J., joins in this opinion. NOTES [1] In briefs and at argument, the parties have discussed the case of Nations v. Sun Oil Co., 695 F.2d 933 (5th Cir.1983). We trust it will be apparent that anything in Nations contrary to our decision today should be considered with care.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1712339/	378 S.W.2d 228 (1964) Louis BINZ, Individually and as a Shareholder of St. Louis Hide and Tallow Company, a Corporation, Suing on Behalf of Himself and All Other Shareholders, and for the Benefit of the Corporation, (Plaintiff) Appellant, v. ST. LOUIS HIDE AND TALLOW COMPANY, a Corporation, Albert J. Binz, Emma Binz, Leo J. Wilkes, William Brynda, William J. Wingbermuehle and Jack M. Cronin, (Defendants) Respondents. No. 31502. St. Louis Court of Appeals, Missouri. April 21, 1964. Robert S. Allen, Dominic Troiani, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for appellant. Robert Mass, St. Louis, for St. Louis Hide and Tallow Co. and William Brynda. Dubinsky & Duggan, Jerome F. Duggan, St. Louis, for Albert J. Binz, Emma Binz and Leo J. Wilkes. Pannell & Hess, Phillip G. Hess, Festus, for William J. Wingbermuehle and Jack Cronin. FRANK D. CONNETT, Jr., Special Judge. This case arose from the following set of facts: In 1952, plaintiff's mother, Marie Binz, and defendants Albert J. Binz and William Brynda purchased a St. Louis rendering plant (Haefele Hide and Tallow Company), now known as St. Louis Hide and Tallow Company, the corporate defendant, on whose behalf plaintiff instituted this suit. The corporate defendant, St. Louis Hide and Tallow Company, a Missouri corporation, was in the business of buying meat scraps, suet and bones, rendering the same and selling the processed product, namely, tallow. Marie Binz was a widow and defendant Albert J. Binz was her brother-in-law. Initially, the three of them, 229 Marie Binz, defendants Albert J. Binz and William Brynda, each held an equal stock interest in the corporate defendant. From the beginning, defendant Albert J. Binz was president, Marie Binz was vice-president, and defendant Brynda was secretary-treasurer. Although the articles provided for four members on the board of directors, the three of them served as directors from September 2, 1952, until October 28, 1958. From the inception of this stock ownership, there was a restrictive agreement among the three stockholders requiring any of them desiring to dispose of his stock to first offer the same to the other parties. About 1953, defendant Leo J. Wilkes became associated with the corporation as an accountant, and subsequently 100 shares of the corporation's stock were issued in his name, and he then became the fourth director. The 100 shares of stock were apparently his in name only and were under control of Albert J. Binz. In February, 1960, the by-laws were amended to provide that only a stockholder could be a director of the corporation. Thereafter, in the spring of 1961, Marie Binz complied with the restrictive stock agreements and ultimately, in July of 1961, transferred all of her stock in the corporation to plaintiff. On March 30, 1962, in violation of these stock entailing agreements, defendants Binz and Brynda gave options to defendants William J. Wingbermuehle and Jack M. Cronin for their 2500 shares. They also executed irrevocable proxies covering all of these shares to defendants Wingbermuehle and Cronin. So that Wingbermuehle and Cronin could qualify as directors, two shares of stock were transferred to them for $1.00 each. At the Board of Directors Meeting on April 6, 1962, defendant Brynda was elected president, defendant Wingbermuehle was elected vice-president, and defendant Cronin was elected secretary. Plaintiff, Louis Binz, was present as the fourth director. The board set the salary of defendant Brynda and then attempted to delegate to defendant Brynda the authority to fix the rest of the salaries by the following Resolution as shown by the minutes of the corporation: "MINUTES "Thereupon, motion was made by Winbgermuehle that the new President, William, Brynda, should receive the same salary and other emoluments of office that were enjoyed by his predecessor Al Binz, as President of company. Motion was seconded; motion put by the Chair, the Chair declared the motion carried. "Thereafter, William Wingbermuehle moved that the President, William Brynda, be empowered to set all other salaries and other financial matters for all other employees of the corporation. "Motion was put by the Chair and declared carried." Defendant Brynda set the salaries of defendants Wingbermuehle and Cronin at $6,000 per year for each of them. From the evidence presented, it appears that defendant Wingbermuehle devoted all of his time to defendant corporation and defendant Cronin a part of his time. Defendants Wingbermuehle and Cronin had previously been in business as partners operating a business known as Bill and Jack Tallow Company. In this business they purchased and picked up suet, meat scraps and bones from retail butchers, meat markets and groceries and sold the same to renderers. One of the renderers buying such raw products was this corporate defendant, St. Louis Hide and Tallow Company. After the purchase of the controlling interest of defendant corporation, they continued to operate the Bill and Jack Tallow Company with defendant Cronin spending most of his time in the interest of the partnership. The partnership became the sole supplier for defendant corporation at prices fixed by defendant Brynda and defendant Wingbermuehle. The plaintiff, appellant, Louis Binz, brought this action against the St. Louis Hide and Tallow Company as a minority stockholder (1200 out of 3700 shares), on 230 behalf of himself and for the benefit of the corporation. First, he sought to enjoin transfers of stock in violation of the two stock entailing agreements restricting the transfer of the corporation's stock, and the removal of defendants Wingbermuehle and Cronin as directors and officers of the corporation. He also asked that defendants Wingbermuehle and Cronin be made to account to the corporation for allegedly excessive salaries and the sums paid to them by the corporation. A trial was held before the Honorable James F. Nangle, Judge of the Circuit Court of the City of St. Louis. The court sustained plaintiff's petition and held that Wingbermuehle and Cronin were not properly elected as directors and officers of the corporation and they were ordered to cease acting as such. However, the court found "that plaintiff did not prove that the salaries or other sums paid defendants Wingbermuehle and Cronin were unreasonable and, accordingly, said defendants do not have to account to the corporation for monies paid to them by the corporation." The plaintiff appealed from the decision of the court below on this latter issue on the ground that the court had placed the burden of proof on the plaintiff to prove his allegation that these salaries paid to Wingbermuehle and Cronin were excessive. We believe such was the effect of the court's ruling. It is plaintiff's contention that the burden of proof should have been on defendants Wingbermuehle and Cronin to show that their salaries were reasonable. Any issue as to prices paid to the Bill and Jack Tallow Company for meat scraps, etc., by defendant corporation has been abandoned as only the salary question has been briefed. Neither party was able to cite and the court was unable to find any Missouri case directly on the point. However, a study of the cases from other jurisdictions concerning suits of this nature convinces us that the law is as follows: In suits by stockholders to recover for the corporation, salaries claimed to be excessive and paid to officers, who are also directors, and these officer directors have set their own salaries, or whose votes were necessary to set their own salaries, the burden is upon the director officers to justify their salaries and show the reasonableness thereof. It appears that at one time there was the rule that acts of director officers in fixing their own salaries were void, and any director officer who voted for his own salary was entitled to no compensation. However, it appears that the modern rule is that such acts are only voidable and that in a suit by a minority stockholder to set aside a salary set by a self-dealing officer director, the officer director has an opportunity to prove that the salary set was reasonable and justified by the services performed. Yet it is clear that when it appears the salary was set by self-dealing, then the burden of proof in justifying this salary is upon the officer director. In the case of Carr v. Kimball, 153 App. Div. 825, 139 N.Y.S. 253, at page 263, we find the following: "There is another set of cases which, while fully sustaining the proposition that directors are trustees, incapable of contracting with themselves, and that such purported contracts are voidable at the suit of the corporation, or a minority stockholder suing in a representative capacity, nevertheless recognize a tendency in modern times towards the formation of those small business corporations, and, realizing that those most interested and holding practically all of the stock will in all probability become the directors and officers thereof, take the view that, while the contract is voidable, nevertheless the officer who has done the work by which the corporation has benefited is entitled to receive pay on the theory of quantum meruit. The rule is, however, that the burden is upon the director officer to show the fair and reasonable value of the services rendered." 231 In Davis v. Thomas A. Davis Company, 63 N.J.Eq. 572, 52 A. 717 (1902) at page 718, we find the following: "It is entirely settled that, where directors of a corporation attempt to deal with themselves, their acts are the subject of judicial inquiry and supervision. Directors cannot fix the value of their own services to the corporation. Whenever they attempt to do so, and their action is challenged by a stockholder or other interested persons, the burden is upon them to show what they have done to merit payment; and the quantity of compensation to which they are entitled is to be graded, not by the sum voted, but by what they earn." See also 27 A.L.R. 300, 44 A.L.R. 570, 5 Fletcher Corporations, Sec. 2113, page 492. The basis of this rule of law is found in the prohibition against a director engaging in self-dealing. This has always been the law in Missouri. Hill v. Rich Hill Coal Mining Company, (1895), 119 Mo. 9, 24 S.W. 223; Bennett v. St. Louis Car Roofing Co., (1885), 19 Mo.App. 349; R. T. Davis Mill Co. v. Bennett, (1890), 39 Mo.App. 460; Frankford Exchange Bank v. McCune, (1934), Mo.App., 72 S.W.2d 155; Johnson v. Duensing, (1960), Mo.App., 340 S.W.2d 758, 768. The defendants cite Seitz v. Union Brass and Metal Mfg. Co., 152 Minn. 460, 189 N.W. 586, 27 A.L.R. 293, and Beha v. Martin, 161 Ky. 838, 171 S.W. 393, as authority for a contrary view. In the Seitz case, no officer participated in the fixing of his own salary, nor was his presence necessary to constitute a quorum of the board of directors. In the Beha v. Martin case, the statement that "the objecting stockholder must establish affirmatively that the salary or compensation is unreasonable and oppressive" (171 S.W. l. c. 394) is obiter dictum. In that case the defendant, president of the corporation, had voted for his own salary, and the judgment was that he pay back the salary voted and the corporation was enjoined from paying him anything because his act in voting for his own salary made the action of the board invalid. Furthermore, the court cited Lillard v. Oil, Paint Drug Company, 70 N.J.Eq. 197, 56 A. 254, as its authority for its statement. That case does not hold that the objecting stockholders must establish affirmatively that the salary is unreasonable or oppressive in cases where the salary is set by the board of directors and is that of a member of the board and an officer of the corporation, and this officer director voted for his own salary. In fact it holds the opposite. Defendants also take the position that plaintiff must show some detriment to the corporation before questioning the salaries paid to defendants Wingbermuehle and Cronin, and they point out that all of the evidence presented shows that defendant corporation has benefited by virtue of the services of defendants Wingbermuehle and Cronin. Actually whether or not the corporation suffered any detriment is the ultimate issue. Did the corporation pay more for the services of defendants Wingbermuehle and Cronin than they were reasonably worth? The issue of detriment has nothing to do with the question of who has the burden of proof. In cases where it is shown that corporate directors have engaged in self-dealing, the burden is upon the directors to justify their actions and to show that there was no detriment to the corporation. The Missouri cases cited above amply demonstrate that self-dealing by directors of corporations are suspect in Missouri regardless of any showing of detriment to the corporation. Given this as a rule, the question then is whether defendants Wingbermuehle and Cronin come within the rule. Did they as directors and officers of the corporation (we are assuming them to be de facto officers and directors rather than mere interlopers) deal with themselves when the amount of their salaries was determined? Did they either directly or indirectly vote 232 for their own salaries? We hold that they did. They controlled 2500 of the 3700 shares of corporate stock. They were two of the four directors. Defendant Brynda had no authority to set any salaries without the votes of defendants Wingbermuehle and Cronin. The record shows defendants Wingbermuehle and Cronin did vote to give this authority to defendant Brynda. Having participated as directors in setting their own salaries, defendants Wingbermuehle and Cronin must now show that the salaries paid to them were justified by the work performed. Wherefore, this case is remanded and the court below is directed to have defendants Wingbermuehle and Cronin account to it for the salaries received by them as officers of the corporation. WOLFE, Acting P. J., and ANDERSON, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608483/	248 Or. 195 (1967) 432 P.2d 1018 WALKER, Respondent, v. STATE COMPENSATION DEPARTMENT, Appellant. Supreme Court of Oregon. Argued September 13, 1967. Affirmed November 8, 1967. Clayton Hess, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General, and Wallace Carpenter, Chief Counsel, State Compensation Department, Salem. James O. Goodwin, Oregon City, argued the cause for respondent. On the brief were Jack, Goodwin & Anicker, Oregon City. 196 Before McALLISTER, Presiding Justice, and O'CONNELL and DENECKE, Justices. AFFIRMED. DENECKE, J. The plaintiff injured his back when he fell in an industrial accident. He appealed to the circuit court from an award by the defendant or its predecessor, State Industrial Accident Commission, claiming additional benefits. The defendant Department appeals to this court from a judgment of the trial court entered upon the jury's verdict awarding plaintiff benefits in excess of those awarded by the Commission. The jury returned a verdict finding that plaintiff had suffered an unscheduled permanent partial disability of the back equivalent to a 45 per cent loss of use of one arm and permanent partial disability of the right leg to the extent of 25 per cent loss of use of such leg. The Compensation Department contends the trial court erred in not withdrawing the claim of disability to the leg. The initial injury was to plaintiff's back, not his leg. There was evidence that plaintiff's leg is disabled from pain in the leg caused by his injured back. The Department's physician testified that the leg pain "was referred pain from his back, not through nerve pain but radiation pain coming from his back down into his thigh." 1, 2. The defendant relied upon the proposition that pain alone is not compensable. Lindeman v. State Indus. Acc. Comm., 183 Or 245, 250, 192 P2d 732 (1948). That literally is correct; however, "the disabling effect of such [pain] may be considered in determining the disabling effect of any particular injury." Wilson v. 197 State Ind. Acc. Comm., 189 Or 114, 124, 219 P2d 138 (1950). 3. The Department also points out that under the statutory scheme of compensation in which certain scheduled benefits are provided for the disability of different parts of the body, benefits cannot be awarded for disability of part A caused by an injury to part B. This is the reasoning of Graham v. State Ind. Acc. Com., 164 Or 626, 102 P2d 927 (1940), in which plaintiff had injured a thumb. (There are scheduled benefits for disability of the thumb.) The plaintiff claimed the injury to his thumb disabled his hand and, therefore, he should be awarded the scheduled benefits for disability of the hand. The court held: "Where a workman's injury is confined to his thumb and there are no unusual or unexpected complications attending injury, compensation for disability resulting from such injury cannot be made on the basis of an injury to the hand." The court, however, on the same day decided Kajundzich v. State Ind. Acc. Com., 164 Or 510, 102 P2d 924 (1940), in which there was evidence that an injury to the workman's foot caused anesthesia in his leg and the consequent disability of such leg. A verdict awarding benefits because of the disability of the leg was affirmed. In the present case there is evidence that the injury to the back caused disabling pain in the leg and this will support a verdict awarding benefits for the partial loss of the use of such leg. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2609920/	467 P.2d 643 (1970) STATE of Oregon, Respondent, v. Jack TRUXALL, Appellant. Court of Appeals of Oregon, Department 1. Argued and Submitted January 26, 1970. Decided April 9, 1970. 644 Maxwell Donnelly, Portland, argued the cause and filed the brief for appellant. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Jacob B. Tanzer, Sol. Gen., and Lee Johnson, Atty. Gen., Salem. Before SCHWAB, C.J., and FORT and BRANCHFIELD, JJ. BRANCHFIELD, Judge. This is an appeal by the defendant from a conviction on two counts of an indictment, both charging assault with a dangerous weapon. While on routine patrol at approximately 4:30 a.m. February 17, 1968, a Multnomah County deputy sheriff discovered defendant and another person burglarizing a grocery store in Portland. When the deputy sheriff attempted to search them, they attacked. While the deputy struggled with the defendant, the other man struck him about the head with an iron jack handle. As the deputy was reeling from the beating, the burglars took his gun. Defendant pointed the gun at the deputy, ordered him into a walk-in food locker at the rear of the store, and warned him not to come out. The jury found the defendant guilty on each count of the indictment by a 10-2 verdict. The defendant was sentenced to concurrent ten-year terms on each count. After the entry of the judgment, defendant filed a motion for a new trial on three 645 grounds. He claimed that the court erred in permitting the state to introduce evidence on rebuttal concerning the identity of the other man involved in the burglary, that the court erred in receiving a verdict which was not unanimous, and that the defendant had discovered new evidence after the trial. His motion for a new trial was denied, and defendant assigned error in this court on the basis of that order. Defendant has not properly raised his first two assignments of error. Those assignments do not contest the judgment, but instead challenge an order entered after the judgment. ORS 138.020 provides: "Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases described in ORS 138.010 to 138.300, and not otherwise." (Emphasis added). Numerous Oregon cases have followed the rule expressed in Bowlds v. Taggesell Pontiac, 245 Or. 86, 96, 419 P.2d 414 (1966), where it was said: "* * * Denial of a motion for new trial based upon alleged errors committed on the trial, of which errors the appellant had knowledge at the time, may not be assigned as error on appeal. Sullivan et al. v. Carpenter, 184 Or. 485, 494, 199 P.2d 655 (1948); Shearer v. Lantz, 210 Or. 632, 312 P.2d 581 (1957). In passing, we note that defendant has failed to comply with rules 18 and 29 of the Rules of Procedure of this court, by failing to include a statement of facts and the indictment in his brief. Briefs with such defects are subject to being stricken by the court. We will consider the first two assignments of error in this case for reasons similar to those mentioned in Clarizo v. Spada Distributing Co., Inc., 231 Or. 516, 522, 373 P.2d 689, 692 (1962). The Supreme Court there said: "The mistake made by appellant was to approach his subject by a circuitous route instead of by stating simply that the court erred in denying the defendant's motion for a nonsuit. However, the essential requirement of the rule that the motion for a nonsuit be set out in full has been complied with. Since the appellant has complied with the spirit of our rule we have concluded that he should not be penalized because the introductory portion of the assignment contains an unnecessary reference to the motion for a new trial and the motion for judgment n.o.v." The defendant in this case did object to the introduction of the testimony which was received on rebuttal and he did take exception to the instruction by the court that ten or more of the jurors could arrive at a verdict. We will first dispose of the claim that error was committed in receiving a verdict of the jury which was less than unanimous. After the briefs were filed in this case, the Supreme Court decided the issue adversely to the defendant's contention in State v. Gann, 89 Or.Adv.Sh. 853, 463 P.2d 570 (1969). The defendant took the witness stand in his own defense. He testified that on the night of February 16, 1968, he was with a man named Erwin Speer from about 10 o'clock at night until 2:30 or 3:00 on the morning of February 17th. He said that the two of them parted company at that time, and he spent the remainder of the night at a motel with his girl friend. In rebuttal, the state then introduced evidence to the effect that Erwin Speer was one of the men in the grocery store at 4:30 on the morning in question. The trial court has broad authority to control the conduct of the trial. After defendant had taken the stand and admitted to being with Speer on the night of the crime, the fact that Speer was one of the assailants became significant. It was then appropriate for the state to argue and the jury to infer that if defendant and Speer were together earlier that night, they were still together at the time of the crime, notwithstanding defendant's testimony that he was elsewhere. The trial court did not 646 abuse its discretion in this case when it admitted the evidence and instructed the jury to consider it for only the limited purpose of contradicting the defendant's alibi. Defendant's third assignment of error is that the court mistakenly denied his motion for a new trial based upon newly discovered evidence. Applications for a new trial on such ground are not favored. State v. Oland, Or. App., 89 Or.Adv.Sh. 655, 461 P.2d 277 (1969); State v. Ellis, 232 Or. 70, 89, 374 P.2d 461, 470 (1962); State v. Davis, 192 Or. 575, 579, 235 P.2d 761, 762-763 (1951). Nevertheless, denial of a motion for a new trial is subject to review if it is within one of the exceptions set forth in Benson v. Birch, 139 Or. 459, 467, 10 P.2d 1050, 1053 (1932). There the court said: " * * [T]here has always been a well-recognized exception to the rule. Where a motion for a new trial is based upon the misconduct of the jury which did not come to the knowledge of the party making the motion for a new trial until after the verdict had been returned, or where there has been newly discovered evidence which was not known at the time of the trial and the matter has been presented to the trial court by a motion for a new trial, in proper cases where the overruling of the motion was an abuse of discretion, this court has always reserved the right to consider and pass upon such ruling upon appeal." A new trial is permitted by ORS 17.610(4) if there is newly discovered evidence, if it is material and if the party could not with reasonable diligence have discovered and produced it at the trial. In State v. Edison, 191 Or. 588, 595, 232 P.2d 73, 77 (1951), the Supreme Court set forth the requirements for a new trial based upon newly discovered evidence: "* * * [I]t must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as, with due diligence, could not have been discovered before the trial; (4) it must be material to the issue; (5) it must not be merely cumulative; (6) it must not be merely impeaching or contradicting of former evidence. § 5-802, OCLA; * * *." See also State v. Davis, 192 Or. 575, 579, 235 P.2d 761 (1951). The new evidence which defendant sought to use as the basis for a new trial consisted principally of an affidavit signed by defendant's girl friend to the effect that she and the defendant had gone to a motel early in the morning at "approximately" the date of February 17, 1968, and that they had remained together in the motel until after 10:30 that morning. Defendant knew or should have known the potential value of the witness in his behalf if she had, in fact, been with him on the night in question and could so testify. Defendant testified that he had corresponded with her prior to the trial. Yet the record reveals no effort to compel her appearance. It is true that the woman's affidavit was to the effect that her recollection was subsequently refreshed by information related to her by defense counsel after the trial, but this only underscores defendant's lack of diligence before the trial to ascertain what her testimony would have been. Furthermore, it appears from her affidavit that even after her recollection was refreshed, she was unable to testify positively as to what night she and the defendant were together. Such indefinite evidence was not likely to change the result, it was not discovered since the trial, and the defendant did not exercise due diligence in obtaining it. The trial court did not err when it denied the motion for a new trial. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875430/	490 So. 2d 234 (1986) Donald W. WEIR, Appellant, v. STATE of Florida, Appellee. No. 85-1802. District Court of Appeal of Florida, Fifth District. June 26, 1986. *235 James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee. COBB, Chief Judge. This is an appeal from a departure sentence. We find that none of the reasons for departure expressed by the trial court is clear and convincing and, accordingly, vacate the sentence. The trial court's bases for departure can be summarized as follows: (1) That the defendant has repeatedly refused to cooperate; (2) That the defendant absconded before sentence could be passed and did not appear for the sentencing hearing on August 21, 1985; (3) That the defendant has a prior felony charge of failure to appear in court; (4) That the failure to appear and cooperate indicates his lack of remorse and inability to comply with the law. Two of the trial court's reasons for departure, numbers two and three, involve the defendant's failure to appear when required to do so. In fact, the prior felony charge of failure to appear was dismissed as part of the plea bargain in this case, wherein the defendant pled guilty to one count of uttering a worthless check and one count of burglary. In Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985), this court held that a departure for failure to appear constitutes an impermissible deviation for a crime for which the defendant has not been convicted. See Fla.R.Crim.P. 3.701(d)(11). It is clear that reasons two and three here fall within this category and, thus, a departure on either basis is improper. Reasons one and four involve the defendant's failure to cooperate with the probation office, which to the court indicated a lack of remorse and an inability to comply with the law. It is not clear from the record what the noncompliance consisted of. In any event, lack of remorse is an inappropriate basis upon which to impose a departure sentence. See Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986); Parker v. State, 481 So. 2d 560 (Fla. 5th DCA 1986). Similarly, a disregard for the law is an equally improper basis for departure. Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986). Since all of the trial court's reasons for departure are improper, the sentence is vacated and the cause remanded for sentencing within the guidelines. VACATED and REMANDED. ORFINGER and COWART, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1636712/	784 S.W.2d 47 (1990) Calvin Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee. No. 1147-87. Court of Criminal Appeals of Texas, En Banc. January 31, 1990. Donald M. Brown, Conroe, for appellant. Peter C. Speers, III, Dist. Atty. & Thomas D. Glenn, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW DUNCAN, Judge. Appellant was charged in a single indictment with two counts of attempted capital murder. A jury found him guilty of both counts. At the punishment phase of the trial, after finding all three enhancement paragraphs "true," the jury assessed punishment at a term of ninety-nine years incarceration in the Texas Department of Corrections on each conviction; the trial court subsequently ordered the sentences to be served consecutively. On appeal to the Beaumont Court of Appeals, both convictions were affirmed. The court of appeals, inter alia, overruled appellant's contention that the trial court committed reversible error in entering sentences on both convictions which stemmed from one incident. Johnson v. State, 737 S.W.2d 901 (Tex.App.Beaumont 1987). In light of Fortune v. State, 745 S.W.2d 364 (Tex.Cr. App.1988), which was pending before this Court at the time the court of appeals rendered its opinion, we granted appellant's petition for discretionary review to determine the correctness of their holding. A brief recitation of the facts is necessary in order to make a meaningful resolution of the contentions of the appellant. We will utilize the relevant facts as set out in the court of appeals' opinion. On the morning of March 8, 1985, at 10:15 a.m., the appellant arrived at the Lost Pine Nursery, owned by one of the complaining witnesses, 48 Barbara Brown. At that time Brown was attending to one of her customers, Riley Tomlin, who was eventually to become the second victim and the subject of the second count of the indictment. According to the trial testimony, the appellant was identified as the individual who attempted to commit a robbery of both Brown and Tomlin and in the course of the attempted robbery shot both Brown and Tomlin in the head. The complaining witnesses survived and were ultimately able to make an identification of the appellant who, as previously noted, was indicted in a single indictment for two counts of attempted capital murder. The relevant portions of the indictment charged that the appellant: [W]ith specific intent to commit the offense of capital murder of Barbara Brown, attempt to intentionally cause the death of Barbara Brown by shooting her with a firearm in the course of committing and attempting to commit robbery of Barbara Brown and Riley Tomlin ...; The second substantive count alleged that appellant: [W]ith specific intent to commit the offense of capital murder of Riley Tomlin, attempt to intentionally cause the death of Riley Tomlin by shooting him with a firearm in the course of committing and attempting to commit robbery of Barbara Brown and Riley Tomlin ...; After convicting the appellant, the jury assessed his punishment for two separate and distinct attempted capital murder offenses. In rejecting appellant's argument that the jury could assess only one punishment in a case where the charges emanate from a single indictment the court of appeals opined: Point of error fifteen asserts that the trial court committed reversible error in entering sentences on both convictions resulting from multiple counts alleging two offenses from one transaction. We disagree and overrule this matter for review. These offenses did not grow out of the same transaction. There were two different people shot and two different robberies, one of Barbara Brown and one of Riley Tomlin. Furthermore, if two separate and distinct offenses are alleged in one indictment, upon proper and timely request by the defendant, the State must elect which count it will prosecute and the other, of course, may be severed for separate trial. However, this right will be waived if the election is not demanded by proper, timely motion. There is no protest in this case against being convicted for more than one felony under one indictment. Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985). The record shows that Appellant failed to request the State to elect. He failed to request a severance of these offenses. The Appellant did not protest being convicted and sentenced on both counts in the indictment. This point of error is, therefore, clearly waived.[[1]] Article 21.24(A), V.A.C.C.P., in pertinent part reads: Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code. At the time of the commission of this offense and appellant's trial V.T.C.A. Penal Code, § 3.01, defined the term "criminal episode" as follow: In this chapter, "criminal episode" means the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property). Thus the law became settled that in this State an indictment could, at the prosecutor's pleasure, contain more than one count charging the same offense; however, the indictment could not charge more than one offense. Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985). The State could not obtain multiple convictions on two or more counts in a single indictment alleging non-property offenses arising out of the same 49 criminal transaction. Ex parte Siller, 686 S.W.2d 617, 620 (Tex.Cr.App.1985). Prior to our holding in Fortune, this Court emphasized the distinction between offenses arising out of the same criminal transaction and those which arose out of different transactions. If the offense was misjoined and arose out of a different transaction, the defendant had an obligation to object to the misjoinder at trial or the defect was waived for appeal. Drake, supra. If, however, the misjoinder stemmed from the same criminal transaction a defendant was not required to interpose an objection to the misjoinder in order to preserve the issue on appeal. This distinction was based upon the premise that the State had no authority to obtain multiple convictions for multiple offenses arising from the same transaction and charge in a single indictment. Ex parte Siller, supra. Finally in Fortune, supra, at 370, this Court eliminated the distinction which existed and wrote: In Drake, supra, however, the joinder of distinct offenses arising out of separate transactions was not error because the defendant has a right to one offense per indictment, but rather was error because the State has no authority to allege more than one offense in a single indictment. See id. at 943-4. Given that the factor common to the State's error was lack of authority, it follows that in either circumstance, convictions for more than one offense alleged in a single indictment are void. As such, objection to such convictions should be permitted at any time, with no trial objection requirement. We therefore overrule that portion of the Drake opinion which holds that when the State joins two or more offenses arising out of different transactions, such error must be objected to at trial or waived on appeal. We do, however, adhere to the basic one offense per indictment rule, regardless of whether the offenses arose out of the same or different transactions. [Emphasis in original] Although the court of appeals did not have the benefit of our Fortune opinion, nonetheless it was incorrect in its ultimate conclusion. It was not necessary that the appellant interpose an objection to the misjoinder to preserve the error for appellate review. Thus, the jury was entitled to convict the appellant but once and only one sentence of ninety-nine years can be sustained. This Court would, however, be remiss if we did not respond to the intriguing argument offered by the State. The State points out that when the Legislature chose to amend § 3.01, supra,[2] § 2 of the amendatory Act provides: (b) The joinder of prosecutions for offenses arising out of a single criminal episode if any of the offenses was committed before the effective date of this Act is covered by the law in effect before the changes by this Act, and the former law is continued in effect for this purpose. The argument then proceeds that since Drake and Siller were valid authority in effect at the time of not only the commission of the offenses in the instant case, but also at the time the court of appeals issued its opinion, it was therefore correct in its conclusion and the result reached in Fortune should not control. We believe that the amendatory Act in reference to § 3.01, supra, was directed to the statutory provision and not to this Court's case law interpretations. Any other finding would have an untenable result. First, this Court was of the opinion that Drake, supra, was erroneous in its conclusion that it was required that a criminal defendant object at the trial when the State joined two or more offenses *50 arising out of different transactions. Second, the basis of this Court's action in overruling that particular aspect of Drake was that the State had no authority to allege more than one offense in a single indictment and the trial court, therefore, was without the legal power to enter judgment and impose sentence for more than one offense. Ex parte Broyles, 759 S.W.2d 674 (Tex.Cr.App.1988). For these reasons we are compelled to reject the State's innovative theory. The attempted capital murder concerning Barbara Brown being alleged first in the indictment, submitted first to the jury in the court's charge and the first verdict form provided to the jury, will be upheld and the attempted capital murder concerning Riley Tomlin dismissed. Holcomb v. State, 745 S.W.2d 903 (Tex.Cr.App.1988). Accordingly, we reform the judgments of the court of appeals and the trial court to show a conviction and sentence for the attempted capital murder concerning Barbara Brown only. The judgment reflecting a conviction and sentence for attempted capital murder concerning Riley Tomlin will be vacated. The judgment and sentence as reformed is affirmed. NOTES [1] Whether this was one or two "transactions" is not a determinative issue; therefore, it is unnecessary for us to decide the validity of the court of appeals' conclusion that "[t]hese offenses did not grow out of the same transaction." [2] In 1987 the Legislature redefined the term "criminal episode" as included in V.T.C.A. Penal Code, § 3.01, as follows: In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offenses.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2622373/	2007 WY 203 SEG, Appellant (Plaintiff), v. GDK, Appellee (Defendant). No. S-07-0075. Supreme Court of Wyoming. OCTOBER TERM, A.D. 2007. December 18, 2007. Representing Appellant: M. Jalie Meinecke and Alex H. Sitz III of Meinecke & Sitz, LLC, Cody, Wyoming. Argument by Ms. Meinecke. Representing Appellee: Ethelyn Boak of Cheyenne, Wyoming. Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ. VOIGT, C.J., delivers the opinion of the Court; HILL, J., files a dissenting opinion. VOIGT, Chief Justice. [¶1] Mother, SEG, contests the district court's refusal to terminate the parental rights of Father, GDK, to the parties' minor child, KGK. We determine that the district court's order is not an appealable order under W.R.A.P. 1.05, and we therefore dismiss this appeal. ISSUE [¶2] The dispositive issue in this case is whether the district court's Order on Termination of Parental Rights is an appealable order from which this Court has jurisdiction to entertain an appeal. FACTS [¶3] Mother petitioned for termination of Father's parental rights to KGK on November 17, 2005. Mother's petition also requested back child support and future child support. Father responded to the petition, and counterclaimed for visitation. The district court held a hearing on the petition and counterclaim and issued an order, in which it concluded that Mother had failed to prove the statutory requirements for terminating Father's rights. The court also found that the parties had not presented adequate evidence regarding child support or visitation and suggested further hearings on those issues. Mother appealed. STANDARD OF REVIEW [¶4] Under W.R.A.P. 1.04(a) this Court has jurisdiction to entertain an appeal from a judgment or from an appealable order. Whether a court has jurisdiction is a question of law to be reviewed de novo. Steele v. Neeman, 6 P.3d 649, 653 (Wyo. 2000). DISCUSSION [¶5] W.R.A.P. 1.04(a) states "[a] judgment rendered, or appealable order made, by a district court may be: reversed, vacated, remanded, or modified by the supreme court for errors appearing on the record." W.R.A.P. 1.05 defines an appealable order as: (a) An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment; or (b) An order affecting a substantial right made in a special proceeding; or (c) An order made upon a summary application in an action after judgment; or (d) An order, including a conditional order, granting a new trial on the grounds stated in Rule 59(a) (4) and (5), Wyo. R. Civ. P.; if an appeal is taken from such an order, the judgment shall remain final and in effect for the purposes of appeal by another party; or (e) Interlocutory orders and decrees of the district courts which: (1) Grant, continue, or modify injunctions, or dissolve injunctions, or refuse to dissolve or modify injunctions; or (2) Appoint receivers, or issue orders to wind up receiverships, or to take steps to accomplish the purposes thereof, such as directing sales or other disposition of property. [¶6] W.R.A.P. 1.05(c), (d), and (e) are not implicated in any possible analysis of the district court's Order on Termination of Parental Rights. Therefore, in order to qualify as appealable, the order must affect a substantial right, and must either be issued in a special proceeding, or prevent a judgment in the case, under W.R.A.P. 1.05(a) or (b). The first question is dispositive. [¶7] This order does not affect a substantial right. Father's parental rights and right to associate with his daughter (and thus, KGK's right to association with her father) were not altered in any way by this interlocutory order. No substantial right of any party was affected.[1] Therefore, the order was not an "appealable order" under W.R.A.P. 1.05. [¶8] In addition, contrary to what Mother implies on appeal, the order cannot be considered a judgment. Black's Law Dictionary 858 (8th ed. 2004) defines a judgment as "[a] court's final determination of the rights and obligations of the parties in a case". The order specified that issues remained to be resolved and invited the parties to request further hearings on those issues. In particular, the court found it necessary to leave the issues of child support and visitation unresolved because the parties had not presented sufficient evidence on those matters at the hearing on the petition to terminate. We cannot hear an appeal from an order that does not affect a substantial right, in a case where two of the three issues raised remain unaddressed by the court.[2] CONCLUSION [¶9] The Order on Termination of Parental Rights in this case did not affect a substantial right and so was not an appealable order under W.R.A.P. 1.05. The order also was not a judgment under W.R.A.P. 1.04, as it did not resolve all the issues in the case. Therefore, this court has no jurisdiction to entertain an appeal from the order. We dismiss. HILL, Justice, dissenting. [¶10] I respectfully dissent because this case involves a special proceeding that is governed by procedures set out in Wyo. Stat. Ann. §§ 14-2-309 through 14-2-319 (LexisNexis 2007). It virtually goes without mention that substantial rights are always at stake in cases such as these, and strict adherence to the governing statutes is mandatory. We review such cases applying strict scrutiny. E.g., In re CS, 2006 WY 130, ¶¶ 7-8, 143 P.3d 918, 921-22 (Wyo. 2006). I make mention that it is a special proceeding to ensure that the Court recognizes it as such, although that does not play a role in my conclusion that we must address the issues raised by this appeal, on their merits. In passing, I deem it important as well to note that the Wyoming Rules of Appellate Procedure merely breathe life into, and give procedural form to, the jurisdiction of this Court. W.R.A.P. 1.04(a) is just one of those rules, but it is not a source of our jurisdiction. See Wyo. Const. art. 5, § 2. I also want to briefly note that the majority opinion is not a de novo review, inasmuch as the Court purports to be determining its jurisdiction in the first instance, and the mention of that standard seems mistaken in these circumstances. [¶11] I would hold that the district court's order is an appealable order. The governing statutes give the district court only two alternative resolutions to such cases. The first possible resolution is this: § 14-2-315. Order terminating the parent-child legal relationship; contents. The order terminating the parent-child legal relationship shall be in writing and shall contain the findings of the court. If the court terminates the parent-child legal relationship of either one (1) or both parents, it shall fix the responsibility for the child's support and appoint a guardian of the child's person or estate or both. Wyo. Stat. Ann. § 14-2-315 (LexisNexis 2007). [¶12] The second option is this: § 14-2-316. Dismissal of petition; continuation of hearing. If the court does not terminate the parent-child legal relationship, it shall dismiss the petition or direct an authorized agency to continue to make efforts to rehabilitate the parent and continue the hearing for no longer than six (6) months. The authorized agency shall provide the court with any additional reports regarding its rehabilitative efforts and results. Pending final hearing, the court may continue the present placement of the child or place the child in the temporary custody of an authorized agency and fix responsibility for temporary child support. [Emphasis added.] Wyo. Stat. Ann. § 14-2-316 (LexisNexis 2007). [¶13] The district court chose an option that was not available to it. However, it is abundantly clear that the district court intended not to terminate Father's parental rights. I would construe the order issued by the district court accordingly and find that the order had the effect of dismissing the petition. Therefore, the district court had no jurisdiction to consider any other issues (such as support or visitation) and if it had done so, we would have no jurisdiction to consider them here. The district court did not have the authority to put this family "on hold" while other extraneous matters, which can readily be resolved under the banner of other available proceedings, are resolved. The denial of the petition to terminate parental rights is a dismissal of the action and that order is an appealable order under W.R.A.P. 1.05(a). W.R.C.P. 54(b) does not apply to these circumstances. [¶14] For these reasons, it is necessary for this Court to resolve this matter on its merits. The difficulty with this appeal results from the seeming inattention of the parties, and of both courts, to the special requirements set out in the statutes that provide for the termination of parental rights. We have recently re-emphasized our view that the procedures for termination of parental rights are mandatory, and failure to abide by them is fundamental error requiring reversal. LM v. Laramie County Department of Family Services, 2007 WY 189, ¶ 6, ___ P.3d ___, ___ (Wyo. 2007) (citing In re FM, 2007 WY 128, ¶¶ 25-26, 163 P.3d 844, 850-51 (Wyo. 2007)). In LM, we held that the failure of the district court to either appoint a guardian ad litem (GAL), or to make a finding on the record that the interests of the child are adequately represented by the petitioner or another party to the action, and are not adverse to that party, is reversible error. See § 14-2-312. Although it was not accomplished in as timely a manner as it should have been, the appointment of a GAL was directly raised before the district court at the hearing on the petition. The district court's resolution of that matter in this instance is not ideal. Of course, in cases that are decided post LM and FM, we anticipate that the matter will be addressed in a timely and in a clear manner. I conclude that the district court's attention to the matter of a GAL is clear enough to allow this Court to resolve the issue brought here in this appeal. The record is also clear that a decision not to appoint a GAL here was neither clearly erroneous nor an abuse of discretion. Moreover, the record is clear that the district court did not err in denying the petition for termination of Father's parental rights. Finality of judgments can be no more important in any civil or special proceeding than it is in one such as this, and I think that it is a mistake for the Court to further prolong the uncertainties that still face Child, Father, and Mother by dismissing this appeal. NOTES [1] Compare FML v. TW, 2007 WY 73, ¶ 5-7, 157 P.3d 455, 458-59 (Wyo. 2007), where we found that an order changing child custody was an appealable order because it affected a substantial right in a special proceeding. The cases are distinguishable because, here, the fundamental parent-child relationship was not altered by the order. [2] The parties claim that another case was filed (though they cannot agree who filed it) concerning the issues of child support and visitation. We have no evidence of such a case in the record. In any event, the filing of a new matter does not change the fact that those issues are outstanding in this case, though it may present issues of collateral estoppel and res judicata for one proceeding or the other.	01-03-2023	11-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2587313/	108 Cal. Rptr. 2d 385 (2001) 25 Cal. 4th 1082 25 P.3d 598 The PEOPLE, Plaintiff and Respondent, v. Travis SIMON, Jr., Defendant and Appellant. No. S077866. Supreme Court of California. June 25, 2001. 389 L. Richard Braucher, Richmond, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Ronald E. Niver, Joan Killeen and Ross C. Moody, Deputy Attorneys General, for Plaintiff and Respondent. GEORGE, C.J. Defendant Travis Simon, Jr., was convicted of two counts of assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (c)) after a trial in Contra Costa County. In the Court of Appeal, defendant challenged his convictions on the ground (among others) that the trial court erred in failing either to direct a verdict in his favor or to instruct the jury on the question of venuei.e., the propriety of the location of the trial. The Court of Appeal rejected the claim, concluding that defendant had waived any objection to venue in Contra Costa County by failing to raise such an objection at the preliminary hearing. In discussing the venue issue, however, the Court of Appeal recognized that past California appellate decisions have been inconsistent regarding the proper procedure for raising, preserving, and resolving a claim of improper venue in a felony prosecution, and the Court of Appeal urged this court to provide guidance on the matter both for this case and for future proceedings. We granted review in order to provide such guidance, limiting briefing and argument to the procedural and substantive issues relating to the question of venue. For the reasons discussed below, we conclude that pursuant to the general legal doctrine that a party may forfeit a right by failing to assert, it in a timely fashion, a defendant in a felony proceeding forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial. As we shall explain, in light of the fundamental 390 purposes underlying criminal venue provisions, the interests of both the accused and the state support a requirement that any objection to the proposed location of a felony trial must be specifically raised prior to the commencement of trial, before the defendant is required to undergo the rigors and hardship of standing trial in an assertedly improper locale, and before the state incurs the time and expense of conducting a trial in that county. Although we further conclude that, in light of the confusion in the prior California case law, our holding with regard to the proper procedure for raising an objection to venue shall apply only prospectively, we nonetheless determine that the Court of Appeal correctly rejected defendant's venue claims. Accordingly, we shall affirm the judgment of the Court of Appeal. I Neither party takes issue with the statement of facts set forth in the Court of Appeal's opinion in this matter, and because that narrative clearly and accurately summarizes the pertinent facts as disclosed by the record, we adopt, with minor stylistic changes, that portion of the Court of Appeal's opinion: A. The Events of January 19, 1997. At approximately 1:00 a.m. on January 19, 1997, El Cerrito Police Officer Michael Felmann was dispatched to the Eagles Hall located on the corner of Carlson Boulevard and Central Avenue in El Cerrito, which is in Contra Costa County. A large party being held at the hall was ending, and hall security had requested "police presence" to prevent any problems. Officer Felmann parked his patrol vehicle in the Union 76 gas station across the intersection from the hall. Another El Cerrito police officer, Jeff Doty, also answered the dispatch, and arrived in a separate vehicle. When the party broke up, more than 100 persons left the hall and began to congregate in the parking lot of the hall and in the parking lot of the Nation's Hamburgers outlet located on the corner of San Pablo and Central Avenues. Officer Felmann had been watching the situation for approximately 20 minutes when he noticed a light-colored Suburban stopped in front of Nation's Hamburgers. He believed some sort of disturbance was going on and heard people speaking loudly. Officer Felmann then heard three or four gunshots, and saw an African American man shooting a handgun into the crowd outside Nation's. The shooter was approximately 18 to 20 years of age, and was "sitting on the window sill" of the Suburban and holding onto the roof of the vehicle while firing. As these first shots were fired, the Suburban began accelerating rapidly and made a left turn onto Central Avenue. As the Suburban turned, the shooter fired three or four more shots at Officer Felmann and at another patrol car parked nearby. At trial, Officer Felmann identified the shooter as defendant's codefendant, Erick Jones. After the shots were fired at him, Officer Felmann began to follow the Suburban, which proceeded down Central Avenue, toward Interstate 80 (1-80). Officer Doty followed behind Felmann's patrol vehicle. Officer Felmann activated his emergency lights, and the Suburban "slowly pulled to the right-hand curb lane" after a block or so. The Suburban stopped for a brief moment, then moved forward another 15 or 20 feet and stopped again. Officer Felmann brought his patrol vehicle to a stop and, using his public address system, ordered the occupants of the Suburban to exit from the vehicle one at a time. Officer Felmann could not determine how many persons were in the Suburban, because the rear window was tinted and no one complied with his command to exit 391 from the vehicle. Officer Doty also stopped his vehicle, exited, and took cover behind the passenger door of Officer Felmann's vehicle. After 20 or 30 seconds, the Suburban sped off with its tires squealing. Officer Doty entered the passenger side of Officer Felmann's vehicle, and they resumed their pursuit of the Suburban. The Suburban proceeded onto I-80 westbound, in moderate traffic, traveling in excess of 100 miles per hour and weaving in and out of lanes. Officer Felmann estimated that after a "[m]inute maybe," just before the Suburban reached the Ashby exit, which is in Berkeley in Alameda County, the rear window was rolled down. Officer Felmann dropped back to a distance of approximately 300 feet and, because he thought someone in the Suburban might be preparing to shoot at him, turned on his spotlight in an attempt to "blind" the person in the back of the vehicle. At that point, he could see "numerous people" in the Suburban, including one in the very back of the vehicle, and four or five in the passenger seats. About 30 seconds after the window was rolled down, Officer Felmann "very clearly" saw defendant lift up a floor jack and drop it out of the Suburban and into the path of his patrol vehicle. Although he was traveling at a speed in excess of 100 miles per hour, Officer Felmann was able to take evasive action to avoid being hit by the jack. The window rolled up, the chase continued, and the Suburban proceeded onto Interstate 580 (1-580) heading eastbound "toward Oakland/Hayward." Just before the Suburban reached the Grand Avenue exit, the window of the Suburban again rolled down, and Officer Felmann saw defendant take a large tire and balance it in the open rear window of the Suburban for 15 to 20 seconds. The officer veered to the left, but was forced back behind the Suburban by other traffic. As soon as the officer pulled in behind the Suburban again, defendant released the tire. Officer Felmann still was travelling at speeds in excess of 100 miles per hour. The tire bounced, but Officer Felmann was able to avoid it by driving "to the right shoulder." At the Park Boulevard exit, the Suburban left 1-580 and the chase continued on city streets in Oakland. The Suburban eventually crashed, and Officer Felmann saw several young African American men run away, including one with braids whom he identified as defendant.[1] One of the occupants was found hiding under a tarp near the crash scene. None of the other occupants of the vehicle were apprehended that night. However, a pair of pants found in the "far back" of the Suburban contained a check payable to defendant.[2] A jack and a tire were recovered from, respectively, 1-80 and 1-580. A woman who lived two blocks from Nation's Hamburgers on Central Avenue in El Cerrito found a handgun on the walkway in front of her house the morning after the incident. The gun, a .38 special Colt Trooper, contained six expended shell casings. B. Defendant's Motion for Acquittal. Initially, the information alleged that the offenses involving defendant 392 counts five and sixwere committed in Alameda County.[3] On the second day of the three-day trial, the prosecution moved to amend the information to inelude the following jurisdictional clause: "It is further alleged, pursuant to Penal Code Section 781, that the offenses of Assault With A Deadly Weapon Against A Peace Officer, as alleged in Counts 5 and 6 of the Information, and the lesser offenses there involved, were committed in part in Contra Costa County and in part in Alameda County, and the acts and effects thereof and requisite to the consummation of the offenses occurred in Contra Costa County and Alameda County." After the close of evidence, defendant moved under Penal Code section 1118.1 for a judgment of acquittal on the ground that Contra Costa County was an improper venue in which to prosecute him. After allowing the parties time to research the venue issue overnight, the trial court denied defendant's motion for acquittal and granted the prosecution's motion to amend the information. C. Defendant's Request for a Jury Instruction on the Issue of Venue. After thus disposing of the parties' motions, the court turned to the issue of jury instructions. Before proceeding, however, Defense Counsel Howard Jameson again raised the issue of venue, suggesting that his client should be allowed to enter a new plea to the amended information. The court confirmed that defendant was pleading not guilty to the amended information, and deemed the amendment filed. Mr. Jameson continued, arguing that the prosecution now was required to prove venue by a preponderance of the evidence, and that an instruction would have to be given to the jury allowing them to make the decision. The court asked defense counsel to wait, stating: "I'll hear from you with the proposed instruction at the appropriate time." Toward the end of the jury instruction conference, defense counsel requested an instruction on the issue of venue as follows: "The Court: All right. Now, with regard to an instruction with regard to this venue "Mr. Jameson: I have no instruction, and I don't find any in CALJIC that would cover the issue. So I have no instruction to submit. "The Court: All right. You think venue is a jury question? 393 "Mr. Jameson: I believe it is. I believe that the District Attorney's burden is by a preponderance of the evidence, also. "Mr. Butts: I'm, frankly, not sure whether it is. Seeing no jury instruction, I'm inclined to believe that it is not. And seeing how it's dealt with pretrial, and that's all I know about the issue. "Mr. Jameson: It's a material allegation of the complaint in the information must be proven by the District Attorney. "The Court: Okay. Any authority you wish to submit? "Mr. Jameson: I don't haveno, I don't have any authority. No. I mean, I have it, but I don't have it in my head. I just know that's the rule of law that venue is an appropriate allegation in the complaint and in the Information, it must be proven by the District Attorney. "The Court: All right. Noted." Upon completion of the jury instruction conference, the jury returned to hear closing arguments. No instruction on the issue of venue was given. [End of passage from Court of Appeal opinion.] As noted above, the jury returned a verdict finding defendant guilty of two counts of assault with a deadly weapon on a peace officer, and the trial court entered judgment on that verdict. II In the Court of Appeal, defendant contended that the trial court committed two errors with regard to the question of venue, either of which assertedly compels reversal of his convictions. First, defendant, contending that the trial court erred in denying his motion for acquittal, maintained that the prosecution presented insufficient evidence at trial to support a finding of venue in Contra Costa County as to the offenses with which defendant was charged. Second, defendant argued that even if there was sufficient evidence at trial to support a finding that the offenses properly could be tried in Contra Costa County, the trial court nonetheless committed reversible error in failing to submit the question of venue to the jury for its determination. The Court of Appeal rejected both contentions. In discussing the first claim, the Court of Appeal, relying upon a number of earlier appellate court decisions, initially stated that a claim of improper venue "is properly raised in the first instance either by demurrer (if the defect appears on the face of the accusatory pleading), or as a question of fact for the magistrate at the preliminary hearing. (See People v. Tabucchi [(1976)] 64 Cal.App.3d [133,] 141, 134 Cal. Rptr. 245; People v. Mitten (1974) 37 Cal. App. 3d 879, 881-882, 112 Cal. Rptr. 713; and see 3 Erwin et al., Cal. Criminal Defense Practice (1998) § 61.03, p. 61-12.) If the defendant is held to answer at the preliminary hearing, the magistrate will be deemed to have concluded from the evidence presented that the county in which he or she sits is the proper venue for the prosecution, and the magistrate's express or implied finding of proper venue cannot be disturbed on appeal if there is at least some evidence to support the magistrate's decision. (People v. Mitten, supra, 37 Cal.App.3d at pp. 881-882, 885,112 Cal. Rptr. 713.)" The Court of Appeal went on to examine the evidence presented at the preliminary hearing (which was similar to the evidence presented at trial) and concluded that the record of the preliminary hearing contained sufficient evidence to support a finding that venue for the two assault charges properly was in Contra Costa County under Penal Code section 781. That statute provides: "When a public offense 394 is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory." (Italics added.) In reaching this conclusion, the Court of Appeal relied upon numerous decisions holding that section 781 is to be construed liberally to vest venue in a court of a county where preliminary acts, leading to the commission of a crime in another county, occur. (See, e.g., People v. Price (1991) 1 Cal. 4th 324, 385, 3 Cal. Rptr. 2d 106, 821 P.2d 610; People v. Powell (1967) 67 Cal. 2d 32, 63, 59 Cal. Rptr. 817, 429 P.2d 137.) The Court of Appeal relied, in particular, upon People v. Bismillah (1989) 208 Cal. App. 3d 80, 256 Cal. Rptr. 25, which concluded that a defendant who was stopped by the police in the City and County of San Francisco for a traffic violation and then fled in his vehicle across the Bay Bridge, ultimately colliding with a police car in Emeryville (in Alameda County), properly could be tried, under section 781, in San Francisco on the charge of aggravated assault on a police officer, even though the assault itself had occurred entirely in Alameda County. Furthermore, in addition to determining that "whereas herean implied finding of proper venue is supported by evidence at the preliminary hearing, it is not subject to further review on appeal," the Court of Appeal also concluded, apparently as an alternative ground for its rejection of defendant's initial venue claim, that "to the extent appellant had a colorable venue objection, it was apparent at the time of the preliminary hearing in February 1997, or, at the latest, when the information was filed in superior court in March of that year. Having failed to make an appropriate objection at that time, appellant has waived his right to raise the issue on appeal. [Citations.]" (Italics added.) Although the Court of Appeal based its rejection of defendant's initial venue claim at least in part on its conclusion that defendant had waived the issue by failing to object to venue at either the preliminary hearing or upon the filing of the information, in its discussion of defendant's second venue claimi.e., that the trial court had erred in failing to instruct the jury on the venue issue despite defendant's request for such an instruction at trialthe Court of Appeal did not rely upon defendant's failure to raise the venue issue prior to trial, but instead rejected that claim on the ground that the trial court justifiably had refused the request because the defense had failed to submit a jury instruction on the venue issue at the time the court and counsel conferred regarding proposed jury instructions, and had failed to direct the trial court to any authority supporting the defense's request for such an instruction. In a lengthy footnote in the portion of its opinion discussing defendant's second venue claim, the Court of Appeal acknowledged that a 1940 decision of the Court of AppealPeople v. Megladdery (1940) 40 Cal. App. 2d 748, 106 P.2d 84"expressly rejected the argument that venue or territorial jurisdiction is an issue for the court to decide in pretrial proceedings," but noted that "Megladdery conflicts with ... more recent authority which appears to hold that questions about venue should be resolved at the time of the preliminary hearing, and the issue is ordinarily not subject to review on appeal unless there is no evidence to support a finding of proper venue. (People v. Mitten, supra, 37 Cal. App.3d at pp. 881, 885, 112 Cal. Rptr. 713; see also People v. Tabucchi, supra, 64 Cal.App.3d at p. 141, 134 Cal. Rptr. 245.)" The Court of Appeal then declared that "[t]o the extent there is conflict in the case 395 law on the proper procedure for raising, preserving and reviewing claims of improper venue in felony prosecutions, we choose to follow the rule of People v. Mitten, supra, 37 Cal. App. 3d 879, 112 Cal. Rptr. 713, and People v. Tabucchi, supra, 64 Cal. App. 3d 133, 134 Cal. Rptr. 245, and would urge our Supreme Court to provide guidance on the issue if we are mistaken." We granted review to clarify the proper procedure for raising a claim of improper venue in a felony proceeding. III Traditionally, venue in a criminal proceeding has been set, as a general matter, in the county or judicial district in which the crime was committed. Under the provisions of Penal Code section 777,[4] that continues to be the general rule in California. That statute provides in part: "[E]xcept as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed."[5] Although under section 777 the county in which a felony was committed is, in the absence of another statute, the locale designated as the place for trial, in California numerous statutesapplicable to particular crimes or in specified circumstanceslong have authorized the trial of a criminal proceeding in a county other than the county in which the offense itself occurred. Thus, for example, section 786 has provided, since the original enactment of the Penal Code in 1872, that when property taken by burglary, robbery, theft, or embezzlement in one county has been brought into another county, the trial of the initial burglary, robbery, theft, or embezzlement offense may be held in either county. Similarly, section 783 long has provided that when a criminal offense is committed on a railroad train, a boat, a common carrier, or in a motor vehicle in the course of "its voyage or trip," the offense may be tried in any county "through, on, or over which" the vehicle passed in the course of the trip or voyage, without regard to the specific location where the offense occurred. Section 781, the provision relied upon by the prosecution in the present case, represents another such example, providing that when a criminal offense is committed in part in one county and in part in another, or when "acts or effects thereof constituting or requisite to the consummation of the offense" occur in two or more counties, the offense may be tried in any of the counties in which such acts or effects occurred.[6] 396 As past decisions recognize, venue provisions applicable to criminal proceedings serve a variety of purposes. First, "[v]enue in the place where the crime was committed promotes the convenience of both parties in obtaining evidence and securing the presence of witnesses." (People v. Guzman (1988) 45 Cal. 3d 915, 934, 248 Cal. Rptr. 467, 755 P.2d 917.) Second, from the perspective of a defendant, statutory enactments that provide for trial in a county that bears a reasonable relationship to an alleged criminal offense also operate as a restriction on the discretion of the prosecution to file charges in any locale within the state that it chooses, an option that, if available, would provide the prosecution with the considerable power to choose a setting that, for whatever reason, the prosecution views as favorable to its position or hostile or burdensome to the defendant's. As one leading criminal treatise explains: "The principal justification today for the venue requirement of trial in the vicinity of the crime is to `safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.'" (1 Wharton's Criminal Procedure (13th ed.1989) § 34, p. 183, quoting United States v. Cores (1958) 356 U.S. 405, 407, 78 S. Ct. 875, 2 L. Ed. 2d 873; see, e.g., United States v. Johnson (1944) 323 U.S. 273, 275-278, 65 S. Ct. 249, 89 L. Ed. 236.) Finally, venue provisions also serve to protect the interests of the community in which a crime or related activity occurs, "vindicat[ing] the community's right to sit in judgment on crimes committed within its territory." (People v. Guzman, supra, 45 Cal.3d at p. 937, 248 Cal. Rptr. 467, 755 P.2d 917.) In analyzing the procedural requirements governing venue, it is important to recognize at the outset that although the applicable California 397 statutes generally employ the terms "jurisdiction" and "jurisdictional territory" in designating the proper venue for the trial of a criminal proceeding (see, e.g., § 777, quoted at fn. 5, ante), the issue of venue in criminal as well as in civil cases does not involve a question of "fundamental" or "subject matter" jurisdiction over a proceeding. As a leading treatise explains: "If the crime is one over which California can and does exercise its legislative jurisdiction because it was committed in whole or in part within the state's territorial borders, California courts have jurisdiction to try the defendant. [Citation.] Moreover, if the charge is brought in a competent court (i.e., superior court for felonies, municipal court for misdemeanors), that court, no matter where located in the state, may have subject matter jurisdiction of the offense. [Citation.] [¶] Thus, venue is not jurisdictional in the fundamental sense; and, both in civil and criminal cases, a change of venue from the superior court of one county to the same court in another county does not affect its jurisdiction over the subject matter of the cause." (4 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Jurisdiction and Venue, § 45, p. 135, italics added (Witkin & Epstein); see also 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 701, pp. 892-893.) Although this point is a basic one, use of the term "jurisdiction" at times has created confusion in the venue context (as it has in other contexts [7]) and may be at least in part responsible for the inconsistency that the Court of Appeal noted between earlier and more recent California appellate decisions that have considered questions regarding the procedural requirements for raising an objection to venue in a criminal proceeding. (See, e.g., People v. Megladdery, supra, 40 Cal. App. 2d 748, 762, 106 P.2d 84.) Nonetheless, even if there once may have been some doubt as to this matter, it is now established beyond question that the issue of venue does not involve a matter of subject matter jurisdiction. If only the court or courts designated by the relevant venue statute possessed subject matter jurisdiction over the proceeding, "no change of venue from the locality could be valid, for subject matter jurisdiction cannot be conferred on a court...." (4 Witkin & Epstein, supra, Jurisdiction and Venue, § 45, p. 136.) Because it is beyond dispute that a change of venue may be ordered in a criminal case under appropriate circumstances, and also beyond dispute that any superior court to which a felony proceeding has been transferred has subject matter jurisdiction over the proceeding,[8] all modern decisions recognize that 398 criminal venue statutes do not involve a court's jurisdiction in the fundamental sense of subject matter jurisdiction. It is equally well established that a defendant's right to be tried in the venue authorized by statute is a right that is subject to waiver by the defendant. As noted above, in the absence of another applicable statute the venue of a felony proceeding in California is set by statute in the county in which the alleged offense occurred. (§ 777.) In many instances, however, a defendant, rather than insisting upon the right to be tried in that locale, will move for a change of venue, viewing trial in the location in which the crime occurred, by a jury drawn from that locale, as unduly prejudicial. (§ 1033.) If a defendant's motion for change of venue is granted, and the proceeding is transferred to a county other than the county designated by the applicable venue statute, the court to which the proceeding has been transferred clearly has authority over the matter and the defendant has waived any right to object to the venue of the trial. Although it is clear that a defendant waives his or her right to object to the venue of a criminal trial when the defendant affirmatively moves for a change of venue, the question presented by this case is whether a defendant properly should be held to have forfeited his or her right to object to such venue by failing specifically to raise such an objection in a timely fashion.