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https://www.courtlistener.com/api/rest/v3/opinions/2512153/	198 P.3d 513 (2008) SHOEMAKE v. FERRER. No. 81812-6. Supreme Court of Washington, Department II. December 3, 2008. Disposition of petition for review. Granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2512158/	198 P.3d 511 (2008) LALLAS v. SKAGIT COUNTY. No. 81672-7. Supreme Court of Washington, Department I. December 2, 2008. Disposition of petition for review. Granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1053887/	IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs August 15, 2006 STATE OF TENNESSEE v. ERIC MICHAEL GOLDMAN AKA ERIC FORREST Direct Appeal from the Circuit Court for Marshall County No. 16417 Donald P. Harris, Judge No. M2006-00134-CCA-R3-CD - Filed December 29, 2006 The appellant, Eric Michael Goldman aka Eric Forrest, was convicted of driving after being declared a habitual motor vehicle offender (Class E felony) and sentenced to four years in the Department of Correction as a multiple offender. He was also found guilty of driving on a revoked license, tenth offense (Class A misdemeanor), which was merged with the conviction for driving as a habitual motor vehicle offender. On appeal, he contends that: (1) the evidence was insufficient to sustain a conviction for the offense of driving after being declared a habitual motor vehicle offender; and (2) the sentence imposed by the trial court is excessive and contrary to the law. After careful review, we conclude that no reversible error exists and affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN , J., and J. S. (STEVE) DANIEL, SR. J., joined. Donna Leigh, District Public Defender, and Michael J. Collins, Assistant Public Defender, for the appellant, Eric Michael Goldman, aka Eric Forrest. Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION At trial, the first witness was Trooper Bob Logan of the Tennessee Highway Patrol who testified that the underlying incident occurred on December 18, 2003, in Marshall County, Tennessee. He said he spotted the defendant’s car being driven without a license plate about a half mile from the trooper’s post. He estimated that he was one hundred yards from the car when he first observed that it was without a license plate. He approached to within two car lengths and determined the car did not have a drive out tag. He followed the car for two to three blocks until it arrived at a BP gas station and parked at a gas pump. During the time he followed the car, he observed only one person in the car. Trooper Logan parked at the side of the gas station building and observed the defendant in the driver’s seat. He saw the defendant exit the car from the driver’s side door and recalled seeing the defendant’s face clearly, because he estimated the area to be so well lit that it would be ten out of ten on a brightness scale. When the defendant exited the building, the trooper asked him to come to his patrol car. The defendant got into his own vehicle and drove to the trooper’s car. The trooper testified that he walked to the defendant’s window and asked for the defendant’s license and registration, which the defendant could not produce. The defendant told the trooper that his name was “Eric Forrest.” The trooper testified that he checked the defendant’s name and date of birth and determined that the defendant’s driver’s license had been revoked and, further, that he had previously been declared a habitual motor vehicle offender in Maury County. He then arrested the defendant but allowed him to stop by his home to turn off the lights and lock the doors before proceeding to jail. On cross-examination, Trooper Logan testified that, initially, he could not clearly see who was driving the car but that he was able to see clearly when the defendant drove closer. Again, the trooper said he was about two car lengths behind the defendant when they entered the grounds of the BP station. On redirect, he said that the defendant never told him that someone else was driving the car. Next, Kenneth W. Birdwell, Director of the Financial Responsibility Division of the Tennessee Department of Safety, testified that his office contains records of habitual motor vehicle offenders and of drivers whose licenses are revoked. He said that the records are kept as part of the state’s business records and so that he can testify regarding the records. He testified that, according to their records, Eric Michael Goldman and Eric Forrest is the same person. He said the defendant was declared a habitual motor vehicle offender on October 7, 2002, prior to the date of the underlying incident. He testified that a person declared a habitual motor vehicle offender is ineligible to have their license restored before the expiration of three years. He also testified that the defendant’s license was revoked at the time of the incident. Cathy Kelly, Circuit Court Clerk for Maury County, then testified that her office was responsible for keeping the records and orders for the Circuit Court, including the habitual motor vehicle offender orders. She testified as to the process followed in declaring a person a habitual motor vehicle offender. She said that the defendant failed to appear or contest the habitual motor vehicle offender proceedings and that a default judgment was taken. She said that she knew Eric Michael Goldman and Eric Forrest to be the same person. The State rested its proof, and the defendant put on no proof in his defense. The trial court conducted a jury out hearing in which the defendant: (1) waived his right to have the jury set his fine; (2) agreed to let the court determine the number of his prior convictions for driving on a revoked license; and (3) testified that he had made the decision not to testify in his own defense. The -2- jury was then charged and returned a verdict of guilty as to both charges. The trial court merged the driving on a revoked license conviction into the driving while declared a habitual motor vehicle offender conviction. The trial court later conducted a sentencing hearing where two witnesses testified. The first witness, an employee of the Probation and Parole Department assigned to the Marshall County Circuit Court, testified that the defendant had previously been sentenced to probation or alternative sentencing and that the defendant had violated those prior sentences. She also testified that the defendant had previously been convicted of subsequent offenses while serving a sentence on probation and, further, that he had a pending violation in Maury County General Sessions Court at the time of the sentencing hearing in addition to pending charges occurring after the underlying incident. The defendant testified that he had prior felony charges which were disposed of through the court on the same day. He testified that his prior convictions were for third degree burglary and petit larceny. He said the burglary occurred at a “junk store” and that the larceny conviction was for stealing from a vending machine. In addition, he was apprehended with burglary tools, drug paraphernalia, and marijuana for resale. He claimed that he was told that the District Attorney haD spoken to the jury during the course of the trial without the judge or defense counsel present, but he refused to reveal the source of this information. At the conclusion of his testimony, the State recommended the defendant be sentenced to four years incarceration as a Range II offender, to be served at 35%. In support thereof, the State cited that the defendant had previously been on alternative sentencing without success and that he had been charged with other offenses since the time of the underlying arrest. The State asked that the court allow no form of alternative sentencing, including work release. The defendant requests to be sentenced as a Range I standard offender and argues that the State failed to establish that he was a Range II offender. The trial court found that the defendant had two prior felonies in accordance with the law and determined that he was a Range II offender. The trial court held that the defendant’s burglary convictions were of the same course of conduct but that his drug conviction was separate conduct. The trial court enhanced the defendant’s sentence citing two factors: (1) the defendant’s prior history of criminal convictions in addition to those necessary to establish the range including numerous arrests and convictions for driving on a revoked license, assaults, and drug offenses; and (2) the defendant’s previous history of unwillingness to comply with the conditions of his release in the community. The court found no mitigating factors. Accordingly, the trial court sentenced the defendant to four years in the Department of Correction as a Range II standard offender. The defendant filed a motion for new trial, but the motion was overruled by the trial court. This appeal followed. -3- Analysis The defendant raises two issues on appeal: (1) the evidence was insufficient to sustain a conviction for the offense of habitual motor vehicle offender; and (2) the sentence imposed by the trial court was excessive and contrary to the law. The State contends that the evidence was sufficient and that the sentence is just. I. Sufficiency The defendant contends that the trooper never saw him driving the car and alleges that the trooper only saw the defendant exit the store and walk over to the car. He contends that the testimony at trial was purely speculative as to whether the defendant was driving and claims that the evidence at trial was highly circumstantial and did not carry the required burden of proof. The State contends, and we agree, that the proof in the record supports the finding that a rational trier of fact could convict the defendant for driving after being declared a habitual motor vehicle offender. At trial, the testimony of Trooper Logan showed that the defendant was driving in Marshall County, Tennessee. The trooper testified that he got a good look at the defendant’s face and confirmed that the defendant was the only person in the vehicle. The defendant moved his vehicle next to the trooper’s vehicle where it was determined the defendant was a habitual motor vehicle offender whose license had been revoked. When an accused challenges the sufficiency of the evidence, this court must review the record to determine if the evidence adduced during the trial was sufficient “to support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996). In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the State the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). The trier of fact, not this court, resolves questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence. Id. In State v. Grace, the Tennessee Supreme Court stated, “[a] guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973). -4- Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476. We conclude that the defendant has not met his burden of illustrating that the evidence is insufficient to support the verdict of the trial court. II. Excessive Sentence The defendant contends that the trial court erred in imposing a sentence of four years to be served in the Department of Correction. He contends that the offense did not merit a maximum sentence and argues that a lesser sentence would still serve the purpose of the Tennessee Criminal Reform Act. He argues that the trial court erred in determining that his three prior felonies were not a single course of conduct even though they all occurred within twenty-four hours. The State argues that the trial court properly followed the sentencing guidelines and that no error exists. This court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. T.C.A. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show that the sentence is improper. T.C.A.§ 40- 35-401(d), Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tennessee Code Annotated section 40-35-210(b), to consider the following factors in sentencing: (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in the defendant’s own behalf about sentencing. If no mitigating or enhancement factors for sentencing are present, Tennessee Code Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses will be the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. T.C.A. § 40-35- 210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its -5- findings are supported by the record. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002); see T.C.A. § 40-35-210, Sentencing Commission Comments. Nevertheless, should there be no mitigating factors, but enhancement factors are present, a trial court may set the sentence above the minimum within the range. T.C.A. § 40-35-210(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn.2002). If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after giving due consideration and proper weight to the factors and principles set out under sentencing law, and the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we had preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). Here, the defendant was convicted for driving after being declared a habitual motor vehicle offender, a Class E felony. The trial court determined that the defendant was a Range II offender based on his prior felony convictions. The defendant, in fact, had three prior felony convictions, but the trial court considered two of the prior convictions to be part of a single course of conduct committed within a twenty-four-hour period, in compliance with Tennessee Code Annotated section 40-35-106(b)(4) (2003). The trial court considered the defendant’s separate drug possession conviction to be a separate course of conduct despite the fact that it occurred in the same twenty- four-hour period. These separate convictions were enough for the trial court to determine the defendant was a Range II offender. In his brief, the defendant erroneously relies on the multiple offender statute, T.C.A.§ 40-35- 106, as it was amended in 2005. The statute defining a defendant as a multiple offender was amended in 2005. The defendant here was properly tried and sentenced under the prior law and, after our review, we find no reversible error exists to disturb the judgment of the trial court. At the time of the underlying offense, convictions for multiple felonies committed as part of a single course of conduct within twenty-four hours were to constitute one conviction for purposes of determining prior convictions as relates to a defendant’s sentencing range. See T.C.A. § 40-35-106 (2003). In 2005, the statute was amended to count all convictions that occurred within a twenty-four-hour period as one conviction except for those convictions that involve serious bodily injury, bodily injury, or threatened bodily injury to the victim or victims. T.C.A. § 40-35-106 (2006). After thorough review, we conclude that the trial court properly determined that the defendant’s prior convictions were not of a single course of conduct and, accordingly, properly sentenced the defendant as a Range II offender. The defendant’s prior convictions for burglary and possession of a controlled substance for resale, though rising from the same arrest, were not linked in any other way and thus were properly considered as separate convictions. Our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after giving due consideration and proper weight to the factors and principles set out under sentencing law, and the trial court’s findings of fact are adequately supported by the record. We affirm the sentence of the trial court. -6- Conclusion Based on the foregoing and the record as a whole, we affirm the judgments of the trial court. ___________________________________ JOHN EVERETT WILLIAMS, JUDGE -7-	01-03-2023	10-08-2013
https://www.courtlistener.com/api/rest/v3/opinions/3043959/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 07-1746 ___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * District of Minnesota. * Daniel Lee Bacote, * [UNPUBLISHED] * Appellant. * ___________ Submitted: December 10, 2007 Filed: February 25, 2008 ___________ Before COLLOTON, BEAM, and BENTON, Circuit Judges. ___________ PER CURIAM. Daniel Lee Bacote appeals the district court's1 order denying, in part, his pretrial motion to suppress evidence. On August 30, 2005, another passenger in a car in which Bacote was riding solicited an undercover Minneapolis police officer participating in a prostitution sting. Uniformed officers stationed nearby became concerned for the undercover officer's safety and moved in to arrest the other passenger. Bacote, who was removed from the car while the officers secured the other 1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Susan Richard Nelson, United States Magistrate Judge for the District of Minnesota. passenger, fled the scene and the officers gave chase. During the chase, Bacote discarded a gun into a trash can and an officer recovered it. The officers eventually apprehended Bacote, placed him under arrest, and, in a search incident to his arrest, discovered narcotics on Bacote's person and in a fanny pack he had been carrying. En route to the police station, and prior to receiving any Miranda warnings, Bacote volunteered several statements to police and, in response to one officer's question, admitted he did not have a permit for the gun the officers recovered. Bacote was subsequently indicted for various possession-related offenses. Before trial, Bacote moved to suppress the physical evidence as the product of an illegal seizure. He also moved to suppress the statements he made to police en route to the police station on Fourth, Fifth and Sixth Amendment grounds. The district court suppressed Bacote's statement about the gun permit but denied the motion as to the remaining statements and the physical evidence. Bacote proceeded to trial and was convicted by a jury on one count of possessing methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and one count of possessing a firearm during a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and (c)(1)(B)(i). Bacote now appeals the district court's ruling on the suppression issue. Having reviewed the record and considered the arguments advanced by the parties on appeal, we conclude that the district court properly denied the remainder of Bacote's motion to suppress. See United States v. Sanders, 510 F.3d 788, 789 (8th Cir. 2007) (stating standard of review). Accordingly, we affirm for the reasons stated in the magistrate judge's thorough and well-reasoned report and recommendation, which was adopted by the district court. See 8th Cir. R. 47B. ______________________________ -2-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/76124/	329 F.3d 805 FEDERATED MUTUAL INSURANCE COMPANY, Plaintiff-Appellant,v.McKINNON MOTORS, LLC, Defendant-Appellee. No. 02-14158. United States Court of Appeals, Eleventh Circuit. April 28, 2003. P. Thomas Dazzio, Jr., Robert Gerald Boliek, Jr., Jeffrey Edwin Friedman, Friedman, Leak & Bloom, P.C., Birmingham, AL, for Plaintiff-Appellant. John Martin Galese, Jeffrey L. Ingram, Birmingham, AL, for Defendant-Appellee. Appeal from the United States District Court for the Middle District of Alabama. Before DUBINA and FAY, Circuit Judges, and DOWD,* District Judge. DUBINA, Circuit Judge: 1 Federated Mutual Insurance Company ("Federated") appeals the district court's dismissal of its declaratory judgment action, brought to resolve an insurance coverage dispute, for lack of subject matter jurisdiction based on a failure to meet the amount in controversy requirement of 28 U.S.C. § 1332. The sole issue raised on appeal is whether the district court erred in calculating the amount in controversy by failing to consider McKinnon Motors, LLC's ("McKinnon") claim against Federated for bad faith. We do not reach this issue because we hold that, even if we were to consider McKinnon's bad faith claim, Federated failed to meet its burden of proof in establishing that the value of its claim satisfied the amount in controversy. I. BACKGROUND A. Facts 2 McKinnon purchased an insurance policy from Federated that provided coverage up to $50,000 for acts of employee dishonesty. 3 In August 1999, McKinnon filed a proof of loss with Federated for losses allegedly incurred because of the dishonesty of Jackie Ray Neeley ("Neeley"), a former general manager of a McKinnon dealership. McKinnon filed a second proof of loss arising from Neeley's alleged dishonesty in February 2000. 4 Federated investigated each of McKinnon's claims for employee dishonesty and eventually denied both claims because it found that the policy language did not cover the losses. Following the denial of the claims and the resolution of a lawsuit by Neeley against McKinnon, McKinnon demanded the $50,000 policy limits of the employee dishonesty provision from Federated and threatened to sue for bad faith failure to pay if Federated did not tender the policy limits. B. Procedural History 5 Federated filed a declaratory judgment action against McKinnon in the Federal District Court for the Middle District of Alabama seeking a declaration of its rights and obligations under the employee dishonesty provision of its insurance contract with McKinnon. McKinnon filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The district court granted McKinnon's motion to dismiss on the ground that Federated did not meet the amount in controversy required by § 1332. Federated then perfected this appeal. II. STANDARD OF REVIEW 6 "We review a district court's dismissal of a complaint for lack of subject matter jurisdiction under the de novo standard." Digital Properties, Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997). III. DISCUSSION 7 "Federal courts are courts of limited jurisdiction." Burns v. Windsor Ins., Co., 31 F.3d 1092, 1095 (11th Cir.1994). In order to invoke a federal court's diversity jurisdiction, a plaintiff must claim, among other things, that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. "When a plaintiff seeks injunctive or declaratory relief, the amount in controversy is the monetary value of the object of the litigation from the plaintiff's perspective." Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir.2000) (citation omitted). A plaintiff satisfies the amount in controversy requirement by claiming a sufficient sum in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). 8 Generally, "[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." Red Cab Co., 303 U.S. at 289, 58 S.Ct. at 590. However, where jurisdiction is based on a claim for indeterminate damages, the Red Cab Co. "legal certainty" test gives way, and the party seeking to invoke federal jurisdiction bears the burden of proving by a preponderance of the evidence that the claim on which it is basing jurisdiction meets the jurisdictional minimum. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356-57 (11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072-77 (11th Cir.2000).1 9 Federated argues that its claim satisfies the amount in controversy requirement because the claim's value includes both the $50,000 policy limits and the potential liability it faces under McKinnon's bad faith claim against it.2 McKinnon responds by arguing that the amount in controversy cannot be satisfied by reference to its claim for bad faith because it is improper to consider counter-claims in such an analysis. 10 We assume, without deciding, that Federated can meet the amount in controversy by reference to McKinnon's claim for bad faith.3 Taking this assumption into account, we turn to the question of whether Federated has satisfied its burden of proving that its claims are in excess of $75,000. We hold that it has not. 11 The employee dishonesty policy underlying this action only provides $50,000 in coverage, which does not satisfy the amount in controversy standing by itself. However, Federated argues that the value of its claim includes both the policy limits and the potential liability it faces under McKinnon's bad faith claim.4 But, McKinnon did not and has not placed any dollar amount on the various damages it is seeking under its bad faith claim. Therefore, the damages McKinnon prays for under the bad faith claim are indeterminate. See Greenberg, 134 F.3d at 1253 (explaining that a prayer for damages is indeterminate where the "complaint does not allege a specific amount of damages"). 12 In fact, McKinnon represented that it does not seek and, more importantly, will not accept damages in excess of $74,000 exclusive of interest and costs.5 Because McKinnon's lawyers are officers of this court and subject to sanctions under Federal Rule of Civil Procedure 11 for making a representation to the court for an improper purpose,6 such as merely to defeat diversity jurisdiction, we give great deference to such representations and presume them to be true. See Burns, 31 F.3d at 1095 ("Every lawyer is an officer of the court. And, in addition to his duty of diligently researching his client's case, he always has a duty of candor to the tribunal."). 13 Federated has offered no evidence to rebut McKinnon's representation and no evidence to show that McKinnon's bad faith claim would satisfy the amount in controversy. Federated does point to a number of Alabama cases where courts have awarded punitive damages well in excess of $75,000 for bad faith failure to pay, Intercontinental Life Insurance Co. v. Lindblom, 598 So.2d 886 (Ala.1992); United Services Automobile Ass'n v. Wade, 544 So.2d 906 (Ala.1989); Nationwide Mutual Insurance Co. v. Clay, 525 So.2d 1339 (Ala.1987), but mere citation to what has happened in the past does nothing to overcome the indeterminate and speculative nature of Federated's assertion in this case. Therefore, we conclude that even if we were to consider McKinnon's bad faith claim in determining the amount in controversy, Federated has failed to prove by a preponderance of the evidence that McKinnon's claim is in excess of $75,000 and, thus, the district court did not err in granting McKinnon's Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. 14 For the foregoing reasons, we affirm the district court's judgment of dismissal. 15 AFFIRMED. Notes: * Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation 1 We note thatTapscott arose in the removal context, while this case involves a declaratory judgment. However, we find these two contexts analogous in this setting. Accord St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998) ("Although most of our caselaw regarding § 1332's amount in controversy requirement has arisen in the context of removal from state to federal court, we find the procedures developed in those cases to be instructive in the converse context of declaratory judgment actions...."). 2 We note that at the time the district court considered this case, McKinnon had only threatened to sue Federated for bad faith, but had not yet filed a claim. Subsequent to the district court's decision, McKinnon filed a complaint for bad faith against Federated in the Circuit Court of Chilton County, Alabama. Although this fact was not before the district court and, therefore, is not a part of the record, we take judicial notice of McKinnon's bad faith claim under Federal Rule of Evidence 201 3 We recognize that support exists for this positionSee Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961) (finding that the amount in controversy was satisfied where the plaintiff in a federal declaratory judgment action sought less than the jurisdictional minimum, but the defendant brought a counter-claim that satisfied the amount in controversy). However, we also recognize that the Horton decision has been the subject of criticism centered around the difficulty in discerning the principle for which the case stands. See 14B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3706 (3d ed. 1998). Because Federated would not reach the jurisdictional minimum even if we extracted a rule from Horton or elsewhere that consideration of counter-claims in determining the amount in controversy is proper, we decline to pass judgment today on whether such a method of calculation is proper. 4 Federated additionally argues that McKinnon's demands for attorneys' fees and costs under its bad faith claim count towards the jurisdictional minimum. The general rule is that attorneys' fees do not count towards the amount in controversy unless they are allowed for by statute or contractSee Graham v. Henegar, 640 F.2d 732, 736 (5th Cir.1981). The claim of bad faith failure to pay is a common law cause of action in Alabama. Weems v. Jefferson-Pilot Life Ins. Co., Inc., 663 So.2d 905, 911-912 (Ala.1995). Therefore, McKinnon's claim for attorneys' fees is neither statutory nor contractual and does not count towards the jurisdictional minimum. Additionally, the very text of 28 U.S.C. § 1332 precludes consideration of McKinnon's claim for costs in determining whether Federated satisfied the amount in controversy. 5 McKinnon made this representation in its Motion to Remand in the companion case,McKinnon Motors L.L.C. v. Federated Mutual Insurance Company, 02-S-1121-N (M.D.Ala.), and we take judicial notice of this representation under Fed.R.Evid. 201. 6 We note that underCooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 2456, 110 L.Ed.2d 359 (1990), a motion for Rule 11 sanctions involves a collateral proceeding that can be initiated and decided after the case on which it is based is finally resolved and no longer pending.	01-03-2023	04-26-2010
https://www.courtlistener.com/api/rest/v3/opinions/3363351/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This court has reviewed the file and has taken specific note of paragraph 8 of Judge Alander's Memorandum of Decision dated October 10, 2000 and paragraph 7 of the Qualified Domestic Relations Order that was approved by all counsel and then ordered by Judge Alander on October 22, 2001. Paragraph 8 of the Judgment states in part that the "defendant is awarded a total of $391,779 of the retirement accounts held by the plaintiff in order to equalize their retirement accounts." Paragraph 7 of the Qualified Domestic Relations Order states "Amount of AlternatePayee's Benefit: The date of valuation for all purposes is October 10,2000. The Court awarded the Alternate Payee a total of $391,779 from the retirement accounts held by the Participant as of October 10, 2000. This sum is to be deducted from the Participant's balance in the Plan and placed into a separate account for the Alternate Payee, pursuant to the Alternate Payee's direction." Unfortunately, the Qualified Domestic Relations Order was not executed until October 22, 2001 due in part to a disagreement on the amount of the transfer from the retirement accounts held by the Participant into a separate account for the Alternate Payee. It would serve no purpose to go over the procedural history of how the parties got to this point in time other than for this court to find that neither party is solely responsible for the delay and neither party is found to be in contempt of any orders of this court in connection with the execution and CT Page 5975 implementation of the Qualified Domestic Relations Order dated October 22, 2001. In order to maintain the integrity of the financial orders entered by Judge Alander on October 10, 2000, this court finds that the transfer of $391,779 to the defendant from the plaintiffs retirement accounts was fixed in time as of the date of the decision. From that point forward, the defendant's share of the plaintiffs retirement accounts would fluctuate similarly to the fluctuation's in the plaintiffs remaining share until her share is mechanically placed in her name via the Qualified Domestic Relations Order. As noted during oral argument, the parties need to proportionally allocate the transfer between the two retirement accounts held by plaintiff. The parties are hereby ordered to proceed with the transfer in accordance with the foregoing findings pursuant to the defendant's direction. Kenefick, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/475854/	800 F.2d 1032 55 USLW 2264, Fed. Sec. L. Rep. P 92,933 Frederick J. WOLFE, and Heather B. Wolfe, his wife,Plaintiffs-Appellees,v.E.F. HUTTON & COMPANY, INC., and Peter Panos,Defendants-Appellants.Joseph GORMAN, Plaintiff-Appellee,v.MERRILL LYNCH, PIERCE FENNER AND SMITH, INC., a foreigncorporation, Defendant- Appellant,Micah Hollander, Michael Strauss, Defendants. Nos. 85-3352, 85-5419. United States Court of Appeals,Eleventh Circuit. Sept. 29, 1986.As Amended Oct. 16, 1986. Keith Olin, Bennett Falk, Miami, Fla., defendants-appellants. Parker, Johnson, Owen & McGuire, Elmo R. Hoffman, Orlando, Fla., Greenfield & Chimicles, E. Stirling Lathrop, Haverford, Pa., Karen A. Gievers, Anderson Moss Russo Gievers & Cohen, P.A., Miami, Fla., plaintiffs-appellees. Albert J. Beveridge, III, John S. Guttmann, Robert H. Singletary, Jr., for amicus curiae, Werner Heierli. Beveridge & Diamond, Washington, D.C., for amicus curiae. Appeals from the United States District Court for the Southern District of Florida. Before RONEY, Chief Judge, GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, CLARK and EDMONDSON, Circuit Judges,* and HENDERSON,** Senior Circuit Judge. VANCE, Circuit Judge: We granted rehearing en banc in these cases to determine whether claims brought under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78j(b), and corresponding Securities and Exchange Commission Rule 10b-5, 17 C.F.R. Sec. 240.10b-5, are subject to mandatory arbitration under an arbitration agreement entered into before the claim arose. Adhering to the established law of this circuit, we hold that a pre-claim agreement to arbitrate such claims is not enforceable. I. Appellees Frederick and Heather Wolfe and Joseph Gorman brought separate suits in their respective district courts in Florida claiming that their respective brokers, E.F. Hutton and Merrill Lynch,1 were liable under 10b-52 and state law for illegally "churning" their accounts--engaging in excessive trading to generate high commissions. In both cases, appellants had signed agreements upon setting up their accounts which included clauses providing that disputes over the accounts would be submitted to arbitration. The brokers, appellants here, sought to enforce the agreements with respect to both the 10b-5 claims and those arising under state law. The district court in Wolfe, No. 85-3352, denied appellant E.F. Hutton's motion to compel arbitration in its entirety. The district court in Gorman, No. 85-5419, granted appellant Merrill Lynch's similar motion with respect to the state claims, but denied arbitration of Gorman's 10b-5 claim. On appeal, a panel of this court held that the district courts had properly denied arbitration of the 10b-5 claims but that the Wolfe court should have granted the motion to compel arbitration of the Wolfes' state claims. Wolfe v. E.F. Hutton & Co., 780 F.2d 1032 (11th Cir.1985); Gorman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 780 F.2d 1032 (11th Cir.1985) (consolidated appeals). The panel noted that under the Supreme Court's decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), the arbitration agreement between E.F. Hutton and the Wolfes was enforceable with respect to claims arising under state law.3 The court also noted, however, that under Belke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 693 F.2d 1023, 1025-26 (11th Cir.1982), an agreement to submit a 10b-5 claim to arbitration cannot be enforced. Holding Belke to be binding precedent, the court rejected appellants' contention that Belke and an earlier case from the former fifth circuit, Sibley v. Tandy Corp., 543 F.2d 540, 543 & n. 3 (5th Cir.1976), cert. denied, 434 U.S. 824, 98 S.Ct. 71, 54 L.Ed.2d 82 (1977), had been undermined by dicta in the Supreme Court's Byrd decision and by Justice White's concurring opinion in that case. 1 Doubt cast by Byrd on the continuing validity of Sibley and Belke has led us to consider the issue of 10b-5 arbitration en banc. II. 2 The holding of Belke and Sibley that 10b-5 claims are not arbitrable4 stems from the Supreme Court's decision more than thirty years ago in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). In that case the Court held that claims arising under section 12(2) of the Securities Act of 1933, 15 U.S.C. Sec. 77l(2), are not subject to arbitration under an agreement otherwise enforceable under the United States Arbitration Act, 9 U.S.C. Secs. 1-14. 3 The Supreme Court has not extended Wilko to 10b-5 actions. In fact, in Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), the Court noted that 4 a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control [in a 10b-5 case]. Wilko concerned a suit brought under Sec. 12(2) of the Securities Act of 1933, which provides a defrauded purchaser with the "special right" of a private remedy for civil liability.... There is no statutory counterpart of Sec. 12(2) in the Securities Exchange Act of 1934, and neither Sec. 10(b) of that Act nor Rule 10b-5 speaks of a private remedy to redress violations.... While federal case law has established that Sec. 10(b) and Rule 10b-5 create an implied private cause of action ... the Act itself does not establish the "special right" that the Court in Wilko found significant. Furthermore, while both the [1933 and 1934 Acts] contain sections barring waiver of compliance with any "provision" of the respective Acts, certain of the "provisions" of the 1933 Act that the Court held could not be waived by Wilko's agreement to arbitrate find no counterpart in the 1934 Act. In particular, the Court in Wilko noted that the jurisdictional provision of the 1933 Act ... allowed a plaintiff to bring suit "in any court of competent jurisdiction--federal or state--and removal from a state court is prohibited." .... The analogous provision of the 1934 Act, by contrast, provides for suit only in the federal district courts ... thus significantly restricting the plaintiff's choice of forum. 5 Id. at 513-14, 94 S.Ct. at 2454-55. Despite this statement, however, the Court did not actually decide the issue of 10b-5 arbitration in Scherk; the case was instead decided on another, narrower ground. 6 It was after Scherk that the former fifth circuit decided Sibley. The court noted the "colorable argument" suggested in Scherk but nevertheless affirmed the rulings of several lower courts which had held 10b-5 claims non-arbitrable. The court reasoned that "the similarities between the [1933 and 1934 Acts] far outweigh any differences which might exist...." 543 F.2d at 543 n. 3. The Belke court merely cited and followed Sibley. 7 Then came Byrd. The Court in a footnote reiterated the "colorable argument" from Scherk, and added the following: 8 The Court [in Scherk ] did not ... hold that Wilko would not apply in the context of a Sec. 10(b) or Rule 10b-5 claim, and Wilko has retained considerable vitality in the lower federal courts. Indeed, numerous District Courts and Courts of Appeals have held that the Wilko analysis applies to claims arising under Sec. 10(b) ... and that agreements to arbitrate such claims are therefore unenforceable.... 9 Dean Witter and amici representing the securities industry urge us to resolve the applicability of Wilko to claims under Sec. 10(b) and Rule 10b-5. We decline to do so. 10 470 U.S. at 215 n. 1, 105 S.Ct. at 1240 n. 1. In a concurring opinion, Justice White reemphasized that whether 10b-5 claims are arbitrable was "a matter of substantial doubt," and expanded on Scherk 's reasoning as to why the Wilko analysis might be inappropriate in the 10b-5 context. Id., 105 S.Ct. at 1244 (White, J., concurring). III. A. 11 The differences noted by the Supreme Court in Scherk and Byrd between the section 12(2) action held non-arbitrable in Wilko and the 10b-5 action at issue here are significant enough to merit discussion. Indeed, in light of Scherk and Byrd we are inclined to agree with appellants that Wilko is distinguishable from this case and hence is not "controlling" in the narrow sense of the term. That Wilko may be distinguished, however, does not necessarily mean that Wilko should not be followed. Our task is to determine whether, despite the differences, the similarities between the section 12(2) and 10b-5 causes of action are such that under the circumstances it makes sense to follow Wilko and thus to hold that 10b-5 claims, like those arising under section 12(2), are not subject to arbitration. B. 12 Although not discussing the issue in detail, the panel in Sibley concluded that the holding of Wilko is applicable to 10b-5 cases because the similarities between section 12(2) and 10b-5 actions outweigh the differences. We too find the similarities more compelling. 13 The purpose of the 1933 and 1934 Acts is the same: "to protect investors" by requiring "full and fair disclosure" in connection with securities transactions. See Wilko, 346 U.S. at 431, 74 S.Ct. at 184; Rudolph v. Arthur Andersen & Co., 800 F.2d 1040, 1043 (11th Cir.1986). One act concerns itself with the issuance of securities and the other with post-issuance transactions, but that does not suggest that they should be treated differently with respect to arbitration. 14 Both section 12(2) and 10b-5 "create[ ] a special right to recover for misrepresentation which differs substantially from the common-law action." Wilko, 346 U.S. at 431, 74 S.Ct. at 184. In finding section 12(2) to create a "special right" the Wilko Court focused on the fact that under section 12(2) the defendant "is made to assume the burden of proving lack of scienter." Wilko, 346 U.S. at 431, 74 S.Ct. at 184. This is not so under 10b-5. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 1380, 47 L.Ed.2d 668 (1976) (under 10b-5 plaintiff must plead and prove defendant's scienter). Nevertheless, the 10b-5 action is also a special one unknown at common law. 15 Together the section and the rule aim at reaching "misleading or deceptive activities, whether or not they are precisely and technically sufficient to sustain a common law action...." They are ... designed to encompass the infinite variety of devices that are alien to the "climate of fair dealing" ... that Congress sought to create and maintain. 16 Herpich v. Wallace, 430 F.2d 792, 802 (5th Cir.1970). 17 Scherk and Byrd correctly point out that the section 12(2) action is expressly provided for, while the 10b-5 action is merely implied. To our knowledge the only suggestion as to how the express/implied distinction makes any difference was by Justice White in his concurrence in Byrd. Justice White observed that the Wilko Court found significance in the fact that a section 12(2) plaintiff was given the right to choose either a state or federal forum. Byrd, 105 S.Ct. at 1244 (White, J., concurring). Noting that the 1933 Act declares "void" any attempt to "waive compliance" with the Act, see 15 U.S.C. Sec. 77n, the Court in Wilko found that a provision compelling arbitration amounts to an agreement by the securities buyer to waive his right to select the forum and hence is void. Wilko, 346 U.S. at 434-35, 74 S.Ct. at 186-87. Justice White in Byrd noted the existence of a similar prohibition in the 1934 Act against "waiv[ing] compliance with any provision of this chapter," but found it inapplicable since the 10b-5 action was merely implied and hence literally not a "provision of this chapter." See 470 U.S. at 224, 105 S.Ct. at 1244 (White, J., concurring) (citing 15 U.S.C. Sec. 78cc(a)).5 18 We respectfully disagree. The 1934 Act provides that the federal courts are to have "exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder." 15 U.S.C. Sec. 78aa. This sweeping language applies to all actions brought under the 1934 Act, including implied actions such as the 10b-5 action. See Clark v. Watchie, 513 F.2d 994, 997 (9th Cir.) (citing Abramson v. Pennwood Investment Corp., 392 F.2d 759, 762 (2d Cir.1968)), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). Regardless of whether the 10b-5 action itself is considered a "provision of this chapter," the exclusive jurisdiction provision is undisputably such a "provision," which, under the Wilko rationale, should not be considered waivable.6 19 The Wilko Court did not rest its decision solely on the statutory prohibition against waiver. It also noted policy reasons for protecting a potential plaintiff's right to select the forum. 20 When the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts and venue. He thus surrenders one of the advantages the Act gives him and surrenders it at a time when he is less able to judge the weight of the handicap the Securities Act places upon his adversary. 21 346 U.S. at 435, 74 S.Ct. at 187. This reasoning is not precisely applicable in the 10b-5 context, since federal jurisdiction over 10b-5 claims is exclusive, but the Court's concern with a security buyer surrendering his advantage nevertheless applies with nearly equal force. Although 10b-5 does not give a plaintiff the right to choose either federal or state court, it does permit a plaintiff to obtain a federal forum without having to meet the requirements of diversity jurisdiction--something which, for one reason or another, plaintiffs often find advantageous. 22 The Wilko Court also expressed some doubts about the effectiveness of arbitration in protecting the rights of the plaintiff. The Court noted that in a section 12(2) case the arbitrators' determinations as to the legal meaning of such key terms as "material fact" could not be examined, and concluded that "[a]s the protective provisions of the Securities Act require the exercise of judicial discretion to fairly assure their effectiveness, it seems to us that Congress must have intended [the anti-waiver provision] to apply to waiver of judicial trial and review." 346 U.S. at 436-37, 74 S.Ct. at 187-88. 23 This particular rationale for Wilko may be less compelling today in light of the Supreme Court's belief that "we are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., --- U.S. ----, ----, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985). Be that as it may, to our knowledge the Supreme Court has not suggested that Wilko should no longer be applied in its own context of section 12(2) cases. The Court may have concluded, and in any event it is our belief, that the Wilko Court's other justifications for its decision are sufficient to give Wilko continuing force even though the Court's attitude toward arbitration has changed since Wilko was decided. It is those other justifications, considered at length above, which we find persuasive in convincing us that there is no principled ground for distinguishing between sections 12(2) and 10(b) with respect to arbitration. IV. 24 Congress' 1975 amendments to the securities laws reinforce our determination that 10b-5 claims are not arbitrable. The 1975 amendments enacted the "most substantial and significant revision of this country's federal securities laws since the passage of the Securities Exchange Act of 1934." Securities Acts Amendments of 1975: Hearings on S. 249 Before the Subcomm. on Securities of the Senate Comm. on Banking, Housing & Urban Affairs, 94th Cong., 1st Sess. 1 (1975). As part of that revision Congress enacted a provision, 15 U.S.C. Sec. 78bb(b), which had the effect of specifically permitting compulsory arbitration of securities claims between securities professionals. The conference report accompanying the legislation stated that 25 [i]t was the clear understanding of the conferees that this amendment did not change existing law, as articulated in Wilko v. Swan, 346 U.S. 427, [74 S.Ct. 182, 98 L.Ed. 168] (1953), concerning the effect of arbitration proceeding provisions in agreements entered into by [other] persons dealing with members and participants of self-regulatory organizations [i.e., securities professionals]. 26 H.R.Rep. No. 229, 94th Cong., 1st Sess. 91, 111 (1975), reprinted in 1975 U.S.Code Cong. & Ad.News at 179, 321. 27 This is not a particularly clear statement of congressional intent. Indeed, both sides in the controversy before us rely on this language to support their positions. Appellees contend that Congress meant to endorse Wilko and the line of lower court cases extending Wilko to 10b-5 cases. Appellants, noting that few lower courts had yet considered the applicability of Wilko to 10b-5 claims, argue that Congress was aware of the then-recent Scherk decision and meant to confirm that Wilko did not extend to 10b-5 claims. 28 We are inclined to reject both of these interpretations and instead take the statement at face value, as an endorsement of Wilko itself and nothing more. Yet we note that Congress, in enacting a provision which it recognized would permit arbitration between securities professionals, declined to take further action. Congress was presumably aware that courts had begun to extend Wilko to 10b-5 claims, see, e.g., Greater Continental Corp. v. Schechter, 422 F.2d 1100, 1103 (2d Cir.1970), and that the Supreme Court's only response had been to note in Scherk that there was a "colorable argument" that Wilko was "not controlling" in such cases. Yet Congress passed up a clear opportunity to disavow this trend. We recognize that an inference from congressional silence is of somewhat limited value, and we would reach the same result without taking the 1975 amendments into account. Nevertheless, Congress's failure to halt the application of Wilko to 10b-5 in 1975, or at any point since then,7 is at least some evidence that Congress "has been satisfied with, and adopted, the construction given to its enactment by the courts." Electric Storage Battery Co. v. Shimadzu, 307 U.S. 5, 14, 59 S.Ct. 675, 681, 83 L.Ed. 1071 (1939). V. 29 Since Sibley was decided, a number of other circuits have considered whether 10b-5 claims are arbitrable. Each was aware of the "colorable argument" set forth in Scherk that 10b-5 claims are arbitrable. Nevertheless, with but one exception8 each court has held that they are not. See McMahon v. Shearson/American Express, Inc., 788 F.2d 94, 98 (2d Cir.1986); De Lancie v. Birr, Wilson & Co., 648 F.2d 1255, 1258-59 (9th Cir.1981) (unspecified "churning" case); Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017, 1030 (6th Cir.1979); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Moore, 590 F.2d 823-29 (10th Cir.1978); Weissbuch v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 558 F.2d 831, 833-36 (7th Cir.1977); Ayres v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 538 F.2d 532, 536 (3d Cir.), cert. denied, 429 U.S. 1010, 97 S.Ct. 542, 50 L.Ed.2d 619 (1976). Only one of these decisions, holding 10b-5 claims non-arbitrable, McMahon, was also handed down after the Supreme Court's repetition of the Scherk argument in Byrd, but Byrd added nothing to Scherk. The majority decision in Byrd simply cited Scherk, noted the lower court precedent and reiterated that for the Court, whether 10b-5 claims are arbitrable is an open question. 30 We are aware that a number of district courts in this circuit have determined that pre-claim agreements to arbitrate 10b-5 claims are enforceable. They were mistaken in doing so. Sibley was the law in the former fifth circuit since 1976 and in this circuit since its formation. Sibley cited Scherk and declined to adopt its "colorable argument." Byrd, again, added nothing new. We recognize that the Supreme Court considers the issue open and may at some point expressly limit or overrule Wilko, but we agree with the second circuit that 31 it would be improvident for us to disregard clear judicial precedent in this Circuit based on mere speculation. We think that the orderly administration of justice will be best served if we as one of the inferior courts follow Supreme Court precedent and adhere to the settled law of this Circuit, and a fortiori the district courts should do likewise. 32 McMahon, 788 F.2d at 98. 33 The district court's judgment in No. 85-3352 is AFFIRMED in part and REVERSED in part with directions that the district court grant the motion to arbitrate the state law claims. The district court's judgment in No. 85-5419 is AFFIRMED.9 34 TJOFLAT, Circuit Judge, concurring in which HILL, Circuit Judge, joins: 35 Section 14 of the Securities Act of 1933 (1933 Act) provides as follows: "Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void." 15 U.S.C. Sec. 77n (1982). In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Supreme Court held that this provision rendered unenforceable an agreement to arbitrate a future controversy arising under section 12(2) of the 1933 Act, 15 U.S.C. Sec. 77l (2) (1982). Absent section 14, the agreement to arbitrate would have been enforceable pursuant to the Federal Arbitration Act, 9 U.S.C. Secs. 1-14 (1982). The issue before the en banc court is whether an agreement to arbitrate a future controversy arising under section 10(b) of the Securities Exchange Act of 1934 (1934 Act), 15 U.S.C. Sec. 78j(b) (1982), is enforceable. 36 The 1934 Act contains a provision that is nearly identical to section 14 of the 1933 Act. Section 29 of the 1934 Act contains the following language: "Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void." 15 U.S.C. Sec. 78cc(a) (1982). The Supreme Court in Wilko held that section 14 of the 1933 Act took precedence over the policies underlying the Federal Arbitration Act and prevented enforcement of an agreement to arbitrate a 1933 Act dispute. Section 29 of the 1934 Act essentially replicates section 14 of the 1933 Act. Under the teaching of Wilko, therefore, we must conclude that section 29 of the 1934 Act overrides the Federal Arbitration Act and renders unenforceable agreements to arbitrate 1934 Act disputes. There is no principled means of arriving at a contrary interpretation regarding the 1933 and 1934 Acts. 37 It is of no avail to attempt to draw the distinction that a section 12(2) private cause of action is expressly provided for in the statute whereas a section 10(b) private action is implied. To say that a private cause of action is implied is to say that Congress intended such an action to exist. See, e.g., Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 377-78, 102 S.Ct. 1825, 1838-39, 72 L.Ed.2d 182 (1982); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). It is as if Congress explicitly provided for the cause of action. Because Congress intended to create a section 10(b) cause of action, it also intended section 29 to be applicable to it, and the inquiry before us is no different than the one before the Court in Wilko. 38 Were I writing on a clean slate, I might well be inclined to reach a result contrary to the Wilko Court. Section 14 of the 1933 Act renders void any provision binding a security purchaser to "waive compliance with any provision of this subchapter" or the relevant rules and regulations thereunder. 15 U.S.C. Sec. 77n (1982). A fair reading of this statute would prevent a purchaser from waiving a seller's compliance with the substantive provisions of the Act, i.e., its reporting and disclosure requirements. By agreeing to arbitrate, the purchaser does not waive the Act's protections, but merely agrees to enforce the Act's provisions in a forum other than the courts. We must follow Wilko, however, and I accordingly concur fully in the court's holding that section 10(b) claims are not subject to pre-dispute arbitration agreements.1 * Honorable R. Lanier Anderson, Circuit Judge, did not participate in the consideration or disposition of this appeal ** Honorable Albert J. Henderson, Senior Circuit Judge, has elected to participate in the consideration and disposition of this case. 28 U.S.C. Sec. 46(c) 1 Appellees' individual brokers at E.F. Hutton and Merrill Lynch were also named as defendants 2 We use "10b-5" to refer both to Rule 10b-5 and to section 10(b) 3 We reinstate the panel opinions--Wolfe v. E.F. Hutton & Co., 780 F.2d 1032 (11th Cir.1985); Gorman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 780 F.2d 1032 (11th Cir.1985) (consolidated appeals)--insofar as it concerns the state claims in both cases 4 We use the term "arbitrable" to refer to the enforceability of a pre-claim agreement to arbitrate by a securities professional as against a non-professional. The arbitrability of 10b-5 claims pursuant to a post-claim agreement, or without either parties' objection, or between securities professionals, see infra p. 1037, is not at issue here and is hence beyond the scope of this opinion 5 The same provision also prohibits waiver of compliance with "any rule or regulation" promulgated under the Act. 15 U.S.C. Sec. 78cc(a). Under Justice White's reasoning, however, the provision is still not violated by an agreement to arbitrate 10b-5 claims since such an agreement does not waive compliance with the actual rule, but only bars resort to the implied judicial remedy 6 The 1934 Act thus includes "protection against waiver of the right to a judicial forum." See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., --- U.S. ----, 105 S.Ct. 3346, 3355, 87 L.Ed.2d 444 (1985) 7 Several less significant amendments have been made since 1975 8 In a 2-1 panel decision, the eighth circuit recently became the only circuit to hold that agreements to arbitrate 10b-5 claims are enforceable. Phillips v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 795 F.2d 1393 (8th Cir.1986). The court essentially adopted the "colorable argument" set forth in Scherk and Byrd and Justice White's argument in his Byrd concurrence. We have discussed those arguments and our reasons for rejecting them at length above. See supra part IIB 9 Appellee Gorman also argues that arbitration of his 10b-5 claim is precluded by SEC Rule 15c2-2, 17 C.F.R. Sec. 240.15c2-2. This argument is properly before us since a district court's judgment may be affirmed on any ground, regardless of whether the ground was relied upon by the district court. Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir. Unit B 1981). In light of our holding on the Wilko issue, however, we need not reach the issue today 1 In addition to the constraints imposed by the Wilko decision, I also recognize that in the years following Wilko, the Congress may have indicated its satisfaction with the state of the law in this area	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/475860/	800 F.2d 1073 2 UCC Rep.Serv.2d 1716 ALLSTATE FINANCIAL CORPORATION, Plaintiff-Appellant,v.DUNDEE MILLS, INC., Defendant-Appellee. No. 86-8073. United States Court of Appeals,Eleventh Circuit. Sept. 30, 1986. E. Kendrick Smith, Atlanta, Ga., for plaintiff-appellant. A. Felton Jenkins, Jr., Atlanta, Ga., for defendant-appellee. Appeal from the United States District Court for the Northern District of Georgia. Before HILL, Circuit Judge, HENDERSON, Senior Circuit Judge, and LYNNE, Senior District Judge. HILL, Circuit Judge: FACTS 1 Allstate Financial Corporation ("Allstate") is in the business of making secured loans and financing and factoring receivables. In June, 1983, Allstate entered into a financing arrangement with Bleckley Lumber Company d/b/a Bleckley Cotton Company ("Bleckley") and Bleckley's principal, William Carlton Lawson, whereby Allstate agreed to factor certain of Bleckley's accounts receivable. Bleckley was engaged in the business of buying and selling cotton. Pursuant to this financing arrangement, Bleckley granted Allstate a continuing general lien and security interest in, inter alia, all of Bleckley's existing and future accounts receivable and contract rights. In addition, Bleckley authorized Allstate to collect all of its accounts receivable directly from the account debtors. 2 Dundee Mills, Inc. ("Dundee") was Bleckley's principal account debtor. On September 13, 1983, Allstate gave written notice to Dundee, pursuant to the security agreement and O.C.G.A. Sec. 11-9-318 (1982), of the assignment and its security interest in Bleckley's accounts receivable. The notice directed Dundee to make all payments for cotton purchased from Bleckley directly to Allstate. Dundee did not dispute the validity of this notice and subsequently submitted payments to Allstate on 108 Bleckley invoices. 3 Allstate brought this suit to collect on fifteen invoices that it claimed Dundee wrongfully paid to Bleckley or third parties in violation of Allstate's security interest. Allstate did not advance funds on any of the invoices at issue, but claims it was entitled to receive these payments under the terms of the security agreement. On appeal, Allstate asserts its claim as to only nine of these payments. 4 After they completed discovery, both parties filed motions for summary judgment. Dundee requested summary judgment as to all counts of the complaint but Allstate did so for only four of the checks at issue. Rather than discuss the payments by invoice number or date, the district court assigned each payment a check number. The checks at issue on appeal fall into two general groups: Check Nos. 1-6 and 9 were made payable to the Commerce Union Bank of Memphis. Dundee claimed, and the district court found, that Bleckley was unable to meet its contractual obligations to supply cotton to Dundee because of financial difficulties. Thereafter, Bleckley's principal, Lawson, made arrangements for Whitsett Cotton Company ("Whitsett") to sell cotton to Dundee in satisfaction of Bleckley's unfulfilled contracts. Thus, the district court found that Check Nos. 1-6 were sent to Whitsett's bank for cotton that Whitsett sold to Dundee under this arrangement. Lawson as broker, had merely located the cotton for Whitsett to purchase and sell to Dundee. Check No. 9 was also payable to Whitsett's bank but the district court did not determine whether this was for cotton purchased pursuant to the above arrangement or under independent dealings between Dundee and Whitsett. Moreover, Dundee contended, and the court found, that Allstate had consented to the payments to Whitsett in a telephone conversation and letter from Allstate's president in January, 1984. 5 At Lawson's direction, Dundee issued Check Nos. 10-11 payable to Bleckley. The district court found that these checks were in payment of cotton furnished by Lewis Gin & Peanut Co. ("Lewis Gin"). Lawson, as broker, had located and delivered the cotton and the sale was by Lewis Gin in satisfaction of a Bleckley contract which Bleckley could not fulfill. 6 Allstate disputes Dundee's characterization of the "sales" by Whitsett and Lewis Gin. Instead, Allstate claims that they were financing arrangements designed to thwart Allstate's security interest. Because Dundee's business records and Bleckley's invoices showed that the cotton was sold by Bleckley and the parties did not follow the Southern Mill Rules for assigning contracts, Allstate claimed that Bleckley was the seller, not Whitsett and Lewis Gin. Moreover, Allstate claims that its "consent" was prospective only and limited to cotton purchased directly from Whitsett. Thus, Allstate contends that there were genuine issues of material fact regarding these transactions. 7 Nevertheless, the parties agree that Allstate had possession of Check Nos. 1-3, 6 and 9 and sent them to Bleckley for handling. Dundee mistakenly sent these five checks, payable to Commerce Union Bank, to Allstate. Allstate's employees, apparently without looking submitted one of these checks for deposit to Allstate's account but the bank would not accept it. Thereafter, Allstate mailed all five checks to Bleckley with the following explanation: "Enclosed is the check that was erroneously deposited, we got it back and are returning it herewith. We also enclose four additional checks that were sent to us by Dundee Mills payable to Commerce Union Bank of Memphis." (Winkler Dep., Def. Ex. 8). Allstate did not ask Dundee to reissue these checks in Allstate's name or demand reimbursement from Bleckley. 8 Although Allstate never had possession of Check Nos. 10 and 11, one of Allstate's employees discovered these payments during a routine monthly inspection of Bleckley's records shortly after Dundee made them. At that time, Allstate reprimanded Bleckley for accepting the checks but took no action to recover these payments. 9 After Allstate's discovery of these payments, the financial arrangement with Bleckley continued as before. Allstate did not raise any further questions or seek to recover these funds from Dundee until quite some time later. The impetus for Allstate's belated interest in these checks was a fraud perpetrated on Allstate in March and April of 1984. The malefactors, Lawson and Bleckley, apparently caused Allstate to advance substantial sums of money on phony invoices. Dundee was not involved in this scheme. Subsequently, Bleckley defaulted on its indebtedness and went out of business, Lawson was convicted of fraud and Allstate was left holding a worthless judgment against Bleckley and Lawson. At that time, Allstate brought this action, seeking to recover these payments from Dundee. 10 The district court denied Allstate's motion for partial summary judgment and granted Dundee's motion for summary judgment as to all the checks. The court held that these payments were not for Bleckley accounts. Moreover, the court concluded that Allstate had acquiesced in or consented to Check Nos. 1-6 and 9 and waived its rights with respect to Check Nos. 10 and 11. DISCUSSION 11 To begin, we note that the terms of Allstate's financing arrangement with Bleckley entitled Allstate to collect all of Bleckley's accounts receivable, not merely accounts for which Allstate provided the financing. (R. 1-1 Ex. A). Therefore, if the disputed checks were payments for Bleckley receivables, it is irrelevant that Allstate did not advance funds on these accounts. 12 The district court decided this case on the parties' cross-motions for summary judgment. Summary judgment is proper only when there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The parties only agree as to the facts underlying Dundee's waiver defense. The issue then is whether Allstate's conduct constituted waiver as a matter of law. 13 Although Allstate's right to collect Bleckley's accounts receivable arose under the Uniform Commercial Code, O.C.G.A. Sec. 11-9-318 (1982), common law equitable principles also apply to UCC transactions. O.C.G.A. Sec. 11-1-103 (1982). Waiver is a voluntary relinquishment of a legal right, O.C.G.A. Sec. 1-3-7 (1982), that may be express or implied from conduct. James v. Mitchell, 159 Ga.App. 761, 285 S.E.2d 222, 224 (1981). Specifically, an assignee's conduct may result in the waiver of its rights under section 9-318. Cf. Estate of Haas v. Metro-Goldwyn-Mayer, Inc., 617 F.2d 1136, 1140-41 (5th Cir.1980) (assignment invalidated by acquiescence in wrongful payment and failure to demand subsequent payments). Under Georgia law, waiver is a matter of intent: the evidence must so clearly indicate an intent to relinquish a known right as to exclude any other reasonable explanation. See, e.g., D.I. Corbett Electric, Inc. v. Venture Construction Company, 231 S.E.2d 536, 538 (Ga.App.1976). Although waiver is generally a jury question, Jordan v. Flynt, 240 Ga. 359, 240 S.E.2d 858, 863 (1977), the district court was entitled to decide the legal issue on the cross-motions for summary judgment because the parties agreed on the necessary facts. 14 Allstate claims that it did not waive its right to collect Bleckley's accounts receivable, particularly those due from Dundee, because it took all the steps necessary to perfect its security interest under O.C.G.A. Sec. 11-9-318. Dundee however, does not contend that Allstate waived its right to collect all of Bleckley's accounts from Dundee, but rather that it waived its right to collect the specific payments at issue on appeal. 15 As evidence of Allstate's intent, Allstate's vice president testified at his deposition that he had investigated these checks and determined that Allstate had not advanced funds against these particular invoices, there were no problems with Bleckley's account and Allstate could release the funds to Bleckley. (Winkler Dep. 114-17, 122-23 and 150-57). Allstate argues that its inaction was irrelevant because it never had possession of Check Nos. 10-11 and could not deposit Check Nos. 1-3, 6 and 9 because they were made payable to Whitsett's bank. Nevertheless, if Allstate had intended to assert its rights, it could have retained the checks it held and demanded that Dundee reissue them in Allstate's name or required reimbursement from Bleckley. Likewise, Allstate had the right to demand immediate reimbursement from Bleckley for Check Nos. 10-11 or, at that time, assert its rights against Dundee under section 11-9-318. Instead, Allstate forwarded Check Nos. 1-3, 6 and 9 to Bleckley and took no action to enforce its rights to Check Nos. 10-11 until after it suffered a loss on its financing arrangement with Bleckley. 16 Similarly, one may waive rights by acquiescing in another's conduct. If 17 "a party having an interest to prevent an act being done has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license." 18 Smith v. Hanna Mfg. Co., 68 Ga.App. 475, 23 S.E.2d 552, 559 (1942) quoting 31 C.J.S. Estoppel Sec. 71 (emphasis omitted). Although Allstate knew of these payments to Bleckley and Commerce Union Bank in late 1983, it did not demand reimbursement from Dundee until Allstate was later left with an uncollectible judgment against Bleckley and Lawson. If Allstate had immediately exercised its rights, Dundee may have had recourse against Bleckley; thus, Allstate's apparent consent prejudiced Dundee's ability to recover these payments. 19 By its conduct, Allstate acquiesced in these seven payments and thus voluntarily relinquished its contractual and statutory right to receive and control these payments. Under the undisputed facts, the district court did not err in concluding that Allstate had acquiesced in or waived its right to these payments as a matter of law. 20 With regard to Check Nos. 4 and 5, the record does not contain such undisputed facts. The record does not establish whether Allstate ever had possession of these checks or when it learned of their issuance. The district court found that Whitsett sold the cotton to Dundee and that Allstate had consented to the payments to Whitsett. This conclusion, however, required factfinding from disputed facts. Allstate submitted evidence that Bleckley bought cotton using its own checks and delivered it to Dundee pursuant to a Bleckley contract. Moreover, despite Dundee's evidence of an assignment of contract, both Bleckley's and Dundee's business records show that the cotton was "bought of" Bleckley. Finally, Allstate contends that its consent to direct payments to Whitsett was for future transactions only. Because genuine issues of fact remained, it was error for the district court to grant summary judgment on Check Nos. 4 and 5. 21 AFFIRMED in part; and REVERSED and REMANDED in part. See Rule 3(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit ** Honorable Seybourn H. Lynne, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2494150/	65 So.3d 1059 (2011) S.W. v. STATE. No. 1D10-6217. District Court of Appeal of Florida, First District. July 25, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2485041/	73 So. 3d 778 (2011) NETTER v. LASALLE BANK NAT. ASS'N. No. 4D11-417. District Court of Appeal of Florida, Fourth District. November 9, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4467566/	Belle-Fleur v Desriviere (2019 NY Slip Op 09244) Belle-Fleur v Desriviere 2019 NY Slip Op 09244 Decided on December 24, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 24, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JEFFREY A. COHEN ROBERT J. MILLER FRANCESCA E. CONNOLLY, JJ. 2017-05201 2017-05202 (Index No. 500484/14) [1]Claudiane Belle-Fleur, et al., plaintiffs-respondents, vHeris Desriviere, et al., defendants-respondents, Antonio Hernandez, et al., appellants. Shearer PC, Locust Valley, NY (Mark G. Vaughan of counsel), for appellants. Stefano A. Filippazzo, P.C., Brooklyn, NY (Louis A. Badolato of counsel), for plaintiffs-respondents. Jaime E. Gangemi (Kornfeld, Rew, Newman & Simeone, Suffern, NY [William S. Badura], of counsel), for defendants-respondents. DECISION & ORDER In an action to recover damages for personal injuries, the defendants Antonio Hernandez and Julie P. Transit, Inc., appeal from (1) an order of the Supreme Court, Kings County (Johnny L. Baynes, J.), dated March 23, 2017, and (2) an order of the same court dated April 3, 2017. The order dated March 23, 2017, insofar as appealed from, denied that branch of the motion of those defendants which was pursuant to CPLR 3126(2) to preclude the defendants Heris Desriviere and Joseph Junior Basile from submitting affidavits or other statements or testimony in opposition to their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The order dated April 3, 2017, denied that branch of the motion of those defendants which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. ORDERED that the order dated March 23, 2017, is affirmed insofar as appealed from; and it is further, ORDERED that the order dated April 3, 2017, is reversed, on the law, and that branch of the motion of the defendants Antonio Hernandez and Julie P. Transit, Inc., which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted; and it is further, ORDERED that one bill of costs is awarded to the appellants, payable by the respondents appearing separately and filing separate briefs. The plaintiffs commenced this action to recover damages for injuries allegedly sustained in a motor vehicle accident. The plaintiffs were passengers in a vehicle owned by the defendant Joseph Junior Basile and operated by the defendant Heris Desriviere (hereinafter the Desriviere vehicle). The Desriviere vehicle was traveling southbound on East 91st Street in [2]Brooklyn when it collided with a vehicle owned by the defendant Julie P. Transit, Inc. (hereinafter Julie P. Transit), and operated by the defendant Antonio Hernandez (hereinafter the Hernandez vehicle). The Hernandez vehicle was traveling eastbound on Avenue M. It is uncontested that a stop sign controls the traffic on East 91st Street in the direction in which the Desriviere vehicle was traveling, and that Avenue M, the street on which the Hernandez vehicle was traveling, was a through street with the right-of-way. Hernandez and Julie P. Transit moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, arguing, inter alia, that Desriviere violated Vehicle and Traffic Law § 1142(a) and that his actions were the sole proximate cause of the accident. Hernandez and Julie P. Transit also moved pursuant to CPLR 3126(2) to preclude Desriviere and Basile from submitting affidavits or other statements or testimony in opposition to their motion for summary judgment dismissing the complaint insofar as asserted against them due to the failure of Desriviere and Basile to appear for depositions. In an order dated March 23, 2017, the Supreme Court, inter alia, denied that branch of the motion of Hernandez and Julie P. Transit which was pursuant to CPLR 3126(2) to preclude Desriviere and Basile from submitting affidavits or other statements or testimony in opposition to their motion for summary judgment. Thereafter, in an order dated April 3, 2017, the court denied that branch of the motion of Hernandez and Julie P. Transit which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Hernandez and Julie P. Transit appeal from both orders. We agree with the Supreme Court's determination to deny that branch of the motion of Hernandez and Julie P. Transit which was pursuant to CPLR 3126(2) to preclude Desriviere and Basile from submitting affidavits or other statements or testimony in opposition to their motion for summary judgment. Hernandez and Julie P. Transit failed to submit an affirmation of good faith indicating that efforts had been made to resolve the discovery issue prior to engaging in motion practice, as required by 22 NYCRR 202.7(a)(2) (see Goodwin v Guardian Life Ins. Co. of Am., 156 AD3d 765, 767; Perez v Stonehill, 121 AD3d 960, 961). Moreover, there was no clear showing that Desriviere and Basile willfully and contumaciously failed to appear for examinations before trial (see CPLR 3126; Cannon v 111 Fulton St. Condominium, Inc., 162 AD3d 838, 839; Conciatori v Port Auth. of N.Y. & N.J., 46 AD3d 501, 502-503). However, the Supreme Court should have granted that branch of the motion of Hernandez and Julie P. Transit which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign in violation of Vehicle and Traffic Law § 1142(a) is negligent as a matter of law (see Breen v Seibert, 123 AD3d 963, 964; Derosario v Gill, 118 AD3d 739, 739; Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 651). The driver with the right-of-way is entitled to anticipate that the other motorist will obey traffic laws that require him or her to yield (see Yu Mei Liu v Weihong Liu, 163 AD3d 611; Giwa v Bloom, 154 AD3d 921). Yet, "a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident" (Adobea v Junel, 114 AD3d 818, 819; see Lu Yuan Yang v Howsal Cab Corp., 106 AD3d 1055, 1056; Todd v Godek, 71 AD3d 872). Here, Hernandez and Julie P. Transit established their entitlement to judgment as a matter of law by submitting evidence demonstrating that (1) Hernandez had the right-of-way, (2) that because Desriviere failed to yield the right-of-way upon entering the intersection in violation of Vehicle and Traffic Law § 1142(a), he was negligent as a matter of law, and (3) that Desriviere's negligence was the sole proximate cause of the accident (see Williams v Hayes, 103 AD3d 713, 714-715; Thompson v Schmitt, 74 AD3d 789, 789-790; Maliza v Puerto-Rican Transp. Corp., 50 AD3d at 652). The question of whether Desriviere stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop (see Maliza v Puerto-Rican Transp. Corp., 50 AD3d at 652; Exime v Williams, 45 AD3d 633). In opposition, neither the plaintiffs nor Desriviere and Basile raised a triable issue of fact as to whether Hernandez was at fault in the happening of the accident. DILLON, J.P., COHEN, MILLER and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	01-03-2023	12-24-2019