[9] The United States Supreme Court never has directly addressed the issue under federal law, but the lower federal courts generally agree that a forfeiture of the right to object to the venue of a criminal trial may result from the inaction of the defendant. The case of Hagner v. United States (D.C.Cir.1931) 54 F.2d 446 contains what frequently is cited as the seminal discussion of the issue. In Hagner, the defendants were charged with using the federal mail for fraudulent purposes, based upon the mailing of a letter from Pennsylvania to Washington, D.C. Under the wording of the federal mail fraud statute as it read at the time of the offense, venue properly was only in the place where the letter was mailed (i.e., Pennsylvania), but the prosecution in Hagner was brought and tried in the District of Columbia. The defendants in Hagner did not object to venue prior to trial, but on appeal they contended that their convictions should be reversed because the evidence at trial failed to establish venue in the District of Columbia court. The federal circuit court in Hagner rejected this contention, explaining: "In the case now under consideration ... the defendants] ... appeared, and upon their arraignment pleaded not guilty. They were represented by counsel. 399 They might have pleaded to the jurisdiction. They did not. They elected to go to trial, on an indictment duly charging a violation of a law of the United States, in a court having general jurisdiction of the class of offenses charged. This, we think, was as complete an agreement to waive their constitutional privilege to refuse to be tried in the District of Columbia as though it were in express words." (54 F.2d at p. 449.) Subsequent federal cases confirm that "[d]efects relating to venue are waived unless asserted prior to trial" (United States v. Dryden (5th Cir.1970) 423 F.2d 1175, 1178; see, e.g., Harper v. United States (5th Cir.1967) 383 F.2d 795), particularly when the defect with regard to venue is apparent on the face of the accusatory pleading. (See, e.g., United States v. Jones (2d Cir.1947) 162 F.2d 72, 73; United States v. Price (2d Cir.1971) 447 F.2d 23, 27.) A significant number of our sister states also follow the rule that objections to the place of trial in a criminal proceeding are forfeited by a defendant unless raised before trial, although in many states this forfeiture rule has been established by a specific statute or court rule rather than by judicial decision. (See, e.g., 720 Ill. Comp. Stat. Ann. § 5/1-6(a) [cited in People v. Gallegos (1997) 689 N.E.2d 223, 226]; Iowa Code § 803.2 [cited in State v. Allen (Iowa 1980) 293 N.W.2d 16, 18]; La.Code Crim. Proc. Ann., art. 615 [cited in State v. Gatch (La.Ct.App.1996) 669 So. 2d 676, 681]; Md. Rules Proc, rule 4-252 [cited in Spencer v. State (1988) 543 A.2d 851, 856-857]; Minn. Rules Crim. Proc, rule 10.01 [cited in State v. Blooflat (Minn.Ct.App. 1994) 524 N.W.2d 482, 483-484]; Utah Code Ann. § 76-1-202 [cited in State v. Cauble (Utah 1977) 563 P.2d 775, 777].) In State v. McCorkell (1992) 63 Wash.App. 798, 822 P.2d 795, the appellate court reached this conclusion in the absence of a specific statutory provision, explaining: "Proper venue is not an element of a crime [citation], and is not a matter of jurisdiction. [Citation.] Rather, proper venue is a constitutional right which is waived if a challenge is not timely made. [Citations.] ... [¶] ... [¶] ... While prior cases make it clear that a defendant's constitutional right to proper venue is waived if not timely asserted, none has defined the boundaries of timeliness. We hold that a criminal defendant waives any challenge to venue by failing to present it by the time jeopardy attaches." (Id. at pp. 796-797, fn. omitted; see also State v. Dent (1994) 123 Wash.2d 467, 869 P.2d 392, 399-400.)[10] On the other hand, there are a number of recent out-of-state decisions that hold that a defendant does not forfeit an objection to venue by failing specifically to raise the objection prior to trial. (See, e.g., Navarre v. State (Fla.Dist.Ct.App. 1992) 608 So. 2d 525, 526; Jones v. State (2000) 272 Ga. 900, 537 S.E.2d 80, 83; State v. Miyashiro (1982) 3 Haw.App. 229, 647 P.2d 302, 304; State v. True (Me.1975) 330 A.2d 787, 789; People v. Greenberg (1997) 89 N.Y.2d 553 [678 N.E.2d 878, 879-880, 656 N.Y.S.2d 192, 193-194].) As noted by the opinion of the Court of Appeal in the present case, past California decisions do not provide consistent guidance on this question. 400 On the one hand, a series of very early California Supreme Court decisions held that, because "[t]he plea of not guilty puts in issue all the material averments of the indictment, including that of the locus delicti" (People v. Bevans (1877) 52 Cal. 470, 470-471), and because the prosecution bears the burden of proof on the question of venue, a judgment of conviction is subject to reversal on appeal (and to remand for a new trial) when the evidence at trial does not affirmatively establish that the trial was conducted in a statutorily authorized venue. (See, e.g., People v. Parks (1872) 44 Cal. 105; People v. Roach (1874) 48 Cal. 382; People v. Fisher (1876) 51 Cal. 319, 321-322; People v. Bevans, supra, 52 Cal. 470, 471; People v. Aleck (1882) 61 Cal. 137, 137-138.)[11] Although none of these early decisions discussed the question of waiver or forfeitureor, indeed, even recognized that a defendant could waive or forfeit the right to be tried in a statutorily designated venueall of them apparently proceeded from the assumption that a defendant adequately preserves the right to object to venue simply by entering a plea of not guilty, at least when the defect in venue is not apparent on the face of the accusatory pleading. Indeed, one early decisionPeople v. More (1886) 68 Cal. 500, 9 P. 461went so far as to hold that when an accusatory pleading adequately alleged that the crime in question was committed in the county in which the charge was brought, the superior court lacked authority in ruling on a motion under section 995 even to consider the issue of venue or to set aside an information on the ground that the evidence before the magistrate did not establish venue in the county where the proceeding had been filed.[12] On the other hand, later California Court of Appeal decisions have recognized a defendant's general ability to challenge venue at a pretrial stagenot only when the accusatory pleading itself allegedly reveals a defect in venue (see, e.g., People v. Goscinsky (1921) 52 Cal. App. 62, 64, 198 P. 40), but also when the evidence at the preliminary hearing or before the grand jury fails to support venue in the court in which the proceeding is to be tried. (See, e.g., Bogart v. Superior Court (1964) 230 Cal. App. 2d 874, 875-876, 41 Cal. Rptr. 480; In re Huber (1930) 103 Cal. App. 315, 316-317, 284 P. 509.) In contrast to the decision in People v. More, supra, 68 Cal. 500, 504, 9 P. 461, which suggested that the issue of venue generally is not appropriate for determination prior 401 or to trial, more recent appellate decisions strongly have voiced a directly contrary view, declaring that "[p]retrial resolution of venue questions is, in our opinion, eminently superior to disposition of the matter by jury verdict," and explaining that "[because ... venue is a waivable right, it is most appropriate that it be met, or waived, at the outset of proceedings." (People v. Sering, supra, 232 Cal. App. 3d 677, 684, fn. 3, 283 Cal. Rptr. 507.) In addition, the more recent Court of Appeal decisions explicitly have recognized that the question of venue constitutes "a nonfundamental aspect of jurisdiction which may be waived either by defendant's consent or failure to object." (People v. Gbadebo-Soda (1995) 38 Cal. App. 4th 160, 170, 45 Cal. Rptr. 2d 40, italics added; People v. Campbell (1991) 230 Cal. App. 3d 1432, 1443, 281 Cal. Rptr. 870.) Thus, unlike the earlier line of decisions, the Court of Appeal decisions that have addressed venue claims within the past decade have found, under a variety of circumstances, that a defendant has waived the right to raise on appeal an objection to venue by failing to take timely steps in the trial court specifically to raise or preserve the venue question. (See, e.g., People v. Sering, supra, 232 Cal. App. 3d 677, 685-687, 283 Cal. Rptr. 507 [defendant waived issue of venue by failing to request instructions on venue at trial]; People v. Remington, supra, 217 Cal. App. 3d 423, 429-431, 266 Cal. Rptr. 183 [defendant, who raised an objection to venue at the preliminary hearing, waived the right to object to venue on appeal by failing at trial to renew the objection to venue]; People v. Anderson (1991) 1 Cal. App. 4th 1084, 1088-1089, 3 Cal. Rptr. 2d 247 [defendant waived any venue objection by failing to raise the issue at trial]; People v. Tabucchi, supra, 64 Cal. App. 3d 133, 141, 134 Cal. Rptr. 245 [defendant waived venue objection by pleading guilty].) The holdings in Sering, Remington, and Anderson are clearly inconsistent with the early decisions indicating that a defendant's entry of a plea of not guilty is itself sufficient to preserve for appeal the issue of venue. In view of the conflict between the line of very early California Supreme Court decisions and the line of much more recent California Court of Appeal decisions, it is evident that a reexamination of the appropriate procedure for challenging venue in a felony proceeding is in order. In undertaking this reexamination, we begin with a consideration of the current California statutory provisions that relate to the issue of venue. As we shall see, although there is no current California statute that prescribes the procedure for challenging venue in a criminal felony proceeding, related legislative provisions shed considerable light on the general procedural doctrine that bears on the question before us. Perhaps the most closely related statutory provision is section 1462.2, which sets forth the procedure for challenging venue in a misdemeanor proceeding. Section 1462.2 initially provides that the proper court for the trial of a misdemeanor offense is "[a]ny municipal court ... established in the county within which the offense charged was committed, or the superior court in a county in which there is no municipal court....." The section then goes on to provide that "[i]f an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof other than the court herein designated as the proper court for the trial, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time of pleading, requests an order transferring the action or proceeding to the proper court.... The judge must, at the time of arraignment, inform the defendant of the right to be tried in the county 402 wherein the offense was committed." (Italics added.)[13] Thus, under section 1462.2, a defendant in a misdemeanor proceeding forfeits the right to object to venue unless he or she raises the objection at the time a plea to the charge is entered. In addition to the statutory provision relating to venue in misdemeanor proceedings, the statutory provisions relating to venue in civil actions also provide that when a defendant believes that an action has been filed in an improper or unauthorized venue and wishes to object to trial of the proceeding in that venue, the defendant must object specifically and promptly or the objection will be forfeited. In civil actions, an objection that a proceeding has been brought in the wrong venue is raised by filing a motion to change venue, specifying that the court designated in the complaint is not the proper venue for trial. (Code Civ. Proc, § 397, subd. (a).) Code of Civil Procedure section 396b, subdivision (a) provides that even when a civil action or proceeding is commenced in an improper venue, the action nonetheless may be tried in the court where commenced "unless the defendant, at the time he or she answers, demurs, or moves to strike, or ... within the time otherwise allowed to respond to the complaint," files a notice of motion for an order transferring the action to the proper court.[14] Thus, as with misdemeanors, any objection that a civil action has been brought in the wrong venue must be raised by a defendant specifically and at the very outset of the proceeding or it will be considered to have been forfeited. Although the foregoing statutes do not apply to criminal felony proceedings, they demonstrate that, as a general matter, the familiar legal doctrine providing that a right may be forfeited by a party's failure to assert the right in a timely fashion is applicable to the right to be tried in a statutorily designated venue. Over the past decade, this court has had occasion in a number of decisions 403 to discuss the basic rationale of the forfeiture doctrine. As we explained in People v. Saunders, supra, 5 Cal. 4th 580, 590, 20 Cal. Rptr. 2d 638, 853 P.2d 1093: "`"The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had...."' [Citation.] `"No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ...' [Citation.] [¶] `The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal. App. 603 at page 610, 204 P. 33 ...: "`In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal'"` [Citation.]" (Fn. omitted; see, e.g., People v. Scott (1994) 9 Cal. 4th 331, 353-356, 36 Cal. Rptr. 2d 627, 885 P.2d 1040; People v. Welch (1993) 5 Cal. 4th 228, 235, 19 Cal. Rptr. 2d 520, 851 P.2d 802; People v. Walker (1991) 54 Cal. 3d 1013, 1023, 1 Cal. Rptr. 2d 902, 819 P.2d 861.) In light of the nature and fundamental purpose of the venue safeguard, we conclude that under the general forfeiture doctrine, a defendant in a felony proceeding who fails timely to assert an objection to the venue in which the proceeding has been brought and is to be tried should be found to have forfeited any right to object to trial in that venue. As discussed above, the question of venue does not involve a matter of a court's fundamental authority or subject matter jurisdiction over a proceeding. Instead, the right to be tried in a statutorily designated venue is intended, from the perspective of an accused, as a safeguard against being required to stand trial in an unrelated and potentially burdensome distant location. This protection can be meaningfully afforded to a defendant only if he or she objects to venue before being required to proceed to trial in the allegedly improper locale. If a defendant's timely challenge to venue is sustained, the trial can be conducted in the proper location, before the parties, the witnesses, and the court have incurred the burden and expense of a trial in an unauthorized venue. Furthermore, because even when a criminal charge is filed in a county other than a statutorily authorized venue, a defendant may not view the location in which the charge has been filed as unduly burdensome or undesirable, but on the contrary may prefer for strategic reasons to be tried in that venue rather than in a statutorily designated locale, there is a compelling basis for not permitting a defendant who has remained silent and has allowed the proceeding to go forward in the initial location, thereafter to raise a claim of improper venue during trial or on appeal. As the United States Supreme Court pointed out in a somewhat related context, in the event a defendant were not required to raise such a claim in a timely fashion prior to trial, "[s]trong tactical considerations would militate in favor of delaying the raising of the claim in the hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult." (Davis v. United States (1973) 411 U.S. 233, 241, 93 S.Ct. 404 1577, 36 L. Ed. 2d 216 [discussing importance of requiring that any objection to the composition of the grand jury that returned the indictment be made by a timely pretrial motion].) Accordingly, taking into account the nature and purpose of the venue safeguard and the substantial state interest in protecting the integrity of the process from improper "sandbagging" by a defendant, we conclude that a defendant who fails to raise a timely objection to venue in a felony proceeding forfeits the right to object to venue either at trial or on appeal. (Accord, People v. Jones (1973) 9 Cal. 3d 546, 556, fn. 7, 108 Cal. Rptr. 345, 510 P.2d 705 [claim that jury panel is not representative of community is waived if not timely asserted]; People v. Laster (1971) 18 Cal. App. 3d 381, 387, 96 Cal. Rptr. 108 [claim that venue should have been changed in light of prejudicial pretrial publicity is forfeited if not timely asserted]; People v. Wilson (1963) 60 Cal. 2d 139, 146-148, 32 Cal. Rptr. 44, 383 P.2d 452 [constitutional and statutory right to speedy trial deemed waived if not asserted in timely fashion].)[15] Moreover, contrary to the position reflected in many of the early California venue cases discussed above, in our view a defendant cannot be found to have timely and adequately objected to venue simply by entering a not guilty plea to a felony charge. It is true, as defendant maintains, that under section 1019 a not guilty plea generally puts in issue every material allegation of the accusatory pleadingincluding any allegation in the accusatory pleading regarding the alleged location of the charged offenseand thus a not guilty plea clearly does not constitute a concession by the defendant that the proceeding has been filed in an appropriate venue and does not relieve the prosecution of its burden of establishing venue when a claim of improper venue is timely raised.[16] 405 For a number of reasons, however, we conclude that the entry of a not guilty plea cannot in itself reasonably be regarded as constituting an objection to venue. To begin with, although a not guilty plea represents a general denial by the defendant of his or her guilt of the charged offense, such a plea does not necessarily signify that the defendant challenges the location where the offense is alleged to have occurred, and, absent a more specific indication, such a plea ordinarily would not be understood as addressed to that subsidiary or ancillary point. Thus, from a realistic perspective, the entry of a not guilty plea cannot reasonably be viewed as putting either the court or the prosecution on notice that the defendant contests the alleged location of the crime. Second, to the extent a not guilty plea constitutes a denial of any allegation in an accusatory pleading regarding the location of an offense or any other allegation relevant to venue, this does not mean that the entry of the not guilty plea is the equivalent of the defendant's registering an objection to the proposed site of the trial. As explained above, even when a defendant is of the view that the criminal proceeding has not been filed in an authorized venue, he or she nonetheless may prefer for strategic purposes to be tried in the location where the proceeding has been filed rather than in a statutorily designated venue. Thus, the entry of a not guilty plea in itself simply does not indicate that the defendant objects to being tried in the location where the proceeding has been filed. Under these circumstances, we conclude that a defendant's entry of a not guilty plea cannot reasonably be treated as a timely assertion of an objection to venue. Indeed, the misdemeanor venue statute described abovewhich, as noted, provides that any objection to venue is forfeited "unless the defendant, at the time of pleading, requests an order transferring the action or proceeding to the proper court" (§ 1462.2)-is inconsistent with an assumption that, as a general matter, a simple plea of not guilty in a criminal case is sufficient in itself to raise and preserve an objection to venue. Because an objection to venue, if sustained, does not signify that the defendant will avoid a trial on the charges altogether, but instead means only that he or she will face trial in another location, a defendant who objects to standing trial in the original locale must bring a specific objection to venue to the attention of the court in a timely fashion. Accordingly, we conclude that insofar as past California decisions hold that the entry of a not guilty plea is sufficient to constitute a timely objection to venue (see People v. Parks, supra, 44 Cal. 105; People v. Bevans, supra, 52 Cal. 470, 471; People v. Aleck, supra, 61 Cal. 137, 137-138; People v. More, supra, 68 Cal. 500, 504, 9 P. 461), these decisions are in error and are overruled. Having concluded (1) that a defendant who fails to assert a timely objection to venue forfeits the right thereafter to object to venue, and (2) that a defendant's entry of a not guilty plea is insufficient to assert such an objection, we must determine at what point a defendant in a felony 406 proceeding must object specifically to venue in order for the objection to be considered timely. Although, as we have seen, the current misdemeanor venue statute section 1462.2provides that an objection to venue must be raised when the defendant first enters a plea to the charge, in the absence of an analogous statutory provision explicitly applicable to felony proceedings we do not believe that it would be appropriate to extend to the felony context such a stringent timeliness rule. Recent Court of Appeal decisions have indicated that in felony proceedings a claim of improper venue properly may be raised by demurrer (if the defect in venue appears on the face of the accusatory pleading), by a challenge to venue specifically raised before the magistrate at the preliminary hearing, or by a motion under section 995 challenging the validity of an indictment or information. (See, e.g., People v. Remington, supra, 217 Cal. App. 3d 423, 429, 266 Cal. Rptr. 183; People v. Mitten, supra, 37 Cal. App. 3d 879, 881-882, 112 Cal. Rptr. 713; Bogart v. Superior Court, supra, 230 Cal. App. 2d 874, 875-876, 41 Cal. Rptr. 480.) These cases have not suggested that an objection to venue in a felony proceeding is timely only if lodged at the time the defendant enters a plea. Instead, we conclude that, in the absence of an explicit statutory provision establishing an earlier time by which a challenge to venue must be raised in a felony proceeding, a specific objection to venue by a defendant should be considered timely if made prior to the commencement of trial. Although in many instances it may be reasonable to expect a defendant to raise such an objection at an earlier point in timeparticularly when the defendant is fully aware from the outset of the proceedings of the facts or evidence relevant to the venue issuea number of considerations persuade us that the commencement of trial represents an appropriate standard of timeliness to adopt by judicial decision. First, many of the decisions from other jurisdictions that have addressed the issue of timing have concluded that a defendant waives any challenge to venue if he or she fails to assert such an objection "prior to trial." (See, e.g., United States v. Dryden, supra, 423 F.2d 1175, 1178; State v. McCorkell, supra, 63 Wash.App. 798, 822 P.2d 795, 797 ["by the time jeopardy attaches"].) Second, the current California court rule governing the related matter of the time for filing a motion for change of venue in a criminal proceeding provides that "[e]xcept for good cause shown, the application [for change of venue] shall be filed at least 10 days prior to the date set for trial ...." (Cal. Rules of Court, rule 4.151, formerly rule 841 as amended and renumbered eff. Jan. 1, 2001, italics added.) Because under this rule a motion for change of venue is timely even if made shortly before trial, it appears reasonable, in the absence of a contrary legislative provision or court rule, also to treat an objection to venue as timely so long as the objection is asserted prior to the commencement of trial. On the other hand, given the respective interests of both the defendant and the state, we conclude that, in the absence of unusual circumstances, it is appropriate to consider untimely an objection to venue that is raised for the first time after the start of trial.[17] 407 In sum, under the general principles governing the forfeiture doctrine, and in light of the existing procedural rules in analogous areas, we conclude that a defendant who wishes to object to venue in a felony proceeding must make a specific objection to venue prior to the commencement of trial. A defendant who fails to raise such an objection prior to trial ordinarily will be deemed to have forfeited such a claim. To the extent that prior decisions of this court or the Court of Appeal are inconsistent with this conclusion (see People v. Parks, supra, 44 Cal. 105; People v. Roach, supra, 48 Cal. 382; People v. Fisher, supra, 51 Cal. 319; People v. Bevans, supra, 52 Cal. 470, 471; People v. Aleck, supra, 61 Cal. 137; People v. Meseros (1911) 16 Cal. App. 277, 116 P. 679; People v. Pollock (1938) 26 Cal. App. 2d 602, 80 P.2d 106; People v. Megladdery, supra, 40 Cal. App. 2d 748, 106 P.2d 84), those decisions are overruled or disapproved. IV Finally, defendant contends that even if this court determines that a defendant's failure to raise an objection to venue in a felony proceeding prior to trial constitutes a forfeiture of the right to challenge venue at trial or on appeal, it would be unfair to apply such a rule retroactively to this case. In support of this position, defendant emphasizes that at the time of his trial the line of early California Supreme Court decisions described above (see ante, 108 Cal.Rptr.2d at pp. 400-401, 25 P.3d at p. 611) had not been overruled, and that none of the more recent Court of Appeal decisions that have applied the forfeiture doctrine in the venue context specifically had held that a defendant is required to object to venue prior to trial. In view of both of these circumstances, we agree with defendant that our holding in this casethat a defendant in a felony proceeding who wishes to object to venue must make a specific objection to venue prior to the commencement of trial should be applied only prospectively. (See, e.g., People v. Welch, supra, 5 Cal. 4th 228, 237-238, 19 Cal. Rptr. 2d 520, 851 P.2d 802.) Indeed, at oral argument, the Attorney General conceded the propriety of applying any such newly announced rule prospectively only. Accordingly, in this case, we shall not treat defendant as having forfeited his venue claims by failing specifically to object to venue prior to trial. As we shall explain, however, we nonetheless conclude that the Court of Appeal properly rejected defendant's venue claims. Defendant initially maintains that the trial court erred in failing to direct a verdict in his favor on the issue of venue on the theory that the evidence at trial was insufficient to establish that Contra Costa County was a proper county for trial of the assault charges against him. This contention clearly lacks merit. As noted above, section 781 expressly provides that when a criminal offense is committed in part in one county and in part in another, or when "acts or effects thereof 408 constituting or requisite to the consummation of the offense" occur in two or more counties, the offense may be tried in any county in which such acts or effects occurred. Numerous decisions establish that the provisions of section 781 must be given a liberal interpretation to permit trial in a county where only preparatory acts have occurred (see, e.g., People v. Price, supra, 1 Cal. 4th 324, 385, 3 Cal. Rptr. 2d 106, 821 P.2d 610; People v. Douglas (1990) 50 Cal. 3d 468, 493, 268 Cal. Rptr. 126, 788 P.2d 640; People v. Powell, supra, 67 Cal. 2d 32, 63, 59 Cal. Rptr. 817, 429 P.2d 137), and in People v. Bismillah, supra, 208 Cal. App. 3d 80, 85-87, 256 Cal. Rptr. 25, the Court of Appeal correctly held, on facts very similar to those presented here, that when criminal conduct in one county results in a police pursuit and an assault on a pursuing officer in another county, under section 781 the assault charge may be tried in the county where the initial criminal conduct occurred. Thus, under the controlling cases, it is clear that the evidence supported venue in Contra Costa County. Defendant further contends that even if the evidence was sufficient to support a finding of venue in Contra Costa County, the trial court erred in failing to instruct the jury on the question of venue. The Attorney General, in briefing before this court, suggests that the numerous California decisions holding that the issue of venue presents a question of fact to be determined by a jury are outmoded and should be reconsidered. We have no occasion to address that issue here because, even were we to assume that a defendant is entitled to have the question of venue submitted to the jury when the issue has been preserved and the defendant has timely tendered an adequate proposed instruction, in the present case defendant failed to tender such an instruction. As the summary of the trial court proceedings set out above discloses (ante, 108 Cal. Rptr.2d at pp. 391-393, 25 P.3d at pp. 603-605), although the trial court afforded the parties a specific opportunity to research the venue issue, defense counsel failed to provide the court with a proposed jury instruction on venue at the pre-closing-argument jury instruction conference and, when questioned by the court at that conference, did not produce any specific authority supporting the giving of such an instruction. Of course neither the absence nor the presence of a pattern jury instruction on a given subject excuses a party from the ordinary obligation to submit proposed instructions to the trial court, as set forth in section 1093.5. (Cf. People v. Alvarez (1996) 14 Cal. 4th 155, 217, 58 Cal. Rptr. 2d 385, 926 P.2d 365; People v. Eckstrom (1974) 43 Cal. App. 3d 996, 1006, 118 Cal. Rptr. 391; People v. Roth (1964) 228 Cal. App. 2d 522, 527-528, 39 Cal. Rptr. 582.) Under these circumstances, the trial court did not err in denying defendant's request. (See, e.g., People v. Ramos (1997) 15 Cal. 4th 1133, 1180-1181, 64 Cal. Rptr. 2d 892, 938 P.2d 950 [citing § 1093.5]; People v. Terry (1969) 70 Cal. 2d 410, 420, fn. 4, 77 Cal. Rptr. 460, 454 P.2d 36.)[18] *409 V For the reasons set forth above, the judgment of the Court of Appeal is affirmed. KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., BROWN, J., concur. NOTES [1] Officer Felmann testified that at least two of the five or six African Americans he saw emerge from the vehicle had braids in their hair, and agreed that the braids defendant wore at trial were different from those worn by the assailant whom the officer had observed in the back of the Suburban. [2] Officer Felmann testified at the preliminary hearing that he had seen a check cashing card with a photograph of defendant in a wallet found by Officer Doty in the Suburban on the night of the incident. Officer Doty was unavailable to lay a foundation for the admission of this item at trial, however. Accordingly, the trial court ruled the card to be inadmissible. [3] Although the record before the Court of Appeal did not contain a copy of the complaint that was filed in municipal court and upon which the preliminary hearing was held, we have obtained a copy of the second amended complaint that was filed on January 24, 1997, in Contra Costa County Municipal Court. After having given appropriate notice to the parties, we take judicial notice of that document. (See Evid.Code, §§ 459, subd. (c), 455, subd. (a).) Count five of the complaint specifically alleges that "[o]n or about January 19, 1997, at Alameda County" (italics added) defendant Simon committed assault with a deadly weapon upon Peace Officers Doty and Felmann by means of a floor jack, and count six similarly alleges that on that same date at Alameda County" (italics added) defendant committed assault with a deadly weapon upon these officers by means of a spare tire. There is no indication in the record that defendant filed a general or special demurrer to these counts of the complaint or took any other step, either before or at the preliminary hearing, to object to the prosecution of these offenses in Contra Costa County. Further, as the Court of Appeal opinion indicates, the information that was filed in Contra Costa County Superior Court after defendant was held to answer following the preliminary hearing, like the complaint, specifically alleged that the offenses involving defendant were committed in Alameda County. [Footnote added by Supreme Court.] [4] All further statutory references are to the Penal Code unless otherwise indicated. [5] Section 777 provides in full: "Every person is liable to punishment by the laws of this State, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States; and except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed." Section 691, subdivision (b) defines the term "jurisdictional territory," when used with reference to a court, to mean "the city and county, county, city, township, or other limited territory over which the criminal jurisdiction of the court extends, as provided by law, and in case of a superior court mean[s] the county in which the court sits." (Italics added.) [6] Indeed, there currently are more than a dozen additional statutory provisions in California that authorize trial in a county other than the county in which all the elements of an offense occurred. (See, e.g., §§ 777a [parental failure to provide care may be tried in county in which minor is cared for or in county in which parent is apprehended], 777b [perjury committed outside of California may be tried in county in California "in which occurs the act, transaction, ... or proceeding, in relation to which the [perjured statement] was given or made"], 778 [offense commenced outside California may be tried in county in California in which "the offense is consummated"], 782 [an offense committed on the boundary, or within 500 yards of the boundary, of two or more counties, may be tried in either county], 783.5 [an offense committed in a park situated in more than one county may be tried in any county in which any part of the park is situated], 784 [offense of kidnapping, false imprisonment, or seizure for slavery may be tried in the county in which the offense was committed, or the county out of which the person was taken, or a county "in which an act was done by defendant in instigating, procuring, promoting, or aiding in the commission of the offense"], 784.5 [offense of child abduction may be tried in (1) the county in which the child resides or where the agency deprived of custody is located, or (2) the county in which the child was taken, detained, or concealed, or (3) the county where the child is found], 784.7 [when defendant has committed multiple incidents of specified sexual offenses against the same victim in different counties, any such incident may be tried in any of the counties], 785 [offense of incest may be tried in county where offense is committed or in county where defendant is apprehended; offense of bigamy may be tried in the county in which marriage took place, a county in which cohabitation occurred, or the county in which defendant was apprehended], 788 [offense of treason, when the overt act is committed out of the state, may be tried in any county], 789 [offense of theft or receipt of stolen property, when the property has been stolen or received in another state and then brought into the state, is any county "into or through ... which" the property has been brought], 790 [offense of murder or manslaughter may be tried in county where fatal injury was inflicted, or the county where the victim died, or the county in which his or her body was found], 795 [offense relating to an illegal prizefight may be tried in a county where any act was done toward commission of the offense, a county the offender passed through to commit the offense, or the county where the offender was arrested]; Bus. & Prof.Code, § 16754 [offense of illegal restraint of trade may be tried in any county in which the offense was committed in whole or in part, or a county where any of the offenders reside, or a county where any corporate defendant does business].) [7] The term "jurisdiction" is notoriously subject to confusion. As this court observed in Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280. 287, 109 P.2d 942: "The term, used continuously in a variety of situations, has so many different meanings that no single statement can be entirely satisfactory as a definition." The court in Abelleira further noted: "The concept of jurisdiction embraces a large number of ideas of similar character, some fundamental to any judicial system, some derived from the requirements of due process, some determined by the constitutional or statutory structure of a particular court, and some based upon mere procedural rules originally devised for convenience and efficiency, and by precedent made mandatory and jurisdictional. . . . [A]s a practical matter, accuracy in definition is neither common nor necessary. Though confusion and uncertainty in statement are frequent, there is surprising uniformity in the application of the doctrine by the courts, so that sound principles may be deduced from the established law by marshalling the cases and their holding in this field." (Id. at p. 291, 109 P.2d 942.) [8] In California, a superior court has subject matter jurisdiction with regard to any felony offense committed within the state, no matter where the offense was committed. (See, e.g., People v. Sering (1991) 232 Cal. App. 3d 677, 685, 283 Cal. Rptr. 507; People v. Remington (1990) 217 Cal. App. 3d 423, 428-429, 266 Cal. Rptr. 183.) [9] In this context, as in others, the terms "waiver" and "forfeiture" long have been used interchangeably. As the United States Supreme Court has explained, however, "[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the `intentional relinquishment or abandonment of a known right.' [Citations.]" (United States v. Olano (1993) 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508.) Thus, it is most accurate to characterize the issue as whether a defendant forfeits the right to object to venue by failing to timely raise such an objection prior to trial. Accordingly, even though past decisions in this area regularly use both terms, in our subsequent discussion we generally shall refer to the issue as one of forfeiture. (See also People v. Williams (1999) 21 Cal. 4th 335, 340, fn. 1, 87 Cal. Rptr. 2d 412, 981 P.2d 42; Cowan v. Superior Court (1996) 14 Cal. 4th 367, 371, 58 Cal. Rptr. 2d 458, 926 P.2d 438; People v. Saunders (1993) 5 Cal. 4th 580, 590, fn. 6, 20 Cal. Rptr. 2d 638, 853 P.2d 1093.) [10] In describing venue as a "constitutional right," the court in State v. McCorkell, supra, 63 Wash.App. 798, 822 P.2d 795, 796, was referring to a provision of the Washington Constitution, which embodies a right pertaining to venue. (See Wash. Const., art. I, § 22.) The California Constitution does not contain a criminal venue provision, and in California the proper venue for criminal trials is governed by statute. (See, e.g., Price v. Superior Court (2001) 25 Cal. 4th 1046, 1054-1056, 108 Cal. Rptr. 2d 409, 414-416, 25 P.3d 618, 622-624.) [11] Early cases frequently use the phrase "locus delicti"the place or location of the crimeto refer to the issue of venue. As we already have noted, although under section 777 venue generally is set in the county in which the crime occurred, there are numerous statutes that authorize trial in a county other than the county in which the crime occurred. (See, ante, 108 Cal.Rptr.2d at pp. 395-396, fn. 6, 25 P.3d at p. 607, fn. 6.) In such circumstances, a determination of the location of the crime does not necessarily resolve the venue question, and thus it is potentially misleading to equate the phrase "locus delicti" with the issue of venue. [12] The court in More stated in this regard: "If it had appeared on the face of the information (which it did not) that the offense charged was committed out of the jurisdiction of the court, the proper mode to take advantage of such objection would have been by demurrer. (Pen.Code, sec. 1004.) But in a case like the one we are now considering, where the information is good on its face, defendant should have availed himself of the objection to the jurisdiction under the plea of not guilty; and in that event it would have been a question for the jury to determine. (Pen.Code, sec. 1012.) [¶] We do not think the Superior Court on a motion to set aside the information had any right to determine the question." (People v. More, supra, 68 Cal. at p. 504, 9 P. 461.) [13] Section 1462.2 provides in full: "Except as otherwise provided in the Vehicle Code, the proper court for the trial of criminal cases amounting to misdemeanor shall be determined as follows: Any municipal court, having jurisdiction of the subject matter of the case, established in the county within which the offense charged was committed, or the superior court in a county in which there is no municipal court, is the proper court for the trial of the case. "If an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof other than the court herein designated as the proper court for the trial, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time of pleading, requests an order transferring the action or proceeding to the proper court. If after such request it appears that the action or proceeding was not commenced in the proper court, the court shall order the action or proceeding transferred to the proper court. The judge must, at the time of arraignment, inform the defendant of the right to be tried in the county wherein the offense was committed." [14] Code of Civil Procedure, section 396b, subdivision (a), provides in full: "Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court." [15] Because a defendant's failure to raise a timely objection to venue often will reflect a strategic decision on the part of the defense, and because the commencement of a proceeding in an improper venue is a defect that easily can be remedied if timely raised, the issue before us is readily distinguishable from a defendant's failure timely to raise a claim that the statute of limitations on a charged criminal offense has run. Consequently, our decision in People v. Williams, supra, 21 Cal. 4th 335, 87 Cal. Rptr. 2d 412, 981 P.2d 42, reaffirming the long-standing rule that a criminal defendant's failure to raise a statute of limitations claim prior to or at trial does not constitute a forfeiture of such a claim, is consistent with our determination in the present case that the general forfeiture doctrine is applicable to a claim of improper venue. (Cf. People v. Stanfill (1999) 76 Cal. App. 4th 1137, 1150, 90 Cal. Rptr. 2d 885 [holding that, because of the substantial risk of gamesmanship, "a defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense"].) [16] Section 1019 provides in full: "The plea of not guilty puts in issue every material allegation of the accusatory pleading, except those allegations regarding previous convictions of the defendant to which an answer is required by Section 1025." In their brief before this court, the People question whether an allegation regarding venue constitutes a "material allegation" of an accusatory pleading within the meaning of section 1019, noting that section 950 states only that "[t]he accusatory pleading must contain: [¶] 1. The title of the action, specifying the name of the court to which the same is presented, and the name of the parties; [H] 2. A statement of the public offense or offenses charged therein." In response, however, defendant points out that section 959 additionally provides that "[t]he accusatory pleading is sufficient if it can be understood therefrom: [¶] ... [¶] 5. That the offense charged is triable in the court in which it is filed, except in case of a complaint filed with a magistrate for purposes of a preliminary examination," and cites numerous cases indicating that the accusatory pleading generally is required to allege that venue is proper. (See, e.g., People v. Wong Wang (1891) 92 Cal. 277, 281, 28 P. 270.) Because when a defendant objects to venue, the People clearly have the obligation to establish (by a preponderance of the evidence) that venue is proper (see generally 4 Witkin & Epstein, supra, Jurisdiction and Venue, § 48, pp. 137-138, and cases cited), any allegation regarding venue contained in an accusatory pleading is a material allegation within the meaning of section 1019. Nonetheless, as explained hereafter, this does not mean that the entry of a not guilty plea is sufficient in itself to constitute a specific objection to venue. [17] It sometimes is suggested that when the accusatory pleading does not disclose on its face that the charge has been brought in an improper venue, it is unfair to require a defendant to raise an objection to venue prior to trial, because it is the prosecution that is aware of the evidence supporting the charges and revealing the location of the offense. In our view, however, this objection fails to take into account the circumstance that contemporary criminal procedural rules afford a defendant broad access prior to trial to the evidence underlying the prosecution's case, and a defendant ordinarily can be expected to recognize whether he or she is being required to stand trial in an improperly distant and unduly burdensome locale. Because in this case the accusatory pleadings, on their face, disclosed that the charged assaults occurred in Alameda County rather than in adjacent Contra Costa County where the charges were filed (see ante, 108 Cal. Rptr. 2d 392, & fn. 3, 25 P.3d 604, & fn. 3), we have no occasion to decide whether unusual circumstances may exist in which the revelation of new evidence at trial would render a defendant's venue objection timely even though the objection was raised for the first time during trial. [18] In support of his claim that the trial court erred in failing to instruct the jury on the venue issue or to submit that issue to the jury for its determination, defendant relies upon a number of cases that hold that venue presents a "question of fact" that properly should be decided by the jury. (See, e.g.. People v. More, supra, 68 Cal. 500, 504, 9 P. 461; People v. Megladdery, supra, 40 Cal. App. 2d 748, 762-764, 106 P.2d 84.) Although numerous California decisions contain similar language, the characterization of venue as presenting the type of factual question that properly is to be determined by a jury, rather than the type of procedural legal issue that is determined by the court, appears inconsistent with contemporary treatment of other, analogous procedural issues that do not relate to the guilt or innocence of the accused (such as whether the prosecution has complied with statutory and constitutional speedy trial requirements)issues that uniformly are treated as legal questions to be decided by the court rather than a jury. (See, e.g., People v. Sanders (1990) 51 Cal. 3d 471, 489-496, 273 Cal. Rptr. 537, 797 P.2d 561; People v. Wilson, supra, 60 Cal. 2d 139, 146-148, 32 Cal. Rptr. 44, 383 P.2d 452; see generally People v. McGee (1977) 19 Cal. 3d 948, 967-968, 140 Cal. Rptr. 657, 568 P.2d 382.) Indeed, treating venue as presenting a question to be resolved by a jury appears particularly problematic when one considers that the principal purpose underlying the venue statutes from a defendant's perspectiveto protect a defendant from being required to stand trial in a distant and unduly burdensome localecan be meaningfully effectuated only if a defendant's venue challenge is considered and resolved prior to trial, well before a jury is empaneled or any issue is submitted to it. In addition, unless the jury is instructed to return a separate special verdict on the issue of venue before returning a general verdict, a finding that the proceeding has been brought in an improper venue can result in an unwarranted acquittal, rather than in a new trial in an authorized venue. Because in this case defendant failed at trial to provide an appropriate jury instruction or authority supporting the giving of such an instruction, we have no occasion to determine whether, in the absence of legislative action, it would be appropriate for this court to revisit the lengthy and uniform line of decisions holding that the issue of venue presents a question of fact to be determined by a jury. (See People v. Megladdery, supra, 40 Cal. App. 2d 748, 766, 106 P.2d 84 ["In view of the long line of decisions [treating the question of venue as a jury question], it is our belief that if the rule is to be changed it should be done by the legislature...."].)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875452/	490 So.2d 210 (1986) FLEA MARKET, U.S.A., INC., Appellant, v. Adolf COHEN and Marlene Cohen, His Wife, d/b/a Coheny Island, Appellees. No. 86-16. District Court of Appeal of Florida, Third District. June 24, 1986. Wilbur G. Silverman, Bay Harbor Islands, for appellant. Burnstein & Knee and Jerrold Knee, Hollywood, for appellees. Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ. SCHWARTZ, Chief Judge. We find no abuse of discretion in the order under review, which conditioned granting the appellant's eve-of-trial motion for continuance upon the payment of the appellees' attorney's fees caused by the delay. Western Union Telegraph Co. v. Suit, 153 Fla. 490, 15 So.2d 33 (1943); 11 Fla.Jur.2d Continuances § 40 (1979); Annot., Continuance of Civil Case as Conditioned upon Applicant's Payment of Costs or Expenses Incurred by Other Party, 9 A.L.R. 4th 1144, 1163-66 (1981); compare Speight v. City of Fort Walton Beach, 180 So.2d 385 (Fla. 1st DCA 1965) (condition invalid when party entitled to continuance as a matter of right). Moreover, because the appellant accepted the continuance without objection, the basic rule which forbids a party from appealing from the adverse portion of an order after accepting its benefits, 3 Fla.Jur.2d Appellate Review § 21 (1978), precludes the present attempt to reverse the fee award. 11 Fla.Jur.2d Continuances § 40 (1979) ("In accepting the continuance, the applicant thereby assents to the terms or conditions imposed and must comply with them."). Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3348780/	In this action the plaintiff claims a decree of divorce from the defendant upon two grounds, desertion and adultery. The facts of the case, though uncontested in this court, are so unusual and so seriously affect parties other than the plaintiff and the defendant that the court has considered it necessary that all of the evidence and the law applicable thereto be considered with great care. In this effort counsel for the plaintiff have conscientiously and materially aided the court. An affidavit has been presented to the court to the effect Page 72 that the defendant is not now in the military service of the United States and is not so prevented from appearing in this court and offering any defense that he may have. By order of this court personal service of process in this case was duly made upon the defendant in the City of Pittsburgh, State of Pennsylvania, by an indifferent person, and proof of such service is made to this court. Notwithstanding the fact that the defendant has had due and timely notice of the pendency of this action in this court, he has not appeared personally or by counsel to defend in this action. We consider first the claim of desertion. Undisputed evidence, fully credited by the court, has been presented that the plaintiff and the defendant were living together as husband and wife in Hartford in this State during the month of March, 1938, and for some years prior thereto. The plaintiff and the defendant continued to have their residence in the same dwelling house until July, 1938, since which time they have not resided in the same dwelling house. From March, 1938, to the present time the defendant has not contributed to the maintenance and support of the plaintiff and has not had sexual intercourse with the plaintiff; all against her desire and will. In the spring of 1940 the defendant personally asked the plaintiff to "give him a divorce." Upon her refusal to do this, it was later suggested to the plaintiff by counsel for the defendant that the plaintiff and the defendant "get together about a separation agreement." One of the grounds of divorce under the law of this State is "wilful desertion for three years with total neglect of duty." (Gen. Stat. [1930] § 5174.) Our Supreme Court of Errors has defined desertion to be "Wilful absenting of one party to the marriage contract from the society of the other, coupled with the intention on the part of the absenting party to live apart, in spite of the wish of the other, and not to return to cohabitation. "This definition .... involves the co-existence of the following conditions: (1) Cessation from cohabitation, (2) an intention on the part of the absenting party not to resume it, (3) the absence of the other party's consent, and (4) the absence of justification." Dow vs. Dow, 97 Conn. 488, 490. Page 73 See, also, Colt vs. Colt, 90 id. 658; Todd vs. Todd, 84 id. 591;Tirrell vs. Tirrell, 72 id. 567; Bennett vs. Bennett, 43 id. 313. I find as a fact in this case that the defendant did desert the plaintiff. But there are further facts in this case that require serious consideration. On June 11, 1940, the Circuit Court of the County of Adair, State of Missouri, granted a decree of divorce to William J. Mundhenk (the present defendant) against Dorothy Mundhenk (the present plaintiff). This court cannot in this case grant a decree of divorce to the plaintiff against a man who is not her husband — against a man who is divorced from her. We must therefore examine the proceedings in the court that granted a decree of divorce to the defendant from the plaintiff. A certified copy of the decree of divorce granted to the defendant by the Circuit Court of Adair County, State of Missouri, is in evidence in this case. This in part is as follows: "ORDER OF PUBLICATION — IN VACATION, APRIL 19, 1940. Now at this day comes William J. Mundhenk, the plaintiff in the above entitled cause of action, before the undersigned Clerk of the Circuit Court of Adair County, in vacation, and files his petition and affidavit, stating among other things, that the above named defendant, Dorothy Mundhenk, is not a resident of this state and cannot be summoned to this action by ordinary process of law. It is thereupon ordered by the clerk aforesaid, in vacation, that publication be made notifying her that an action has been commenced against her by petition in the Circuit Court of Adair County, in the State of Missouri, the general nature and object of which is to obtain a decree of divorce from the bonds of matrimony contracted between plaintiff and defendant. That unless she be and appear at the next term of said court, to be holden at the courthouse in Kirksville, within the county of Adair on the 10th day of June, 1940, and on or before the first day thereof, judgment will be rendered against her. It is further ordered that a copy hereof be published in the Adair County Herald, a newspaper published in said County of Adair, for four weeks successively, the last insertion to be at least fifteen days before the commencement of the next term of said Court." Page 74 "DIVORCE "Plaintiff states that on the 20th day of September, 1927, in the State of Ohio, he was lawfully married to the defendant, and that he continued to live with her from and after said date until the 1st day of April, 1939. That during all that time the plaintiff demeaned himself toward the defendant in a true and faithful manner, and at all times herein mentioned treated her with kindness and affection, and discharged all of his duties as her husband. "Plaintiff states that during said marriage, plaintiff and defendant adopted a child, now of the age of three and one-half years, Peter Mundhenk, now in the custody of the defendant. Plaintiff states for his cause of action that since the time of said marriage between plaintiff and defendant, said defendant wholly disregarding her duties as the wife of this plaintiff, has offered such indignities as to render his condition in life intolerable as the husband of defendant, in this, to wit: That defendant has on many and divers occasions displayed towards plaintiff a violent and ungovernable temper. That on many occasions, and without justification, defendant has threatened to leave plaintiff, and has on many occasions, left and absented herself from this plaintiff for periods of three, four and six months, against the wishes and desires of the plaintiff, during which times, plaintiff did not know of or hear from defendant, nor was he informed of her whereabouts, and upon which occasions defendant would take with her said adopted child. The plaintiff has been deprived of the comfort, companionship and consortium of defendant that he was entitled to by virtue of said marriage, and has been deprived on such occasions of the companionship of said minor child. That on repeated and various occasions, defendant has told to and stated to plaintiff that she did not care for him, and that she did not love him. That defendant has absented herself without reasonable cause, from this plaintiff for the space of one year next last past, that the defendant is not a resident of this state and cannot be summoned to this action by ordinary process of law. "Plaintiff states that he is now a resident of Adair County, State of Missouri, and has resided within this state one whole year next last past before the filing of this petition. "WHEREFORE, Plaintiff prays to be divorced from the bonds of matrimony contracted as aforesaid with the defendant. Page 75 That he be restored to all of the singular rights, privileges and immunities of a single and unmarried man, and for such other orders touching the premises as may be meet, just and proper. "William J. Mundhenk Plaintiff." The grounds of divorce above set forth the plaintiff in this case denies. These might be disputed questions. The fact, however, cannot be disputed that during the entire time that the action for divorce was pending in Missouri the defendant in this case knew the whereabouts, the domicile, the residence of the plaintiff in this case, and yet he gave no notice to the plaintiff in this case of the pendency of the action in Missouri, other than by publishing a notice in a newspaper published in Adair County, State of Missouri. He not only knew her residence, but he saw and talked with her in the spring of 1940 and asked her to "give him a divorce." In the summer of 1940 his counsel communicated with her, but gave her no notice that their client had been granted a decree of divorce in Missouri. The plaintiff did not know of the decree of divorce in Missouri until after it had been granted and until after the defendant married another woman. It is inconceivable that a court would grant an order of notice to be published in a newspaper published in Missouri, unless such court was informed that the whereabouts of the person to be notified were unknown. It is perfectly obvious that an imposition was practiced upon the court in Missouri by the defendant in this case or by his counsel, and that the decree of divorce granted by the Missouri court was secured by fraud of the defendant in this case. Under these circumstances this court is not required to give effect to the decree of divorce granted to the defendant in this case against the plaintiff in this case by the Missouri court. The decree of the Missouri court is void by reason of lack of notice to the defendant in that case (the plaintiff in this case) and by reason of the obvious fraud practiced by the plaintiff in the Missouri case upon the Missouri court in securing the decree of divorce. Haddock vs. Haddock, 201 U.S. 562;Pettis vs. Pettis, 91 Conn. 608; Mills vs. Mills, 119 id. 612. In so far as the plaintiff in this case is concerned, the decree of the Missouri court is of no effect and did not cause her to cease to be the wife of the defendant in this case. *Page 76 It is in evidence in this case that since the decree of divorce was granted to the defendant in this case by the Missouri court he has been married to another woman, and a child has been born to them. Cohabitation by the defendant with a woman other than the plaintiff constitutes adultery on the part of the defendant. The court might hesitate to grant a decree in this case that brings such unfortunate results upon innocent persons, the woman whom the defendant has married and the child born to them. The defendant is entitled to no consideration by this court. It is his fraud upon the Missouri court that has brought about this situation. But his status, the status of the woman whom he has married and of their child, to say nothing of the status of the plaintiff, are now uncertain. This can be no better illustrated than by the fact in evidence in this case that the plaintiff cannot join with relatives in selling real estate in the State of Ohio, because her marriage status is uncertain. The true status having been established, a decree of divorce being granted to the plaintiff in this case, the defendant is then free under the law of this State to marry whom he chooses, and the child of whom he and the woman whom he so marries would be thus legitimatized. The plaintiff and the defendant have an adopted child, Peter, born November 25, 1937. A decree of divorce is granted to the plaintiff against the defendant on the grounds of desertion and adultery. It is decreed that the plaintiff's name be changed to Dorothy A. Renkert. In accordance with the prayer of the plaintiff, it is decreed that the defendant pay unto the plaintiff $20 per month for the maintenance of the child, Peter, and that he have the right to reasonable visitation and partial custody of such child, Peter.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/725404/	94 F.3d 652 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Carlos Enrique RIVERA-TORRES, a.k.a. Carlos Enrique Torrez, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 95-70848. United States Court of Appeals, Ninth Circuit. Submitted Aug. 12, 1996.Decided Aug. 22, 1996. Before: BROWNING, SCHROEDER, and RYMER, Circuit Judges. 1 MEMORANDUM* 2 Carlos Enrique Rivera-Torres, a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals ("BIA") affirming an immigration judge's (IJ) order finding him deportable as an alien convicted of an aggravated felony. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition for review. 3 Rivera-Torres contends that the BIA erred by affirming the IJ's denial of his request for a continuance of his deportation proceeding while his parents complete their naturalization petitions, which would enable Rivera-Torres to seek relief from deportation through an adjustment of status application under 8 U.S.C. § 1255. This contention lacks merit. 4 "The decision to grant or deny a continuance is in the sound discretion of the [IJ] and will not be overturned except on a showing of clear abuse." De La Cruz v. INS, 951 F.2d 226, 229 (9th Cir.1991); Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). An IJ may grant an alien's request for a reasonable continuance "for good cause shown." 8 C.F.R. § 242.13. Among the factors an IJ should consider in deciding whether to grant a continuance are (1) the immigration court's convenience, (2) whether the need for a continuance is due to the alien's unreasonable conduct, and (3) the number and duration of continuances previously granted the alien. Baires, 856 F.2d at 92-93. 5 Here, the IJ's denial of a continuance was not an abuse of discretion. Deportation proceedings had been ongoing for over eighteen months and Rivera-Torres had been allowed a continuance in order to change the venue of the hearing. At the hearing, Rivera-Torres informed the IJ that his parents had only applied for citizenship within the last three months. In opposing the continuance, the attorney for the INS informed the IJ that such naturalization petitions take at least 12-18 months. Given these circumstances, the mere pendency of naturalization proceedings for Rivera-Torres's parents was not "good cause" to continue the proceedings. See De La Cruz, 951 F.2d at 229. Furthermore, no purpose would have been served by a continuance because Rivera-Torres was clearly deportable and, at the time, ineligible for adjustment of status. See id. 6 Rivera-Torres also asked this court to remand his petition based on his father's newly obtained citizenship in a motion which we previously denied. However, in the exercise of discretion, we stay the mandate for 60 days from the filing of this memorandum to allow Rivera-Torres the opportunity to file a motion to reopen and to seek a stay of deportation from the BIA. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir.1992). 7 PETITION FOR REVIEW DENIED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/1032684/	An unpub\|ishljd order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123 ,CLERK’S ORDER IN THE SUPREME COURT OF THE STATE OF NEVADA AMY l\/[ARIE GRAY, No. 61096 Appellant, VS. d ' ;. THE sTATE oF NEVADA, § l Respondent. MAY 2 2Ul3 ORDER DISMISSING APPEAL Qn December 31, 2012, this court entered an order directing appellant to file her request for leave to proceed in forma pauperis in the district court. Appellant was also cautioned that her failure to either properly seek leave in the district court or pay the filing fee within 30 days /Would result in the dismissal of this appeal. To date, appellant has not paid the filing fee or responded to this court’s order. Accordingly, cause appearing,’.this appeal is dismissed. lt is SO ORDERED. CLERK OF THE SUPREME COURT TRACIE K. LINDEl\/IAN BY: l cc: Hon. Steven E. Jones, District Judge, Family Court Division Amy l\/larie Gray g ` Clark County District.Attorney/Juvenile Division Eighth District Court Clerk l SuPnEME CouRT 0F NEvAoA s /z~)»/@a>	01-03-2023	07-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608461/	432 P.2d 845 (1967) 78 N.M. 489 Iva Lee CURBELLO, Plaintiff-Appellant, v. Vivian Margarite VAUGHN, Individually and as Executrix of the Last Will and Testament of Edna Baker Rice, Deceased, Belle Rizzuto, Clyde H. Hurley, E. J. Hurley, Emil Hurley and Hazel Thorpe, Defendants-Appellees. No. 8402. Supreme Court of New Mexico. October 23, 1967. E.P. Ripley, Zinn & Donnell, Santa Fe, for appellant. Emmett C. Hart, Tucumcari, for appellees. OPINION NOBLE, Justice. We dismissed the first appeal of this case as premature because no formal judgment had been entered. Curbello v. Vaughn, 76 N.M. 687, 417 P.2d 881. Findings of fact and conclusions of law had been entered by Honorable E.T. Hensley, Jr., the trial judge, who is now Chief Judge of the Court of Appeals. A judgment conforming to the decision of Judge Hensley has now been entered by Judge Blythe of the Ninth Judicial District sitting by stipulation. This appeal is from that judgment The action sought specific performance of an oral agreement to devise certain real estate to plaintiff in consideration of her taking care of Edna Baker Rice, the decedent, during the remainder of her life. At the conclusion of plaintiff's case, she 846 moved, pursuant to Rule of Civil Procedure 15(b) (§ 21-1-1(15) (b), N.M.S.A. 1953), and the trial court granted permission to amend the complaint to conform to the proof, so as to allege that during her lifetime the decedent conveyed certain of the real estate to plaintiff. The amended pleading then sought a judgment declaring Lots 1 and 2 in Block 9 of the Russell Addition to Tucumcari to be vested in plaintiff in fee simple. Plaintiff requested findings and conclusions so declaring the title and defendants' requested findings to the effect that there was only a conditional delivery of the deed with its subsequent return to the grantor by an escrow agent at plaintiff's request with intent that it be destroyed and ineffective. The court refused all requests concerning the deed and its effect and made none concerning it. The trial court must, when requested, find one way or another upon a material issue. Rule of Civil Procedure 52(B) (§ 21-1-1(52) (B), N.M.S.A. 1953): "(a) * * (1) Upon the trial of any case by the court without a jury, its decision which shall consist of its findings of fact and conclusions of law, must be given in writing and filed with the clerk in the cause. In such decision the court shall find the facts and give its conclusions of law pertinent to the case, which must be stated separately. "(2) The findings of fact shall consist only of such ultimate facts as are necessary to determine the issues in the case, as distinguished from evidentiary facts supporting them. Such findings shall be separately stated and numbered. "* * " (Emphasis supplied.) In Laumbach v. Laumbach, 58 N.M. 248, 270 P.2d 385, we said, concerning its construction: "We consider this a mandatory provision. Obviously the rule means, that where, as here, request is seasonably made, it is the duty of the trial court to find all of the ultimate facts. * *" See, also, Edington v. Alba, 74 N.M. 263, 392 P.2d 675; State ex rel. Reynolds v. Bd. of County Comm'rs, County of Guadalupe, 71 N.M. 194, 376 P.2d 976. Clearly, whether a deed executed by the decedent during her lifetime was valid and was unconditionally delivered to the plaintiff, so as to vest in her a present fee simple title to certain of the real estate involved in this action, or whether as contended by defendants there was only a conditional delivery with a subsequent return of it to the grantor with the intent that it be not effective, was put in issue by the amendment to conform to the proof. In this case, the court was requested by both parties to make findings of fact on a material issue, and on conflicting evidence. Failure to do so constitutes error. It is unfortunate that this case cannot be merely remanded with direction to make findings one way or another respecting the effect of the deed and certify those findings to this court. However, in view of the fact that the judge before whom the case was tried has since resigned as district judge, and that the Honorable Dee C. Blythe, District Judge, has been agreed upon by stipulation of the parties to act in "any and all further district court proceedings," and has in fact acted in certain matters, makes such a remand impossible. In view of the fact that the omitted findings cannot be made by the judge who heard the evidence, the judgment must be reversed and the cause remanded with instructions to vacate the judgment and grant the parties a new trial. The costs will be equally divided between the parties. It is so ordered. COMPTON and CARMODY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875461/	288 Wis.2d 462 (2005) 706 N.W.2d 702 2005 WI App 254 HART v. MEADOWS APARTMENTS. No. 2005AP000569. Court of Appeals of Wisconsin. October 26, 2005. Unpublished Opinion. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/8326472/	Billings, Thomas P., J. The plaintiff (“Kherlop”), a designer-builder, prepared plans and undertook the construction (through subcontractors) of an addition to the defendants’ (the “Domoses’ ”) Belmont home. Concerned about what they were seeing, the Domoses terminated Kherlop on August 1, 2007, and ordered him and his subcontractors off the site. He brought this action, seeking damages for breach of contract. The Domoses counterclaimed, asserting counts for breach of contract, negligence, and violation of Chapter 93A, among others. The case was tried to a juiy in my session on November 15-23,2010. With the parties’ concurrence, I submitted the Chapter 93A claim to the jury, reserving to myself only the question of whether, should the jury And a willful or knowing violation, the damages would be doubled, trebled, or something in between. In response to special questions, the jury found that Kherlop had, before August 1, 2007, materially breached the contract, such that the Domoses were justified in terminating the contract on that date; this spelled the end of his contract claim. On the counterclaims, the jury found Kherlop liable for breach of contract, with damages of $172,350; in negligence, with damages of $202,308; and for violations of Chapter 93A, with damages of $15,000. On the 93A claim, the juiy determined that Kherlop had not “lowballed” the contract, but that his work had materially deviated from the plans and/or specifications and also violated the building laws of the Commonwealth (see G.L.c. 142A,§17),and that the violations were willful and/or knowing. Finally, the juiy specified that the total compensatoiy damages on all claims, without duplication, were $217,308. At a further hearing on December 8, 2010, counsel were heard on four remaining issues; 1. Multiple damages: What amount of damages is to be multiplied, and whether multiplier should be 200% or 300%. 