https://www.courtlistener.com/api/rest/v3/opinions/2589863/	58 N.Y.2d 708 (1982) Kuan Sing Enterprises, Inc., Appellant, v. T. W. Wang, Inc., et al., Respondents. Court of Appeals of the State of New York. Argued November 8, 1982. Decided December 2, 1982. Sidney A. Weisberg for appellant. Barbara M. Roth and Andrew L. Hughes for respondents. Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER. Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (86 AD2d 549).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1053899/	IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 16, 2005 Session FORD MOTOR CREDIT COMPANY v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE Appeal from the Chancery Court for Davidson County No. 01-980-II Carol McCoy, Chancellor No. M2004-00050-COA-R3-CV - Filed September 21, 2005 Ford vehicles leased by its dealers are simultaneously purchased by Ford Credit, a wholly owned subsidiary of the Ford Motor Company. Ford Credit is subject to a franchise tax which is determined by the book value of its tangible personal property owned or used in Tennessee. If the leased vehicles are finished goods inventory, their value is excluded from the calculation of franchise taxes. The trial court ruled that the leased vehicles were not held by Ford Credit for sale, and thus did not qualify as finished goods inventory. Ford Credit appeals. The judgment is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,W.S., and DAVID R. FARMER , J., joined. Michael D. Sontag and Christopher L. Haley, Nashville, Tennessee, attorneys for appellant, Ford Motor Credit Company. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mary Ellen Knack, Assistant Attorney, General for appellee, State of Tennessee. OPINION For the privilege of transacting business in Tennessee, Ford Motor Credit Company [hereinafter “Ford Credit”] was subject to a franchise tax. Tenn. Code Ann. § 67-4-906. For the 1997 and 1998 tax years it duly filed tax returns using a method which determines the tax according to the book value of Ford Credit’s real and tangible personal property owned or used in Tennessee, including the value of leased vehicles. In April 2000, Ford Credit filed amended returns for 1997 and 1998 claiming a partial refund of the taxes paid for each of these years, claiming that the amount by which the book value of these leased vehicles exceeded, for 1997 and 1998, fifty million and forty million dollars, respectively, was exempt from franchise and excise taxes under the “finished goods” definition of Tenn. Code Ann. § 67-4-906(a)(9).1 The facts were not disputed, and each party filed a motion for summary judgment on the issue of whether the leased vehicles qualified as finished goods inventory pursuant to Tenn. Code Ann. § 67-4-906(a)(9). The trial judge granted the motion of the Commissioner and dismissed the case, reserving the amount of attorney fees. Tenn. Code Ann. § 67-1-1803(d). Ford Credit appeals, and presents for review the issue of whether the leased vehicles are exempt finished goods inventory as that term is statutorily defined. Appellate review is de novo with no presumption of correctness, Union Carbide Corp. v. Huddleston, 854 S.W.2d 91 (Tenn. 1993). The facts are stipulated as found by the trial court: Ford Credit is the largest provider of automotive financing in the world. In 1959, Ford Motor Company [hereinafter “Ford”] created Ford Credit as a wholly-owned subsidiary to provide Ford with financing services for its business of producing and selling cars and trucks. As a result, Ford Credit provides financing option to Ford customer, including retail lease plans. If a customer chooses to lease a vehicle, the customer enters into a retail lease contract with the dealer and Ford Credit, simultaneously with the customer’s lease execution, purchases the vehicle subject to the lease from the dealer. Ford Credit takes ownership of the lease and the title to the vehicle from the dealer. Generally, the dealer is under no further obligation and Ford Credit becomes responsible for the management and servicing of the lease. At the end of the lease term, Ford Credit continues to own the leased vehicle. Ford Credit generally disposes of the leased vehicle in one of three ways. First, the customer has the option to purchase the vehicle from Ford Credit at the end of the lease term for the residual value of the vehicle as set forth in the lease agreement. Second, the customer may return the vehicle to the original dealer. The dealer has an option to purchase the vehicle from Ford Credit at its residual value. Third, if neither the customer nor the dealer desires to purchase the vehicle, Ford Credit sell the vehicle at a commercial auction. At all times, the leased vehicles owned by Ford Credit are fully functional vehicles that remain in the same state or form in which they were originally created; at no time does Ford Credit show its ownership of the leased cars as “net investment in operating leases.” Ford Credit does not carry the vehicles at issue as “inventory” on its books and records. 1 In effect during 1997and 1998, and since superseded. -2- Ford Credit carries these leased vehicles on it books as depreciable assets. However, Ford Credit never holds or has physical possession of any vehicles that it leases. During 1997 and 1998, Ford Credit acquired retail lease contracts for Ford leased vehicles. The book value of those vehicles totaled $597,303,071 for the calendar year 1997 and $446,834,021 for the calendar year 1998. Using those book values, Ford Credit timely filed a Tennessee Franchise and Excise Tax Return for the 1997 and 1998 tax years. In April, 2000, Ford Credit filed an amended Tennessee Franchise and Excise Tax Return and sought a refund for a portion of the franchise and excise taxes that it paid in 1997 and 1998. Ford Credit claimed that $50,000,000 and $40,000,000 of the vehicle book values at issue for tax years 1997 and 1998, respectively, were in excess of the relevant statutory amounts and were exempt from franchise and excise taxes under the provision of Tenn. Code Ann. §67-4-2108(a)(6)(B) and (C). When the Department of Revenue did not act upon these refund claims within six months, the claims were deemed denied pursuant to Tenn. Code Ann. § 67-1-1802(c)(1). Ford Credit filed this lawsuit seeking a refund of the taxes. Tennessee Code Annotated § 67-4-906(a)(8) authorized Ford to exclude exempt inventory in the computation of its minimum tax base. This statute defined “exempt inventory” as that portion of a corporation’s finished good inventory in excess of fifty million dollars ($50,000,000) for corporate fiscal years beginning on or after July 15, 1996, forty million dollars ($40,000,000) for corporate fiscal years beginning on or after July 15, 1997, and thirty million dollars ($30,000,000) for corporate fiscal years beginning on or after July 15, 1998, that would otherwise be included in the minimum measure of the corporation’s franchise tax base. The statute further provided that “finished goods inventory” meant tangible personal property that was (A) Owned by the taxpayer; (B) Shown on the taxpayer’s books and records kept in accordance with generally accepted accounting principles; (C) Held for wholesale or retail sale; and (D) In need of no further fabrication or processing by or for the owner; except, in the case of configuring, testing or packaging of computer products. -3- Tennessee Code Annotated § 67-4-906(a)(9) (1998). As we have noted the only issue for review in this case is whether vehicles that were owned by Ford Credit and leased to Ford customers constituted “finished goods inventory” under the statutory definition. Ford Credit is a wholly-owned subsidiary of Ford Motor Company and, during the Tax Year at issue, it was engaged in the business of leasing automobiles to customers for specified lease terms. At the end of the lease terms, which typically ranged from two to four years in length, Ford Credit sold each of the leased vehicles in one of three ways: (1) to the lessee for the residual value of the vehicle as specified in the lease agreement; (2) to the original dealer for the residual value; or (3) at a commercial auction. The trial court ruled that the leased vehicles did not meet two of the four requirements specified in Tenn. Code Ann. § 67-4-906(a)(9) because (1) the leased vehicles “were not held for wholesale or retail sale” by Ford Credit, and (2) they were not tangible personal property shown on Ford Credit’s books and records kept in accordance with generally accepted accounting principles [G.A.P.]. We think a resolution of this case properly requires an inquiry into the meaning of the third prong of the definition of “finished good inventory”: were the vehicles owned by Ford Credit and leased by it to whomever held by Ford Credit “for wholesale or retail sale”? The trial court ruled that Ford Credit made no showing that it holds the vehicles for sale within the plain meaning of the statute, because “inventory” implies that a taxpayer’s products, goods or tangible personal property is physically kept or stored for later sale, and that neither the leases purchased by Ford Credit nor the leased vehicles acquired by it comport with the statutory requirement that tangible personal property be held for sale. Ford Credit argues that a lease is a sale, citing Dixie Rents Inc. v. City of Memphis, 594 S.W.2d 397 (Tenn. Ct. App. 1979) and that the various taxing schemes recognize this principle. Tenn. Code Ann. § 67-4-702(a)(15); Tenn. Code Ann. § 67-6-102(a)(27)(A). It further argues that the leased vehicles constitute inventories of tangible personal property held for sale. The precise issue – which cannot arise again owing to the superseding statute – is one of first impression. The trial judge recognized the several decisions of the appellate courts that a lease was a “sale of the right to use a thing for an agreed upon period,” and that rental property held for such a “sale” qualified as inventory, but ruled that no provision in the Franchise Tax Act, as contrasted to the business and sales tax statutes, supports Ford Credit’s arguments because “inventory” implies that tangible personal property is kept or stored for later sale. The trial judge reasoned that the leased vehicles purchased by Ford Credit did not comport with the statutory requirement that the tangible personal property be held for sale. We agree. Tennessee Code Annotated § 67-4-906(a) authorized Ford Credit to exclude exempt inventory in the computation of its minimum tax base. The leased vehicles were simply not held for “wholesale or retail sale”; they were not shown on Ford Credit’s books as inventory, but rather as “net investment in operating leases” and as depreciable assets. We agree with the Commissioner that having shown the leased vehicles as net investment in operating leases, and thus depreciable assets, -4- Ford Credit cannot later claim that these leased vehicles were finished goods inventory under the Franchise Tax Law. The judgment is accordingly affirmed at the costs of the appellant. ___________________________________ WILLIAM H. INMAN, SENIOR JUDGE -5-	01-03-2023	10-08-2013
https://www.courtlistener.com/api/rest/v3/opinions/3038721/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-2555 ___________ David R. Sina; Candice M. Sina, * * Appellants, * * v. * Appeal from the United States * District Court for the Frank T. Mabley, an individual; * District of Minnesota. Greenstein, Mabley & Wall, LLC, a * private business organization and * [UNPUBLISHED] enterprise; Gordon W. Shumaker, an * individual; Salvador Rosas, an * individual; Bertrand Poritsky, an * individual; Hyam Segell, an individual, * Margaret Fuller Corneille, an * individual; Carl Baer, an individual; * Isabel Gomez, an individual; Richard * H. Kyle, an individual; Frank B. * Wilderson, Jr., an individual; Mary P. * Walbran, an individual; Joseph R. * Cade, an individual; John D. Kelly, an * individual; Catherine M. Warrick, an * individual; State Board of Law * Examiners, a state agency and an * enterprise, * * Appellees. * ___________ Submitted: July 27, 2005 Filed: September 1, 2005 ___________ Before COLLOTON, HANSEN, and BENTON, Circuit Judges. ___________ PER CURIAM. David and Candice Sina appeal following the district court’s1 dismissal of their 42 U.S.C. § 1983 complaint. For reversal, they argue that (1) the Minnesota Attorney General lacked authority to represent the defendants who were state employees, and that therefore the Sinas were entitled to a default judgment, (2) the district court erred in granting defendant Frank T. Mabley’s amended motion to dismiss because the motion was procedurally defective, and therefore the Sinas were entitled to a default judgment, and (3) the district court should have allowed the Sinas to amend their complaint, and should have granted their motion to strike defendants’ motions to dismiss. For the reasons discussed below, we affirm the judgment of the district court. The Minnesota Attorney General had authority to represent the state defendants: even though they were sued in their individual capacities, the complained-of acts were performed as state officials. See Minn. Stat. Ann. §§ 3.736 (state shall defend state employees from suits pertaining to acts or omissions taken during their period of employment if employee was acting within scope of employment); 8.06 (Attorney General shall act as attorney for state officials and state boards in all matters pertaining to their official duties) (West 2005). Thus, there was no basis for a default judgment. Similarly, there was no basis to enter default judgment against Mabley, as his amended motion to dismiss was not improper or procedurally prejudicial. Accordingly, the district court also did not err in denying the Sinas’ motion to strike as frivolous. 1 The Honorable Richard H. Battey, United States District Judge for the District of South Dakota, sitting by designation in the District of Minnesota. -2- Finally, although the Sinas argue that they should have been allowed to amend their complaint to remove the law firm and the Board as defendants, they made no motion to amend, and removal of these defendants would not have saved the complaint from dismissal. Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ -3-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/746305/	124 F.3d 1298 U.S.v.Gordon* NO. 96-2523 United States Court of Appeals,Eleventh Circuit. Sept 12, 1997 Appeal From: N.D.Fla. ,No.9504067WS 1 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/4467532/	PennyMac Corp. v Khan (2019 NY Slip Op 09278) PennyMac Corp. v Khan 2019 NY Slip Op 09278 Decided on December 24, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 24, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JEFFREY A. COHEN ROBERT J. MILLER HECTOR D. LASALLE, JJ. 2017-00683 2018-03785 (Index No. 4624/13) [*1]PennyMac Corp., respondent, vShahida Khan, appellant, et al., defendants. Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant. Akerman LLP, New York, NY (Ashley S. Miller and Jordan M. Smith of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Shahida Khan appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 24, 2016, and (2) a judgment of foreclosure and sale of the same court entered December 6, 2017. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Shahida Khan, to strike that defendant's answer, and to appoint a referee to compute the amount due, and denied those branches of that defendant's cross motion which were for summary judgment dismissing the complaint insofar as asserted against her, or alternatively, for leave to amend her answer to assert failure to comply with a contractual condition precedent as an affirmative defense. The judgment of foreclosure and sale, upon the order, inter alia, directed the sale of the subject property. ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment of foreclosure and sale is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Shahida Khan, to strike that defendant's answer, and to appoint a referee to the compute the amount due are denied, that branch of that defendant's cross motion which was for leave to amend her answer to assert failure to comply with a contractual condition precedent as an affirmative defense is granted, the order entered October 24, 2016, is modified accordingly, and the answer of the defendant Shahida Khan is reinstated; and it is further, ORDERED that one bill of costs is awarded to the defendant Shahida Khan. The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]). In October 2005, the defendant Shahida Khan (hereinafter the defendant) executed a note in the principal sum of $956,250 in favor of Washington Mutual Bank, F.A. (hereinafter Washington Mutual). The note was secured by a mortgage on residential property located in Glen Cove. In January 2013, the Federal Deposit Insurance Corporation, as receiver for Washington Mutual, assigned the mortgage to the plaintiff. In April 2013, the plaintiff commenced this action to foreclose the mortgage, alleging that the defendant defaulted under the terms of the note. In November 2013, the plaintiff assigned the mortgage to PennyMac Corp. (hereinafter PennyMac). Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. In relevant part, the plaintiff maintained that it complied with the notice requirements of RPAPL 1304, and submitted the affidavits of Betsy M. Somarriba and Oscar Carras-Gomez, default specialists for PennyMac, in support. The defendant opposed the motion and cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff failed to comply with the notice requirements of RPAPL 1304. Alternatively, the defendant sought leave to amend her answer, inter alia, to assert the defense that the plaintiff failed to comply with the notice requirements of the mortgage. In an order entered October 24, 2016, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. On December 6, 2017, a judgment of foreclosure and sale was entered upon the order, inter alia, directing the sale of the subject property. The defendant appeals. Pursuant to RPAPL 1304, at least 90 days before commencement of an action to foreclose a mortgage on a home loan, a specified notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304[1], [2]). "Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" (Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014, 1016; see Citibank, N.A. v Conti-Scheurer, 172 AD3d 17). Here, although Somarriba and Carras-Gomez "stated in [their] affidavit[s] that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened" (Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21). Instead, the plaintiff submitted a certificate of bulk mailing, which did not identify any particular mailing, and two internal reports generated by the plaintiff, which appear to demonstrate that some unidentified pieces of mail were sent to the borrower's address (see U.S. Bank N.A. v Ahmed, 174 AD3d 661). Additionally, no foundation was laid for the admission of these business records, as neither Somarriba nor Carras-Gomez attested that they had personal knowledge of the plaintiff's business practices and procedures, or that the plaintiff's records were incorporated into PennyMac's own records or routinely relied upon by PennyMac in its business (see Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782; see also CPLR 4518[a]). Finally, the plaintiff failed, alternatively, to provide proof of actual mailing of the RPAPL 1304 notice, to provide proof of "a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" (Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21). Neither Somarriba nor Carras-Gomez averred that they had personal knowledge of any such standard office mailing procedure of the plaintiff. Accordingly, the plaintiff failed to demonstrate, prima facie, that it complied with the notice provision of RPAPL 1304. However, contrary to the defendant's contention, she was not entitled to summary judgment dismissing the complaint insofar as asserted against her based on the plaintiff's alleged failure to comply with the notice requirements of RPAPL 1304. In this regard, the defendant's bare denial of receipt, without more, as set forth in her affidavit attesting that she had not received the RPAPL 1304 notice, was insufficient to establish her prima facie entitlement to judgment as a matter of law (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 24; LNV Corp. v Sofer, 171 AD3d 1033, 1038). Further, that branch of the defendant's cross motion which was for leave to amend her answer to assert the affirmative defense that the plaintiff failed to comply with the notice requirements of the mortgage should have been granted. "In the absence of prejudice or surprise resulting directly from the delay in seeking leave [to amend a pleading], such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220, 222). "The burden of establishing prejudice is on the party opposing the amendment" (Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411). Here, the plaintiff failed to show that it was surprised or prejudiced by the amendment and did not establish that the proposed amendment was patently devoid of merit or palpably insufficient (see LNV Corp. v Sofer, 171 AD3d at 1037; Emigrant Bank v Myers, 147 AD3d 1027, 1027-1028). BALKIN, J.P., COHEN, MILLER and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	01-03-2023	12-24-2019
https://www.courtlistener.com/api/rest/v3/opinions/2494152/	63 So.3d 756 (2011) MURPHY v. STATE. No. 1D11-0489. District Court of Appeal of Florida, First District. June 10, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1053855/	189 S.W.3d 720 (2005) Judi RICHARDSON v. George Kevin SPANOS. Court of Appeals of Tennessee, at Nashville. May 7, 2004 Session. October 5, 2005. Permission to Appeal Denied March 20, 2006. 722 D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for the appellant, Judi Richardson. Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellee, George Kevin Spanos. Permission to Appeal Denied by Supreme Court March 20, 2006. OPINION WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK G. CLEMENT, JR., JJ., joined. This appeal involves a dispute between the parents of an eleven-year-old boy over child support and private school tuition. The child's mother filed a petition in the Circuit Court for Sumner County seeking to obtain an increase in child support and to hold the father in contempt for failing to pay medical bills. The father responded by filing a petition seeking a deduction in child support because of reduced earnings. Following a bench trial, the trial court reduced the father's child support and denied the mother's request to require the father to pay the child's private school tuition. The child's mother has appealed. We have concluded that the trial court properly decreased the father's base child support obligation because of his reduced income. However, we have also concluded that the trial court erred by failing to require the father to pay a reasonable portion of the child's private school tuition. I. Lewis Tyler Spanos was born in Florida on May 2, 1994 to Judi Richardson and George Kevin Spanos. At the time, Ms. Richardson was an entertainer, and Dr. Spanos was a physician working on cruise ships. Ms. Richardson and Dr. Spanos never married; however, a Florida court confirmed Dr. Spanos's parentage in April 1996 and ordered Dr. Spanos to begin paying approximately $1,587 in monthly child support, as well as 92% of his son's medical and dental bills. Dr. Spanos has had little involvement with his son since his birth, and so Ms. Richardson has raised the child essentially on her own. Dr. Spanos eventually moved to Waverly, Tennessee where he was employed as an emergency room physician. Ms. Richardson and the parties' son moved to Branson, Missouri. It was during the stay in Missouri that the child's developmental challenges and learning disabilities became more evident. Ms. Richardson eventually moved to Franklin, Tennessee and enrolled the parties' son in a transitional kindergarten program at a private school in Nashville. He continued in that program 723 even after Ms. Richardson moved to Sumner County. However, the school eventually requested Ms. Richardson to withdraw her child because he was unable to keep up with his classmates. During this time, Dr. Spanos was apparently not keeping up with his child support obligations. Accordingly, in October 2000, Ms. Richardson obtained an order from the Circuit Court for Sumner County domesticating the Florida judgment requiring Dr. Spanos to pay child support. The trial court also found Dr. Spanos to be in civil contempt for failing to make his child support payments and to pay the child's medical expenses. The trial court ordered Dr. Spanos to pay the $734.35 child support arrearage and $3,164.73 in medical expenses. The court denied Ms. Richardson's request for increased child support on the ground that the amount of child support required by the Florida order exceeded the amount of support required by the Tennessee Child Support Guidelines. However, the court declined to reduce Dr. Spanos's support obligation because it determined that an upward deviation was called for in light of Dr. Spanos's refusal to have much to do with his son. After Ms. Richardson moved to Sumner County, she enrolled the parties' son in the Nannie Berry Elementary School ("Nannie Berry"), a public school in Sumner County. The staff at Nannie Berry recognized the child's challenges and developed a special program for him. At some point during the child's first year at Nannie Berry, Ms. Richardson moved to Bellevue in Davidson County. When she informed the Nannie Berry staff that she no longer lived in Sumner County, Ms. Richardson was told that the parties' son could continue at Nannie Berry even though she no longer resided in Sumner County as long as she continued to rent her apartment in Sumner County. Accordingly, Ms. Richardson continued to rent her apartment in Sumner County even though she and the parties' child resided in Davidson County. In early 2002, the staff at Nannie Berry informed Ms. Richardson that the parties' son could no longer attend school in Sumner County unless she obtained an out-of-zone variance. Accordingly, Ms. Richardson applied for the variance because she wanted her son to remain at Nannie Berry. However, she changed her mind after the staff at Nannie Berry informed her that they had decided that they could no longer meet her son's needs and that they were considering transferring him to Wessington Place Elementary School. Ms. Richardson did not desire to enroll the parties' child at this school because she believed that the parties' son was too advanced for that school. The parties continued to spar over support issues. In January 2002, Ms. Richardson filed her third contempt petition seeking to require Dr. Spanos to pay for the medical expenses she had incurred having the parties' son evaluated at Vanderbilt University Medical Center. Dr. Spanos responded in April 2002, requesting the court to reduce his obligation to pay the child's medical expenses from 92% to 50% in light of the new diagnoses and the increased medical expenses associated with them. In April 2002, Ms. Richardson applied to enroll the parties' son at Currey Ingram Academy ("Currey Ingram"), a private school in Nashville offering individualized programs for children with special needs. Ms. Richardson did not consult Dr. Spanos about enrolling their child in this school, even though its tuition was approximately $17,000 per year. In May 2002, Ms. Richardson filed an amended petition opposing any reduction in Dr. Spanos's obligation to pay their son's medical expenses and requesting that Dr. Spanos be required to pay for sending their son to private school 724 because he "can no longer successfully attend public school and should attend private school if he is to have any hope of improvement." In July 2002, Ms. Richardson informed the trial court that the parties' son had been accepted at Currey Ingram and that he would not be eligible for scholarship assistance until his second year. Accordingly, she requested the trial court to require Dr. Spanos to pay one-half of the child's tuition. After the child enrolled at Currey Ingram in August 2002, the staff confirmed that he had significant problems with "impulsivity" and "hyperactivity" and that he also had a language disorder. Dr. Spanos responded to Ms. Richardson's amended petition in March 2003. In addition to denying that he had willfully refused to pay his son's medical expenses, he objected to paying any portion of the Currey Ingram tuition and requested a reduction in his child support obligation because his "ability to earn" had decreased. All pending matters were heard on April 1, 2003. In its May 1, 2003 order, the trial court lowered Dr. Spanos's child support obligation to $1,078 per month in light of the decrease in his income. However, the trial court also specifically approved an upward variance of $236 per month because of Dr. Spanos's failure to visit with his son.[1] The court declined to require Dr. Spanos to pay for the child's private school expenses and denied each party's petition for attorney's fees. Ms. Richardson has appealed from the trial court's denial of her request for increased child support, and both Ms. Richardson and Dr. Spanos have appealed from the denial of their requests for attorney's fees. II. DR. SPANOS'S CHILD SUPPORT OBLIGATION Ms. Richardson has a double-barreled objection to the trial court's decision to reduce Dr. Spanos's child support obligation. First, she argues that Dr. Spanos was not entitled to a decrease in child support based on his decreased income because he is willfully and voluntarily underemployed. Second, she argues that there should have been an upward deviation in Dr. Spanos's child support based on the expenses associated with sending their son to Currey Ingram. We have determined that the record supports the trial court's conclusion that Dr. Spanos is not willfully underemployed and that the decrease in his income entitles him to a reduction in his child support. We have also determined that the trial court erred by failing to require Dr. Spanos to be responsible for paying a reasonable portion of his child's educational expenses. A. Parents have "deeply rooted moral responsibilities" to support their minor children. Boggs v. Boggs, 520 U.S. 833, 847, 117 S. Ct. 1754, 1764, 138 L. Ed. 2d 45 (1997) (quoting Rose v. Rose, 481 U.S. 619, 632, 107 S. Ct. 2029, 2037, 95 L. Ed. 2d 599 (1987)); State Dep't of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594, 600 (Tenn.1990); Baker v. Baker, 169 Tenn. 589, 592, 89 S.W.2d 763, 764 (1935). In addition to this moral responsibility, Tennessee law imposes a legal obligation on parents to support their minor children in a manner commensurate with their own means and station in life. Tenn.Code Ann. § 34-1-102(a) (2001); Wade v. Wade, 115 S.W.3d 917, 920 (Tenn.Ct.App.2002). Ever since 1984, the process and criteria for 725 ascertaining a parent's child support obligation has been governed by Child Support Guidelines promulgated by the Tennessee Department of Human Services in accordance with Tenn.Code Ann. § 36-5-101(e) (Supp.2004). Prior to the adoption of the Child Support Guidelines, trial courts had wide discretion in matters relating to child custody and support. Hopkins v. Hopkins, 152 S.W.3d 447, 452 (Tenn.2004) (Barker, J., dissenting). Their discretion was guided only by broad equitable principles and rules which took into consideration the condition and means of each parent. Brooks v. Brooks, 166 Tenn. 255, 257, 61 S.W.2d 654, 654 (1933). However, the adoption of the Child Support Guidelines has limited the courts' discretion substantially, and decisions regarding child support must be made within the strictures of the Child Support Guidelines. Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn.2000); Jones v. Jones, 930 S.W.2d 541, 545 (Tenn. 1996); Smith v. Smith, 165 S.W.3d 279, 282 (Tenn.Ct.App.2004). Under current law, the amount of support derived from a proper application of the formula in the Child Support Guidelines becomes the presumptive amount of child support owed. This amount of support is rebuttable. Tenn.Code Ann. § 36-5-101(e)(1)(A); Tenn. Comp. R. & Regs. 1240-2-4-.01(1)(d)(1) (Mar.2005); Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn.2005). Accordingly, trial courts may, in their discretion, deviate from the amount of support required by the Child Support Guidelines, State v. Wilson, 132 S.W.3d 340, 343 (Tenn.2004); Jones v. Jones, 930 S.W.2d at 545, but when they do, they must make specific written findings regarding how the application of the Child Support Guidelines would be unjust or inappropriate in the case. Tenn.Code Ann. § 36-5-101(e)(1)(A); Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b) (Mar.2005). Because child support decisions retain an element of discretion, we review them using the deferential "abuse of discretion" standard. This standard is a review-constraining standard of review that calls for less intense appellate review and, therefore, less likelihood that the trial court's decision will be reversed. State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.Ct.App.2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn.Ct. App.1999). Appellate courts do not have the latitude to substitute their discretion for that of the trial court. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.2003); State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.Ct.App.2000). Thus, a trial court's discretionary decision will be upheld as long as it is not clearly unreasonable, Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn.2001), and reasonable minds can disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001); State v. Scott, 33 S.W.3d 746, 752 (Tenn.2000). Discretionary decisions must, however, take the applicable law and the relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.1996). Accordingly, a trial court will be found to have "abused its discretion" when it applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining party. Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn.2001); Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn.Ct. App.1999). B. Dr. Spanos's Base Child Support We turn first to Ms. Richardson's assertions that the trial court erred by concluding that Dr. Spanos was not willfully 726 and voluntarily underemployed and that the court should have calculated his child support based on his demonstrated ability to earn $16,000 per month rather than his actual income averaging $7,280 per month. The trial court accredited Dr. Spanos's testimony that he had used his best efforts to obtain his current position as an emergency room physician and, therefore, calculated his child support based on $7,280 per month. We have no basis to second-guess the trial court's decision. The courts are already familiar with circumstances in which a parent seeks to avoid his or her obligations to pay child support either by quitting work, liquidating a business, or by taking a lower paying job. While parents have the right to pursue their own happiness and to make reasonable employment choices, they will not be permitted to avoid their duty to support their children by decreasing their income. Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct.App.2001). This strategy is self-defeating because a party's child support obligation is not measured by his or her actual income but rather by his or her potential income as evidenced by his or her educational level and previous work experience. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(d)(3) (Mar.2005); Watters v. Watters, 22 S.W.3d 817, 820-21 (Tenn.Ct.App. 1999). When called upon to determine whether a parent is willfully and voluntarily unemployed or underemployed, the courts will consider the factors in Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(d)(2), as well as the reasons for the party's change in employment. Demers v. Demers, 149 S.W.3d 61, 69 (Tenn.Ct.App.2003); Eldridge v. Eldridge, 137 S.W.3d 1, 21 (Tenn. Ct.App.2002). If a parent's reasons for working in a lower paying job are reasonable and in good faith, the court will not find him or her to be willfully and voluntarily underemployed. Willis v. Willis, 62 S.W.3d at 738. The courts are particularly interested in whether a parent's change in employment is voluntary or involuntary, Eldridge v. Eldridge, 137 S.W.3d at 21, and are more inclined to find willful and voluntary underemployment when a decision to accept a lower paying job is voluntary. Demers v. Demers, 149 S.W.3d at 69. Determining whether a parent is willfully and voluntarily underemployed and what a parent's potential income would be are questions of fact that require careful consideration of all the attendant circumstances. Eldridge v. Eldridge, 137 S.W.3d at 21; Willis v. Willis, 62 S.W.3d at 738-39. Thus, this court reviews a trial court's determination regarding willful and voluntary underemployment using Tenn. R.App. P. 13(d) and accords substantial deference to the trial court's decision, Willis v. Willis, 62 S.W.3d at 738, especially when it is premised on the trial court's singular ability to ascertain the credibility of the witnesses. Lightfoot v. Lightfoot, No. E2001-00106-COA-R3-CV, 2001 WL 1173297, at 6 (Tenn.Ct.App. Oct.4, 2001) (No Tenn. R.App. P. 11 application filed). Until November 2002, Dr. Spanos was employed by West Tennessee Health Care and earned $100 per hour. In 2001 his gross income was $188, 502, and during the first eleven months of 2002, he earned $166,667. However, West Tennessee Health Care declined to renew Dr. Spanos's contract in late 2002, and he was forced to find other work. He pursued three employment possibilities, including a cruise company, and then signed a two-year employment contract with the Jackson-Madison County General Hospital District to work as an emergency room physician in their acute care hospitals in rural West Tennessee. Dr. Spanos testified that he did not seek employment elsewhere 727 because he desired to remain close to his new family.[2] Dr. Spanos earns $65 per hour under his new contract. He testified without contradiction that the lower hourly rate was due to the large pool of physicians seeking similar work. He also testified without contradiction that he had asked his employer to assign him to more shifts. Dr. Spanos began his new job in January 2003. He earned $5,460 during January 2003, $7,020 during February 2003, and $9,369 during March 2003. Ms. Richardson had the burden of proving that Dr. Spanos was willfully and voluntarily underemployed. Demers v. Demers, 149 S.W.3d at 69. Based on this record, we conclude, as did the trial court, that she failed to carry her burden. In light of Dr. Spanos's explanation regarding his change in employment, we have no basis to conclude that he is willfully and voluntarily underemployed. In light of his undisputed testimony regarding his actual earnings during the first three months of 2003, the trial court's decision to set his base child support at $1,078 is supported by the record. Neither party has taken issue with the trial court's decision to deviate upward because of Dr. Spanos's failure to visit his son. Accordingly, the trial court's decision to require Dr. Spanos to pay $1,314 per month in child support is supported by the record. C. The Private School Tuition We turn next to Ms. Richardson's assertion that the trial court erred by failing to require Dr. Spanos to pay their son's tuition to Currey Ingram. She insists that sending their son to Currey Ingram is necessary and in his best interests. We agree and, therefore, find that the trial court erred by failing to require Dr. Spanos to pay a portion of his son's private school tuition. Five years ago, the Tennessee Supreme Court, construing an earlier version of the Child Support Guidelines,[3] held that private school tuition was an "extraordinary educational expense" that could trigger an upward deviation from a base child support award. Barnett v. Barnett, 27 S.W.3d 904, 907 (Tenn.2000). While the court did not address the role that necessity or appropriateness should play in determining whether private school tuition was an extraordinary educational expense, this court had earlier held that the necessity of the expenditure was not a controlling factor and that an upward deviation was warranted regardless of whose decision it was to send the child to private school. Umstot v. Umstot, 968 S.W.2d 819, 824-25 (Tenn.Ct. App.1997). Barnett v. Barnett stands for the proposition that the primary residential parent, having the authority to make educational decisions on behalf of the child, has the authority to enroll a child in private school without the other parent's consent and thereby incur the expenses of private school tuition that both parents may be obligated to pay. See Barnett v. Barnett, 27 S.W.3d at 907. However, the court also made it clear that the primary residential parent's income could be considered in calculating how much the upward deviation should be. Barnett v. Barnett, 27 S.W.3d at 909. Accordingly, in cases like this one, this court has consistently approved arrangements 728 requiring the non-custodial parent to pay only a portion of the private school expenses even when the non-custodial parent's income far exceeds that of the primary residential parent. Turnage v. Turnage, No. W2003-02790-COA-R3-CV, 2004 WL 2607767, at 4 (Tenn.Ct.App. Nov.15, 2004) (No Tenn. R.App. P. 11 application filed) (affirming an order requiring the non-custodial parent to pay 50% of the private school tuition); Earthman v. McRae, No. W2002-00564-COA-R3-CV, 2003 WL 1860527, at 2-3 (Tenn.Ct.App. Apr.1, 2003) (No Tenn. R.App. P. 11 application filed) (requiring the non-custodial parent to pay 65% of the private school tuition). These decisions prompted the Department of Human Services to revise the Child Support Guidelines to further elaborate on the procedure and factors to be considered when dealing with extraordinary educational expenses. The Child Support Guidelines now confirm that additional support for these expenses should be calculated separately and should be added to the basic support award. Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d) (Mar.2005); see also Huntley v. Huntley, 61 S.W.3d 329, 339 (Tenn.Ct.App.2001); Dwight v. Dwight, 936 S.W.2d 945, 950 (Tenn.Ct.App.1996). They also provide that these expenses should be considered on a case-by-case basis and that the courts should also consider whether the private elementary or secondary schooling is "appropriate to the parents' financial abilities and to the lifestyle of the child if the parents and the child were living together." Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d)(1)(ii). The trial court declined to require Dr. Spanos to pay any portion of his son's tuition to Currey Ingram for three reasons. First, the court observed that Ms. Richardson had failed to prove that the education that the parties' son was receiving at Nannie Berry was not meeting his needs. Second, the court was concerned that Ms. Richardson herself could not afford the tuition at Currey Ingram when she enrolled the parties' son there. Finally, the court pointed to the fact that Ms. Richardson had not consulted with Dr. Spanos before she enrolled their child at Currey Ingram. None of these reasons support the trial court's decision not to require Dr. Spanos to pay a portion of the Currey Ingram tuition. Ms. Richardson is raising the parties' child by herself and thus it falls to her to make educational decisions on behalf of her son. These educational decisions include choosing between public and private school, and while Tennessee law encourages consultation among parents, it does not compel Ms. Richardson to consult Dr. Spanos when she makes these decisions. There is no question that the parties' son has special educational needs, and thus it is not surprising that Ms. Richardson desires to enroll the parties' son in a school best suited to help him maximize his potential. The fact that she has chosen a private school over a public school[4] is of no relevance except insofar as the parties' joint ability to pay the tuition and other expenses to enroll the child in the private school.[5] 729 If these parties were living together, they would have been able to afford to enroll their child at Currey Ingram because their combined income exceeds $160,000 per year.[6] Thus, sending the child to Currey Ingram is consistent with and appropriate to the parties' financial abilities. Based on the evidence in the record regarding both parties' income at the time of the hearing, we have concluded that Dr. Spanos should be required to pay 55% of the expenses of enrolling the parties' son at Currey Ingram and that Ms. Richardson should pay the remaining 45%. On remand, the trial court shall establish the amount of the required upward deviation in accordance with Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d)(1)(iii). III. THE REQUESTS FOR ATTORNEY'S FEES As a final matter, both parties take issue with the trial court's denial of their respective requests for attorney's fees. Both parties insist that they are prevailing parties and, therefore, that they are entitled to require their adversary to defray their legal expenses. Under the facts of this case, we do not disagree with the trial court's decision to require the parties to be responsible for their own legal expenses. There is no question that Tenn. Code Ann. § 36-5-103(c) (Supp.2004) empowers the courts to award reasonable attorney's fees incurred by persons who are required to return to court to enforce a child support order. See, e.g., Huntley v. Huntley, 61 S.W.3d at 341. These decisions address themselves to the trial court's discretion, Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.1995), and we review them using the less stringent "abuse of discretion" standard of review. Accordingly, we will reverse a trial court's decision with regard to awarding attorney's fees in cases such as this one only when the trial court applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining party. Perry v. Perry, 114 S.W.3d at 467; Clinard v. Blackwood, 46 S.W.3d at 182. Both parties in this case were partially successful. Ms. Richardson has prevailed with regard to her request that Dr. Spanos be required to pay a portion of their son's tuition at Currey Ingram. However, Dr. Spanos has prevailed on his claim that he was entitled to a decrease in his base child support because of the decrease in his income. Thus, neither party is a clear winner, and more importantly, their child is no better off as a result of this litigation than he would have been had the parties decided to settle these issues by agreement instead of resorting to the courts. Under these circumstances, we decline to find that the trial court abused its discretion by denying both parties' requests for attorney's fees. IV. We affirm the portion of the judgment setting Dr. Spanos's base child support and upward deviation due to his failure to visit at $1,314 per month. We remand the case with directions to calculate the additional upward deviation needed to fulfill Dr. Spanos's obligation to pay 55% of his son's private school expenses beginning in August 2003 and for any other proceedings that may be required. We tax the costs of this appeal in equal proportions to Judi 730 Richardson and her surety and to George Kevin Spanos for which execution, if necessary, may issue. NOTES [1] At the time of trial, Dr. Spanos had not visited with his son for four years. Their last visit consisted of a one-hour visit at a bowling alley in Jackson. [2] Dr. Spanos married on January 1, 2002. His wife has two children from a prior relationship. [3] At the time of the decision, Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(c) (Oct.1989) provided that "[e]xtraordinary educational expenses and extraordinary medical expenses not covered by insurance shall be added to the percentage calculated in the above rule." [4] The adequacy of the special programs available to the child at Nannie Berry are not at issue here. It is clear that the parties' son no longer has the right to attend school in Sumner County because he and his mother now live in Davidson County. In addition, the Sumner County authorities made it clear that the child would no longer be enrolled at Nannie Berry but rather would be placed in another program for special needs children. [5] The inquiry is not whether the custodial parent can afford the private school tuition on his or her own. The question is whether both parents can together afford the private school tuition. [6] Ms. Richardson testified that she had returned to work and was capable of earning $75,000 per year. Based on Dr. Spanos's average salary for the first three months of 2003, his projected annual salary for 2003 was $87,360. $87,360 + $75,000 = $162,360.	01-03-2023	10-08-2013
https://www.courtlistener.com/api/rest/v3/opinions/410139/	691 F.2d 511 Carrollv.Wainwright 82-5307 UNITED STATES COURT OF APPEALS Eleventh Circuit 10/18/82 1 M.D.Fla. AFFIRMED 2 --------------- Fed.R.App. P. 34(a); 11th Cir. R. 23.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/98714/	241 U.S. 48 (1916) ROSENBERGER v. PACIFIC EXPRESS COMPANY. No. 249. Supreme Court of United States. Argued March 8, 1916. Decided April 24, 1916. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. 49 Mr. J.J. Vineyard and Mr. A.F. Smith, with whom Mr. Frank F. Rozzelle was on the brief, for plaintiff in error. Mr. I.N. Watson, with whom Mr. J.L. Minnis was on the brief, for defendant in error. MR. CHIEF JUSTICE WHITE delivered the opinion of the court. On the taking effect in Texas on the twelfth day of February, 1907, of a law imposing a state license tax of $5,000 annually on each place of business or agency of every express company where intoxicating liquors were delivered and the price collected on C.O.D. shipments, and by which law one-half of the amount of the state license was in addition authorized to be imposed by every county or municipality, the Express Company, the defendant in error, discontinued at all its agencies in Texas all such business. As a result the Company sent back to Kansas City, Missouri, the packages of intoxicating liquor which it had received under C.O.D. shipments made to various places in Texas from Kansas City by Rosenberger, the plaintiff in error, and tendered them to him conditioned on his payment of the return carriage charges. Rosenberger refused to accept the offer and brought this suit to recover the value of the merchandise on the ground that the failure to carry out the shipments was a conversion. The trial court holding the Texas act was repugnant to the commerce clause of the Constitution of the United States and afforded no justification to the Express Company for refusing to carry out the shipments, awarded the relief sought. And the object of this writ of error is to obtain a reversal of a final judgment of the court below reversing 50 the trial court and rejecting the claim on the ground that the Texas license law was not repugnant to the commerce clause and afforded ample authority to the Express Company for refusing to complete the interstate shipments in question. 258 Missouri, 97. Passing minor contentions whose want of merit will be hereafter demonstrated, it is clear that the issue is this: Was the state license law if applied to C.O.D. interstate commerce shipments repugnant to the commerce clause of the Constitution? It is certain that this question, in view of the date of the law and of the shipments involved, must be determined in the light of the operation of the commerce clause as affected by the power conferred upon the States by what is usually known as the Wilson Law (Act of August 8, 1890, c. 728, 26 Stat. 313), and wholly unaffected by § 239 of the Penal Code enacted by Congress March 4, 1909, prohibiting the shipment of intoxicating liquors under C.O.D. contracts, and also without reference to the act of Congress known as the Webb-Kenyon Law of March 1, 1913 (c. 90, 37 Stat. 699). Thus limited, as it is not controverted and indeed is indisputable that the provisions of the statute placed a direct burden on the shipments with which it dealt and in fact were prohibitive of such shipments, it follows that error was committed in holding that the statute was not repugnant to the Constitution of the United States in so far as it applied to interstate C.O.D. shipments for the following reasons: (a) Because it is settled from the beginning and too elementary to require anything but statement that speaking generally the States are without power to directly burden interstate commerce and that commodities moving in such commerce only become subject to the control of the States or to the power on their part to directly burden after the termination of the interstate movement, that is, after the arrival and delivery of the commodities and their sale in the original packages, and that this rule is 51 as applicable to the movement of intoxicating liquors as to any other commodities. (b) Because the Wilson Act only modifies these controlling rules by causing interstate commerce shipments of intoxicating liquors to come under state control at an earlier date than they otherwise would, that is, after delivery but before sale in the original packages. (c) Because the power in interstate commerce shipments to make C.O.D. agreements, that is, agreements on delivery of the commodity shipped to collect and remit the price, is incidental to the right to make such shipments and the commodities when so shipped do not come under the authority of the State to which the commodities are shipped under such agreements until arrival and delivery, and therefore any attempt on the part of the State to directly burden or prohibit such contracts or prevent the fulfillment of the same necessarily comes within the general rule and is repugnant to the Constitution of the United States. These propositions in substance have been by necessary implication or by direct decision so authoritatively and repeatedly determined as shown by the cases cited in the margin,[1] that there is no necessity for going further. But in view of the fact that the court below held the statute to be not repugnant to the commerce clause not because it overlooked the rulings of this court referred to but because it considered them distinguishable or inapposite to this case for reasons deemed by it to be conclusive, there being some difference of opinion on the subject in the court below, we briefly refer to those reasons. 52 It was said that the shipment of commodities contains two elements, one the obligation arising from the duty of the carrier to receive and carry without express contract, and the other such obligation as arises from contracts made concerning the shipment not embraced in the duty which rested by law upon the carrier in the absence of contract, the latter being illustrated by C.O.D. contracts. These two classes of obligations, it was pointed out, arising from different sources, were controlled by a consideration of the source whence they sprang, the one, the duty independent of contract, being commerce, and the other, the duty depending upon express contract in a sense independent of commerce, being governed by the law controlling contracts; that is to say, the one being controlled by the commerce clause and the other by the law of the State. And from these generalizations it was concluded that however complete and efficacious was the control of the Constitution of the United States over the obligation resulting from shipments in the proper sense, it was clear that the power of the State was complete over the other class of obligations, those arising from distinct contracts, and hence the act imposing the burden on the contract to collect on delivery did not reach over into the domain of shipment, was independent of the same, and therefore was not repugnant to the commerce clause. But we think it is a sufficient answer to say that the reasoning referred to rests upon a misconception of the elementary notion of interstate commerce as inculcated and upheld from the beginning and as enforced in a line of decisions of this court beginning with the very birth of the Constitution and which in its fundamental aspect has undergone no change or suffered no deviation: that is, that the interstate commerce which is subject to the control of Congress embraces the widest freedom, including as a matter of course the right to make all contracts having a proper relation to the subject. Indeed, it must be at once apparent that if 53 the reasoning we are considering were to be entertained, the plenary power of Congress to legislate as to interstate commerce would be at an end and the limitations preventing state legislation directly burdening interstate commerce would no longer obtain and the freedom of interstate commerce which has been enjoyed by all the States would disappear. But to state these general considerations is indeed superfluous since in one of the previous cases which we have cited (American Express Co. v. Iowa, 196 U.S. 133, 143, 144) substantially the identical contention which we have just disposed of was relied upon and its unsoundness was expressly pointed out and the destructive consequences which would arise from its adoption stated. The minor contentions to which we previously referred are these: 1. That although it be that § 239 of the Penal Code has no retroactive operation, it should be used as an instrument of interpretation from which to deduce the conclusion that the power of a State to prohibit shipments of intoxicating liquors in interstate commerce under C.O.D. contracts existed at the time here in question. But this by indirection simply seeks to cause the Act of Congress to retroactively apply by reasoning which if acceded to would require it to be said that all the previous decisions of this court dealing with the subject before the Penal Code was enacted were wrong and that in addition the enactment of § 239 was wholly unnecessary. 2. That even although there was a wrongful refusal of the Express Company to carry out the shipments its doing so was a mere violation of contract, giving a right to sue in damages but not for conversion. We see nothing in the record to indicate that this contention was urged in the trial court or in the court below. But passing this consideration, in view of our previous action rejecting a motion to dismiss, the question is foreclosed. But again 54 even if this be put out of view, the proposition is without merit under the controlling state law. Rice v. Indianapolis & St. Louis R.R., 3 Mo. App. 27; Loeffler v. Keokuk Packet Co., 7 Mo. App. 185; Danciger Bros. v. American Express Co., 172 Mo. App. 391. 3. That this case is taken out of the settled rule to which we have referred and is controlled by the ruling in Delamater v. South Dakota, 205 U.S. 93. But the proposition presupposes that the decision in that case overruled the many decisions sustaining the rule without the slightest indication of a purpose to do so. It proceeds upon an obvious misconception of the Delamater Case which instead of disregarding the construction put upon the Wilson Act and the many cases dealing with the subject, was on the contrary but an application in a new form of the additional power which that act gave. In other words the case but held that inasmuch as Congress by virtue of its regulating authority had caused shipments of intoxicating liquors in interstate commerce to become subject to state authority after arrival and before sale in the original packages, the exertion by the State of its authority to prevent the carrying on in the State of the business of soliciting purchases of liquor to be shipped from other States was lawful as a mere exertion of police power not constituting a direct burden upon interstate commerce, since such a regulation was within the scope of the remedial authority conferred by Congress by virtue of the Wilson Act. And the contention just stated leads to a reference to suggestions which we deem to be wholly irrelevant to the issue for decision made both in the opinion of the court below and in the argument at bar concerning possible abuses committed as the result of C.O.D. shipments of intoxicating liquors into States where the use of such liquor is prohibited, such as the unreasonable detention of such liquors before delivery, the ultimate delivery to a *55 person who had not ordered the same, the transfer to others by the ostensible person to whom the shipment was seemingly made, etc., etc. We say irrelevant suggestions because we are considering here not whether a state statute enacting reasonable regulations to prevent abuses under C.O.D. shipments would be a direct burden upon interstate commerce, but are only called upon to determine whether a statute is repugnant to the commerce clause which expressly asserts the power of the State to forbid all C.O.D. interstate commerce shipments of intoxicating liquors without reference to abuse of any kind or nature in the manner in which said contracts are carried out. It follows from what we have said that the court below erred and that its judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion. And it is so ordered. NOTES [1] Leisy v. Hardin, 135 U.S. 100; In re Rahrer, 140 U.S. 545; Rhodes v. Iowa, 170 U.S. 412; Vance v. W.A. Vandercook Co., 170 U.S. 438; Heyman v. Southern Railway, 203 U.S. 270; Adams Express Co. v. Kentucky, 214 U.S. 218; Louisville & Nashville R.R. v. Cook Brewing Co., 223 U.S. 70; Kirmeyer v. Kansas, 236 U.S. 568; Rossi v. Pennsylvania, 238 U.S. 62; American Express Co. v. Iowa, 196 U.S. 133; Adams Express Co. v. Kentucky, 206 U.S. 129.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2153350/	895 N.E.2d 701 (2005) 357 Ill. App.3d 1101 PEOPLE v. CAMPBELL. No. 4-03-0733. Appellate Court of Illinois, Fourth District. July 6, 2005. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2505938/	722 S.E.2d 13 (2012) STATE v. TAPIA. No. COA11-461. Court of Appeals of North Carolina. Filed February 21, 2012. Case Reported Without Published Opinion No Error.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3038428/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-2873 ___________ Kenneth R. James, * * Appellant, * Appeal from the United States * District Court for the v. * District of Minnesota. * T. C. Outlaw, Warden, * [UNPUBLISHED] * Appellee. * ___________ Submitted: August 3, 2005 Filed: August 9, 2005 ___________ Before BYE, McMILLIAN, and RILEY, Circuit Judges. ___________ PER CURIAM. Kenneth James appeals the district court’s1 denial of his motion to reopen his 28 U.S.C. § 2241 petition, in which he had alleged the wrongful revocation of good- time credits. Having carefully reviewed the record, we conclude the case is moot: James was released from prison while the appeal was pending, return of the good- time credits at issue would have no effect on his current term of supervised release, and at this time we see no collateral consequences from the challenged disciplinary action. See United States v. Johnson, 529 U.S. 53, 54-59 (2000) (supervised release 1 The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota. begins when prisoner is released from prison; excess prison time served cannot offset term of supervised release); cf. Leonard v. Nix, 55 F.3d 370, 372-73 (8th Cir. 1995) (release of prisoner (subsequently reincarcerated) did not moot habeas petition where challenged disciplinary had collateral consequences). Accordingly, we dismiss this appeal. ______________________________ -2-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3107208/	Fourth Court of Appeals San Antonio, Texas JUDGMENT No. 04-13-00794-CV IN THE INTEREST OF D.E., a Child From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2012-PA-02843 Honorable Richard Garcia, Judge Presiding BEFORE CHIEF JUSTICE STONE, JUSTICE ANGELINI, AND JUSTICE ALVAREZ In accordance with this court’s opinion of this date, the Order of Termination is AFFIRMED. It is ORDERED that no costs be assessed against Appellant. SIGNED March 12, 2014. _____________________________ Karen Angelini, Justice	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1415123/	394 F. Supp. 1337 (1975) Concha MONTOYA, Individually and as next friend of David Montoya, a minor, Plaintiffs, v. DAIRYLAND INSURANCE COMPANY, a corporation, Defendant. Civ. No. 74-476. United States District Court, D. New Mexico. June 2, 1975. 1338 Bachicha, Corlett & Casey, P. A., Santa Fe, N. M., for plaintiffs. LeRoi Farlow, Albuquerque, N. M., for defendant. MEMORANDUM OPINION PAYNE, Chief Judge. This case involves a complaint for declaratory judgment filed by the plaintiff, Concha Montoya, individually and as next friend of David Montoya, a minor, against the defendant, Dairyland Insurance Company concerning the coverage and rights of the plaintiff under an uninsured motorist endorsement to plaintiff's automobile insurance policy issued by the defendant.[1] The one fact giving rise to this lawsuit which is not in dispute is that plaintiff's car, at the time being driven by plaintiff who was accompanied by her son, David Montoya, collided with a stone wall. Further, it is agreed there was no physical contact between the plaintiff's vehicle and any other vehicle prior to the collision with the wall. Plaintiff further states that while she was properly driving her vehicle, plaintiff suddenly noticed the headlights of an oncoming vehicle approaching around a curve on plaintiff's lane of traffic a short distance from plaintiff. Plaintiff states that to avoid an imminent head-on collision, plaintiff swerved her vehicle to the right and collided with a stone wall off the right shoulder of the road. There was never any physical contact by the plaintiff's vehicle and the other unknown vehicle, the operator of which, plaintiff states, drove on without stopping and has never been identified. Plaintiff and her husband had in force at the time of the collision an automobile liability insurance policy with the defendant insurer which provided certain coverage when an uninsured motorist was involved. That coverage included provisions allowing coverage when the insured is involved in an accident with a "hit-and-run" vehicle provided there is in fact physical contact between the insured and the "hit-and-run" vehicle. The particular question before this Court is whether an insurance company can contractually restrict its uninsured or unknown motorist coverage to situations in which there is physical contact between the insured and a "hit-and-run"[2] vehicle without violating the legislative policy of § 64-24-105 New Mexico Statutes Annotated, 1953 Comp.[3] 1339 Because the courts of New Mexico have not addressed the aforementioned particular question and because the State law is unsettled, it is the function of the Federal Courts in this diversity suit to determine what the New Mexico Supreme Court would likely decide if presented with the identical issue. The issue of the validity of the physical contact requirement of insurance policies has been entertained by courts of several states for some time. 25 A.L.R. 3rd 1299.[4] In those states, as in New Mexico, there is generally a statute requiring insurance companies to offer uninsured or unknown motorist coverage. There is, however, usually no statutory requirement to include coverage for "hit-and-run" drivers nor a requirement that physical contact must have occurred before one can recover for injury due to a "hit-and-run" vehicle.[5] The courts of those same states have, on the other hand been almost unaminous in holding that the operator of a "hit-and-run" vehicle is an uninsured or an unknown motorist. See 26 A.L.R. 3rd 883, 913. The split of the various states has arisen over the physical contact issue. This Court has considered numerous decisions which conclude that it is reasonable to require physical contact between a "hit-and-run" vehicle and the insured before coverage is allowed under the uninsured or unknown motorist provisions. Phelps v. Twin City Fire Insurance Co., 476 S.W.2d 419 (Tex.Civ.App. 1972); Buckeye Union Insurance Co. v. Cooperman, 33 Ohio App. 2d 152, 293 N.E.2d 293 (1972); Ely v. State Farm Mutual Automobile Insurance Co., 148 Ind.App. 586, 268 N.E.2d 316 (1971); Collins v. New Orleans Public Service, Inc., 234 So. 2d 270 (La.App.1970), writ refused, 256 La. 375, 236 So. 2d 503 (1970); Hendricks v. U. S. Fidelity and Guaranty Co., 5 N.C.App. 181, 167 S.E.2d 876 (1969); Prosk v. Allstate Insurance Co., 82 Ill.App.2d 457, 226 N.E.2d 498 (1967). The reasoning is generally based on the premise that requiring physical contact precludes any fraud upon the insurer and prevents recovery of damages in cases where the insured's injuries are the result of his own negligence, without the intervention of any other vehicle, but it is alleged by the insured that the accident was caused by an unidentified vehicle which subsequently left the scene of the accident. See gen. 25 A.L.R. 3rd 1299. This Court has similarly considered numerous cases holding that, generally, the physical contact requirement is an impermissible limitation on the uninsured or unknown motorist statute, is contrary to public and legislative policy, and is, therefore, invalid. Farmers Insurance Exchange v. McDermott, 527 P.2d 918 (Colo.App.1974); Balestrieri v. Hartford Accident & Indemnity Insurance Co., 22 Ariz.App. 255, 526 P.2d 779 (1974); DeMello v. First Insurance Co. of Hawaii, Ltd., 523 P.2d 304 (Hawaii 1974); Hartford Accident & Indemnity Co. v. Novak, 83 Wash.2d 576, 520 P.2d 1368 (1974); Webb v. United Services 1340 Automobile Association, 227 Pa.Super. 508, 323 A.2d 737 (1974); State Farm Fire and Casualty Co. v. Lambert, 291 Ala. 645, 285 So. 2d 917 (1973); Brown v. Progressive Mutual Insurance Co., 249 So. 2d 429 (Fla.1971). Whereas there is generally one reason espoused by the proponents of the physical contact requirement, i. e., fraud on the insurer, those Courts who have ruled against the physical contact requirement cite many and varied reasons for its invalidity. These latter cases correctly reveal that uninsured or unknown motorist statutes were adopted, and the clear and unambiguous legislative intent was, to expand insurance protection to the public who use the streets, highways and walkways. The public was to be protected from damage or injury caused by other motorists who were not insured and could not make the injured party whole. The public was no longer to be faced with the possible financial distress or all too often certain financial calamity caused by negligent and insolvent drivers. In short, the uninsured or unknown motorist statutes are designed to protect the injured party from the uninsured or unknown motorist. The statutes are not designed to protect the insurance company from the injured party. There is, of course, the possibility of fraud by one claiming injury due to an unidentified "hit-and-run" driver when there was no such driver and it was in fact the negligence of the injured party himself who caused the injury. However, "[t]he argument that the policy requirement of physical contact is reasonable is fallacious. The only reason for such a requirement is to prove that the accident actually did occur as a claimant may say it did. This is a question of fact to be determined by the jury, or the judge if demand for jury trial is not made. If the injured party can sustain the burden of proof that an accident did occur, he should be entitled to recover, regardless of the actuality of physical contact. If twenty witnesses will swear they saw the accident happen, their testimony should not be deemed worthless, as it would be under the decision here for review." Hartford Accident And Indemnity Company v. Novak, supra at 1372.