2. Attorneys Fees: The amount of reasonable attorneys fees to which the Domoses are entitled on account of the disposition of their claim under Chapter 93A. (On this issue, the fee affidavit of the Domoses’ counsel was filed and served just prior to the hearing, and lacked itemized billing statements. I provided additional time for counsel to provide the itemized statements, and for Kherlop’s counsel to respond. I have since received and reviewed these additional submissions. 3. Expert Fees: James Jozokos, an architect retained by the Domoses for the design work needed to perform corrective work and finish the project, was designated by the Domoses as both a fact and an expert witness, and was subpoenaed by Kherlop as a fact witness. Kherlop, the plaintiff, called Jozokos as part of his case; the Domoses’ counsel deferred cross examination at that time, but recalled Jozokos as part of their case, and elicited both fact and opinion testimony at that time, on which Kherlop’s counsel cross-examined. Jozokos spent some time in the courtroom waiting for Kherlop’s counsel to call him, for which he has billed the Domoses at his customaiy hourly rate, totaling $1,350, which the Domoses contend Kherlop should pay. 4. Interest Accrual Date: The Domoses seek to have the interest on so much of the damage award as represents the recoveiy on their contract claim figured from August 1, 2007, the date of breach. I have since received further submissions on the Domoses’ claim for attorneys fees and costs. The following are my rulings on these four issues, and the reasons therefor. I. Multiple Damages. To the juiy’s damage award of $217,308 will be added the sum of $30,000. This represents a trebling of the $15,000 award on the Chapter 93A claim. The Domoses have urged that whatever multiplier is applied should pertain to the entire $217,308 awarded by the jury on all claims. They point to the following language in c. 93A, §9: For the purposes of this chapter, the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence, regardless of the existence or nonexistence of insurance coverage available in payment of the claim. This sentence was added to the statute by St. 1989, c. 580, §1. As is usual in Massachusetts,1 the official legislative history behind the amendment is uninformative as to legislative intent. According to the unofficial account of the amendment’s proponent, however, its purpose was to legislatively overrule a line of cases that had limited multiple damages, in cases charging an insurance company with bad faith in refusing to settle an claim on which liability was reasonably clear, to damages representing loss of use of the money (i.e., 256lost interest).2 Hailey, New Incentive for Insurers to Settle Claims Reasonably and Promptly, 34 BostonBarJ. 16, 18 (Sept./Oct. 1990). Such intent is not, at least to this reader, obvious from the legislative language. Later cases interpreting the amendment—some citing Mr. Haley’s article— have, however, accepted that this earlier caselaw (see fn. 2) was “the ‘mischief the amendment was manifestly intended to correct.” See, e.g., Yeagle v. Aetna Cas. & Sur. Co., 42 Mass.App.Ct. 650, 653-54 & nn.3 & 4 (1997); Cohen v. Liberty Mut. Ins. Co., 41 Mass.App.Ct. 748, 754 (1996). I am unaware of any cases interpreting the operative sentence outside the insurance bad faith context. It is one thing to rely on informed commentaiy for the proposition that the amendment was meant to remedy a particular “mischief,” even if the language does not clearly say so. It is another to ignore the statute’s language, which is considerably broader. I do not read the 1989 amendment as necessarily restricted to insurance bad faith cases (although this is a natural application of it; see below). The issue before me, then, is whether, on the evidence received at trial and with proper respect for the jury’s probable intent, the entirety of the Domos project should be considered a single “transaction or occurrence” for multiplication purposes, or whether the Court should confine its multiplication to the damages resulting from conduct that the jury found violated Chapter 93A. The Chapter 93A claim was presented under three theories: (1) that Kherlop “lowballed” the contract price in the hope of recouping additional profit in “extras” for work that should have been anticipated and included in the original price,3 (2) that he “deviat[ed] from or disregard(ed) plans or specifications in [a] material respect without the consent of the owner,” and (3) that he “violat[ed] . . . the building laws of the commonwealth.”4 In instructing the jury, I forewent (with both counsel’s agreement) any extended and general exposition of what constitutes “unfair or deceptive” conduct, and focused on these three discrete issues. The jury found for the Domoses on the second and third theories and awarded $15,000 in damages, which they then specified was separate and apart from any damage resulting from breach of contract or negligence (the former being more than subsumed in the latter).5 This finding, and respect for the jury’s apparent intent ais a vis what was to be multiplied,6 argue for treating the statutory violations separately from the common-law claims. Moreover, while the 1989 amendment may not expressly mention insurance bad faith claims, there is logic to its application in such cases that does not commend itself here. The insurer which has declined payment of a claim on which liability and coverage are reasonably clear has damaged the policyholder or claimant to the full extent of the payment(s) it ought to have made. The fact that all is eventually made right with a judgment for breach of the insurance policy does not differentiate these cases from any other Chapter 93A claim on which the plaintiff prevails. Nor, the Legislature determined in 1989, are Chapter 93A’s deterrent and punitive purposes adequately served by merely multiplying the interest award. Multiplying the entire breach-of-contract award in such a case simply puts claimants on insurance policies on the same footing as any other plaintiff who has suffered a loss of money or property by a businessperson’s unfair or deceptive conduct. In any such case, the full amount of the loss is to be multiplied if the violation was willful or knowing. In this case, by contrast, the juiy found that Kherlop’s conduct violated Chapter 93A only in limited respects, and resulted in only $15,000 of actual damages. The remaining damages, the jury found, resulted from conduct that, while culpable, did not violate Chapter 93A on any of the three theories presented. This amounts to a finding that Kherlop’s deviations from plans, specifications, and the Building Code were separate occurrences from the rest. I will therefore apply the multiplier only to the $15,000 award on the Chapter 93A claim. That said, I believe that treble damages are appropriate here. The evidence pertaining to plan deviations and Code violations was clear, convincing, and of an aggravated character. The starkest example had to do with the roof and floor structures for the family room, which was designed as a clear space without supporting columns. It was so constructed. One day, Mr. Domos overheard Mr. Kherlop’s consulting structural engineer say, of the roof system’s design, “That won’t work.” The engineer worked out a new design of sorts, though before it could be constructed the Domoses, their confidence shaken by this and numerous other aspects of the project, fired Kherlop. The Domoses’ expert testified credibly that as Kherlop had built it the roof failed Code, and would not have survived the next significant wind-or snowstorm. Mr. Kherlop’s expert conceded that the plans did not show the necessary detail for a structurally sound, Code-compliant roof. The family room floor was likewise under-supported according to the requirements of the Building Code (it bounced when one walked on it), requiring the addition of a column in the basement not included in the original plans. The jury was not asked to specify the factual basis for its findings, but it seems likely that these aspects played a role (as may the installation of a half-moon window without a header—another plain violation of the Code). A trebling of the jury’s conservative compensatory award seems entirely appropriate here. II. Attorneys Fees. The finding for the Domoses on their Chapter 93A claim entitles them to an award of the “reasonable 257attorneys fees and costs incurred in connection with [this] action.” G.L.c. 93A, §9. Their counsel has submitted her affidavit, with copies of bills detailing the firm’s charges. These show that the total fees charged the Domoses between August 16, 2007 and December 13, 20107 were $103,272.50, plus expenses of $2,582.83.8 The fees represent about 425 hours of professional work. Nearly all was by Atty. Julie Brady, who tried the case and billed at $250/hour; a much smaller amount is for work of Atty. Joseph Noone, at $275/hour; and junior attorneys and paralegals (at $175 and $75 respectively) account for about 34 hours. Slightly over half of the work and resulting charges (238.75 hours/$56,857.50) are on a single for the period August-December 2010, the period of trial preparation, trial, and post-trial motions. In determining a reasonable fee award, the Court is to consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Linthicum v. Archambault, 379 Mass. 381, 388-89 (1979). A, B, C. The Nature of the Case and the Issues Presented; The Time and Labor Required; The Amount of Damages Involved. Residential construction cases are characterized by a level of detail, of factual and technical complexity, and of necessary reliance on expert consultants and witnesses, that is often out of proportion to the financial stakes involved. Simply put, these cases are often highly uneconomical to litigate and try, no matter who the lawyer. The amount of the attorneys’ bill, while sizeable, is unsurprising in a case with this subject matter if litigated with care. The case had been pending for 38 months by the time of trial. I did not, of course, witness the parties’ pretrial preparations. It was evident at trial that the parties and the other major participants in the project had been deposed, and the paper discoveiy (insofar as I glimpsed it) appeared to be about what one would expect for a case of this nature. The trial began with impanelment on November 15, 2010.9 Evidence was presented over days two through seven, and the jury returned its verdict on the eighth day. The stakes, for a middle-class family, were high: Mr. Kherlop initiated the proceedings with a complaint seeking just over $102,000 in damages, while the Domoses incurred single damages that the jury ultimately assessed, on all claims, at $217,308 (to which will be added about 40% in interest). There was, in short, about $320,000 reasonably at issue, excluding interest. The legal work and fees in this case overall were proportional to the nature of the case and to the financial stakes. D. The Result Obtained. The juiy’s verdict as a whole was, in my estimation, an excellent result for the Domoses. The original contract price was $180,000, augmented by an additional $ 18,170 per Change Order # 1. My notes indicate that in addition to $40,000 they paid Mr. Kherlop, the Domoses paid Hancock Builders an additional $212,370 to fix and complete what Kherlop left behind. There were additional fees for an architect and a structural engineer. Finally, the necessary redesign work resulted in several changes that were detrimental, at least aesthetically, to the project as originally conceived, and substantial parts of the work within Kherlop’s contract remains to be done (the Domoses having run out of funds). The juiy’s verdict appears to have compensated the Domoses in full for their benefit-of-the bargain damages, their consequential damages, and the hard-to-quantify damages pertaining to the altered design and uncompleted work. There remains the issue of whether the fees claimed—which were reasonable in relation to the case and the verdict as a whole—ought to be adjusted for the fact that the Chapter 93A award accounted for only $15,000 (when trebled, $45,000) of the whole. “It is well settled . . . that ‘where a single chain of events gives rise to both a common law and a Chapter 93A claim, apportionment of legal effort between the two claims is not necessary.’ ” Clamp-All Corp. v. Foresta, 53 Mass.App.Ct. 795, 813 (2002). This is such a case. The Domoses’ defense of Kherlop’s contract claim, and their pursuit of their own contract, negligence, and Chapter 93A counterclaims, arose from the same common nucleus of operative facts. The Chapter 93A claim and the legal work devoted to it were not, as a practical matter, segregable from the whole. The Domoses have recovered only $45,000 on the Chapter 93A claim—the only claim that carries a right to recover attorneys fees. The seeming dis-proportionality of the fee to the award (who would spend $103,000 to get $45,000?) must, however, be viewed in its context. [R]ealistic assessment of the benefits the litigation actually produced is always necessary when attempting to determine what litigation costs are appropriate, for neither costs nor benefits are free-floating variables. In determining time reasonably spent on a matter, the court must be mindful of “the difficulty of the case” and “the results obtained,” and “compensable hours may be reduced if the time spent was wholly disproportionate to the interests at stake.” Killeen v. Westban Hotel Venture, LP, 69 Mass.App.Ct. 784, 792 (2007) (citations omitted). 258The proportionality issue concerns the reasonableness of counsel’s conduct. Here, that conduct was reasonable, even viewed (as appropriate for the case) purely from the standpoint of economics.10 As noted above, this was a $320,000 dispute overall, as measured by the spread between what Kherlop claimed and what the jury awarded the Domoses. Moreover, the evidence would (in my judgment) have supported a finding that considerably more of the Domoses’ harm was caused by building code violations and/or deviations from plans and specifications than the $15,000 verdict on the c. 93A count reflected.11 Where counsel has reasonably valued the case as having greater potential than the result actually achieved, it is reasonable for her “to have expended effort in the litigation commensurate with that potential.” Twin Fires Investment, LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 431 (2005) (upholding fee award of $1 million on ajudgment of $118,950 ($39,650 trebled), where counsel reasonably pressed forbenefit-of-the-bar-gain damages but was awarded only reliance damages). Here, unlike the Twin Fires case, counsel actually achieved the result she sought (or close to it), albeit mostly on the common-law, not the c. 93A, claims. Where (as I find, below) the claimed fee is reasonable as to rate, hours, and the Unthicum lodestar factors and is proportional to the result achieved overall, no deduction is appropriate on account of its mathematical relation to the Chapter 93A award specifically. E.The Experience, Reputation and Ability of the Attorney. I did not know Atty. Brady before this trial, and I am unaware of her wider reputation. She prepared and tried an excellent case in eveiy respect, however. F.The Usual Price Charged for Similar Services by Other Attorneys in the Same Area. The hourly rates of all the professionals who billed on this case are highly competitive in the Boston-area legal market. Ms. Brady and her firm delivered high-caliber service, at suburban rates. G.The Amount of Awards in Similar Cases. No such awards have been brought to my attention. *** Starting from the hours expended and the rates charged—both of which were reasonable—and applying the Unthicum factors, I find that the fees and expenses charged to the Domoses were reasonable for this litigation. I award them in full, in the amount of $105,855.33. III. Jojokos’s Expert Fees. “(R]easonable expert witness fees should normally be recoverable in a c. 93A case in order to vindicate the policies of the act.” Linthicum v. Archambault, 379 Mass. at 389. This makes it unnecessary to consider, as a separate ground, the Domoses’ argument that because Kherlop’s attorney subpoenaed their expert (Mr. Jozokas) and then made him sit in the courtroom for several days, he, not they, should pay the resulting bill. If the services were reasonably necessary, they are to be awarded.12 The Domoses’ counsel has represented by affidavit that the firm of Paul L. Davies & Associates Architects, Inc. has billed them $10,070.00 for expert witness fees, principally or entirely for Mr. Jozokas’s work at $90.00 per hour. Expert witness fees, like attorneys fees, must be reasonable if they are to be shifted to the other party. Other than observing Mr. Jozokas’s trial testimony, I do not presently have any evidentiary basis for assessing the reasonableness of his firm’s fee. It is the claimant’s “obligation to submit sufficient documentation to enable the judge to evaluate the hours spent on particular aspects of the case or the precise nature of the work.” Twin Fires Investment, 445 Mass. at 428 (discussing attorneys fees). At a minimum, this means an itemized statement of the time charges involved, and the services they represent. I will take no action on this aspect of the case for now. If the Domoses wish to pursue the issue, they may do so by means of a timely motion to alter or amend the judgment under Mass.R.Civ.P. 59(e). IV. Interest Accrual Date. The jury determined that Kherlop had materially breached the contract on or before August 1, 2007. Under G.L.c. 231, §6C, prejudgment interest is to be calculated from the date of the breach or demand, if established. If the date of breach or demand is not established, prejudgment interest is to be calculated from the date of commencement of the action. Establishing the date of breach or demand is a determination for the trier of fact, and, where trial has proceeded before a jury, neither the judge nor an appellate court can make such a determination. Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986). Interest on the contract award of $172,350 will therefore be computed from August 1, 2007. Interest on the difference between the contract award and the total jury award, or $44,958, will run from the date of filing. There is no right to prejudgment interest on the $30,000.00 in multiple damages or the $103,272.50 in attorneys fees, but interest will run from the date of filing on the award of $2,582.83 in out-of-pocket costs. Osborne v. Biotti, 404 Mass. 112, 116 (1989). ORDER FOR JUDGMENT For the foregoing reasons, judgment shall enter for the plaintiffs-in-counterclaim Robert Domos and Candace Domos in the amount of $353,163.33, as follows: Judgment on jury’s verdict $217,308.00 Addition for treble damages 30,000.00 Attorneys fees 103,272.50 Costs 2.582.83 TOTAL $353,163.33 *259Interest thereon shall run: (a) on the sum of $172,350.00 (the contract award), from August 1, 2007 (the date of breach): (b) on the sum of $47,540.83 (other single damages plus costs), from September 5, 2008 (the date of filing); and (c) on the remaining sum of $133,272.50 (attorneys fees plus punitive damages), from the date judgment enters. And as may be just as well. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (Jackson, J. concurring); Danner, “Justice Jackson’s Lament: Historical and Comparative Perspectives on the Availability of Legislative History,” 13 Duke J. of Comp. & Intl. Law 151 (2003). See, as representative of this line of cases, Wallace v. American Mfrs. Mut. Ins. Co., 22 Mass.App.Ct. 938, 939-40 (1986); Trempe v. Aetna Cas. & Sur. Co., 20 Mass.App.Ct. 448, 457 (1985); and Shapiro v. Public Serv. Mut. Ins. Co., 19 Mass.App.Ct. 648, 657 (1985); and the discussion in Yeagle v. Aetna Cas. & Sur. Co., 42 Mass.App.Ct. 650, 654 (1997). See Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 814 & n.2, 825 (1982). By its affirmative findings on these latter two theories, the jury found that Kherlop had violated the Home Improvement Contractors Act, G.L.c. 142A, §§17(2), 17(10). By definition, a violation of Chapter 142A is a violation of Chapter 93A. G.L.c. 142A, §17, last sentence. I am here reading only slightly between the lines of the jury’s answers. The damage awards (negligence ($172,350) contract ($202,308); contract + 93A ($15,000) = total damages ($217,308)) would be a mighty coincidence otherwise. My jury instructions included an explanation that whatever (if anything) the jury awarded on the Chapter 93A claim would be multiplied twice or thrice, as I determined, if they found the violation to be willful or knowing. Neither side objected to this instruction. The services began with a consultation “regarding problem with contractor,” three weeks before Kherlop filed suit, and continued through post-trial motions. Additionally, the Domoses’ architect, James Jozokos, has apparently billed them directly for $10,070.00 (at $90.00 per hour) in expert witness fees incurred for his preparation, trial attendance and testimony. This amount is addressed below, in subpart III. This was the third trial date for this case. The original date of 7/28/10 was continued for reasons that do not appear; the next date of 9/27/10 was continued because the Court could not reach the case. The case did not present great constitutional or public-law questions, see Stratos v. Department of Public Welfare, 387 Mass. 312, 323 (1982); nor is it likely to confer benefits on a broader class of persons than the Domoses themselves. See Killeen, 69 Mass.App.Ct. at 793. The evidence did not permit a determination of how much of the charges of the replacement contractor, architect, and structural engineer were occasioned by the Code-non-compliant design and construction of the family room roof and floor systems. It was nonetheless evident that these two issues were a substantial focus of their efforts. The expert in question, Mr. Jozokas, was also a percipient witness, having come onto the job just as Mr. Kherlop was leaving it to do the design work needed to correct and complete the work.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/840370/	Order Michigan Supreme Court Lansing, Michigan February 19, 2008 Clifford W. Taylor, Chief Justice Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 135847 (3) Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, Justices BILLY JOE HICKMAN, #188871, Plaintiff-Appellant, v SC: 135847 AGC: 2613/07 ATTORNEY GRIEVANCE COMMISSION, 2614/07 Defendant-Appellee. ___________________________________ On order of the Chief Justice, the motion to waive fees is considered and it is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be liable for filing fees. Within 21 days of the certification of this order, plaintiff shall pay to the Clerk of the Court the initial partial filing fee of $24.00, shall submit a copy of this order with the payment, and shall refile the copy of the pleadings which is being returned with this order. Failure to comply with this order shall result in the appeal not being filed in this Court. If plaintiff timely files the partial fee and refiles the pleadings, monthly payments shall be made to the Department of Corrections in an amount of 50 percent of the deposits made to plaintiff’s account until the payments equal the balance due of $726.00. This amount shall then be remitted to this Court. Pursuant to MCL 600.2963(8) plaintiff shall not file further appeals in this Court until the entry fee in this case is paid in full. The Clerk of the Court shall furnish two copies of this order to plaintiff and return plaintiff’s pleadings with this order. 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. February 19, 2008 _________________________________________ jm Clerk	01-03-2023	03-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/1000439/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-2191 MICHAEL D. WILKINS, Plaintiff - Appellant, versus JUDGE HENDERSON; WOODROW P. LIPSCOMB; HONOR- ABLE WILLIAM SUGG; HONORABLE CHARLES MCCOR- MICK; JUDICIAL INQUIRY AND REVIEW COMMISSION, Defendants - Appellees. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Richmond. James R. Spencer, District Judge. (CA-97-899) Submitted: December 16, 1999 Decided: December 21, 1999 Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir- cuit Judge. Affirmed by unpublished per curiam opinion. Michael D. Wilkins, Appellant Pro Se. Anton Joseph Stelly, William S. Smithers, Jr., THOMPSON, SMITHERS, NEWMAN & WADE, Richmond, Virginia; Gregory E. Lucyk, Claude Alexander Allen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Michael D. Wilkins appeals the district court’s orders denying his motions for default judgment and for rehearing. We have re- viewed the record and the district court’s opinions and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Wilkins v. Henderson, No. CA-97-899 (E.D. Va. June 16, 1999; Aug. 4, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875486/	260 S.W.3d 436 (2008) Armand BRIDGES, Movant/Appellant, v. STATE of Missouri, Respondent. No. ED 90380. Missouri Court of Appeals, Eastern District, Division One. August 19, 2008. Timothy J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant. Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent. Before KURT S. ODENWALD, P.J., GLENN A. NORTON, J., and PATRICIA L. COHEN, J. ORDER PER CURIAM. Armand Bridges (Movant) appeals from the judgment denying his motion for post-conviction relief under Rule 24.035 without an evidentiary hearing. Movant contends that the motion court clearly erred in denying his motion because plea counsel misinformed him about the sentence he would receive. The motion court's findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value and we affirm by written order. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed pursuant to Rule 84.16(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875496/	44 F.Supp. 829 (1942) HUTCHINSON v. WILLIAM C. BARRY, Inc. No. 1833. District Court, D. Massachusetts. May 1, 1942. Hammer, Karff & Goldberg and A. S. Karff, all of Boston, Mass., for plaintiff. Brown, Field & McCarthy and Horace P. Moulton, all of Boston, Mass., for defendant. FORD, District Judge. The motion by the plaintiff that the eighth paragraph of the defendant's answer be stricken as immaterial is granted. The complaint sets up a cause of action under the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219. The eighth paragraph of the answer sets up as a defense that the plaintiff gave the defendant a release of "all and any claims now or hereafter pertaining to my employment * * ". Several courts have held that a release of claims is no defense to an action under this statute. Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622, 626; United States ex rel. Johnson v. Morley Construction Co. et al., 2 Cir., 98 F.2d 781, 789; Travis v. Ray, D.C., 41 F.Supp. 6, 8. I believe these authorities are decisive of the question presented by this motion. Moreover, I agree with the reasoning on which they are based. The act constitutes 830 a declaration of public policy against substandard labor conditions. This policy would be defeated if the validity of contracts such as this were to be upheld. It is obvious that desire to continue in employment on the part of the laborer would make it easy for an employer who wished to ignore the act's provisions to induce him to execute a release of claims under the provisions of the act. Unless such agreements as this be declared void, it would therefore be easy to circumvent the declared purpose of Congress.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615186/	668 P.2d 916 (1983) LONE STAR STEEL COMPANY, a Texas Corporation, Petitioner, v. Joseph F. DOLAN, Executive Director, Department of Revenue, State of Colorado, Respondents. No. 81SC382. Supreme Court of Colorado, En Banc. August 22, 1983. 918 Welborn, Dufford & Brown, Beverly J. Quail, Kathryn L. Powers, Mary Ann Steefel, Denver, for petitioner. J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Chris J. Eliopulos, Asst. Atty. Gen., Denver, for respondents. ROVIRA, Justice. We granted certiorari to review a decision of the court of appeals holding certain income of petitioner Lone Star Steel Co. (Lone Star) taxable in Colorado. Lone Star Steel Co. v. Dolan, 642 P.2d 29 (Colo.App.1981). We affirm in part and reverse in part. I. Lone Star is an integrated steel company that mines its own iron ore; processes it into pig iron and then into steel; rolls the steel into skelp, which in turn is made into pipe; and markets the pipe. The corporation also has its own coal mines in Oklahoma and Arkansas. It has its commercial and legal domicile in Texas, with its executive offices in Dallas. Lone Star is a subsidiary of Philadelphia and Reading Corporation, which in turn is wholly owned by Northwest Industries, Inc., a diversified holding company incorporated in Delaware. Approximately ninety percent of Lone Star's manufacturing operations are conducted in Lone Star, Texas, and the remainder are conducted at a plant in Fort Collins, Colorado. Manufacturing and selling pipe from skelp manufactured at Lone Star's Texas plant is the only business that petitioner conducts in Colorado. The pipe manufactured in Colorado is line pipe and standard pipe. Line pipe is used primarily underground as transmission or gathering lines for oil and gas, and standard pipe is used in commercial and residential construction. The Texas plant, in addition to manufacturing line pipe and standard pipe, also manufactures casing and tubing for vertical placement in oil and gas wells. Because casing and tubing extends to considerable depths, it must have a very high tensile strength and is therefore made from a higher quality steel than are line pipe and standard pipe. This case arises from the assessment of tax deficiencies against Lone Star for the years 1970-73. The assessment was protested by Lone Star, but upheld by the Executive Director of the Department of Revenue. After a trial de novo, the district court affirmed the assessment, which was subsequently affirmed by the court of appeals. II. Under the Multistate Tax Compact (Compact), to which Colorado is a party, a corporate taxpayer may elect to apportion its income according to the provisions of the Compact or under the regular Colorado corporate income tax apportionment provisions. Section 24-60-1301, Art. III, C.R.S. 1973 (1982 Repl.Vol. 10). For the years in question, Lone Star elected to be taxed under the Compact. 919 According to Article IV of the Compact, certain income is allocated to particular states and not apportioned among states. For example, interest and dividends are allocable to the state of the taxpayer's commercial domicile to the extent that they constitute "nonbusiness income." Section 24-60-1301, Art. IV, ¶ 7. "Nonbusiness income" is defined as "all income other than business income." Art. IV, ¶ 1(e). "Business income" means: "income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." Art. IV, ¶ 1(a). The amount of income apportioned to a particular state, and therefore taxable by it, is determined by multiplying the business income by a fraction, the numerator of which is the sum of property, payroll, and sales factors, and the denominator of which is three. Art. IV, ¶ 9. Each of the three factors is a fraction representing the proportion of Colorado property, payroll, or sales to the total property, payroll, or sales. Thus, the formula is: Colo. Property + Colo. Payroll + Colo. Sales Total Property Total Payroll Total Sales 3 = Apportionment Fraction At issue in this case are three questions: (1) whether certain sales constitute Colorado sales; (2) whether dividends paid by a subsidiary of Lone Star are to be apportioned or are to be allocated to Texas; and (3) whether interest paid by Northwest Industries to Lone Star is to be apportioned or allocated to Texas. III. Many of Lone Star's customers who purchase line pipe use it underground to carry oil and gas and they want the pipe coated and wrapped with tar and paper to prevent rust. For this work Lone Star recommends the Gaido-Lingle Company, an unaffiliated company that is located near the Fort Collins plant. Lone Star employees deliver the pipe to Gaido-Lingle using Lone Star equipment; and if it is damaged through the fault of Gaido-Lingle, Lone Star has a practice of replacing the pipe, although it is under no obligation to do so. At the time of delivery to Gaido-Lingle, Lone Star bills the customer for the price of the pipe sold. Gaido-Lingle or the customer arranges for delivery to the customer and Gaido-Lingle bills the customer for its services. Lone Star considers sales of pipe to out-of-state customers to be non-Colorado sales if the pipe is shipped by carrier out of state directly from the Fort Collins plant, or if the pipe is taken to Gaido-Lingle for wrapping and then shipped by carrier to the out-of-state purchaser. If the out-of-state purchaser picks up the pipe in its own trucks, either from the Lone Star plant or from Gaido-Lingle, Lone Star treats the transaction as a Colorado sale. In dispute here is whether sales to out-of-state purchasers are Colorado sales if the pipe is first taken to Gaido-Lingle for wrapping and then shipped out of state by common carrier. Art. IV, ¶ 16(a) of the Compact defines a sale of tangible personal property as a Colorado sale if "the property is delivered or shipped to a purchaser, other than the United States Government, within this State regardless of the f.o.b. point or other conditions of the sale." The Department of Revenue (Department) contends that once the pipe is delivered to Gaido-Lingle Lone Star's obligations are satisfied. It claims that delivery is "where the seller completes his performance and a buyer may logically use and consume the purchased product in the state of delivery without first shipping the same product to the state in which the buyer is located." The Department further argues that this case is governed by the same principle that requires sales to out-of-state customers be treated as Colorado sales when customers take delivery at Lone Star's Fort 920 Collins plant for transport out of state by their own trucks.[1] Lone Star argues that its continuing involvement with the pipe after delivery to Gaido-Lingle by replacing damaged pipe and by occasionally aiding the customer in seeking compensation for pipe damaged in shipment after the wrapping demonstrated that there is no delivery in Colorado. Lone Star also argues that the rationale of the court of appeals that delivery takes place in Colorado because all of Lone Star's obligations are satisfied when it turns the pipe over to Gaido-Lingle is erroneous. It points out that the same rationale would apply to the delivery of pipe to a common carrier for shipment. Under such reasoning, Lone Star argues, it would have no out-of-state sales. We agree with Lone Star that these sales should not be considered Colorado sales. The principal draftsman of the Uniform Division of Income for Tax Purposes Act (UDITPA) has described the purpose behind paragraph 16 as follows: "Sections 15 through 17 of the act provide for the computation of the sales factor. Two major problems are encountered in respect to these provisions. The first problem arises because, with two exceptions, sales are attributed to the consumer state rather than to the state of sales activity or the place where goods are appropriated to the orders. If the taxpayer is not taxable in the state to which the goods are shipped or if the purchaser is the United States Government, the sales are attributed to the state from which the goods are shipped. Manufacturing states probably would prefer a system attributing sales to the place from which goods are shipped in every case. However, the national conference was of the opinion that such a system would merely duplicate the property and payroll factors which emphasize the activity of the manufacturing state, so that there would tend to be a duplication by such a sales factor. Moreover, it is believed that the contribution of the consumer states toward the production of the income should be recognized by attributing the sales to those states. The exception in the case of the United States Government was included because consumption of such sales cannot be said to occur in a specific state, particularly in the case of shipments to overseas points of embarkation. In the manufacturing states, some opposition to the method of apportioning sales is to be expected, although once again it is believed that the over-all benefits of uniformity and the equities of the situation will mitigate this facet of the act becoming a major enactment hurdle." Pierce, The Uniform Division of Income for State Tax Purposes, 35 Taxes 747, 780 (1957).[2] The language of paragraph 16(a) necessitates our conclusion that these sales are out-of-state sales for income tax purposes. It speaks of property "delivered or shipped to a purchaser ... within this state." The pipe is delivered to Gaido-Lingle, which is not a purchaser, but is instead merely an intermediary, much as a common carrier is. The difference is that Gaido-Lingle transforms the pipe physically, while a carrier transports it spatially. There seems little reason in policy to treat the two kinds of transactions differently. In neither case has the purchaser actually taken delivery of the pipe. Moreover, there is no suggestion that the procedure is used in an attempt to evade Colorado tax. Consequently, we hold that when the pipe is delivered to Gaido-Lingle for wrapping and then shipped by common carrier to an out-of-state purchaser there is no Colorado sale for income tax purposes. 921 IV. In 1972 Lone Star formed, and became the principal shareholder of, Lone Star Steel International Sales Corporation (International), a Delaware Corporation, as a domestic international sales corporation (DISC) under the Internal Revenue Code of 1954, as amended. Congress has conferred certain tax advantages on DISC's to strengthen the financial position of domestic exporters. International exports oil casing and tubing manufactured at Lone Star's Texas plant to domestic oil companies with foreign operations. It operates out of the general offices of Lone Star in Dallas and is managed by Lone Star personnel who are paid by Lone Star. International periodically pays dividends to Lone Star, which result from commissions paid by Lone Star on the exports. Another source of Lone Star's income is interest on short-term loans that it makes to its parent, Northwest Industries. Lone Star has surplus funds not immediately needed for current operations that it lends to Northwest at the existing prime interest rate. It transfers funds to Northwest two or three times a week. Lone Star's assistant comptroller testified concerning the loans as follows: "We anticipated our cash requirements usually on a quarterly basis. For instance, we know when we had to make quarterly income tax payments, not directly to IRS, but through our parent company. We had interest coming up on our long term debt. We had dividends we had to meet on certain dates, and we have a capital expenditure program going on from time to time. And we knew when we needed those moneys. So we tried to time the maturity date of the notes when we would need those funds." In preparing its income tax returns for the years in question, Lone Star allocated away the dividends from International and interest on the loans from Northwest Industries, thereby excluding them from the computation of its total income taxable in Colorado. A deficiency was assessed and ultimately upheld by the court of appeals. Lone Star argues that the dividends are not taxable in Colorado because none of the products exported by International are manufactured in Colorado and none of its operations are performed by Colorado employees. It contends that, under the Compact, International's dividends and the Northwest interest are nonbusiness income and are therefore to be allocated away. It also argues that taxation of the dividends and interest violates the due process clauses of the United States and Colorado Constitutions and the commerce clause of the United States Constitution. As discussed previously, only "business income"that is, "income arising from transactions and activity in the regular course of the taxpayer's trade or business"is properly apportionable. Lone Star does not really dispute that it receives the dividends from International in the regular course of business, but instead argues that to include dividend income within the definition of "business income" would be contrary to decisions of the United States Supreme Court because there is an insufficient nexus between the dividends and Colorado. This argument will be addressed in the discussion of the extent of petitioner's unitary steel business in part V. below. In determining whether the interest from the loans to Northwest Industries constitutes business income, the crucial inquiry is the "frequency and regularity of the activity," Atlantic Richfield Co. v. Colorado, 198 Colo. 413, 417, 601 P.2d 628, 631 (1979), bearing in mind that the income must be related to the business being conducted within the state to ensure that extra-territorial value is not being taxed. We find the Supreme Court of Oregon's analysis in Sperry & Hutchinson Co. v. Department of Revenue, 270 Or. 329, 527 P.2d 729 (1974), persuasive on the issue of the taxability of the interest. Sperry & Hutchinson Co. (S & H) was incorporated in New Jersey, commercially domiciled in New York, and did business in forty-eight states including Oregon. S & H's primary business, and the only business conducted in Oregon, was a trading stamp promotional 922 service for retailers. S & H invested in three kinds of securities: (1) short-term (less than twelve months) securities held pending use of the funds in its trading stamp business; (2) short-term securities held pending acquisition of other companies or favorable developments in the long-term securities market; or (3) long-term securities held as an investment. S & H allocated interest on all the securities to its domicile, instead of apportioning it among the states in which it did business. The court held that the securities, both short and long-term, held pending acquisition of other companies or favorable developments in the long-term securities market or for investment were properly allocated to S & H's commercial domicile because "neither the capital invested nor the income derived therefrom are a part of the trading stamp business conducted in this state." The court held, however, that the other short-term securities were apportionable. They were purchased during periods of cash flow surplus and liquidated when needed to meet business obligations during periods of cash flow deficit. The court held that the interest arose "`from transactions and activity in the regular course of the taxpayer's trade or business' and is part of S & H's unitary business." Id. at 333, 527 P.2d at 731. The same reasoning applies to Lone Star. The interest derived from the short-term notes is an integral part of Lone Star's business. The surplus funds are produced by that business, the investments are short-term, liquid, made with the intent that both the principal and interest are to be used "in the regular course of the taxpayer's trade or business," and "constitute integral parts of the taxpayer's trade or business operations." Consequently, we conclude that the interest income is business income apportionable to Colorado. V. A. The resolution of Lone Star's constitutional claims hinges upon the concept of the "unitary business," which is "the linchpin of apportionability in the field of state income taxation." Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 100 S. Ct. 1223, 63 L. Ed. 2d 510 (1980). In order for a state to be permitted to tax the income of an out-of-state corporation, the due process clause imposes two requirements: "a `minimal connection' between the interstate activities and the taxing State, and a rational relationship between the income attributed to the State and the interstate values of the enterprise." Id. at 436-37, 100 S. Ct. at 1231. If the company is determined to be a unitary business, a state may apply an apportionment formula to the taxpayer's total income to obtain a "rough approximation" of the corporate income that is reasonably related to activities conducted within the state. Exxon Corp. v. Department of Revenue, 447 U.S. 207, 223, 100 S. Ct. 2109, 2120, 65 L. Ed. 2d 66 (1980). To establish that income is not subject to an apportioned tax, the taxpayer must show that it was earned in the course of activities unrelated to its activities within that state. At 437, 100 S. Ct. at 1231. In determining whether a unitary business exists, courts look to the "underlying economic realities" of the business. Mobil, 445 U.S. at 441, 100 S. Ct. at 1233. There must be "some sharing or exchange of value not capable of precise identification or measurementbeyond the mere flow of funds arising out of a passive investment or a distinct business operationwhich renders formula apportionment a reasonable method of taxation." Container Corporation of America v. Franchise Tax Board, ___ U.S. ___, 103 S. Ct. 2933, 77 L. Ed. 2d 545 (1983). The unitary business principle can apply to vertically integrated enterprises or to "a series of similar enterprises operating separately in various jurisdictions but linked by common managerial or operational resources that produced economies of scale and transfers of value." Id. The question of what constitutes a unitary business has produced several recent United States Supreme Court decisions. Mobil, supra, involved an attempt by the 923 State of Vermont to tax "foreign source" dividend income received by Mobil from subsidiaries and affiliates. Mobil Oil is a corporation organized under the laws of New York, with its "commercial domicile" in that state. It is engaged in an integrated petroleum business involving exploration, production, refining, transportation, distribution, and sale. Much of Mobil's business abroad is conducted through subsidiaries and affiliates, some domestically incorporated in states other than Vermont, and some incorporated abroad. The bulk of Mobil's dividend income was received from three subsidiaries incorporated abroad and one affiliate incorporated in Delaware. None of these companies do business in Vermont, where Mobil's activities are confined to wholesale and retail marketing of petroleum and related products. The Court in Mobil confined its inquiry to the question of "whether there is something about the character of income earned from investments in affiliates and subsidiaries operating abroad that precludes, as a constitutional matter, state taxation of that income by the apportionment method." 445 U.S. at 435, 100 S.Ct. at 1230. In rejecting Mobil's contention that it was not involved in a unitary business with its subsidiaries and affiliates, the Court stated: "Nor do we find particularly persuasive Mobil's attempt to identify a separate business in its holding company function. So long as dividends from subsidiaries and affiliates reflect profits derived from a functionally integrated enterprise, those dividends are income to the parent earned in a unitary business. One must look principally at the underlying activity, not at the form of investment, to determine the propriety of apportionability." 445 U.S. at 440, 100 S. Ct. at 1233. The Court noted that if the business activities of the dividend payors are unrelated to the activities of the recipient in the taxing state, due process considerations might preclude their apportionment, but in the absence of a showing by clear and cogent evidence that the activity is unrelated, the dividend income is properly apportionable. Similarly, in Exxon, supra, the Court held that the State of Wisconsin could constitutionally tax, by application of its statutory apportionment formula, the total corporate income of an integrated oil company even though the company's functional accounting separated its income into three distinct categories of marketing, exploration and production, and refining, and despite the fact that it performed only marketing operations in Wisconsin. The Court stated: "While Exxon may treat its operational departments as independent profit centers, it is nonetheless true that this case involves a highly integrated business which benefits from an umbrella of centralized management and controlled interaction." 447 U.S. at 224, 100 S.Ct. at 2120. In ASARCO, Inc. v. Idaho State Tax Commission, 458 U.S. 307, 102 S. Ct. 3103, 73 L. Ed. 2d 787 (1982), the Court struck down an attempt by the State of Idaho to tax dividends and interest of subsidiary corporations. ASARCO is a New Jersey corporation that maintains its headquarters and commercial domicile in New York. Its principal Idaho business is the operation of a silver mine. The Court held that Idaho could not constitutionally tax dividends and interest from subsidiaries that were independently operated and engaged in business completely unrelated to the Idaho silver mining business. The Court viewed ASARCO's holdings as merely passive investments and stated that a rule that would allow Idaho to tax these dividends and interest would completely destroy the concept of the unitary business. In F.W. Woolworth Co. v. Taxation and Revenue Department, 458 U.S. 354, 102 S. Ct. 3128, 73 L. Ed. 2d 819 (1982), decided the same day as ASARCO, the Court held that New Mexico could not tax dividends that F.W. Woolworth Co. received from foreign subsidiaries, despite the fact that both parent and subsidiaries were engaged in the business of retailing. The Court based its conclusion that there was no unitary business in the absence of centralized purchasing, 924 manufacturing, or warehousing of merchandise, and the fact that there was no exchange of personnel and no centralization of management. Most recently, in Container Corporation, supra, the Court determined that dividends were apportionable, where most of the foreign subsidiaries were engaged in their respective markets in the same kind of business as the parent. Although the subsidiaries were "relatively autonomous" with respect to day-to-day management, the parent held or guaranteed approximately half of the long-term debt of the subsidiaries, it provided "advice and consultation regarding manufacturing techniques, engineering, design, architecture, insurance, and cost accounting ..." and occasionally assisted the subsidiaries in their procurement of equipment. 103 S. Ct. at 2944. The Court upheld the state's decision to tax the unitary business as "within the realm of permissible judgment." Id. at 2946. B. We must now determine whether, under the principles set forth above, Lone Star and International constitute a unitary business. Lone Star argues that because International does not sell products manufactured by Lone Star's Fort Collins plant and no Colorado employees spend time on its operations, the activities of International and Lone Star are not so intertwined as to constitute a single unitary business. We disagree. The fact that International sold no products manufactured in Colorado is relevant to, but not dispositive of, the unitary business issue. As was noted in Container Corporation, supra, "The prerequisite to a constitutionally acceptable finding of unitary business is a flow of value, not a flow of goods." 103 S. Ct. at 2947 (emphasis in original). If the relationship between parent and subsidiary contributes to the income of the subsidiary through "functional integration, centralization of management, and economies of scale," a unitary business exists. Mobil, 445 U.S. at 438, 100 S. Ct. at 1232. Unlike the subsidiaries in ASARCO and Woolworth, International is wholly owned, supplied, managed, and controlled by Lone Star. The iron and coal mined by Lone Star is used to make steel that supplies both the Texas plant and the Colorado plant. The entire business is centrally managed from the Dallas office. The facts here are similar to those which existed in Exxon and are dispositive of the unitary business issue. There the Court recognized that, "Exxon's full utilization of its production and refining functions were dependent on its marketing system to provide an outlet for its products and Wisconsin was a part of that marketing system." Similarly, Lone Star's full utilization of its production capacity is dependent upon both the activities of the Fort Collins plant and International. Consequently, we conclude that International is a part of Lone Star's unitary steel business and the dividends are subject to taxation by Colorado. C. Lone Star claims that under ASARCO the interest paid by Northwest Industries is not apportionable because Northwest is not engaged in a unitary business with Lone Star. ASARCO, it will be remembered, held that dividends and interest received from autonomous subsidiaries were not apportionable and that the phrase "unitary business" could not constitutionally be defined to permit nondomiciliary states to apportion and tax dividends "[w]here the business activities of the dividend payor have nothing to do with the activities of the recipient in the taxing State . . . ." 458 U.S. at 327, 102 S.Ct. at 3115 (quoting Mobil, 445 U.S. at 442, 100 S. Ct. at 1234). We do not believe that ASARCO governs the disposition of this case. The dissent in ASARCO stated: "[A]ssuming arguendo that the contested investments were in fact passive, ASARCO has failed to show that its holdings were divorced from its management of the financial requirements of its nonferrous 925 metals business. For all we know, ASARCO's investments were triggered by its need to obtain a return on idle financial resources accumulated for the future operation of its own primary business." 458 U.S. at 337, 102 S. Ct. at 3120 (O'Connor, J., dissenting). The majority responded to that statement by noting that the trial court had found that: (1) ASARCO's stock investments were "not integral to nor a necessary part of [ASARCO's] business operation"; (2) ASARCO has "never been required to utilize its stock as security for borrowing of working capital, acquiring stock or securities in other companies or to support any bond issues"; and (3) ASARCO had "sufficient cash flow from mining to provide operating capital for all mining operations without reliance upon cash flow from ... income from intangibles." 458 U.S. at 325 n. 21, 102 S. Ct. at 3113-14 n. 21. Moreover, ASARCO did not contest "Idaho's right to treat interest income from temporary deposits of [its] working capital funds as apportionable business income derived in the ordinary course of [its] Unitary Business activities." Id. at 337-338 n. 5, 102 S. Ct. at 1320 n. 5 (O'Connor, J., dissenting). Consequently, we believe Lone Star's reliance on ASARCO to be misplaced, because it did not deal with the type of situation presented here. There are sound reasons for different treatment of ASARCO and Lone Star. ASARCO could legitimately be viewed as engaging in two businesses: nonferrous metal mining and "discrete business enterprises." Because the Court concluded that these two functions were not the same unitary business, it held the dividends and interest to be nontaxable in Idaho. It cannot reasonably be said, however, that Lone Star is engaged in two separate businessesthe integrated steel business and the short-term lending business. Instead, it is engaged in only one businessthe integrated steel businessand it lends money to its parent in furtherance of the goals, and to aid the operations, of its unitary business. We see no reason to treat differently interest on Lone Star's short-term loans to Northwest and interest from an interest-bearing checking account or short-term certificates of deposit. The issue is whether the income results from the unitary business operated in the taxing state. Just as it could not be said that Lone Star is engaged in a separate short-term lending business, it cannot be said that a company that maintains its working funds in an interest-bearing account is engaged in a separate business of investing in interest-bearing accounts. Consequently, we hold that the interest from Lone Star's short-term loans to Northwest results from Lone Star's unitary steel business. D. A finding of the existence of a unitary business does not end our inquiry, for Lone Star may still show that there is no rational relationship between the income attributed to Colorado and the intrastate value of the enterprise, by proving that the income apportioned to Colorado is "out of all proportion to the business transacted in [this] State." See Hans Rees' Sons, Inc. v. North Carolina, 283 U.S. 123, 135, 51 S. Ct. 385, 389, 75 L. Ed. 879 (1931). Lone Star claims that Colorado's tax is disproportionate, because among other things, income of $161,226 was taxed by Colorado in 1970, despite the fact that Lone Star showed a loss on its books of $7,653 on its Colorado activities for that year. That showing, however, is not controlling. As the Court stated in Exxon, supra, "a company's internal accounting techniques are not binding on a State for tax purposes." 447 U.S. at 221, 100 S.Ct. at 2119. Consequently, the Court held that Wisconsin had not disproportionately taxed Exxon, despite the showing of substantial losses on Exxon's Wisconsin operations. As was stated in Mobil, supra, "separate accounting, while it purports to isolate portions of income received in various States, may fail to account for contributions to income resulting from functional integration, centralization of management, 926 and economies of scale." 445 U.S. at 438, 100 S. Ct. at 1232. Because such factors result "from the operation of the business as a whole, it becomes misleading to characterize the income of the business as having a single identifiable `source.'" We do not believe that Lone Star has met its burden of showing by clear and cogent evidence that extra-territorial value is being taxed, because it has not shown that the functional integration of Lone Star's unitary business, of which the Fort Collins operation is a part, does not contribute to the overall income of Lone Star. E. Lone Star finally argues that the tax on dividends from International and the interest income from Northwest Industries is constitutionally infirm because it results in double taxation. Therefore, it contends, the tax violates the Commerce Clause, U.S. Const., art. I, § 8, because Lone Star is subjected to a burden that would not be imposed on a purely intrastate enterprise. Lone Star's claim is based upon its payment of the Texas Corporation Franchise Tax, which, it asserts, includes payment on the dividends and interest. That tax is computed by first determining the percentage of business done in Texas, which is calculated by dividing the gross receipts in Texas by the gross receipts everywhere. The resultant percentage is then multiplied by the total of the stated capital, surplus, and undivided profits to determine the net taxable capital and surplus. A similar procedure is used to determine the net taxable long-term debt. Lone Star concedes that "[t]he comparison of the taxation that occurred in Texas with that which was imposed by Colorado is made more difficult because of the different forms each state uses," but argues that because the dividend and interest income are included in the "Gross Receipts in Texas" figure, it is being doubly taxedonce in Texas and once in Colorado.[3] Not all duplicative taxation is a violation of the commerce clause. It has been recognized that as long as states use different methods of taxation some duplicative taxation is inevitable. In Moorman Mfg. Co. v. Bair, 437 U.S. 267, 98 S. Ct. 2340, 57 L. Ed. 2d 197 (1978), the Court was faced with a challenge to Iowa's single-factor formula, based entirely on sales, for apportioning an interstate corporation's income. The taxpayer was an Illinois corporation that sold animal feed in several states, including Iowa. Illinois used the same three-factor formula used by Colorado, which is based upon property and payroll in addition to sales. The taxpayer argued that because of the differences in method, some income was doubly taxed, and therefore Iowa's tax was unconstitutional. The Supreme Court responded to this argument as follows: "Even assuming some overlap, we could not accept appellant's argument that Iowa, rather than Illinois, was necessarily at fault in a constitutional sense. It is, of course, true that if Iowa had used Illinois' three-factor formula, a risk of duplication in the figures computed by the two States might have been avoided. But the same would be true had Illinois used the Iowa formula." Id. at 277, 98 S. Ct. at 2346. Similarly, in this case, Lone Star has not explained why it is Colorado's tax, rather than Texas' tax, that is unconstitutional. Moreover, we note that Lone Star's assistant comptroller testified at trial that under Texas law it could elect to be subject to the Texas franchise tax or to be taxed according to the three-factor Multistate Tax Compact method. Thus, to a large extent, any duplicative taxation is a result of Lone Star's election. Although the Supreme Court has described the three-factor formula as "a benchmark against which other apportionment formulas are judged," Container Corp., 103 S.Ct. at 2943, it has refused to impose a uniform rule on the states. In Moorman 927 Mfg. Co., 437 U.S. at 278, 98 S. Ct. at 2347, the Court stated: "The only conceivable constitutional basis for invalidating the Iowa statute would be that the Commerce Clause prohibits any overlap in the computation of taxable income by the States. If the Constitution were read to mandate such precision in interstate taxation, the consequences would extend far beyond this particular case. For some risk of duplicative taxation exists whenever the States in which a corporation does business do not follow identical rules for the division of income. Accepting appellant's view of the Constitution, therefore, would require extensive judicial lawmaking.... "Thus, it would be necessary for this Court to prescribe a uniform definition of each category in the three-factor formula. For if the States in which a corporation does business have different rules regarding where a `sale' takes place, and each includes the same sale in its three-factor computation of the corporation's income, there will be duplicative taxation despite the apparent identity of the formulas employed." Because we do not believe that Lone Star has satisfied its burden of showing that there has been other than a "fair apportionment," see id., we hold that there has been no violation of the commerce clause. We affirm the decision of the court of appeals relating to the interest and dividend income, and reverse on the Gaido-Lingle transactions. The cause is remanded to the court of appeals with directions to remand to the Denver District Court for proceedings consistent with the views expressed in this opinion. DUBOFSKY and KIRSHBAUM, JJ., do not participate. NOTES [1] The proper treatment of sales when the out-of-state customer picks the pipe up in its own trucks and carries it out of state is not at issue here, and we express no view on it. [2] Sections 15-17 of the UDITPA are identical to Article IV, paragraphs 15 through 17 of the Compact. Thus, commentary on the UDITPA is relevant to interpretation and application of the Compact. [3] It appears from the record, however, that International's dividends were not considered to be gross receipts in Texas, because it is a Delaware corporation.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1441502/	117 F.Supp. 781 (1953) SMITH v. SPERLING et al. Civ. No. 9005. United States District Court, S. D. California, Central Division. December 16, 1953. 782 783 784 785 786 Herman H. Levy, Moss, Lyon & Dunn, Los Angeles, Cal., for plaintiff. Eugene D. Williams, Harold R. Kelly, Freston & Files, Los Angeles, Cal., for defendants Harry M. Warner, Jack L. Warner and Warner Bros. Pictures, Inc. Oliver B. Schwab, Beverly Hills, Cal., for defendant Milton Sperling and United States Pictures, Inc. MATHES, District Judge. Edward S. Birn, "owner of 400 shares of the capital stock of defendant Warner Bros. Pictures, Inc. * * since August 21st, 1944," commenced this action in this court on December 15, 1948, "suing derivatively on behalf of and for the benefit of defendant Warner Bros. Pictures, Inc., and the stockholders thereof." The complaint contains three separate claims or causes of action. The third, alleging a violation of the Sherman and Clayton Acts, 15 U.S.C.A. §§ 1, 15, was dismissed without prejudice by order of court prior to trial. Fed.Rules Civ.Proc. rules 23(a) (1) (c), 41(a) (2), (b), 28 U.S.C.A. The second cause of action is asserted against defendants Harry M. Warner and Jack L. Warner alone and is grounded upon alleged violation of "their fiduciary duties as directors" of defendant Warner Bros. Pictures, Inc. The first cause of action is asserted against all named defendants and the allegations material here are briefly: that defendant Milton Sperling is a son-in-law of defendant Harry M. Warner; that the latter and his two brothers, Albert Warner and defendant Jack L. Warner, "control and dominate Warner Bros." and "actually select, dominate and control the directors and officers of Warner Bros."; that about the summer of 1945 the individual defendants Milton Sperling and Harry M. and Jack L. Warner conspired "to waste * * * and misappropriate the assets and business opportunities of Warner Bros. in favor of, and to further and enrich the private interests of defendant Sperling * * * at the expense of Warner Bros."; that in furtherance of the objects of this conspiracy defendant United States Pictures, Inc. was organized as a Delaware corporation and since September, 1946 defendant Sperling has been the sole stockholder; that "in or about September, 1945, the defendants caused Warner Bros. and United to enter into an agreement" for the production of motion pictures by United at the studios of Warner Bros. upon terms improvident and unfair as to Warner Bros. and unwarrantedly favorable to United; that "demand upon the directors of Warner Bros. to institute this action would be futile * * "; and that plaintiff "and stockholders similarly situated and Warner Bros. will suffer irreparable damage unless the relief requested herein be granted." The prayer is that "the defendants account to Warner Bros. * "; that "a trust be impressed upon the capital stock and assets of United in favor of Warner Bros."; that "the agreement between Warner Bros. and United * be cancelled and terminated." Defendants Harry M. and Jack L. Warner and Warner Bros. joined in an answer denying the substantive allegations of the complaint and pleading affirmatively the bar of California's applicable statute of limitations. Defendants Sperling and United filed an answer to like effect. The original jurisdiction of this court is invoked upon the claimed ground that "the matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs, and is between * * * Citizens of different States * * ." 28 U.S.C. § 1332. 787 It is true, as alleged, that plaintiff is a citizen of New York, that defendants Warner Bros. and United are "corporations incorporated under the laws of * * * Delaware," and that defendants Milton Sperling and Harry M. and Jack L. Warner are citizens of California. Since this court possesses only such jurisdiction as has been conferred by statute, U.S.Const. Art. III; Lockerty v. Phillips, 1943, 319 U.S. 182, 187, 63 S.Ct. 1019, 87 L.Ed. 1339 and "lack of federal jurisdiction cannot be waived or be overcome by an agreement of the parties". Mitchell v. Maurer, 1934, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338, jurisdiction is the threshold issue in every case brought here. State of Rhode Island v. Massachusetts, 1838, 12 Pet. 657, 37 U.S. 657, 720, 9 L.Ed. 1233; Brown v. Keene, 1834, 8 Pet. 112, 33 U.S. 112, 8 L.Ed. 885; Capron v. Van Noorden, 1804, 2 Cranch 126, 6 U.S. 126, 2 L.Ed. 229. "This question the court is bound to ask and answer for itself, even when not otherwise suggested * * ." Mansfield, Coldwater & L. M. Railway Co. v. Swan, 1884, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462; Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 588, 59 S.Ct. 744, 83 L.Ed. 1001; St. Paul Mercury Ind. Co. v. Red Cab Co., 1938, 303 U.S. 283, 287-290, 58 S.Ct. 586, 82 L. Ed. 845; McNutt v. Gen. Motors etc. Corp., 1936, 298 U.S. 178, 184-189, 56 S.Ct. 780, 80 L.Ed. 1135; Robinson v. Anderson, 1887, 121 U.S. 522, 7 S.Ct. 1011, 30 L.Ed. 1021; Williams v. Nottawa, 1881, 104 U.S. 209, 211, 26 L.Ed. 719; Minnis v. So. Pac. Co., 9 Cir., 1938, 98 F.2d 913, 915, certiorari denied, 1939, 306 U.S. 631, 59 S.Ct. 461, 83 L.Ed. 1033. While jurisdictional issues in each case are properly triable to the court North Pacific S. S. Co. v. Soley, 1921, 257 U.S. 216, 221-223, 42 S.Ct. 87, 66 L.Ed. 203; Gilbert v. David, 1915, 235 U.S. 561, 566-568, 35 S.Ct. 164, 59 L.Ed. 360; Taylor v. Hubbell, 9 Cir., 1951, 188 F.2d 106, 109, certiorari denied, 1951, 342 U.S. 818, 72 S.Ct. 32, 96 L.Ed. 618, there is no statute or rule of court prescribing "any particular mode in which the question of * * jurisdiction is to be brought to the attention of the court, nor how such question, when raised, shall be determined." Wetmore v. Rymer, 1898, 169 U.S. 115, 120, 18 S.Ct. 293, 295, 42 L.Ed. 682. Rule 12(h) directs "that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.Rules Civ.Proc. rule 12(h), 28 U.S.C.A. Rule 12(d) contemplates a hearing and determination of jurisdictional issues in advance of the trial of other issues. Fed.Rules Civ.Proc. rule 12(d), 28 U.S.C.A.; Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962, 967; 2 Moore's Federal Practice § 12.16 (2d ed. 1948). And the Supreme Court has declared that: "As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court." Gibbs v. Buck, 1939, 307 U.S. 66, 71-72, 59 S.Ct. 725, 729, 83 L.Ed. 1111; cf. Gulbenkian v. Gulbenkian, D.C.S.D.N.Y. 1940, 33 F.Supp. 19. As a general rule therefore the trial court may, in its discretion, try all issues of fact as to jurisdiction by receiving oral testimony and other evidence, Gilbert v. David, supra, 235 U.S. at pages 566, 568, 35 S.Ct. 164, or by receiving and weighing affidavits, KVOS, Inc., v. Associated Press, 1936, 299 U.S. 269, 277-278, 57 S.Ct. 197, 81 L.Ed. 183; Mechanical Appliance Co. v. Castleman, 1910, 215 U.S. 437, 440-441, 445-446, 30 S.Ct. 125, 54 L.Ed. 272; Wetmore v. Rymer, supra, 169 U.S. at page 119, 18 S.Ct. 293; Fed.Rules Civ.Proc. rule 43(a, e), 28 U.S.C.A. To borrow language from Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, "when a question of the District Court's jurisdiction is raised, either by a party or by the court on its own motion * * * Federal Rules Civil Procedure, rule 12(b), 28 U.S.C.A., the 788 court may inquire by affidavits or otherwise, into the facts as they exist." 330 U.S. at page 735, note 4, 67 S.Ct. at page 1011. Whether the question be raised by the court or by motion or plea or answer of a party, see Steigleder v. McQuesten, 1905, 198 U.S. 141, 25 S.Ct. 616, 49 L.Ed. 986; Susquehanna & Wyoming Valley R. R. & Coal Co. v. Blatchford, 1870, 11 Wall. 172, 78 U.S. 172, 178, 20 L.Ed. 179; Smith v. Kernochen, 1849, 7 How. 198, 48 U.S. 198, 12 L.Ed. 666, the burden of proof always rests upon the party asserting existence of jurisdiction, KVOS, Inc., v. Associated Press, supra, 299 U.S. at page 278, 57 S.Ct. 197; McNutt v. Gen. Motors etc. Corp., supra, 298 U.S. at pages 189-190, 56 S. Ct. 780; Seslar v. Union Local 901, 7 Cir., 1951, 186 F.2d 403, 407, 30 A.L.R.2d 593, certiorari denied, 1951, 341 U.S. 940, 71 S.Ct. 1000; Barron & Holtzoff, 1 Federal Practice and Procedure (Rules Edition), § 352 (1950 ed., 1952 Supp.). That is to say, it is incumbent upon any party who invokes the jurisdiction of a federal court to establish by a preponderance of evidence all facts "upon which the court's jurisdiction depends". Fed. Rules Civ.Proc. rule 8(a), 28 U.S.C.A. In the case at bar oral motion was made by the defendants at pretrial hearing to dismiss the action for "lack of jurisdiction over the subject matter", Fed. Rules Civ.Proc. rule 12(b) (1), (d, h), 28 U.S.C.A., upon the ground that requisite diversity of citizenship was lacking at the commencement of the action, in that Warner Bros., a Delaware corporation, must be aligned as a party plaintiff for diversity purposes, thus leaving a New York citizen and a Delaware corporation as plaintiffs and three California citizens and a Delaware corporation as defendants. See Mississippi Pub. Corp. v. Murphree, 1946, 326 U.S. 438, 441, note 2, 66 S.Ct. 242, 90 L.Ed. 185; St. Louis & San Francisco Ry. Co. v. James, 1896, 161 U.S. 545, 562-563, 16 S.Ct. 621, 40 L.Ed. 802; Doctor v. Harrington, 1905, 196 U.S. 579, 586-587, 25 S.Ct. 355, 49 L.Ed. 606; Louisville, Cincinnati & Charleston R. Co. v. Letson, 1844, 2 How. 497, 43 U.S. 497, 554-558, 11 L.Ed. 353; Marshall v. Baltimore & O. R. R. Co., 1853, 16 How. 314, 57 U.S. 314, 325-329, 14 L.Ed. 953. A trial of the jurisdictional and the statute-of-limitations issues, in advance of trial of the other issues in the case, was ordered. As the parties were aligned by plaintiff, complete diversity of citizenship appeared from the face of the complaint upon commencement of the action. Pacific R. Co. v. Ketchum, 1879, 101 U.S. 289, 298, 25 L.Ed. 932. Prior to trial the original plaintiff, New York citizen Edward S. Birn, died and the Probate Court of California appointed Charles B. Smith as Special Administrator of the estate. Cal.Prob.Code, §§ 460, 463. Smith, a citizen of California, was thereupon substituted as party plaintiff. Fed. Rules Civ.Proc. rule 25(a), 28 U.S.C.A. Where diversity jurisdiction exists at the commencement of an action, a subsequent change of citizenship of one of the parties does not oust it. Wichita R. R. & Light Co. v. Public Utilities Comm., 1922, 260 U.S. 48, 53-54, 43 S.Ct. 51, 67 L.Ed. 124; Louisville N. A. & C. Ry. Co. v. Louisville Trust Co., 1899, 174 U.S. 552, 566, 19 S.Ct. 817, 43 L.Ed. 1081; Clarke v. Mathewson, 1838, 12 Pet. 164, 37 U.S. 164, 171, 9 L.Ed. 1041; Dunn v. Clarke, 1834, 8 Pet. 1, 33 U.S. 1, 2, 8 L.Ed. 845; Mullen v. Torrance, 1824, 9 Wheat. 