[6] Also, the following criticism of the physical contact requirement as an anti-fraud measure has been expressed: "It seems unreasonable to establish a rule under which recovery is possible if there is a minute scratch on the insured's car, but no impartial witnesses and to deny all rights where there was no contact, even though there are many witnesses and there is no reason to suspect collusion or fraud. Some standard assuring adequate evidence in support of a claim that the injuries (for which indemnification is sought) are the result of an evasive action executed to avoid a collision with an unidentified negligent driver is certainly warranted. It is suggested that the claimant should bear the burden of persuasion, leaving to the judge, jury or arbitrator the determination of whether the claimant has sustained the requisite burden of proof, and providing an opportunity for the insurance company to raise fraud or collusion as a defense to such a claim." A. Widiss, A Guide To Uninsured Motorist Coverage (1969). The Supreme Court of Hawaii indicated, as would common sense, that the physical contact requirement may in fact not be a complete barrier to fraudulent claims. "We also note the clear possibility of instances in which the contractually imposed requirement [of physical contact] will not fulfill its justifiable 1341 objective of eliminating fraudulent claims. A claimant with a fraudulent claim can bolster the same, if necessary, by damaging his own car to leave apparent proof of the requisite `physical contact' with a non-existent `unidentified vehicle.' The contractual `physical impact' requirement thus not only sweeps too broadly but also not broadly enough, to accomplish its only justifiable and statutorily permissible purpose, the prevention of frauds." DeMello v. First Insurance Company of Hawaii, Ltd., 523 P.2d 304, 310 (1974). It would serve no purpose to further discuss in detail the other important cases cited, supra, which are antagonistic to the physical contact requirement. Let it suffice to say that, generally, the cases hold that the insurer's contractual requirement of physical contact unjustifiably impedes effectuation of the legislative intent and statutory policy of protection for insured's against injury from the negligence and insolvency of uninsured or unknown motorists. Having reviewed the reasoning of the two divergent lines of authorities which exist on the issue at hand, this Federal Court, as aforementioned, must decide what the Supreme Court of New Mexico would likely decide if presented with the identical issue. This Court considered several opinions which concern the New Mexico uninsured or unknown motorist statute. Chavez v. State Farm Mutual Automobile Insurance Co., 87 N.M. 327, 533 P.2d 100 (1975);[7] Willey v. Farmers Insurance Group, 86 N.M. 325, 523 P.2d 1351 (1974); Sloan v. Dairyland Insurance Co., 86 N.M. 65, 519 P.2d 301 (1974); American Mutual Insurance Co. v. Romero, 428 F.2d 870 (10th Cir. 1970). The very recent Chavez decision is of the most import to the instant case. That case held invalid, as against public policy, an exclusionary provision contained in the uninsured motorist coverage of an automobile insurance policy. The facts of the case are of no moment, however, in invalidating the particular exclusionary provision, the New Mexico Supreme Court stated as follows: "The object of compulsory uninsured motorist insurance is: . . . `to protect persons injured in automobile accidents from losses which, because of the tortfeasor's lack of liability coverage, would otherwise go uncompensated'. . . . In other words, the legislative purpose in creating compulsory uninsured motorist coverage was to place the injured policy-holder in the same position, with regard to the recovery of damages, that he would have been in if the tortfeasor has possessed liability insurance. . . . . . . The adoption by almost all of the states of uninsured motorist statutes occurred as a result of the failure of the financial responsibility laws to protect innocent victims against uninsured tortfeasors. . . . The promise, extracted by the statute from the insurer, to protect each insured as if the negligent uninsured motorist has liability insurance is clearly spelled out in New Mexico's statute, providing, in part: `* * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, and for injury to or destruction of property resulting therefrom. * * ' (Emphasis added by the New Mexico Supreme Court) § 64-24-105, N.M.S.A.' . . . . . . 1342 So construed, the only limitations on protection are those specifically set out in the statute itself, i. e., that the insured be legally entitled to recover damages and that the negligent driver be uninsured." The Supreme Court ended its opinion with the following comment: "The remedial purpose of the statute weighted against State Farm's arguments leads us to conclude the Legislature did not intend to allow the creation of a gap in coverage which is contrary to the purpose of the statute." In view of the Chavez decision, it is apparent that the New Mexico Supreme Court would determine the "physical contact" requirement is, because of the remedial purpose of the statute and because the New Mexico State Legislature did not intend to allow the creation of a gap in coverage, in derogation of § 64-24-105, N.M.S.A., 1953 Comp., and therefore, invalid. This Court so holds. Accordingly judgment will be entered for the plaintiff-insured. NOTES [1] The complaint was originally filed in the District Court of Santa Fe County, State of New Mexico and was subsequently removed to this Court upon the petition of the defendant. [2] As the Supreme Court of Washington has adequately explained, a non-physical contact accident can in fact involve a "hit"-and-run vehicle. Hartford Accident And Indemnity Company v. Novak, 83 Wash.2d 576, 520 P.2d 1368, 1373 (1974). [3] Section 64-24-105 New Mexico Statutes Annotated, 1953 Comp. provides as follows: "Insurance against uninsured and unknown motoristsRejection of coverage by the insured.On and after January 1, 1968, no motor vehicle or automobile liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person, and for injury to or destruction of property of others arising out of the ownership, maintenance or use of a motor vehicle, shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death, and for injury to or destruction of property as set forth in section 64-24-79 New Mexico Statutes Annotated, 1953 Compilation, according to rules and regulations promulgated by, and under provisions filed with and approved by the superintendent of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, and for injury to or destruction of property resulting therefrom. The uninsured motorist coverage shall provide an exclusion of not more than the first two hundred fifty dollars ($250.00) of loss resulting from injury to or destruction of property of the insured in any one accident; Provided that the named insured shall have the right to reject such coverage; and Provided further that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer." [4] This ALR annotation and the 1974 supplement do not contain a listing of the more recent cases hereafter cited in this opinion. [5] However, "[i]n a few states requiring insurance companies to offer uninsured motorists insurance, the statutes have specifically provided that where recovery is sought for injury caused by a `hit-and-run' or other unidentified vehicle, the claimant must show that there was physical contact with the unidentified vehicle." 25 A.L.R. 1299, 1303. (emphasis added). [6] Furthermore, very often the parties must first submit the facts to the scrutiny of an arbitration panel before they proceed de novo in the Courts. See § 64-24-107 N.M. S.A., 1953 Comp. [7] The Chavez decision was rendered in March, 1975. It contains the New Mexico Supreme Court docket number of 10011. The entire decision can be found in The State Bar Of New Mexico Bulletin And Advance Opinions, Vol. 14, No. 3, published March 27, 1975.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/410448/	692 F.2d 685 Michael Z. SMITH, Plaintiff-Appellantv.IRON COUNTY, a governmental entity and municipalcorporation; Ira Schoppman, Iron County Sheriff;Gary Shatzer, and Jack Miller,Defendants-Appellees. No. 81-1195. United States Court of Appeals,Tenth Circuit. Oct. 18, 1982.Rehearing Denied Dec. 2, 1982. Brian M. Barnard, Salt Lake City, Utah (Kerry Eagan and John B. Maycock, Salt Lake City, Utah, with him on the brief), for plaintiff-appellant. Gary B. Ferguson, Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for defendants-appellees. Before SETH, Chief Judge, DOYLE, Circuit Judge, and BOHANON, District Judge.* WILLIAM E. DOYLE, Circuit Judge. 1 The action here arose in the United States District Court for the District of Utah. It was brought pursuant to 42 U.S.C. Sec. 1983 against Iron County and various officials. The appeal is from the district court's final order granting defendants' motion for summary judgment. 2 Plaintiff was a detainee-prisoner in the jail at Cedar City in Iron County, Utah. He was awaiting disposition of a burglary charge which had been filed against him. On January 3, 1979, Gary Shatzer, who was the jailer on duty, heard a banging noise coming from the vicinity of the plaintiff's cell. He had some difficulty locating the sound, but when he did he saw the plaintiff on the floor of the cell under a bunk. Shatzer asked him what he was doing, and he responded that he was not doing anything. After inquiring further and not being able to obtain an answer, Shatzer told plaintiff that he would be forced to use mace if he did not give him whatever object was being used to make the noise. Plaintiff continued to deny that he was doing anything. 3 Shatzer, after talking to the plaintiff further without success, obtained a can of mace from his office, and after giving the plaintiff a final chance to cooperate, sprayed plaintiff through the bars of the cell. There is some dispute as to how much mace was sprayed. Plaintiff states that he was initially sprayed in the face for approximately two minutes, and again for three minutes in the back of the head when he refused to respond to another question. Shatzer's testimony is that he sprayed plaintiff for a second and a half on the back of plaintiff's head and shoulders. 4 A short time after the mace was sprayed one of the other men in plaintiff's cell gave Shatzer the object that he had been seeking. This was a six pound iron drain cover with a jagged edge. Plaintiff had been using the drain cover to pound a hole in the cell wall. After the incident, Shatzer made the following entry in a jail log book: " * * * He wouldn't tell me what he was using so I gave him a couple of squirts of mace. Still wouldn't tell me but at least he is suffering." 5 Both plaintiff and the defendants moved for summary judgment. The district court granted summary judgment as to all defendants, and denied plaintiff's motion. The basis for the ruling was that the conduct as established by the undisputed facts before the court did not amount to a violation of plaintiff's constitutional rights, especially plaintiff's right to be free from cruel and unusual punishment, and his right to be free from deprivation of life, liberty, or property without due process of law. 6 Plaintiff's theory of the case here reflects his contention that use of mace by defendant Shatzer amounted to punishment of a pretrial detainee in violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States. He maintains in addition that the macing incident amounted to cruel and unusual punishment in violation of the Eighth Amendment of the Federal Constitution. Finally, plaintiff argues that if the incident is found to violate his due process and Eighth Amendment rights, the Sheriff of the Iron County Jail and the County itself are also liable for damages. Plaintiff asserts that the Sheriff is liable on the theory that he was on notice of this and other acts of the jailers and he also inadequately trained his subordinates. It is further contended that the County also was liable under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); and Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980), due to the Sheriff's failure to establish rules regulating punishment and the use of force at the jail. We need not decide whether the Sheriff or the County are liable, because in our judgment the ruling of the district court was correct and should be affirmed. 7 At the time that this happened, Shatzer was the only person on duty in the jail. He had had previous difficulty with Smith, and in view of the fact that he was by himself, and there were two prisoners in the cell, he could not go inside without running the risk of having both of the prisoners escape. No doubt that was why he used the mace. In most instances, the use of mace under these circumstances might very well give rise to a valid claim against the parties. However, the trial court apparently believed the testimony of Shatzer, and on that basis, granted the summary judgment. Shatzer faced a dilemma. The way to solve such a problem is to have a second person on guard, so that mace need not be used. Certainly it does constitute excessive force under most circumstances. 8 In 1979, the United States Supreme Court, in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), set out the standard to be applied in evaluating the constitutionality of conditions or restrictions of pretrial detention which bring about protection against deprivation of liberty without due process of law. The Court explained that "what is at stake when an aspect of pretrial detention that is not alleged to violate any express guarantee of the constitution is challenged, is the detainee's right to be free from punishment." Bell, 441 U.S. 520, 534, 99 S. Ct. 1861, 1871, 60 L. Ed. 2d 447 (1979). 9 Plaintiff has asked this court to find that the incident on January 3, 1979 violated his constitutional right to be free from cruel and unusual punishment under the Eighth Amendment. Although some circuit and district courts have in the past applied an Eighth Amendment test in the case of a pretrial detainee challenging conditions or disabilities of confinement, the Supreme Court in Bell and recently this court in Littlefield v. Deland, 641 F.2d 729 (10th Cir. 1981) declined to follow the Eighth Amendment analysis and announced that the test to be applied in the case of pretrial detainees is a due process clause standard. Action not dissimilar from that which was taken here was found to be reasonable in Moss v. Ward, 450 F. Supp. 591 (W.D.N.Y.1978). An inmate had obtained a piece of electrical conduit from the ceiling of a cell. After repeated unsuccessful demands by guards, which was the case here, to give the conduit to them, the inmate was gassed. The court granted defendant's motion for summary judgment with respect to plaintiff's cause of action which alleged a deprivation of his Eighth Amendment rights due to excessive gassing. The court ruled: 10 The corrections officers attempted to obtain the pipe by talking to plaintiff before they gassed him, and warned plaintiff that he would be gassed if he did not turn it over. The only other means of obtaining the pipe would have been to enter the cell, and that could have led to physical contact between plaintiff and the guards. Under these circumstances the use of the particular force being applied was not unreasonable. Accord, Beishir v. Swenson [331 F. Supp. 1227], supra. See, Collins v. Schoonfield, 363 F. Supp. 1152 (D.Md.1973); Holt v. Hutto, supra [363 F. Supp. 194]. See, also, Long v. Harris, 332 F. Supp. 262, 270 (D.Kan.), aff'd. per curiam, 473 F.2d 1387 (10th Cir. 1971). 11 Id. at 598. 12 The case of Lock v. Jenkins, 641 F.2d 488 (7th Cir. 1981) is quite similar factually to the case at bar. The district court in that case found that a tray constituted a potential weapon. However, the court of appeals thought that although this fact was true, nothing in the record demonstrated how the tray could have been used as a weapon as long as the detainee was locked in his cell. On this issue the court concluded that "although we recognize that significant destruction of prison property by a person locked in a cell might justify the use of tear gas, we do not believe that the possible damage to the tray rises to that level." Id. at 496. The Lock court applied a due process analysis which is set forth in Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973), cert. denied, Employee-Officer, John v. Johnson, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973). In Johnson, a pre-Wolf pretrial detainee decision, the detainee was physically assaulted by a prison guard. The court of appeals suggested that the following factors be considered in determining whether a constitutional violation has occurred: 13 [A] court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. 14 481 F.2d at 1033. 15 Here, Shatzer's use of mace was minimal. He believed that the plaintiff had a heavy metal object which might have been used as a weapon. Moreover, he did not have an alternate course if he was to restore discipline. Furthermore, the task was the more complex because of the fact that he was on duty alone at the time of the incident. 16 We say again that we are not endorsing the use of mace. Far from it. We are merely saying that in this instance the amount of punishment did not reach a level which calls for treating it as violative of the Constitution. 17 One other factor, the destruction of prison property and possible escape of prisoners, was a greater matter here than in Lock, and the possibility of physical harm to other detainees was present since plaintiff was in the cell area with other detainees. 18 We have adhered to a policy deferring to prison administration principles in cases involving control and management of penal institutions. This includes the discipline, treatment and care of the persons confined. See, e.g., Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969). We also note that the Supreme Court in Bell stressed that "[i]n determining whether restrictions or conditions are reasonably related to the Government's interest in maintaining security and order and operating the institution in a manageable fashion, courts must heed [the] warning that '[s]uch considerations are peculiarly within the province and professional expertise of corrections officials,' " to whose judgment courts should defer. Bell, 441 U.S. at 540 n. 23, 99 S. Ct. at 1875 n. 23, quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800, 2806, 41 L. Ed. 2d 495 (1974). However, this policy does not mean that an individual is not to be heard or that the violation would remain unchecked when the treatment is excessive and the inmate is deprived of a constitutional right. This policy does not favor the use of chemical substances. 19 The record shows that macing might have been employed often at the Iron County Jail. It should not be used at any time, but in this instance we say the particular circumstances, including the action taken by Shatzer, did not rise to the level of constitutional violation. Since it did not, we do not reach the question of liability of the Sheriff and the County. 20 The judgment of the district court is affirmed. * The Honorable Luther L. Bohanon, United States Senior District Judge for the Eastern District of Oklahoma, sitting by designation	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2153356/	895 N.E.2d 694 (2005) 357 Ill. App.3d 1084 INSTITUTE OF VOCAL SCIENCE v. KRENZELAK. No. 1-03-3677. Appellate Court of Illinois, First District. June 30, 2005. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/7023655/	JUSTICE DUNN delivered the opinion of the court: Appellants (objectors), Bernard Susman and Jewel Companies, Inc., appeal from a circuit court decision denying their objections to Du Page County property taxes. The circuit court’s decision was entered after a hearing on remand from two appeals decided by this court. In In re Application of Novak (1986), 142 Ill. App. 3d 1004, we ruled that Susman’s objections to 1979 property taxes should have been sustained because the tax levies failed to state sufficiently the purposes of the levies in accordance with section 156 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 637). We also held, however, that section 236 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 717) may allow the county to amend the levies to comply with section 156. We remanded for a hearing, directing the trial court to determine whether amendment under section 236 was appropriate and, if so, to permit amendment and find for the collector. Novak, 142 Ill. App. 3d at 1008-09. In the Jewel Companies case, we held in an unpublished order under Supreme Court Rule 23 (People ex rel. Du Page County Collector v. Jewel Cos. (1987), 156 Ill. App. 3d 1172) that all but one of Jewel Companies’ objections to 1983 property taxes should have been sustained for failure to comply with section 156, and, as in the Susman case, we remanded for a determination as to whether the county board could properly amend the levies to comply with the statute. At a hearing in which the cases were consolidated, the circuit court ruled that section 236 allowed the county board to amend the levies to comply with section 156. The county submitted copies of amended tax levy ordinances adopted in 1988 which set out a list of purposes for each levy previously found insufficient. For example, the 1979 $5.2 million general-fund levy found insufficient in the Susman case, as amended, stated purposes under 33 categories containing 109 items with an amount designated for each item. Based on the amendments, the lower court overruled the objections. Objectors have organized their appeal into four points raising three issues; however, we perceive only one issue: whether section 236 of the Revenue Act of 1939 permits Du Page county to amend levies that this court previously found insufficient for lacking sufficient itemization of purposes. Section 236 states in relevant part: “In all judicial proceedings of any kind for the levying and collection of taxes, no error or informality of any officer or officers in making any tax levy or in certifying or filing the same not affecting the substantial justice of the levy itself, shall vitiate or in any manner avoid the levy or affect the tax and where such an error or informality in a levy, its certification, filing or publication can be corrected by amendment, or a levy can be sufficiently itemized, the purpose defined and made certain by amendment, made prior to the entry of any order of court affecting said levy or the collection of taxes thereon, such amendment or amendments, certification, filing or publication may be made by the proper officer or officers or corporate or other governing authorities of the taxing bodies affected and the ordinance, resolution, publication or certificate, respectively, as amended, certified, filed or published, shall, upon proof of such amendment or amendments, certification, filing or publication being made to the court, have the same force and effect as though originally adopted, published, filed and certified in the amended form: Provided the aggregate amount or rate of the original levy shall not be thereby increased.” Ill. Rev. Stat. 1979, ch. 120, par. 717. Objectors contend section 236 does not apply to levies determined invalid due to the county board’s failure to sufficiently itemize its purposes. This failure, they argue, affects the substantial justice of the levy. They contend section 236 applies only to cases where the failure adequately to state the purpose of a levy results from a clerical error. Thus, in this case, objectors argue, the county could only amend the levies if it presented proof that it had originally sufficiently provided for separate purposes but failed, due to clerical error, to record this action in the levy. In support of their contention, objectors cite cases holding that the failure to state each purpose separately renders the tax invalid, (Chicago, Burlington & Quincy R.R. Co. v. People ex rel. Sonnet (1904), 213 Ill. 458, 466-72; People ex rel. Smith v. Wabash Ry. Co. (1941), 377 Ill. 68, 70; People ex rel. Prindable v. New York Central R.R. Co. (1947), 397 Ill. 247, 248-51.) Objectors contend this rule establishes that a failure to state separately each purpose affects the substantial justice of the levy. We find these cases merely beg the question. They stand for the same general rule that required this court to rule the levies invalid in the first place. They say nothing of the issue at hand, whether the failure sufficiently to itemize or state separate purposes may be cured by amendment under section 236. No case has specifically addressed the issue presented here. The lead case on amendments under section 236 is People ex rel. Schlaeger v. Buena Vista Building Corp. (1947), 396 Ill. 164. Objectors rely on the following language from that case: “Conversely, amendments cannot be allowed where they add matter which is essential as a basis for the levy of the tax. (People ex rel. Schnipper v. Missouri Pacific Railroad Co. 332 Ill. 53; People ex rel. Brockamp v. Chicago and Illinois Midland Railway Co. 260 Ill. 624.) Again, the ameliorative provisions of section 236 cannot be invoked to render proceedings valid which are void ab inito. (Chicago and Northwestern Railway Co. v. People ex rel. McGough, 193 Ill. 594; People ex rel. Woody v. Smith, 149 Ill. 549.) In short, its application is limited to those cases where there has been an attempt to comply with the law but the attempt is ineffective by reason of some informality or clerical error. (People ex rel. Franklin v. Wabash Railroad Co., 387 Ill. 450.) In Chicago and Northwestern Railway Co. v. People, 193 Ill. 594, this court pointedly said: ‘That section, [now section 236] however, is not to be construed as curing every defect in attempts to tax because the party taxed will pay no more for the support of the government in proportion to his property than other people who voluntarily pay the same tax. The substantial justice of a tax is affected if it is one which the authorities attempting to impose it have no power or right to impose. Provisions of the statute designed for the protection of the taxpayer are mandatory, and a disregard of them will render the tax illegal.’ ” 396 Ill. at 171-72. Objectors contend the county board’s failure to state each purpose separately falls under the type of essential matter not allowed to be cured by amendment. We believe this interpretation is strained and ignores the specific provision in section 236 that allows amendments to itemize or define a levy’s purpose. The applicable language states: “[W]here such an error or informality [not affecting the substantial justice] in a levy, its certification, filing or publication can be corrected by amendment, or a levy can be sufficiently itemized, the purpose defined and made certain by amendment,” it shall be given the same force and effect as the original. (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 120, par. 717.) The statute expressly provides that an error of insufficient itemization or failure to define the purpose is an error that may be corrected by amendment. We are not persuaded that that this provision applies only where the error results from a clerical mistake. The statute singles out the error of insufficient itemization specifically, as opposed to other errors not affecting the substantial justice. The language directly preceding the itemization provision, stated above, clearly would allow amendments of any clerical mistakes, even those pertaining to itemization and statement of purposes. Thus, it follows that the legislature included the itemization provision specifically to allow amendments for improper itemization even though the failure was not a mere clerical mistake. To interpret this language otherwise, as objectors urge, would render the itemization and purpose provision superfluous. Statutes should be construed so that no word or phrase is rendered superfluous or meaningless. People v. Parvin (1988), 125 Ill. 2d 519, 525; Niven v. Siqueira (1985), 109 Ill. 2d 357, 365. Allowing the county to itemize more specifically the purposes of its levies does not affect the substantial justice of the tax, as was the case in Schlaeger. In Schlaeger, the court found the original levy was illegal where it included improper liabilities in its amount of appropriations, and the manifest purpose of the amendment was to change the amounts appropriated. (Schlaeger, 396 Ill. at 172.) The court stated that “[t]he substantial justice of a tax is affected if it is one which the authorities attempting to impose it have no power or right to impose.” Schlaeger, 396 Ill. at 172. In this case, allowing the amendments does not give the county board an opportunity to impose a tax which it had no power to impose. Objectors make no argument that the county lacked the power or right to impose the tax levies but only that it failed properly to itemize the purposes of the tax in accordance with section 156. The object of section 156 is to provide taxpayers information and an opportunity to object to unjust and illegal levies. (Novak, 142 Ill. App. 3d at 1006; People ex rel. McWard v. Wabash R.R. Co. (1946), 395 Ill. 243, 247.) The county’s error in the original levies defeated the purpose of the statute: the taxpayers were denied the proper information to review the levies. Allowing the board to amend the levies does not defeat the statute’s purpose. The amendments cure the defect of the original levy, thus providing taxpayers the opportunity to know the tax purposes and object to those purposes. Finally, in its reply brief, objectors cite two cases that disallowed amendments to cure insufficient itemization: People ex rel. Klauser v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1913), 261 Ill. 70; and Cincinnati, Indianapolis & Western Ry. Co. v. People ex rel. Myers (1903), 206 Ill. 565. Neither case applies here. Both cases were decided under section 191, the predecessor to section 235 (Ill. Rev. Stat. 1979, ch. 120, par. 716), before section 236 was enacted. Section 191, like section 235 today, does not contain the language permitting amendments for itemization and statement of purposes. It was not until 1937 when the legislature added section 191(a) (Ill. Rev. Stat. 1937, ch. 120, par. 179(a)), now section 236, that a statute specifically provided for levies to be amended to itemize or define their purposes sufficiently. The circuit court’s decision overruling appellant’s objections is affirmed. Affirmed. GEIGER and WOODWARD, JJ., concur.	01-03-2023	07-24-2022
https://www.courtlistener.com/api/rest/v3/opinions/564057/	937 F.2d 605 Hicksonv.Garner* NO. 91-8106 United States Court of Appeals,Fifth Circuit. JUL 10, 1991 1 Appeal From: W.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2100803/	21 N.J. 264 (1956) 121 A.2d 534 THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES E. WYNN, JR., DEFENDANT-APPELLANT. The Supreme Court of New Jersey. Argued February 20, 1956. Decided March 26, 1956. 265 Mr. Harry L. Shure argued the cause for the appellant. Mr. John W. Applegate, Assistant Prosecutor of the Pleas, argued the cause for the respondent (Mr. Vincent P. Keuper, Prosecutor of the Pleas, attorney). 266 The opinion of the court was delivered by OLIPHANT, J. This is an appeal from a conviction of murder in the first degree without recommendation of life imprisonment entered after a trial before a jury in the Monmouth County Court. The appellant appeals as a matter of right, Art. VI, Sec. V, par. 1(c), Const. 1948; R.R. 1:2-1(c). The appellant was indicted for murder under N.J.S. 2A:113-1. The indictment is in the usual short form, R.R. 3:4-3(b), formerly R.S. 2:188-11. The proof of the corpus delicti indicated a particularly brutal murder. The autopsy disclosed that the deceased died of a severe brain injury resulting from skull fractures and concussion, together with very severe bruises and contusions around the neck with the tissues badly mashed in those areas. Pictorial exhibits evidenced that the deceased had been brutally beaten about the head. In a confession which is corroborated in important details by other evidence, see State v. Cooper, 10 N.J. 532 (1952); State v. Cole, 136 N.J.L. 606, 610 (E. & A. 1948), and the cases cited there, the appellant related in detail his activities in the early part of the evening in question, which was July 10, 1955. He stated that he had visited a number of bars and did considerable drinking, and finally at 2 o'clock in the morning he hired a taxicab at the corner of Cookman and Main Streets, Asbury Park, to go to Long Branch. When they reached Deal he asked the deceased, the driver, "to pull off from the road and let me go to the bathroom." When he got outside of the cab he said he then demanded money of the driver who said he did not have any, and then he struck the deceased cab driver, pulled him out of the cab, struck him again, and when he fell to the ground the defendant kicked him several times. He stated then that he took the driver's wallet containing $4 and some change and also his watch and a jacket from the rear seat of the cab. In the confession these specific questions and answers are found: 267 "Q. After you removed this watch from the taxicab driver's arm, what did you do with it? A. I put it in my pocket. Q. Who removed it from your pocket? A. The police officer that arrested me. Q. Now, Wynn, when you say you had an argument with the taxi driver, you meant that you went to hold him up and asked him for his money, and he resisted you, is that it? A. Yes, sir. Q. Had you hit the taxi driver with anything beside your hand and your feet?" A. No, that is, I don't think so." He then got in the cab and drove it away. In driving around he finally drove into a dead end street in Deal, where he got out and started to walk toward Asbury Park when he was picked up by the police. At the trial he enlarged considerably his testimony as to his drinking activities and claimed he did not kill Hagerman, but testified that he had an argument with the deceased about a rebate or refund of the taxi fare. He claimed he had told the driver to take him to Long Branch, wait while he visited a friend, and then return him to Asbury Park but at the point when they stopped in Deal he changed his mind about going to Long Branch and asked the cab driver to take him back to Asbury Park and asked him if he would give him a refund of the money back as the agreement was he would pay $10 for the trip over to Long Branch and back. He then testified that the deceased said a bargain was a bargain and would give none of the money back and that they got into an argument during which the cab driver said "Why, you black son of a bitch, you walk now," that he reached into the cab, struck the deceased and pulled him out of the cab and they started fighting. He said that he kicked him once and then tried to get away but that the deceased grabbed him around the knees, at which time he kicked him again. He then testified that the deceased's wrist watch came off his arm and he flung it away, not knowing where. He also stated that the deceased's wallet popped out of his pocket during the scuffle and that he, the appellant, took 268 the wallet with the contents, figuring that was what the deceased owed him from the $10, and that he then got into the cab of the deceased, the deceased got to his feet and yelled at him not to take the cab but nevertheless he drove off. He said that later when he was stalled on the dead end street he noticed the watch of the deceased on the seat where it presumably happened to land when he flung it away during the struggle and that he took the jacket from the car not realizing it did not belong to him. We deem this short statement of the proofs before the court to be sufficient for present purposes, but our review of the entire record discloses considerable other proof bearing upon the death or murder of the deceased, all of which was properly evidential. We have likewise examined in its entirety the charge delivered by the trial court and we have reached the conclusion from a review of the entire record that the defendant suffered manifest wrong or injury in that charge, R.R. 1:5-1. The trial court submitted the case to the jury on the theory of a killing occurring during the commission of a robbery which he defined in the terms of the statute N.J.S. 2A:113-2. He likewise defined the crime of robbery, but we find the following excerpts from the charge to be contradictory and confusing: "The State contends that it has shown this beyond a reasonable doubt; that Mr. Hagerman's death was either due to blows or to the kicks or as a result of his having been knocked down. The State must show beyond a reasonable doubt that the death occurred from the trauma inflicted upon the decedent by the defendant. It is incumbent upon the State to show beyond a reasonable doubt that Hagerman's death was the result of the defendant's acts. In other words, it is incumbent to prove beyond a reasonable doubt that the defendant killed Mr. Hagerman in the perpetration of a robbery; and if the State has proved this to you beyond a reasonable doubt, then it is murder in the first degree. In other words, you will ask yourselves, was there a robbery, if your answer is yes, was there a homicide inflicted upon Mr. Hagerman by this defendant and has the State shown both of those things beyond a reasonable doubt and if you come to that conclusion, then it is murder in the first degree. * * * * * * * * 269 Our statute provides that if you find the defendant guilty of murder you shall designate by your verdict whether it be murder in the first degree or in the second degree. The theory under which the case has been tried is that a murder has been committed in the perpetration of a robbery. Therefore, if under the evidence Wynn is guilty at all, he is guilty of murder in the first degree. So that, while you may return a verdict of guilty of murder in the second degree, such a verdict would be inconsistent with the theory upon which this case has been tried. * * * * * * * Whether or not you make the recommendation of life imprisonment rests entirely and fully in your judgment and in your discretion after the consideration of all the evidence bearing on the guilt or innocence of the accused. You may also return a verdict of guilty of murder in the second degree. I have spoken to you about this heretofore and it is by statute only that such a verdict can be returned in this case, and is wholly inconsistent with the theory upon which the case has been tried. In the event that you find that the State has failed to show beyond a reasonable doubt the guilt of this defendant, then your verdict will be not guilty. So there are any one of four verdicts which you may return; guilty of murder in the first degree, guilty of murder in the first degree with a recommendation of life imprisonment, guilty of murder in the second degree or not guilty." The examination of these excerpts from the entire charge leaves us with the definite impression that we are unable to determine just what the jury understood by these conflicting instructions. When the court said "Therefore, if under the evidence Wynn is guilty at all he is guilty of murder in the first degree. So that, while you may return a verdict of guilty of murder in the second degree, such a verdict would be inconsistent with the theory upon which this case has been tried," such remarks were approximately a direction to convict of murder in the first degree. Such error has been condemned by the court of last resort in this state. State v. Jefferson, 139 N.J.L. 308 (E. & A. 1942); cf. State v. Jefferson, 131 N.J.L. 70 (E. & A. 1943); State v. Swan, 130 N.J.L. 372 (E. & A. 1943). Cf. State v. Swan, 131 N.J.L. 67 (E. & A. 1943). We agree with the trial court that there was proof before the court and submitted to the jury which, if believed, could justify a verdict of murder in the first degree 270 on the theory of a killing occurring during the commission of a robbery. State v. Mule, 114 N.J.L. 384 (E. & A. 1935). But there was likewise proof before the court, if believed, from which the jury could have concluded that the appellant was guilty of a willful, deliberate and premeditated murder, State v. Bonofiglio, 67 N.J.L. 239 (E. & A. 1901). The court confused murder in the second degree with willful, deliberate and premeditated murder without charging the elements of the latter. There was likewise proof before the court which, if believed by the jury, might justify a verdict of guilty of murder in the second degree. State v. Biango, 75 N.J.L. 284 (Sup. Ct. 1907), affirmed 79 N.J.L. 523 (E. & A. 1909); State v. Mangino, 108 N.J.L. 475, 478 (E. & A. 1931); State v. Corrado, 113 N.J.L. 53, 59 (E. & A. 1934). The fact of killing being established, the presumption is that it is murder in the second degree. Wilson v. State, 60 N.J.L. 171 (E. & A. 1897); Brown v. State, 62 N.J.L. 666, 713 (E. & A. 1899). The intent to take life is not a necessary element required to constitute the crime of murder in the second degree. The intent to do grievous bodily harm is sufficient. State v. Moynihan, 93 N.J.L. 253 (E. & A. 1919). Finally, the killing of another in a passion of hot blood with reasonable provocation comprises the crime of manslaughter. State v. Zellers, 7 N.J.L. 220, 223 (Sup. Ct. 1824). To mitigate the offense to manslaughter, the facts must show that the homicide resulted from passion or the heat of blood upon a reasonable provocation. The provocation must be of such a character and so close to the act of killing that for the moment the accused could be considered as not the master of his own understanding. If such an interval of time elapses between the provocation and the act of killing as is reasonably sufficient for reason to resume its sway, it is not mitigated to manslaughter. Brown v. State, supra, p. 713. We are aware that instructions by trial courts that a verdict should be either guilty of murder in the first 271 degree or acquittal have been approved on appeal in some cases. Roesel v. State, 62 N.J.L. 216 (E. & A. 1898); State v. Pulley, 82 N.J.L. 579, 582 (E. & A. 1912); State v. Merra, 103 N.J.L. 361, 367 (E. & A. 1927), but in those cases there was no evidence that could justify a verdict of guilty other than murder in the first degree. As we have pointed out, the trial court here merely referred to the other degrees of murder eo nomine without defining the determinative and constituent elements of each. Thus the jury was left without the legal implements to reach and form a verdict. The charge was contradictory and confusing in parts and a jury cannot and should not be required to determine what part of a contradictory charge is correct. State v. Sahazian, 98 N.J.L. 430 (Sup. Ct. 1923); State v. Albertalli, 112 A. 724 (Sup. Ct. 1915). Where the life of an accused is at stake, it is too risky to determine what the instructions in this case could mean to the twelve lay minds of the jurors. For these reasons the conviction of the appellant must be reversed and a new trial ordered. Such disposition makes it unnecessary to discuss or decide the other points raised by the appellant. For reversal Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN 7. For affirmance None.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/590052/	974 F.2d 75 23 Bankr.Ct.Dec. 767, Bankr. L. Rep. P 74,815 Roger M. NOREEN, Appellant,v.Starr Bridget SLATTENGREN, Appellee. No. 92-1056. United States Court of Appeals,Eighth Circuit. Submitted June 9, 1992.Decided Sept. 1, 1992. Michael C. Black, St. Paul, Minn., argued, for appellant. Kirk A. Myhra, Coon Rapids, Minn., argued, for appellee. Before BOWMAN, LOKEN, Circuit Judges, and HUNTER,* Senior District Judge. BOWMAN, Circuit Judge. 1 Roger Noreen appeals from the order of the District Court1 affirming the Bankruptcy Court's2 denial of Noreen's Chapter 13 bankruptcy plan because it was not filed in good faith. We affirm the District Court. 2 In December 1989, Starr Slattengren filed a civil suit against Noreen in a Minnesota state court claiming damages stemming from Noreen's sexual assault of Slattengren when she was a child. On October 8, 1990, the state court set the trial date for February 19, 1991. On October 16, 1990, the state court ruled that Noreen was liable to Slattengren for her damages as a matter of law.3 On February 8, 1991, eleven days before the scheduled start of the trial of the civil suit, Noreen filed a Chapter 13 bankruptcy petition in the Bankruptcy Court pursuant to 11 U.S.C. § 1321 (1988). His original Chapter 13 plan, dated February 5, called for him to make monthly payments of $200 over a three-year period. 3 Slattengren filed a Chapter 13 Proof of Claim in the Bankruptcy Court on February 22, 1991, stating that she had an unsecured, unliquidated, contingent claim against Noreen for $500,000. She moved the Bankruptcy Court to lift the automatic stay, imposed pursuant to 11 U.S.C. § 362(a) (1988), against her state court civil action. This motion was granted by the Bankruptcy Court on March 18, 1991. On March 25, Slattengren filed an objection to the confirmation of Noreen's plan, claiming that it should not be confirmed because it was not filed in good faith. On March 30, Noreen filed an amended Chapter 13 plan calling for him to make monthly payments of $500 over a five-year period. 4 The confirmation hearing was held on April 11, 1991. Noreen asked the Bankruptcy Court to hold an evidentiary hearing on the issue of good faith, but the court took the matter under advisement without holding such a hearing. Following the confirmation hearing, but before the court issued its order, Noreen and Slattengren entered into a stipulation liquidating Slattengren's state court claim. The stipulation permitted entry of judgment in the state court for $100,001. On May 29, 1991, the Bankruptcy Court issued its order denying Noreen's proposed Chapter 13 plan because the court found that the plan was filed in bad faith. The court also dismissed Noreen's Chapter 13 case. On appeal, the District Court affirmed the Bankruptcy Court's decision that Noreen's Chapter 13 plan was filed in bad faith. The District Court also held that the Bankruptcy Court erred in dismissing Noreen's Chapter 13 case sua sponte and remanded the case to the Bankruptcy Court. On appeal, Noreen argues that the District Court erred in holding that the Bankruptcy Court was not required to hold an evidentiary hearing on the good faith issue, and that the District Court erred in affirming the Bankruptcy Court's decision that Noreen's Chapter 13 plan was not filed in good faith.4 5 A bankruptcy court shall confirm an otherwise appropriate Chapter 13 plan if "the plan has been proposed in good faith and not by any means forbidden by law." 11 U.S.C. § 1325(a)(3) (1988). This requirement "demands a separate, independent determination.... [T]he proper inquiry should [analyze] whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13. The bankruptcy court must utilize its fact-finding expertise and judge each case on its own facts after considering all the circumstances of the case." In re Estus, 695 F.2d 311, 316 (8th Cir.1982). Estus included a non-exclusive list of eleven factors that the court may find relevant in making its determination. See Estus, 695 F.2d at 317. Most of these factors were "subsum[ed]" by 11 U.S.C. § 1325(b) (1988) (enacted in 1984), which narrowed the focus of a bankruptcy court to "look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code." Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987). The totality of the circumstances analysis adopted by Estus, however, remains in place. In re LeMaire, 898 F.2d 1346, 1349 (8th Cir.1990) (en banc). 6 Noreen argues that the totality of the circumstances analysis mandated by Estus and LeMaire requires the Bankruptcy Court to hold an evidentiary hearing on the issue of good faith. We disagree. Nothing in the statutes or case law requires a hearing every time the issue of good faith is raised in a Chapter 13 proceeding. The bankruptcy court, exercising its sound discretion, is in the best position to determine when an evidentiary hearing on the issue of good faith is necessary. We find no abuse of discretion in the Bankruptcy Court's determination that this case did not require such a hearing. Accordingly, we do not disturb the District Court's decision declining to require the Bankruptcy Court to hold an evidentiary hearing. 7 Noreen also challenges the District Court's holding that the Bankruptcy Court's finding that Noreen submitted his Chapter 13 plan in bad faith is not clearly erroneous. "[O]ur task here is to review the bankruptcy court's factual findings under the clearly erroneous standard ... in order to determine whether [Noreen] proposed his Chapter 13 plan in good faith." LeMaire, 898 F.2d at 1350. After reviewing the record, we cannot say that the Bankruptcy Court clearly erred in finding that Noreen's plan was filed in bad faith. The Bankruptcy Court focused on three factors in finding that Noreen's plan was filed in bad faith: (1) the plan was filed only eleven days before Slattengren's civil suit (claiming damages resulting from Noreen's sexual abuse of Slattengren) was set to go to trial, thereby preventing her from having her case heard; (2) Noreen's Chapter 13 case was filed not because of debts that came due in the ordinary course, but in anticipation of the likely damage award resulting from Slattengren's civil suit; and (3) the initial plan offered only a meager payment plan, which was increased only in response to Slattengren's objection.5 The Bankruptcy Court's finding of bad faith thus is well supported. Cf. LeMaire, 898 F.2d at 1353 ("we believe that there is a particularly strong policy prohibiting the discharge of a debt resulting from a willful and malicious injury following an attempted murder");6 Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir.1986) (resort to Chapter 13 may indicate an abuse of the bankruptcy laws "especially where a major portion of the claims sought to be discharged arises out of pre-petition ... wrongful conduct and the debtor proposes only minimal repayment of these claims"). 8 The order of the District Court is affirmed. * The HONORABLE ELMO B. HUNTER, Senior United States District Judge for the Western District of Missouri, sitting by designation 1 The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota 2 The Honorable Dennis D. O'Brien, United States Bankruptcy Judge for the District of Minnesota 3 The alleged misconduct of Noreen that served as the basis for Slattengren's civil suit was the same conduct for which Noreen was convicted in state court in 1984 of criminal sexual conduct 4 Slattengren does not challenge the District Court's ruling reversing the Bankruptcy Court's sua sponte order dismissing Noreen's Chapter 13 case 5 The trustee in this case was "incensed" by Noreen's initial plan "because it was obviously proposed without any hints of good faith." Transcript of April 11, 1991, Confirmation Hearing at 5, reprinted in Joint Appendix at 41, 45 6 Noreen argues that sexual abuse of a minor is "not as serious, from a public policy standpoint, as [attempted murder]." Appellant's Brief at 10. We find this argument unpersuasive, and have no difficulty in concluding that the "strong policy" adverted to in In re LeMaire, 898 F.2d 1346, 1353 (8th Cir.1990) (en banc), is broad enough to encompass civil liability resulting from the sexual abuse of a minor	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3360600/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO REOPEN JUDGMENT (#121.00) This case comes to this court as Motion No. 121.00 which is a motion to reopen the judgment. In sum and substance the motion requests that the court reopen the judgment that was entered on January 26, 1993 and correct the same by providing that the commencement date for the payment of alimony in Paragraph 7.1 be February 1, 1993. The court for reasons it will set forth hereinafter, grants that motion. The court has reviewed the January 26, 1993 transcript wherein the wife was canvased by her attorney, Lloyd Cutsumpas. On Page 11 it is clear that the alimony payment was to begin on February 1, 1993. The court has reviewed its canvas of the pro se husband, Steven Galfas and it is abundantly clear that he understood the testimony of the wife and agreed to it. This court conducted an evidential hearing wherein both parties testified. This court finds the more credible testimony to be that of the wife. She testified that he gloated at what he felt was a mistake by her lawyer. He admitted it was a mistake in his conversations with her. It is clear to this court that the changes made in the Agreement in Article Eight contemplated changes to be made in Article Seven. The failure to amend the Agreement was clearly a mistake and known by both parties to be such. Accordingly, the Motion has been granted. KARAZIN, J. CT Page 3179	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2490844/	71 So.3d 312 (2011) Robin Aitken GATLIN v. The LOUISIANA EMPLOYEES RETIREMENT SYSTEM and the Orleans Parish School Board. No. 2011-CC-1501. Supreme Court of Louisiana. October 7, 2011. Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/7023657/	JUSTICE McCULLOUGH delivered the opinion of the court: Defendant Carl Walker, a/k/a Carl Logan, appeals his conviction and two-year prison sentence for theft. Defendant contends the State failed to meet its burden of proof where no evidence establishing ownership of the vehicle was introduced but only a photograph establishing the make and model of the vehicle was presented to the jury. We affirm. On September 30, 1988, defendant was charged by information with two counts of felony theft. (Ill. Rev. Stat. 1987, ch. 38, pars. 16 — 1(a)(1), (d)(1).) Count I alleged defendant, on September 14, 1988, exerted unauthorized control over a 1985 Yamaha motorcycle owned by Robert Fullenwider. Defendant pleaded not guilty, and a jury trial commenced on January 18,1989. Only the facts necessary to resolve the issue on appeal need be reviewed. Fullenwider testified that on September 13, 1988, at approximately 7 p.m., he parked his Yamaha FJ 1100 motorcycle in front of his house on Clinton Street in Decatur and removed the keys. Fullenwider stated he purchased the motorcycle in 1985. Fullenwider discovered the bike missing at noon on September 14, 1988, and called the police. He stated he recovered the bike “the next day or the day after. Soy City had it.” People’s exhibit No. 1, a photograph, was identified by him as “the Yamaha FJ 1100.” In response to questions whether it was a motorcycle, he answered “yes” and whose motorcycle is it, he answered “mine.” Fullenwider further testified the photograph was not accurate because since the photo was taken, he had been in a hit-and-run accident, with the bike and the seat had been changed. When asked if the picture “fairly and accurately depict[s] your motorcycle,” he answered, “Looks like it. That’s it.” And, in response to a question, “Did you own that motorcycle on September 13th, 1988?” he answered, “Yes.” Fullenwider was not cross-examined concerning the authenticity of People’s exhibit No. 1. State’s witnesses Parker and Jones also identified People’s exhibit No. 1 as the motorcycle. In addition, Officer Swanson testified, “it looks like the motorcycle that I saw being loaded in the pickup truck.” The exhibit was admitted into evidence without objection. The jury returned a verdict of guilty on two counts of theft. The defendant’s motion for a new trial was denied. At the sentencing hearing on February 2, 1989, the trial court, on motion by the parties, vacated the verdict and judgment on count II, which alleged receipt of stolen property. The court imposed a sentence of two years’ imprisonment on count I. Defendant argues the evidence against him for felony theft of the motorcycle established only the make and model but not ownership of the motorcycle in Fullenwider. Specifically, defendant points out no certificate of title or registration was introduced at trial. Defendant also contends the chain of custody of evidence in this case is deficient because it does not establish Fullenwider recovered the motorcycle from the police. Thus, defendant maintains his conviction for theft must be reversed because he was not proved guilty beyond a reasonable doubt. The State argues the defendant’s conviction is supported by the evidence and inferences drawn therefrom by the jury. The State also points out defense counsel admitted Fullenwider’s ownership of the vehicle during closing argument and, therefore, cannot now argue it was not proved at trial. A court of review will not set aside a criminal conviction unless the evidence as to each element of the crime is so unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339; People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) To sustain a conviction for theft of a motor vehicle, the State must prove all the material elements of the offense, including ownership. (People v. Irons (1976), 39 Ill. App. 3d 993, 995, 350 N.E.2d 754, 758.) Evidence establishing the make and model of a stolen vehicle, without more, has been found insufficient to prove ownership. People v. Williams (1962), 24 Ill. 2d 214, 181 N.E.2d 353; People v. Stone (1979), 75 Ill. App. 3d 571, 394 N.E.2d 810; People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795; Irons, 39 Ill. App. 3d 993, 350 N.E.2d 754. Section 115 — 9(a), provides in part: “[T]he court shall receive as competent evidence, a photograph of property over which the accused is alleged to have exerted unauthorized control or to have otherwise obtained unlawfully, if the photograph: (1) will serve the purpose of demonstrating the nature of the property; and (2) is otherwise admissible into evidence under all other rules of law governing the admissibility of photographs into evidence. *** If a photograph is found to be competent evidence under this subsection, it is admissible into evidence in place of the property and to the same extent as the property itself.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 9(a).) This section specifically permits the use of the photograph in this case. The picture, along with the testimony of Fullenwider, Parker, Jones, and Swanson, established beyond a reasonable doubt ownership. Fullenwider identified the photograph as his motorcycle and the motorcycle which is the subject of the theft. The exhibit was admitted into evidence without objection, and it properly identified the property which was the subject of the theft and is sufficient to prove ownership in Fullenwider. Williams, Stone, Hope and Irons do not require a different result. All of those cases deal with factual situations not similar to the case at hand. The State did prove Fullenwider’s ownership of the vehicle with competent evidence. For the foregoing reasons, the defendant’s conviction and sentence of felony theft are affirmed. Affirmed. KNECHT, P.J., and STEIGMANN, J., concur.	01-03-2023	07-24-2022
https://www.courtlistener.com/api/rest/v3/opinions/2100915/	233 S.W.3d 239 (2007) Lawrence P. KAPLAN, Plaintiff/Appellant, v. Laura J. KHOURY, Defendant/Respondent. No. ED 89570. Missouri Court of Appeals, Eastern District, Division Three. September 18, 2007. Lawrence P. Kaplan, St. Louis, MO, for appellant. Agota Peterfy, St. Louis, MO, for respondent. Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J. ORDER PER CURIAM. Lawrence P. Kaplan ("Kaplan") appeals the judgment of the trial court dismissing his action for injurious falsehood against Laura J. Khoury ("Khoury"). Kaplan argues the court erred in finding that intra-corporate immunity applied to statements made by Khoury. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. The judgment of the trial court is affirmed in accordance with Rule 84.16(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494167/	61 So.3d 672 (2011) TRANS PACIFIC INTERACTIVE, INC. v. U.S. TELEMETRY CORPORATION; U.S. Telemetry Network, Inc.; U.S. Telemetry-Bakersfield, LLC; Datex Spectrum, LLC; Thomas L. Siebert, K. Steven Roberts, Robert S. Miller, Don M. Clarke, James K. Gable, Charles M. Bruce, John J. Broussard, Henry (Hank) Mills, Clay M. Allen, and Stephen D. Gavin. No. 2011-C-0205. Supreme Court of Louisiana. April 8, 2011. Granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4520549/	DISMISSED and Opinion Filed March 26, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00122-CV IN RE CP TOWER OWNER, LLC AND NEXBANK SECURITIES, INC. D/B/A NEXBANK REALTY ADVISORS, Relators Original Proceeding from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-06206-K MEMORANDUM OPINION Before Justices Schenck, Partida-Kipness, and Nowell Opinion by Justice Nowell Before the Court is relators’ petition for writ of mandamus and its unopposed motion to dismiss this proceeding. Accordingly, we deny relators’ petition and DISMISS this mandamus proceeding. /Erin A. Nowell/ ERIN A. NOWELL JUSTICE 200122F.P05	01-03-2023	03-30-2020
https://www.courtlistener.com/api/rest/v3/opinions/2153384/	895 N.E.2d 697 (2005) 357 Ill. App. 3d 1091 COSMOPOLITAN BANK & TRUST CO. v. COUNTY OF DU PAGE. No. 2-04-0791. Appellate Court of Illinois, Second District. April 7, 2005. Vacated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/208962/	NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2008-1446 (Re-examination No. 90/007,022) IN RE SIEMENS WATER TECHNOLOGIES HOLDING CORP. Aaron W. Moore, Lowrie, Lando & Anastasi, LLP, of Cambridge, Massachusetts, argued for appellant. With him on the brief were Peter C. Lando, Matthew B. Lowrie, and Nicole A. Palmer. Thomas W. Krause, Associate Solicitor, Office of the Solicitor, United States Patent and Trademark Office, of Alexandria, Virginia, argued for the Director of the United States Patent and Trademark Office. With him on the brief were Raymond T. Chen,Solicitor and Nathan K. Kelley, Associate Solicitor. Appealed from: United States Patent and Trademark Office Board of Patent Appeals and Interferences NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2008-1446 (Re-examination No. 90/007,022) IN RE SIEMENS WATER TECHNOLOGIES HOLDING CORP. Judgment On appeal from the United States Patent and Trademark Office Board of Patent Appeals and Interferences in CASE NO 90/007,022. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: Per Curiam (BRYSON, CLEVENGER, and LINN, Circuit Judges.) AFFIRMED. See Fed. Cir. R.36 ENTERED BY ORDER OF THE COURT DATED: April 10, 2009 /s/ Jan Horbaly Jan Horbaly, Clerk	01-03-2023	03-13-2011
https://www.courtlistener.com/api/rest/v3/opinions/2494175/	66 So.3d 77 (2011) SUMRALL v. ABLE MOBILE HOUSING, INC. No. 2010 CA 2127. Court of Appeal of Louisiana, First Circuit. May 6, 2011. CARTER, J. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2512178/	198 P.3d 546 (2009) Janice A. JOHNSON, Appellant, v. KING COUNTY (METRO TRANSIT), Respondent. No. 61047-3-I. Court of Appeals of Washington, Division 1. January 12, 2009. 547 Shelby R. Frost Lemmel, Kenneth Wendell Masters, Bainbridge Island, WA, for Appellant. Kerry Keefe, Seattle, WA, for Respondent. SCHINDLER, C.J. ¶ 1 As a condition precedent to filing a lawsuit for tort damages against a governmental entity, a claimant must strictly comply with the statutory requirements by personally verifying the claim and the failure to do so can result in dismissal. But where, as here, the claimant signs the tort claim under penalty of perjury and the place of signing is reasonably inferred from the information provided in the claim, the failure to explicitly state the place of signing is not fatal and does not deprive the court of jurisdiction. We reverse the trial court's dismissal of Janice Johnson's lawsuit against King County and remand. ¶ 2 According to Janice A. Johnson, on October 7, 2003, a bus hit her car while she was approaching an intersection in downtown Seattle. On November 24, Johnson filed a claim for damages against King County Metro Transit (King County), claim number 34303. ¶ 3 The King County claim form directs the claimant to provide "specific details about your damage or loss," including the date, the time and witnesses, to sign the form under penalty of perjury, and return it to the King County clerk. Johnson's claim provides the date, time, location of the collision, and the bus and route number. Johnson listed her residence address as "605½ S. Main Seattle WA" and said that the accident occurred in downtown Seattle at 3:30 p.m. on October 7, 2003 at "1st Ave and So. King Street." Johnson described what happened as follows: I was stopped for a red light and as [the] light changed I was [accelerating]. Just driving down the street when I heard a huge boom sound. Everything went black. My car had stopped and it was not heading straight. I looked behind and saw the bus. Johnson also stated that she was injured in the collision and was receiving medical treatment. ¶ 4 On the signature line, Johnson signed the King County claim form as "Jan Johnson," and stated that: "`I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.'" On the line for the "(Date and Place, City, State)," Johnson wrote the date, but did not state the place of signing. ¶ 5 By letter dated January 29, 2004, a King County tort claims investigator informed Johnson that her claim had been "approved" and King County had agreed to settle her claim for property damages in the amount of $1,259. The letter stated that King County would pay the claim after Johnson signed the enclosed "Property Damage Release of Claim" form. ¶ 6 On March 19, Johnson's insurer, Safeco Insurance Company, filed a subrogation 548 claim against King County for property damages in the amount of $1,786. By letter dated July 13, King County informed Johnson that it had settled the claim with Safeco and had approved payment of Johnson's deductible of $200. The letter states that King County would pay Johnson upon receipt of the "Release and Settlement Agreement." ¶ 7 On September 8, 2005, Michael Matthews ran a red light and hit Johnson's car. Johnson was injured in the collision and the car was damaged. ¶ 8 On August 2, 2006, Johnson retained an attorney to file a lawsuit against King County and Matthews. At her attorney's request, on August 4, Johnson filled out another King County claim form, claim number 39748. Except for providing additional details about the amount claimed, the name of the bus driver, the estimated cost to repair the car, and Johnson's injuries, the claim is identical to the one that she filed on November 24, 2003. Johnson again signed the form, declaring under penalty of perjury that the information provided in the claim was correct. The claim form is dated August 4, 2006. When Johnson's attorney filed the claim on August 7, he said that he forgot to write "Seattle, WA" next to the date. ¶ 9 After filing the claim, Johnson's attorney sent two letters to King County to confirm her claim was properly filed. In response, King County stated that it could "only confirm that the Clerk of the Council received and date stamped your client's original claim on November 24, 2003." ¶ 10 On November 20, 2006, Johnson filed a "Complaint for Personal Injuries in Tort (Automobile)" against King County and Matthews. King County filed an answer denying liability. King County also asserted a number of affirmative defenses, including failure to comply with the statutory claim filing requirements of RCW 4.96.020(3), and failure to comply with the statutory requirements of RCW 9A.72.085 for a verified unsworn statement. After the lawsuit was filed, King County did not engage in discovery. ¶ 11 In October 2007, King County filed a motion for summary judgment on one issue: Whether defendant King County is entitled to dismissal of this lawsuit because plaintiff has failed to follow the requirements of RCW 9A.72.085 for a valid unsworn statement to exist, which is a condition precedent for filing this action against defendant King County. ¶ 12 King County argued that because Johnson did not explicitly state the place of signing, she did not comply with the strict verification requirements of the claim filing statute, and requested dismissal. The court granted King County's motion for summary judgment and dismissed Johnson's lawsuit against King County with prejudice. Johnson appeals.[1] ¶ 13 Johnson contends the trial court erred in dismissing her lawsuit against King County. Johnson argues that because King County approved the first claim even though it did not include the place of signing, King County waived or is estopped from arguing that her claim for damages did not comply with the statutory claim filing requirements. Alternatively, Johnson contends that her verification of the claim for damages meets the requirements of the statute for unsworn statements and the claim filing statute. ¶ 14 We review the trial court's ruling on summary judgment de novo. Reyes v. City of Renton, 121 Wash.App. 498, 502, 86 P.3d 155 (2004). Summary judgment is properly granted if there are no material issues of fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992). ¶ 15 Assuming without deciding that King County did not waive and is not estopped from asserting that Johnson did not comply with the statutory requirements to personally verify the claim for damages, we reach the question of whether as a condition 549 precedent to complying with the claim filing statute, a claimant must strictly comply with the requirements for unsworn statements under RCW 9A.72.085. ¶ 16 Statutory interpretation is a question of law we review de novo. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002). This court's primary goal in interpreting statutes is "to ascertain and give effect to legislative intent." State v. Pacific Health Center, Inc., 135 Wash.App. 149, 158-59, 143 P.3d 618 (2006). "Statutes on the same subject matter must be read together to give each effect and to harmonize each with the other." US West Communications, Inc. v. Wash. Util. & Transp. Comm'n, 134 Wash.2d 74, 118, 949 P.2d 1337 (1997). ¶ 17 Every provision of a statute must be viewed in relation to other provisions and harmonized if at all possible. In re Arbitration of Mooberry, 108 Wash.App. 654, 657, 32 P.3d 302 (2001). Statutes relating to the same subject must be read together as a unified whole, to achieve a harmonious statutory scheme that maintains the integrity of the respective statutes. In re Mooberry, 108 Wash.App. at 657, 32 P.3d 302 ¶ 18 Strict compliance with the statutory claim filing procedure in chapter 4.96 RCW is a condition precedent to filing a lawsuit for damages against a governmental entity. RCW 4.96.020(3) sets forth the requirements for a claim for damages: All claims for damages arising out of tortious conduct must locate and describe the conduct and circumstances which brought about the injury or damage, describe the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed, together with a statement of the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time the claim arose. If the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed or if the claimant is a minor, or is a nonresident of the state absent therefrom during the time within which the claim is required to be filed, the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant. We have held that RCW 4.96.020(3) requires a claimant to personally verify the claim for damages unless the claimant meets one of the three statutory exceptions. Reyes, 121 Wash.App. at 503-04, 86 P.3d 155; see also Schoonover v. State, 116 Wash.App. 171, 184, 64 P.3d 677 (2003) ("although RCW 4.96.020 does not expressly require verification of a tort claim against a local government agency, it does contain language from which we can infer such a requirement"). ¶ 19 Under RCW 9A.72.085, a person may verify an unsworn statement by signing and certifying that the information is true under penalty of perjury and stating the date and place of signing. RCW 9A.72.085 provides: Whenever, under any law of this state or under any rule, order, or requirement made under the law of this state, any matter in an official proceeding is required or permitted to be supported, evidenced, established, or proved by a person's sworn written statement, declaration, verification, certificate, oath, or affidavit, the matter may with like force and effect be supported, evidenced, established, or proved in the official proceeding by an unsworn written statement, declaration, verification, or certificate, which: (1) Recites that it is certified or declared by the person to be true under penalty of perjury; (2) Is subscribed by the person; (3) States the date and place of its execution; and (4) States that it is so certified or declared under the laws of the state of Washington. The certification or declaration may be in substantially the following form: "I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct": ............ (Date and Place) 550 ............. (Signature) This section does not apply to writings requiring an acknowledgement, depositions, oaths of office, or oaths required to be taken before a special official other than a notary public. ¶ 20 Here, it is undisputed that Johnson personally signed and dated the King County claim form under penalty of perjury, but did not expressly state the "place" of signing. Johnson asserts that even absent a specific reference to the place of signing, her verification is valid because it substantially complies with the requirements of RCW 9A.72.085 and the place of signing is apparent from the face of the document. King County contends that Johnson had to strictly comply with the requirements of RCW 9A.72.085 as a condition precedent to filing a claim under RCW 4.96.020(3). Case law does not support King County's position. ¶ 21 In Veranth v. State, Dep't of Licensing, 91 Wash.App. 339, 341, 959 P.2d 128 (1998), we held that the failure to designate the place of signing in a certified report did not deprive the Department of Licensing of jurisdiction. In Veranth, the plaintiff argued that the abbreviation "`SDP, N. PCT'" did not comply with the requirements of RCW 9A.72.085 to designate the "place signed." After reviewing the case law, we concluded that there was "no support" for a strict interpretation of RCW 9A.72.085. Veranth, 91 Wash.App. at 343, 959 P.2d 128. We also concluded that "[a]ny uncertainty in the abbreviation is easily resolved by examining the rest of the document" and any deficiency in designating the place of signing was "merely a technical one" that did not deprive the Department of jurisdiction. Veranth, 91 Wash.App. at 342, 343, 959 P.2d 128. ¶ 22 In Manius v. Boyd, 111 Wash.App. 764, 47 P.3d 145 (2002), the trial court granted a motion to strike a request for a trial de novo because the certificate of service did not include the "place of signing." Manius, 111 Wash.App. at 770 n. 5, 47 P.3d 145. We reversed, holding that even though the certificate did not expressly state the place of signing, "such originating address is reasonably implied" from the certificate of service signed under penalty of perjury. Manius, 111 Wash.App. at 770, 47 P.3d 145.[2] We also noted that requiring an additional statement of the place of signing served no useful purpose. Manius, 111 Wash.App. at 770, 47 P.3d 145. ¶ 23 Here, there is no dispute that Johnson verified the information provided in the claim under penalty of perjury. There is also no dispute that any of the information was incorrect. In the claim for damages, Johnson sets forth the Seattle address where she had lived and worked for at least six months prior to the accident and she provides details about the collision that occurred in downtown Seattle. As in Veranth and Manius, even though Johnson failed to state the place of signing, because that information is reasonably inferred from the information provided in the claim, she substantially complied with the requirements of RCW 9A.72.085 and the trial court erred by dismissing her lawsuit against King County. Reading the statutory scheme as a whole and maintaining the integrity of the two statutes, we conclude that while RCW 4.96.020(3) requires a claimant to personally verify the claim for damages, failure to state the place of filing under RCW 9A.72.085 is not fatal to complying with the requirements of the claim filing statute. ¶ 24 Atkins v. Bremerton Sch. Dist., 393 F. Supp. 2d 1065, 1068 (W.D.Wash., 2005) does not support King County's argument that a claimant must strictly comply with RCW 9A.72.085 as a condition precedent to complying with RCW 4.96.020(3). In Atkins, the court did not address compliance with RCW 9A.72.085. The Atkins court followed our decision *551 in Reyes and dismissed the lawsuit because Atkins did not personally verify the claim. [T]he first two deficienciesfailure to send the letter to Ms. Hyde, and the fact that the letter was not verifiedare not `content' issues. They are instead part of the claim filing procedure itself, more akin to the 60 day requirement of RCW 4.96.020(4). `Failure to strictly comply with statutory filing requirements leads to dismissal of the action. This court is obliged to give full effect to the plain language of the statute even when the results of doing so may seem unduly harsh.' Atkins, 393 F.Supp.2d at 1067-68 (quoting Reyes, 121 Wash.App. at 502, 86 P.3d 155).