537, 22 U.S. 537, 538. It follows then that while the citizenship of the administrator at bar would have been a factor if he had originally brought the action, his citizenship as substituted party plaintiff is held not to affect determination as to diversity jurisdiction. See Continental Life Ins. Co. v. Rhoads, 1886, 119 U.S. 237, 7 S.Ct. 193, 30 L.Ed. 380; Blake v. McKim, 1880, 103 U.S. 336, 26 L.Ed. 563; Amory v. Amory, 1877, 95 U.S. 186, 24 L.Ed. 428; Rice v. Houston, Adm'r, 1871, 13 Wall. 66, 80 U.S. 66, 21 L.Ed. 484; cf. Jeffcott v. Donovan, 9 Cir., 1943, 135 F.2d 213. 789 Subject to the exception that diversity jurisdiction can be acquired by dropping parties not indispensable, Dollar S. S. Lines v. Merz, 9 Cir., 1934, 68 F.2d 594; Sechrist v. Palshook, D.C.M. D.Pa.1951, 95 F.Supp. 746; Fed.Rules Civ.Proc. rule 21, 28 U.S.C.A., it is settled that as a general rule all other than mere "nominal" or "formal" parties are to be considered in determining whether there exists the diversity of citizenship required by 28 U.S.C. § 1332. See Hamer v. N. Y. Rys. Co., 1917, 244 U.S. 266, 274, 37 S.Ct. 511, 61 L.Ed. 1125; Waterman v. Canal-Louisiana Bank & Trust Co., 1909, 215 U.S. 33, 47, 30 S.Ct. 10, 54 L.Ed. 80; Geer v. Mathieson Alkali Works, 1903, 190 U.S. 428, 433, 23 S.Ct. 807, 47 L.Ed. 1122; Bacon v. Rives, 1882, 106 U.S. 99, 104, 1 S.Ct. 3, 27 L.Ed. 69; Barney v. Latham, 1880, 103 U.S. 205, 214, 26 L.Ed. 514; Walden v. Skinner, 1879, 101 U.S. 577, 588-589, 25 L.Ed. 963; Horn v. Lockhart, 1873, 17 Wall. 570, 84 U.S. 570, 579, 21 L.Ed. 657; Wood v. Davis, 1855, 18 How. 467, 59 U.S. 467, 469, 15 L.Ed. 460; Wormley v. Wormley, 1823, 8 Wheat. 421, 21 U.S. 421, 451, 5 L.Ed. 651; Schuckman v. Rubenstein, 6 Cir., 1947, 164 F.2d 952. In order to ascertain whether the Delaware corporation Warner Bros. is an indispensable party to appropriate adjudication of the stockholder's derivative suit at bar, we must look to the law of California, Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, to "the entire body of substantive law governing an identical action in the state courts." Ruhlin v. N. Y. Life Ins. Co., 1938, 304 U.S. 202, 209, 58 S.Ct. 860, 862, 82 L.Ed. 1290; and see Cohen v. Beneficial Loan Corp., 1949, 337 U.S. 541, 555-557, 69 S.Ct. 1221, 93 L.Ed. 1528. Insofar as the first cause of action involves validity of the 1945 agreement between Warner Bros. and United, since that agreement was executed in New York, any cause of action to cancel it presumably arose under New York law. And where suit is brought on a foreign cause of action in the courts of California, substantive matters are held governed by the law of the place where the cause arose, while procedural matters are held governed by California law. Biewend v. Biewend, 1941, 17 Cal.2d 108, 109 P.2d 701, 132 A.L.R. 1264; accord, Restatement, Conflict of Laws § 584 (1934). Moreover, whether a matter in such a suit is substantive or procedural is a question of California law. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; accord, Restatement, Conflict of Laws § 584 (1934). The courts of California apply to the conduct of foreign corporations doing business within the state, such as Warner Bros. here, the same standard as to domestic corporations. See Turner v. Markham, 1909, 155 Cal. 562, 102 P. 272; Findley v. Garrett, 1952, 109 Cal.App.2d 166, 240 P.2d 421; Angelus Sec. Corp. v. Ball, 1937, 20 Cal.App.2d 436, 67 P.2d 158; cf. Pratt v. Robert S. Odell & Co., 1942, 49 Cal.App.2d 550, 122 P.2d 684; Cal.Corp. Code, § 6601; Ballantine & Sterling, Calif.Corp.Laws, § 410, p. 515 (1949 ed.); see, also, Rogers v. Guaranty Trust Co., 1933, 288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652; Overfield v. Pennroad Corp., 3 Cir., 1944, 146 F.2d 889, 894-896; Bovay v. H. M. Byllesby & Co., 1943, 27 Del.Ch. 33, 29 A.2d 801, Id., 1944, 27 Del.Ch. 381, 38 A.2d 808, 174 A.L.R. 1201. Speaking of a stockholder's derivative suit, the California courts have declared that: "A stockholder who institutes it sues purely as a trustee to redress corporate injuries." Whitten v. Dabney, 1915, 171 Cal. 621, 629; 154 P. 312, 315. Also that: "As a general rule of law * * * where a stockholder of a corporation seeks to maintain an action for a wrong done to the corporation, such stockholder occupies no better or different position with relation thereto than would the corporation itself suing in its own behalf." Reid v. Robinson, 1923, 64 Cal.App. 46, 55, 220 P. 676, 680. 790 "The fact that a stockholder is the nominal plaintiff does not in any manner enlarge the rights and remedies of the action." Earl v. Lofquist, 1938, 135 Cal. App. 373, 376, 27 P.2d 416, 418. And in cases where the corporation and its board of directors are "wholly under the domination of those who committed the original fraud, the corporation is deemed to be in the same position as an incompetent person or a minor without legal capacity * ." Beal v. Smith, 1920, 46 Cal.App. 271, 279, 189 P. 341, 345. See, also Sutter v. General Pet. Corp., 1946, 28 Cal.2d 525, 530, 170 P.2d 898, 900, 167 A.L.R. 271; Klopstock v. Superior Court, 1941, 17 Cal.2d 13, 17, 108 P.2d 906, 908, 135 A.L.R. 318; Turner v. Markham, supra, 155 Cal. at pages 569, 570, 102 P. at page 275. The substantive law of New York as to the nature and ownership of the cause of action involved in a stockholder's derivative suit is in all material respects the same as that of California. See Clarke v. Greenberg, 1947, 296 N.Y. 146, 71 N.E.2d 443, 169 A.L.R. 944; Isaac v. Marcus, 1932, 258 N.Y. 257, 179 N.E. 487; Flynn v. Brooklyn City R. Co., 1899, 158 N.Y. 493, 53 N.E. 520; Alexander v. Donohoe, 1894, 143 N.Y. 203, 38 N.E. 263; Earl v. Brewer, 1936, 248 App.Div. 314, 289 N.Y.S. 150, affirmed 1937, 273 N.Y. 669, 8 N.E.2d 339. In the courts of California, then, and New York as well, the plaintiff-stockholder's corporation is the real party in interest and an indispensable party to appropriate adjudication of the action. This view accords with that expressed in the decisions of the United States Supreme Court. See Cohen v. Beneficial Loan Corp., supra, 337 U.S. at page 548, 69 S.Ct. 1221; Koster v. (American) Lumbermens Mutual Co., 1947, 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067; Meyer v. Fleming, 1946, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595; City of Davenport v. Dows, 1873, 18 Wall. 626, 85 U.S. 626, 21 L.Ed. 938; also Lee v. Lehigh Valley Coal Co., 1925, 267 U.S. 542, 45 S.Ct. 385, 69 L.Ed. 782; Hamer v. N. Y. Rys, Co., supra, 244 U.S. at page 274, 37 S.Ct. 511; Dickerman v. Northern Trust Co., 1900, 176 U.S. 181, 188, 20 S.Ct. 311, 44 L.Ed. 423; Blacklock v. Small, 1888, 127 U.S. 96, 8 S.Ct. 1096, 32 L.Ed. 70; Pacific R. R. v. Ketchum, supra, 101 U.S. at pages 298-299, 25 L.Ed. 932; City of Memphis v. Dean, 1868, 8 Wall. 64, 75 U. S. 64, 73-74, 19 L.Ed. 326. As Mr. Justice Jackson wrote in Koster v. (American) Lumbermens Mutual Co., supra: "The cause of action which such a plaintiff brings before the court is not his own but the corporation's. It is the real party in interest and he is allowed to act in protection of its interest somewhat as a `next friend' might do for an individual, because it is disabled from protecting itself." 330 U. S. at pages 522-523, 67 S.Ct. at page 831. Moreover, as Mr. Justice Douglas said in Meyer v. Fleming, supra: "The corporation is a necessary party. * * Hence, it is joined as a defendant. But it is only nominally a defendant, since any judgment obtained against the real defendant runs in its favor. * * * The fact that the corporation is nominally a defendant should not lead to any different result. That gives the suit only a difference in form, not a difference in substance." 327 U.S. at pages 167-168, 66 S.Ct. at page 386. In California, as under our rules, Fed. Rules Civ.Proc. rules 17, 19(a), 28 U.S. C.A., every action must normally be prosecuted in the name of the real party in interest, Cal.Code Civ.Proc. § 367, "but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant * * ." Id. § 382. With respect to "an executor, administrator, guardian, trustee of an express trust," Rule 17 states that each "may sue in his own name without joining with him the party for whose benefit the action is brought * ." Fed. Rules Civ.Proc. rule 17(a), 28 U.S.C.A. 791 In such cases, since the person for whose benefit the action is prosecuted need not be joined, the citizenship of the representative who sues, and not that of the beneficiary of the suit, is considered in determining whether diversity jurisdiction exists. See Hamer v. N. Y. Rys. Co., supra, 244 U.S. at page 274, 37 S.Ct. 511; Hess v. Reynolds, 1885, 113 U.S. 73, 76, 5 S.Ct. 377, 28 L.Ed. 927; Knapp v. Railroad Co., 1873, 20 Wall. 117, 87 U.S. 117, 22 L.Ed. 328; Rice v. Houston, Adm'r, supra, 13 Wall. at page 67; Coal Co. v. Blatchford, supra, 11 Wall. 175, 78 U.S. at page 175; Childress v. Emory, 1823, 8 Wheat. 642, 21 U.S. 642, 668-669, 5 L.Ed. 705; cf. In re Moore, 1908, 209 U.S. 490, 28 S.Ct. 585, 52 L.Ed. 904; Mexican Cent. Ry. Co. v. Eckman, 1903, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245; Anglo-California Nat. Bank v. Lazard, 9 Cir., 1939, 106 F.2d 693, 699-700, certiorari denied, 1940, 308 U.S. 624, 60 S. Ct. 379, 84 L.Ed. 521; Mayer v. Cohrs, C.C.E.D.Wash.1911, 188 F. 443. The stockholder's derivative suit is a historical exception to the rule that the action be prosecuted in the name of the real party in interest. The exception permits the stockholder to sue in his own name, but he is required to join the corporation as a party. In City of Davenport v. Dows, supra, 18 Wall. 626, the Court pointed out the reasons in some detail, saying: "It would be wrong, in case the shareholder were unsuccessful, to allow the corporation to renew the litigation in another suit, involving precisely the same subject-matter. To avoid such a result, a court of equity will not take cognizance of a bill brought to settle a question in which the corporation is the essential party in interest, unless it is made a party to the litigation." 18 Wall. at page 627; see also Helm v. Zarecor, 1911, 222 U.S. 32, 36-38, 32 S. Ct. 10, 56 L.Ed. 77; Steele v. Culver, 1908, 211 U.S. 26, 29, 29 S.Ct. 9, 53 L.Ed. 74; Porter v. Sabin, 1893, 149 U.S. 473, 478, 13 S.Ct. 1008, 37 L.Ed. 815; Dewing v. Perdicaries, 1877, 96 U.S. 193, 197-198, 24 L.Ed. 654; cf. Lee v. Lehigh Valley Coal Co., supra, 267 U.S. at page 543, 45 S.Ct. 385; Hamer v. N. Y. Rys. Co., supra, 244 U.S. at pages 272-275, 37 S.Ct. 511; American Bible Society v. Price, 1884, 110 U.S. 61, 3 S.Ct. 440, 28 L.Ed. 70. Clearly then, the corporation for whose benefit a stockholder's derivative suit is brought is an indispensable party to appropriate adjudication of the "matter in controversy", and as such is one of the parties whose citizenship is to be considered and counted in determining whether diversity jurisdiction exists, City of Dawson v. Columbia Trust Co., 1905, 197 U.S. 178, 180-181, 25 S.Ct. 420, 49 L.Ed. 713; Shields v. Barrow, 1854, 17 How. 129, 58 U.S. 129, 139, 145, 15 L.Ed. 158 in determining whether "the matter in controversy * * * is between * * * Citizens of different States", 28 U.S.C. § 1332, "all of whom on one side of the controversy are citizens of different states from all parties on the other side." City of Indianapolis v. Chase National Bank, 1941, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47; Strawbridge v. Curtiss, 1806, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435. It is "the duty of the court in determining whether there was the requisite diversity of citizenship, to arrange the parties with respect to the actual controversy, looking beyond the formal arrangement made by the bill." Helm v. Zarecor, supra, 222 U.S. at page 36, 32 S.Ct. at page 12; and see: Lee v. Lehigh Valley Coal Co., supra, 267 U.S. at page 543, 45 S.Ct. 385; Hamer v. N. Y. Rys. Co., supra, 244 U.S. at page 274, 37 S.Ct. 511; Steele v. Culver, supra, 211 U. S. at page 29, 29 S.Ct. 9; City of Dawson v. Columbia Trust Co., supra, 197 U. S. at page 181, 25 S.Ct. 420; Blacklock v. Small, supra, 127 U.S. at page 104, 8 S.Ct. 1096; Harter v. Kernochan, 1880, 103 U.S. 562, 566, 26 L.Ed. 411. In the words of Mr. Chief Justice Waite, a federal court should, "for the purposes of jurisdiction * * * ascertain the real matter in dispute, and arrange the parties on one side or the other of that dispute", Pacific R. R. v. Ketchum, supra, 101 U.S. at page 298, 25 L.Ed. 792 932; "and the pleadings may be put aside, and the parties placed on different sides of the matter in dispute according to the facts." Removal Cases, Meyer v. Delaware R. Construction Co., 1879, 100 U.S. 457, 469, 25 L.Ed. 593. As Mr. Justice Frankfurter observed in City of Indianapolis v. Chase National Bank, supra: "These familiar doctrines governing the alignment of parties for purposes of determining diversity of citizenship have consistently guided the * * federal courts * * ." 314 U.S. at page 70, 62 S.Ct. at page 17. One of the first tests to be applied in determining whether a defendant should be aligned with the plaintiff is the prayer for relief. City of Dawson v. Columbia Trust Co. supra, 197 U.S. at pages 180-181, 25 S.Ct. 420; Mahon v. Guaranty Trust etc. Co., 7 Cir., 1917, 239 F. 266, 269. In Steele v. Culver, supra, Mr. Justice Holmes declared for an unanimous Court that: "The omission of any prayer for relief against * * [a corporate defendant] simply shows that properly it is to be treated as a plaintiff in this case." 211 U.S. at page 29, 29 S.Ct. at page 9. Accord: Lee v. Lehigh Valley Coal Co., supra, 267 U.S. 542, 45 S.Ct. 385; Hamer v. N. Y. Rys. Co., supra, 244 U.S. at pages 272-274, 37 S.Ct. 511. As stated before, the complaint at bar discloses not the slightest pretence of asking relief against Warner Bros. as a party defendant. But plaintiff contends that a stockholder's derivative action stands as an exception to all rules governing alignment of parties. First cited in support of this contention is Doctor v. Harrington, supra, 196 U.S. 579, 25 S.Ct. 355, which, says plaintiff, holds that the stockholder's corporation, by refusing to sue and disputing or refuting the claim made on its behalf by the suing stockholder, in legal effect aligns itself on the defendants' side of "the matter in controversy". In other words, plaintiff contends in effect that refusal of the corporation to join with the suing stockholder operates as a matter of law, under the rule of Doctor v. Harrington, to align the corporation with the defense for diversity jurisdiction purposes. The inquiry is thus turned to consider whether the Court has laid down a fixed rule to govern alignment in stockholder's derivative actions, or whether alignment in such cases, as in other cases, turns upon the facts as disclosed by the pleadings and, where available, the evidence. In Doctor v. Harrington the trial court dismissed "on the ground that it had no jurisdiction upon the fact alleged, and certified to the [Supreme] court the question of jurisdiction." 196 U.S. at page 579, 25 S.Ct. at page 355. It was alleged in the bill of complaint that the complainant stockholders were citizens of New Jersey; that the corporate defendant, on whose behalf they sued to set aside a judgment obtained against it by defendants Harrington, was a New York corporation and hence a citizen of New York as were defendants Harrington. 196 U.S. at page 580, 25 S.Ct. 355. It was also alleged that "The board of directors of said corporation is under the absolute control and domination of the defendant John Harrington [who], by reason of having possession of a majority of the capital stock * * * likewise controls the action of the stockholders." 196 U.S. at page 582, 25 S.Ct. at page 356. Reversing the decree dismissing the bill for lack of jurisdiction over the subject matter, the Court said: "The ninety-fourth rule in equity contemplates that there may be, and provides for, a suit brought by a stockholder in a corporation, founded on rights which may properly be asserted by the corporation. And the decisions of this court establish that such a suit, when between citizens of different states, involves a controversy cognizable in a circuit court of the United States. The ultimate interest of the corporation made defendant may be the same as that of the stockholder made plaintiff; but the corporation may be under a control antagonistic to him, and made to act in a 793 way detrimental to his rights. In other words, his interests and the interests of the corporation may be made subservient to some illegal purpose. * * "In [City of] Detroit v. Dean, 106 U.S. 537, 1 S.Ct. 560, 27 L.Ed. 300, * * * this court ordered the bill dismissed, not because Dean and the corporation had identical interests, but because the refusal of the directors of the corporation to sue was collusive. * * * Hawes v. Oakland, 104 U.S. 450, 26 L. Ed. 827, was cited, where a like right was decided to exist. See also Dodge v. Woolsey, 18 How. 331, 15 L.Ed. 401; Davenport v. Dows, 18 Wall. 626, 21 L. Ed. 938; Memphis v. Dean, 8 Wall. [64] 73, 19 L.Ed. 328; Greenwood v. Freight Company, 105 U.S. [13], 16, 26 L.Ed. 963; [City of] Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624. It was said that in Dodge v. Woolsey, that the refusal of the directors to sue caused them and Woolsey, who was a stockholder in a corporation of which they were directors, `to occupy antagonistic grounds in respect to the controversy, which their refusal to sue forced him to take in defense of his rights.' Dodge v. Woolsey was modified by Hawes v. Oakland, as to what circumstances would justify a suit by a stockholder if the directors refuse to sue. * * * "The case at bar is brought within the doctrine of those cases by the allegations of the bill." 196 U.S. at pages 587-588, 25 S.Ct. at page 357. Thus the Court, applying "the ninety-fourth rule in equity" as a federal rule of substantive law, see Swift v. Tyson, 1842, 16 Pet. 1, 41 U.S. 1, 10 L.Ed. 865; Venner v. Great Northern Ry., 1908, 209 U.S. 24, 33, 35, 28 S.Ct. 328, 52 L.Ed. 666, held that the facts alleged were sufficient to invoke both the diversity and the equity jurisdiction of the Federal court. See Matthews v. Rodgers, 1932, 284 U.S. 521, 524, 52 S.Ct. 217, 76 L.Ed. 447; Twist v. Prairie Oil & Gas Co., 1927, 274 U.S. 684, 689-692, 47 S. Ct. 755, 71 L.Ed. 1297; Venner v. Great Northern Ry., supra, 209 U.S. at pages 34-35, 28 S.Ct. 328. That is to say, the court took as true the facts alleged in the bill of complaint, and in effect held that the complaining stockholders not only met the requirements of Equity Rule 94, but further showed that the corporation was "under a control antagonistic" to its own financial interests and should not, because of such incapacity, be aligned with the plaintiffs in determining whether diversity jurisdiction existed. In the earlier case of Hawes v. Oakland, 1881, 104 U.S. 450, 26 L.Ed. 827, the complaining stockholder of Contra Costa Water-Works Company, a California corporation, was a citizen of New York. The named defendants, including the city of Oakland, the Water-Works corporation and its directors, all were citizens of California. The bill of complaint alleged that the corporation had refused to cease furnishing the city of Oakland a free supply of water under disputed provisions of a contract between the Water-Works Company and the city. "To this bill the Water-Works Company and the directors failed to make answer; and the city of Oakland filed a demurrer, which was sustained by the court and the bill dismissed." 104 U.S. at page 451. Upon sustaining the city's demurrer and dismissing the bill of complaint on the merits, Judge Sawyer of the Circuit [trial] Court did not refer to jurisdiction or alignment of parties. See Hawes v. Contra Costa Water Co., C.C.S.D.Cal. 1878, 11 Fed.Cas. p. 862, No. 6,235. The fact that the Removal Cases, supra, 100 U.S. 457, were not decided until 1879, a year later, may account for Judge Sawyer's failure to realign the Water-Works Company with the complainant and dismiss the bill for lack of jurisdiction over the subject matter. Some three years following his decision of the Hawes case, in a stockholder's derivative suit brought by Dannmeyer, an alien, against Consolidated Virginia Mining Company, a California corporation, and California citizens Coleman, Flood, Fair, Machay, et al., Judge Sawyer, after citing the Removal Cases, wrote: "The complainant Dannmeyer's 794 interest as a stockholder is only secondary and derivative, and merely incidental to that of the corporation. Transferring the corporation from the side of the defendant to that of the complainant, who is simply using the corporation and litigating in his own name, and actually in behalf of the corporation and for its own benefit, as is suggested in the Removal Cases, should be done for the purpose of determining the question of jurisdiction, and we have an alien and a California corporation on one side, and several California corporations and citizens on the other. Does not this oust the jurisdiction?" Dannmeyer v. Coleman, C.C.D.Cal.1882, 11 F. 97, 103. Whatever may have been the reasons for Judge Sawyer's omission to dismiss the Hawes case for want of jurisdiction, still other reasons served Mr. Justice Miller, speaking for the Court upon appeal from Judge Sawyer's decree dismissing the bill on the merits, to affirm the dismissal, not upon the merits, but upon the ground that the bill showed upon its face a want of equity. Four years previous to his opinion in Hawes v. Oakland, Mr. Justice Miller, sitting as Circuit Justice in the Circuit Court of the District of Colorado, heard a motion to remand to the state court a stockholder's derivative suit, and upon denying the motion wrote: "The suit in this case is brought, as the parties concede, and as the petition shows, by the commissioners of the county of Arapahoe, who are citizens of the state of Colorado, against the Denver Pacific Railway and Telegraph Company, which is also a citizen of Colorado, and against two gentlemen, Mr. Sayre and Mr. Moffat, who are citizens of Colorado, and against seven or eight other persons, who are citizens of other states than Colorado. The case has been removed to this court upon a petition setting forth substantially these facts, and it is now asked to be remanded because the requisite essentials, as prescribed by the act of congress conferring jurisdiction upon this court, are not found in this case. The objection is that the Denver Pacific Railway and Telegraph Company, Sayre and Moffat, are citizens of the same state with the complainants in this action. * * It is further alleged, in support of the objection to the jurisdiction of this court in this case, that the Denver Pacific Railway Company, and Sayre and Moffat, each of them, are necessary adverse parties to the complainants in this suit. The objection, if well taken, will require the suit to be remanded. "The reply is that the Denver Pacific Company, and Sayre and Moffat, are nominal parties, against whom no relief is sought, and against whom no decree can be rendered; that the bill is clear and specific on that point; consequently the right which belongs to the other parties to remove the case is not and cannot be defeated by the joinder in the petition of other defendants, citizens of the same state with the complainants, against whom no relief is prayed. As regards Sayre and Moffat, the case seems very clear. A careful reading of the bill shows that no relief can be had against them. * * " Confronting the problem of alignment for jurisdictional purposes, Mr. Justice Miller continued: "The case then rests upon the question of whether the fact that the Denver Pacific Railway Company is a party defendant, and is a citizen of the same state of the party plaintiff, ousts the jurisdiction of this court or defeats the right of removal of the other parties who are citizens of other states. That question does not rest upon the same principle as the case of Messrs. Sayre and Moffat. The Denver Pacific Railway Company is a necessary party to this suit; it is one without which the suit cannot proceed. The main object of this suit * * is to obtain an accounting * * . The relief * * asked is a decree in favor of the Denver Pacific Railway Company for the amount found due upon that accounting. The Denver Pacific Railway Company is a necessary party to that accounting. A party cannot be required 795 to go to all the trouble of accounting and having a decree, when that accounting and decree will not be a valid defence against the principal party having the right to call such party to account. * * This shows very clearly that the Denver Pacific Railway Company is not a mere nominal party, but is an indispensable party. But, as already stated, the main relief sought in this case will be, if the suit is successful, a decree in favor of the Denver Pacific Railway Company for the amount found due from the other defendants in this case. That is an important and significant feature of the transaction. * * * [I]t is very clear that the interest of the Denver Pacific Railway Company is the interest of the plaintiffs; that their interest is identical that the board of county commissioners are using the name of the Denver Pacific Company to carry on this suit solely for the benefit of that company. * * * The complainants recognize this themselves, for in their prayer for relief they say expressly what they pray for is a decree in favor of the Denver Pacific Railway Company against the Kansas Pacific Railway Company and the other defendants. Now, the controversy in this case is one in which the commissioners of Arapahoe county and the Denver Pacific Railway Company are on one side, citizens of the state of Colorado, against all the other defendants. * * * "The best judgment I am able to give is that this is a controversy between citizens of the state of Colorado on one side, and citizens of other states on the other side, and is properly subject to removal." Arapahoe County v. Kansas Pac. Ry. Co., C.C.D.Colo.1877, 1 Fed.Cas. No.502, pp. 1080, 1081-1083. It is interesting that Mr. Justice Miller wrote this opinion in Arapahoe County two years before the Removal Cases were decided. Since both Arapahoe, 1 Fed.Cas. p. 1080, and the Removal Cases, 100 U.S. 457, were decided under the Act of March 3, 1875, 18 Stat. 470, it seems safe to conclude that the former served as a forerunner to the latter, in which the Court declared for the first time that: "Under the new law the mere form of the pleadings may be put aside, and the parties placed on different sides of the matter in dispute according to the facts." 100 U.S. at page 469. Two years later, when Mr. Justice Miller came to write the opinion in Hawes v. Oakland, he omitted to cite or mention the realignment rule of either Arapahoe or the Removal Cases and does not indeed appear to have considered dismissal for lack of jurisdiction over the subject matter rather than for want of equity, notwithstanding reference in the opinion to the Act of March 3, 1875, 18 Stat. 470. Rather, he referred back to and distinguished Dodge v. Woolsey, 1855, 18 How. 331, 59 U.S. 331, 15 L.Ed. 401, where both diversity and equity jurisdiction were sustained in a stockholder's derivative suit brought by Woolsey, a Connecticut stockholder of an Ohio banking corporation, against Dodge, an Ohio tax collector, "the directors of the bank, and the bank itself, defendants." 59 U.S. at page 336. "To this bill the defendant, George C. Dodge, filed an answer. The other defendants did not answer. He admits the material allegations of the bill, except the allegation that the tax law * * * is unconstitutional * * ." 59 U.S. at page 339. It is true, as Mr. Justice McKenna pointed out in Doctor v. Harrington, supra, 196 U.S. 579, 25 S.Ct. 355, that: "It was said that in Dodge v. Woolsey, that the refusal of the directors to sue caused them and Woolsey, who was a stockholder in a corporation of which they were directors, `to occupy antagonistic grounds in respect to the controversy, which their refusal to sue forced him to take in defense of his rights.'" 196 U.S. at page 588, 25 S.Ct. at page 357. The quoted statement from Dodge v. Woolsey was made by Mr. Justice Wayne in disposing of an "imputation of contrivance" between Woolsey and the directors of the bank to give the federal court jurisdiction "on account of their residence and citizenship being in different 796 states." 18 How. at pages 345-346. In comparing Hawes v. Oakland and Dodge v. Woolsey, it is of assistance to keep in mind that the latter was decided "under the old law," and that, as stated in the Removal Cases: "Under the old law the pleadings only were looked at, and the rights of the parties in respect to a removal were determined solely according to the position they occupied as plaintiffs or defendants in the suit." 100 U.S. at page 469. As authority for the statement last above quoted, the Court in the Removal Cases cites Coal Co. v. Blatchford, supra, where Mr. Justice Field observed that "In Osborn v. Bank of United States, 1824, 9 Wheat. 738, 22 U.S. 738, 857, 6 L.Ed. 204, the Chief Justice laid it down as a universal rule that, in controversies between citizens of different States, the jurisdiction of the Federal courts depended not upon the relative situation of the parties concerned in interest, but upon the relative situation of the parties named in the record." 11 Wall. at page 175. Thus at the time of Dodge v. Woolsey the Court had no power to consider realignment of the parties "the pleadings only were looked at." Removal Cases, supra, 100 U.S. at page 469. But such power did exist at the time Hawes v. Oakland was decided, and it is clear from Arapahoe and the Removal Cases that the Court was then mindful of realignment. The tenor of the opinion in Hawes v. Oakland indicates that the Court deliberately chose that case as the springboard for a new rule of substantive law, Swift v. Tyson, supra, 16 Pet. 1, to curb the then prevalent evils of collusive maintenance of derivative suits by stockholders in federal courts. 104 U. S. at pages 459-462; see 18 Stat. 470, 472 (1875); cf. 28 U.S.C. § 1359. So instead of realigning the parties and dismissing for lack of jurisdiction over the subject matter, the Court affirmed dismissal of the bill, not on the merits, but for want of equity, "because the appellant shows no standing in a court of equity no right in himself to prosecute the suit." 104 U.S. at page 462; see Venner v. Great Northern Ry. Co., supra, 209 U.S. at page 34, 28 S.Ct. 328; cf. Bourdieu v. Pacific Oil Co., 1936, 299 U.S. 65, 70-71, 57 S.Ct. 51, 81 L.Ed. 42; Joint Anti-Fascist Comm. v. McGrath, 1951, 341 U.S. 123, 150-157, 71 S.Ct. 624, 95 L.Ed. 817 (concurring opinion). At the same October Term, 1881, Mr. Justice Miller, in an opinion, Huntington v. Palmer, 1881, 104 U.S. 482, 26 L.Ed. 833, affirming a decree dismissing for want of equity a stockholder's derivative suit similar to Dodge v. Woolsey, supra, 18 How. 331, said: "There is here no formal written appeal to the board * * * and there is nothing to repel the reasonable presumption that parties were improperly and collusively made in order to invoke the jurisdiction of the Federal court." 104 U.S. at page 484. Later in the same term, Mr. Justice Miller wrote the opinion in Greenwood v. Freight Co., 1881, 105 U.S. 13, 26 L. Ed. 961, in which the Court, without discussing possible realignment of the parties or any jurisdictional issue, held that the stockholder's bill of complaint met the substantive requirements specified in Hawes v. Oakland, supra, 104 U.S. at pages 460-461, but affirmed the trial court's decree sustaining a demurrer and dismissing the bill for want of equity. 105 U.S. at pages 16, 24. See, seriatim City of Detroit v. Dean, 1882, 106 U.S. 537, 1 S.Ct. 560, 27 L.Ed. 300; Central R. Co. of New Jersey v. Mills, 1885, 113 U.S. 249, 5 S.Ct. 456, 28 L.Ed. 949; Mills v. Central R. Co. of New Jersey, C.C.D.N.J.1884, 20 F. 449, 451; East Tenn., V. & G. Railroad v. Grayson, 1886, 119 U.S. 240, 243, 7 S.Ct. 190, 30 L.Ed. 382; cf. Smith v. McKay, 1896, 161 U.S. 355, 357, 16 S.Ct. 490, 40 L.Ed. 731; In re Lehigh Min. & Mfg. Co., 1895, 156 U.S. 322, 327, 15 S.Ct. 375, 39 L.Ed. 438. 797 Of next importance to the problem at bar is City of Quincy v. Steel, 1887, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624, which was a stockholder's derivative suit brought in the Southern District of Illinois by a citizen of Alabama against the city of Quincy and the Quincy Gas Light and Coke Co., an Illinois corporation. A demurrer interposed by the city of Quincy was overruled, "the city refused to plead further, and decree was thereupon rendered against it." 120 U.S. at page 243, 7 S.Ct. at page 522. Upon appeal by the city the decree was reversed and the case remanded with instructions to sustain the demurrer and dismiss the bill on the merits. Speaking again for the Court, Mr. Justice Miller said: "Prior to 1875 cases had come into the courts of the United States, especially into the Circuit Courts, where citizenship had been simulated, and parties improperly made or joined either as plaintiffs or defendants, for the purpose of creating a case cognizable in the circuit courts originally, or removable thereto from the state courts; and, as it very frequently occurred that both plaintiffs and defendants were willing to seek that court in preference to the state courts, it had been found very difficult to prevent these improper cases from being tried in those courts. In the act of March 3, 1875 [18 Stat. 470, 472], an attempt was made to correct this evil, and, by the fifth section of that act, it was declared `that if, in any suit * * it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit, or remand it to the court from whence it was removed, as justice may require.' "In the cases of Hawes v. Oakland, 104 U.S. [450] 456, [26 L.Ed. 827] and Huntington v. Palmer, [104 U.S.] 482 [26 L.Ed. 833]," Mr. Justice Miller continued, "the question of the growth of the form of invoking federal jurisdiction, where it does not otherwise exist, by the attempt of a corporation, which cannot sue in the federal court, to bring its grievance into that court by a suit in the name of one of its stockholders who has the requisite citizenship, was very much considered. In order to give effect to the principles there laid down, this court at that term adopted rule 94 of the rules of practice for courts of equity of the United States, which is as follows: `Every bill brought by one or more stockholders in a corporation, against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law; and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the share-holders, and the causes of his failure to obtain such action.' [104 U.S. ix-x.] "The bill in the present case, although verified by oath, is far from complying with the letter or the spirit of this rule." 120 U.S. at pages 244-246, 7 S.Ct. at pages 522, 523. The 94th Equity Rule, so conceived, was later embodied in Equity Rule 27 and is now incorporated in Rule 23(b) of the Federal Rules of Civil Procedure. See Notes of Advisory Committee following rule 23, 28 U.S.C.A. Since it was not until 1938 that Erie R. R. Co. v. Tompkins, supra, 304 U.S. 64, 58 S.Ct. 817, overruled Swift v. Tyson, supra, 16 Pet. 1, Equity Rule 94 and successor 798 Equity Rule 27 are to be considered as embodying both substantive and adjective law. See Hawes v. Oakland, supra, 104 U.S. at pages 459-461; Quincy v. Steel, supra, 120 U.S. at pages 244-248, 7 S.Ct. 520; Notes of Advisory Committee following rule 23, 28 U.S.C.A. Thus the Act of March 3, 1875, 18 Stat. 470, 472, in effect foreclosed the equity jurisdiction of the Federal courts to every stockholder's derivative suit in which the complaining stockholder failed to establish lack of collusion. Consequently, whenever the allegations of the stockholder's bill of complaint were found insufficient to negative collusion under Equity Rule 94, or successor Rule 27 insufficient to show "standing in a court of equity * * right in himself to prosecute the suit" Hawes v. Oakland, supra, 104 U.S. at page 462 the suit was dismissed for want of equity, and it was never considered necessary to raise the question of proper alignment of parties, since the allegations of the bill were always taken as true upon the demurrer for want of equity. See, e. g. City of Chicago v. Mills, 1907, 204 U.S. 321, 27 S.Ct. 286, 51 L.Ed. 504; Illinois Central R. Co. v. Adams, 1901, 180 U.S. 28, 38, 21 S.Ct. 251, 45 L.Ed. 410; Lehigh Mining & Mfg. Co. v. Kelly, 1895, 160 U.S. 327, 16 S.Ct. 307, 40 L.Ed. 444; cf. Niles-Bement-Pond Co. v. Iron Moulders Union, 1920, 254 U.S. 77, 81-82, 41 S.Ct. 39, 65 L.Ed. 145; Helm v. Zarecor, supra, 222 U.S. at page 35, 32 S.Ct. 10. Venner v. Great Northern Ry., supra, 209 U.S. 24, 28 S.Ct. 328, explains this practice. There, in the language of Mr. Justice Moody: "The [plaintiff], a citizen of New York, brought * * * suit in equity in the supreme court of New York against the defendant railroad, a citizen of Minnesota, and the other defendant, its president, also a citizen of Minnesota. The complaint set forth in substance * * : The plaintiff was a stockholder in the defendant railroad at the time of the beginning of the suit in 1906. * * The defendant James J. Hill was a director and the president of the other defendant, the Great Northern Railway Company, and that railroad and its board of directors were under his absolute control. While holding these offices and exercising this control, in 1900 and 1901, Hill purchased, or caused to be purchased * * * stock of the Chicago, Burlington, and Quincy Railroad Company of the par value of $25,000,000 * * * with the design of selling the stock at a higher price to the company of which he was * * * president. Subsequently, in 1901, while still holding his offices in the Great Northern Railway and exercising the same control over that corporation, he sold to it a large amount of the stock * * * and made an unlawful profit of $10,000,000 on the transaction. * * * The prayer was that Hill should account for his profit and pay it to the Great Northern Railway Company with interest, and for general relief. On the defendants' petition the case was removed to the United States circuit court for the southern district of New York, on the ground of diversity of citizenship * * . The complaint did not conform to the requirements of the 94th equity rule, relating to suits of this nature * . The defendants then demurred separately to the bill * . There-after the plaintiff moved to remand the cause to the state court * . This motion was denied. The demurrer was sustained and the bill dismissed [for want of equity]. * * The case comes here on direct appeal from the circuit court on the question of jurisdiction alone, certified * * ." The opinion by Mr. Justice Moody proceeds: "First, was there a controversy between citizens of different states? * * Let it be assumed for the purposes of this decision that the court may disregard the arrangement of parties made by the pleader, and align them upon the side where their interest in and attitude to the controversy really places them, and then may determine the jurisdictional question in view of 799 this alignment. Removal Cases, 100 U.S. 457 * . If this rule should be applied it would leave the parties here where the pleader has arranged them. It would doubtless be for the financial interests of the defendant railroad that the plaintiff should prevail. But that is not enough. Both defendants unite, as sufficiently appears by the petition and other proceedings, in resisting the plaintiff's claim of illegality and fraud. They are alleged to have engaged in the same illegal and fraudulent conduct, and the injury is alleged to have been accomplished by their joint action. The plaintiff's controversy is with both, and both are rightfully and necessarily made defendants, and neither can, for jurisdictional purposes, be regarded otherwise than as a defendant. * * The case of Doctor v. Harrington is precisely in point on this branch of the case, and is conclusive. * * " Turning to Equity Rule 94 and the cases which gave rise to it, the opinion continues: "Second. Did the circuit court have jurisdiction of the subject matter of the litigation? It has already been shown that the plaintiff in his petition did not bring this case within the terms of the 94th rule in equity * . It may be noted that the plaintiff in Doctor v. Harrington complied with the requirements of the rule. It is argued that a compliance with that rule is essential to the jurisdiction, and that a controversy of the general nature contemplated by the rule is beyond the jurisdiction of the circuit court unless the plaintiff shows the existence of all the facts which the rule makes indispensable to his success in the suit. But this argument overlooks the purpose and nature of the rule. The rule simply expresses the principles which this court, after a review of the authorities, had declared in Hawes v. Oakland, 104 U.S. 450, 26 L.Ed. 827, to be applicable in the decision of a stockholder's suit of the kind now under consideration. Neither the rule nor the decision from which it was derived deals with the question of the jurisdiction of the courts, but only prescribes the manner in which the jurisdiction shall be exercised. If a controversy of this general nature is brought in the circuit court and the necessary diversity of citizenship exists, but, upon the pleadings or the proof, it appears that the plaintiff has not shown a case within the decision in Hawes v. Oakland, or the rule of court declaratory of that decision, the bill should be dismissed for want of equity, and not for want of jurisdiction. * * So it was that in Hawes v. Oakland the demurrer was sustained and the bill dismissed, not for want of jurisdiction, but, in the words of the court [104 U.S. at page 462], `because the appellant shows no standing in a court of equity, no right in himself to prosecute this suit.' The same order was made in Huntington v. Palmer, 104 U.S. 482, 26 L.Ed. 833, and Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520. This very question was considered by the court in Illinois Central Railroad Company v. Adams, 180 U.S. [28], at page 34, 21 S.Ct. [251], 253, 45 L.Ed. [410] 412, where it said: `* * * At common law neither an infant, an insane person, married woman, alien enemy, nor person having no interest in the cause of action, can maintain a suit in his or her own name; but it never would be contended that the court would not have jurisdiction to inquire whether such disability in fact existed, nor that the case could be dismissed on motion for want of jurisdiction * * . The objection that plaintiff has failed to comply with the 94th rule may be raised by demurrer, but the admitted power to decide this question is also an admission that the court has jurisdiction of the case.'" 209 U.S. at pages 28-35, 28 S.Ct. at pages 330, 331. See Simpson, Fifty Years of American Equity, 50 Harv.L. Rev. 171, 190, n. 121 (1936). Next cited by plaintiff at bar is Cutting v. Woodward, 9 Cir., 1918, 255 F. 633. There Illinois stockholders sued a California corporation and a California citizen, the appellant. The Court of Appeals 800 said: "The court below found that during all this period the appellant had virtual control of the majority of the board of directors, and that they were ever ready to do his bidding. These transactions constitute actual and not constructive fraud. "The trust company raises the question of jurisdiction, asserting that the company is not an adversary party to the plaintiffs in the suit, but is the real party in interest as plaintiff, and that consequently there is no diversity of citizenship. But this is not a case in which the trust company, although made a defendant, should be realigned as a plaintiff, as in Hamer v. New York Railways, 244 U.S. 266, 274, 37 S.Ct. 511, 61 L.Ed. 1125. Here the attitude of the trust company is hostile to the plaintiffs. It appeared in a joint answer with the appellant, and by the same counsel, and it denied the allegations of the bill and prayed for the dismissal thereof. The cause is therefore one in which plaintiffs, citizens of Illinois, bring suit against defendants who are citizens of California. Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 49 L.Ed. 606; Venner v. Great Northern Railway, 209 U.S. 24, 28 S.Ct. 328, 52 L.Ed. 666 * * ." 255 F. at page 635. See Cutting v. Bryan, 9 Cir., 1929, 30 F.2d 754, 758; cf. Minnis v. Southern Pac. Co., supra, 98 F.2d at page 915. What then is to govern alignment of parties in a stockholder's derivative suit where, as is the usual case, federal jurisdiction is invoked upon the ground of claimed diversity of citizenship? Recalling that in Doctor v. Harrington, supra, where the stockholders' bill of complaint alleged that the "board of directors * * is under the absolute control and domination of * * * John J. Harrington [who] by reason of having possession of a majority of the capital stock * * * likewise controls the action of the stockholders", 196 U.S. at page 582, 25 S.Ct. at page 356, the Court, faced with answering the certified question of jurisdiction, as to "Whether * * * the complainants' bill * * * showed * * * diversity of citizenship * * " 196 U.S. at page 579, 25 S.Ct. at page 355, observed: "The ultimate interest of the corporation made defendant may be the same as that of the stockholder made plaintiff; but the corporation may be under a control antagonistic to him, and made to act in a way detrimental to his rights. In other words, his interests and the interests of the corporation may be made subservient to some illegal purpose." 196 U.S. at page 587, 25 S.Ct. at page 357. Recalling that in Venner v. Great Northern Ry., supra, where the stockholders' bill of complaint alleged that "defendant James J. Hill was * * the president of the other defendant, the Great Northern Railway * * * and that railroad and its board of directors were under his absolute control", 209 U.S. at page 29, 28 S.Ct. at page 328, the Court, likewise in response to the certified "question of jurisdiction", 209 U.S. at page 30, 28 S.Ct. at page 329, found the jurisdictional facts by taking as true the allegations of the bill and the defendants' petition for removal, and declared: "Both defendants unite, as sufficiently appears by the petition and other proceedings, in resisting the plaintiff's claim of illegality and fraud. They are alleged to have engaged in the same illegal and fraudulent conduct, and the injury is alleged to have been accomplished by their joint action. The plaintiff's controversy is with both, and both are rightfully and necessarily made defendants, and neither can, for jurisdictional purposes, be regarded otherwise than as a defendant. * * * The case of Doctor v. Harrington is precisely in point on this branch of the case, and is conclusive." 209 U.S. at page 32, 28 S. Ct. at page 329. Recalling that in Cutting v. Woodward, supra, the defendant-president of the corporation was found to have "virtual control of the majority of the board of directors, [who] were ever ready to do his bidding", and the Court of Appeals for this Circuit said: "* * * 801 this is not a case in which the * * Company * * * should be realigned as a plaintiff * * . Here the attitude of the * * company is hostile to the plaintiffs." 255 F. at page 635. Cf. Gage v. Riverside Trust Co., C.C.S.D.Cal. 1906, 156 F. 1002, 1007; Opici v. Cucamonga Winery, S.D.Cal.1947, 73 F.Supp. 603. Recalling also that in Koster v. (American) Lumbermens Mutual Co., supra, the Court commented that "jurisdiction is saved in this class of cases by a special dispensation because the corporation is in antagonistic hands. Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 49 L.Ed. 606." 330 U.S. at page 523, 67 S.Ct. at page 831. It would seem ad extremum that there can be no fixed rule for alignment of the parties in every case; that at most the binding precedents establish a test by which the court may properly determine when not to align as a party plaintiff in a stockholder's derivative suit the corporation for whose benefit the action is by definition commenced and maintained. If the corporation has suffered actionable wrong and is "in antagonistic hands" i. e. so dominated that it is incapacitated to act in keeping with its own financial interests then a federal court should not, because of such disability, align the corporation with the plaintiff-stockholder in determining whether diversity jurisdiction exists. Cf. City of Indianapolis v. Chase National Bank, supra, 314 U.S. at pages 69-71, 74, 62 S.Ct. 15; Lee v. Lehigh Valley Coal Co., supra, 267 U.S. 542, 45 S.Ct. 385; Hamer v. New York Rys. Co., supra, 244 U.S. at page 274, 37 S.Ct. 511; Helm v. Zarecor, supra, 222 U.S. 32, 32 S.Ct. 10; Venner v. Great Northern Ry., supra, 209 U.S. at pages 32, 35, 28 S.Ct. 328; City of Chicago v. Mills, supra, 204 U.S. at page 326, 27 S.Ct. 286; City of Dawson v. Columbia Trust Co., supra, 197 U.S. at pages 180-181, 25 S.Ct. 420; Doctor v. Harrington, supra, 196 U.S. at page 587, 25 S.Ct. 355; Lehigh Min. & Mfg. Co. v. Kelly, supra, 160 U.S. 327, 16 S.Ct. 307, 40 L.Ed. 444; Groel v. United Electric Co., C.C.D.N.J. 1904, 132 F. 252, 261, 265; Laughner v. Schell, 3 Cir., 1919, 260 F. 396, 398; Richardson v. Blue Grass Min. Co., D.C. E.D.Ky.1939, 29 F.Supp. 658, 663; affirmed on opinion below, 6 Cir., 1942, 127 F.2d 291, certiorari denied, 1942, 317 U.S. 639, 63 S.Ct. 30, 87 L.Ed. 515. The quotation in Venner v. Great Northern Ry., supra, 209 U.S. at page 35, 32 S.Ct. 10, from Illinois Central Railroad Co. v. Adams, supra, 180 U.S. at page 34, 21 S.Ct. 251, suggests an analogy to the disability of an infant or the lack of capacity of an insane person. In Koster v. (American) Lumbermens Mutual Co., supra, 330 U.S. 518, 67 S.Ct. 828, the Court explained that the plaintiff-stockholder sues in protection of the corporation's interest "somewhat as a `next friend' might do for an individual" because the corporation is "disabled from protecting itself." 330 U.S. at pages 522-523, 67 S.Ct. at page 831. State courts draw upon like analogies. See Reid v. Robinson, supra, 64 Cal.App. at page 55, 220 P. at page 680; Clarke v. Greenberg, supra, 296 N.Y. 146, 71 N.E.2d 443. Quaere whether, followed to logical conclusion, the disability concept does not require that the corporation always be considered either as a real-party-in-interest plaintiff or, if "disabled from protecting itself", a nominal defendant for res judicata purposes, see City of Davenport v. Dows, supra, 78 Wall. 626, not to be aligned on either side in determining jurisdiction. See In re Moore, supra, 209 U.S. 490, 28 S.Ct. 706, 52 L. Ed. 904; Mexican Cent. Ry. Co. v. Eckman, supra, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245; Anglo-California Nat. Bank v. Lazard, supra, 106 F.2d 698; Stout v. Rigney, 8 Cir., 1901, 107 F. 545, 551-552; Merritt v. Greenberg, D.C. E.D.N.Y.1933, 4 F.Supp. 655. Compare: Lavin v. Lavin, 2 Cir., 1950, 182 F.2d 870; Groel v. United Electric Co., supra, 132 F. 252; Tucker v. National Linen 802 Service Corp., D.C.N.D.Ga.1950, 92 F. Supp. 502, 505, affirmed, 5 Cir., 1951, 188 F.2d 265, certiorari denied, 1951, 342 U.S. 828, 72 S.Ct. 53, 96 L.Ed. 627; Tucker v. New Orleans Laundries, D.C. E.D.La.1949, 90 F.Supp. 290, 292-296, affirmed on opinion below, 5 Cir., 1951, 188 F.2d 263, certiorari denied, 1951, 342 U.S. 828, 72 S.Ct. 52, 96 L.Ed. 627; Cohen v. Industrial Finance Corp., D.C. S.D.N.Y.1941, 44 F.Supp. 489, 490; J. R. A. Corp. v. Boylan, D.C., 30 F.Supp. 393, 394, affirmed on opinion below, 2 Cir., 1940, 109 F.2d 1018; 38 Mich.L. Rev. 724 (1940); see Venner v. Great Northern Ry., supra, 209 U.S. at page 32, 28 S.Ct. 328. In all events, whether the corporation is under disability and so unable to act otherwise than by domination of alleged wrongdoers is a question of fact in each case. And whenever diversity of citizenship is decided upon the complaint alone, or upon the complaint and petition for removal, the facts alleged in the pleadings as to "absolute control" must of course be taken as true, as was done in Doctor v. Harrington, supra, 196 U.S. at page 582, 587-588, 25 S.Ct. 355, and Venner v. Great Northern Ry., supra, 209 U.S. at pages 29, 32, 28 S.Ct. 328. See Barry v. Edmunds, 1886, 116 U.S. 550, 559, 6 S.Ct. 501, 29 L.Ed. 729; Hartog v. Memory, 1886, 116 U.S. 588, 591, 6 S.Ct. 521, 29 L.Ed. 725. For a corporation to be "in antagonistic hands", Koster v. (American) Lumbermens Mutual Co., supra, 330 U.S. at page 523, 67 S.Ct. at page 831, or to have a "hostile attitude", Cutting v. Woodward, supra, 255 F. at page 635 such as would permit alignment on the side against its presumptive financial interests, surely requires more than a mere argument or difference of opinion between the corporation and the suing stockholder as to the desirability of bringing the suit. Patently, if difference of opinion were all the "controversy" required to be shown between the stockholder and his corporation in order to preclude alignment of the latter with the plaintiff-stockholder, then there can be no occasion for all the pages of discussion of corporate domination or control, since every stockholder's derivative suit is by definition predicated upon the assumption that the corporation has refused to sue. By § 2 of Article III, the Constitution extends the federal judicial power "to Controversies * * between Citizens of different States". This provision of the Constitution "simply gives to the * * * courts the capacity to take jurisdiction * * * it requires an act of Congress to confer it." Kline v. Burke Construction Co., 1922, 260 U.S. 226, 234, 43 S.Ct. 79, 83, 67 L.Ed. 226; Mayor v. Cooper, 1867, 6 Wall. 247, 73 U.S. 247, 252, 18 L.Ed. 851. And by act of Congress jurisdiction has been conferred upon federal district courts "where the matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs, and is between * * * Citizens of different States * * ." 28 U.S.C. § 1332. The pleading requirements of old Equity Rule 94, 1882, 104 U.S. ix-x; Illinois Cent. R. Co. v. Adams, supra, 180 U.S. at pages 34-35, 21 S.Ct. 251, and later Equity Rule 27, 1913, 226 U.S. 629, 656; Ashwander v. Tennessee Valley Authority, supra, 297 U.S. at page 318, 56 S.Ct. 466, and present Rule 23 (b), Fed.Rules Civ.Proc. rule 23(b), 28 U.S.C.A. have not extended or otherwise altered jurisdiction. As the Court explained in Venner v. Great Northern Ry., supra: "The jurisdiction * * is prescribed by laws enacted by Congress in pursuance of the Constitution, and this court by its rules has no power to increase or diminish the jurisdiction thus created, though it may regulate its exercise in any manner not inconsistent with the laws of the United States." 209 U.S. at page 35, 28 S.Ct. at page 331. Moreover Rule 82 of the Federal Rules of Civil Procedure expressly provides that: "These rules shall not be construed to extend or limit the jurisdiction of the United States district courts * * ." 803 Fed.Rules Civ.Proc. rule 82, 28 U.S.C.A.; see Cohen v. Beneficial Indus. Loan Corp., supra, 337 U.S. at page 556, 69 S.Ct. 1221; Miss. Pub. Corp. v. Murphree, supra, 326 U.S. at pages 444-446, 66 S.Ct. 242. State-law concepts as to the nature of derivative suits cannot affect federal jurisdiction. Cf. Ballantine, Corporations §§ 145-150 (Rev.Ed.1946); Klopstock v. Superior Court, supra, 17 Cal.2d 13, 108 P.2d 906; Cantor v. Sachs, 1932, 18 Del.Ch. 359, 162 A. 73; see also Otis & Co. v. Pennsylvania R. Co., D.C.E.D.Penn.1944, 57 F.Supp. 680, 683, affirmed on opinion below, 3 Cir., 1946, 155 F. 522. Nor can federal jurisdiction be enlarged upon the theory that a stockholder's derivative suit is "ancillary" in character. See e. g. Mitchell v. Maurer, supra, 293 U.S. 237, 55 S.Ct. 162; Fulton Nat. Bank v. Hozier, 1925, 267 U.S. 276, 280, 45 S.Ct. 261, 69 L.Ed. 609; Hamer v. N. Y. Rys. Co., supra, 244 U.S. at page 275, 37 S.Ct. 511; Phelps v. Oaks, 1886, 117 U.S. 236, 241, 6 S.Ct. 714, 29 L.Ed. 888; Stewart v. Dunham, 1885, 115 U.S. 61, 64, 5 S.Ct. 1163, 29 L.Ed. 329; Feidler v. Bartleson, 9 Cir., 1908, 161 F. 30, 35; Oils, Inc. v. Blankenship, 10 Cir., 1944, 145 F.2d 354, certiorari denied, 1945, 323 U.S. 803, 65 S.Ct. 562, 89 L.Ed. 641; Johnson v. G. J. Sherrard Co., D.C., 2 F.R.D. 164 (D. Mass.1941); 1 Barron & Holtzoff, supra, § 23; Note, 64 Harv.L.Rev. 968-976 (1951). It has been settled from the beginning that diversity of citizenship exists only when all parties on one side of the controversy "are citizens of different states from all parties on the other side." City of Indianapolis v. Chase National Bank, supra, 314 U.S. at page 69, 62 S.Ct. at page 17; Hooe v. Jamieson, 1897, 166 U.S. 395, 17 S.Ct. 596, 41 L.Ed. 1049; Coal Co. v. Blatchford, supra, 11 Wall. at pages 174-175; Strawbridge v. Curtiss, supra, 3 Cranch 267, 2 L.Ed. 435. And it is equally well settled that the "controversy" relied upon to invoke diversity jurisdiction must be "actual", Helm v. Zarecor, supra, 222 U.S. at page 36, 32 S.Ct. 10, and "substantial", Niles-Bement-Pond Co. v. Iron Moulders Union, supra, 254 U.S. at page 81, 41 S.Ct. 39, so as to constitute a justiceable "controversy" within the meaning of § 2 of Article III of the Constitution. See Aetna Life Ins. Co. v. Haworth, 1937, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617; Ashwander v. Tennessee Valley Authority, 297 U.S. at pages 318, 324-325, 56 S.Ct. 466; South Spring Hill Gold Min. Co. v. Amador etc. Gold Min. Co., 1892, 145 U.S. 300, 12 S.Ct. 921, 36 L.Ed. 712. A mere argument then, or even a heated debate, between a shareholder and his corporation over the advisability of bringing suit is not a "controversy" as that term is employed in § 2 of Article III of the Constitution. But even if it were, it is not "the matter in controversy" with respect to which the court is duty-bound to align the parties to the action for the purpose of ascertaining whether requisite diversity of citizenship exists. 28 U.S.C. § 1332. The "matter in controversy" referred to in 28 U.S.C. § 1332 must be ascertained from the "principal purpose of the suit". East Tenn., V. & G. Railroad v. Grayson, supra, 119 U.S. at page 244, 7 S.Ct. 190, 192. Hence it is the duty of the court, in testing the claim of diversity jurisdiction, to arrange the parties on opposite sides of "the primary and controlling matter in dispute". Merchants' Cotton-Press & Storage Co. v. Insurance Co. of N. A., 1894, 151 U.S. 368, 385, 14 S.Ct. 367, 373, 38 L.Ed. 195; see City of Indianapolis v. Chase Nat. Bank, supra, 314 U.S. at pages 69-70, 62 S.Ct. 15. The "primary and controlling matter in dispute" in the case at bar is the contract between Warner Bros. and United. That contract is "the matter in controversy". 804 Only in cases where it appeared that the plaintiff-stockholder's corporation was "in antagonistic hands", Koster v. (American) Lumbermens Mutual Co., supra, 330 U.S. at page 523, 67 S.Ct. at page 831, has the Court found that "difference or collision of interest" between stockholder and corporation as to "the matter in controversy", City of Dawson v. Columbia Trust Co., supra, 197 U.S. at page 181, 25 S.Ct. at page 421, which precludes alignment of the corporation with the stockholder in determining diversity jurisdiction. And only in cases where it appeared that the plaintiff-stockholder's corporation was "dominated and controlled" by the alleged wrongdoers, Koster v. (American) Lumbermens Mutual Co., D.C.E.D. N.Y.1945, 64 F.Supp. 595, 596, and so "made to act * * subservient to some illegal purpose", Doctor v. Harrington, supra, 196 U.S. at page 587, 25 S.Ct. at page 357, or to engage in "the same illegal and fraudulent conduct", Venner v. Great Northern Ry., supra, 209 U.S. at page 32, 28 S.Ct. at page 329, has the Court found the corporation to be "in antagonistic hands." Thus in each case the determinative fact is not whether the directors controlling the corporation are antagonistic to the suing stockholder, but whether those in control are shown to be antagonistic to the financial interests of the corporation. In each case, moreover, the Court has considered the problem of whether or not the corporation was in "antagonistic hands" to be a question of fact, just as the requisite jurisdictional amount and the citizenship of the parties are questions of fact. See KVOS, Inc., v. Associated Press, supra, 299 U.S. 269, 57 S.Ct. 197; Gilbert v. David, supra, 235 U.S. 561, 35 S.Ct. 164; Pioneer Southwestern Stages v. Wicker, 9 Cir., 1931, 50 F.2d 581; cf. Woodworkers Tool Works v. Byrne, 9 Cir., 1953, 202 F.2d 530. And in each case the record was such as to require the Court, in determining the proper alignment of the parties for jurisdictional purposes, to accept as true the "antagonistic hands" allegations of plaintiff's complaint. In the case at bar, both the pleadings and the evidence are before the court to aid determination as to whether the case presents "a controversy wholly between citizens of different states, within the jurisdiction of the District Court." Niles-Bement-Pond Co. v. Iron Moulders Union, supra, 254 U.S. at page 82, 41 S.Ct. at page 41. For here a trial was ordered as to the jurisdictional and the statute-of-limitations issues. See Gibbs v. Buck, supra, 307 U.S. at pages 71-72, 59 S.Ct. 725; Gulbenkian v. Gulbenkian, supra, 33 F.Supp. 19. Trial of these issues required more than fifteen days, a large volume of documentary evidence was received and the reporter's transcript runs some 2000 pages. As the size of this record indicates, the evidence adduced upon the trial of the jurisdictional issues was voluminous and complex, because those issues proved to be in many respects coextensive with issues as to the merits. Cf. Land v. Dollar, supra, 330 U.S. at pages 735, 739, 67 S.Ct. 1009; Calcote v. Texas Pac. Coal & Oil Co., 5 Cir., 1946, 157 F.2d 216, 218, 167 A.L.R. 413, certiorari denied, 1946, 329 U.S. 782, 67 S.Ct. 205, 91 L.Ed. 671; Williams v. Minnesota Min. & Mfg. Co., D.C.S.D.Cal.1952, 14 F.R.D. 1. No useful purpose would be served by relating the evidence in detail. It is sufficient here to say that the proofs adduced upon the trial compel the following findings of fact: (1) That the contract in controversy with United was and is considered by the eleven-man Board of Directors of Warner Bros. to be a sound business arrangement for the best present and future financial interests of the corporation; (2) that in approving and authorizing the contract, the members of the Board of Directors acted in good faith and exercised their independent business judgment; and (3) that at the time of the execution of the contract Albert Warner together with defendants Harry M. and 805 Jack L. Warner owned less than 20% of the outstanding shares of the corporation; and neither the corporation nor the directors or officers were shown to be at any time under the domination or control of the three brothers Warner. Accordingly, since no "collision of interest" appears between plaintiff and defendant Warner Bros., the corporation will be aligned as a party plaintiff, and as such an alignment shows that the requisite diversity of citizenship does not exist, 28 U.S.C. § 1332, it follows as a matter of law that this court is without jurisdiction over the subject matter of the first cause of action asserted in the complaint. This conclusion necessarily rests upon my understanding of the law: that whenever federal jurisdiction is invoked upon claimed diversity of citizenship in a stockholder's derivative suit, the court is free to inquire into the jurisdictional facts as in other cases and align the parties on either side of the "matter in controversy", and in so doing to determine as a fact whether or not the plaintiff stockholder's corporation is "in antagonistic hands" or so dominated as to be incapacitated to act in its own financial interests. It is recognized of course that my understanding of the law is in varying degrees at odds with the opinions of others. For example, see the following authorities not heretofore cited. Hutchinson Box & Paper Co. v. Van Horn, 8 Cir., 1924, 299 F. 424, 428-429; Hyams v. Calumet & Hecla Mining Co., 6 Cir., 1915, 221 F. 529, 538; Montro Corp. v. Prindle, D.C.S.D.N.Y.1952, 105 F.Supp. 460; Levitan v. Stout, D.C.W.D.Ky.1951, 97 F.Supp. 105, 113; Smallen v. Louisville Fire & Ins. Co., D.C.W.D.Ky.1948, 80 F.Supp. 279; Cohen v. Industrial Finance Corp., D.C.S.D.N.Y.1941, 44 F. Supp. 489, 490; Nagle v. Wyoga Gas & Oil Corp., D.C.M.D.Pa.1935, 10 F.Supp. 905, 906; Hodgman v. Atlantic Refining Co., D.C.Del.1921, 274 F. 104, 105; Whitaker v. Whitaker Iron Co., D.C.N.D. W.V.1916, 238 F. 980, 990-991, affirmed, 4 Cir., 1918, 249 F. 531, certiorari denied, 1918, 248 U.S. 564, 39 S.Ct. 8, 63 L.Ed. 423; Crawford v. Seattle, R. & S. Ry. Co., D.C.W.D.Wash.1912, 198 F. 920; Howard v. National Telephone Co., C.C.N.D.W.V.1910, 182 F. 215, 220. In arriving at the conclusions here reached, these opinions and others previously cited have prompted great pause, not only because of the respect I hold for such differing views as to proper interpretation of precedent, but also because of reverence for stare decisis, the doctrine of judicial precedent, as the distinctively characteristic institution [Pound, The Spirit of the Common Law, 64-65, 182-183 (1921)], which gives necessary historic continuity to our common-law system of justice. Holmes, Collected Legal Papers, 139 (1920); cf. Marshall v. Baltimore & O. R. R. Co., 1853, 16 How. 314, 57 U.S. 314, 343, 14 L.Ed. 953. Study has brought the conviction that the views here expressed are not at variance with the authority of any precedent binding this court. Along the pathway to decision doubts have naturally arisen from the cases cited, and from the fact that such scholarly judges as Chief Judge Learned Hand, with his colleagues Judges Chase and Clark of the Second Circuit, and Judge Wyzanski of the District of Massachusetts, appear to have regarded Doctor v. Harrington as fixing a rule rather than stating a test for alignment of the stockholder's corporation in derivative suits. In Lavin v. Lavin, supra, 182 F.2d 870, the Court said: "It may indeed be doubted whether as an original question the Supreme Court would not today align the corporation as a party plaintiff in all cases; nevertheless it has shown no disposition to change the rule in Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 49 L.Ed. 606, but has recognized its continued authority." 182 F.2d at page 871. In Ashley v. Keith Oil Corp., D.C. Mass.1947, 73 F.Supp. 37, 52, Judge Wyzanski wrote: "If the question of federal jurisdiction were an open one, 806 I should rule that there had not been compliance with the essentials set forth in United States Constitution, Article III, Section 2 and 36 Stat. 1091, 28 U.S.C.A. § 41(1). Disregarding the form of the pleadings in this case, I should conclude that the parties should be realigned according to their real interest. That is, I should treat this as a suit by a Massachusetts corporation against a Massachusetts officer. 2 Moore's Federal Practice, 2272, 2273. Resort to such realignment is admittedly necessary and proper to determine whether in the case at bar there is involved the $3,000 which is a prerequisite to the exercise of diversity jurisdiction. * * * Resort to such realignment seems the only logically consistent course to determine whether in the case at bar there is involved the necessary diversity of citizenship. In addition to such logical considerations, I should have thought weight ought to be given to the fact that `the dominant note in the successive enactments of Congress relating to diversity jurisdiction is one of jealous restriction, of avoiding offense to state sensitiveness * * .' City of Indianapolis v. Chase National Bank, 314 U.S. 63, 76, 62 S.Ct. 15, 20, 86 L.Ed. 47." "But", Judge Wyzanski continues, "I am not a free agent. In 1905 the Supreme Court in Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 49 L.Ed. 606, held that the realignment which I would have thought proper is inapplicable where the corporation is in antagonistic hands. And only a few months ago, the Supreme Court * * repeated the same doctrine to sustain federal jurisdiction in Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, [91 L.Ed. 1067]. That was a derivative suit * * * [and] the justices of the Supreme Court in their majority and minority opinions seem to have concluded that diversity of citizenship existed. And, bowing to their judgment, I conclude that diversity of citizenship exists in the case at bar." 73 F.Supp. at pages 52-53. The very considerations of reason and policy which Judge Wyzanski mentions have prompted a search behind the equivocal language of Doctor v. Harrington to find there a flexible test for alignment of the plaintiff-stockholder's corporation, rather than a rigid rule of doubtful constitutionality. The same considerations have also prompted a look behind the language of Koster v. (American) Lumbermens Mutual Cas. Co., supra, 330 U.S. at page 523, 67 S.Ct. 828, to find a basis on which to conclude that it was never necessary there to reach the question of proper alignment of the corporation for the purpose of ascertaining whether requisite diversity of citizenship existed. For in Koster the doctrine of forum non conveniens was invoked and the first inquiry was "where trial will best serve the convenience of the parties and the ends of justice." 330 U.S. at page 527, 67 S.Ct. at page 833. Trial denotes a hearing and adjudication of issues of law as well as fact. It is axiomatic that a federal court always has "jurisdiction to determine its own jurisdiction", United States v. United Mine Workers, 1947, 330 U.S. 258, 292-293, note 57, 67 S.Ct. 677, 695, 91 L.Ed. 884; Steele v. Culver, supra, 211 U.S. at page 30, 29 S.Ct. 9 the power to determine in every case whether the prerequisites to jurisdiction in fact exist. See Land v. Dollar, supra, 330 U.S. at page 739, 67 S.Ct. 1009; Texas & Pac. Ry. v. Gulf etc. Ry., 1926, 270 U.S. 266, 274, 46 S.Ct. 263, 70 L.Ed. 578. By the same token where, as in Koster, the doctrine of forum non conveniens is invoked, the court in which the action pends has the power to determine, and no doubt should first determine, the forum conveniens in which the issues of law and fact, including issues of law and fact as to federal jurisdiction, ought to be tried. In Koster, the District Court applied the doctrine of forum non conveniens and dismissed the action. 64 F.Supp. 595. The Court of Appeals affirmed. 2 Cir. 153 F.2d 888. The Supreme Court 807 granted certiorari 329 U.S. 700, 67 S.Ct. 61, 91 L.Ed. 611, and at the outset Mr. Justice Jackson explained: "This case involves the special problems of forum non conveniens which inhere in derivative actions, and which have been little considered by this Court." 330 U.S. at page 521, 67 S.Ct. at page 830. The Court then proceeded to affirm the holding below "that the case should not be tried in New York as there was ample remedy available in the state and federal courts of Illinois" [idem], thus leaving open for trial in the federal courts of Illinois, if suit were later filed there, all issues of fact and law as to federal jurisdiction presented by Koster's case. Both logic and sound judicial administration combined to dictate that the proceedings in Koster take such a course. The case at bar is an apt example of the possible breadth of issues of fact and law necessary to be tried in determining whether diversity jurisdiction exists. Cf. Hammerstein v. Superior Court, 1951, 341 U.S. 491, 71 S.Ct. 820, 95 L. Ed. 1135; Layne & Bowler Corp. v. Western Well Works, 1923, 261 U.S. 387, 392-393, 43 S.Ct. 422, 67 L.Ed. 712. A review of the cases in their historical settings see City of Quincy v. Steel, supra, 120 U.S. at pages 244-246, 7 S. Ct. 520, gives the impression that the equivocal discussion of the problem of diversity jurisdiction in Doctor v. Harrington, supra, 196 U.S. at page 587, 25 S.Ct. 355, resulted from the Court's preoccupation with the problem of collusive suits; that the obvious collusion in Hawes v. Oakland, supra, 104 U.S. at page 461, and the apparent lack of collusion in Greenwood v. Freight Co., supra, 105 U.S. at page 16, prompted Mr. Justice Miller to write opinions which in effect rejected diversity jurisdiction in Hawes and sustained it in Greenwood, without mentioning his well reasoned opinion as Circuit Justice in Arapahoe County v. Kansas Pac. Ry. Co., supra, 1 Fed.Cas. No. 502, p. 1080. But cf. Bourdieu v. Pacific Oil Co., supra, 299 U.S. at pages 70-71, 57 S.Ct. 51, 81 L.Ed. 42. It is hardly necessary to add that the decision in the case at bar could correctly have consisted of a reference to what Mr. Justice Miller so well said in Arapahoe, for this case is in fact on all fours with Arapahoe insofar as determination of alignment of parties for purposes of diversity jurisdiction is concerned. In my opinion the Constitution and every relevant consideration of reason and policy join forces to argue that differences of fact alone and not of law explain how it was possible for diversity jurisdiction to be sustained in both Arapahoe and Doctor v. Harrington. This conclusion is reinforced by what was so clearly expounded in Kline v. Burke Construction Co., supra: "The right of a litigant to maintain an action in a federal court on the ground that there is a controversy between citizens of different states is not one derived from the Constitution of the United States, unless in a very indirect sense. Certainly it is not a right granted by the Constitution. The applicable provisions, so far as necessary to be quoted here, are contained in article III. Section 1 of that article provides: "`The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.' By section 2 of the same Article it is provided that the judicial power shall extend to certain designated cases and controversies and, among them, `to controversies * * between citizens of different states. * * ' The effect of these provisions is not to vest jurisdiction in the inferior courts over the designated cases and controversies but to delimit those in respect of which Congress may confer jurisdiction upon such courts as it creates. Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government 808 derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution." 260 U.S. at pages 233-234, 43 S.Ct. at page 82. See Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts, 66 Harv.L.Rev.1362(1953). To this should be added the policy stated by Mr. Justice Stone in Healy v. Ratta, 1934, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248: "The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. * * * Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." 292 U.S. at page 270, 54 S.Ct. at page 703. Compare 28 U.S.C. § 1441(c); Lewin, The Federal Court's Hospitable Back Door, 66 Harv.L.Rev. at 423 (1953). Thus all seeming technicalities surrounding federal jurisdiction based upon claimed diversity of citizenship are actually safeguards against unintended violation of the jurisdiction constitutionally reserved to the states. As the Court expressed it in City of Indianapolis v. Chase National Bank, supra: "These requirements, however technical seeming, must be viewed in the perspective of the constitutional limitations upon the judicial power of the federal courts, and of the Judiciary Acts in defining the authority of the federal courts when they sit, in effect, as state courts." 314 U.S. at page 76, 62 S.Ct. at page 20. It is more than costly error therefore it is an unconstitutional invasion of the jurisdiction of the state courts for a federal court to sustain federal jurisdiction of a civil action between private persons where "the matter in controversy" exceeds the sum or value of $3,000, exclusive of interest and costs, but does not arise "under the Constitution, laws or treaties of the United States", 28 U.S.C. § 1331, and diversity of citizenship as to "the matter in controversy" does not exist. U.S.Const. Art. III; 28 U.S.C. § 1332. See American Fire & Cas. Co. v. Finn, 1951, 341 U.S. 6, 17-18, 71 S.Ct. 534, 95 L.Ed. 702; Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 671-674, 70 S.Ct. 876, 94 L.Ed. 1194; Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214; Shields v. Barrow, supra, 17 How. at page 145. So whenever the party invoking federal jurisdiction cannot sustain his burden of proof to show existence of "the grounds upon which the court's jurisdiction depends", Fed.Rules Civ.Proc. rule 8(a, b), 28 U.S.C.A.; KVOS, Inc., v. Associated Press, supra, 299 U.S. at page 278, 57 S.Ct. 197; McNutt v. Gen. Motors etc. Corp., supra, 298 U.S. at pages 187-190, 56 S.Ct. 780; Seslar v. Union Local 901, supra, 186 F.2d at page 407; 1 Barron & Holtzoff, supra, § 352 (1952 Supp.), the proper order always is to dismiss the action for lack of jurisdiction, regardless of whether the factual issues involved in this determination be simple or complex, since when "beyond the Constitution * * * every act must be a violation of duty, an usurpation." Marshall v. Baltimore & O. R. R. Co., supra, 16 How. at page 343. Dismissal in the federal courts for lack of jurisdiction can in no way prejudice the bringing of the action in a court of competent jurisdiction, because a judgment of dismissal for want of jurisdiction is not res judicata as a final decision upon the merits and consequently does not bar a subsequent action. Southern Pacific Co. v. Bogert, 1919, 250 U.S. 483, 490, 39 S.Ct. 533, 63 L.Ed. 1099; Smith v. McNeal, 1883, 109 U.S. 426, 429-430, 3 S.Ct. 319, 27 L.Ed. 986; Hughes v. United States, 1866, 4 Wall. 232, 71 U.S. 232, 237, 18 L.Ed. 303; Walden v. Bodley, 1840, 14 Pet. 156, 39 U.S. 809 156, 10 L.Ed. 398; Bunker-Hill & Sullivan Min. & C. Co. v. Shoshone Min. Co., 9 Cir., 1901, 109 F. 504, 507. So also the findings of this court which serve as predicate for the conclusion that the plaintiff-stockholder's corporation is not in "antagonistic hands" cannot operate to bar contrary findings by a court having plenary jurisdiction of the case, since the collateral estoppel doctrine is not applicable to such interlocutory or "incidental" determinations of fact, Restatement, Judgments § 71 (1942); Scott, Collateral Estoppel By Judgment, 56 Harv.L.Rev. 1, 18-22 (1942); cf. United States v. International Bldg. Co., 1953, 345 U.S. 502, 504-505, 73 S.Ct. 807; Zank v. Landon, 9 Cir., 1953, 205 F.2d 615; Sachs v. Ohio Nat. Life Ins. Co., 7 Cir., 1945, 148 F.2d 128, 158 A.L.R. 688; certiorari denied, 1945, 326 U.S. 753, 66 S.Ct. 92, 90 L.Ed. 452; Musher Foundation v. Alba Trading Co., 2 Cir., 1942, 127 F.2d 9, 11, certiorari denied, 1942, 317 U.S. 641, 63 S. Ct. 33, 87 L.Ed. 517; contra: Simmons v. Superior Court, 1950, 96 Cal.App.2d 119, 125, 214 P.2d 844, 849, 19 A.L.R.2d 288, made in the exercise of the power to determine jurisdiction. Land v. Dollar, supra, 330 U.S. at page 735, 67 S. Ct. 1009. What has been said relates to the first cause of action. It remains to consider whether this court has jurisdiction over the second cause of action which the plaintiff-stockholder asserts against defendants Harry M. and Jack L. Warner only, omitting defendants United and Sperling. There exists diversity of citizenship as to the second cause of action unless United is an indispensable or necessary party to it, for without United the "matter in controversy" would be between the New York plaintiff-stockholder and his Delaware corporation, Warner Bros., both aligned on one side, with the two brothers Warner, citizens of California, aligned on the other. In essence, this second count or claim is that by causing United States Pictures, Inc., a Delaware corporation, to be formed, and by causing defendant Warner Bros. to enter into the challenged contract with United, the two defendant-directors allowed the assets of Warner Bros. to be dissipated for the benefit of United and Sperling; and that this failure of the individual defendants to live up to their fiduciary duties as directors of Warner Bros. caused large pecuniary loss to the corporation. Thus plaintiff asks this court, in the exercise of its equity jurisdiction, to render a money judgment for damages in favor of defendant Warner Bros. based upon the allegedly improvident and fraudulent contract with United, while leaving the contract in force to govern future relationships between United and Warner Bros., merely because plaintiff has chosen for reasons of his own to name United as a party defendant to the first cause of action but not to the second. Cf. Twist v. Prairie Oil Co., 1927, 274 U.S. 684, 689-692, 47 S.Ct. 755, 71 L.Ed. 1297. It is true of course that whenever diversity jurisdiction exists, plaintiff's "motive in preferring a Federal tribunal is immaterial." City of Chicago v. Mills, supra, 204 U.S. at page 330, 27 S.Ct. at page 289; Blair v. Chicago, 1906, 201 U.S. 400, 448-449, 26 S.Ct. 427, 50 L.Ed. 801. But even when diversity jurisdiction exists, the case may not be such as to warrant exercise of the equity jurisdiction of the court. See Matthews v. Rodgers, 1932, 284 U.S. 521, 524, 52 S.Ct. 217, 76 L.Ed. 447; Twist v. Prairie Oil Co., supra, 274 U.S. at page 690, 47 S.Ct. 755; Venner v. Great Northern Ry., supra, 209 U.S. at page 34, 28 S.Ct. 328; Reynes v. Dumont, 1889, 130 U.S. 354, 395, 9 S.Ct. 486, 32 L.Ed. 934. As the Court observed in Twist v. Prairie Oil Co., supra, "the objection that the case is not within the equity jurisdiction * * does not go to the power of the court as a federal court." 274 U.S. at page 691, 47 S.Ct. at page 757. So in the case at bar, although diversity jurisdiction may exist as to the 810 second cause of action, the question still remains whether the second cause of action is within the equity jurisdiction of this court; and the answer to that question turns upon whether or not United is an indispensable party to proper adjudication of the second cause of action. Rule 19(a) of the Federal Rules of Civil Procedure does not attempt affirmatively to define who are indispensable parties, but does restate existing law. Fed.Rules Civ.Proc. rule 19, 28 U.S.C.A.; Wesson v. Crain, 8 Cir., 1948, 165 F.2d 6, 8-9; Chidester v. City of Newark, 3 Cir., 1947, 162 F.2d 598, 600; Young v. Garrett, 8 Cir., 1945, 149 F.2d 223, 228; Cather v. Ocean Acc. etc. Co., D.C.Neb. 1950, 94 F.Supp. 511, 514-515. Rule 19(b) provides that: "When persons * * who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue * * . The court in its discretion may proceed in the action without making such persons parties, if * * their joinder would deprive the court of jurisdiction of the parties before it; but the judgment rendered therein does not affect the rights or liabilities of absent persons." Fed.Rules Civ.Proc. rule 19(b), 28 U.S. C.A.; cf. Louisville C. & C. R. Co. v. Letson, supra, 43 U.S. at pages 555-556. Hence Rule 19(b) permits the court, in the exercise of discretion, either to proceed or not proceed to judgment without absent parties "who ought to be parties if complete relief is to be accorded between those already parties". See Bourdieu v. Pacific Oil Co., supra, 299 U.S. at pages 70-71, 57 S.Ct. 51; State of California v. Southern Pac. Co., 1895, 157 U.S. 229, 255, 15 S.Ct. 591, 39 L.Ed. 683. While not an indispensable party in the sense of "having a joint interest" and for that reason subject to "necessary joinder" by the terms of Rule 19(a), United is clearly a person who "ought to be" a party within the meaning of Rule 19(b). In the language of Niles-Bement-Pond Co. v. Iron Moulders Union, supra: "There is no prescribed formula for determining in every case whether a person or corporation is an indispensable party or not; but a rule early announced and often applied by this court is sharply applicable to the case at bar. In Shields v. Barrow, 17 How. [129] 130, 139, 15 L.Ed. 158, this language * * * was used to describe parties so indispensable that a court of equity will not proceed to final decision without them, viz.: "`Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.'" 254 U.S. at page 80, 41 S.Ct. at page 41. See: State of Washington v. United States, 9 Cir., 1936, 87 F.2d 421, 427-428; I.C.C. v. Blue Diamond etc. Co., 8 Cir., 1951, 192 F.2d 43, 47. No extended discussion is necessary to point out why a decree by this court as to the second cause of action without the presence of United before the court would leave the controversy "in such a condition that its final termination may be wholly inconsistent with equity and good conscience." Shields v. Barrows, supra, 17 How. at page 139. It is therefore my opinion that, as to the second cause of action, United is one of the "parties so indispensable that a court of equity will not proceed to final decision without them," Niles-Bement-Pond Co. v. Iron Moulders Union, supra, 254 U.S. at page 80, 41 S.Ct. at page 41; cf. Lee v. Lehigh Valley Coal Co., supra, 267 U.S. at page 543, 45 S.Ct. 385; Walden v. Skinner, supra, 101 U.S. at page 589; Wormley v. Wormley, supra, 8 Wheat. at page 45; Arapahoe County v. Kansas Pac. Ry. Co., supra, 1 Fed.Cas. pp. 1082-1083, since "a final decree could not be made without * * * leaving the controversy in a condition wholly inconsistent with that equity which seeks to put an end to litigation by doing complete and final justice". Niles-Bement-Pond Co. v. Iron Moulders 811 Union, supra, 254 U.S. at page 81, 41 S. Ct. at page 41. The doctrine of pendent jurisdiction, even if applicable here, could not operate to alter the conclusion just stated. See, seriatim Osborn v. Bank of United States, supra, 9 Wheat. at pages 822-823; Siler v. Louisville & N. R. R. Co., 1909, 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753; Hurn v. Oursler, 1933, 289 U.S. 238, 245-246, 53 S.Ct. 586, 77 L.Ed. 1148; Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 1951, 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912. Accordingly the second cause of action will be dismissed for want of equity, Mallow v. Hinde, 1827, 12 Wheat. 193, 25 U.S. 193, 199, 6 L.Ed. 599, and the judgment of dismissal shall expressly declare that it does not operate "as an adjudication upon the merits" and is without prejudice or res judicata effect. See Fed.Rules Civ.Proc. rule 41(b), 28 U.S.C.A.; Barney v. Baltimore, supra, 6 Wall. at pages 284-285, 287, 289. Discretion to dismiss is exercised in the face of high probability that plaintiff will confront a plea of the bar of a three-year statute of limitations in the event this suit should now be filed in a California court of competent jurisdiction. See Cal.Code Civ.Proc. §§ 335, 338(4), 359, 361; Bovay v. H. M. Byllesby & Co., supra, 27 Del.Ch. 381, 38 A.2d 808. If the action were not already barred when commenced here, the courts of California might hold that the applicable statute of limitations was tolled during the pendency in this court, since it is the policy of the California law, as expressed in § 396 of the Code of Civil Procedure, that: "If an action or proceeding is commenced in a court which lacks jurisdiction of the subject matter thereof, as determined by the complaint or petition, if there is a court of this State which has such jurisdiction, the action or proceeding shall * * be transferred to a court having jurisdiction of the subject matter * * ." See Morgan v. Somervell, 1940, 40 Cal.App.2d 398, 104 P.2d 866. The literal terms of this statute preclude its application to an action brought in a federal court, as there is no machinery for transfer such as the statute requires. Cal.Code Civ.Proc. § 396. Resort may be had, however, to reasoning by analogy from the statute. This common-law technique involves the age-old principle of the "equity of the statute," requiring that a legislative enactment be treated as a declaration of policy which serves as precedent in analogous situations not expressly covered by the statute itself. The equity-of-the-statute principle presupposes that the legislature-made precedent is entitled to recognition comparable to that accorded judge-made precedent, and application of the principle necessarily invokes the concept of stare decisis to employ the statute as a precedent-making declaration of legislative policy. See United States v. Freeman, 1845, 3 How. 556, 44 U.S. 556, 565, 11 L.Ed. 724; Stone, The Common Law in the United States, 50 Harv.L.Rev. 4, 12 (1936); Landis, Statutes and the Sources of Law, Harvard Legal Essays, 213, 214-218 (1934); Pound, Common Law and Legislation, 21 Harv.L.Rev. 386 (1908). As Mr. Justice Frankfurter observed upon dissenting in Pope v. Atlantic Coast Line R. Co., 1953, 345 U.S. 379, 73 S.Ct. 749; "Statutes * * are not to be deemed self-enclosed instances; they are to be regarded as starting points of reasoning, as means for securing coherence and for effectuating purpose." 345 U.S. at page 390, 73 S.Ct. at page 755. Cf. United States v. Atlantic Mutual Ins. Co., 1952, 343 U.S. 236, 245-249, 72 S.Ct. 666, 671-673, 96 L.Ed. 907 (dissenting opinion); Panama R. R. Co. v. Rock, 1924, 266 U.S. 209, 215-216, 45 S.Ct. 58, 59-60, 69 L.Ed. 250 (dissenting opinion); Johnson v. United States, 1 Cir., 1908, 163 F. 30, 32, 18 L.R.A.,N.S., 1194, Holmes, Circuit Justice. In considering the availability of a state court of competent jurisdiction to redress plaintiff's grievances which are asserted in the second cause of action, it should be remarked that there are now pending in the Supreme Court of New York County, New York, nine derivative suits by stockholders of Warner Bros. *812 similar to that at bar, none of which are on calendar and most of which have long been stayed because of failure of compliance with the New York court's order for security for costs. See N.Y.General Corporation Law, McK.Consol. Laws, c. 23, § 61; Shielcrawt v. Moffett, 1945, 294 N.Y. 180, 61 N.E.2d 435, 159 A.L.R. 971; Noel Associates, Inc., v. Merrell, 1944, 184 Misc. 646, 53 N.Y.S.2d 143, Fed. Rules Civ.Proc. rule 23, Notes of Advisory Committee, 28 U.S.C.A. And it should be noted also that any stockholder's derivative suit filed in the California courts must confront the possibility that security for costs may now be required in such cases. See Cal.Corp. Code, § 834, Stats.1949, p. 857; Comment, 1 U.C.L.A.Lev. 79-92 (1953); cf. Cohen v. Beneficial Ind. Loan Corp., supra, 337 U.S. 541, 69 S.Ct. 1221, 93 L. Ed. 1528. The conclusions reached as to the jurisdictional issues make it unnecessary to express any opinion on the issues raised by defendant's plea of the bar of applicable statutes of limitations. Defendants will lodge with the Clerk proposed findings of fact, conclusions of law and judgment of dismissal pursuant to local rule 7 within ten days.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2756978/	UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MONICA AUSTIN ) ) Plaintiff, ) ) v. ) Case No. 14—cv—318 (RJL) ) AMERICAN INSTITUTE FOR ) RESEARCH, ) F I L E D ) DEC 03 201'! Defendant. ) Clerk, US. District & Bankruptcy : Courts forthe District of Columbia MEMORANDUM PINION (Decembe%, 2014) [Dkt. #4] Plaintiff Monica Austin brings this suit against defendant American Institute for Research (“AIR”) for employment discrimination and retaliation in violation of Title VII ofthe Civil Rights Act of 1964, 42 U.S.C. §§ 20006 to 2000e-17 (“Title VII”), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), as well as for violations ofthe Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 (“FMLA”). See generally Compl. [Dkt. #1]. Defendant AIR moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Def.’s Mot. to Dismiss (“Def.’s Mot”) [Dkt. #4]. Upon consideration of the parties’ pleadings, relevant law, and the entire record therein, the motion is GRANTED in part and DENIED in part. BACKGROUND Ms. Austin, an African-American woman, was employed by AIR from 2001 to 2011, ﬁrst as an administrative assistant and then as an HR coordinator. Compl. at 2—3. In 2007, Ms. Austin was diagnosed with Lupus, Raynaud’s Syndrome, depression, and 1 Lyme disease. Compl. 1i 3. She applied for and took four months of leave under the FMLA, and returned to work in October 2008. Compl. ﬂ] 4. The allegations in the Complaint arise out of plaintiffs treatment upon return from leave. Ms. Austin alleges “she requested accommodations which she did not receive” and that her work demands increased soon after she returned, particularly when she was assigned the duties of a former colleague. Compl. W 5—6, 16, 18. In September 2009, AIR changed plaintiff from a salaried employee to an hourly employee. P1.’s Opp’n to Def.’s Mot. at 2 (“Plfs Opp’n”) [Dkt #9].1 In 2010, Ms. Austin requested and was denied a transfer to another department. Compl. I] 12. Her supervisors excluded her from weekly individual staff meetings, training, and guidance sessions from 2009 until her termination. Compl. 11 13. Throughout 2010 and 2011, AIR moved plaintiff’ s desk around the ofﬁce. Comp]. 1] 15. She was required to seek further clariﬁcation from her doctors on the notes she brought in to verify her illness. Compl. ﬂ 17. In September 2011, AIR placed Ms. Austin on a Performance Improvement Plan (“PIP”). Opp’n at 11. Ms. Austin again requested a transfer, and again was told no jobs were available. Compl. 11 22. On October 25, 2011, AIR terminated Ms. Austin. Compl. 'i 19. After her termination, Ms. Austin ﬁled an ofﬁcial charge with the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination and retaliation on the basis of her race and disability. Def.’s Mot, Ex. 2 at 2 [Dkt #4-4]. She now brings this suit, alleging six counts in her Complaint: (1) Wrongful Discharge; (2) Race ' Where AIR disputes in its Motion to Dismiss a date plaintiff referenced in the Complaint and plaintiff acknowledges AlR’s date is correct by adopting it in her Opposition brief, 1 use the date plaintiff adopts in her Opposition. transfer. This request for a transfer, coupled with her termination, meets the Rule 12(b)(6) pleading standard.12 V. Count VI: Family and Medical Leave Act An employer violates the Family and Medical Leave Act if it interferes with or denies a plaintiff an FMLA beneﬁt to which she was entitled or retaliates against a plaintiff for exercising an FMLA right. See 29 U.S.C. § 2615(a); Breeden v. Novartis Pharm. Corp, 646 F.3d 43 (DC. Cir. 2011) (recognizing two types of claims). Ms. Austin attempts to sue on both types of violations here, claiming that AIR interfered with her 2008 F MLA leave and retaliated against her for taking that leave. Compl. 1111 4, 51. However, the conduct on which she bases her FMLA claims is either time-barred or too temporally remote to state a claim. The FMLA allows a plaintiff to bring a civil action within two years after the last event constituting the alleged violation, 29 U.S.C. § 2617(c)(l), or three years if the action is brought for a “willful violation,” id. § 2617(c)(2). Ms. Austin ﬁled her Complaint on February 26, 2014. See generally Compl. At best, Ms. Austin’s FMLA claim is timely only as to conduct occurring on or after February 26, 201 1. Ms. Austin returned from FMLA leave in October 2008, Compl. 114, so any claim ofinterference with that leave falls well outside the limitations period. Ms. Austin alleges purportedly- ]2 AIR directs the Court to a letter it filed as an exhibit to its Motion to Dismiss and bases some of its arguments off the contents of that letter, but, unfortunately for defendant, the document is not properly before the Court at this point. Ms. Austin alleges that she requested a transfer, Compl. 1111 22, 45, but does not say she did so in a letter. The letter itself is not “incorporated” into or “referred to” in the Complaint, Harris, 825 F. Supp. 2d at 85, and the Court cannot assume that the letter tells the whole story regarding Ms. Austin’s transfer request. AIR’S arguments regarding the date of the request and whether or not it actually was a request for an accommodation under the ADA are arguments more appropriate for summaryjudgment briefing at a later date. 11 retaliatory actions in her Complaint, but those actions “occurred soon after returning from FMLA leave,” Comp]. 1] 51, “on her return from FMLA leave,” id., or otherwise admittedly fall outside the limitations period, see Opp’n at 10 (acknowledging that she took over assignments from a departed employee in “approximately late 2009 or early 2010,” which predates the limitations period). '3 Finally, to the extent Ms. Austin is trying to rely on her fall 2011 transfer request or her claim that she “was given additional work responsibilities during her last year of employment,” Compl. ll 16, sufficient time had passed so as not to allow an inference that those changes were retaliation for taking leave that ended in 2008. See Clark Cmy. Sch. Dist. v. Breeden, 532 US. 268, 274 (2001) (holding in a Title VII context that “[a]ction taken (as here) 20 months later suggests, by itself, no causality at all”). CONCLUSION Thus, for all the foregoing reasons, Defendant’s Motion to Dismiss [Dkt. #4] is hereby GRANTED in part and DENIED in part. Plaintiff’s Counts I-IV, VI, and Count V as to retaliation in violation of Title VII are DISMISSED. An appropriate order shall accompany this Memorandum Opinion. é ’ ’ ‘ ICHARD J. United States District Judge ’3 In her Opposition brief, plaintiff appears to argue that her change in status from a salaried to an hourly employee discouraged her from taking FMLA leave, Opp’n at 2, but this too is untimely, as she admits that her change in status occurred in September 2009, id. at 2, 12. 12 Based Discrimination, in violation of Title VII; (3) Hostile Work Environment, in violation of Title VII; (4) violations of the Americans with Disabilities Act (“ADA”); (5) Retaliation, in violation of Title VII; and (6) Violation of the Family and Medical Leave Act. See generally Compl. She seeks damages and attorney fees. Compl. at 16. Defendant AIR moves to dismiss under Rule 12(b)(6). Def.’s Mot; Mem. of P. & A. in Supp. ofDef’s Mot. to Dismiss (“Def.’s Mem.”) [Dkt. #4-1]. STANDARD OF REVIEW Under Rule 12(b)(6), “a complaint must contain sufﬁcient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 1d; see also Bell Atl. Corp. v. T wombly, 550 US. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level . . . .”). A court must “treat the complaint’s factual allegations as true” and “grant plaintiff the beneﬁt of all inferences that can be derived from the facts alleged[.]” Sparrow v. UnitedAz'r Lines, Inc, 216 F.3d 1111, 1113 (DC. Cir. 2000) (internal quotation marks omitted). However, the court need not “accept legal conclusions cast in the form of factual allegations.” Kowal v. MCI Commc’ns Corp, 16 F.3d 1271, 1276 (DC. Cir. 1994). “In ruling on a 12(b)(6) motion, a court may consider facts alleged in the complaint, documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose 3 authenticity is not disputed, if they are referred to in the complaint and integral to a claim.” Harris v. Amalgamated Transit Union Local 689, 825 F. Supp. 2d 82, 85 (D.D.C. 2011). ANALYSIS 1. Count 11: Title VII Race-Based Discrimination2 To bring an actionable race discrimination claim under Title VII, a plaintiff must adequately plead that (i) she suffered an adverse employment action (ii) because of her race. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (DC. Cir. 2008). A plaintiff must ﬁrst exhaust her claim administratively by ﬁling a claim with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of when the alleged unlawful employment action occurred, or with 300 days if cross-ﬁling with a state or local agency. 42 U.S.C. §2000e-5(e)(1). Ms. Austin ﬁled her ofﬁcial charge with the EEOC on April 18, 2012.3 Def.’s Mot, Ex. 2 at 2 [Dkt. #4-4]. The charge was ﬁled with the District of Columbia Ofﬁce of Human Rights, id., so Ms. Austin is entitled to the 300-day period. Therefore, Ms. Austin’s allegations of discrete employment actions are timely only as to those that took 2 Ms. Austin does not oppose AlR’s motion to dismiss her District of Columbia common law wrongful discharge claim (Count 1). See generally Opp’n (failing to mention wrongful discharge). Therefore, this claim is conceded. See Robinson v. Securitas Servs., Inc, 819 F. Supp. 2d 18, 22 (D.D.C. 201 l). 3 Ms. Austin’s EEOC Charge is a public document of which I takejudicial notice; this does not convert the motion to one for summary judgment. See Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 272 (D.D.C. 201 I). in her Opposition brief, Ms. Austin claims she sent an email to the EEOC at an unspeciﬁed earlier point in time. Opp’n at 8. However, even the language she quotes acknowledges that such an email would not be “an ofﬁcial EEOC charge form.” Id. (emphasis omitted). 4 place after June 22, 2011.4 See Nat’l RR. Passenger Corp. v. Morgan, 536 US. 101 (2002). “An adverse employment action is a signiﬁcant change in employment status, such as hiring, ﬁring, failing to promote, reassignment with signiﬁcantly different responsibilities, or a decision causing signiﬁcant change in beneﬁts.” Douglas v. Donovan, 559 F.3d 549, 552 (DC. Cir. 2009) (internal quotation marks omitted). Ms. Austin alleges she was placed on a PIP and denied a transfer in the fall of 201 1, Opp’n at 11; Compl. 11 22, but does not allege that her pay, beneﬁts, or responsibilities changed (or would have changed, had she been granted a transfer). Neither rises to the level of an adverse employment action. See Taylor v. Small, 350 F.3d 1286, 1293 (DC. Cir. 2003); Akosz'le v. Armed Forces Rel. Home, 938 F. Supp. 2d 76, 91 (D.D.C. 2013). Nor were the movement of plaintiff‘s desk around the office, exclusions from meetings, or requests for clear doctors’ notes, Compl. 1111 13, 15, 17-—all of which are alleged to have taken place at least in part within the limitations period—Asigniﬁcant alterations to the terms of employment. See Johnson v. Bolden, 699 F. Supp. 2d 295, 300 (D.D.C. 2010) aﬂ’d, 492 F. App’x 118 (DC. Cir. 2012); Cole vsPowell, 605 F. Supp. 2d 20, 26 (D.D.C. 2009); Weber v. Hurtgen, 297 F. Supp. 2d 58, 68 (D.D.C. 2003) rev ’41 in part on other grounds sub nom. Weber v. Bottista, 494 F.3d 179 (DC. Cir. 2007). Ms. Austin also points to an increased work load in late 2009 or early 2010,5 Opp’n at 10, and her change from a 4 Ms. Austin’s hostile work environment claim, which is not a discrete employment action claim, is addressed below. 5 In paragraph 16 of the Complaint, plaintiff states “Plaintiff was given additional work responsibilities during her last year ofemployment.” Compl. 11 16. She does not specify when, within that year preceding October 201 1, she received those additional responsibilities, or how they affected her work 5 salaried to an hourly employee in 2009, id. at 2, 12, but these changes took place outside the limitations period and I draw no conclusion as to whether or not such changes would be adverse employment actions. The only timely adverse employment action Ms. Austin alleges is her termination. AIR does not dispute that her termination in October 2011 was an adverse employment action. See Def.’s Mem. at 6. However, nowhere in the Complaint does plaintiff allege—even in a cursory fashion—that her termination was caused by her race. Plaintiff broadly alleges that she was subjected to threats, harassment, discriminatory employment practices, and a rude supervisor because of her race. Compl. W 28-30. Setting aside the sufﬁciency of these allegations to state any race-based claim, they refer to her work experience, and do not state a claim that her termination was caused by her race.6 11. Count III: Title VII Hostile Work Environment In addition to the discrete employment action claim brought above, Ms. Austin alleges that AIR created a hostile work environment in violation of Title VII. Compl. W 32-38. A plaintiff may bring a Title VII hostile work environment claim “[w]hcn the workplace is permeated with discriminatory intimidation, ridicule, and insult[] that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and load. In her Opposition brief, she mentions an increased work load only after a colleague departed in late 2009 or early 2010. Opp’n at 10. The assignment of her co-worker’s duties in 2010 is the only work load increase noted in the EEOC charge. Def.’s Mot, Ex. 2 at 2. To the extent that another increase in work load occurred later, it was not included in the charge and has not been exhausted. 6 In her Opposition brief, plaintiff does “proffer[] that the only reason that the Defendant . . . terminated her was because of her race and disability.” Opp’n at 20. However, this conclusory statement does not remedy her pleading deﬁciency. See Arbitraje Casa de Cambio, SA. de C. V. v. US. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (explaining that additional factual allegations contained in an opposition to a motion to dismiss are not properly before the court). 6 create an abusive working environment.” Harris v. Forklift Sys., Inc, 510 US. 17, 21 (1993) (internal quotation marks and citation omitted). Unfortunately for plaintiff, she failed to raise a hostile work environment claim in her EEOC charge, and therefore her claim is barred as unexhausted. “A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (DC. Cir. 1995) (internal quotation marks omitted). Ms. Austin lists a number of actions in her EEOC charge: a change from salaried to hourly employee; an increase in duties without support; a warning about her performance; denials of requests for accommodations, including a transfer and reduced work load; and her termination. Def.’s Mot., Ex. 2 at 2. However, these are allegations of discrete actions, and “mere reference to alleged disparate acts of discrimination against plaintiff cannot be transformed, without more, into a hostile work environment claim.” Childs-Pierce v. Uri]. Workers Union ofAm, 383 F. Supp. 2d 60, 79 (D.D.C. 2005) aﬂ’d, 187 F. App’x 1 (DC. Cir. 2006); see also Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C. 2003). The charge does not give AIR fair warning ofa possible hostile work environment claim. It “not only lacks the words ‘hostile work environment,’ but also lacks any factual allegations supporting such a claim.” Park, 71 F.3d at 908. The allegations upon which Ms. Austin now bases her hostile work environment claim are different in kind from those raised before the EEOC. Nowhere in her charge 39 46 docs Ms. Austin mention—or givc reason to infer—the “harassment, threats of termination and false accusations that Plaintiff did not perform her job,” or “humiliating, 7 demeaning and unnecessary” actions of AIR that she claims in the Complaint. Compare Compl. W 33—36 with Def.’s Mot, Ex. 2 at 2. These claims are not “like or reasonably related to the allegations of the charge,” Park, 71 F.3d at 907 (internal quotation marks omitted), and were not exhausted. 111. Count IV: Americans with Disabilities Act Reading the Complaint generously, it appears Ms. Austin attempts to allege two possible bases for a claim of discrimination under the American with Disabilities Act, 42 U.S.C. §§ 12101-12213: (i) adverse employment action due to her disability, and (ii) failure to accommodate. Compl. W 39-45. If Ms. Austin is attempting to bring an adverse action claim on the basis of her disability, she is not successful. This type of claim is analogous to the Title VII race-based discrimination claim described in Count II, above. “[T]he two essential elements of an ADA claim are that the plaintiff suffered an adverse employment action, and that the adverse employment action was based on plaintiffs disability.”7 Hollabaugh v. Ofﬁce ofthe Architect ofthe Capitol, 847 F. Supp. 2d 57, 64 (BBC. 2012). In Count IV of the Complaint, Ms. Austin refers to her increased work load, the requests that she submit clarified doctors’ notes, her placement on a PIP, and her termination. Compl. 1i 41-44. As above, the only timely adverse employment action is her termination.8 Just as she does not allege in the Complaint that 7 A plaintiff also must demonstrate she is disabled within the meaning of the ADA and is “qualiﬁed” for the position, with or without a reasonable accommodation. Swan/cs v. WashMetro. Area Transit Ant/1., 179 F.3d 929, 934 (DC. Cir. 1999). Because it is unnecessary to the resolution ofthe issues before me, I pass nojudgment on whether Ms. Austin has a “disability” as deﬁned by the ADA or was “qualiﬁed” for her position. 8 The ADA incorporates the procedural provisions from Title Vll, including the requirement that an individual ﬁrst timely exhaust all claims with the EEOC. 42 U.S.C. § 121 l7(a); see Mayers v. Laborers‘ 8 AIR terminated her because of her race, neither does she allege in the Complaint— directly or indirectly—that AIR terminated her because of her alleged disability. Under the ADA, an employer can discriminate on the basis of a disability by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualiﬁed individual with a disability who is an applicant or an employee.” 42 U.S.C. § 12112(b)(5)(A). Ms. Austin claims that she was not provided the accommodations she requested in order to deal with her diagnosed illnesses. Compl. 1\| 5. Speciﬁcally, Ms. Austin alleges that she requested a departmental transfer in September 2011, which was denied.9 Compl. 1i 22; Def.’s Mot., Ex. 2 at 2; Opp’n at 13. The ADA deﬁnes “reasonable accommodation” as including “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B). Ms. Austin alleges no facts to show any vacant position was available, let alone one for which she would be qualiﬁed. Her general allegation that “[s]he knew what positions were available,” Comp]. 1] 22, does not help her plead that she requested and was denied a reasonable accommodation. The attempt to elaborate in her Opposition brief that she “knew that there were positions available for which she qualiﬁed and could perform,” Opp’n at 13, does not remedy the issues with her pleading and nonetheless would be too conclusory to advance her position. See Arbitraje Casa de Cambio. 297 F. Supp. 2d at 170; see also Iqbal, 556 US. at 678 (discussing pleading standard). Health & Safety Fund ofN. Am, 478 F.3d 364, 368 (DC. Cir. 2007), Therefore, the employment actions upon which Ms. Austin can base her disability discrimination claims are limited in timejust as for her race-based discrimination claims. 9 To the extent Ms. Austin is attempting to bring claims based on accommodations requested soon after she returned from FMLA leave, she does not succeed. Such claims would be untimely, 42 U.S.C. § 2000e-5(e)( l ), and plaintiff has not identiﬁed what the accommodations were or how AIR denied them. 9 IV. Count v: Title VII and ADA") Retaliation Title VII and the ADA prohibit employers from retaliating against employees for opposing unlawful practices or participating in an employment discrimination proceeding. 42 U.S.C. §§ 2000(e)-3(a), 12203(a). An employer unlawfully engaged in unlawful retaliation against a plaintiff if it “took materially adverse action against h[er] because [s]he participated in protected activity.”II Bridgefortlz v. Jewell, 721 F.3d 661, 663 (DC. Cir. 2013). A materially adverse action in the workplace is similar to an adverse action in a discrimination case, in that it “involves a significant change in employment status.” Id. (internal quotation marks omitted). As with other Title VII and ADA claims, the adverse action must have occurred within the limitations period. See Nat ’l RR. Passenger Corp, 536 US. at 110. Ms. Austin does not allege that she engaged in any Title VII protected activity while employed at AIR. Therefore, she cannot sustain a Title VII retaliation claim. However, requesting a reasonable accommodation may be protected activity under the ADA. See Floyd v. Lee, 968 F. Supp. 2d 308, 331-33 (D.D.C. 2013) (collecting cases). Ms. Austin alleges she requested a departmental transfer in September 201 1. Compl. 11 22. She was terminated the next month. Although Ms. Austin does not adequately plead that AIR denied her a reasonable accommodation because she does not plead that there was a vacancy for which she was qualiﬁed, she does plead that she requested the ‘0 Count v is entitled “Retaliation” and subtitled “Violation of Title VII ofthe Civil Rights Act of 1964, 42 U.S.C. § 2000 (e), et seq.” Compl. at 12. The Complaint also references the ADA’s protection against retaliation, found at 42 U.S.C. § 12203(a), so I include that as well. Compl. 11 46. H In this Circuit, a plaintiff can also bring a claim for a retaliatory hostile work environment, Hussain v. Nicholson, 435 F.3d 359, 366 (DC. Cir. 2006), but, as described above, Ms. Austin does not properly allege that she suffered from a hostile work environment. 10	01-03-2023	12-03-2014
https://www.courtlistener.com/api/rest/v3/opinions/1502309/	100 F. Supp. 440 (1951) FLY v. UNITED STATES. No. 48692. United States Court of Claims. October 2, 1951. 441 George W. Neville, Washington, D. C., for plaintiff. Francis X. Daly, Boston, Mass., Newell A. Clapp, Acting Asst. Atty. Gen., Holmes Baldridge, Asst. Atty. Gen., on the brief, for defendant. Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges. HOWELL, Judge. This is a suit by William Anthony Fly for pay and allowances which he alleges have been wrongfully withheld pursuant to a purported court-martial sentence of dismissal from the United States Naval Service. Plaintiff, who held the rank of Captain at the time of his dismissal, further alleges his sentence to be void in that the court martial which sentenced him was without jurisdiction as to his person or as to the offenses for which he was tried, and contends that he remains a member of the United States Navy. The Government contends that the naval court martial which tried, convicted, and sentenced plaintiff had proper jurisdiction and that this court may neither review nor collaterally attack the court-martial decision. The law is well settled that this court, regardless of errors of law committed, cannot grant plaintiff relief from the consequences of his court-martial sentence if the court martial had jurisdiction of the case. Sima v. United States, Ct.Cl., 96 F. Supp. 932. It is equally well settled that if the court martial lacked jurisdiction, its action is void in its entirety and plaintiff remains in the naval service and is entitled to his pay and allowances for the period since his purported dismissal. United States v. Brown, 206 U.S. 240, 27 S. Ct. 620, 51 L. Ed. 1046; Shapiro v. United States, 69 F. Supp. 205, 107 Ct. Cl. 650. We are of the opinion that plaintiff was tried and convicted by a court martial having jurisdiction of his person and of the offenses charged and that, no other question being properly before this court, his petition must be dismissed. The plaintiff concedes that, as a member of the naval service, he was subject to naval court-martial jurisdiction. It is contended, however, that the particular court that tried Captain Fly never acquired jurisdiction of him and that its action as to him was a nullity. Plaintiff's position is based upon certain procedural errors allegedly committed in bringing him to trial. The errors set forth are (1) that the "order for trial" did not specify with particularity the court before which plaintiff was to be tried, i. e., it did not refer plaintiff to the court which tried him;[1] and (2) that the 442 precept was drawn subsequent to the order for trial.[2] Objection to both the above errors was timely made. The first error was corrected before the trial proceeded by the insertion of a date identifying the court before which trial was to be had and by adding a "saving clause" to the precept allowing that court to try cases previously assigned to other courts but not yet tried. It was ruled, as to the second error alleged, that the court before which Captain Fly was tried had superseded earlier courts and had taken over their case loads and that the precept through an unbroken documentary chain antedated the order for trial. Further objections to these same alleged errors were overruled by court-martial authorities, and these rulings were sustained on review by the Secretary of the Navy. While it is obvious that the manner in which Captain Fly was brought to trial left something to be desired in the way of orderly procedure, it is not within the power of this court to correct every error committed in the conduct of a court martial. Hiatt v. Brown, 339 U.S. 103, 70 S. Ct. 495, 94 L. Ed. 691; Humphrey v. Smith, 336 U.S. 695, 69 S. Ct. 830, 93 L. Ed. 986; Ex parte Dickey, D.C., 204 F. 322. To do so would be to constitute this court an appellate tribunal in the field of military justice. Only when the errors committed are so gross as to amount to a denial of due process does the erring court martial lose its jurisdiction and its power to issue a valid decree. Compare Sima v. United States, with Shapiro v. United States, both supra. The errors cited to us here do not amount to a denial of due process. Plaintiff was promptly and fully informed of the charges and specifications to be pressed against him. He was given notice of the time and place of trial and the assistance of counsel of his own choice aided by assigned naval counsel in ample time to prepare his defense. He was accorded a trial on the merits before a court to which he made no objection. No objection has been made to the conduct of the trial itself. The charges and specifications and the court before which plaintiff was tried were all set forth with sufficient definiteness to assure him the protection of res adjudicata. The plaintiff having been within naval court-martial jurisdiction, the errors made in bringing him before the particular court, taken at their worst, amount to no more than errors of procedure subject to correction. The errors were properly reviewed and corrected within the naval service, Cf. Hiatt v. Brown, supra, 339 U.S. at page 111, 70 S. Ct. 495, and fall short of amounting to a denial of a constitutional right such as would justify this court in holding the court martial to have lost jurisdiction. As a further basis for his suit, plaintiff now advances a contention not made at the court-martial trial. That contention is that the court martial which tried him did not have jurisdiction over the offenses of which he was convicted, viz. "embezzlement" and "neglect of duty," both charged as violations of Art. 22 (a), Articles for the Government of the Navy, 34 U.S.C.A. § 1200.[3] Plaintiff contends that the charge of embezzlement cannot lawfully be laid under Art. 22 (a), inasmuch as courts martial are courts of statutory jurisdiction and embezzlement of Government property having been specifically provided for under Art. 14, Par. 8,[4] the embezzlement of other 443 property or money not being mentioned, it must have been the intention of Congress to exclude all other forms of embezzlement from the crimes over which courts martial have jurisdiction. The official Navy publication, Naval Courts and Boards, 1937, takes a contrary position, providing in part that: "Embezzlement of money, or other property, etc., intended for the military or naval service is provided for under the 14th A. G. N., paragraph 8, and is properly charged as shown in Section 89. Embezzlement of any other money or property, public or private, is provided for under the 22d A. G. N." It seems clear that the latter interpretation is the correct one. It is elementary that the charge of embezzlement of Government property would have to be laid under Art. 14, par. 8, rather than under Art. 22 (a). But as embezzlement of property other than Government property is clearly a crime, and a crime distinct from the embezzlement of Government property, Compare 18 U.S.C. § 641 with 18 U.S.C. § 654, it cannot be other than an offense punishable under Art. 22 (a) "as a court-martial may direct." The case of Rosborough v. Rossell, 1 Cir., 150 F.2d 809, cited by plaintiff for the proposition that the enumeration of a specific offense in one of "the foregoing articles" prevents jurisdiction being rested upon Art. 22 (a) does not point to a contrary result. In that case the specific charge enumerated was "murder"; the charge sought to be laid under Act. 22 (a) was also "murder." The worst that can be said about the charge and specification complained of here is that it was less than artfully drawn. The charge might better have been entitled "Embezzlement of the Property of Another" see 18 U.S.C. § 654, rather than simply "Embezzlement," but the specification clearly outlined the offense charged. The charges and specifications of a court martial correspond to the pleadings of a trial at common law, and their function is primarily the sameto put the accused upon notice of the crime of which he is charged, and to insure an adequate public record so that the accused may invoke the doctrine of res adjudicata to protect himself from repeated trials for the same offense. It has been held that court-martial charges and specifications need not meet the niceties of common law pleadings. Ex parte Dickey, D.C., 204 F. 322. In the instant case, however, it appears that the charges and specifications as drawn would have met the test of the modern federal rules that the complaint set forth the essential facts constituting the offense charged. See Rule 3, Federal Rules of Criminal Procedure, 18 U.S.C. The same reasoning applies to the plaintiff's contention that the court martial tried Captain Fly for a violation of Maryland lawa function beyond its jurisdiction. The court martial tried Captain Fly for the crime of embezzlement of the property of anothera crime detrimental to good order and discipline; a crime bringing disgrace and reproach upon the naval service. Such a crime is properly within the scope and jurisdiction of naval justice, whether specifically provided for by the Articles for the Government of the Navy or merely covered by the broad language of Art. 22 (a). Smith v. Whitney, 116 U.S. 167, 183 et seq., 6 S. Ct. 570, 29 L. Ed. 601. That the offense was also a violation of the criminal law of Maryland does not make it less a naval offense punishable by court martial. 16 Op. Atty. Gen. 579. Objection is made to the court martial's finding of "guilty" to the charge of "Neglect of Duty," the specification being that accused, having in his possession certain unexpended moneys, entrusted to him for expenditure to the benefit of his vessel's crew, did fail to transfer said moneys to his successor in command, "as it was his duty to do." No conceivable objection can be made to the naval court martial's jurisdiction of this well-recognized 444 naval offense.[5] The naval court martial which tried Captain Fly found, as a fact, that Captain Fly failed to turn over certain funds to his successor in command and that, as a matter of law, such failure amounted to a "neglect of duty" punishable under Art. 22 (a), A. G. N. It is not within our province to review either of the above decisions. No question raised on this point touches upon the jurisdiction of the naval court martial over Captain Fly. Hiatt v. Brown, supra. We are of the opinion that naval court-martial jurisdiction extended to plaintiff's person, and to the offenses for which plaintiff stood trial; that any errors committed in bringing him to trial were errors in form only, not voiding that jurisdiction; and that plaintiff's petition must be dismissed. It is so ordered. JONES, Chief Judge, and MADDEN, WHITAKER, and LITTLETON, Judges, concur. NOTES [1] The "order for trial" is a document addressed to the judge advocate of a general court martial informing that officer that a certain accused is to be tried before the court martial of which the addressee is a member. The order for trial directs the addressee to notify the president of the court martial, to inform the accused of the date set for trial, and to summon all witnesses. It also transmits the charges and specifications upon which the accused is to be tried. [2] The precept is an order convening the court. It is signed by the convening authority and addressed to the president of the court. It specifies the time and place of meeting and recites the composition of the court. The precept must be drawn before the order for trial and the reference of the charges and specifications to the judge advocate, as otherwise the latter is issued to an officer nonexistent. § 345, Naval Courts and Boards, 1937. [3] "All offenses committed by persons belonging to the Navy which are not specified in the foregoing articles shall be punished as a court-martial may direct." Art. 22(a), A. G. N. [4] Fine and imprisonment, or such other punishment as a court-martial may adjudge, shall be inflicted upon any person in the naval service of the United States * * * Who steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully and knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money or other property of the United States, furnished or intended for the military or naval service thereof". Art. 14, Par. 8, A. G. N. [5] Defined by § 105, Naval Courts and Boards, 1937: "This offense is distinguished from the offense of culpable inefficiency in the performance of duty, in that it is a failure to do, whereas the other is not a failure to do at all, but a doing in such a manner as to be blameworthy. A person may neglect his duty by never entering upon it, in whole or in part. It is an omission rather than an act. A duty may be imposed by law, regulation, order, or custom of the service in force at the time of the commission of the offense."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1029349/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6232 COREY COLES, Petitioner - Appellant, v. D.B. EVERETT; GENE JOHNSON; JOHN JABE, Respondents - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:08-cv-00493-RGD-FBS) Submitted: June 22, 2009 Decided: June 30, 2009 Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Corey Coles, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Corey Coles appeals the district court’s order dismissing without prejudice Coles’s 28 U.S.C. § 2254 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Coles v. Everett, No. 2:08-cv-00493-RGD-FBS (E.D. Va. Jan. 23, 2009). We deny Coles’s motion to appoint counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	07-05-2013
https://www.courtlistener.com/api/rest/v3/opinions/2231538/	732 N.W.2d 888 (2007) STATE v. MAASKE. No. 06-0145. Court of Appeals of Iowa. March 14, 2007. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2168422/	290 S.W.3d 254 (2009) STATE OFFICE OF RISK MANAGEMENT, Appellant, v. Georgina ALONSO, Appellee. No. 08-07-00091-CV. Court of Appeals of Texas, El Paso. March 5, 2009. 255 Norberto Flores, Assistant Attorney General, Austin, for Appellant. Robert E. Riojas, Riojas Law Firm, PC, El Paso, for Appellee. Before CHEW, C.J., McCLURE, J., and BARAJAS, C.J. (Ret.), sitting by assignment. OPINION ANN CRAWFORD McCLURE, Justice. This is a worker's compensation case on appeal from the Texas Department of Insurance-Division of Workers's Compensation. The State Office of Risk Management (SORM) appeals a no-evidence summary judgment in favor of Georgina Alonso. Alonso prevailed at the contested case hearing and the Appeals Panel affirmed the decision. SORM filed suit in district court on the sole issue of whether Alonso sustained a compensable repetitive trauma injury. The trial court granted Alonso's no-evidence motion for summary judgment and denied SORM's motion for continuance and alternative motion for leave to file an untimely response. Finding no abuse of discretion, we affirm. FACTUAL SUMMARY Alonso is an injured worker who prevailed on her work injury claim before the contested case hearing officer and the Appeals Panel. SORM filed its original petition in district court on August 22, 2005. Pursuant to the discovery control plan and scheduling order, the discovery deadline was November 21, 2006. Trial was set for March 23, 2007. On or about October 26, 2006, the case was transferred within the Office of the 256 Attorney General from Kerry O'Brien to Norberto Flores. Alonso filed her no-evidence motion for summary judgment on October 26 and the hearing was scheduled for November 29. SORM's response was due on November 22, the day before Thanksgiving. On November 1, Flores forwarded Alonso's medical records and other materials to Dr. Martin Steiner, a neurologist in Houston. On November 21, SORM designated Dr. Steiner as an expert witness and learned the same day that the doctor was out of town and would not return until November 27. Flores then inquired whether Alonso's counsel, Robert Riojas, would agree to a continuance. Riojas responded by faxing the following letter to Flores: Dear Mr. Flores: I understand you wish to continue the summary judgment hearing currently set on November 29. I have no problem rescheduling the hearing if you need additional time to prepare your response or because you have a scheduling conflict. However, I will not agree to any such continuance in order for discovery to be supplemented or filed. Let me know. Upon receipt of the fax, Flores notified Dr. Steiner that his report could be completed after the Thanksgiving holidays. The doctor completed his report on November 27, and sent it to Flores on November 28. Learning that the hearing had still not been postponed, Flores contacted Riojas on November 27 and requested confirmation of an agreement for continuance. On November 28, Flores sent Riojas a Rule 11 agreement. That same day, Riojas faxed a second letter: Dear Mr. Flores: Regarding your request for a continuance of tomorrow's summary judgment hearing, as stated in my last letter, I can only agree to continue the summary judgment hearing if there was a scheduling problem but I cannot agree to reschedule the hearing simply to allow you more time to gather evidence to be used against my client. I would not be fulfilling my ethical obligations to my client to allow such supplementation. On November 29the date of the hearingSORM filed a response to the summary judgment motion with Dr. Steiner's affidavit attached. It also filed a motion for continuance with an alternative motion for leave to file its response untimely. The trial court denied the motion for continuance and the motion for leave to file a late response; it granted Alonso's no-evidence motion for summary judgment. We have not been favored with a record from the November 29 hearing. SORM mentions in its brief that the reporter's record was either lost or destroyed, but it alleges no error in this regard. DENIAL OF MOTION FOR LEAVE In Issue One, SORM complains of the trial court's denial of its motion for leave to file an untimely summary judgment response. We review the trial court's ruling under an abuse of discretion standard. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686-87 (Tex. 2002). The trial court abuses its discretion when it acts without reference to any guiding rules or principles. Id., at 687; citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In Carpenter, the Texas Supreme Court considered what constitutes "good cause" under Rule 5 of the Texas Rules of Civil Procedure: When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its 257 discretion (a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act. The court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules. [Emphasis added]. There, Carpenter filed a motion for summary judgment and Cimarron failed to timely file a response. Id. at 684. On the morning of the hearing, Cimarron filed a motion for continuance and a motion for leave to file an untimely response. Id. at 685. At the hearing, Cimarron's counsel argued that Carpenter would not be prejudiced by a late filing, but "offered no explanation of the error from which the trial court might determine that an accident or mistake had occurred." Id. at 688. The trial court denied both motions and granted Carpenter's motion for summary judgment. Id. at 685. Cimarron appealed and the court of appeals reversed. Id. The Supreme Court of Texas then reversed the court of appeals' judgment, holding that under Rule 5: "[A] motion for leave to file a late summary-judgment response should be granted when the nonmovant [for summary judgment] establishes good cause by showing that the failure to timely respond (1) was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) that allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment." Id. at 688. The court concluded that the trial court properly denied Cimarron's motion for leave because Cimarron offered no explanation for its failure to timely file a response. Id. The Texas Supreme Court also applied the standards of Rule 5 in In re M.N., 262 S.W.3d 799, 804 (Tex.2008). In this parental termination proceeding, the appellant alleged that counsel mis-calendared the time for post-trial filings. Id. At the hearing on the motion to extend time, counsel explained that the late filing was necessary because she mistakenly calculated the last date for filing the statement of appellate points from the date she received the order rather than from the date the order was signed. Id. The appellee did not contest either the allegations in the motion or appellant's explanation at the hearing. Id. The Supreme Court concluded that the appellant pled facts supporting the late filing and that the appellee did not claim that the late filing was prejudicial. Id. Therefore, the trial court had not abused its discretion in granting the motion. Id. SORM argues that its reliance on the letters sent by Riojas constitute the requisite "good cause." These allegations have been hotly contested. We conclude that the record does not support SORM's position, nor has SORM demonstrated that its justification for a late response was the result of an "accident or mistake." See Carpenter, 98 S.W.3d at 688. SORM alleged in its motion for continuance that: Counsel for [SORM] sent Dr. Steiner medical records and other documents to review on November 1, 2006 and expected to receive an affidavit from him before [SORM's] response to the motion for summary judgment is due. However, [SORM's] counsel has just learned that Dr. Steiner has gone out of town and will not return to the office until November 27, 2006. SORM has not challenged the denial of the motion for continuance on appeal. Turning then to SORM's alternative motion for leave to file an untimely response, SORM claimed that Riojas reneged on an 258 agreement to continue the hearing and that in reliance upon the November 21 letter, "Flores did not file his response on of [sic] before November 22, 2006." This argument is somewhat disingenuous. Flores did not file his response before November 22 because he learned that Dr. Steiner left town without completing his affidavit. The following time line is helpful in our analysis: 08/22/05 SORM files this suit in district court. 10/26/06 Flores is designated lead counsel for SORM.[1] 10/26/06 Alonso files her motion for no-evidence summary judgment. 11/01/06 Flores forwards Alonso's medical records to Dr. Steiner. 11/21/06 Discovery deadline pursuant to the docket control order. SORM designates Dr. Steiner as an expert witness. 11/21/06 Flores contacts Riojas about a continuance because he has learned that Dr. Steiner is out of town and will not return until 11/27/06. Riojas responds by facsimile. 11/22/06 Deadline for filing a response to the motion for summary judgment. 11/27/06 Dr. Steiner completes his affidavit. Flores requests confirmation of agreement with Riojas. 11/28/06 Dr. Steiner forwards his affidavit to Flores. Flores sends a Rule 11 agreement to Riojas. Riojas responds by facsimile. 11/29/06 SORM files its motion for continuance and alternative motion for leave to file an untimely response to the motion for summary judgment. SORM did not forward any of Alonso's medical records to Dr. Steiner until after the motion for summary judgment was filed, yet by that time, the case had been pending in the trial court for fourteen months. Dr. Steiner was not designated as a witness until November 21, the day before the summary judgment response was due to be filed. When asked during oral argument about the time lapse between October 26 and November 21, Flores replied that SORM was in negotiations to hire Dr. Steiner.[2] That would explain the period between October 26 and November 1, when the medical records were forwarded to him.[3] The record is silent as to any communication between Flores and Steiner from November 1 through November 21. For these twenty days, Flores knew that a motion for summary judgment was pending and that SORM's response was due on November 22. While other jurists might have found good cause to exist, we are hard pressed to conclude that the court below abused its discretion. We overrule Issue One. Because SORM has failed to hurdle the first prong of Carpenter, we need not address the second prong of undue delay or prejudice. PROPRIETY OF SUMMARY JUDGMENT In Issue Two, SORM contends that it raised a genuine issue of material fact 259 precluding summary judgment. Because the trial court denied SORM's motion for leave to file its response untimely, we presume the court did not consider either the late-filed response or Dr. Steiner's affidavit in rendering summary judgment. See Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex.1988); INA of Texas v. Bryant, 686 S.W.2d 614 (Tex.1985). A no-evidence summary judgment is essentially a pretrial directed verdict and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003); Sanchez v. State Office of Risk Management, 234 S.W.3d 96, 99 (Tex. App.-El Paso 2007, no pet.). The movant must specifically state the elements as to which there is no evidence. Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied); see Tex.R.Civ.P. 166a(i). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged in the motion. Aguilar, 162 S.W.3d at 834. We view the evidence in the light most favorable to the non-movant and disregard all contrary evidence and inferences. King Ranch, Inc., 118 S.W.3d at 751. A genuine issue of material fact is raised if the non-movant produces more than a scintilla of evidence regarding the challenged element. Id. at 751. Less than a scintilla of evidence exists if the evidence is so weak as to create no more than a mere surmise or suspicion. But when the evidence rises to a level that enables reasonable minds to differ in their conclusions, then more than a scintilla of evidence exists. Id. Alonso alleged in her motion for summary judgment that because the Division of Workers' Compensation determined she had sustained a compensable repetitive work injury, SORM was required to produce some evidence that the administrative determination was incorrect. Given our holding that SORM failed to demonstrate good cause for the untimely filing of its response, there was no evidence presented to the trial court from which it could determine the existence of a genuine issue of material fact. Nevertheless, SORM directs us to Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) in support of its argument that a trial court may consider evidence presented via motion for new trial. In Wheeler, the trial court granted summary judgment removing Wheeler as a joint managing conservator of her daughter based upon 64 deemed requests for admissions. Appearing pro se, Wheeler forwarded her responses to Green's attorney two days late, but six months before the summary judgment hearing. She did not file a response to the motion for summary judgment, but she did appear at the hearing. After the unfavorable ruling, Wheeler hired counsel who filed a motion for new trial, attached her responses to the request for admissions, and asked that the summary judgment be set aside. The trial court denied the motion and the intermediate appellate court affirmed. The Supreme Court reversed for three reasons. First, Wheeler was not required to file a response to the summary judgment motion and the trial court could not grant the motion simply because she failed to do so. Second, although Wheeler did not file a motion to withdraw the deemed admissions or seek leave to file an untimely response to the motion for summary judgment, the arguments in her motion for new trial were sufficient to put the trial court on notice of her complaint. Third, Wheeler did not waive these arguments by presenting them for the first time in her motion for new trial since the record did not establish that 260 she knew that her responses were late, that she needed to withdraw the deemed admissions, or that she needed to file a response to the motion for summary judgment. We conclude that Wheeler is inapplicable. First, the Supreme Court commented by footnote that if these same "elementary mistakes" had been made by a lawyer, the trial court could have concluded that failure to follow the rules was the result of intent or conscious indifference. Second, Green's motion for summary judgment was based upon deemed admissions and did not require a response. No-evidence motions for summary judgment must be granted if no response is filed. See TEX. R.CIV.P. 166a(i). Third, SORM never asked the trial court during the hearing on the motion for new trial to review Dr. Steiner's affidavit, nor did it request relief pursuant to Rule 166a(g).[4] Finally, although SORM's failure to file the summary judgment response ended its lawsuit, we disagree that it has suffered merits-preclusive sanctions without a showing of bad faith or callous disregard for the rules. The summary judgment here was not a discovery sanction. The trial court granted a no-evidence summary judgment because SORM failed to timely respond. We overrule Issue Two and affirm the judgment of the trial court. NOTES [1] The certificate of service on the designation is dated 10/26/06, but it is file stamped 10/30/06. [2] Counsel also noted that the Veterans' Day holiday occurred in this time frame as well. Veterans' Day is normally a state holiday, but November 11, 2006 fell on a Saturday. [3] SORM argues in its brief that it sent the medical records to Dr. Steiner two business days after it received the motion for summary judgment. [4] During oral argument, Flores argued that the trial court should have denied summary judgment relief or granted a continuance to allow Dr. Steiner's affidavit to be filed pursuant to Rule 166a(g). That rule provides: (g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1774737/	196 So. 2d 255 (1967) 250 La. 405 Herman A. THOMPSON v. Phil A. ST. AMANT. No. 48184. Supreme Court of Louisiana. February 20, 1967. Rehearing Denied March 27, 1967. 256 Kleinpeter & Barnett, Baton Rouge, for relator. Russell J. Schonekas, New Orleans, for defendant-respondent. SUMMERS, Justice. This action for $150,000 in damages for an alleged libel was instituted by Herman A. Thompson, a deputy sheriff of the parish of East Baton Rouge, against Phil A. St. Amant, a retired Army officer and business man of that parish. The trial court found that the plaintiff, Thompson, had made out his cause of action and, accordingly, condemned the defendant, St. Amant, to pay $5,000 as damages. Upon proper and timely application, a new trial was granted to reconsider the case in the light of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), which had been handed down in the meantime. After reconsideration the trial judge reinstated his original judgment. On appeal the First Circuit reversed, and we granted review on Thompson's application. 