[3] ¶ 25 The other cases King County cites to support its position that strict compliance with RCW 9A.72.085 is necessary in order to comply with the requirements of RCW 4.96.020(3) are also distinguishable. In Medina v. Public Utility Dist. No. 1 of Benton County, 147 Wash.2d 303, 53 P.3d 993 (2002), the Washington Supreme Court held that "where time requirements are concerned", a plaintiff must strictly comply with the claim filing statute. Medina, 147 Wash.2d at 317, 53 P.3d 993. Similarly, in Sievers v. City of Mountlake Terrace, 97 Wash.App. 181, 184-85, 983 P.2d 1127 (1999), this court affirmed dismissal because the claimant filed 59 days after service instead of the required 60. But here, it is undisputed that Johnson complied with the time limits of the claim filing statute. ¶ 26 In sum, because Johnson complied with the statutory requirement to personally verify the claim for damages under penalty of perjury, and the place of signing was reasonably inferred from the information she provided in the claim, Johnson's failure to specifically set forth the place of filing is not fatal and did not deprive the court of jurisdiction.[4] We reverse and remand for trial. WE CONCUR: LEACH and ELLINGTON, JJ. NOTES [1] In March 2008, Johnson and Matthews entered into a stipulation and order of dismissal of her claims against Matthews. [2] King County's argument that Manius is distinguishable because the question of verification arose in the context of compliance with the Mandatory Arbitration Rules (MAR), is unpersuasive. The MAR also requires strict compliance with the filing requirements. Manius, 111 Wash.App. at 771, 47 P.3d 145; c.f. Nevers v. Fireside, Inc., 133 Wash.2d 804, 815, 947 P.2d 721 (1997) ("requiring strict compliance with the filing requirements set forth in the rule better effectuates the Legislature's intent in enacting the statutes providing for mandatory arbitration of certain civil cases."). [3] Likewise, Schoonover, also holds that a claimant must personally verify a claim for damages in order to sue a governmental entity. Schoonover, 116 Wash.App. at 176, 64 P.3d 677 (Schoonover did not personally verify the information in the claim form.). King County's reliance on a footnote in Davis v. W. One Auto. Group, 140 Wash. App. 449, 455 n. 1, 166 P.3d 807 (2007), to argue that an unsworn declaration "must meet the explicit requirements of RCW 9A.72.085," is also misplaced. In Davis the court concluded that unsworn declarations were not properly before the trial court on summary judgment. Davis, 140 Wash.App. at 454, 166 P.3d 807. Nevertheless, the court stated in the footnote that even if the declarations had been properly submitted, there was an "absence of any genuine issue of material fact...." Davis, 140 Wash.App. at 455 n. 1, 166 P.3d 807. [4] Consequently, we need not reach Johnson's constitutional arguments. Isla Verde Intern. Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 753, 49 P.3d 867 (2002) ("if a case can be decided on nonconstitutional grounds, an appellate court should refrain from deciding constitutional issues").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1054172/	IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs April 19, 2006 STATE OF TENNESSEE v. DAVID EARL NIXON Direct Appeal from the Criminal Court for Sumner County No. 252-2004 Jane Wheatcraft, Judge No. M2005-01887-CCA-R3-CD - Filed September 26, 2006 The defendant, David Earl Nixon, pled guilty to two counts of especially aggravated sexual exploitation of a minor (Class B felony) and one count each of marijuana possession and possession of drug paraphernalia (Class A misdemeanors). He was sentenced to consecutive ten-year sentences for the two felony convictions, with the first ten years to be served in confinement and the second ten years on supervised probation. He received concurrent sentences of eleven months and twenty- nine days in confinement for the misdemeanor convictions. The defendant contends on appeal that the trial court erred in requiring him to serve his sentence in confinement rather than on probation and argues that the sentence of confinement constitutes an excessive sentence. We note that the laws concerning sentencing changed on June 7, 2005, and that this defendant did not execute any written waiver to be allowed to be sentenced under the new law. A ten-year sentence on probation under the old law is unauthorized, making the second ten-year sentence on supervised probation illegal. Because the trial judge is required to consider the aggregate sentence imposed, we reverse the sentences imposed and remand for new sentencing. We found no other reversible error. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and Remanded JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and DAVID H. WELLES, J., joined. B. F. “Jack” Lowery and G. Jeff Cherry, Lebanon, Tennessee, for the appellant, David Earl Nixon. Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Facts and Procedural History During the guilty plea colloquy, the State presented the following facts to support the defendant’s guilty pleas: Had this matter proceeded to trial, the facts would have shown that in December and January -- December of 2003 and January 2004, Mr. Nixon, using a webcam in Sumner County, Tennessee, exposed the genitalia of his three-year-old daughter over the internet for viewing by others. On count 5, upon executing a consent to search of his property, he admitted, told authorities where they could find marijuana in which they were able to find the marijuana and paraphernalia. No testimony was given during the sentencing hearing. The parties instead relied on the presentence report, the Centerstone report,1 the victim impact statement prepared by the mother of the victim, the original pictures that are the subject of the underlying offense, the defendant’s statement of allocution, and counsel argument to present their respective cases for sentencing. During the sentencing hearing, counsel for the defendant argued in favor of an alternative sentence to confinement because he claimed the defendant was guilty of committing an impulsive act which was out of character. Counsel tried to paint a picture of the defendant as an upstanding citizen, dedicated fireman, and good father who was a low risk to commit this type of act in the future. Defense counsel argued in favor of a supervised probation program for the defendant rather than a sentence of confinement. Defense counsel characterized the defendant’s behavior as an irresponsible act rather than sustained sexually deviant behavior. Next, the Assistant District Attorney General argued that the defendant had established a record of lying to protect himself since the charges were brought against him. He pointed out two instances, in the presentence report and the Centerstone report, of the defendant telling different stories regarding his use of illegal drugs, and he argued that the defendant was not trustworthy because of his behavior. He also pointed to a portion of the Centerstone report in which the defendant discussed that the crimes he committed were “no big deal” because they were “nonsexually orientated [sic]” despite the fact that he held his then three-year-old daughter naked in front of a webcam. The Assistant District Attorney General further stated that though the defendant claimed his actions were not sexual, there was, in fact, a person on the other end of his internet connection who was “doing stuff for him.” He further argued that the defendant breached his duty to protect his daughter on separate occasions because, by his own admission, he repeated his act multiple times. He then argued that, because the events occurred on separate occasions, the court could impose consecutive sentencing. The Assistant District Attorney General requested that the court impose a consecutive sentence to be served in the Tennessee Department of Correction. 1 The Centerstone report is a psychosexual evaluation for the defendant that contains an evaluation and recommendation for treatment. -2- Next, the defendant read his statement of allocution in which he stated that, prior to the underlying charges, he: (1) had never been arrested, (2) had a good job, and (3) took care of his children. He acknowledged that his actions were “incredibly stupid” but claimed that the acts were impulsive. He pled guilty because he was, in fact, guilty of the charged conduct. He said that his “stupid act” cost him his relationship with his children, his job, and his reputation and that he has embarrassed his family by becoming a convicted felon. He said that he was sorry for his actions and for involving his child in those actions. He said he thinks about his terrible mistake daily, and he asked the court to grant him probation so he could rebuild his life and support his children. After hearing the statements of the parties and reviewing the submitted exhibits, the trial court stated that it was not of the opinion that the defendant’s actions were impulsive. The court specifically stated that because the defendant admitted he engaged in the illegal behavior on a number of occasions, his actions were deliberate rather than impulsive and amounted to an abuse of his position of trust with his child which has, in turn, caused her great psychological damage. The court also stated it believed the defendant minimized the severity of his actions and was dishonest about his interest in sexual deviance. The court said it was concerned about the defendant’s justification of his actions and his refusal to acknowledge his inappropriate sexual behavior. It specifically referenced the Centerstone report in stating its belief that the defendant was a risk to re- offend because of his lack of insight as to the extent of his problem. The court ordered the defendant to serve two consecutive ten-year sentences on the sexual offenses, the first to be served in confinement and the second to be served on intensive probation. The court also sentenced the defendant to terms of eleven months and twenty-nine days for each misdemeanor conviction, to run concurrently with the first term of confinement. The court determined that the range of sentence for the Class B felonies was eight to twelve years, with the presumptive minimum sentence at eight years. However, the court enhanced the sentence to ten years because of the defendant’s abuse of his position of trust and the damage done to the child. Further, the court ordered the defendant to: register as a sex offender; undergo sex offender specific treatment as well as regular polygraph tests; and pay child support, cost of counseling for the victim, and court fines and costs. The court specifically stated that this was an egregious crime and that the aggregate length of the sentence relates to the severity of the offenses. The court stated that the sentence was necessary to send a message and to serve as a deterrent to others. Analysis When reviewing sentencing issues raised by a defendant on appeal pursuant to Tennessee Code Annotated section 40-35-401(d), the appellate court shall conduct a de novo review of the sentence with a presumption of correctness for the determinations of the trial court. The presumption of correctness is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant has the burden of proving that the sentence is improper. When considering whether a defendant should be incarcerated, the trial court should consider, inter alia, whether confinement is necessary to avoid depreciating the seriousness of the -3- offense. T.C.A. 40-35-103(1)(B); State v. Ashby, 823 S.W.2d at 169. Under the 1989 Sentencing Act, sentences which involve confinement are to be based on the following considerations contained in Tennessee Code Annotated § 40-35-103(1): (A) Confinement in necessary to protect society by restraining a defendant who has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. See also State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995). Here, the trial court properly considered the provision of Tennessee Code Annotated section 40-35-103(1)(B) in determining that the defendant’s sentence should be served in confinement. The trial court specifically addressed this consideration in determining that the defendant consistently depreciated the seriousness of his offenses requiring confinement under the statute. The trial court pointed out that the defendant minimized the severity of his actions and, further, that he refused to acknowledge the seriousness of his inappropriate behavior. Further, the trial court properly considered and admitted the portion of the Centerstone report which stated that the defendant’s potential for rehabilitation was poor based on his unwillingness to acknowledge that he had a sexual problem. The defendant contends that the trial court erred in the implementation of an excessive sentence and in not granting full probation. The defendant first contends that the trial court was required to follow the 2005 amendments to the Tennessee Criminal Sentencing Reform Act of 1989 because the sentencing hearing occurred July 8, 2005. However, upon review of the compiler’s notes to Tennessee Code Annotated section 40-35-102 (2005), we conclude that sentencing under prior law was proper. The notes to Tennessee Code Annotated section 40-35-102 state: Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant’s ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant. The sentencing scheme reviewed by the trial court on the record, without objection by counsel or execution of a waiver, was proper under the law. Next, the defendant contends that the trial court’s reliance on the victim impact statement was improper and violated his “statutory and constitutionally protected right of allocution.” This argument is without merit. The victim impact statement and all other relevant evidence are properly considered by the sentencing court when determining the length and manner of service of a sentence. The trial court properly considered the Centerstone report which made clear statements about the defendant’s depreciation of the seriousness of the offense, his lack of rehabilitative potential, and -4- his likelihood to commit an offense in the future. Further, the statement had no impact on the defendant’s right of allocution because the defendant exercised his right to read an allocution statement to the court. The defendant also argues that the court did not consider his statement of allocution and contends that there are no comments on the record regarding his statement. However, our review of the record reveals that the trial court considered the defendant’s statement of allocution and specifically cited from it at the sentencing hearing. The trial court refuted the assertions made in the defendant’s statement of allocution that his actions were impulsive rather than indicative of his character. Further, the trial court began the sentencing decree by citing the mitigating factors in favor of alternative sentencing, namely his employment history and lack of a criminal record, as stated by the defendant at the sentencing hearing. Therefore, this argument is also without merit. Next, the defendant argues that the ten-year sentences on each felony count are excessive. He argues that the minimum sentence in the range of eight years is a more appropriate sentence. The defendant argues that no enhancement factors exist to raise his sentence from the presumptive minimum to the ten-year sentences as applied by the trial court. However, upon a review of the record, we conclude that two enhancement factors exist to support the sentence imposed by the trial court. The trial court made specific findings that two enhancement factors existed to raise the sentence from the presumptive minimum sentence of eight years upward to ten years. The trial court stated that the defendant’s abuse of his position of trust and the extent of the damage to the victim justified an enhancement of his sentence under Tennessee Code Annotated section 40-35-114. The defendant further argues that he should be allowed to serve his entire sentence on probation. Here, the defendant has not carried the burden of showing that the imposed sentence is improper. A defendant is eligible for probation if the sentence received by the defendant is eight years or less, subject to some statutory exclusions. T.C.A. § 40-35-303(a)(2003). Although probation must be considered in sentencing, the defendant is not automatically entitled to probation as a matter of law. T.C.A. § 40-35-303(b), Sentencing Commission Comments; State v. Fletcher, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). An especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary. T.C.A. § 40-35-102(6). However, although a defendant may be presumed to be a favorable candidate for alternative sentencing, the defendant has the burden of establishing suitability for total probation. T.C.A. § 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). A defendant seeking full probation bears the burden on appeal of showing the sentence imposed is improper and that full probation will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). The trial court announced that confinement was necessary to deter this type of behavior and to punish the defendant for his actions. The trial court also announced that its sentencing decision was based, in part, upon the defendant’s lack of candor. We have previously held that the untruthfulness of a defendant can be the basis for a denial of probation. State v. Jenkins, 733 S.W.2d -5- 528, 534-36 (Tenn. Crim. App. 1987); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). This court has also upheld the denial of judicial diversion on the basis of untruthfulness. Dowdy, 894 S.W.2d at 305; see also State v. Anderson, 857 S.W.2d 571, 573 (Tenn. Crim. App. 1992). In the present case, the trial court pointed out the defendant’s dishonesty with the court regarding his behavior and his interest in sexual deviance, and the court considered that dishonesty when presenting the sentence. We conclude that the defendant’s credibility and willingness to accept responsibility for the offenses are properly considered in determining his potential for rehabilitation and are relevant in determining the appropriate sentence. The trial court observed the defendant’s statements, attitude, and demeanor and determined that he was dishonest, was in denial, and was likely to re-offend. This is sufficient to give the trial court the benefit of discretion. See State v. Anderson, 857 S.W.2d at 573-74. We conclude that there was adequate evidence to support the sentences as imposed by the trial court. Because the offenses committed by the defendant occurred prior to the enactment of the 2005 amendment, we again look to the prior law for sentencing. The defendant contends that the ten-year sentence is excessive. We do not agree. However, we must remand to the trial court on the issue of sentencing because the defendant was ineligible for probation under the prior law. Prior to the 2005 amendment, a defendant was eligible for probation only if the imposed sentence was eight years or less. T.C.A. § 40-35-303(a) (2003). After receiving consecutive ten-year sentences, the defendant should have been sentenced to confinement for both offenses. He was not statutorily eligible for probation because of the length of his imposed sentence. The defendant could have elected to be sentenced under the 2005 amendment by executing a waiver of his ex post facto protections. This waiver would have allowed him to serve the second sentence on probation rather than in confinement. Our review of the record reveals no such waiver. Therefore, we conclude that the defendant could only be sentenced to confinement for service of both sentences. We reverse the judgments of the trial court and remand for resentencing on both sentences consistent with this opinion. Conclusion Based upon the foregoing and the record as a whole, we reverse the judgments of the trial court and remand this case for further proceedings consistent with this opinion. ____________________________________ JOHN EVERETT WILLIAMS, JUDGE -6-	01-03-2023	10-08-2013
https://www.courtlistener.com/api/rest/v3/opinions/488624/	819 F.2d 151 55 USLW 2704, 1987-1 Trade Cases 67,580,RICO Bus.Disp.Guide 6633 BLOUNT FINANCIAL SERVICES, INC., a corporation; BFSFinance, Inc., a corporation; David Aultom andJean Aultom, Plaintiffs-Appellants,v.WALTER E. HELLER AND COMPANY, a foreign corporation andLowell Crabtree, Defendants-Appellees. No. 86-5342. United States Court of Appeals,Sixth Circuit. Argued April 16, 1987.Decided May 27, 1987. Philip R. Russ, argued, Amarillo, Tex., James D. Fox, Knoxville, Tenn., for plaintiffs-appellants. L. Caesar Stair III, Knoxville, Tenn., Rene A. Torrado, argued, Chicago, Ill., W. Morris Kizer, argued, L. Crabtree, Knoxville, Tenn., for defendants-appellees. Before MERRITT and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge. MERRITT, Circuit Judge. 1 Plaintiffs sue the two defendants for violation of the Sherman Act and the Racketeer Influence and Corrupt Organizations Act, "RICO," in an action arising from a financing contract in which the defendant, Heller, loaned money to plaintiffs for their industrial thrift operations. The contract provided for interest based on adjusting upward the rate that the Continental Illinois Bank charged its most credit worthy customers. The gravamen of the case is that plaintiff was forced out of business because Heller charged a rate of interest which was illegal under the contract between the parties. 2 We agree with the District Court's Rule 12(b)(6) decision that the complaint fails to state a cause of action under the Sherman Act and RICO, 632 F.Supp. 240. Stripped to the essential facts found in the allegations of the antitrust claim, the complaint alleges simply that Heller breached its contract with plaintiff by withdrawing from the financing arrangement and doing business with another financial institution in the same area. Under the controlling antitrust principles concerning refusal to deal stated in Dunn & Mavis, Inc. v. New-Car Driveaway, Inc., 691 F.2d 241 (6th Cir.1982), the antitrust complaint in the instant case is defective and fails to state a claim. The antitrust complaint states no facts constituting an injury to competition but states only that the defendant Heller replaced one thrift institution with another as its business associate in the area. 3 The complaint likewise fails to state a valid civil RICO claim for the predicate offenses of "unlawful debt" under Sec. 1961(6)(B), Title 18, and mail fraud under Sec. 1961(1). Section 1961(6) does not criminalize interest rates based on the prime rate unless the rate is twice the usurious rate under state or federal law. There are no facts alleged in the instant complaint which would bring the case in question within the requirement of twice the usurious rate under the last clause of Sec. 1961(6)(B). 4 On the mail fraud RICO allegation, the complaint fails to state the nature of the fraud which gives rise to the predicate offense of mail fraud. The fact that the parties take different positions under the contract as to the appropriate prime rate, or the fact that the defendant charged too high a "prime rate" and thereby concealed or refused to disclose what the plaintiff considers the true prime rate called for under the contract, does not give rise to a valid claim for fraud. Fraud alleged in a RICO civil complaint for mail fraud must state with particularity the false statement of fact made by the defendant which the plaintiff relied on and the facts showing the plaintiff's reliance on defendant's false statement of fact. The plaintiff has not alleged with particularity any such false statement of fact and therefore the District Court was correct in dismissing the complaint. Sending a financial statement which misconstrues the prime rate provided by the terms of the contract may breach the contract but it does not amount to a RICO mail fraud cause of action. Rule 9(b) requiring "averments of fraud ... with particularity" is designed to allow the District Court to distinguish valid from invalid claims in just such cases as this one and to terminate needless litigation early in the proceedings. 5 Even assuming that Heller knew that Continental Illinois Bank was charging a lower than advertised prime rate to some of its best borrowers, and that it concealed that fact from plaintiffs, that would not state a cause of action for RICO mail fraud. In United States v. Van Dyke, 605 F.2d 220, 225 (6th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979), this Court recognized that in order to establish a scheme to defraud, which is an essential element of mail fraud, there must be proof of misrepresentations or omissions which were "reasonably calculated to deceive persons of ordinary prudence and comprehension." 6 Heller's decision to charge a rate of interest based on Continental's advertised prime rate could not have been reasonably calculated to deceive a business entity such as Blount Financial "of ordinary prudence and comprehension." Heller is a separate and distinct entity from Continental Illinois and is therefore in no better position than Blount to obtain information about Continental Illinois' prime rate. Put another way, Blount was in as good a position as Heller to discover the "true" prime rate. An ordinary and prudent business person in the financial field would not have merely accepted Heller's quotation of the prime rate, but would have verified the rate independently. Blount's reliance and inaction were unreasonable and therefore prevent it from establishing that Heller's conduct was "reasonably calculated" to deceive the ordinary business person. In this business setting, Blount at most has a breach of contract action. 7 Accordingly, the judgment of the District Court is affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2589868/	58 N.Y.2d 946 (1983) In the Matter of the Claim of Joseph Kuczkowski, Respondent, v. Bethlehem Steel Corporation, Appellant. Workers' Compensation Board, Respondent. Court of Appeals of the State of New York. Decided February 23, 1983. Ronald E. Weiss for appellant. Thomas E. Krug for Joseph Kuczkowski, respondent. Robert Abrams, Attorney-General (Diane Ciccone of counsel), for Workers' Compensation Board, respondent. Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 612).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1053985/	IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs July 25, 2005 CLYDE EDWARDS v. SARAH ANN EDWARDS Appeal from the Chancery Court for Unicoi County No. 6609 G. Richard Johnson, Chancellor Filed August 25, 2005 No. E2004-02490-COA-R3-CV D. MICHAEL SWINEY , J., concurring in part and dissenting in part. I concur completely with the majority’s resolution of Appellant’s first issue. I, respectfully, dissent from the majority’s decision as to Appellant’s second issue. I believe the Trial Court erred in not finding a material change in circumstances sufficient to justify a modification of the alimony award. As shown by Wife’s testimony at the original hearing, she was crystal clear in testifying that she had no income of any kind whatsoever at the time of the divorce. It is now undisputed that Wife’s income has increased from zero dollars per month to $836 per month, surely a material change of circumstances under these facts. While this issue certainly could have been presented in a better way to the Trial Court, I respectfully disagree with the majority’s view that the Trial Court did not consider and resolve this issue. For example, as quoted by the majority on page two of its Opinion, the Trial Court specifically found in its order entered on August 29, 2003 “that the relative positions of the parties, their health, financial standing and standard of living has not changed since the entry of the Decree of Divorce.” I can read this language of the Trial Court to be nothing other than a finding that somehow the “financial standing” of Wife had not changed despite the fact that Wife’s income had increased from zero dollars per month to $836 per month. It is clear that the Trial Court must have considered the issue of any change in Wife’s “financial standing” for the Trial Court to determine that no such change had occurred. While I agree with the majority’s statement on page five of its Opinion that Husband at no time prior to the Trial Court’s order of August 29, 2003 moved to amend his motion, I believe the Trial Court’s order itself makes it clear that the Trial Court both received proof on the change in Wife’s financial standing and then made a specific finding that there was no change in Wife’s financial standing despite her increase in income from zero dollars to $836 per month. I would hold that the Trial Court’s language in its order clearly shows this issue was tried by implication, and, in fact, decided by the Trial Court. Likewise, I think the Trial Court’s order disposing of Husband’s Motion to Alter or Amend once again shows it considered this issue but simply ruled against Husband. As quoted by the majority, on page six of the Opinion, the Trial Court in declining to grant Husband’s motion stated that it found “no change in circumstances meriting any modification or elimination of alimony.” The Trial Court did not say it was exercising its discretion in denying the Motion to Alter or Amend by applying the Rule 59.04 standard, Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003), but instead specifically found that no material change of circumstances sufficient to justify modification or elimination of the alimony was present. It is this finding by the Trial Court that there was no material change of circumstances sufficient to merit modification or elimination of the alimony that was error as the evidence clearly preponderates against that finding. I would hold that it was error for the Trial Court to find there was no material change in circumstances, and, therefore, it was error not to modify the amount of the alimony awarded to Wife. I do not believe this to be a “phantom” issue as characterized by the majority. I believe the issue of whether Wife’s “financial standing” had changed because of her increased income was one that was tried to the Trial Court and specifically decided by the Trial Court. It is telling that Wife stated in her Motion To Set Aside Order Terminating Alimony filed on October 10, 2002, “[t]hat [Wife’s] only source of income now and since the time of the parties’ divorce has been the monthly alimony paid by [Husband], that her circumstances have not changed at all since the entry of Final Decree and that she resides with her daughter out of necessity, not out of convenience.” In short, by filing this motion to set aside order terminating alimony, Wife specifically placed at issue any change in her income as a material change of circumstances when she alleged that her “only source of income now and since the time of the parties’ divorce has been the monthly alimony paid by [Husband]. . . .” As to the majority’s noting that there was “some suggestion in the record that Husband, who had also worked for the railroad, was aware, at the time of the parties’ divorce, that, once divorced from him, Wife would be eligible for a pension by virtue of her first husband’s service with the railroad”, I respectfully disagree. Either the Trial Court considered and decided this issue of Wife’s change of circumstances due to her increased income, or, as the majority holds, it did not. The majority claims that “[t]he trial court in the instant case seems to have believed that this was what Husband was trying to do”, holding this issue in “reserve”. I find nothing in the record of the original hearing to suggest anything as to Wife’s income other than Wife’s very clear and explicit testimony that she was receiving no income and her daughter’s testimony that she didn’t know if her mother would be eligible for a pension on the account of her late husband after this divorce. I find no such “suggestion” as to Husband’s knowledge, but instead choose to rely upon the actual testimony of Wife that she had no other income. I believe Wife’s testimony to have been clear, and I believe her testimony was intended to show that she had no income and her alimony should be based upon her having no income. She was successful. I am puzzled how Husband is to be charged -2- with being aware of Wife’s ability to collect this future income but somehow Wife did not know about it. For these reasons, I would affirm the Trial Court’s decision as to Husband’s first issue, but I would reverse the Trial Court’s decision finding there was no material change in circumstances sufficient to modify the alimony, and I would modify the alimony by reducing it accordingly. ___________________________________ D. MICHAEL SWINEY, JUDGE -3-	01-03-2023	10-08-2013