257 The petition alleges that, on June 27, 1962, St. Amant, who was then a candidate for the office of United States Senator, appeared on a television program in Baton Rouge and delivered a political campaign address which was also reduced to writing and distributed to the press and other news media. In the beginning of his speech St. Amant said: "I have a story to reveal tonight which is so unusual that I have bought this time on the television to inform the public. This story involves a well-documented criminal, and ex-convict who became a labor chieftain. It involves misuse and theft of union funds, dealings with Communist officials of Cuba, a criminal conspiracy to destroy evidence and the destruction of that evidence; death resulting from the commission of a felony and a second death by a hit and run by a union car." The address thereafter consisted principally of the reading by St. Amant of a transcript of an interview which he had previously had with one J. D. Albin, a member of the local Teamsters' Union. The interview was in question and answer form, with St. Amant asking the questions which Albin answered. At St. Amant's urging, Albin had sworn to the correctness of the facts he recounted, and St. Amant had possession of the affidavit in written form. By its content the speech was unmistakably designed to disclose Albin's knowledge of illegal, unsavory and criminal actions by E. G. Partin, business agent of the local Teamsters' Union. In the speech St. Amant claimed Senator Russell B. Long, his opponent and the incumbent United States Senator, had recommended Partin to James Hoffa, the union president. By this disclosure he sought to disparage his opponent. Included among Partin's activities, according to Albin's statements which St. Amant read, was a visit by Partin with Fidel and Raoul Castro in Cuba during November 1960. St. Amant quoted Albin as saying that Partin was responsible for the negotiation of a labor contract in Baton Rouge, giving up many wage benefits and surreptitiously continuing a practice of longer working hours contrary to the interest of union members. Partin was accused of using union funds for his personal benefit, to pay house notes and the rent for his girl friend's car. Albin related that Partin took "numerous amounts of money out of the cash drawer during the week and at the end of the week he made this up by making a check out to someone else who would endorse it and they would deposit it into the union fund." Albin then relates, in response to St. Amant's questions, that these practices prompted a local union member to write a letter to Arthur Goldberg, then Secretary of Labor, with a copy to James Hoffa, asking for an investigation of Partin's local union by the union hierarchy. According to Albin, when Partin learned of this he became "pretty riled up" and enlisted four members of the union to "help him get rid of the safe" which contained the union records. Albin continued: "Now, we knew that this safe was gonna be moved that night, but imagine our predicament, knowing of Ed's connections with the Sheriff's office through Herman Thompson, who made recent visits to the Hall to see Ed. We also knew of money that had passed hands between Ed and Herman Thompson * * * from Ed to Herman. We also knew of his connections with State Trooper Lieutenant Joe Green. We knew we couldn't get any help from there and we didn't know how far that he was involved in the Sheriff's office or the State Police office through that, and it was out of the jurisdiction of the City Police." In his narrative Albin asserted that the safe disappeared that night and that Thompson and Lieutenant Joe Green of the State Police investigated the case but nothing 258 happened. The safe turned up "a few months later, Albin said, when a young man by the name of Forman dove off the river bridge and hit his head on the safe * * killing himself." This death St. Amant and Albin characterized as "a death resulted (sic) from the commission of a felony." They concluded Forman's death was a "murder" for which, they implied, Partin was responsible. Then followed statements by Albin, all of which were likewise read by St. Amant, purporting to give information from Partin's "rap sheet", revealing that Partin had been either arrested, charged or convicted for robbery, auto theft, breaking and entering, "second degree burglary", rape, and robbery with firearms. Albin charged that Partin was responsible for the death of a young soldier in Alabama, killed in a hit-and-run automobile accident while Partin was driving the offending vehicle. St. Amant continued to read the transcript of his interview with Albin, quoting Albin's story of why A. G. Klein, a good friend and a union member, was not "testifying today." He quoted Albin as saying that Klein, who had knowledge of the "safe incident" and other illegal activities of Partin, testified before a Federal Grand Jury in New Orleans, and that shortly thereafter Klein met his death in St. Francisville when a truck "dropped on top of him loaded with about ninety thousand pounds of sand." St. Amant's presentation of this political addressthe manner in which he expressed himself, the tone and theme of the speech, the obvious manifestation of his belief in the veracity of Albin's statementswas calculated to impress upon the reader or listener that he had confidence in Albin's charges against Partin and Thompson and that he believed them to be true. The publication was principally designed to malign the conduct of the incumbent United States Senator; but to do this it was necessary to show Partin's unsavory character and criminal record. Thompson's name was brought into the story only incidentally, yet, he was nonetheless unmistakably accused of criminal conduct. In his petition Thompson alleged that the publication by St. Amant was false, libelous, scurrilous and malicious and was intended to belittle, degrade and ridicule him. Clearly, he alleged, the publication reflected a design and intent on the part of the defendant, St. Amant, to defame, slander and libel Thompson's good name, reputation and character before his friends, the courts and the public in general. From St. Amant's remarks, the petition alleges, the false and defamatory imputation arises that Thompson was guilty of gross misconduct of a nefarious nature. In his answer St. Amant admitted making the speech but denied that he defamed or intended to defame Thompson. He alleged that the context in which the remarks concerning Thompson were made shielded those remarks from any defamatory imputation. In the alternative, he alleged that the utterances concerning Thompson were true and their publication was for the public good. Even if not true, he alleges, there was no malice on his part. As it is settled in Louisiana that the truth of a defamatory remark is generally a valid defense in a civil suit for defamation, it becomes necessary to decide initially if the remarks concerning Thompson were true. If they are shown to be true that would ordinarily end the case. If the utterances are false, however, we must then proceed to determine if they are defamatory and actionable. La.R.S. 13:3602; Deshotel v. Thistlewaite, 240 La. 12, 121 So. 2d 222 (1960). Both the trial court and the Court of Appeal decided that the statements were not true, and we agree. By his testimony at the trial, Thompson acknowledged that he first knew Partin in connection with labor disputesto which Thompson had been assigned for duty. He got to know Partin better, he said, while investigating burglaries at the union hall. In fact, because he had been designated for 259 special duty by the sheriff, he was required to come in contact with almost all of the union business agents in Baton Rouge. He knew them all by their first names and readily conceded that he received funds from Ed Partin when he picked up a check every year for the Baton Rouge Kids' Baseball Clinic. The United Mine Workers, pipefitters', electricians', carpenters', and other unions and several civic and charitable organizations were also solicited by him. Other duties assigned to him included supervising a bell-ringing campaign for the Salvation Army, soliciting for the Volunteers of America, the March of Dimes, the Cystic Fibrosis Fund, the Elks Club and the Lions' Club. He assisted in these civic and charitable undertakings as a public service. And except for such solicitations, he had no connection with Partin other than as a law enforcement officer. An effort was made to discredit Thompson's testimony that he had only received "checks" from Partin in the solicitations. Partin's former secretary, Marjorie Ann Smith, testified that Partin once gave her an envelope for delivery to Thompson. She stated that she and Jeanette Fletcher, another employee in the union office, opened the envelope and saw five twenty-dollar bills. According to Marjorie Ann Smith's testimony, Jeanette Fletcher handed the money to Thompson in a sealed envelope. Thompson, however, categorically denied having received any cash. The trial judge and the Court of Appeal rejected the Smith woman's testimony and accepted Thompson's version that no money passed from Partin to him, other than checks representing donations by the union to charitable and civic organizations. Since Marjorie Ann Smith's testimony was rejected and Jeanette Fletcher did not testify, there is no evidence to support the charge that "money passed" from Partin to Thompson. On this vital issue of fact, which bears so heavily on our decision, we agree with the trial court and the Court of Appeal. Moreover, as the determination of this issue involves the credibility of the witnesses Thompson and Smith and because there is no other evidence upon which a contrary result could be reached, the record will not support reversal of the findings of both the trial court and the Court of Appeal. Not only do we find that the remarks about Thompson were false, we find that the record reflects impressively his integrity and good character. Thompson admitted that checks passed to him from Partin as a solicitation for the Baton Rouge Kids' Baseball Clinic, but the remarks contained in St. Amant's publication say much more. Sheriff Bryan Clemmons, Thompson's employer, found it necessary to defend Thompson against the charges contained in the speech. For many citizens called the sheriff for an explanation because they believed that St. Amant had accused Thompson of taking a pay-off from Partin. A neighbor who heard the broadcast told Thompson that "some man" had called him "some kind of thief and all kinds of names." The meaning the controverted remarks convey to the average reader is utterly defamatory of Thompson. Preceded and followed as the remarks about Thompson were by the numerous charges of criminal conduct on the part of Ed Partin, linked as those words were with the sequence of events concerning the theft of union funds and the destruction of the safe, it is difficult to ascribe to the words "We also knew of money that had passed hands between Ed and Herman Thompson * * from Ed to Herman" any meaning except that they charged Thompson with taking a criminal pay-off from Ed Partin. Charging that "we knew we couldn't get any help from there", in the context in which it was used, was a charge that Thompson would aid and abet the wrongdoer rather than perform his duty and enforce the law or otherwise help prevent the commission of a crime. And it is fair to conclude that the defamatory character of these words 260 was in all probability heightened by a dramatic oral presentation. These are statements of fact. They cannot be said to be expressions of opinion or comments within the rule of "fair" comment. 1 Harper & James, Torts § 5.26 and § 5.28 (1956). It is one thing to state an innocent fact; it is another to state it in such a manner that it charges criminal conduct to the average listener and to a significant segment of the community. In the latter instance, the party who utters the words bears the burden of establishing either their truth or some justification sanctioned by law; otherwise he must bear the legal consequence of his indiscretion and the injury suffered by the victim of his remarks. In a civil suit those consequences are damages measured in money. Lewis v. Louisiana Weekly Publishing Co., 189 La. 281, 179 So. 315 (1938). In keeping with this principle, this court in recent years said that: "A mere insinuation is as actionable as a positive assertion, if the meaning is plain; and if the words used, when taken in their ordinary acceptation, convey a degrading imputation, no matter how indirectly, they are libelousit matters not how artfully their meaning is concealed or disguised." Madison v. Bolton, 234 La. 997, 1010, 102 So. 2d 433, 437-438 (1958). The guarantees of freedom of speech and of the press embodied in our state and federal constitutions, though designed to assure broad freedom for the expression of opinion, do not permit unrestrained license or confer the right upon an individual to speak or print whatever he chooses without bearing the responsibility for the utterance. Where the published matter is false, malicious and injurious, full responsibility for the damage it may cause is exacted by the law, unless a proper defense or justification is established. Kennedy v. Item Co., 213 La. 347, 34 So. 2d 886 (1948); Fitzpatrick v. Daily States Publishing Co., 48 La.Ann. 1116, 20 So. 173 (1896). Realizing that these propositions would establish his legal responsibility for false and defamatory utterances, St. Amant asserts that, if we find the remarks to be false, then his defense is that Thompson was a "public official". Thus, he is prohibited from recovering damage for a defamatory falsehood relating to his official conduct, unless he proves the statement was made with "actual malice"that is, with knowledge that it was false or with reckless disregard of whether it was false or not. He relies upon the ruling in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) to support this contention. In the New York Times Case, the United States Supreme Court held that, in a civil action brought by a public official for criticism of his official conduct, the First and Fourteenth Amendments to the Federal Constitution limit state power to an award of damages for a false statement "made with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." See Garrison v. State of Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964). Thus the issue is clearly formed. At this phase of our deliberation we must decide whether Thompson, a deputy sheriff, is a "public official" within the meaning of the rule announced in the New York Times Case. We hold that he is. A deputy sheriff is a state officer whose position is created by the legislature. His appointment is provided for by Title 33, Section 1433, of the Revised Statutes of this State. State v. Mayeux, 228 La. 6, 81 So. 2d 426 (1955); Williams v. Guerre, 182 La. 745, 162 So. 609 (1935). Article 19, Section 1, of the Louisiana Constitution of 1921 requires that all officers of the State shall take the prescribed oath. This constitutional mandate has been implemented by the legislature to require deputy sheriffs to take that oath (La.R.S. 33:1433). The 261 relation between a sheriff and his deputy, then, is an "official" and not a "private" relation. The deputy is a representative of the sheriff in his official capacity; he is a public officer or official whose authority and duty are regulated by law. So far as the public is concerned, the acts of a deputy are the acts of the sheriff himself. However, because Deputy Sheriff Thompson is technically a "public official" under Louisiana law, it does not follow that the rule announced in the New York Times Case applies to this case. The real test is whether the official has, or appears to the public to have, "substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966). See also Bertlesman, Libel and Public Men, 52 A.B.A.J. 657 (1966). The deputy acts for the sheriff, and his acts are the acts of the sheriff. The sheriff's position in government vests him and his deputies with "substantial responsibility for or control of governmental affairs" at least where law enforcement and police functions are concerned. The New York Times rule applies, therefore, to this deputy sheriff. Gilligan v. King, 48 Misc. 2d 212, 264 N.Y.S.2d 309 (1965); cf. Henry v. Collins, 380 U.S. 356, 85 S. Ct. 992, 13 L. Ed. 2d 892 (1965) and Pape v. Time, Inc., 354 F.2d 558 (7th Cir. 1965). It remains, in the light of the conclusions we have already reached, to determine whether the false and defamatory remarks concerning Thompson were uttered by St. Amant with "reckless disregard" of whether they were false or not. The most important witness to the crucial fact in this regard was Marjorie Ann Smith. It was she who testified that, following Partin's instructions, Jeanette Fletcher gave an envelope containing five, twenty-dollar bills to Thompson. Her testimony is relied upon to establish the truth of the statement that "pay-off" money passed from Partin to Thompson or, at least, to relieve St. Amant of any charge that his utterances were in "reckless disregard" of whether they were false or not. Yet the first time St. Amant contacted her to verify this occurrence was after the lawsuit was filed and, of course, long after the political address had been televised and otherwise widely disseminated. Jeanette Fletcher, the only other witness to the occurrence, was not called to testify on this vital issue, and her failure to do so was not explained. Having no personal knowledge of Thompson's activities, St. Amant relied upon Albin's sworn statement to verify the truth of the defamatory matter. Albin, however, did not testify. (St. Amant explained that he was ill and in the hospital.) Nowhere in the record is the reliability or the reputation for truth or veracity of Albin shown. Although St. Amant testified that he had other affidavits to support some of the facts detailed in his address, none were produced. When asked if he gave any consideration to the effect the speech would have on Thompson, he replied that Thompson "wasn't even on my mind." Partin was his main concern; and in his zeal to show a bad character and background in Partin and to link him to his opponent, he gave no consideration whatsoever to Thompson. He was heedless of the effect his address would have on Thompson or of the truthfulness or not of the statements concerning him. St. Amant's testimony indicates that he was laboring under the mistaken impression that because the words concerning Thompson were not in themselves defamatory he could not be involved in what might be implied from those words, such as the charge of criminal conduct which was implicit in them because of the context in which they were used. St. Amant felt he would be shielded from any responsibility because he was quoting Albin. In his own words, "Herman Thompson wasn't even on my mind." It was reckless error for him to take this position. Such a faulty assumption was in utter disregard of whether the remarks about Thompson were true or false. 262 We think the record contains adequate proof of actual malice on the part of St. Amantthat is, a reckless disregard as to whether the statements concerning Thompson were true or not. Although "public men are, as it were, public property",[1] we do not feel that the freedom of "uninhibited, robust, and wide-open"[2] debate on public issues guaranteed by the First Amendment to the Federal constitution can "sensibly be turned into an open season to shoot down the good name of any man who happens to be a public servant."[3] No proof of damages was necessary, and we do not regard the verdict as excessive. For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the trial court is reinstated and made the judgment of this court. McCALEB, J., dissents with written reasons. HAMLIN, J., dissents, being of the view that the result reached by the Court of Appeal is correct. See also Time v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456. McCALEB, Justice (dissenting). I am in disagreement with all factual and legal conclusions of the majority opinion save onethat is, that plaintiff, Thompson, is a public official whose activities come within the rule laid down by the Supreme Court of the United States in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In the first place, it is my view that the evidence in this case clearly discloses that the facts related in the sworn affidavit of J. D. Albin (which affidavit was read by St. Amant on television) are substantially true. Thompson admits in his testimony that he was a good friend of the labor leader, Partin (he called him Ed and Partin called him Herman), and was a rather frequent visitor at the Union Hall. He says that he regularly visited the Hall once a week or every ten days to pass the time of day and talk to the two lady secretaries, also to use the phone and "different things like that". He received contributions from Partin for the Baton Rouge Kids' Baseball Clinic but insists that he was given checks, vehemently denying that any payments were made in cash. At first, he denied that these checks were delivered in envelopes but later admitted that, on one or two occasions, the contribution had been placed in an envelope. He said: "Once or twice there has been an envelope but I never opened it. I would bring it in and give it to Polly".[1] He testified further that he never received anything other than the contributions from Partin and that, when he graduated from 263 the F.B.I. School and had successfully cleared certain burglaries at the Union Hall, Partin sought to reward him by offering him a suit of clothes and a check as a present. However, he says he rejected the offer and reported the matter to the sheriff. It is thus seen from Thompson's testimony that Albin's statement in his affidavitthat "We also knew of money that had passed hands between Ed and Herman Thompson * * * from Ed to Herman" was true unless it be that there is a technically factual difference in payment by check or by cash.[2] True, the affidavit states that "money had passed hands" but in usual parlance the term is broad enough to cover payment by check as well as cash. Yet the majority opinion attaches much significance to the evidence on this score. The opinion relies heavily on the statement of Thompson, an interested witness, and rejects as false and unreliable, the testimony of Mrs. Marjorie Ann Smith, one of the secretaries at the Teamsters' Hall, an apparently disinterested witness, who stated unequivocally that Partin had placed five $20.00 bills (which she saw) in an envelope which was delivered by the other secretary, Jeanette Fletcher, to Thompson under Partin's instructions. For my part, I perceive no valid reason for the rejection of Mrs. Smith's evidence. The deduction that her testimony is unworthy of belief seems to be founded in part on the failure of St. Amant to call Jeanette Fletcher, the other secretary, who Mrs. Smith says also observed the $20.00 bills in the envelope, to corroborate Mrs. Smith's statement. But I know of no law placing such burden on St. Amant. It is not shown that he was acquainted with or had any control over Miss Fletcher who, as the record shows, was acquainted with Thompson and presumably available to him as a witness. Actually, since this phase of the case reduces itself to the affirmative statement of Mrs. Smith that cash was passed and the denial of Thompson that he received cash (the payment being made by check) it is to be wondered why Thompson did not call his friend, Partin, to the stand to verify his statement. Also, he could have called Mrs. Coxe to whom he allegedly delivered all checks from the Teamsters, but no cash, according to Thompson and the sheriff. Moreover, I note that the majority opinion states that "The trial judge and the Court of Appeal rejected the Smith woman's testimony and accepted Thompson's version that no money passed from Partin to him, other than checks representing donations by the union to charitable and civic organizations". I have carefully examined the opinions of the trial judge and the Court of Appeal (see 184 So. 2d 314) and find no ruling by either court rejecting the verity of Mrs. Smith's evidence.[3] But, be this as it may, it makes no essential difference whether the payment was 264 made in cash or by check. In either case the affidavit that money had passed between Partin and Thompson is an admitted fact. The only suggested difference is that Albin, the author of the affidavit, after relating that Partin withdrew money from the Union funds for his own use and later assertedly arranged for the disappearance of the safe containing the Union records (the accuracy of this part of Albin's affidavit is not challenged), expressed the opinion that, because of Partin's connection with a certain State Trooper, there would be no help obtained from the state police office for an investigation of the irregularities and that probably no assistance would come from the sheriff's office, in view of the close relationship between Partin and the plaintiff, Thompson. If Albin was incorrect in this deduction, this, under the New York Times Co. v. Sullivan rule, would not have warranted recovery even as to Albin (who, of course, is not a party defendant in this case) because the First Amendment to the Federal Constitution, which delimits by operation of the 14th Amendment the State's right to award damages for civil libels in matters involving public officials, applies only to those matters in which the injured official proves actual malice, i. e., that the publication is made with knowledge that it is false or in reckless disregard of whether it was false or true. The New York Times rule, as I understand it, authorizes civil libel recovery by public officials for defamatory remarks based on facts known to be false. It does not extend this right of redress to the free expression of opinion, no matter how erroneous, when such conclusion is drawn from true statements of fact. In other words, in view of the fact that the statement that money had passed from Partin to Thompson is true, the circumstance that Albin might have been mistaken, in implying that the money or check was given for Partin's or the Union's protection by the sheriff's office, would not afford a legal ground for holding the publication actionable. For this was fair comment, however erroneous, based on substantially true facts and to hold otherwise, according to the New York Times case, would unconstitutionally trench upon the right of free speech. As was stated in Beauhornais v. People of State of Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919, and many times repeated, " * * public men are, as it were, public property" and, in the absence of actual malice, an action for libel may not be maintained. See also Garrison v. State of Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964) and discussion in Time v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967). What I have heretofore said would apply only if Albin, the author of the affidavit, was the defendant in this case. But this suit is not against Albin but against St. Amant for publishing the alleged libelous affidavit. Insofar as St. Amant is concerned, the case is exactly parallel with the New York Times decision. Surely St. Amant, having secured an affidavit to the facts set forth therein, can hardly be said to have been actuated by malice toward Thompson. Indeed no proof is shown here that St. Amant knew that any fact stated in the affidavit was false or that any conclusion drawn from a true fact stated in the affidavit was false. However the majority opinion, in holding St. Amant liable for damages, deduces that the alleged defamatory remarks concerning Thompson were uttered by St. Amant with "* * * a reckless disregard as to whether the statements concerning Thompson were true or not". In reaching this conclusion the majority feels that St. Amant could not rely on the verity of the statements of fact contained in the affidavit; that it was incumbent on him to make an investigation of the truth of the statements before publication and that his failure to do so renders him liable as he necessarily utters the defamatory statement with reckless disregard of its truth or falsity. This pronouncement effectually implies malice for it places ignorance of 265 falsity on a parity with knowledge of falsity and in the same category with actual malice by holding that failure to make an independent investigation of truth constitutes a reckless disregard of truth or falsity. But this is exactly contrary to the view of the United States Supreme Court in the New York Times case. Under the Times doctrine a qualified privilege extends to misstatements of facts in a publication relating to a public officer if other conditions of a qualified privilege (absence of actual malice) exists. There, it was held that a statement attacking the official conduct of a public officer does not forfeit the protection of the constitutional guaranty of free speech by the falsity of some of its factual statements and by the alleged defamation of the public official or by a combination of these two elements and that a defense must be allowed for erroneous statements honestly made. The court found that actual malice had not been shown on the part of the signers or sponsors of a newspaper advertisement describing the maltreatment in Alabama of negro students protesting segregation, where there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard.[4] With respect to the newspaper, it was held that a statement by its secretary that he thought the advertisement was substantially correct afforded no constitutional warrant for inferring actual malice from his ignoring the falsity of the advertisement, where his opinion was at least a reasonable one, and actual malice on the part of the newspaper was not shown by its failure to retract, upon plaintiff's demand, even though it later retracted upon the demand of the Governor of Alabama. It was found that there was no duty on the part of the newspaper to check the accuracy of the defamatory statement against the news stories in its own files which would have shown its falsity. This dereliction on the part of the newspaper was regarded as mere negligence and constitutionally insufficient to show the recklessness that is required for a finding of actual malice. In the case at bar, the majority opinion places a much greater burden on St. Amantfor the Court implies actual malice, contrary to the New York Times case, by concluding that, because he testified that he gave no thought to Thompson, this " * * was reckless error for him to take this position * * * a faulty assumption * * * in utter disregard of whether the remarks about Thompson were true or false." In my view, St. Amant was justified in regarding the affidavit of Albin to be accurate. Further inquiry was not essential; the most that can be said is that, perhaps, he was negligent but negligence alone will not support a finding of actual malice. The judgment of the Court of Appeal should be affirmed. NOTES [1] Beauharnais v. People of State of Illinois, 343 U.S. 250, n. 18, 72 S. Ct. 725, 96 L. Ed. 919 (1952). [2] New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). [3] Tucker v. Kilgore, 388 S.W.2d 112 (Ky. 1965). [1] Polly, to whom he refers, is Mrs. Coxe, the sheriff's secretary, who, Thompson and the sheriff say, kept the record of the collections made by Thompson (he was specially assigned for this extra curricular activity by the sheriff and he solicited, besides the Teamsters, the Electricians, Carpenters, Pipefitters, United Mine Workers and several other labor unions operating within the Baton Rouge area) in the fund-raising drives for various organizationsBaton Rouge Kids' Baseball Clinic, the Baton Rouge Mothers' March, March of Dimes, Elks' Christmas Fund Baskets, the Eagles Christmas Baskets, Lions Club Light Bulb Sale, the Volunteers of America, Cystic Fibrosis and the Shrine Circus. According to Sheriff Clemmons, it came as no surprise to him that some of the members of the Teamsters' Union (evidently meaning Albin and others) might be aware that Partin was giving Thompson money for some purpose and he further testified that Thompson had received cash as well as checks in his solicitation activities from other sources but not from Partin. [2] Indeed, Thompson indicates that he did not know whether the payments enclosed in envelopes were made by check or cash, for he testified in rebuttal that, when the payment was in an envelope, "* * * I just brought the envelope in and gave it to Polly and didn't bother to open it." [3] The trial judge rested his original opinion on the predicate that the affidavit of Albin was libelous per se. His only reference to Mrs. Smith's testimony is that she stated that money "* * * was left in an envelope from Mr. Partin to Mr. Thompson and that he picked up the same." As to this, the judge ruled, in effect, that it was immaterial whether the payments were made in cash or by check since all money paid was received "* * * purely in connection with drives put on by some charitable institution * * *"; as avouched by the sheriff and Thompson. The Court of Appeal recited the substance of Mrs. Smith's testimony but made no finding as to her credibility. Indeed, such a finding would have been superfluous, in view of the court's conclusion that Thompson could not recover under the rulings in the New York Times and Garrison cases. [4] This holding clearly supports the view I have above stated with regard to the author of the affidavit.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897873/	NO. 07-07-0356-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JANUARY 11, 2008 ______________________________ IN THE INTEREST OF J.X.P. AND D.M., CHILDREN _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 98-503,708; HONORABLE CECIL G. PURYEAR, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Elana Sneed, filed this accelerated appeal to challenge the trial court’s order terminating her parental rights to her children J.X.P. and D.M and appointing the Texas Department of Family and Protective Services (DFPS) as permanent sole managing conservator. Presenting a sole issue, Sneed maintains the trial court abused its discretion and committed reversible error when it denied her Motion for Continuance of the final hearing and/or denied her Motion for New Trial when final disposition resulted in termination of her parental rights. We affirm. An appeal of a final order rendered under subchapter E of chapter 263 of the Texas Family Code is governed by the rules of the Supreme Court for accelerated appeals in civil cases and by the procedures set forth in that chapter. A final order terminating the relationship between a parent and child and appointing DFPS as permanent managing conservator is an order rendered under subchapter E of chapter 263. Therefore, the accelerated appeal of the order in this case is governed by the procedures set forth in Chapter 263. Chapter 263 of the Texas Family Code requires a party intending to appeal a final order rendered under subchapter E to file with the trial court, no later than fifteen days after the final order is signed, a statement of points on which the party intends to appeal. The statement of points may be filed separately or it may be combined with a motion for new trial. The failure to timely file a statement of points does not deprive the appellate court of jurisdiction over the appeal; however, it is necessary to preserve a point for review on appeal. In 2005, in response to what it perceived as judicial activism, the Texas Legislature enacted § 263.405(i), effective for appeals filed after September 1, 2005, which provides: The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal. While several of our sister courts have questioned the practical application and constitutional validity of this statute, every appellate court called upon to address this question has agreed that the clear language of the statute prohibits appellate courts from considering points not properly preserved by the timely filing of a statement of points. We are cognizant that the natural right existing between a parent and child is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We are also aware that the application of this statutory limitation to the right of appeal can have harsh results. In re R.C., No. 07-06-0444-CV, 2007 WL 1219046, at *1 (Tex.App.–Amarillo, April 25, 2007, no pet.). Nevertheless, we do not believe that it is an appropriate function of this Court to create a means of recourse by fabricating an interpretation that would expand the legislatively created procedures for perfection of a statutorily-created right of appeal. It is the duty of this Court to administer the law as it is written, and not to make the law. To do so would amount to blatant legislating from the bench. The final order in this case was signed on July 24, 2007. Sneed’s trial counsel filed a motion for new trial; however, no statement of points was included in that motion. The deadline in which to file a timely statement of points was August 8, 2007. Sneed’s failure to file a statement of points prohibits this Court from considering her issue that the trial court abused its discretion in denying her Motion for Continuance and her Motion for New Trial. Accordingly, the trial court’s order is affirmed. Patrick A. Pirtle Justice	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2608455/	432 P.2d 267 (1967) 78 N.M. App. 423 William R. JOHNSON, Plaintiff-Appellee, v. C & H CONSTRUCTION COMPANY and Great American Insurance Company, Defendants-Appellants. No. 33. Court of Appeals of New Mexico. August 11, 1967. 268 J.E. Casados, Toulouse, Ruud, Gallagher & Walters, Albuquerque, for appellants. John J. Duhigg, Sheehan & Duhigg, Albuquerque, for appellee. OPINION WOOD, Judge. Was the judgment in this workmen's compensation case appealable? This issue is raised by motion of plaintiff filed 269 after defendant's appeal was submitted on the merits. Since the motion presents a jurisdictional question, it is properly before us. Jurisdictional questions may be raised at any time. Foster v. Addington, 48 N.M. 212, 148 P.2d 373 (1944); see Baca v. Perea, 25 N.M. 442, 184 P. 482 (1919); Griffin v. Jones, 25 N.M. 603, 186 P. 119 (1919); DesGeorges v. Grainger, 76 N.M. 52, 412 P.2d 6 (1966). Judgments in workmen's compensation cases must be drawn to carry out the purposes of our Workmen's Compensation Act. Section 59-10-16, N.M.S.A. 1953. Under the provisions of the Workmen's Compensation Act, there may be more than one judgment or order on issues under the act. As examples, see §§ 59-10-18.7(F), 59-10-19.1 and 59-10-25, N.M.S.A. 1953. Yet, under § 59-10-16.1, N.M.S.A. 1953, appellate review is limited to a final order or judgment. A judgment or order is not final unless all the issues of law and of fact necessary to be determined, were determined, and the case completely disposed of so far as the court has power to dispose of it. Floyd v. Towndrow, 48 N.M. 444, 152 P.2d 391 (1944); Hall v. Lea County Elec. Coop., 76 N.M. 229, 414 P.2d 211 (1966). In determining whether there is a final judgment or order, we look to the substance and not the form of the judgment or order. Rio Arriba County Bd. of Education v. Martinez, 74 N.M. 674, 397 P.2d 471 (1964). Thus, the final order or judgment under § 56-10-16.1, N.M.S.A. 1953, means an order or judgment in the current proceeding that determines the issues of law and of fact necessary to be determined in that proceeding. The current proceeding must have been completely disposed of so far as the court has power to dispose of it. Barry v. Wallace J. Wilck, Inc., 61 N.J. Super. 299, 160 A.2d 676 (1960). The pleadings raise issues concerning disability, medical and surgical benefits and attorney fees. The judgment awards compensation for temporary total disability for a fixed period of time. It directs the defendants to pay certain surgical benefits if plaintiff elects to accept the surgery. If the surgery is accepted, plaintiff is to receive an additional period of temporary total compensation. We do not base our decision on these aspects of the judgment. Apart from the temporary total compensation and surgical benefits, the judgment provides: "* * * [F]urther determination in this matter will be deferred until this matter shall again come before the court upon appropriate motion of either party." The judgment does not dispose of the issue of disability. If plaintiff has surgery, the judgment provides that plaintiff may "* * * further petition this court for an award of disability * * " at the end of the temporary total compensation to be paid in connection with the surgery. If plaintiff does not have surgery, the judgment provides " * * that, by appropriate motion, a final order will be entered herein." A conclusion of the trial court states that if plaintiff doesn't arrange for the recommended surgery "* * * then the Court will find that * * * no permanent disability exists * * ." This conclusion is not carried forward into the judgment and has no effect. Treadwell v. Henderson, 58 N.M. 230, 269 P.2d 1108 (1954). The judgment does not dispose of the issue of attorney fees under § 59-10-23(D), N.M.S.A. 1953. It defers this question until further proceedings are held. The issues of disability and attorney fees were before the court in this proceeding. Since these issues have not been determined, this proceeding has not been disposed of so far as the court had power to dispose of it. Since further judicial action is essential, there is no final judgment or order as to this proceeding. Rio Arriba 270 County Bd. of Education v. Martinez, supra; see Barry v. Wallace J. Wilck, Inc., supra; Armour & Co. v. Moore, 206 Okl. 72, 240 P.2d 1113 (1951); Lind v. Lind, 142 Mont. 211, 383 P.2d 808 (1963). Section 21-2-1(5) (2), N.M.S.A. 1953, authorizes appeals, in civil actions, from interlocutory decisions that practically dispose of the merits of the action, so that any further proceeding would be only to carry into effect such interlocutory decisions. We do not decide whether there may be an appeal from such an interlocutory decision in a workmen's compensation case. See §§ 21-2-1(5), (6) and 21-10-5, N.M.S.A. 1953; compare § 59-10-16.1, N.M.S.A. 1953. Assuming that such an interlocutory appeal is authorized, the judgment in this case is not such an interlocutory decision. Neither the issue of disability nor of attorney fees have been disposed of on the merits. The judgment is not appealable. The appeal is dismissed. It is so ordered. HENSLEY, Jr., C.J., and OMAN, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1329906/	123 Ga. App. 794 (1971) 182 S.E.2d 484 CITIES SERVICE OIL COMPANY v. CRONAN. 45967. Court of Appeals of Georgia. Submitted February 3, 1971. Decided May 18, 1971. Grizzard, Jones, Parker & Simons, Richard L. Parker, for appellant. HALL, Presiding Judge. In an action on an account brought in the Civil Court of Fulton County, plaintiff appeals from the denial of its motion to dismiss the defendant's counterclaim. The court certified the order for immediate review. The counterclaim is based on an alleged tortious act and seeks recovery for property damage. Plaintiff contends the Civil Court has no jurisdiction to entertain the counterclaim. It cites cases which held that such a setoff of claims could only be done in equity, and asserts (correctly) that the Civil Court has no equitable jurisdiction. However, the cited cases were decided before the enactment of the Civil Practice Act which allows the broadest assertion of counterclaims. Code Ann. § 81A-113. The Civil Court has jurisdiction in property damage actions. Southeastern Fair Assn. v. Ford, 64 Ga. App. 871 (14 SE2d 139). It follows that under the Civil Practice Act, it also has jurisdiction where these actions are raised as counterclaims. Judgment affirmed. Eberhardt and Whitman, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875574/	288 Wis.2d 460 (2005) 706 N.W.2d 702 2005 WI App 254 CODY v. WEYGANDT. No. 2004AP002973. Court of Appeals of Wisconsin. October 27, 2005. Unpublished Opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1000437/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-2438 SARAH RAY WILLIAMS, Plaintiff - Appellant, versus GREENVILLE COUNTY, School District; BRENDA TURNER; SUSAN B. HILL, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (CA-99-2282-6-20AK) Submitted: December 16, 1999 Decided: December 21, 1999 Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir- cuit Judge. Affirmed by unpublished per curiam opinion. Sarah Ray Williams, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Sarah Ray Williams appeals the district court’s order adopting a magistrate judge’s report and recommendation to dismiss her em- ployment action. Because Williams did not file specific objections to the magistrate judge’s report and recommendation, the district court did not err in adopting the magistrate judge’s recommendation to dismiss her claim as barred by res judicata. See Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Accordingly, we affirm the judgment of the district court. See Williams v. Greenville Co., No. CA-99-2282-6-20AK (D.S.C. Sept. 23, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608476/	432 P.2d 265 (1967) 78 N.M. App. 421 STATE of New Mexico, Plaintiff-Appellee, v. John L. LEE, Defendant-Appellant. No. 52. Court of Appeals of New Mexico. September 22, 1967. 266 Jay Morgan, Portales, for appellant. Boston E. Witt, Atty. Gen., Gary O'Dowd, Asst. Atty. Gen., for appellee. OPINION HENSLEY, Jr., Chief Judge. John L. Lee was charged with having violated the "Worthless Check Act", appearing as Sections 40-49-1 through 40-49-9, N.M.S.A. 1953. Following a verdict of guilty and the pronouncement of sentence this appeal was launched. The single point relied upon for reversal is that the evidence presented against the appellant was not sufficient to support a conviction. Examination of the record in this case fails to disclose a motion for a directed verdict of not guilty either at the close of the State's case, or at the close of all of the evidence. Under such circumstances the appellant cannot demand a review of the evidence in this case as a matter of right. State v. Hunter, 37 N.M. 382, 24 P.2d 251. Rule 20(1) (§ 21-2-1(20) (1), N.M.S.A. 1953). In State v. Garcia, 19 N.M. 414, 143 P. 1012, State v. Taylor, 32 N.M. 163, 252 P. 984, and in State v. Nuttall, 51 N.M. 196, 181 P.2d 808, it was held that where the question of the sufficiency of the evidence was not raised in the trial court it would not be considered for the first time on appeal, but the question of fundamental error could be raised initally on appeal. Accordingly, we have examined the evidence to determine if fundamental error was committed in submitting the case to the jury, or in allowing the verdict to stand. In the trial court the appellant offered two defenses. First, it was contended that the manager of the payee-store was instructed to hold the check for a few days; and second, that the appellant was forced by another who was "bigger and tougher" to write and cash the check under the threat of bodily harm. The evidence is undisputed that the appellant entered the store alone and after furnishing identification cashed the $25.00 check. The check was drawn on a Texas bank. The appellant at no time had an account in or credit with the bank. (This was prima facie evidence of an intent to defraud under § 40-49-7(A), N.M.S.A. 1953 (Supp. 1965).) At the time of cashing the check the cashier of the payee-store requested the address of the appellant. The address supplied by the appellant was in a town other than the city of his true residence. The appellant testified that he requested the manager of the store to hold the check. The employees of the store denied knowledge of such request, and testified that the only instruction from the manager was to cash the check. The testimony offered by the appellant relative to a request that the check be held for a few days is relied upon to negate intent to defraud. In passing upon the question of 267 intent the jury was properly instructed that it could take into consideration all of the facts and circumstances proved on the trial of the case. A consideration of all of the circumstances surrounding the transaction leads us to conclude that a finding of intent to defraud was supported by the evidence. See Frear v. Roberts, 51 N.M. 137, 179 P.2d 998; Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A. 1916 B, 862. The second defense, that of compulsion or duress has never heretofore been treated in this jurisdiction. In Castle v. United States, 120 U.S.App.D.C. 398, 347 F.2d 492, it was stated that, "An act committed under compulsion, such as apprehension of serious and immediate bodily harm, is involuntary and, therefore, not criminal." The annotator in 40 A.L.R. 2d 908, 910, summarized as follows: "It has been stated generally that in order to constitute a defense to a criminal charge other than taking the life of an innocent person, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done." Also in 1 Wharton's Criminal Law and Procedure § 123, we find this statement: "The defense of duress is not established by proof that the defendant had been threatened with violence at some prior time, if he was not under any personal constraint at the time of the actual commission of the crime charged." The appellant testified that the party who had forced him to write the check under the threat of physical violence earlier in the day was present in the store at the time the check was written and cashed. The employees of the store testified that the appellant came into the store alone and that there was no companion with him in the store. The defense of compulsion in this case falls short of the requirements heretofore noted. The verdict was substantially supported by the testimony of the State's witnesses. No fundamental error has been shown. The judgment and sentence will be affirmed. It is so ordered. OMAN and WOOD, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608486/	432 P.2d 117 (1967) ALASKA STATE HOUSING AUTHORITY, Appellant, v. John CONTENTO, Jr., et al., Appellees. John CONTENTO, Jr., and Eleanor Contento, Appellants, v. ALASKA STATE HOUSING AUTHORITY, Appellee. Nos. 729, 745. Supreme Court of Alaska. October 2, 1967. 118 Allen L. Jewell and Martin A. Farrell, Jr., Anchorage, for appellant and appellee, Alaska State Housing Authority. Robert A. Parrish, Fairbanks, for cross-appellants and appellees John Contento, Jr. and Eleanor Contento. Before NESBETT, Chief Justice, DIMOND, Associate Justice, and SANDERS, Superior Court Judge. NESBETT, Chief Justice. The appellees John and Eleanor Contento were the owners of the Family Shoe Store, located in a building in Fairbanks which had been purchased by appellant Alaska State Housing Authority in connection with its downtown urban renewal project. According to appellant's testimony, the appellees were dilatory in removing their merchandise from the premises, and because of this appellant's demolition contractor was in the process of demolishing one portion of the building while appellees were still engaged in moving their merchandise to new premises next door. Strained relations existed between the parties and continued to the time of trial. We shall consider first the issue raised in appeal file number 729. In this suit by the appellees to recover $19,000 as the cost of relocating their business, the jury was instructed by the court to find for the appellees in such amount as it "shall find was reasonably expended by plaintiffs (appellees) in relocating their business." Appellant objected to this instruction, contending that 42 U.S.C. § 1456(f) (2) (1958) limited the amount which could be paid to a maximum of $3,000. The jury returned a verdict for $7,000. The single question raised by Alaska State Housing Authority's appeal is whether the trial court erred in instructing the jury that appellee could be awarded the amount "reasonably expended" by him in relocating his shoe store without at the same time instructing that the amount awarded could not in any event exceed $3,000. Determination of the question must turn on a construction of certain provisions of Title I of the Housing Act of 1949 as amended, pertaining to slum clearance and urban renewal, when read in relation to certain provisions of Alaska's urban renewal statutes. A part of the congressional policy declared in the Housing Act of 1949 was that of "the elimination of sub-standard and other inadequate housing through the clearance of slums and blighted areas", to be accomplished insofar as possible by private enterprise assisted by the government and, as stated in the act, "appropriate local public bodies shall be encouraged and assisted to undertake positive programs of encouraging and assisting the development of well-planned, integrated residential neighborhoods, the development and redevelopment of communities".[1] No specific provision was made in the original act for the making of relocation payments, although Section 105(c) of Title I did provide that contracts (with governmental units participating in an urban renewal project) should require that "[t]here be a feasible method for the temporary relocation of families displaced from the project areas * ".[2] 119 Subsequent to enactment of the Housing Act of 1949 the Alaska Legislature in 1951 enacted its Slum Clearance and Redevelopment Law[3] which stated in part that it was the legislature's intent "to take full advantage of title 1 of the Housing Act of 1949".[4] The issue, as briefed by appellant, centers around the wording contained in subsection 1456(f) (2) of the Housing Act of 1949. That section generally defines the powers and duties of the federal administrator and provides for the budget and maintenance of accounts and the audit of accounts. As of May 1, 1961, when the facts of this case arose, subsection (f) (2) provided that business relocation payments shall not exceed $3,000.[5] On the other hand, AS 18.55.520, the Alaska statute which defined the powers and duties of the Alaska Housing Authority, stated in subsection (H) (8) that one of its duties should be: to prepare plans and provide reasonable assistance for the relocation of families displaced from a redevelopment project area * * . (Emphasis added.) Appellant's argument is that the federal act is national in scope and where it speaks on the issue of business relocation allowances it should control because the Alaska act was enacted to take full advantage of the federal act and makes no specific provision for paying business relocation costs. In support of its argument appellant ASHA cites 42 U.S.C. § 1443 which provides that the federal act should control over inconsistent provisions in state acts,[6] and refers to the several restrictive conditions imposed as conditions to federal participation contained in sections 1451 and 1453. However, appellant seems to rely principally upon the fact that because the federal act provides for proportional federal and state financial participation, with the one exception: that being section 1456 (f)(1) providing that the state was not required to provide any part of any amount allowed as a relocation payment, the federal act should control because it provided in 1456(f) (2) that the maximum amount allowable for relocation of a business should be $3,000. Appellee has not filed a brief responding to the above issue. Appellant's supplemental brief is incomplete and of limited usefulness since it has not cited and given the court the benefit of discussion of all amendments to the Housing Act of 1949. In order to place the issue in full perspective all pertinent amendments of the Housing Act of 1949 will first be reviewed. As has been mentioned, the original act made no provision for any relocation payments although Section 105(c) of Title I required that contracts provide a feasible method for the temporary relocation of families.[7] In 1954 the act was amended to provide that the Administrator had the final authority to determine whether the relocation requirements of Section 105(c) of Title I had been met and that this authority could not be delegated or transferred to any other official.[8] In 1956 Congress added subsection (f) to Section 1456 of Title 42 United States Code which provided in (f) (1) for the first time that relocation payments could be made and that no part of the amount of such relocation payments was required to be contributed by the participating local 120 governmental unit.[9] Subsection (f) (2) stated in part that the payments: shall not exceed $100 in the case of an individual or family, or $2,000 in the case of a business concern. In 1957 subsection (f) (2) was amended to provide that relocation payments: shall not exceed $100 in the case of an individual or family, or $2,500 in the case of a business concern.[10] In 1959 subsection (f) (2) was again amended to increase the maximum relocation payments permissible to families and individuals to $200 and for business concerns to $3,000.[11] According to the appellant, the limitation of $3,000 established by this amendment is the maximum to which appellee John Contento was entitled. In 1961 subsection (f) (2) was amended to state in pertinent part that: Such payments * * * shall not exceed $200 in the case of an individual or family, or $3,000 (or, if greater, the total certified actual moving expenses) in the case of a business concern or nonprofit organization.[12] In 1964 subsection (f) was repealed and section 114 was added, which stated in part: (b) A local public agency may pay to any displaced business concern or nonprofit organization (1) its reasonable and necessary moving expenses and any actual direct losses of property except goodwill or profit (which are incurred on and after August 7, 1956, and for which reimbursement or compensation is not otherwise made): Provided, That such payment shall not exceed $3,000 (or, if greater, the total certified actual moving expenses) * * .[13] The same 1964 amendment enacted section 310(b) which stated: Any contract with a local public agency which was executed under title I of the Housing Act of 1949 before the date of the enactment of this Act [the act of Sept. 2, 1964] may be amended to provide for payments authorized by section 114 of the Housing Act of 1949. [i.e., Section 310(a) of Public Law 88-560][14] The above amendment was not mentioned in appellant's brief. We do not know whether it has an application to this case, although it would appear to have. For this reason we shall remand the case to the trial court for disposition under the provisions of the 1964 amendment, if that amendment has any application. In the event the 1964 amendment is found by the trial court to have no application, and in order to permit the case to be disposed of on remand, we shall decide now the question of whether AS 18.55.520 was intended to provide for the payment of any compensation for the relocation of businesses. We hold that it was not. When enacted in 1951 the Alaska Slum Clearance and Redevelopment Law was intended to harmonize with and "take full advantage" of the federal Housing Act of 1949.[15] As of 1951 the federal act made no provision for the compensation of displaced families or businesses. All it required was that urban 121 renewal contracts provide "a feasible method for the temporary relocation of families". Since the federal act made no provision for compensation, there is every reason not to construe the phrase "reasonable assistance" in the Alaska act as being anything more than a requirement that the Alaska Housing Authority also render reasonable assistance to families requiring relocation, as it would have been required to do in any event by the terms of each urban renewal contract because of the before-mentioned federal provision.[16] It was not until 1956 that the federal act provided for relocation payments.[17] It is noteworthy that the compensation provissions were newly added sections and that the previously mentioned requirements of section 105(c) that all urban renewal contracts provide a feasible method for the temporary relocation of families was retained. No amendment was made to the Alaska act to correspond with the 1956 federal amendment, or any of the subsequent amendments, providing for monetary compensation. Further, the Alaska act provided for reasonable assistance to "families". No mention was made of businesses. When the federal act was eventually amended to permit compensation, it specifically named families and businesses as the recipients. It was error, therefore, for the court to have instructed the jury as it did.[18] We shall now consider certain issues raised by the appellants Contento in case file No. 745. It is alleged that the trial court erred in denying appellants' motion for summary judgment. In support of their motion appellants alleged that no genuine issue of fact existed with respect to forty-seven statements of fact and law which were set out in full in the memorandum. In a memorandum in opposition to the motion appellee denied, in whole or in part, approximately thirty-five of the forty-seven statements. In denying the motion the trial court specifically set out four facts which it found to be in dispute. Appellants then petitioned this court for review of the trial court's order denying summary judgment. The petition was denied by this court without opinion. In Ransom v. Haner[19] this court said: The purpose of summary judgment, authorized by Rule 56, Federal Rules of Civil Procedure, is to allow the court to dispose summarily of a case where the the pleadings, depositions and admissions on file, together with the affidavits, 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. Its purpose is not to cut off litigants from their right to trial by jury on genuine issues of fact. Even though there may be considerable doubt as to the existence of a claim or defense, if it appears to be in good faith the party asserting it is entitled to a trial and an opportunity to examine the case or defense of his adversary in the usual course. (Footnotes omitted.) Our review of the record convinces us that the trial court did not err in denying appellants' motion for summary judgment because there were genuine issues of fact to be resolved. We shall not at this time pass upon appellee's contention that the 122 denial of the motion for summary judgment was a non-appealable order.[20] Appellants next contend that the trial court erred and abused its discretion in failing to make specific findings of fact in denying their motion for summary judgment. In Palzer v. Serv-U-Meat Co.[21] this court stated: Our Civ. R. 52(a) specifically provides in part that: `Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).' Decisions which have construed the federal counterparts of our Civ. R. 52 and Civ. R. 56 hold that no findings of fact are necessary in ruling on motions for summary judgment. We conclude that in disposing of motions for summary judgment under our rules of civil procedure no findings of fact are required of the trial court. And we specifically hold that in granting summary judgment it is unnecessary for the trial court to make findings in regard to the lack of any genuine issues of material fact to be litigated. (Footnotes omitted.) The trial court did not err in not making findings of fact in connection with its order denying appellants' motion for summary judgment. Appellants' next point is that the trial court erred in refusing to grant appellants' motion that the jurors be permitted to maintain notebooks during the trial. Appellants argue that the issues of liability and damages were so complex that the jury could not have remembered all the dates and important figures. We hold that a trial court may, in its discretion, permit jurors to take written notes during trial. Under the facts of this case it does not appear that appellants' case was prejudiced by the trial court's order refusing to permit the taking of notes. Appellants' exhibits were available to the jury and consisted in part of thirty-eight pages of appellants' bills for expenses incurred in relocating their store, a list of appellants' leasehold improvement expenses for the years 1945-1960, a list of appellants' moving costs and a document entitled "Goodwill Computation". Appellants have not pointed out wherein they were prejudiced. We have found no prejudice and hold that the trial court did not abuse its discretion in refusing to permit the taking of notes. Appellants' next point is that the trial court erred in giving instruction No. 8 which stated: 8. It has been decided by the Court that the Family Shoe Store was lawfully in the premises on May 1, 1961 under a month-to-month tenancy. Under such a tenancy, 30 days notice to vacate is required. It has been found by the Court that the Notice to Quit dated April 29, 1961, delivered by the defendant to the plaintiffs was a valid notice, terminating plaintiffs' tenancy on May 31, 1961. The plaintiffs had no tenancy rights in the Sig Wold Building at 310 Cushman Street after May 31, 1961. Appellant excepted to the giving of the instruction on the ground that there was evidence in the case upon which the jury could have found a hold-over tenancy of not less than one year. Appellants have not pointed out to the court the nature of the evidence which would have permitted a jury to find a hold-over tenancy of not less than one year or its location in the record. The testimony of John Contento, Jr., and his then landlord Sig Wold has 123 been examined with some care. Prior to 1956 appellants had occupied the premises under two successive five-year leases containing options to renew. After January 1, 1956, appellants were offered only a three-year "exhibition" lease with changed terms. Appellants never signed this lease and continued to pay rent on a monthly basis thereafter. No other lease was ever executed. The testimony of Sig Wold was emphatic that appellants had refused to sign the proffered three-year lease and that thereafter appellants could have vacated the premises at any time by giving 30 days notice. The most that can be said for John Contento's testimony is that he may have thought that the facts amounted to an execution of an option of renewal for five years. The facts, however, were not disputed and the legal effect to be given to them was a question of law for the court to determine under the circumstances. We find no error in the trial court's determination that a month-to-month tenancy at will existed.[22] Appellants next contend that the trial court erred in refusing to give appellants' requested instruction No. 4 which would have instructed the jury that some forty-four statements of fact contained in the instruction were admitted or uncontradicted. The basis for appellants' exception was that the appellee had not denied the statements. The record in this case contains over 1300 pages plus exhibits. Appellants do not cite the court to any specific portion of the record to substantiate their argument that all the statements contained in requested instruction No. 4, some of which were in fact statements of law, were admitted by appellee. Under the circumstances and in view of the fact that appellants have ignored the requirements of Supreme Court Rule 11(a) (8) which requires that argument in the brief be referenced to pages of the record, we shall not attempt to consider this point on appeal.[23] For the above reason and for the additional reason that appellants have not seen fit to devote more than a few sentences of inadequate argument, or no argument at all, to each point, appellants' specifications of error Nos. 6, 7 and 8 will not be considered. The judgment below is set aside and the case is remanded to the trial court for further proceedings consistent with the views expressed herein. In the event amendments to the Housing Act of 1949 enacted subsequent to May of 1961, are found to be inapplicable to this case, the trial court shall proceed to determine which of the appellants' claimed relocation expenses are allowable under the provisions of the Housing Act of 1949 as of May 1961 and regulations promulgated thereunder, not to exceed the maximum of $3,000 provided for in the Act; and enter judgment in favor of the appellants Contento therefore. NOTES [1] 42 U.S.C. § 1441, 63 Stat. 413 (1949). [2] Act of July 15, 1949, ch. 338, § 105(c), 63 Stat. 417 (1949). [3] SLA 1951, ch. 105; now contained in AS 18.55.010 et seq. [4] SLA 1951, ch. 105, § 23; now AS 18.55.490. [5] Note 11 infra. [6] 42 U.S.C. § 1443 (1964) states: Insofar as the provisions of any other law are inconsistent with the provisions of this Act, the provisions of this Act shall be controlling. [7] See page 3 supra. [8] Act of Aug. 2, 1954, ch. 649, § 101(c), 68 Stat. 623 (1954). [9] Act of Aug. 7, 1956, ch. 1029, § 305, 70 Stat. 1100 (1956). [10] Act of July 12, 1957, Pub.L.No. 85-104, § 304, 71 Stat. 300 (1957). [11] Act of Sept. 23, 1959, Pub.L.No. 86-372, § 409, 73 Stat. 674 (1959). The pertinent portion of 42 U.S.C. § 1456(f) (2) then stated: Such payments * * * shall not exceed $200 in the case of an individual or family, or $3,000 in the case of a business concern. [12] Act of June 30, 1961, Pub.L.No. 87-70, § 304, 75 Stat. 167 (1961). This amendment was cited by appellant. Since its effective date was subsequent to the occurrence of the facts herein, it was not proposed by appellant that it had a controlling effect. [13] Act of Sept. 2, 1964, Pub.L.No. 88-560, § 310(a), 78 Stat. 788 (1964). [14] Act of Sept. 2, 1964, Pub.L.No. 88-560, § 310(b), 78 Stat. 790 (1964). [15] SLA 1951, ch. 105, § 23. [16] Relocation assistance may take many forms aside from direct financial assistance as, for example, the giving of priority in public housing, the erection of new public housing facilities, assistance in locating housing vacancies and encouraging private capital to construct new facilities. See Urban Renewal: Problems of Eliminating and Preventing Urban Deterioration, 72 Harvard Law Review 504, at 532 (1959). [17] Supra note 9. [18] See page 118 supra. [19] 362 P.2d 282, 289 (Alaska 1961). [20] See Heron v. City and County of Denver, 317 F.2d 309 (10th Cir.1963); 6 Moore's Federal Practice, para. 56.20 [2], at 2745 (2d ed. 1965). [21] 419 P.2d 201, 205 (Alaska 1966). [22] See AS 34.05.020 which states: Termination of estates at will or by sufferance. An estate at will or by sufferance may be ended by either party, by three months' notice in writing given to the other party. When the rent reserved in a lease at will is payable at periods of less than three months the time of notice is sufficient if it is equal to the interval between the times of payment. Hill v. Dale, 13 Alaska 690 (1952); Sellers v. Harvey, 11 Alaska 100 (1946). [23] Merrill v. Merrill, 388 P.2d 259, 261 (Alaska 1964); Thomson v. Wheeler Construction Co., 385 P.2d 111, 114 (Alaska 1963); Gregory v. Padilla, 379 P.2d 951, 954-955 (Alaska 1963).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608488/	72 Wn.2d 172 (1967) 432 P.2d 547 ROBERT WISE PLUMBING & HEATING, INC., Plaintiff, v. ALPINE DEVELOPMENT COMPANY, INC., et al., Defendants, SUTHERLAN FIXTURE COMPANY, Respondent, SECURITIES MORTGAGE COMPANY, Appellant.[] No. 38556. The Supreme Court of Washington, Department Two. October 13, 1967. Monheimer, Schermer, Van Fredenberg & Smith, J. Dimmit Smith, and David D. Hoff, for appellant. Murray, Scott, McGavick & Graves, E.M. Murray, and Robert L. Beale, for respondent. HAMILTON, J. The defendant, Alpine Development Company, Inc., hereafter referred to as Alpine, as owner, developer and general contractor, proposed to construct a 48-unit prefabricated apartment building in the vicinity of the Tacoma Mall in Pierce County, Washington. To accomplish this objective, it sought and obtained approval of a construction loan in the amount of $350,000 from appellant, Securities Mortgage Company, hereafter referred to as Securities. The loan documents, consisting of the application, the mortgage, and a promissory note, were executed in late 1962 and provided that funds would be advanced as construction progressed, subject to Securities' control and approval. Approximately $70,000 was disbursed in November, 1962, consisting of a $50,000 advance to Alpine and the payment of various initial expenses. Alpine then commenced negotiations with respondent, Sutherlan Fixture Company, hereafter referred to as Sutherlan, to fabricate and deliver integral structural components of the apartment building. The negotiations culminated in an agreed price for the work in the amount of 174 $109,300.25. Sutherlan, however, would not enter into a firm contract without an assignment of construction loan funds to insure payment. As a result, a document entitled "Assignment of Funds" was executed by Alpine on January 25, 1963, and accepted by Securities on January 30, 1963. This document reads as follows: ASSIGNMENT OF FUNDS January 25, 1963. Securities Mortgage, Inc. Securities Building Seattle, Washington RE: Alpine Village 42nd and Prospect Gentlemen: You are hereby authorized to remit directly the sum of $89,300.25 to Sutherlan Fixture Company, Tacoma, Washington, from the proceeds due the undersigned on the construction of the above captioned unit. This assignment shall be irrevocable by the undersigned. ALPINE DEVELOPMENT COMPANY, INC. /s/ James R. Wornstaff James R. Wornstaff President This assignment accepted this January 30th, 1963, subject to our controlling the funds in sufficient amount to cover and subject to closing conditions. SECURITIES MORTGAGE, INC. By /s/ R.M. Maloney Vice-President DATE: January 30, 1963 On January 31, 1963, Securities issued an advance in the sum of $20,000 in the form of a check made payable to Alpine and Sutherlan as joint payees. Thereafter, on February 8, 1963, Sutherlan received the assignment document and executed a written contract with Alpine to perform the agreed upon prefabrication work. The contract acknowledged receipt of $20,000 as a down payment, but made no mention of any assignment of funds. The $20,000 check issued by Securities was endorsed by Sutherlan and returned 175 to Alpine for payment to the project engineer in satisfaction of past engineering services performed for Sutherlan. Sutherlan started prefabrication work immediately and commenced delivery to the project site in July, 1963. Thereafter, and on August 16, 1963, Sutherlan submitted to Alpine an application for a progress payment in the amount of $56,729, on the basis of 78 per cent of the work having been performed. Payment was not forthcoming, and on September 16, 1963, Sutherlan submitted a second application to Alpine for a progress payment in the total sum of $64,599 predicated upon 86 per cent completion. When payment upon this request was not made, Sutherlan ceased deliveries. During the interval between January 31, 1963, and August 29, 1963, Securities advanced directly to Alpine on the construction loan sums totaling $170,500. These advances, when added to prior advances and cast against the actual progress of construction, exceeded the optional advancement schedule set forth in the loan agreement and overrode an optional retained percentage provision. Securities then, on or about August 29, 1963, discovered that Alpine was not paying the construction accounts. Advances were halted and Securities undertook partial completion of the building. These steps were taken by Securities upon the strength of provisions in the loan agreement whereby Securities was in control of all advances and could assume completion of construction in the event of Alpine's default. In the first part of November, 1963, Sutherlan made demands on Securities for payment of its progress applications upon the basis of the assignment document. Whether copies of Sutherlan's August and September progress payment applications had been originally forwarded to Securities is in dispute Securities contending the November demand constituted its first notice of any work by or payments due Sutherlan. Securities did not honor Sutherlan's demands. Instead, Securities devoted the remainder of the $350,000 construction loan fund (then approximately $90,000) 176 toward the partial completion and conservation of the apartment building. Sutherlan, after commencement of this suit and by stipulation of the parties, furnished $9,709.61 worth of fabricated materials toward preservation and improvement of the building, for which it was paid. Nevertheless, after obtaining credit commitments in the amount of $12,709.71 from suppliers for returnable items, Sutherlan still had sundry undelivered fabricated materials on hand. In June, 1964, the plaintiff, Robert Wise Plumbing & Heating, Inc., another subcontractor on the building project, commenced this action to foreclose a labor and materialman's lien against Alpine. Sutherlan and other lien claimants were joined as party defendants. Sutherlan, by answer, cross claim and third-party complaint, sought foreclosure of its lien claim against Alpine and recovery against Securities, as third-party defendant, for breach of the assignment document in paying the funds covered thereby over to Alpine. Securities, in answer to the third-party complaint, denied liability and asserted, in essence, that the document in question did not amount to an assignment of the funds under the circumstances prevailing, and that it was without timely notice of Sutherlan's contract or claims thereunder. The issues raised by the third-party proceeding came before the trial court upon Sutherlan's motion for summary judgment. Affidavits, depositions, exhibits, and briefs were filed on behalf of both parties. After considering the material and arguments before it, the trial court determined that no disputed issue of material fact existed with respect to the question of Securities' liability and accordingly entered an interlocutory summary adjudication, or a partial summary judgment. Trial on the remaining damage issue thereafter ensued, following which the trial court entered findings of fact, conclusions of law, and judgment, in the third-party action, granting recovery on behalf of Sutherlan against Securities in the sum of $66,082.05, together with interest and costs. Securities appeals. 177 Securities by its assignments of error, in essence, attacks (a) the trial court's interlocutory summary adjudication, and (b) the subsequent allowance and computation of damages. [1] With respect to the trial court's interlocutory summary adjudication of liability, it is conceded that the only disputed factual issue arising out of the affidavits, depositions, and exhibits presented on the motion for summary judgment is whether Sutherlan notified Securities of its contract with Alpine and of its requested progress payments prior to November, 1963. Otherwise, the factual background as heretofore outlined is undisputed. However, for purposes of the summary judgment procedure, we are required, as was the trial court, to review the material submitted for and against the motion in a light most favorable to Securities. Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963); Foote v. Hayes, 64 Wn.2d 277, 391 P.2d 551 (1964). Accordingly, we assume for purposes of our discussion that Securities was not formally and affirmatively advised of the terms of Sutherlan's contract with Alpine and/or Sutherlan's performance or demands for payment until the latter part of 1963. Against this background, Securities' assignments of error and arguments on this aspect of the case basically present two questions: (1) Does the purported assignment document constitute an effective partial assignment of a future monetary obligation, and (2) is notice to Securities of the maturity of the obligation essential to Securities' liability. With respect to the first question, Securities argues (a) the language of the document in question is not that of an effective assignment, (b) the surrounding circumstances and the actions of the parties negate any intention that the document be an assignment, (c) Securities' acceptance of the assignment was conditional, and (d) any rights acquired by Sutherlan under the document were defeated by Alpine's default. We find no persuasive substance to Securities' contentions and arguments upon this score. 178 [2, 3] In reaching our conclusion with regard to arguments (a) and (b) above, we start from the premise that technically speaking, as the parties recognize, we deal here with an equitable as distinguished from a legal assignment, and that no precise or stereotyped language is essential to the creation of such an assignment. Mercantile Ins. Co. of America v. Jackson, 40 Wn.2d 233, 242 P.2d 503 (1952). To establish an equitable assignment it is sufficient if the language utilized, coupled with the surrounding circumstances, plainly reveals an intent on the part of the assignor to make an actual or constructive transfer to the assignee of a present interest in the debt, fund, or subject matter of the assignment, even though the circumstances do not permit the assignee's immediate exercise of the interest, and, in pursuit of such intent, the assignor unequivocally relinquishes his control or power of revocation over the debt, fund, or subject matter of the assignment to the use or benefit of the assignee. Sundstrom v. Sundstrom, 15 Wn.2d 103, 129 P.2d 783 (1942); Mercantile Ins. Co. of America v. Jackson, supra; 6 Am.Jur.2d Assignments § 83 at 264-65 (1963). As pointed out in the latter authority, a reliable test of an equitable assignment is whether the debtor would be justified in paying or delivering the subject matter to the designated assignee. In the instant case, we are convinced that the language of the assignment document ("You are hereby authorized to remit directly... to Sutherlan" and "This assignment shall be irrevocable by the undersigned.") coupled with the circumstance of Sutherlan's demand for such a security device before entering into the construction contract, clearly establishes Alpine's intent that the document be an effective assignment. This view is further buttressed by the fact that Securities accepted the document as an "assignment," and forthwith issued a $20,000 advance upon the strength of it. The circumstance that the advance was issued jointly to Alpine and Sutherlan, instead of directly to Sutherlan, is consistent with Securities' reservation of control over the funds "in sufficient amount to cover." It is not, 179 however, inconsistent with Alpine's intent to effect an assignment. [4, 5] Securities, by argument (c), contends that provisions of the loan agreement rendered the funds to be advanced nonassignable; hence its conditional acceptance, i.e., "subject to our controlling the funds in sufficient amount to cover and subject to closing conditions," freed it of any direct responsibility or liability to Alpine's subcontractor and assignee, Sutherlan. This is a non sequitur. In the first place, Securities written acceptance of the assignment and its initial advancement of funds for the benefit of Sutherlan clearly indicate a waiver of the nonassignability provision. In the second place, the loan agreement provisions, when read as a whole, render it manifest that advances to be made on the loan as the work progressed were for the primary purpose of paying for the labor and materials expended on the construction project. These controls were reserved in Securities by the loan agreement, as well as in the acceptance of the assignment, to assure such payments so that Securities would be protected against unpaid claims. It would be a novel theory, indeed, which would now permit Securities to escape the responsibility cast upon it by the partial assignment and its acceptance thereof upon the grounds that its acceptance was made subject to controls and conditions which it imposed for the purpose of enabling it to meet the payments earned by Sutherlan, the assignee. Particularly is this so when it appears that Securities failed to timely exercise or observe such controls. [6] Under argument (d) Securities asserts Alpine's default defeated Sutherlan's rights under the assignment. It premises this argument upon the basis that an assignee's rights can rise no higher than the assignor's, and that payment to Sutherlan was conditioned upon Alpine's full performance of the loan agreement, including completion of the apartment building free of all liens and encumbrances. Hence, Securities argues, since Alpine defaulted, and was thereby precluded from further advances under the loan agreement, Sutherlan's rights under the assignment were 180 terminated. Again, this argument ignores the fact that the provisions and conditions of the loan agreement, as well as those in Securities' acceptance of the assignment, were designed to insure payment for labor and materials. Furthermore, the argument overlooks the partial character of the assignment and the nature of Alpine's default, i.e., the failure to pay for labor and materials expended on the project, including those supplied by Sutherlan. It was this failure that halted construction, rather than lack of performance by the workmen and materialmen. And, it was this failure which could have been averted had Securities prudently and timely exercised and observed the protective controls and conditions which it reserved unto itself. The bare fact remains that Alpine, through its subcontractor Sutherlan, did substantially perform on the construction phase of the project covered by the assignment and payments became due thereby. Having paid more than $170,000 of the loan funds to Alpine after notice and acceptance of the assignment to Sutherlan, and without any reservations respecting that assignment, Securities is now estopped from asserting the financial defalcations of Alpine as a defense to Sutherlan's performance. Cf. Structural Gypsum Corp. v. National Commercial Title & Mortgage Guar. Co., 107 N.J. Eq. 32, 151 Atl. 839 (1930). We turn then to the second question presented on this aspect of the case whether Securities was entitled to notice of Sutherlan's performance as a condition to liability under the assignment. In this respect, Securities contends that it did not breach the assignment document for the reason that at the time it halted advances (August 29, 1963) it still had sufficient funds (approximately $90,000) on hand to meet Sutherlan's demands, had it then been aware of them. Furthermore Securities argues, the loan agreement gave it the prerogative to assume completion of the building and to devote the remaining funds to that end. Therefore, Securities says, when Sutherlan failed to deliver a copy of its contract with Alpine and its progress payment demands to Securities, 181 prior to November 8, 1963, it forfeited its rights to the superior right of Securities to complete the building. The argument is ingenious; however, it by-passes the fact that Securities had notice of and accepted the assignment in question an assignment of approximately 25 per cent of the loan funds. It was thereby put upon notice of a potential and substantial claim in and to work progress advances to be made during the course of construction. It is admitted that Securities knew that Sutherlan was to supply materials for the building, and prudent inquiry would have readily revealed that the materials were integral and essential components to erection of the building. And, under the loan agreement Securities had the right to (a) insist upon limiting its advances to a definite work progress schedule, (b) retain 35 per cent of the loan fund until completion of the building, or (c) pay labor and materialmen direct. It exercised none of these rights, although the very existence of such options would appear to invite and justify a closer contact with the construction work, the progress thereof, the identity of the subcontractors and Alpine's use of the funds than was seemingly observed. [7] As we pointed out in Ropes, Inc. v. Rubinstein, 4 Wn.2d 380, 104 P.2d 329 (1940), the notice to and acceptance by an obligor of an assignment of funds to become due, imposes a duty upon the obligor to abide thereby and that payment thereafter of the funds to the assignor, at or before such time as the debt has matured, is no defense against the claim of the assignee. See, also, Dickerson v. Spokane, 26 Wash. 292, 66 Pac. 381 (1901). We accordingly hold that delivery by Sutherlan of a copy of its contract with Alpine, and notice of its performance thereunder prior to November 8, 1963, was not a condition precedent to Securities' liability under the assignment. On this phase of the case we conclude that the trial court correctly granted the interlocutory adjudication of liability. Securities final assignment of error and argument in support thereof is addressed to the trial court's computation of damages. The trial court essentially computed damages as follows: 182 Contract price $109,300.25 Less returnable items 12,905.71 ___________ Amount of damage 96.394.54 Plus sales tax 3,855.78 ___________ Total damage $100,250.32 Amount due under assignment $ 89,300.25 Less advance payment of January 31, 1963 20,000.00 ___________ Due under assignment on November 8, 1963 $ 69,300.25 Plus interest to December 8, 1963 4,504.51 ___________ Total due December 8, 1963 $ 73,804.76 Less payment December 8, 1963 9,709.61 ___________ Due December 8, 1963 $ 64,095.15 Plus interest to date of judgment 1,986.90 ___________ Amount of judgment $ 66,082.05 Securities' underlying quarrel with the computation of damages is the trial court's refusal to credit Sutherlan's returnable items against the balance found due under the assignment. As near as we can ascertain from the arguments presented, and the trial court's oral decision and findings, the trial court proceeded upon the theory that Securities was not entitled to duplicate the potential claims of Alpine for mitigation of damages. In this respect, the trial court reasoned that Sutherlan's over-all damages against Alpine was the amount of its contract, less such especially fabricated items as Sutherlan could return and obtain credit upon from its suppliers. The trial court determined Sutherlan was obligated to make such a deduction in mitigation of its damages if it was to be entitled to further recourse against Alpine beyond the amount of the assignment. From this premise, the trial court then concluded that since the amount of the assignment was less than Sutherlan's over-all damage, and since allowance was made against the assignment for the $20,000 advance of January 31, 1963, which might otherwise have been considered as a down 183 payment on the contract rather than an advance on the assignment, Securities was not entitled to both deductions. Securities has cited no authorities in support of its argument that the trial court calculated the damages upon a fundamentally wrong basis, and we do not conceive that, under all of the circumstances, the equities dictate a different result. Accordingly, we find no reversible error in the trial court's computation. The judgment is affirmed. FINLEY, C.J., DONWORTH, J., and BARNETT, J. Pro Tem., concur. December 22, 1967. Petition for rehearing denied. NOTES [] Reported in 432 P.2d 547.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1032496/	Having considered the petition, answer, reply, and appendices, we conclude that petitioner has not demonstrated that our intervention by way of extraordinary relief is warranted. Id.; Smith, 107 Nev. at 677, 818 P.2d at 851. Accordingly, we ORDER the petition DENIED. 02e-tt.. \ Hardesty J. Parraguirre cc: Hon. Gloria Sturman, District Judge Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas Prince & Keating, LLP Eighth District Court Clerk SUPREME COURT OF NEVADA 2 (0) 1947A MEKEEMERE=3211211111EMBEI	01-03-2023	07-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608499/	72 Wash. 2d 150 (1967) 432 P.2d 568 THE STATE OF WASHINGTON, Respondent, v. DEAN ALLEN BROMLEY, Appellant.[] No. 38888. The Supreme Court of Washington, En Banc. October 5, 1967. 151 Robert R. Briggs, for appellant (appointed counsel for appeal). John G. McCutcheon, Schuyler J. Witt, Everett Plumb, and Joseph D. Mladinov, for respondent. HILL, J. This appeal arises out of a crime which was widely publicized in the Pacific Northwest the kidnapping of Charles Hyde, III, near Tacoma, Washington. A ransom of $45,000 was paid, the lad returned to his home unharmed. The participants in the kidnapping either surrendered voluntarily or were speedily apprehended the appellant, Dean Allen Bromley, in Arkansas. The three were tried together. Tilford G. Baker, who forced the boy into the "kidnap" car, and the appellant Bromley, who drove the car, were both found guilty of kidnapping in the first degree. The jury, however, did not impose the death penalty. The third defendant, James Edward Evans, who did not participate in the actual "taking" of the boy, was found guilty of conspiracy to kidnap. Neither Baker nor Evans appealed his conviction; however, Bromley has appealed making 9 assignments of error. [1] A majority of the court agrees that there was such an accumulation of matters of dubious propriety that a fair trial was denied the appellant Bromley and that he must be granted a new trial, despite the fact that he concededly drove the "kidnap" car, accepted part of the ransom money, and fled to Arkansas with his wife and child. We will consider the accumulated items separately. With one exception all members of the court are agreed that it was prejudicial error to permit Dr. Harlan McNutt to testify in rebuttal that, in his opinion, Bromley was not a person who could be easily coerced. To fully understand the importance of this testimony, it must be understood that the actual participation of the 152 defendants Baker and Bromley in the physical act of kidnapping was not denied. Each of the three defendants entered a plea of insanity, but Bromley withdrew his plea during the trial. Bromley (and Evans) claimed coercion by Baker who, Bromley testified, had threatened to kill him and his wife unless he cooperated in the kidnapping. This, in the final analysis, was his only defense. Bromley, by reason of his original plea of insanity, had been required to submit to an examination by Dr. McNutt, the state's psychiatrist. It is conceded that the state could not have used Dr. McNutt's testimony against Bromley, in its case in chief, but it was admitted to meet his defense of coercion.[1] The defense contends that it was devastating, but urges that it was not admissible. [2] It smacks of compelling a defendant to furnish testimony against himself, and of proving a trait of character by the opinion of an expert instead of by the proof of 153 reputation in the community. Bromley having been required to submit to an examination by the psychiatrist to enable the state to meet the defense of insanity, and that defense having been withdrawn, the state should not have been permitted to make any further use of the testimony of the psychiatrist against the appellant. [3] As we said in State v. O'Brien, 66 Wash. 219, 223, 119 P. 609 (1911), It has ever been the law that one who offers himself as a witness is bound to disclose his motive and disposition. But the rule which allows this inquiry on cross-examination is not inconsistent with, but is in harmony with the rule that, if others speak of the general character of a person, it must be by way of reputation. To hold otherwise would be to substitute the judgment of a witness for that of the jury. Certainly, the effort by the state here was to substitute the judgment of Dr. McNutt for that of the jury on the issue of whether Bromley was coerced. In the language of the caption of an article in 102 U. Pa. L. Rev. 980 (1954), by Judson F. Falknor and David T. Steffen,[2] the state would take the determination of the appellant's susceptibility to coercion "from the `Crucible of the Community' to the `Couch of the Psychiatrist'." The general rule is well stated by Mr. Justice Jackson in Michelson v. United States, 335 U.S. 469, 93 L. Ed. 168, 69 Sup. Ct. 213 (1948): The witness may not testify about defendant's specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits; nor can he testify that his own acquaintance, observation, and knowledge of defendant leads to his own independent opinion that defendant possesses a good general or specific 154 character, inconsistent with commission of acts charged. The witness is, however, allowed to summarize what he has heard in the community, although much of it may have been said by persons less qualified to judge than himself. The evidence which the law permits is not as to the personality of defendant but only as to the shadow his daily life has cast in his neighborhood. (p. 477) Except where the defense is insanity, or in sexual deviation cases, the instances in which psychiatrists have been permitted to testify to the likelihood of a defendant's specific trait of personality or character have always been, in the first instance at least, on behalf of the defendant. Thereafter it may well become a battle of the psychiatrists. We find no authority to support the trial court's permitting the state to inaugurate the battle.[3] As a matter of interest, the only case involving the offer of expert testimony as to the likelihood of a defendant having been coerced, which we have been able to find, is People v. Villegas, 29 Cal. App. 2d 658, 85 P.2d 480 (1938). In that case, the defendant called a psychologist and offered to prove by her that she had known him for 14 years, ... and that by reason of her study of psychology she was in a position to testify that appellant's will power was weak, that his physical condition was bad, and that he therefore was without sufficient force to "resist the impulse of this other boy to take him out on these robberies". (p. 663) The trial court sustained an objection to the proferred testimony. The court of appeals affirmed, saying: It was both incompetent and immaterial, and she was entitled only to testify, as she was permitted under the court's ruling to do, concerning the general reputation of appellant in the community in which he lived for the traits involved in the offenses charged. (p. 663) A majority of the court are also of the view that the trial court erred in instructing the jury that when a defendant claims coercion or duress as a defense, he must prove it by the greater weight of the evidence. 155 [4] It is believed that such defense need only be established to the extent of creating a reasonable doubt in the minds of the jurors as to the guilt of the one accused of the crime charged. State v. Pistona, 127 Wash. 171, 219 P. 859 (1923) (alibi); State v. Rosi, 120 Wash. 514, 208 P. 15 (1922) (alibi). In the Rosi case, supra, we said: As to all such affirmative defenses we have always held that the burden is upon the accused to support his defense to the extent of establishing a reasonable doubt in the minds of the jurors as to the guilt of the accused of the crime charged. (p. 518) It is interesting that the United States Court of Appeals, Ninth Circuit (in Thomas v. United States, 213 F.2d 30 (9th Cir.1954)), says that by the stated law in six circuits even our Rosi case, supra, places too much of a burden on a defendant. The state cites no case to support its position, save State v. Collins, 50 Wash. 2d 740, 314 P.2d 660 (1957), where we said that the burden was on the defense to estabish the defense of insanity by a preponderance of the evidence. Such a case starts with a presumption of sanity which the defense must overcome, and it is not at all comparable to such defenses as alibi, self defense, entrapment, and duress. [5] The appellant rightfully claims that there were portions of Baker's confession which served no purpose except to inform the jury of the criminal record of the appellant. The usual instructions were given that Baker's confession could not be considered as evidence against a codefendant who was not present when it was made. However, it would appear that there were portions of the confession admitted which served no purpose save to suggest that the appellant Bromley had been involved in other crimes. We quote from the confession: Q. Mr. Baker is it true that you had been shown a picture that you positively identified as being the same person as the Dean [the appellant] that you referred to in this statement of yours? A. Yes. 156 The questioner then had the identification that he desired, but he didn't stop there. Q. Mr. Baker is it also true that the picture that you identified as being the Dean [the appellant] that you referred to in your statement, has on the face of the same picture an identifying Pierce County Sheriff # 18403? A. Yes. This last question had no purpose of further identification; its sole object was to prejudice Bromley by reference to a county-sheriff number on his photograph, implying some prior crime. The harpoon had now been placed and sharpened; it pierced the victim (Bromley) when it went into evidence as part of the confession. Bromley's counsel objected, but to no avail. In State v. Goebel, 36 Wash. 2d 367, 218 P.2d 300 (1950), we refer to the minute peg of relevancy being obscured by the dirty linen hung upon it. Here the minute peg of relevancy, as part of Baker's confession, is obscured by the picture hung upon it, which picture just happens to bear "Pierce County Sheriff # 18403." We do not need to discuss whether or not this was prejudicial error in this case, as on appellant's new trial Baker will not be a party and his confession will not be admissible.[4]State v. Nelson, 65 Wash. 2d 189, 396 P.2d 540 (1964). In any event, it did nothing to enhance the appellant Bromley's chances for a fair trial; and neither did the reference to the Lindbergh, Mattson and Weyerhaeuser kidnappings in the prosecution's arguments to the jury, of which the trial judge said: "I think it's too bad it was said." We do not agree with appellant's contention that Bromley was entitled to be included with Evans in the conspiracy-to-kidnap instruction. Unless Bromley sustained his defense of coercion, he was guilty of kidnapping. Only one other assignment of error merits discussion. 157 Counsel for Bromley, the only one of the defendants who had a prior criminal record, desired to try the "technique"[5] of first advising each juror that Bromley had previously been convicted of a crime or crimes, and then to inquire as to whether this fact would prejudice the juror in his determination of Bromley's guilt or innocence in the present case. After the second juror had been examined in pursuance of this technique, the trial court sustained objections to its further pursuit. It is urged that this was error and deprived counsel for Bromley of information which could have led to a more intelligent and effective use of the peremptory challenges available to him. [6] No case authority is cited for the privilege claimed by Bromley. Indeed, the case authority is contra in regard to a somewhat similar technique. We have an 1896 decision (State v. Everitt, 14 Wash. 574, 45 P. 150), in which the defendant attempted to ascertain on the voir dire of the jurors whether the fact that he was charged with cattle stealing would prejudice them against him as a witness. We held that objections to the inquiry were properly sustained, saying: Again, as to the other phase of the question, when the defendant enters a witness stand he enters it under the same rules and on the same footing as any other witness, and he has no right to attempt to ascertain in advance what the jury may think of his credibility as a witness. All questions of this character would simply have a tendency to confuse and entrap jurors and render the selection of a legal juror almost impossible. (p. 576) The trial court advised counsel, in this case, that in the event Bromley became a witness the jury would be instructed as to the effect and purpose of the admissibility of evidence of prior convictions. The jury was so instructed, and there were no exceptions to the instruction. The trial court must be allowed considerable latitude in the exercise of a sound discretion in determining questions 158 which may be asked on voir dire. State v. Hunter, 183 Wash. 143, 48 P.2d 262 (1935). There was no abuse of that discretion in this case. For reasons heretofore indicated, appellant Dean Allen Bromley was not accorded a fair trial, and the judgment and sentence appealed from is set aside and the cause is remanded to the Superior Court for Pierce County for a new trial. DONWORTH, WEAVER, ROSELLINI, HUNTER, and HAMILTON, JJ., and DENNEY, J. Pro Tem., concur. HALE, J. (dissenting) I dissent. The majority decision grants a new trial for trifling reasons. Finding only a molehill of error in a mountain of evidence, the majority, I think, ignores an oft-stated precept that one accused of crime is entitled to a fair, not a perfect trial. The defendant made a full, detailed and highly corroborated confession in open court under oath, seeking to avoid the legal consequences of his testimony only through a claim of coercion and duress. The few words of testimony by a psychiatrist that the defendant was not likely to be susceptible to coercion seems to me a harmless error and, when placed alongside the defendant's step-by-step description of his participation in the kidnapping, of trifling legal significance. To warrant a new trial, error must be prejudicial. State v. Wilson, 38 Wash. 2d 593, 231 P.2d 288 (1951), cert. denied, 342 U.S. 855, 96 L. Ed. 644, 72 Sup. Ct. 81 (1951); State v. Meyer, 37 Wash. 2d 759, 226 P.2d 204 (1951); State v. Moore, 35 Wash. 2d 106, 211 P.2d 172 (1949); State v. Gaines, 144 Wash. 446, 258 P. 508 (1927), cert. denied, 277 U.S. 81, 72 L. Ed. 793, 48 Sup. Ct. 468 (1928). One who acknowledges that he knowingly, intentionally, and purposely committed all of the acts constituting a crime has confessed to that crime. 2 Wharton, Criminal Evidence § 336 (12th ed. 1955). Bromley gave such a confession; he showed, too, that the defense of duress and coercion was not in law available to him. 159 Called by his own counsel to the witness stand on direct examination, Dean Allen Bromley testified to full complicity in the planning and execution of the kidnapping, including his receipt of more than $5,500 in ransom and his flight to Arkansas with the money. All of the following narrative, with one minor exception, comes exclusively from Bromley's direct examination, and every detail of his testimony was corroborated by a wealth of other cogent evidence. Bromley testified that he was 20 years old, married, had one child, and had been convicted of a felony in Washington, burglary in Kansas and loitering (a misdemeanor) in justice court in Tacoma. He and his father, he said, operated a gas station in Tacoma where codefendant Jim Evans traded. He first met Evans during the summer of 1965, and the two became friends through working together on their automobiles. He described first discussing the kidnapping with Evans, testifying that one day Evans and his wife and Bromley and his wife were at the grocery store, and this had been brought up there while we was there about the kidnapping, and he [Evans] asked me something about "Well, this guy wants some help or something," and I said, well, I said, "Jim," I said, "I can't do it." I said, "I wouldn't have any part of it." He said, "Well, he needs somebody to drive the car." I said, "Well, I am sorry," I says, "I couldn't because if I get picked up one more time, I would do some flat time. I just can't see it." He testified that, after this initial conversation with Evans about the kidnapping, he first met Tilford Baker at the "Jolly Rogers Cafe out on 112th and Vickery Road" about the 7th or 8th of November, 1965. Bromley described the meeting and conversation: I and Jim Evans went out to the Jolly Rogers Cafe to have a cup of coffee, and we walked in and Mr. Baker was sitting up at the counter drinking coffee, and I and Jim sit down at the table, and we got our coffee and was sitting there talking, and Mr. Baker come over and he sit down besides us. And Jim looked at me a little bit funny, he said, "Dean," he said, "this is the man." And I knew what he was talking about, about this kidnapping. It just 160 happened the night before that he told me about this, and I kind of laughed, and I said, "Yes, sir, okay." I says, "Okay." We was sitting there, in there and drinking coffee, and the conversation kind of built up to this, and he started talking about it, telling us how it was going to come off, and everything. And I had thought the guy was some kind of a nut, or something, because I mean, you just don't talk like that, you know. I mean, you know, some kind of a kook. So I listened to it. Then I kind of just got up and laughed it off, and started to walk out. He explained Baker's first threat in this way: Then Mr. Baker come over and tapped me on the shoulder, and reached in his pocket and pulled out a small hand gun, and he said, "You know too much." He says, "Come back over and sit down and have coffee," he says, "and act like nothing has happened." And I mean, at that time, a man with a gun, he is boss, so I listened to him. I went back over and had coffee. We thus leave Bromley in a claimed state of fear while having coffee; but the fear must have subsided, for later that afternoon Baker drove both Evans and Bromley in his truck over the route proposed to be taken in kidnapping the Hyde boy. After this partial rehearsal of the crime, Bromley, according to his own testimony, went home for the evening meal, separating himself from Baker by several miles. During the period of their planning and rehearsing the kidnapping, he says Baker threatened him three or four times but the threats occurred over an interval of probably 10 days. Bromley's testimony accordingly reveals that he was out of Baker's presence most of the time during the planning and rehearsal of the criminal scheme, during which interval he had unimpeded access to a telephone, the police station, sheriff's office and the offices of the FBI. For example, one threat, says Bromley, occurred in the Jolly Rogers Cafe, but after that incident the three met at the Aba-Daba Cafe near Ponder's Corner at 6:30 a.m., synchronized their watches, drove to another place called Brownie's Cafe, and then Bromley took Baker back to the Aba-Daba Cafe, preparatory to carrying out the kidnapping. Thus, the three men were in and out of automobiles 161 several times on the morning of the scheduled kidnapping in the presence of other persons with several opportunities for Bromley to withdraw from Baker's presence without any risk of immediate harm. Bromley's testimony showed that he stayed in the criminal conspiracy and actively continued with the planning despite innumerable chances to get away from Baker. Describing from the witness stand the first abortive attempt at the kidnapping, Bromley said that Baker told Evans to go to the Little Park Cafe on Pacific Avenue and that Baker and Bromley then got out in the car, and we pulled across the street at the Pizza Haven out at Ponders Corner. And we was getting ready to go through this kidnapping, getting ready to pull off this kidnapping then. And Mr. Baker, I don't know why, but he turned on the radio, and the news was on, and it told the time, and he said, "Oh, Jesus, we are late." He said, "Get going." And I started the car, and we left. And we got out in front of the Hyde residence, and little Charles Hyde, he was across the street, already across the street, on the highway down into the Country Club. And Baker said, "Get up there and get turned around." He says, "If anything goes wrong now," he says, "there is some people that is going to lose some heads over this." So I drove up the road, and I turned around real quick, and we come back. By this time, this little Charles Hyde, he was inside the Country Club. It was too late then. And this (indicating) nut, he was going to go ahead and go through with it. He was going to go ahead and pick up the boy right there with everybody standing around and everything. And he was a real kook of some type. And no, sir, boy, no part of it for me. (Italics mine.) After this unsuccessful effort, Bromley and Baker returned to the Little Park Cafe to let Evans know of their failure; Bromley, in his testimony, fixed the time of the attempt, failure and foregoing conversation at either the 12th, 13th or 14th of the month. He and Evans did not see Baker again for a few days after their first attempt at 162 kidnapping. Thus, at this point in the plot, Bromley was out of Baker's presence for considerable periods of time and could not possibly claim to be in danger of instant death or grievous injury. Showing innumerable opportunities not only to withdraw from the criminal enterprise, but equal chances to avoid danger of instant death or grievous injury from Baker during the long intervals he was away from Baker in the course of planning and preparing for the kidnapping, Bromley's testimony continues: Q. Did he then tell you when there would be the next attempt? A. Yes, it was on a Monday, I believe. Saturday or Sunday I didn't talk to him at all. I was busy with my wife moving. Q. Pardon? A. I and my wife was busy on a Saturday and Sunday. We didn't see him then, but the next day, Monday, I believe it was a Monday, yes. He, him and Jim Evans came over to the house Monday evening. We had some company over there, a fellow that I was working with. Him and his wife came over to see us, and Jim, he came up to the door. Baker told him to come up to the door and talk to me, so I, they wanted me to come out and go down to the Jolly Roger and have coffee with them. I had company and everything, and I told them, you know, "No, I couldn't leave right then. My company was there, and everything." And they said, "Well," they said, "meet us there, you know, tomorrow morning," which would be Monday morning. He said, "Meet us there Monday morning." This was Mr. Baker. So I said, "All right." So Monday morning I went out there, and Mr. Baker was there. He was there in the parking lot. He pulled in just before I did. And Mr. Evans was just in. When we pulled in, he was sitting there drinking coffee, and that is when he told us that the kidnapping was on for Wednesday, the 17th. Q. He told you that it was set for the 17th? A. Yes, yes. He then went on to say that Baker told them the kidnapping was on for the 17th, a Wednesday. Bromley, on leaving that meeting with Baker and Evans, then took his wife with some of her belongings to the home of his wife's mother. He testified that I seen Mr. Baker the night of the 16th, and he told us, he said for us to be sure and be there at six o'clock on the 17th out at the Abba Dabba Cafe. So I and Jim Evans, we 163 decided that we was going to talk this nut out of this the next morning. So we go over there the next morning. I seen Jim Evans the next morning. We went to the Abba Dabba Cafe, and Q. Was Baker there at that time? A. Yes, he was. Q. Where was he, Dean? A. He was in the front seat of the car. Q. Now, was there anything that he had to tell the time with? A. Yes, he had a, he had brought a clock from home to make sure this time the time was right, you know. Bromley's testimony thus shows that he was away from Baker most of the night preceding and until 6 a.m. of the day of the kidnapping and, therefore, was free from the danger of instant death or grievous bodily injury during that long interval. While under no duress and coercion, as those terms are known to the law, he nevertheless kept the 6 a.m. rendezvous at the Aba-Daba Cafe for the planned purpose of carrying out the kidnapping. Evans, Baker and Bromley according to Bromley's testimony met at the Aba-Daba Cafe, had coffee together and were threatened by Baker while trying to dissuade him from the kidnapping. But he testified too that he had procured some stolen license plates from a neighbor boy, purchasing them for a pack of cigarettes, and from the witness stand admitted putting the stolen plates on the car they were to use in the kidnapping. Other evidence in the trial, not denied by Bromley, proved that he and Evans had earlier driven to Seattle and rented the car to be employed in the kidnapping, thus putting many miles between them and Baker while at the same time carrying out a vital part in the preparations for the crime. The confession goes on. Bromley testified that, on the morning of the kidnapping, he had dressed in an old work shirt, an old jacket, old boots he had been wearing when working in cement, and corduroy jeans; he put tape across his chin and a strip of tape across his face beneath his nose, and wore wrap-around dark-colored glasses. Baker also had tape across his chin and face. With Bromley at the wheel and Baker in the front seat, they drove toward their planned seizure of young Charles Hyde on the morning of 164 the 17th. Here are further excerpts from Bromley's testimony, showing the detailed planning and precise execution of the scheme. Bromley, referring to Baker, said: He, when we started out, he was in the front seat. And we went across the freeway bridge, I don't know what that is, just a freeway bridge that goes across the freeway, the bridge over Ponders Corner, and then we went down to Gravelly Lake Drive. And we got up to a place there where you could turn around, just a little side road, and he had me stop there and turn around. I turned around, and he got out, and got in the back seat. And then, describing the actual kidnapping of the boy bearing in mind that all of this time Bromley is driving the kidnap car and wearing tape on his face and colored glasses he testified: All of a sudden I was sitting there, no cars was around, and I seen the boy come and get in the back of the car. I just kind of glanced up over my shoulder, and Mr. Baker was helping him into the car. And he just got him into the car, you know, put him in there, and he didn't actually put him there, he just helped him into the car. And then he drove [sic] me to drive on. He said, "Ride, Clyde," or something like this, and we left.... He [Baker] was in the back seat. He was just sitting right next to the boy. He had the boy sit there for a little while to make, so it wouldn't look so suspicious or anything. We rode on across the freeway bridge, and at that time there was some cars pulling over down to the freeway, and he just helped the boy down on the back seat, and down on the floor board to the back of the car. And then he just laid a blanket, some kind of a blanket over his head. And then he got up, he sat up straight, and he put the boy's books over in the front seat with me. And then he just, we got out, started across the reservation, the Army Reservation, and he just crawled over into the seat with me. Bromley then testified that somewhere in an isolated area they stopped the car, took off the stolen license plates, and restored the rented car's regular plates. With the boy concealed on the floor of the back seat, Bromley drove the car to Baker's house; Baker got out and opened the garage door, and Bromley drove the car into the garage. Bromley 165 testified that Baker "had the little boy get out and lay down on the canvas, and then we picked him up and carried him inside the house." According to Bromley's testimony, the final disposition of the boy had not been agreed upon that is, the criminals had not decided when and where he would be left. Inside the house, Bromley heard both Baker and the boy talk to the boy's father on the telephone, and "Then we picked the boy up, and took him back out to the garage, and put him back in the garage," where they kept the boy for some time under a blanket. The confession in open court proceeds. After a while, they drove out to the Park-N-Shop to a rendezvous with Evans: And so the first time we got there this was after the call had been made to Mr. Hyde we ended up near, at the Park-N-Shop some way. He got out, him and Jim Evans walked into that, the Park-N-Shop for a few minutes, and they was right back out. And then we left again. Then the second time that we come around was for the ransom pick-up. Note that Evans and Baker had a conference in the Park-N-Shop grocery store while Bromley stayed in the car where the boy as his prisoner lay concealed. Thus, according to Bromley, they made the ransom pickup on a second trip to the Park-N-Shop. After getting the money, they drove with the boy out on to the river road (toward Puyallup) and then, reversing their direction, swung north toward the north end of the city of Tacoma. Out near the bay in the north end of the Old Tacoma district, they found an old cement shack, and, testified Bromley: Yes. I had him hold his arms together, you know, wrist to wrist, and I taped his, taped it around his wrists. And then I handed him a piece of tape well, before I taped his wrists, I had, handed him a piece of tape, and had him put it over his eyes, and over his mouth.... Yes, his wrists were together like this (indicating), fairly far apart because I had to get the tape back around through his hands. 166 There they left the boy. Bromley says that later he, with his wife, followed Baker to Steve's Gay 90's (a restaurant in South Tacoma) where Baker gave Bromley his share of the ransom money. According to Bromley's testimony, he and his wife had their personal traveling effects with them in their car when they followed Baker to the restaurant and Bromley had made airplane reservations for himself and his wife to Little Rock, Arkansas. They got on the plane the next morning with Bromley's share of the ransom money in his possession. He rang down his testimony with a final assertion that, except for the threats against his life on the 17th day of November, 1965, he would not have participated in the kidnapping. Thus, from the lips of the defendant in open court under oath on direct examination, when testifying in his own defense, came a complete acknowledgment of guilt detailed, corroborated, specific, and conclusive as to all elements of the crime, including his intent, volition, and knowledge. His only justification is a claim of duress and coercion through fear. But his own testimony completely excludes any possibility of such a defense and conclusively establishes that such a claim, as a matter of law, was not available to him, for one cannot exculpate his crime through fear unless the danger is shown to be immediate and continuing. If one has a reasonable opportunity to avoid doing the act without exposing himself to danger of instant death or grievous injury, he has not, as a matter of law, been coerced. The very statute (RCW 9.01.112), under which defendant claimed his immunity from punishment, emphasizes the idea that the danger must be immediate and imminent: Whenever any crime, except murder, is committed or participated in by two or more persons, any one of whom participates only under compulsion by another engaged therein, who by threats creates a reasonable apprehension in the mind of such participator that in case of refusal he is liable to instant death or grievous bodily harm, such threats and apprehension constitute duress, which will excuse such participator from criminal prosecution. (Italics mine.) 167 Blackstone long ago said it differently, emphasizing not the immediacy but the genuineness of the fear and excluding it as a defense in all cases for murder: Another species of compulsion or necessity is what our law calls duress per minas; or threats and menaces, which induce a fear of death or other bodily harm, and which take away, for that reason, the guilt of many crimes and misdemeanors, at least before the human tribunal. But then that fear which compels a man to do an unwarrantable action, ought to be just and well-grounded; .... And therefore, though a man be violently assaulted, and has no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder, for he ought rather to die himself than escape by the murder of an innocent. 4 Blackstone, Commentaries 30 (Adapted by Robert Malcolm Kerr, 1962). Our statute, however, as we have noted, requires that the danger must be immediate to constitute a defense and to this the courts have added another sensible condition that it must be continuing with no chance for avoidance. Shannon v. United States, 76 F.2d 490 (10th Cir.1935) sets forth the federal rule as follows, at 493: Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury. If, then, the danger from which the coercion and duress are claimed to emanate is not immediate, imminent and impending and does not create a reasonable fear of instant death or grievous bodily injury, and does not continue throughout the time when the crime is being perpetrated, it is no true duress and coercion at law. Similarly, threat or fear of future injury will not constitute a defense of duress and coercion. 21 Am.Jur.2d Criminal Law § 100 (1965). See R.I. Recreation Center v. Aetna Cas. & Surety Co., 177 F.2d 603, 12 A.L.R. 2d 230 (1st Cir.1949); Shannon v. 168 United States, supra; State v. St. Clair, 262 S.W.2d 25, 40 A.L.R. 2d 903 (Mo. 1953); State v. Good, 110 Ohio App. 415, 165 N.E.2d 28 (1960); Newman & Weitzer, Duress, Free Will and the Criminal Law, 30 S. Cal. L. Rev. 313 (1957). Bromley's testimony discloses his intentional participation in the planning, execution of, and flight from the completed kidnapping of young Charles Hyde during a period of about 10 days. His testimony reveals that, throughout the criminal scheme, he was free of the danger of instant death and grievous bodily harm for much greater periods than he was exposed to it. All during the development of the criminal plan and throughout the conferences among the three criminals, and continuing on into the first abortive attempt, Bromley, by his own testimony, had innumerable chances not only to withdraw from the criminal enterprise, but to protect himself from the danger claimed to be menacing him, by reporting his fear to the sheriff, the Tacoma police or the FBI or to his neighbors, relatives and friends. Indeed, during a large part of the planning stages, police and sheriff's offices were undoubtedly more accessible to Bromley than Bromley to Baker. There being no substantial evidence to support coercion and duress as that defense is known to the law, defendant was not entitled to instruction No. 25 which submitted it to the jury. In instructing upon coercion and duress, the court gave defendant a gratuitous benefit, for one is not entitled to an instruction unsupported by the evidence. Accordingly, it should be quite clear that, when the state sought to meet an unwarranted defense by erroneously proving through the testimony of Dr. Harlan McNutt that Bromley's personality was not readily susceptible to coercion and duress by a fellow conspirator, the error was manifestly harmless and trivial. One collateral point should be mentioned: In reciting the most significant parts of Bromley's direct examination to show that he actually confessed under oath in open court, it is not implied that his testimony had the procedural effect of a plea of guilty or empowered the court to thereupon 169 dismiss the jury and enter a judgment of guilty. The open-court confession, however damning it may have been as to the facts, did not deprive defendant of the right to a jury trial for his plea of not guilty gave him the right to their deliberations and findings expressed in a verdict. Const., art. 1 § 21; Const., art. 1 § 22 (amendment 10); RCW 10.01.060; 2 Wharton, Criminal Evdence § 336 (12th ed. 1955). His testimony did not preclude the ultimate power of the jury to render a verdict, but, rather, obviated the defense of coercion and duress. Did the court discharge its full constitutional duty to this defendant? Indeed it did. It supplied him with highly competent and industrious counsel; it gave full opportunity for investigation and preparation of a defense with the power of subpoena and the right to confrontation of witnesses. It brought him to trial on specific charges before a fair and impartial jury drawn from the county at large. The court allowed him full opportunity to testify or refrain from testifying. That he elected to take the witness stand, revealing through several thousand words of testimony his participation in a despicable crime, in a desperate effort to erect a defense where none existed does not detract from the scrupulously high standards maintained by the trial court. When a man is guilty, it is altogether right that he be adjudged guilty. There being no doubt as to defendant's guilt, and an abundant record that his guilt was fairly arrived at, I would not reverse on what seems to me to be a harmless error. Accordingly, I would affirm. NOTES [*] Reported in 432 P.2d 568. [1] Dr. McNutt testified in part as follows: "Q. Well, describe his personality for me as you see it, Doctor? "A. Mr. Bromley is, as I say, a young man, I will try to be as concise as possible, and not historical. I think that he is emotionally quite unstable. I would think that he is easily aroused by any offense directed towards him. "I think that he could, and would give a good account of himself if he was irritated. "I might say this is my personal observation from talking with him, not taking anyone else's word. "He showed emotional response of a very remarkable kind when I was talking with him. "This is essentially his personality, I am not offering it as a diagnosis. You asked about his personality. ".... "Q. Could you tell me whether or not in your opinion this defendant, Bromley, is dangerous? "A. Yes, sir, he could be dangerous. "Q. Now, with this type of personality that you describe as to Bromley, would you say, could you tell me whether or not he could be easily coerced into committing a crime against his will? "Mr. Briggs: To which I will have the same objection, Your Honor. "The Court: Objection will be overruled. "A. I think Dean would be rather difficult to coerce." [2] The authors, the former well known in this state as legislator and Dean of the University of Washington Law School and an outstanding authority on Evidence, express considerable concern over the opinion in People v. Jones, 42 Cal. 2d 219, 266 P.2d 38 (1954), wherein a trial court was reversed for not permitting the defendant in a sex-deviation case to call a psychiatrist who would testify that, as a result of examinations, he reached the conclusion that the defendant was not a sex deviate. [3] Views contra are expressed in "Expert Psychiatric Evidence of Personality Traits," 103 U. Pa. L. Rev. 999 (1955). [4] Baker could, of course, be a witness; but the confession could be used then only for the purpose of impeachment. [5] Rothblatt "Successful Techniques in the Trial of Criminal Cases." (1961)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608494/	432 P.2d 235 (1967) Jack BEARDSHEAR, Administrator of the Estate of William M. Beardshear, Deceased, Plaintiff in Error, v. Jessie C. BEARDSHEAR, Defendant in Error. No. 21973. Supreme Court of Colorado, En Banc. August 8, 1967. 236 John T. Dugan, Denver, for plaintiff in error. Sheldon & Nordmark, James T. Bayer, Daniel H. Polsby, Denver, for defendant in error. PRINGLE, Justice. Plaintiff in error, Jack Beardshear, as Administrator of the Estate of William M. Beardshear, deceased, brings writ of error from a judgment of the Probate Court of the City and County of Denver, allowing a claim of Jessie C. Beardshear, defendant in error here, in the amount of $1552.50 for attorneys' fees incurred by her while she was acting as Executrix of the aforementioned estate. We are required by an unbroken line of authority in this state to view the evidence in the light most favorable to the prevailing party in the trial court. Viewing the record in that perspective, it appears that William M. Beardshear sustained a cerebral vascular accident in 1952 and suffered a resulting paralysis. At times thereafter he was unable to speak or was hard to understand. On May 18, 1955, at the office of his attorney, who had known him for many years, he made a will in which he left his entire estate to Jessie C. Beardshear, who was his second wife. His children by his first wife, who were all adults, were made contingent beneficiaries. Some two years later, William Beardshear died and his first wife, Mame L. Beardshear, filed for letters of administration as a creditor and the letters were granted. Several months later, Jessie Beardshear filed the will for probate and the children of William thereupon filed a caveat. They presented no evidence at the probate court hearing on the admission of the will and letters were issued to Jessie. Thereafter, appeal was taken to the district court where, after a trial by a jury, the will was held invalid and the matter returned to the probate court for further proceedings. Jessie was thereupon removed as Executrix and a new Administrator was appointed. Jessie then filed her claim for attorneys' fees incurred by her in contesting the caveat and in administering the estate while she was Executrix. At the trial, the Administrator contended that Jessie did not act in good faith in seeking probate of the will, and also sought damages by way of counterclaim for expenses incurred in contesting the will. He requested a jury trial, which request the trial court denied. Plaintiff in error contends here that (1) as a matter of law, it was "bad faith" for Jessie to present the will for probate under the circumstances of this case, and (2) that it was error for the trial court to deny a jury trial. We do not agree. C.R.S.1963, 153-5-17 provides that an executor, when acting "in good faith" to establish a will shall be entitled, at the expense of the estate, to employ counsel and incur such expense as necessary to prove or attempt to prove the will. It is clear that it is not necessary that the will be proved, but only that the attempt to prove it be in good faith. What is "good faith" is a factual question to be determined by the circumstances of each case. Williams v. Hankins, 79 Colo. 237, 245 P. 483. Hospitalizations, strokes, even adjudications of mental incompetency do not operate 237 as a conclusive bar to the making of a valid will. Estate of McCrone, 106 Colo. 69, 101 P.2d 25. They are only evidentiary matters which go to the ultimate issue of competency. Jessie here offered testimony of the attorney who prepared the will and who had known William Beardshear for many years. That evidence was to the effect that Beardshear understood what he was doing when he signed the will and was competent to make the will. The trial court held that in these circumstances Jessie acted in good faith in presenting the will for probate and in contesting the caveat. Bad faith will not be imputed as a matter of law simply because a jury finds the will to be invalid. To hold otherwise, would be to place every executor in jeopardy who would dare to present a will where at any time there had been any question of testamentary capacity. "Bad faith" was a disputed issue of fact and we cannot say, as a matter of law, that on the record here the trial court erred in its disposition of that issue. There was also sufficient evidence in the record upon which the trial court could enter its judgment for attorneys' fees in the amount it did. The Administrator's objection that he was not permitted a jury trial in this matter also is not well taken. We have held that there is no constitutional right to a jury trial in probate proceedings. Miller v. O'Brien, 75 Colo. 117, 223 P. 1088. Probate is, of course, a special statutory procedure and we must, therefore, look to the statute to determine whether a jury trial may be had at the request of one of the parties. C.R.S.1963, 153-5-17(2), under which this claim was presented, provides that the amount and necessity of the expenses of counsel incurred in the attempt to prove a will shall be subject to the approval of the county court. Juries do not give approvals, that function is reserved for judges. It is clear that the legislature intended such matters to be within the province of the judge and not the jury. The judgment is afffirmed. MOORE, C. J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608497/	432 P.2d 402 (1967) 78 N.M. 437 STATE of New Mexico, Plaintiff-Appellee, v. Roland Lloyd GILBERT, Defendant-Appellant. No. 8291 Supreme Court of New Mexico. October 9, 1967. 403 Lyle Walker, Fred T. Hensley, Clovis, for appellant. Boston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee. OPINION OMAN, Judge, Court of Appeals. This is an appeal from an order denying defendant's motion for post-conviction relief filed pursuant to Rule 93 (§ 21-1-1(93), N.M.S.A. 1953, Supp. 1967). We affirm. The point relied on for reversal is that: "THE DEFENDANT DID NOT UNDERSTANDINGLY AND INTELLIGENTLY WAIVE HIS RIGHTS TO COUNSEL BECAUSE AT NO TIME DID THE TRIAL JUDGE EXPLAIN THE PUNISHMENT PROVIDED BY LAW, ANY POSSIBLE DEFENSES TO THE CHARGES, OR CIRCUMSTANCES IN MITIGATION OF THE CHARGES; AND BECAUSE DEFENDANT WAS CONFUSED AND MISUNDERSTOOD THE SENTENCES POSSIBLE FROM THE CHARGES AGAINST HIM." At the hearing on his motion under Rule 93, he appeared and testified in support of his position. The district judge who presided at this hearing found that defendant had knowingly and intelligently waived his right to counsel, and was fully informed as to the nature of the charges against him. Defendant was charged by information in two counts. By count 1 he was charged with larceny, and by count 2 with burglary. On July 30, 1963, he appeared before the district court for arraignment. When the court asked why he had not talked with a lawyer, he replied: "I don't figure I need to." The court then inquired as to his ability to hire a lawyer. He advised that he was not able to do so. He was then asked if he understood that the court would appoint an attorney to represent him, and he answered, "Yes, sir." The court asked if he wished the court to appoint a lawyer, and he answered, "No sir." The court then stated the nature of the charge or accusation contained in each count and asked if the charge were true or false. He stated that the charge in each count was true. He testified at the hearing on his motion under Rule 93 that at the arraignment he was told and he knew that the court would have appointed a lawyer to represent him had he wanted one. He also testified that he admitted that the charges made against him in both counts of the information were true. It is true that the court at the time of the arraignment did not inform him of the mandatory maximum and minimum sentence which would be imposed on each charge, nor was anything said about the fact that the sentences could be imposed to run consecutively. Ordinarily the accused should be advised of the maximum possible sentence and the minimum mandatory sentence which can be imposed, and he should be informed of the consecutive sentence possibilities where there is to be a plea to more than one offense. However, the defendant here clearly understood that sentences could be imposed to run concurrently or consecutively, because he claims to have discussed with the assistant district attorney before the arraignment 404 the possibility of sentences being imposed to run consecutively. He was sentenced on August 7, 1963, some eight days after he was arraigned. At that time the court asked him if he had anything to say why sentence should not be announced as to the charge under count 1. He replied he did not, and the court announced his sentence of confinement in the State Penitentiary for the statutory period. The court then followed the same procedure in passing sentence under count 2, and then announced that the sentences would run consecutively. Defendant made no comment concerning the sentences, or the fact that they were to run consecutively. As to his contention that he did not understandingly and intelligently waive his right to counsel, because of the failure of the district judge to explain any possible defenses to the charges, no effort is made to show the possible defenses that were available to him. Under the facts and circumstances here presented, we are unable to say that the sentencing court was under an obligation to advise defendant of possible defenses. See State v. Coates, 78 N.M. 366, 431 P.2d 744, filed September 11, 1967. Defendant completed the seventh grade and a portion of the eighth grade in school, and is a roofer by trade. He admitted he was the same person shown on an F.B.I. Rap Sheet as having been arrested some thirty-four times in the States of Kansas, Montana, Oklahoma and New Mexico, including his arrest on the charges with which we are here concerned. At the time of sentencing he admitted to having been sentenced to confinement in the Kansas State Penitentiary in 1956 for statutory rape, and to having been paroled from that institution in March of 1963. Both the district judge who presided at the arraignment and sentencing in 1963, and the district judge who presided over the Rule 93 proceedings in September, 1966, were concerned with the protection of defendant's rights, and they had the opportunity to see and hear him and to observe his manner and demeanor. The findings and judgment of the district court are presumed to be regular. Ellis v. Parmer, 76 N.M. 626, 417 P.2d 436 (1966); Sandoval v. Tinsley, 338 F.2d 48 (10th Cir.1964); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Proceedings under Rule 93 are civil in nature. State v. Hardy, 78 N.M. 374, 431 P.2d 752, filed September 11, 1967; State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967); State v. Weddle, 77 N.M. 420, 423 P.2d 611 (1967). Being civil in nature, they are governed by the Rules of Civil Procedure. State v. Hardy, supra; State v. Brinkley, 78 N.M. 39, 428 P.2d 13 (1967); State v. Martinez, 77 N.M. 745, 427 P.2d 260 (1967). Findings of fact supported by substantial evidence are conclusive on appeal and will not be disturbed. Leigh v. Hertzmark, 77 N.M. 789, 427 P.2d 668 (1967); Goodpasture Grain & Milling Co. v. Buck, 77 N.M. 609, 426 P.2d 586 (1967); Varney v. Taylor, 77 N.M. 28, 419 P.2d 234 (1966). See also State v. Fields, 74 N.M. 559, 395 P.2d 908 (1964); State v. Mesecher, 74 N.M. 510, 395 P.2d 233 (1964). Thus the burden of proof at the Rule 93 hearing rested on defendant to establish that he did not competently and intelligently waive his right to counsel, and this burden required him to so convince the court by a preponderance of the evidence. State v. Coates, supra; Bouldin v. Cox, 76 N.M. 93, 412 P.2d 392 (1966); Sandoval v. Tinsley, supra; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, supra; see also State v. Gonzales, 77 N.M. 583, 425 P.2d 810 (1967). He failed to meet this burden, and we are of the opinion that the evidence substantially supports the findings of the trial court. In reaching our decision we have not overlooked the case of Shawan v. Cox, 350 F.2d 909 (10th Cir.1965), upon which defendant relies, nor have we overlooked *405 the language of the Supreme Court of the United States in Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309 (1948). However, the court's obligation to make sure that the waiver is valid, and is predicated upon a meaningful decision of the accused, does not require any particular ritual or form of questioning. See Bouldin v. Cox, supra; Lovato v. Cox, 344 F.2d 916 (10th Cir.1965); Carpentier v. Lainson, 248 Iowa 1275, 84 N.W.2d 32, 71 A.L.R.2d 1151 (1957); Sandoval v. Tinsley, supra. The order denying the motion should be affirmed. It is so ordered. COMPTON and CARMODY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875579/	490 So.2d 1071 (1986) Richard Neil EVANS, Appellant, v. STATE of Florida, Appellee. No. 85-2242. District Court of Appeal of Florida, Fourth District. July 9, 1986. Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Affirmed, except this cause is remanded to the trial court in order to correct the written order to conform to the court's oral pronouncement of sentence as to Counts II and III, see Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982); and to strike the assessment of costs imposed upon this indigent defendant since it appears from the record that the trial court did not intend to impose costs. See Williams v. State, 478 So.2d 122 (Fla. 4th DCA 1985); Davis v. State, 477 So.2d 47 (Fla. 4th DCA 1985). AFFIRMED; REMANDED FOR CORRECTION. LETTS, WALDEN and GUNTHER, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875602/	490 So.2d 249 (1986) FORTUNE INSURANCE COMPANY, Appellant, v. Vincente SANCHEZ, JR. and Vincente Sanchez, Sr., Appellees. No. 86-539. District Court of Appeal of Florida, Third District. July 1, 1986. Lopez, Perez-Gurri & Goldman, and Virginia M. Best, Coral Gables, for appellant. Spiegelman & Spiegelman and Robert Spiegelman, Miami, for appellees. Before SCHWARTZ, C.J., and HUBBART, and DANIEL S. PEARSON, JJ. PER CURIAM. The order denying the defendant Fortune Insurance Company's motion to vacate the clerk's default entered in favor of the plaintiffs, Vincente Sanchez, Sr. and Jr., is reversed and the cause is remanded to the trial court with directions to set aside the said clerk's default. We reach this result based on the following briefly stated legal analysis. First, the defendant established excusable neglect below in not timely responding to the plaintiffs' complaint in that the defendant, through a clerical error, had misfiled the suit papers. North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 853 (Fla. 1962); Broward County v. Perdue, 432 So.2d 742, 743 (Fla. 4th DCA 1983); Renuart-Bailey-Cheely Lumber & Supply Co. v. Hall, 264 So.2d 84 (Fla. 3d DCA 1972). Second, the defendant established a meritorious defense below by the proposed answer attached to its motion to vacate, which answer sets out in detail a number of affirmative defenses, Pedro Realty Inc. v. Silva, 399 So.2d 367, 369 (Fla. 3d DCA 1981) ("A defendant may not merely state that it has a meritorious defense, but must disclose such a defense in a defensive pleading or affidavit"); Perry v. University Cabs, Inc., 344 So.2d 914, 915 (Fla. 3d DCA 1977) ("The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the defense... ."). Third, the defendant established due diligence below in moving to vacate the clerk's default upon learning of the said default. B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345, 1347-48 (Fla. 3d DCA 1981). Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2609978/	467 P.2d 521 (1970) Floyd A. DAVIS, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. No. A-15198. Court of Criminal Appeals of Oklahoma. April 1, 1970. Jay D. Dalton, Public Defender, for plaintiff in error. G.T. Blankenship, Atty. Gen., W. Howard O'Bryan, Jr., Asst. Atty. Gen., for defendant in error. 522 BUSSEY, Judge. Floyd A. Davis, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County for the crime of Robbery with Firearms, was sentenced to serve fifty years in the state penitentiary, and appeals. Although there are two assignments of error urged on appeal, it will only be necessary to consider defendant's assignment that the trial court committed reversible error in refusing to allow the defendant to cross-examine the State's witnesses concerning the circumstances surrounding the identification of defendant's photograph prior to the defendant's arrest and trial. Briefly stated, the facts adduced on the Evidentiary Hearing, outside the presence of the jury, disclosed that two of the State's witnesses had identified the defendant from photographs shown them by police officers and later identified him in a lineup. At the conclusion of said hearing, the trial court ruled that these witnesses could testify to an in-court identification of the defendant, finding as he did so, that such identification was based on a source independent of the photographs and lineup identifications. Accordingly, in the presence of the jury, these witnesses identified the defendant as the holdup man, but when counsel for the defendant attempted to cross-examine these witnesses with reference to the pre-trial identifications, the trial court sustained an objection to the cross-examination questions. The State, while conceding that the court should have permitted the defendant to cross-examine relative to the pre-trial identifications, argues that under the particular circumstances of the instant case, the court's error in failing to permit it was harmless error. The State further requests that this Court lay down rules for the guidance of the trial courts in future cases. We observe that we have repeatedly held and reiterate in this opinion, that it is error for the State to introduce into evidence, in the presence of the jury, 523 the facts and circumstances surrounding a pre-trial identification of the defendant. We further observe that in the event the defendant raises a timely objection to the courtroom identification of the defendant for the reason that it is based on a pretrial identification by photograph or line-up conducted in a manner contrary to the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 and Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, the trial court should conduct a hearing outside the presence of the jury and determine if the pretrial identification procedure was conducted in accordance with the rule enunciated in United States v. Wade, supra.[1] In the event that the pre-trial identification was not conducted in accordance with Wade, but it is established that the incourt identification can be made from an independent source, then the trial court should permit the State to present the incourt identification. While we have heretofore stated the State may not refer to the pre-trial identification of the defendant as a part of its case in chief, the "defense may, as a matter of trial tactics, decide to bring out the pre-trial confrontation itself, hoping it can thus distract from the weight the jury might otherwise accord the in-court identification." See Clemmons v. United States, 408 F.2d 1230. It is readily apparent, in the light of Simmons, that the defendant should be allowed to cross-examine witnesses relative to the pre-trial identification of the defendant whether by photograph or line-up. In Simmons, the court stated, in pertinent part: "* * * the danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error." [Emphasis added.] In the instant case it is clear that the court failed to allow the defendant to cross-examine the State's witnesses concerning facts and circumstances which had a direct relationship to the courtroom identification of the defendant. Since the weight and credibility to be given the testimony of the witnesses making courtroom identifications is a matter for the jury's determination, a refusal of the court to allow such cross-examination constitutes error so fundamental as to require reversal. For the reasons above set forth, the judgment and sentence is reversed and remanded for a new trial, consistent with this opinion. Reversed and remanded for a new trial. BRETT, P.J., and NIX, J., concur. NOTES [1] Suggestions were made in Thompson v. State, Okl.Cr., 438 P.2d 287, rendered by this Court subsequent to the Wade decision which lay down guidelines for trial courts in applying Wade.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2898863/	NO. 07-09-0136-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D AUGUST 20, 2009 ______________________________ IN THE INTEREST OF Z.A.S., A CHILD _________________________________ FROM THE 154TH DISTRICT COURT OF LAMB COUNTY; NO. 17,297; HONORABLE FELIX KLEIN, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION In this restricted appeal, appellant J.S.J. appeals a default judgment adjudicating paternity of a child, Z.A.S. Appellee Office of the Attorney General of Texas confesses error through a joint motion of the parties requesting reversal and remand. Based on our finding of reversible error on the face of the record, the judgment will be reversed and remanded for further proceedings. Background The Attorney General sued to establish J.S.J. as biological father of Z.A.S. and set child support. J.S.J. was served with process and filed a pro se general denial. The trial court set the matter for final hearing. The clerk’s record contains an “Order Establishing the Parent-Child Relationship,” signed October 29, 2008. According to findings in the order, J.S.J., “although duly notified, did not appear,” and “[a] record of the proceedings was waived by the parties with the consent of the court.” The order adjudged J.S.J. the biological father of Z.A.S., appointed him a possessory conservator of the child, and ordered J.S.J. make current and retroactive child support payments. J.S.J. filed no post-trial motions and the record contains no action by him in the case until he filed a notice of restricted appeal within six months of the trial court’s order. The Attorney General did not file an appellate brief. Instead, on August 13, 2009, the parties filed a document entitled “Joint Motion for Reversal and Remand and for Immediate Issuance of Mandate.” The motion bears the signatures of an assistant attorney general and counsel for J.S.J. The motion states J.S.J. was not present in person or by counsel for the hearing of the Attorney General’s suit, and by consenting to waiver of a record in J.S.J.’s absence the trial court erred. Analysis J.S.J. presents three issues on appeal. We find his first issue dispositive. Through it he challenges the trial court’s proceeding to judgment in default without a proper waiver of a reporter’s record. A restricted appeal must be brought within six months of the date the trial court signs the judgment, by a party to the suit, who did not participate in the actual trial, and the error complained of must be apparent from the face of the record. Tex. R. App. P. 26.1(c); Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (discussing former writ of error procedure). Of the grounds necessary for a restricted appeal, the sole question in the present matter is whether error appears on the face of the record. For purposes of restricted appeal, the face of the record consists of all papers on file in the appeal. Id. From the judgment of the trial court and the allegations of the joint motion, the trial court tried the Attorney General’s petition in the absence of J.S.J. without making a reporter’s record. Family Code Section 105.003 requires a record of the proceeding unless waived by the parties with the consent of the court. Tex. Fam. Code Ann. § 105.003(c) (Vernon 2008). In Stubbs v. Stubbs, the court held that the statutory predecessor of section 105.003 placed an affirmative duty on the trial court to ensure that the court reporter makes a record of proceedings involving parent-child relationships, and failure to do so constitutes error on the face of the record requiring reversal. 685 S.W.2d 643, 645-46 (Tex. 1985); In re Vega, 10 S.W.3d 720, 722 (Tex.App.–Amarillo 1999, no pet.). Section 105.003(c) places the same duty on the trial court. See In re D.J.M., 114 S.W.3d 637, 639 (Tex.App.–Fort Worth 2003, pet. denied). The order at bar recites the parties waived a record of the proceedings. J.S.J., however, was not present in person or by counsel to make a valid waiver. In In re Vega, when confronted with similar circumstances, we held where a party is neither present nor represented by counsel at the hearing, making a record cannot be waived as to the absent party and a trial court commits error in consenting to the waiver of a record. 10 S.W.3d at 722 (citing O'Connell v. O’Connell, 661 S.W.2d 261, 263 (Tex.App.–Houston [1st Dist.] 1983, no writ); G.S.K. v. T.K.N., 940 S.W.2d 797, 799 (Tex.App.–El Paso 1997, no writ)). The holding applies here. The trial court’s error is reversible error because, without a reporter’s record, we cannot determine whether the evidence supporting the trial court’s judgment was factually or legally sufficient. Tex. R. App. P. 44.1(a)(2). J.S.J.’s prayer for relief also asks that we vacate an administrative writ of withholding issued by the Attorney General. See Tex. Fam. Code Ann. § 158.501(a) (Vernon 2008). The record contains no indication J.S.J. presented his request for vacation of the writ of withholding to the trial court. See Tex. Fam. Code Ann. § 158.506(a)-(c) (Vernon 2008). His appellate complaint concerning the writ of withholding presents nothing for our review. See Tex. R. App. P. 33.1 (requiring timely request to trial court as prerequisite to appellate review). Accordingly, we sustain the first issue of J.S.J. to the extent it seeks reversal of the trial court’s order. Determination of his remaining issues is unnecessary to our disposition of the appeal. See Tex. R. App. P. 47.1. The parties brought the joint motion according to Rule of Appellate Procedure 42.1 seeking reversal and remand and immediate issuance of mandate. We may not “order a new trial merely on the agreement of the parties absent reversible error . . . .” Notes and Comments, Tex. R. App. P. 42.1. Here, however, reversible error appears on the face of the record. The parties also ask that mandate issue concurrently with our opinion and judgment. Rule of Appellate Procedure 18.1(c) authorizes the early issuance of mandate on the motion of the parties. Tex. R. App. P. 18.1(c). We grant the joint motion. Rule of Appellate Procedure 39.8 requires the clerk provide the parties a specified form of notice at least twenty-one days before argument or submission without argument. See Tex. R. App. P. 39.8. To expedite a decision, Rule of Appellate Procedure 2 authorizes a court on its own initiative to suspend the operation of a rule in a particular case. Tex. R. App. P. 2. By the joint motion, the parties seek immediate appellate relief. On our own initiative, we have applied Rule 2 and submitted the case without Rule 39.8 notice. Conclusion Having sustained the first issue of J.S.J. with respect to the action of the trial court, and granted the parties’ joint motion, we reverse the trial court’s “Order Establishing the Parent-Child Relationship,” signed October 29, 2008, and remand the case for further proceedings. Tex. R. App. P. 43.2(d). Mandate shall issue concurrently with this opinion and our judgment. James T. Campbell Justice	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/3099591/	NO. 07-12-00226-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E -------------------------------------------------------------------------------- JUNE 13, 2012 -------------------------------------------------------------------------------- IN RE LEANNE FARRELL COLLIER, RELATOR -------------------------------------------------------------------------------- Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J. ORDER Leanne Collier's application for writ of prohibition is denied as prematurely filed. See Tex. R. App. P. 52.8(d). Per Curiam	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/4516818/	C-Track E-Filing Nevada Appellate Courts Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search	01-03-2023	03-17-2020
https://www.courtlistener.com/api/rest/v3/opinions/1801758/	46 Cal. 4th 282 (2009) ___ Cal.Rptr.3d ___ ___ P.3d ___ GERARD STE. MARIE, Plaintiff and Respondent, v. RIVERSIDE COUNTY REGIONAL PARK AND OPEN-SPACE DISTRICT, Defendant and Appellant; MT. SAN JACINTO COMMUNITY COLLEGE DISTRICT, Real Party in Interest and Respondent. No. S159319. Supreme Court of California. May 14, 2009. 285 Joe S. Rank, County Counsel, Pamela J. Walls, Assistant County Counsel, Patti F. Smith, Deputy Counsel; Reed Smith, Paul D. Fogel, Dennis Peter Maio; and Anita C. Willis for Defendant and Appellant. Steven M. Woodside, County Counsel (Sonoma), Phyllis C. Gallagher, Deputy County Counsel; Ted C. Radosevich and Carol R. Victor for East Bay Regional Park District, Midpeninsula Regional Open Space District, Sonoma County Agricultural Preservation and Open Space District, Marin County Open Space District, Monterey Peninsula Regional Park District and Napa County Regional Park and Open Space District as Amici Curiae on behalf of Defendant and Appellant. Gerard Ste. Marie, in pro. per., for Plaintiff and Respondent. No appearance for Real Party in Interest and Respondent. OPINION WERDEGAR, J. We address today a question of statutory interpretation, the answer to which will have a profound effect on how regional park and open space districts can manage their real property holdings. The dispute in this case centers on a purported conflict between Public Resources Code[1] section 5565, which suggests real property is deemed "dedicated" for park or open space purposes at the moment of acquisition by a district, and section 5540, which suggests land is "actually dedicated" only after a district's board of directors adopts a formal resolution for such purposes. The difference is important because a district's ability to sell or otherwise convey land "actually dedicated" under section 5540 is limited by substantial statutory restrictions. The Court of Appeal below held that certain real property owned by defendant Riverside County Regional Park and Open-Space District (hereafter the Riverside District or the District) wasimmediately upon acquisitiondeemed by section 5565 "actually dedicated" for park or open space purposes within the meaning of section 5540, despite the absence of 286 any affirmative action by the District's board of directors so designating the property. Accordingly, the appellate court agreed with the trial court that the District's proposed transfer of the land was subject to the restrictions set forth in section 5540. Because the Court of Appeal misconstrued the interplay between sections 5540 and 5565, we reverse. FACTS The Legislature first authorized the creation of regional park districts in 1933 "for the purpose of acquiring, improving, and maintaining parks, playgrounds, beaches, parkways, scenic drives, boulevards and other facilities for public recreation." (Stats. 1933, ch. 1043, p. 2664, italics omitted.) This act was later codified in 1939 as section 5500 et seq. (Stats. 1939, ch. 94, p. 1217.) and then expanded in 1975 to include regional open space districts as well as combination use districts, called regional park and open space districts (§ 5500, as amended by Stats. 1975, ch. 813, § 2, p. 1846). Such districts now number eight in all and stretch from Los Angeles County in the south to Napa and Sonoma Counties in the north.[2] The oldest and most developed district, and the one envisioned by the authors of the original legislation in 1933, is the East Bay Regional Park District. Created in 1934, it spans Alameda and Contra Costa Counties and now encompasses 65 regional parks, over 97,000 acres of land, and over 1,000 miles of trails. Five additional districts have been legislatively authorized but have yet to be created. Today, existing regional park and/or open space districts in the state comprise several dozen regional parks and tens of thousands of acres of open space areas. The Legislature authorized the creation of the Riverside District in 1993. (§ 5541.2.) The enabling act provided the District "may plan, acquire, preserve, protect, and otherwise improve, extend, control, operate, and maintain open-space areas, greenbelt areas, wildlife habitat areas, and regional parks for the use and enjoyment of all the inhabitants of the district." The same statute further provides the District "may select, designate, and acquire land, or rights in land, within or without the district, to be used and appropriated for those purposes." The District exercised these statutory powers in 1995, acquiring approximately 161 acres of land in the Wildomar 287 area[3] of Riverside County from the Potter Family Trust. Although the land's appraised value was $1.37 million, the District paid only $950,000 for it and accepted the remaining $420,000 as a gift from the trust. At issue in the present proceeding is an approximately 80-acre portion of this acquisition (hereafter referred to as the Wildomar property). Although the District acquired and holds legal title to the Wildomar property, the Riverside County Board of Supervisors, which sits as the District's board of directors (§ 5538.7), never adopted a resolution formally dedicating the property as a regional park, a regional open space, or a combination of a regional park and open space area. All parties concede the Wildomar property consists of land "in an essentially unimproved state." In 2003, the District's board of directors entered into an option agreement with the Mt. San Jacinto Community College District, agreeing to convey the Wildomar property to the college district for construction of a new community college campus. The proposed sale of the Wildomar property was neither approved by the District's voters nor by the state Legislature following a supermajority vote by the District's board of directors. Plaintiff Gerard Ste. Marie, a Wildomar and Riverside County resident, thereafter filed the petition for a peremptory writ of mandate that forms the basis of the present proceeding, contending the proposed conveyance of the Wildomar property would violate section 5540 and thus "there exists a real and immediate danger that [the District] will commit irreparable harm by conveying and disposing of the Wildomar property in direct contravention [of] the prohibitions of state law." During the pendency of the trial court proceedings, the District unsuccessfully sought a joint resolution in the state Legislature that would have authorized the sale of the Wildomar property to the Mt. San Jacinto Community College District. The trial court thereafter directed issuance of a peremptory writ of mandate, prohibiting sale of the Wildomar property until such time as the District complies with the requirements of section 5540; that is, until it obtains voter approval or legislative authorization for the sale. The Court of Appeal affirmed, and we granted review. DISCUSSION The dispute in this case arises from the potential confusion generated by the use of the word "dedicated" in two different sections of the Public Resources Code, in light of the substantial restrictions the code imposes on the sale of park district property that has been "actually dedicated" for park or open space purposes. Thus, section 5540 provides in pertinent part: "A 288 district may not validly convey any interest in any real property actually dedicated and used for park or open-space, or both, purposes without the consent of a majority of the voters of the district voting at a special election called by the board and held for that purpose. [But] ... consent need not first be obtained for a conveyance of any real property if the Legislature, by concurrent resolution, authorizes a conveyance after a resolution of intention has been adopted by at least a two-thirds vote of the board of directors of the district, specifically describing the property to be conveyed." (Italics added.) Invoking these restrictions on conveyance, plaintiff relies on section 5565, which provides in pertinent part that "[t]he legal title to all property acquired by the district under the provisions of this article shall immediately and by operation of law vest in the district, and shall be held by the district in trust for, and is dedicated and set apart for, the uses and purposes set forth in this article." (Italics added.) The Court of Appeal agreed with plaintiff that this sentence from section 5565 means that real property is deemed "dedicated" for park or open space purposes at the moment a district legally acquires title to the property. Thus, according to plaintiff and the appellate court, the Wildomar property was "actually dedicated" for park purposes when the District took title to the land in 1995, and consequently the District cannot sell the property to the Mt. San Jacinto Community College District without voter or legislative approval. By contrast, the District contends the "actual[] dedicat[ion]" referred to in section 5540 differs from the "dedication" referred to in section 5565, and that because the District's board of directors has not adopted a resolution actually dedicating the Wildomar property for park or open space purposes, the land is not subject to the restrictions on conveyance set forth in section 5540. Thus, the District, supported by amici curiae, argues an interest in real property is not "actually dedicated" under section 5540 until the District's board of directors formally adopts a resolution of dedication. (1) As with all questions of statutory interpretation, we attempt to discern the Legislature's intent, "being careful to give the statute's words their plain, commonsense meaning. [Citation.] If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature's intent is unnecessary." (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal. 4th 911, 919 [129 Cal. Rptr. 2d 811, 62 P.3d 54] (Kavanaugh).) Here, section 5565's language, stating that land for which a park district holds legal title "is dedicated and set apart for, the uses and purposes set forth in this article" (italics added), arguably could mean that such land was "actually dedicated and used for park or open-space" purposes under the meaning in section 5540 (italics added). (2) The same word ("dedicated") is used in both statutes, and one 289 rule of statutory construction specifies that a word given a particular meaning in one part of a law should be given the same meaning in other parts of the same law. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 643 [59 Cal. Rptr. 2d 671, 927 P.2d 1175].) (3) On closer inspection, however, it becomes clear this axiom of construction does not control here because, although the same word is used in both statutes, the Legislature did not use it in the same way. Section 5565 states that land is "dedicated," whereas section 5540 imposes conveyance restrictions on land that is "actually dedicated." Although plaintiff argues these two usages of "dedicated" amount to the same thing, to so conclude would render surplusage the important qualifying word "actually," violating the rule of statutory construction that courts should, if possible, accord meaning to every word and phrase in a statute so as to better effectuate the Legislature's intent. (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal. 4th 985, 991-992 [73 Cal. Rptr. 2d 682, 953 P.2d 858]; see also People v. Thompson (2006) 38 Cal. 4th 811, 833 [43 Cal. Rptr. 3d 750, 135 P.3d 3] (dis. opn. of Werdegar, J.) ["[t]he qualifiers are important"].) To find use of the word "dedicated" in both statutes dispositive would thus be an overly superficial interpretation. (4) We must of course read statutes as a whole so that all parts are harmonized and given effect. (Kavanaugh, supra, 29 Cal.4th at p. 919.) Doing so reveals that the two instances discussed above are not the only times the word "dedicated" is employed in the relevant statutes. Thus, although the limitations on the sale of property in section 5540's third paragraph were included in the original version of the statute in 1939, that section's second paragraph was added in 1985. (Stats. 1985, ch. 371, § 1, p. 1529.) That second paragraph provides: "Lands subject to the grant of an open-space easement executed and accepted by the district in accordance with this article are enforceably restricted within the meaning of Section 8 of Article XIII of the California Constitution. An easement or other interest in real property may be dedicated for park or open-space purposes, or both, by the adoption of a resolution by the board of directors, and any interest so dedicated may be conveyed only as provided in this section." (§ 5540, italics added.) (5) A park district like the Riverside District acts through its board of directors (§§ 5527, 5593),[4] which by statute "shall act only by ordinance, 290 resolution, or a motion duly recorded in the minutes of the meeting" (§ 5547). Because land held in fee simple is an "other interest in real property," section 5540 directs that land held in fee simple "may be dedicated ... by the adoption of a resolution by the board of directors ...." But if plaintiff is correct that under section 5565 real property is deemed dedicated for park or open space purposes at the moment of acquisition, the alternative dedication procedure set forth in section 5540's second paragraph (i.e., dedication by adopting a resolution) would be unnecessary and superfluous. This anomaly strongly suggests plaintiff's proposed interpretation of section 5565 is incorrect and that the Legislature could not have intended that real property should be deemed actually dedicated at the moment a district acquires it. Attempting to avoid this inconsistency, plaintiff urges us to adopt a different interpretation of section 5540's second paragraph, contending a reasonable reading of this paragraph, including a consideration of its "grammatical structure," reveals the amendment "primarily concerned easements." We agree the 1985 amendment, describing dedication by resolution, primarily concerned easements, but disagree with plaintiff's further, implicit argument that the amendment solely concerned easements.[5] Although both sentences of the paragraph added to section 5540 in 1985 indeed mention easements, the passage in question refers to more than easements; it refers to "[a]n easement or other interest in real property ...." (Italics added.) Thus, the statutory amendment, on its face, embraces more than just easements. (6) Despite this plain language, plaintiff contends it is "obvious" from the provision's legislative history that section 5540's second paragraph is limited to easements. "In order to ascertain a statute's most reasonable meaning, we often examine its legislative history." (Kavanaugh, supra, 29 Cal.4th at p. 920.) But resort to a statute's legislative history is appropriate only if the statute is reasonably subject to more than one interpretation or is otherwise ambiguous. Here, section 5540's reference to "[a]n easement or other interest in real property" (italics added) is clear on its face. But even were we to assume the provision is ambiguous (see Alford v. Superior Court (2003) 29 291 Cal.4th 1033, 1059 [130 Cal. Rptr. 2d 672, 63 P.3d 228]), the legislative history would not support plaintiff's proposed interpretation.[6] As plaintiff observes, the available legislative documents indicate the 1985 amendment to section 5540 was intended to address a problem concerning how park districts could hold and dispose of easements. According to the Office of Local Government Affairs, the legislation then known as "AB 2253" was "sponsored by the Midpeninsula Regional Open-Space District." (Off. of Local Government Affairs, Enrolled Bill Rep. on Assem. Bill No. 2253 (1985-1986 Reg. Sess.) July 23, 1985, p. 2.) Although districts were authorized to purchase and dispose of real property, "these districts may also acquire easements; such as a trail easement across private property, or an easement on private property on which the land is declared an open-space area, and the public has no right[] to use. The sponsor states that current law is not clear whether the above easements can be dedicated, as park-owned lands are currently dedicated. [¶] AB 2253 would clarify that easements may be dedicated by park and open-space districts." (Ibid.) That the 1985 amendment to section 5540 was intended to address a perceived problem concerning the acquisition and management of easements is further confirmed by the bill analysis provided by the Department of Parks and Recreation, dated April 18, 1985, which states that "[e]xisting law (PRC 5540) authorizes regional park and open-space districts to `dedicate' real or personal property for district purposes. [¶] According to the sponsor, there is no specific authority for local park districts to dedicate `easements' for park and open-space purposes. The proponents contend this bill would clearly establish this authority, eliminate the law's existing ambiguity and, thus, avoid `future' problems with legal interpretations." (Dept. of Parks and Recreation, Analysis of Assem. Bill No. 2253 (1985-1986 Reg. Sess.) Apr. 18, 1985, p. 1.) This view is essentially repeated in the analyses of the Senate Committee on Natural Resources and Wildlife, July 7, 1985, page 2, and the Senate Rules Committee, Office of Senate Floor Analyses, July 11, 1985, pages 1-2. But that is not the end of the story. The aforementioned Department of Parks and Recreation bill analysis, page 2, also includes this comment: "This bill would `clarify' local park district authority to dedicate easements without substantially changing the district's current dedication authority for other property." (Italics added.) This suggests the Legislature understood that under the then extant state of the law, a park district's "current dedication authority" for real property involved some affirmative act (such as adoption of a resolution by the board of directors) and did not happen automatically merely upon passage of legal title from a seller to a district. 292 That this must have been the Legislature's understanding is further underscored by other comments in the available legislative documents. For example, the enrolled bill report of the Office of Local Government Affairs states that "[a]ccording to the sponsor, current law allows park[] and open-space districts to purchase land and dedicate such land for park or open-space purposes. Once the land has been so dedicated, the district may convey or dispose of this land" only by majority vote or legislative resolution. (Off. of Local Government Affairs, Enrolled Bill Rep. on Assem. Bill No. 2253 (1985-1986 Reg. Sess.) July 23, 1985, p. 2, italics added.) Use of the word "once" suggests that mere acquisition of land does not suffice for dedication, but that some later affirmative act is required. The same document notes that "current law is not clear whether ... easements can be dedicated, as park-owned lands are currently dedicated." (Ibid., italics added.) Thus, nothing in the history of the 1985 amendment to section 5540 suggests the Legislature understood it was creating a different, alternative means of dedicating real property, applicable solely to easements. By adding language specifying that easements could be dedicated by the adoption of a resolution by a district's board of directors, it instead appears the Legislature understood it was clarifying that easements should be dedicated "as park-owned lands [were] currently dedicated," that is, by a park district's board of directors adopting a formal resolution dedicating the easement for park or open space purposes. Although plaintiff suggests the statutory scheme can embrace two methods of dedicating interests in real property, nothing in the history of section 5540 or the 1985 amendment thereto suggests either a legislative intent to create such a dual system or a possible purpose for maintaining one. (7) The District's interpretation of sections 5540 and 5565 is thus supported by the plain language and the legislative history of those statutes, as well as that of the 1985 amendment to section 5540. The District's interpretation is further supported by the interpretation of those statutes by the various districts themselves (see ante, at p. 286, fn. 2), as evidenced by their long-standing internal practices. "[C]ourts must give great weight and respect to an administrative agency's interpretation of a statute governing its powers and responsibilities. [Citation.] Consistent administrative construction of a statute, especially when it originates with an agency that is charged with putting the statutory machinery into effect, is accorded great weight." (Mason v. Retirement Board (2003) 111 Cal. App. 4th 1221, 1228 [4 Cal. Rptr. 3d 619].) Significant factors to consider include whether the administrative interpretation has been formally adopted by the agency or is instead in the form of an advice letter from a single staff member, and whether the interpretation is long-standing and has been consistently maintained. (Sara M. v. Superior Court (2005) 36 Cal. 4th 998, 1013 [32 Cal. Rptr. 3d 89, 116 P.3d 550]; see also Yamaha Corp. of America v. State Bd. of Equalization 293 (1998) 19 Cal. 4th 1, 12-15 [78 Cal. Rptr. 2d 1, 960 P.2d 1031].) Such deference is also appropriate for practical reasons: "When an administrative interpretation is of long standing and has remained uniform, it is likely that numerous transactions have been entered into in reliance thereon, and it could be invalidated only at the cost of major readjustments and extensive litigation." (Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal. 2d 753, 757 [151 P.2d 233].) Amici curiae state: "Since their inception, the amici districts have interpreted the `actually dedicated' language in section 5540 as requiring an affirmative act of dedication by their respective boards separate and apart from the board's decision to acquire the real property interest. This ensures that the district's board has had a meaningful opportunity to assess the wisdom of such a dedication. All of the amici districts make conscious choices about dedicating interests in real property acquired with taxpayer dollars; some do so pursuant to carefully written policies that explain the considerations and process involved in an act of dedication. [Citation.] [¶] Consistent with their interpretation of `actually dedicated' in section 5540, the amici districts have operated with the understanding that they were free to convey any real property or interest in real property that had not yet been `actually dedicated' by board resolution, so long as the proceeds of the sale were used for the [1933] Act's purposes." (See also § 5563 [authorizing district to sell surplus property "subject to the provisions of Section 5540" so long as the sale proceeds are used for district purposes].)[7] This view is supported by East Bay Regional Park District Resolution No. 4500, adopted January 22, 1974, in which that district recognized the difference between dedicated and undedicated district land, and explained that "[n]ormally undedicated lands within the [d]istrict's boundaries will be held for future dedication to park or open space purposes, but only after the 294 necessary planning, boundary adjustments, provision for permanent access and other changes in configuration which may involve the disposition or exchange of portions of such lands have been completed. Nevertheless, undedicated land may be used on a limited basis for park purposes, but any such use shall not in any way constitute an express or implied dedication of such lands for park purposes within the meaning of Section 5540 of the Public Resources Code." (Italics added.) Thus, according to amici curiae's brief and the materials we have judicially noticed, regional park and open space districts in California have operated for decades under the statutory scheme at issue in this case and have interpreted section 5540 as giving them (1) the option of acquiring land without formally dedicating it for park or open space purposes, (2) the ability to hold land in a "land bank" until it is deemed appropriate for formal dedication, and (3) the authorization to later dedicate such property in perpetuity for park purposes. This ability to delay a board vote to "actually dedicate" acquired property allows districts to engage in long-range strategic planning, and permits such districts to acquire property when it becomes available and to hold it in a "land bank" for possible future use as park or open space, even if such use, for a variety of reasons, is not yet feasible. Nothing in these materials from the various districts supports the notion that all real property is deemed automatically dedicated for park purposes immediately upon acquisition by operation of section 5565. Such a long-standing interpretation of a statutory scheme by the government entities involved, established not by a single staff member but memorialized in their master plans or by a resolution adopted by their boards of directors, is entitled to great weight and we defer to it. (Sara M. v. Superior Court, supra, 36 Cal.4th at p. 1013.) Our conclusion, moreover, is also consistent with section 5595, which provides: "This article[[8]] shall be liberally construed to promote its objects and to carry out its intents and purposes." As noted, ante, the intent of the legislative scheme was to create park districts "for the purpose of acquiring, improving, and maintaining parks, playgrounds, beaches, parkways, scenic drives, boulevards and other facilities for public recreation." (Stats. 1933, ch. 1043, p. 2664, italics omitted.) Amici curiae park districts explain in their brief why recognizing a difference between a dedication of land within the meaning of section 5565 and an actual dedication within the meaning of section 5540 promotes this legislative purpose, and why plaintiff's proposed scheme of automatic and immediate dedication by operation of section 5565 would severely undermine the functioning of park districts. According to amici curiae: "Many of the [park] districts lack the authority of eminent 295 domain, and therefore participate in the real estate market as any private buyer wouldin competition with other potential purchasers. Even where a district has the power of eminent domain, it may have a policy to use this power sparingly for obvious practical and political reasons. Fee title acquisitions in particular require that a district act quickly and with the same flexibility as a private buyer. Often, a district must act to protect a parcel by purchasing it from a seller who has listed a parcel for sale before the district has had an opportunity to fully assess the potential park uses or boundaries of the parcel or the open space value of the parcel. On some occasions, the post-acquisition study might find that it is not in the public's best interest for the district to hold onto the property, or the entirety of the property. The district may then determine that it is in the best interest of the public to declare the property surplus, sell it, and use the funds to purchase other open space. Similarly, a seller might list several parcels for sale as an all or nothing proposition. The district may know in advance of the purchase that only some of the parcels are valuable park or open space properties, but may decide to go ahead with the acquisition with the intent of conveying that portion not appropriate for park or open space." (8) In sum, interpreting section 5540 so as to permit park districts to hold land they have acquired in a "land bank" until such time as it is appropriate to formally create a regional park or open space area and actually dedicate land as such is consistent with a liberal interpretation of sections 5540 and 5565 and is thus consistent with section 5595. (9) Plaintiff argues to the contrary that our conclusion that real property is not "actually dedicated" under section 5540 until a district's board of directors adopts a formal resolution of dedication actually violates section 5595. He claims our "interpretation would only serve to elevate form over substance and is antithetical to a liberal construction of the article" because it would create two classes of propertythat dedicated for park use upon acquisition and that "actually dedicated" by formal resolutionidentical in substance, but only the latter garnering the protections against conveyance set forth in section 5540. But aside from whether his proposed interpretation is more "liberal" or not, his premise is faulty, for land acquired but not formally dedicated for park or open space purposes is not identical to land that has been formally dedicated. The latter has been subjected to greater scrutiny by the district, culminating in a considered decision that it is appropriate for a park or open space area. Property that has not been subjected to these rigors is simply held in a "land bank" for possible future use as a park or open space area. We thus reject plaintiff's claim that our interpretation violates section 5595. (10) Plaintiff raises two additional subsidiary arguments, but neither is persuasive. He first contends that requiring some affirmative act in order to 296 "actually dedicate[]" property within the meaning of section 5540 effects a repeal of section 5565 by implication. Of course, such repeals are disfavored (Professional Engineers in California Government v. Kempton (2007) 40 Cal. 4th 1016, 1030 [56 Cal. Rptr. 3d 814, 155 P.3d 226]; In re M.S. (1995) 10 Cal. 4th 698, 726 [42 Cal. Rptr. 2d 355, 896 P.2d 1365]), but we disagree our interpretation of section 5540 renders section 5565 meaningless. Because section 5565 directs that "[t]he legal title to all property acquired by the district ... shall immediately and by operation of law vest in the district, and shall be held by the district in trust for, and is dedicated and set apart for, the uses and purposes set forth in this article," land acquired by a park or open space district must be set aside and may not be used for nonpark purposes. Amici curiae park districts explain that they achieve this end by holding land in a "land bank" until appropriate planning, mapping, and surveying can by accomplished, a process that may or may not lead to formal dedication as a regional park or open space area. Although districts must set aside such land and hold it in trust, nothing in section 5565 obligates a district to immediately proceed and establish a park on the land. Instead, it may hold the land in trust for creation of a park in the future. (Cf. Pub. Util. Code, § 16432 [public utility can acquire land and hold it in trust, and such land "is dedicated and set apart to the uses and purposes set forth in this division"]; Stats. 1903, ch. 238, § 26, p. 298, West's Ann. Wat.-Appen. (1968 ed.) ch. 8, p. 67 [water drainage district can acquire land, and such land "shall be held by such district in trust for and is hereby dedicated and set apart to the uses and purposes set forth in this act"].)[9] Plaintiff contends, finally, that his interpretation of sections 5540 and 5565 is more consistent with state constitutional policy, as set forth in section 8 of article XIII of the California Constitution. That section provides in pertinent part that "[t]o promote the conservation, preservation and continued existence of open space lands, the Legislature may define open space land and shall provide that when this land is enforceably restricted, in a manner specified by the Legislature, to recreation, enjoyment of scenic beauty, use or conservation of natural resources, or production of food or fiber, it shall be valued for property tax purposes only on a basis that is consistent with its restrictions and uses." Although no tax question is raised in the instant case, plaintiff apparently assumes this constitutional provision evidences a positive constitutional value for the promotion of open space. But even assuming his assumption is correct and that the provision could provide the basis for some *297 enforceable right, it has no bearing here. As we have explained, the Legislature has in fact defined "when this land is enforceably restricted" by enacting section 5540, limiting when such land can be sold or otherwise conveyed following actual dedication for park or open space purposes. And, as amici curiae have explained, interpreting sections 5540 and 5565 to mean that land is actually dedicated immediately upon acquisition would eliminate a district's flexibility in dealing with its land holdings and actually diminish a park district's willingness to acquire land for park and open space purposes. CONCLUSION For the foregoing reasons, we reverse the judgment of the Court of Appeal. George, C. J., Kennard, J., Baxter, J., Chin, J., Moreno, J., and Corrigan, J., concurred. NOTES [1] All further statutory references are to this code unless otherwise stated. [2] In support of defendant Riverside District, we have received a joint amicus curiae brief from the East Bay Regional Park District, the Midpeninsula Regional Open Space District, the Sonoma County Agricultural Preservation and Open Space District, the Marin County Open Space District, the Monterey Peninsula Regional Park District, and the Napa County Regional Park and Open Space District. Of the eight existing park or open space districts in California, only the district in Los Angeles County (§ 5506.9) is unrepresented before this court, no doubt because, as amici curiae assert, the Los Angeles County Open Space and Recreation District does not hold title to any real property but acts merely as a funding source for parks administered by other entities. [3] Wildomar is located north of Temecula and just south of Lake Elsinore. [4] Section 5527 provides in part: "The government of each district shall be vested in a board of five or seven directors ...." Section 5593 provides: "All matters and things necessary for the proper administration of the affairs of districts which are not provided for in this article shall be provided for by the board of directors of the district." [5] Had the Legislature been concerned solely with how a district acquires and dedicates easements, it would have been simpler to amend section 5565 to say: "The legal title to all property including easements acquired by the district under the provisions of this article shall immediately and by operation of law vest in the district, and shall be held by the district in trust for, and is dedicated and set apart for, the uses and purposes set forth in this article." (Underscoring added.) That the Legislature instead chose to amend section 5540 and specify that easements should be dedicated by having a district's board of directors adopt a resolution of dedication strongly suggests the meaning of the phrase "actually dedicated" in section 5540's third paragraph refers to this procedure. [6] The Court of Appeal granted the District's first request for judicial notice, which contained the legislative history of this provision. Plaintiff recently filed a request for judicial notice of this same material in order to ensure this court considers it. We grant this request. [7] We grant amici curiae's second request for judicial notice, filed in this court on November 19, 2008, of eight items comprising various master plans, board resolutions (including resolutions to dedicate park property), and declarations of policy. (See Evans v. City of Berkeley (2006) 38 Cal. 4th 1, 7, fn. 2 [40 Cal. Rptr. 3d 205, 129 P.3d 394] [notice proper for city council resolution]; County of San Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal. App. 4th 86, 97, fn. 4 [45 Cal. Rptr. 3d 674] [same, for community college "Master Plan of expansion final EIR"]; Souza v. Westlands Water Dist. (2006) 135 Cal. App. 4th 879, 886-887, fn. 1 [38 Cal. Rptr. 3d 78] [same for water district's agenda]; see Evid. Code, § 452, subd. (b) [judicial notice permissible for "[r]egulations and legislative enactments issued by or under the authority of . . . any public entity in the United States"].) Although plaintiff concedes the materials are noticeable under the Evidence Code, he urges us to decline the request for judicial notice, arguing the materials are irrelevant to the Riverside District's practices. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal. 4th 415, 422, fn. 2 [101 Cal. Rptr. 2d 200, 11 P.3d 956].) They are, however, relevant to the interpretation of sections 5540 and 5565. We thus reject the argument, as well as his further one that judicial notice is improper because the material was not submitted to the lower courts. [8] The term "article" in section 5595 refers to article 3 ("Regional Park, Park and Open-Space, and Open-Space Districts") of chapter 3 ("Districts") of division 5 ("Parks and Monuments") of the Public Resources Code. [9] We express no opinion on whether actions by the board other than adopting a formal resolution of dedication could establish under section 5540 that property has been "actually dedicated" for park or open space purposes.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875616/	458 F.Supp. 213 (1978) Carlos R. LAVENDER-CABELLERO, Individually and on behalf of all others similarly situated, Plaintiff, v. DEPARTMENT OF CONSUMER AFFAIRS OF the CITY OF NEW YORK, Elinor G. Guggenheimer, Individually and in her capacity as Commissioner and chief executive officer of the Department of Consumer Affairs of the City of New York, and her successors in office, et al., Defendants. No. 77 Civ. 6201 (RWS). United States District Court, S. D. New York. October 24, 1978. 214 Steven Savner, Isabelle Katz Pinzler, New York City, for plaintiff National Employment Law Project, Inc. Allen G. Schwartz, Corp. Counsel, New York City, for defendant, by Angelo Aiosa, New York City, of counsel. OPINION SWEET, District Judge. Defendants here seek dismissal, pursuant to Rule 12(b), Fed.R.Civ.P., (i) of plaintiff's claims premised on Title VII of the Civil Rights Act of 1964, (ii) of plaintiff's claims under the Fourteenth Amendment and (iii) of certain of the defendants upon grounds of insufficiency of service of process. For the reasons set forth below, the motions to dismiss certain defendants for insufficiency of process and to dismiss the Title VII claims are granted; the motion to dismiss the Fourteenth Amendment claims is denied. Motion to Dismiss Title VII Claims Defendants' motion to dismiss all claims made under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), presents an issue of law which appears unsettled and has not been the subject of any decision in this Circuit. Since the 1972 amendments, Title VII has been applied to state and local governments, as employers. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). The question here presented is whether Title VII should be extended to a city agency in the exercise of its statutory mandate to issue licenses, in this instance, to process servers. No party has set forth, nor has this court been able to find, any explicit language, in either the statute or the legislative history, to illuminate this issue. Plaintiff urges a broad and liberal interpretation to accomplish the remedial purposes of the statute, requiring Title VII to be extended to a state licensing agency, even absent any explicit authorization. Defendants maintain that Congress, by the absence of a specific declaration, intended to eschew the application of Title VII to the historical state function of licensing. In the 1960's, the effort to prevent discrimination in the nation was codified by Congress in new civil rights legislation. The Civil Rights Act of 1964 ("the Act"), as with any legislation creating new rights and remedies in an area marked by turmoil and passion, was not perfect, but it provided a foundation upon which Congress could build as the issues and the nation's requirements became clarified. Included among the 1972 revisions of the Act was a provision which explicitly extended Title VII to state and local governments who were employers within the meaning of the Act. Now this court is urged to extend the application of Title VII to a city agency in the exercise of its licensing function since obviously 215 enough, licensing can affect employment. To say that Congress was unaware of potential employment-related problems resulting from state and city licensing would be to deny reality. However, Congress chose not to enact provisions which would have extended Title VII in the fashion requested by the plaintiff. Were the position of the plaintiff adopted by the court, then every state licensing function involving employment would logically fall under the sweep of Title VII. No demonstration has been made in this action, or indeed in this city and this state, that such a sweeping court legislation is required to prevent manifest discrimination. Indeed, even if such a demonstration could be mounted here, or elsewhere in the nation, it should properly be made in the halls of Congress, not the courtroom. The decisions cited by the plaintiff do not require a contrary conclusion. In Sibley Memorial Hospital v. Wilson, 160 U.S.App. D.C. 14, 488 F.2d 1338 (1973) the court extended Title VII to a private employer who by authorizing persons to perform nursing duties had the capacity to discriminate with respect to an individual's employment opportunities. The plaintiff was not a state or city licensing agency performing a separate, and presumably necessary public, as opposed to private function, separate and apart from employment itself. Similarly, in Puntolillo v. New Hampshire Racing Commission, 375 F.Supp. 1089 (D.N. Hampshire 1974) the plaintiff-defendant relationship was primarily one of employment (id. at 1092); in fact, defendant actually operated a raceway and had jurisdiction over all facets of harness racing. Id. at 1090 n. 4. Here the licensing agency has absolutely no relationship to the plaintiff or his employment other than as a consequence of performance of its duties pursuant to its police powers, rather than as a result of proprietary powers, as in Puntolillo. The distinction between the proprietary and essentially private functions described in Sibley or Puntolillo and the regulatory function delineated by the line of cases holding that governmental bodies are not employers within the meaning of Title VII when exercising their licensing function with respect to bar examinations (see e. g. Tyler v. Vickery, 512 F.2d 1089, 1096 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976); Woodward v. Virginia Bd. of Bar Examiners, 420 F.Supp. 211 (E.D.Va.1976)) is persuasive. Although a process server's license is not a professional license, the city does have a compelling interest in the service of process within its jurisdiction. This court is not blind to the recent controversy of alleged "sewer service" and the corresponding public and governmental interest in assuring the elimination of such practices and the proper service of process to those subject to its judicial system. To impose the Federal oversight of state regulation of such interests required by Title VII, the Congressional mandate must be more explicit. See e. g. Palmer v. Massachusetts, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93 (1939); F.T.C. v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881 (1941). This is particularly so where the state and city agencies are subject to their own legislative and constitutional mandates to prevent discrimination. Defendants' motion to dismiss plaintiff's Title VII cause of action is granted.[1] Motion to Dismiss Fourteenth Amendment Claims Defendant moves to dismiss plaintiff's claims for monetary relief under the Fourteenth Amendment on the ground that such claims are time-barred. Since the Fourteenth Amendment has no specifically *216 stated period of limitation for bringing suit, the controlling period is the one most appropriate under the laws of New York. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Since (i) the complaint is not couched in terms of a tort action, (ii) the defendants here are individuals and not the city and (iii) plaintiff's Fourteenth Amendment claims are interrelated with his statutory claims under 42 U.S.C. §§ 1981, 1983 and 1985(3), this court concludes that the most appropriate state limitation period is that provided by C.P.L.R. § 214(2), and not General Municipal Law § 50-i. Martin Hodas, East Coast Cinematics v. Lindsay, 431 F.Supp. 637 (S.D.N.Y.1977). Since the instant action was commenced within the applicable three year period, it is not time-barred. Motion to Dismiss For Insufficiency of Service of Process Although this action was commenced approximately one year ago, defendants Opotowsky and Baez have yet to be served with process. Plaintiff has not complied with Rule 4(d)(1), Fed.R.Civ.P., or C.P.L.R. § 308. Merely dropping off a summons with Shelly J. Sherman, a fellow employee of these defendants, without any authorization to Ms. Sherman to accept service or any representation by her that she would deliver the summons to Opotowsky and Baez is insufficient service of process. McDonald v. Ames Supply Co., 22 N.Y.2d 111, 291 N.Y.S.2d 328, 238 N.E.2d 726 (1968). Plaintiff has submitted no explanation, or affidavit of the process server, indicating that the server "acted reasonably and diligently in attempting to fulfill the statutory mandate and under circumstances bringing the questioned process within the purview of the person to be served." Id. at 115-16, 291 N.Y.S.2d at 332, 238 N.E.2d at 728. The complaint against defendants Opotowsky and Baez is dismissed. SO ORDERED. NOTES [1] Although no longer relevant for purposes of this opinion, it should be noted that plaintiff's claim was timely filed under § 706 of Title VII, 42 U.S.C. § 2000e-5. Having initially filed his charge of discrimination with the EEOC, plaintiff's time for filing charges was extended from 180 to 300 days. Id. The period did not begin to run until on or about December 12, 1974, when plaintiff's prospective employer received the letter which for the first time advised plaintiff of the reason he was denied a license.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2898416/	NO. 07-08-0513-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 4, 2009 ______________________________ DANIEL LUIS CANCINO, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 69 TH DISTRICT COURT OF DALLAM COUNTY; NO. 4046; HON. RON ENNS, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Daniel Luis Cancino (appellant) pled guilty to aggravated assault with a deadly weapon, without the benefit of an agreement on punishment. The trial court eventually sentenced him to twelve years in prison. Appellant appealed, and his retained attorney filed a motion to withdraw. In that motion he certified that, after diligently searching the record, there was no reversible error. We granted counsel’s motion to withdraw and for the reasons which follow, we affirm the judgment. The provisions of Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) do not apply to retained counsel. Torres v. State, 271 S.W.3d 872, 873 (Tex. App.–Amarillo 2008, no pet.); Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.– Corpus Christi 2004, no pet.); Craddock v. State, 38 S.W.3d 886, 887 (Tex. App.– Waco 2001, no pet.). This is allegedly so because by securing retained counsel, the appellant has received all that Anders was designed to insure. Rivera v. State , 130 S.W.3d at 458. Nonetheless, like their counterparts who have been appointed, retained counsel also have an ethical obligation to refuse to pursue a frivolous appeal. Id. So, when counsel encounters such an appeal, he must inform the appellate court of it and seek leave to withdraw in compliance with Rule 6.5 of the Texas Rules of Appellate Procedure. Id. Here, appellant’s retained counsel told us that he reviewed the appellate record and discovered no arguable ground for reversal. Moreover, the motion to withdraw that he filed discloses the party’s name and last known address and telephone number, a statement that a copy of the motion was delivered to the party, and a statement that the party was notified in writing of the right to object to the motion, as required by Rule 6.5. Tex. R. App. P. 6.5(a). Upon receiving the motion, we sent appellant a letter informing him of his attorney’s representation about the frivolousness of the appeal and the pending motion to withdraw. So too did this court tell appellant, via the same letter, that he had the opportunity to respond to the brief and motion by November 12, 2009, and review the record if he should care to respond. The letter was addressed to appellant’s last known address. To date, we have not received a response from him. In situations like that before us, we are not bound by the prohibitions of Rule 38.8(b)(3) of the Texas Rules of Appellate Procedure. Rivera v. State , 130 S.W.3d at 459 (stating that Rule 38.8(b) generally prohibits an appellate court from dismissing or considering an appeal simply because no appellant’s brief was filed, but it was not designed to protect a non-indigent appellant from retained counsel’s determination that the appeal is without merit). Moreover, we know of no rule that obligates us to retain on our docket an appeal which appellant has represented, through his hired attorney, as frivolous simply because the appellant failed to respond to his attorney’s motion to withdraw or to the brief that the attorney filed. Nonetheless and in the interest of justice, we undertook an independent review of the appellate record to determine whether counsel’s representation regarding the frivolousness of the appeal was accurate. After doing so, we found no arguable issue warranting reversal, conclude that counsel was accurate, and find no reason to allow the appeal to proceed. Accordingly, we affirm the trial court’s judgment. Brian Quinn Chief Justice Do not publish.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2897823/	NO. 07-08-0042-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 23, 2008 ______________________________ In re JERRY DALE JENKINS, Relator _________________________________ Memorandum Opinion on Original Proceeding for Writ of Mandamus _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before the court is a document filed by Jerry Dale Jenkins entitled “Request for Appellate Records[,] Clerk’s File Docket Sheet, Clerk’s Court Docket Sheet, and the Minutes Read and Signed, and the Order of Cases Furnished Without Charge.” Therein he contends that the trial court denied his request for a return of his property and asks that we “grant [his] motion . . . and . . . enter an order directing the County . . . and District Attorney and Sheriff to forthwith return said Property to Jerry Dale Jenkins.” Furthermore, he requests that we “order the Hall County District Clerk . . . [to] provide true and correct copies of every specific documents [sic] requested and legal documents pertaining to cause numbers: 3247 and 3248. . . free of charge, . . . .” We deny the requests for the following reasons. First, to the extent that Jenkins is attempting to mandamus the district clerk in order to obtain a free record, we lack authority to do so. Courts of appeals may only issue writs of mandamus 1) against a district or county court judge within the court’s district or a district court judge who is acting as a magistrate at a court of inquiry under Chapter 52 of the Texas Code of Criminal Procedure within the court’s district and 2) to preserve its jurisdiction. TEX . GOV’T CODE ANN . §22.221 (Vernon Supp. 1999). Since it has not been alleged that the district clerk is acting as a judge subject to our mandamus powers or that the writ is necessary to preserve our jurisdiction over a pending appeal, we have no authority to grant the relief requested. The same would be true of the relief sought against the county and district attorneys and the sheriff. Second, to the extent that Jenkins is also asking for mandamus against the judge to direct the return of his property, the rules of procedure obligate one seeking such relief to accompany his petition with an appendix. TEX . R. APP. P. 52.3(j). The latter must include, among other things, a certified or sworn copy of the document showing the matter complained of. In this case, the document showing the matter complained of would be the motion purportedly requesting his property. Yet, it was not appended to his document. We also note other instances of his failure to comply with the applicable rules of procedure. For example, his application lacks 1) a section identifying the parties and counsel, 2) a table of contents, 3) an index of authorities, 4) a statement of the case, and 5) a statement of the issues presented. Those are required to be included in a petition seeking extraordinary relief. TEX . R. APP. P. 52.3. And, that Jenkins may be acting pro se does not relieve him of complying with those requirements. Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.–Amarillo 1998, pet. denied). 2 Third, to the extent that Jenkins asks us to grant the motions to return his property and to provide a free appellate record, we cannot do that. Our authority does not permit us to adjudicate a matter pending in a trial court without the trial court first acting upon it. See O’Donniley v. Golden, 860 S.W.2d 267, 269 (Tex. App.–Tyler 1993, orig. proceeding) (when a trial court has yet to act, authority entitles us only to order the trial court to act; it does not allow us to tell the trial court what decision to make). Accordingly, Jenkins’ “Request for Appellate Records, Clerk’s File Docket Sheet, Clerk’s Court Docket Sheet, and the Minutes Read and Signed, and the Order of Cases Furnished without Charge” motion/document is denied. Brian Quinn Chief Justice 3	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1329987/	256 S.C. 234 (1971) 182 S.E.2d 291 The STATE, Respondent, v. Joey BENNETT, Appellant. 19234 Supreme Court of South Carolina. June 8, 1971. 235 236 John W. Williams, Jr., Esq., of Columbia, for Appellant. John W. Foard, Jr., Esq., Solicitor, for Respondent. 237 John W. Williams, Jr., Esq., of Columbia, for Appellant, in Reply. June 8, 1971. LITTLEJOHN, Justice. The defendant, Joey Bennett, was tried and convicted by a jury of the murder of Robert Green. The jury recommended mercy and he was sentenced to life imprisonment. In this appeal error is alleged (1) in the admission in evidence of a .32 caliber pistol, (2) in failure of the trial judge to grant a change of venue, (3) in failure of the trial judge to quash the indictment because of pretrial publicity, and (4) in failure of the trial judge to conduct a bifurcated trial. We affirm. The facts out of which the murder charge arose are as follows: On November 13, 1969 the defendant Bennett, Robert Green and Ronald Sawyer (also known as Joe Lewis) left the 1500 block of Harden Street in Columbia in Green's Chevrolet automobile to proceed to a pool hall. Green was driving, Sawyer was in the front seat with him, 238 and Bennett was riding in the rear seat. A few blocks away Bennett drew a gun and ordered both Green and Sawyer to hand over their wallets. He took their wallets and ordered them to drive to the Dentsville area some 7 or 8 miles away and onto a dirt road. At that place he ordered Green to stop the car, and directed both Green and Sawyer to get into the trunk of the car, where he shot them, killing Green and wounding Sawyer. Bennett closed the trunk lid and left. Sawyer managed to open the trunk lid and ended up at the Columbia hospital, where he gave to authorities a description of Bennett. When police arrived at the car, Green was found in the trunk, dead from two .32 caliber bullet wounds. Some two hours later, at about 12:30 A.M., a sheriff's deputy, using the description which Sawyer had given, identified Bennett walking near the scene of the crime and near his home and arrested him. He denied any knowledge of the shooting, but gave some general information including his home address, which was 1535 LeeSide Circle. Some four hours later Lt. Laverne of the sheriff's office went before Magistrate H.G. Moore of Dentsville and obtained a search warrant for Bennett's residence, describing a .32 caliber pistol as the weapon sought. Considerable publicity was given to the killing and to the entire happening by local news media which will be referred to hereafter. Before the trial, counsel for Bennett made motions for a change of venue and to quash the indictment because of the pretrial publicity. It was the contention of counsel that a fair trial could not be held in Richland County. Both motions were overruled. Counsel also sought a bifurcated trial, which was denied. Bennett did not testify and did not present evidence in his own behalf. All evidence referred to is accordingly presented by the State. There is no contention but that the evidence warranted the guilty verdict by the jury. 239 It is first the contention of Bennett that the trial judge erred in admitting into evidence the .32 caliber pistol found in his residence and the ballistic tests and fingerprints derived from the pistol, because the pistol was the product of an illegal search and seizure under the fourth and fourteenth amendments to the United States Constitution and Article 1, Section 16 of the South Carolina Constitution. The evidence reveals that officers proceeded to search Bennett's home and found the .32 caliber pistol which was used to fire the bullets that killed Green and wounded Sawyer. Fingerprints taken from the pistol were identified as those of the accused. All of this was admitted in evidence over the objection of counsel. It is the contention of counsel "that the [search] warrant was defective on its face, improper, and therefore any evidence following from it is improper and should not be admitted." It is counsel's contention that the statement made in the affidavit showed merely a belief that the gun would be found at the residence of Bennett, without giving underlying facts and circumstances to justify that belief. The affidavit was as follows: "PERSONALLY appeared before me, Lt. James H. Laverne who being sworn, says that he is informed by Joe Lewis [Sawyer] and has good cause to believe that Joey Bennett has concealed on his person, on his premises, or in his dwelling, or in a motor vehicle or other vehicle used or operated by him at or near 1535 LeeSide Circle Dentsville South Carolina One .32 Cal. pistol used in the commission of a crime. "The facts on which such belief is based are these: "On 11-13-69 Joe Lewis was shot in the back by Joey Bennett and left in the trunk of a 1969 chevrolet Lic. No. # EB 7434 on a dirt street near the intersection of Roof street and South Lake Marion Circle. Joe Lewis further stated that Joey Bennett also shot Robert Green with the same pistol resulting in his death. The bullet was removed 240 from the deceased person and indicated it was a .32 cal. bullet. It is believed that Joey Bennett carried the gun from the scene of the shooting to his home which is a trailer at the above address." We are called upon to say whether the affidavit, considered as a whole, sets forth sufficient facts to establish a reasonable belief in the mind of the magistrate that the pistol would be found at Bennett's residence. In making this determination we consider both the constitutionally guaranteed rights of citizens to be in their homes free from molestation, and the reasonable needs of law enforcement officers to carry out their duties to apprehend suspects and present a case to the court. To justify issuance of a search warrant probable cause must be shown but the term "probable cause" does not import absolute certainty. "A search warrant must be based on evidential facts. The evidence must be of sufficient weight to establish probable cause. It has been required to be such as will lead a man of prudence and caution to believe that the offense has been committed; and it must not be so meager as to constitute merely the conclusions of the applicant and an invasion of the judicial function of the magistrate. The evidence need not be sufficient to support a conviction, or a verdict of guilty, or to establish guilt beyond a reasonable doubt; nor need the proof be positive, it being enough if it is such as to induce in the mind of the issuing officer an honest belief that the facts set forth exist, or as would lead a man of prudence and caution to believe that the offense has been committed. * * * In determining whether there is sufficient evidence to sustain a finding of probable cause, each case stands on its facts." 79 C.J.S. Searches and Seizures § 74 (1952). Obviously, neither the affiant nor his informer could state with absolute certainty that the weapon used to kill Green was at Bennett's house, and such was 241 not required. Here, we do not have a case of an unidentified informer. The magistrate was made aware in the affidavit of the fact that the affiant got his information from one who was an eyewitness to the killing. The whole of the showing was sufficient to justify the magistrate in granting the request of Lt. Laverne for a search warrant to seek and seize the weapon which had been used by Bennett to kill Green. In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed. (2d) 684 (1965) the United States Supreme Court reaffirmed the principle that searches based on warrants will be given judicial deference to the extent that an otherwise marginal search may be justified if it meets a realistic standard of probable cause. That court said: "These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area." We hold that the magistrate was justified in issuing the search warrant, and accordingly, the seizure of the 32 caliber pistol was not the fruit of an illegal search and seizure and was admissible in evidence. Appellant contends next that it was prejudicial error to refuse to grant a motion for change of venue because of prejudicial pretrial publicity. The record shows that a series of four articles appeared in a local daily newspaper on November 15, 1969, November 17, 1969, December 2, 1969, and February 26, 1970. The last article appeared approximately four months before the appellant's trial in June of 242 1970. The sheriff's office was quoted as stating that appellant was wanted in Chicago on six armed robbery charges, and in North Carolina on a murder charge. The articles also stated that a sawed-off shotgun, "a weapon favored by professional gangland slayers," was found in appellant's trailer. If the trial had been ordered immediately thereafter, the quotation attributed to the office of the sheriff might well have been cause for a change of venue or to delay the trial of the case until its possible prejudicial effect subsided. It would be preferable hereafter that law enforcement officers refrain from the issuance of similar statements. We think, however, that the fact that the trial was held some seven months after most of the news stories, and four months after the last of the news stories, made prejudice unlikely such as to require a new trial. The rule followed by our court in the many cases where this issue arises is that a change of venue motion rests within the sound discretion of the trial court and relief cannot be granted unless the movant can show both an abuse of discretion and resulting prejudice. State v. Hinson, 253 S.C. 607, 172 S.E. (2d) 548 (1970) and cases cited therein. Such has not been shown in the case at bar. Appellant contends that it was prejudicial error to deny his motion for two trials, one on the question of guilt, and the other for determining the sentence. Such is not required by either the common law, the statutory law, or the constitution of this State. It has now been settled by the United States Supreme Court that a bifurcated trial is not required by the United States Constitution. See McGautha v. California and Crampton v. Ohio, 401 U.S.... ., 91 S.Ct. 1454, 28 L.Ed. (2d) 711 (one opinion) filed in the United States Supreme Court May 3, 1971. The contention that a bifurcated trial should be held in this State has been addressed to the trial courts and to this court on numerous occasions in recent years. We now consider the matter settled. The exception is without merit. *243 Exception No. 4, wherein counsel submitted that the charges should be dismissed because South Carolina has no standards by which a jury may be guided in determining whether one should suffer death or life imprisonment was not argued and accordingly, abandoned. We call to the attention of the bench and bar that this matter has now been settled by the opinion of the United States Supreme Court referred to above. Such standards are not required. Exception No. 2, wherein appellant contended that the motion to quash the indictment should have been granted because of the pretrial publicity has, in oral argument, been abandoned. All exceptions are found to be without merit, and the judgment of the lower court is Affirmed. MOSS, C.J., and LEWIS, BUSSEY and BRAILSFORD, J.J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875622/	490 So.2d 1049 (1986) Andres ARAUJO, Appellant, v. Leopoldo RAMIREZ-LIMON, Appellee. No. 86-486. District Court of Appeal of Florida, Third District. July 1, 1986. Ezell, Menendez & Patterson and William D. Matthewman, Miami, for appellant. High, Stack, Lazenby & Palahach and Robert E. Stone, Coral Gables, for appellee. Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ. SCHWARTZ, Chief Judge. The appellee Ramirez-Limon lived with his wife and children in Houston, Texas until he was imprisoned in a jail in Mexico, where he still remains. After his incarceration, his family moved to a home in Dade County, but Ramirez-Limon has never resided there. Because the appellee can hardly be said to have been "actually living [there] at the time of service," Panter v. Werbel-Roth Securities, Inc., 406 So.2d 1267, 1268 (Fla. 4th DCA 1981), we agree with the trial court that the Dade County residence is not his "usual place of abode," under section 48.031(1), Florida Statutes (1983).[1] See State v. Heffernan, 142 Fla. 496, 195 So. 145 (1940); Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977); cf. Bull v. Kistner, 257 Iowa 968, 135 N.W.2d 545 (1965) (home where prisoner resided before imprisonment and where wife and children still live is his "usual place of abode"). Accordingly, the order quashing the substituted *1050 service of process attempted at that address through the appellee's wife is Affirmed. NOTES [1] Section 48.031(1) provides: 48.031 Service of process generally. (1) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.	01-03-2023	10-30-2013

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.