https://www.courtlistener.com/api/rest/v3/opinions/247559/	264 F.2d 738 DIXIE TANK & BRIDGE CO., a corporation, Appellant,v.COUNTY OF ORANGE, a county of the State of CALIFORNIA, and Willis H. Warner, Appellees. No. 15886. United States Court of Appeals Ninth Circuit. March 4, 1959. Rehearing Denied April 8, 1959. James C. R. McCall, Los Angeles, Cal., for appellant. Joel E. Ogle, County Counsel, Stephen K. Tamura, Adrian Kuyper, Asst. County Counsel, County of Orange, Santa Ana, Cal., for appellee. Before STEPHENS, CHAMBERS and BARNES, Circuit Judges. CHAMBERS, Circuit Judge. 1 In late August, 1956, the 100,000 gallon water tank at the Orange County Hospital needed repairing in its rivets and its seams and needed repainting on its outside and relining with an asphalt preparation on the inside. Dixie Tank and Bridge Company specializes in doing just such work. It did the work. No contention is made that the work was not satisfactory, but the Board of Supervisors of Orange County now will not pay the sum of $7,511.60 (or any part of it) which Dixie claims is due it for the work which it completed November 21, 1956. The defense, on which the county has been sustained on a motion for judgment on the pleadings in this diversity case, is that the work was a single job in excess of $4,000 and that there were no real plans and specifications or advertising in newspapers for bids as required by the California statutes. Then a holding followed that the contract or contracts for the work were absolutely void and, further, that there is no recovery on quantum meruit. The decision was based on the district court's view of pertinent California cases. 2 A listing of the "paper work" backing up this "job" is desirable. Officials of the hospital, a county agency, sent one requisition to the county board of supervisors' purchasing agent. It is dated August 23, 1956, and lists the work to be done on the tank in eight items, estimates the price on the first item as $585 and the price for the other seven items in the one figure of $5,915, or a gross total of $6,500. Matching this requisition is a resolution on August 28, 1956, of the board of supervisors "authorizing the (county) purchasing agent to arrange for the repair of the high tank at the Orange County Hospital as requested by R. D. Powell, * * * Director. Estimated cost per requisition No. M2946A is $6,500." 3 Following this resolution, the purchasing agent issued a written invitation calling for bids. This went to five concerns. Bidders were to separately bid on five items such as exterior painting, interior scaling and painting. Then they were asked to give unit prices for filling pits, replacing rusted rivets, and welding deteriorated seams. (Obviously the total amount of work on the last three items could not be known until the inside of the tank was scaled — at which time the county's inspector would ascertain how many units of the work had to be done.) 4 Dixie responded with an itemized bid for each of the five items certain. Also, in the same bid it listed unit prices for the three items uncertain as to quantity. The five definite items totaled $2,850.00. When finally ascertained, the price for the three items bid upon as units totaled $4,661.60.1 (One other firm submitted a bid. It was much lower than Dixie's and it was withdrawn.) 5 Following receipt of the bid from Dixie, the board of supervisors met on October 2, 1956, and unanimously authorized the chairman to enter into a contract (form submitted) "for the cleaning, scaling and repairing, etc., the 100,000 gallon water tank at the Orange County Hospital." The chairman, Willis H. Warner, (named herein as a defendant in his individual capacity) signed the contract on that date, Dixie having previously signed it on September 21. This was the first of two contracts. 6 We note several features of the contract of October 2. First, it recites it was for emergency repairs. It actually only bound the contractor to do three things: 1. Scale the inside of the tank. 2. Apply asphalt to the inside. 3. Paint the outside. For this, a total price of $1,800 was required to be paid by the county. (The contract ignored the replacing of catwalks and tightening of loose sway rods upon which Dixie had made respective itemizations of $850.00 and $150.00 in its bid). As to the unit items, the contract said: 7 "After tank has been [cleaned and] inspected, company will submit a flat sum bid for all such repairs as may be necessary. This bid will be submitted to first party and a written repair contract embodying the specific work to be done, and the entire price to be paid shall be entered into before any repair work is done." 8 The penultimate paragraph of the contract read: 9 "Parties signing this contract in behalf of First Party Covenant and agree that they are fully authorized and empowered to sign, seal, deliver and execute the same and that all legal requirements have been fully complied with." 10 It would seem that this paragraph referred to Chairman Warner personally when he signed the contract for the board (and the hospital) as chairman of the board of supervisors. 11 Three days later, October 5, the county's purchasing agent dispatched a purchase order to Dixie separately listing and ordering the five items for which Dixie had given fixed and definite prices and the three items for which unit prices had been submitted. This order recited, "as per agreement on file in county clerk's office." If the foregoing words referred to the "emergency contract" signed by Chairman Warner, then the order went beyond the contract. 12 Next in the chronology of papers is a "Standard Form of Contract for Emergency Repairs" dated November 7, 1956. On the same day, the board had authorized the expenditure of an "additional amount of $1,011.60 covering labor and material necessary to repair high water tank, 100,000 gallons, at the County Hospital." Also, the signing of this particular contract had been authorized by another motion of the same date. This contract of November 7 covered all of the items of refurbishing and repair on the tank, the amount of welding and riveting necessary having been ascertained after the scaling of the inside of the tank. Again, this agreement recited in the text that it was for "emergency repairs." Further, it provided that all previous contracts were merged into it. All work, that to be done and that already done, was listed. No separate prices for items appear, but the single price of $7,511.60 was fixed. This figure would conform in total to Dixie's original bid, using its unit bid prices for welding and riveting, multiplying them by the now ascertained number of units required, and adding the result of such multiplication to the five items on which fixed prices had been offered in the bids. 13 Six days later, on November 13, the purchasing agent, followed through with a second purchase order to Dixie for "additional labor and material necessary to repair 100,000 gallon high tank, $1,011.60." Thus, in all, we had a requisition from the hospital for $6,500 and a purchase order for $1,011.60, for a total of $7,511.50, resolutions of the board for the same total and a final contract for the same total. 14 It would appear that as soon as the work was done an issue arose as to whether the contract was void under California statutes because of failure to have adequate plans and specifications and failure to advertise in a newspaper for bids. In counties of population under 500,000, contracts involving over $4,000 require advertising for bids in a newspaper as a condition precedent to the signing.2 Failure to comply makes the contract void. And the Supreme Court of California has been strict in holding void means void and has been unfriendly to quantum meruit.3 15 Dixie, seeking a way out of its legal box, sought refuge in fractions. It filed four claims with the board as follows: 16 1. A claim for $1,850.00 for three items covered by its first contract of October 2. There these items had the definite total price tag of $1,850.00. 17 2. A claim for $1,000.00 for the two items with definite prices bid (the replacement of catwalk plates and tightening of rods) which were not in the contract of October 2, but were in the purchase order of October 5. 18 3. A claim for $4,661.60 for the welding and riveting, the final price which had not been fixed until after the cleaning and inspection, and which sum by calculation only turns up as a fixed amount in the contract of November 7, the all inclusive contract. 19 4. An all inclusive claim for $7,511.60, the total amount of the contract of November 7 or the total amount of claims (1), (2) and (3) above. 20 All of the claims were rejected by the board on May 28, 1957, and this action was filed on July 22, 1957. 21 On a second amended complaint which set forth in great detail the facts hereinabove detailed (which had been required by the district judge when he ruled on the sufficiency of the first amended complaint) judgment was entered in favor of the defendants on a motion for judgment on the pleadings. As to Orange County, the trial court relied on Miller v. McKinnon, 20 Cal. 2d 83, 124 P.2d 34, 140 A.L.R. 570, and County of San Diego v. California Water & Telephone Company, 30 Cal. 2d 817, 186 P.2d 124, 175 A.L.R. 747. As to the separately stated claim, against Chairman Warner individually, the district court gives no reason for its decision and cites no applicable authority. However, the defense counsel had cited 4 McQuillin on Municipal Corporations 163, Section 12.214. 22 We take a somewhat different view of the situation. This requires a reversal. 23 First, while no really applicable California law has been cited or found, it is difficult to see just why Chairman Warner, who twice "covenant[ed] and agree[d]" that he "was fully authorized to sign, execute and deliver the same, and that all legal requirements have been fully complied with" should escape, if the county's contentions as to it are good and no recovery can be had against it. Dixie is a tank company. It repairs tanks. The board of supervisors is charged with running the county according "to the book." No doubt Dixie has had trouble elsewhere when pay day came about local legal requirements. So it has chosen to throw this responsibility on the local authority in an individual capacity when it can get a local citizen willing to take it. Chairman Warner didn't have to sign any contract4 with the "warranty" he gave. So we think that there was at the very least a genuine issue of fact as to whether he was liable. Perhaps, as a matter of law, he was liable if his "warranty" was incorrect in its assumptions as to legality.5 24 And, we are not in agreement as to the disposition made otherwise by the district court. The contracts recite that the repair was an emergency. The resolution of November 7 recites there was an emergency. It would appear to us that there was a question of fact as to whether a great emergency existed on October 2, the date of the first contract, or on November 7,6 the date of the second contract. Maybe the facts would establish this or maybe the facts would make this point evaporate. See Government § 25458, West's Ann. California Code.7 25 Also, if one should conclude that the contract of November 7 was void as to the county, where does that leave the contract of October 2? That was a definite self-sufficient contract for $1,850. It contemplated the submission of an additional bid for the rivets and welding, and a new contract being let therefor. It prohibited welding and riveting without a further contract therefor. This would seem to vitiate that part of the purchasing agent's order on October 5 for welding and rivets. But did it vitiate that part of the purchasing agent's order which covered the replacing of the catwalk plates and the tightening of the rods for a total price of $1,000.00, and which was not included in the contract of October 2? 26 Also, Section 25450.58 of the West's Ann. California Government Code must be taken into account. It prohibits splitting of contracts in counties with more than (larger than Orange County in 19569) a specified population, if the purpose is to avoid the limitation as to advertising for bids. It must be a corollary that such splitting is not legally so bad in counties the size of Orange. It is difficult to see how the county could be held on the two items of $2,492.00 for welding and $2,169.60 for rivets for a total of $4,661.60 unless an emergency can be sustained. However, emergency or not, the issue would seem to be one of fact. 27 The judgment is reversed for further proceedings consistent with this opinion. Notes: 1 Dixie bid 60 cents per unit to weld rusted out rivets, $3.50 per lineal foot to weld deteriorated seams, and 60 cents per unit to weld all pits in tank. The inspection after scaling revealed no pits. However, 712 feet of welded seams at the bid price of $3.50 per foot at a total price of $2,492.00 and 3,616 new rivets at 60 cents each at a total price of $2,169.60 were required 2 Sections 25450 and 25451 and 25452 of the West's Ann.California Government Code provide: "§ 25450. Contract for construction or repairs exceeding $4,000 "Whenever the estimated cost of construction of any wharf, chute, or other shipping facility, or of any hospital, almshouse, courthouse, jail, historical museum, aquarium, county free library building, branch library building, art gallery, art institute, exposition building, stadium, coliseum, sports arena or sports pavilion or other building for holding sports events, athletic contests, contests of skill, exhibitions, spectacles and other public meetings, or other public buildings or the cost of any repairs thereto exceeds the sum of four thousand dollars ($4,000), inclusive of the estimated cost of materials or supplies to be furnished pursuant to Section 25457, the work shall be done by contract. Any such contract not let pursuant to this article is void." "§ 25451. Plans and specifications "The board of supervisors shall adopt plans, specifications, strain sheets, and working details for the work." "§ 25452. Advertisement for bids; requisite of publication "The board shall cause an advertisement for bids for the performance of the work to be published for at least 10 consecutive times in a daily newspaper, or for at least two consecutive times in a weekly newspaper, of general circulation published in the county. If there is no such newspaper published in the county, the notice shall be given by posting in three public places for at least two weeks." Comment: Any doubt that a tank is a building is removed by the California case of Miller v. McKinnon cited infra. 3 For a more charitable state view toward failure to comply with bidding statutes see Gamewell v. City of Phoenix, 9 Cir., 216 F.2d 928; Id., 9 Cir., 219 F.2d 180, and Greenlee County v. Webster, 30 Ariz. 245, 246 P. 543 4 The contract of November 7 recited that it was made "by and between authorized agent County of Orange Hospital Purchasing Department * * *" Warner signed: "Willis H. Warner, Chairman, Orange County Board of Supervisors." It is clear that except as to his warranty he was signing for Orange County 5 All through the cases runs the statement: "Officers are not personally liable on contracts entered into by them acting in their official capacity unless the contract shows that the officer clearly intended to assume personal liability." See Bowden v. Eubanks, 57 Ga.App. 414, 195 S.E. 582, 584; Lawrence v. Toothaker, 75 N.H. 148, 71 A. 534, 23 L.R.A.,N.S., 428; Murphy v. Panther Oil & Grease Mfg. Co., 181 Miss. 882, 883, 179 So. 879; Sims Printing Co. v. Kerby, 56 Ariz. 130, 106 P.2d 197; Hupe v. Sommer, 88 Kan. 561, 129 P. 136, 43 L.R.A.,N.S., 565; New York & Charleston Steamship Co. v. Harbison, C.C., 16 F. 688; Rogers v. French, 214 Mass. 337, 101 N.E. 988; Coberly v. Gainer, 69 W.Va. 699, 72 S.E. 790 Practically none of the cases end up with liability on the part of the public official, but there seems to be no reported case where the text of the obligation points so strongly to an undertaking to be liable as the words in these contracts above Mr. Warner's signature. One may wonder if Warner's undertaking could be held to be against public policy. The only case considering this particular point seems to be Lapsley v. McKinstry, 1866, 38 Mo. 245, 246. Therein it is said: "In cases of officers acting for and on behalf of the government, the general rule is, that they are not bound personally by contracts made in an official capacity even though they would be by the terms of the contract, if it were an agency of a private nature — Sto. Agency § 302. This rule is established from motives of public policy. But although this is the general rule in relation to public agents, yet it is founded upon a mere presumption, and is liable to be rebutted by circumstances which clearly establish an intention between the parties to the contract to create and rely upon a personal responsibility on the part of a public agent; for there is nothing in the general principles or policy of the law which forbids an agent from waiving his official immunity, and making himself personally responsible. Id. § 306" While the foregoing case is old and may have been written with a quill or an early metal pen, still its logic is compelling. It appeals to us and we believe it would appeal to the California courts. 6 The record does not indicate whether the water system was a self contained unit with its own well or whether the system was connected to an outside source. We cannot say on the record that an emergency existed, but we presume that any urgency would be mainly related to fire hazard at the hospital or the necessity of a reserve supply if the source were temporarily lost It is quite conceivable that no emergency existed until Dixie finished scaling the inside of the tank under the first contract. However, whether the welding and riveting work could be treated as a great emergency would be a question of fact. It does appear that at one time after the work was done, the board itself suggested that Dixie could be paid according to the emergency formula which is a cost plus basis. 7 West's Ann.Cal.Government Code § 25458, in 1956, read as follows: "Repair or replacement of structures in emergency; cost-plus contract "By the unanimous consent of the whole board in cases of great emergency, it may proceed at once to replace or repair any and all structures without adopting the plans, specifications, strain sheets, or working details or giving notice for bids to let contract. The work may be done by day labor under the direction of the board, by contract, or by a combination of the two. If the work is done wholly or in part by contract, the contractor shall be paid the actual cost of material and labor expended by him in doing the work, plus not more than 15 per cent to cover all profits, supervision, use of machinery and tools, and other expenses. No more than the lowest current market prices shall be paid for materials." 8 The West's Ann.Cal.Government Code, No. 25450.5 provides as follows: "Splitting work under contracts to avoid statute prohibited "In any county containing a population of 500,000 or over, it is unlawful to split or separate into smaller work orders or projects any public work project for the purpose of evading the provisions of this article requiring public work to be done by contract after competitive bidding. Every person who wilfully violates the provisions of this section is guilty of a misdemeanor." Apparently this section first appeared in California in 1947. See Cal.Stats. 1947, c. 857, § 2. Most of the California cases on advertising for bids antedate 1947. 9 The official population of Orange County in 1956 was 216,224. West's Ann.Cal. Government Code, § 28020	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/247560/	264 F.2d 744 Luther BAILEY, Appellant,v.Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Appellee. No. 16142. United States Court of Appeals Eighth Circuit. April 3, 1959. Rehearing Denied April 27, 1959. Thad D. Williams, Little Rock, Ark., for appellant. Thorp Thomas, Asst. Atty. Gen. of Arkansas (Bruce Bennett, Atty. Gen. of Arkansas, on the brief), for appellee. Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges. GARDNER, Chief Judge. 1 This appeal is from an order denying appellant's petition for writ of habeas corpus. Appellant, a negro, was charged in the Circuit Court of Pulaski County, Arkansas, with the crime of rape upon a white woman. On the trial before a jury he was convicted and upon a verdict of guilty the court imposed a death sentence as required by the statutes of Arkansas. When the case was called for trial defendant interposed a motion to quash the petit jury panel on the ground that in the selection of the panel negroes had been systematically excluded. On this motion he submitted the testimony of the deputy clerk of the court, who, based on the records of the clerk's office, testified in substance as follows: That his record shows that two negroes were selected by the jury commissioners for the March 1952 term, out of a total of 24. It is the general procedure of this court to select 24 jurors on the regular panel and 12 alternates. These two negroes actually served. There was one negro on the jury panel for the September 1952 term. There were two negroes selected for the March 1953 term. Five negroes served during the September 1953 term; three were on the extra panel and two on the regular panel. For the special panel five jurors were selected out of 21. There is nothing to indicate on the record whether they were white or colored. There were two negroes on the March 1954 term. There were 24 persons on the special panel; only five were selected. The record does not indicate whether the remainder were colored or white. Two negroes were selected on the panel for the September 1954 term. There was a special panel for that term of 100 names; seven persons were selected; they were all white. He did not know whether the remaining people on the list were colored or white. Three negroes served on the March 1955 regular panel. One person was used from the special panel of 100 names. Four negroes were included in the 100. Only one person out of 100 was used on the September 1955 special panel. There were three negroes on the regular panel. Three negroes were selected on the regular panel for the March 1956 term. The first special panel selected has 150 names on it; it does not indicate colored and white. The first 100 on this list were ordered to report this morning; 27 of them are here; none are negroes. "Record of Poll Tax receipts issued in Pulaski County for the years 1954 and 1955. Total number colored (1954) 10,180 14.8% (1955) 8,557 13.3%. Total number white (1954) 58,484 85.2% (1955) 55,980 86.7%." Following this testimony counsel for appellant requested the court to allow the jury commissioners for all the terms from the 1952 March term until the 1956 March term, inclusive, to testify as to the matters and allegations set out in his motion to quash the regular panel and the special panel of petit jurors. To this request the court responded: 2 "The court is going to overrule that motion. The record will reflect what they did." 3 Appellant had requested subpoenaes for certain witnesses which were duly issued and served but he had not prior to the opening of his trial secured subpoenaes for the jury commissioners. At the hearing on motion to quash the panel appellant made no offer to prove to what the jury commissioners would, if called, testify. Following his conviction and sentence he moved for a new trial on various grounds, but did not allege as error the refusal of his request that the jury commissioners be subpoenaed. His motion for new trial being denied, he appealed to the Supreme Court of Arkansas alleging 31 errors but did not allege as error the refusal of the court to order subpoenaes issued for the jury commissioners as witnesses, but did allege error in the overruling of his motion to quash the panel on the ground that in the selection of the petit jury panel negroes had been systematically excluded and also alleged that the evidence was insufficient to prove the guilt of the defendant beyond a reasonable doubt. On the hearing in the instant proceeding for writ of habeas corpus the records of defendant's trial in the state court and on his appeal to the Supreme Court of Arkansas and his application for writ of certiorari to the Supreme Court of the United States were by stipulation made a part of appellant's showing. 4 It appears from the record that shortly after midnight on June 14, 1956 appellant entered the home of the prosecuting witness through a window, ravished the occupant, stole $190 from her purse, and seriously beat and bruised her. In doing so he lost his billfold in her room, and the prosecuting witness' purse was found in appellant's automobile. The evidence of guilt is without substantial dispute. Responding to appellant's assignment that negroes had systematically been excluded from the jury panel, the Supreme Court of Arkansas, Bailey v. State, 227 Ark. 889, 302 S.W.2d 796, 799, said: 5 "We think the court did not err in refusing to allow the jury commissioners to testify. They had not been subpoenaed to appear as witnesses and were not present. Furthermore, after the court had denied his request that they be permitted to testify, appellant failed to show what the jury commissioners would have said had they testified. See Turner v. State, 224 Ark. 505, 275 S.W.2d 24. 6 "Appellant next argues that the above testimony of Louis Rosteck alone was sufficient to show racial discrimination. We do not agree. We think Rosteck's testimony, — which speaks for itself, — does not show an intentional and systematic limitation of Negroes on the jury list." 7 After the Supreme Court of the United States had denied certiorari, appellant proceeded for relief under a so-called post conviction statute, which reads as follows: 8 Act 419 of 1957. "Section 1. Any person convicted of a felony and incarcerated under sentence of death or imprisonment who claims that the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding under this Act to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief from his conviction. * * " 9 In this proceeding he charged that he had been denied rights guaranteed him by the Constitution of the United States in that he had been denied compulsory process. The trial court denied any relief and in doing so, among other things said: 10 "The only question to be determined by this Court is: Was the fact that Bailey was denied compulsory process for the jury commissioners from 1952 to 1956 inclusive, finally passed on or waived in the proceedings resulting in the conviction? 11 "A careful examination of the original record in this case fails to show that the question now attempted to be raised was even mentioned therein, either in the Bill of Exceptions or motion for a new trial. Certainly, even under the broad provisions of Act 419, the record cannot now be amended to include something that was left out of the Bill of Exceptions originally." 12 On appeal from the court's order denying relief the Supreme Court of Arkansas affirmed the decision of the trial court. Bailey v. State, 313 S.W.2d 388, 390. In the course of its opinion affirming the trial court it is said, inter alia: 13 "The defendant was represented by able counsel who had every opportunity to make his record on the point and bring it up on appeal. If he did so, the alleged error was finally litigated. If this was not done, then the alleged error was waived." 14 From this decision appellant applied to the Supreme Court of the United States for a writ of certiorari which was denied, 15 " * * without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court." 16 Bailey v. State, 358 U.S. 869, 79 S. Ct. 101, 3 L. Ed. 2d 101. Following the denial of his petition for writ of certiorari appellant instituted by petition for writ of habeas corpus the proceeding resulting in the order denying his petition from which this appeal is prosecuted. In his petition he seeks relief on the ground: 17 "I. That the Conviction under which the plaintiff is held and was sentenced is void in that he was denied compulsory process for obtaining witnesses in his favor in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. 18 "II. That the petitioner has exhausted all other remedies before filling this petition." 19 On hearing of his petition he did not ask for compulsory process to secure the attendance as witnesses of the jury commissioners nor did he offer to prove what the commissioners' testimony would be if they had been examined as witnesses in his behalf, but as herein observed the petition was presented on the records of the trial and hearing in the state courts. 20 On this appeal appellant urges (1) appellant was denied due process as guaranteed by the Fourteenth Amendment to the United States Constitution, (2) appellant has not waived his Constitutional rights, and (3) appellant has exhausted his state remedies. 21 There is no evidence in the record that the jury commissioners excluded negroes from the petit jury panel, neither is there anything to indicate that the jury commissioners would have testified to anything different from the testimony of the deputy clerk. Neither in the proceedings in the state court nor in the proceedings in the United States District Court was there any offer of testimony as to what the commissioners would testify. There seems to have been a record in the clerk's office which formed the basis of the deputy clerk's testimony. The Supreme Court of Arkansas held that this was insufficient to show a systematic exclusion of negroes from the jury panel and in the absence of any proof or offer of proof as to what the jury commissioners would testify the ruling of the court in declining to have them subpoenaed, if error, would seem to be clearly without prejudice. The ruling of the court was a matter of record and, if error, appellant's remedy was by appeal to the Supreme Court based upon such alleged error. We have consistently held that an application for habeas corpus cannot serve as an appeal. Carruthers v. Reed, 8 Cir., 102 F.2d 933, 939, certiorari denied 307 U.S. 643, 59 S. Ct. 1047, 83 L. Ed. 1523; In re Edwards, 8 Cir., 106 F.2d 537; Buie v. King, 8 Cir., 137 F.2d 495; McCoy v. Pescor, 8 Cir., 145 F.2d 260; Berkoff v. Humphrey, 8 Cir., 159 F.2d 5. Not having urged this alleged error on appeal the error, if any, was waived. Carruthers v. Reed, supra; Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469; Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268. In Brown v. Allen, supra, in a concurring opinion by Mr. Justice Frankfurter it is said [73 S. Ct. 444]: 22 "Of course, nothing we have said suggests that the federal habeas corpus jurisdiction can displace a State's procedural rule requiring that certain errors be raised on appeal. Normally rights under the Federal Constitution may be waived at the trial, Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268, and may likewise be waived by failure to assert such errors on appeal. Compare Frank v. Mangum, 237 U.S. 309, 343, 35 S. Ct. 582, 593, 59 L. Ed. 969. When a State insists that a defendant be held to his choice of trial strategy and not be allowed to try a different tack on State habeas corpus, he may be deemed to have waived his claim and thus have no right to assert on federal habeas corpus. Such considerations of orderly appellate procedure give rise to the conventional statement that habeas corpus should not do service for an appeal. See Adams v. United States ex rel. McCann, supra, 317 U.S. at page 274, 63 S.Ct. at page 239. Compare Sunal v. Large, 332 U.S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982, with Johnson v. Zerbst, 304 U.S. 458, 465-469, 58 S. Ct. 1019, 1023-1025, 82 L. Ed. 1461." 23 After having made his record in the trial court appellant deliberately omitted urging the question which he now seeks to urge, either in his motion for new trial or on appeal. This we think was a waiver and constituted a failure to exhaust his state remedies. It is worthy of note that in the post-conviction proceeding brought by appellant he did not call the jury commissioners to testify, nor did he ask for compulsory process to secure the attendance of these witnesses; neither did he offer to prove what testimony these jury commissioners would have given had they been called as witnesses, nor indeed did he offer any testimony that negroes had systematically been excluded from the petit jury panel. In this connection it is to be noted that the Supreme Court of Arkansas on the second appeal held that appellant had waived his right to claim error on the question he now urges. So likewise in the instant proceeding the United States District Court held there was a waiver. Concerning the question of waiver the trial court said: 24 "While the rule just stated may not be applicable to one of those extraordinary cases in which a substantial claim goes to the very foundation of a proceeding, as in Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543, this is not such a case. Here there is no indication that anyone concerned was trying to prevent the defendant from having a fair trial, or that he was denied a fair trial; he was represented by appointed counsel from the time of his arraignment, more than a month before the trial date, and he was afforded process for certain witneses, the denial of process for the jury commissioners being evidently purely collateral and incidental to the circuit court's determination that the motion to quash should be decided solely upon the basis of the records in the office of the circuit clerk bearing upon the selection of jurors. In its rulings on questions of evidence during the course of the trial proper, and in its instructions to the jury the circuit court appears to have been careful to protect all of the legitimate rights of the petitioner, and the verdict and judgment were supported by the evidence." 25 We have examined the entire record with great care and are convinced that the guilt of the defendant was proved by the evidence beyond a reasonable doubt, and if the ruling denying him compulsory process for the production of the jury commissioners as witnesses was a technical denial of a Constitutional right, there is no proof that he was injured thereby, and he has clearly waived this Constitutional right. In Carruthers v. Reed [8 Cir., 102 F.2d 939], supra, in holding that appellants had waived their Constitutional rights, we said: 26 "Petitioners waived their right to review the judgment of the state court in the regular manner, and habeas corpus in the circumstances cannot be substituted for such review." 27 We are convinced that he had a fair trial. The order appealed from is therefore affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/247561/	264 F.2d 749 Joseph J. RICOTTA, as Trustee of L. E. Kimball ConstructionCo., .inc., Bankrupt, Plaintiff-Appellee,v.BURNS COAL & BUILDING SUPPLY COMPANY, Defendant-Appellant. No. 144, Docket 25280. United States Court of Appeals Second Circuit. Argued Feb. 5, 1959.Decided March 16, 1959. Mark N. Turner, of Woodin & Woodin, Dunkirt, N.Y. (Glenn W. Woodin and Edwin G. O'Connor, or Woodin & Woodin, Dunkirt, N.Y., on the brief), for defendant-appellant. Anthony J. Spann, of Palmer & Spann, Dunkirk, N.Y., for plaintiff-appellee. Before CLARK, Chief Judge, MADDEN, Judge, United States Court of Claims,* and HINCKS, Circuit Judge. CLARK, Chief Judge. 1 Defendant appeals from a judgment, D.C.W.D.N.Y., 162 F. Supp. 214, setting aside as voidable preferences payments totaling $11,863.46 received by it from a bankrupt, of whose estate plaintiff is trustee. Defendant received these payments and an additional $8,979.98, which the trustee did not seek to recover below, within four months of bankruptcy for building materials furnished the bankrupt. The $11,863.46 was for materials delivered prior to four months of bankruptcy, and the balance for later deliveries; all were for goods sold on credit. 2 It is conceded that at the time each payment was made defendant could have filed a materialman's lien for the same debt under N.Y. Lien Law, 3 and 10. By virtue of 67b of the Bankruptcy Act, 11 U.S.C. 107(b), neither the filing nor the enforcement of such a lien would have constituted a preference. Moreover, had the liens been filed, payment merely discharging them, without improving the creditor's position as against the general creditors of the bankrupt, would likewise have been immune from attack. See 3 Collier on Bankruptcy P60.22 and cases cited n. 1 (14th Ed. 1956). It would be absurd to treat differently payments for the same debts obtained without filing liens, and the law does not do so. Consistent with common sense the courts have upheld payments where at the time the payments were made the creditor could have equally protected himself by filing a nonpreferential lien. Greenblatt v. Utley, 9 Cir., 240 F.2d 243; In re Lynn Camp Coal Co., C.C.E.D.Ky., 168 F. 998. 3 Plaintiff seeks to distinguish the cases just cited on the grounds that the creditors there had inchoate liens at the time payment was made and that under the state laws there involved filing merely perfected these already existing liens. Under the New York law here relevant, it is contended, defendant had no lien at all, inchoate or otherwise, prior to filing, but had merely a right to obtain such a lien by filing a notice. So subtle a distinction, if existent, cannot turn aside the compelling thrust of these decisions. Both there and in this case the filing of the lien is permitted by 67b of the Bankruptcy Act, 11 U.S.C. 107(b). The sole purpose of filing these liens is to secure payment. Surely receipt of payment itself should not be less secure than the lien which could have secured it. Moreover, the essence of a preference is that it depletes the bankrupt's estate available to remaining creditors. Bachner v. Robinson, 2 Cir., 107 F.2d 513, 514; Continental & Commercial Trust Sav. Bank v. Chicago Title & Trust Co., 229 U.s. 435, 443-444, 33 S. Ct. 829, 57 L. Ed. 1268. Where the payment merely avoids the bite of a lien which the trustee could not have successfully attacked, no such depletion occurs. Accordingly the ruling below that the payments in question were in their entirety preferential is incorrect. 4 On the present record, however, there remains the possibility that these payments, and the other $8,979.98 received by defendant within four months of bankruptcy as well, may be preferential in part.1 We are unable to determine either as to individual payments or as to the aggregate the value of the property subject to the materialman's liens which defendant could have filed on the date each payment was received. If the amounts it received during the four months prior to bankruptcy exceed that which it could have obtained through the filing and enforcing of liens for the same debts, then to the extent of that excess the eatate available to the general creditors was depleted and the payments preferential. Cf. Perkins v. Lakeport Nat. Bank, D.C.N.H., 139 F. Supp. 898; in re Dibblee, D.C.S.D.N.Y. 1869, 7 Fed.Cas.No.3,884, at 656. Accordingly on remand the trustee may attempt to prove the existence and amount of such excess. 5 Reversed and remanded. * Sitting by designation pursuant to the provisions of 28 U.S.C. 291(a) 1 Defendant states in its brief that 'the sum of $8,979.98 was paid for materials furnished after July 7, 1956 (four months before the date of bankruptcy) and, therefore, concededly not preferential.' But 60a of the Act, 11 U.S.C. 96 (a), requires only that the debt arise prior to the date of payment, not prior to four months of bankruptcy. And while some of the materials delivered during the four months preceding the bankruptcy were paid for within a few days of delivery, any payment later than the date of delivery (making the purchase other than cash) is payment of an antecedent debt under 60a. See 3 Collier on Bankruptcy P60.23 n. 2 (14th Ed. 1956). On the proceedings following the remand of this case the trustee of course will not be precluded from broadening his attack to include these payments if he sees fit to do so	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2504437/	720 S.E.2d 459 (2011) STATE v. PEREZ-ROMAN. No. COA11-545. Court of Appeals of North Carolina. Filed December 20, 2011. Case Reported Without Published Opinion No error in part; remanded in part.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4467544/	Matter of Hopkins v Hopkins (2019 NY Slip Op 09267) Matter of Hopkins v Hopkins 2019 NY Slip Op 09267 Decided on December 24, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 24, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ. 2017-11933 2017-11934 2017-11935 (Index No. F-06017-17/17A, F-06018-17/17A) [1]In the Matter of Lisa Ann Hopkins, respondent, vSimon Hopkins, appellant. Simon Hopkins, Leicestershire, United Kingdom, appellant pro se. Virginia Foulkrod, White Plains, NY, for respondent. DECISION & ORDER In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of disposition of the Family Court, Westchester County (Esther Furman, S.M.), dated August 30, 2017, (2) an order of the same court also dated August 30, 2017, and (3) an order of the same court (Nilda Morales Horowitz, J.) dated October 6, 2017. The order of disposition determined that the father willfully violated a prior order of support. The order dated August 30, 2017, directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $84,602.23. The order dated October 6, 2017, denied the father's objections to the order of disposition and the order dated August 30, 2017. ORDERED that the appeals from the order of disposition and the order dated August 30, 2017, are dismissed, without costs or disbursements; and it is further, ORDERED that the order dated October 6, 2017, is affirmed, without costs or disbursements. The father and the mother have two children together and were divorced in April 2016. The divorce judgment obligated the father to pay spousal and child support to the mother. In May 2016, the mother filed a petition alleging that the father had failed to comply with his support obligations. On August 30, 2017, following the parties' appearance and upon their consent, a Support Magistrate entered an order of disposition, finding that the father was in willful violation of the support order and that he owed the mother $84,602.23 in arrears, as well as an order directing the entry of a money judgment in that amount in favor of the mother and against the father. The father filed objections to the Support Magistrate's August 30, 2017, orders. In an order dated October 6, 2017, the Family Court denied the father's objections on the ground that he had failed to file an affidavit of service together with the objections establishing that the objections had been properly served on the mother. The father appeals from the Support Magistrate's August 30, 2017, orders and the Family Court's October 6, 2017, order. The appeals from the Support Magistrate's August 30, 2017, orders must be dismissed. No appeal lies from an order entered on consent, since a party who consents to an order is not aggrieved thereby (see CPLR 5511; Matter of Rinaldi v Faiella, 172 AD3d 871; Matter of [2]Schiavone v Mannese, 169 AD3d 1052, 1053; Matter of O'Sullivan v Schebilski, 138 AD3d 1170, 1172; Matter of Reilly v Reilly, 49 AD3d 883, 884). To the extent that the father contends that the orders inaccurately represent the terms to which he consented and/or that his consent was involuntary, his remedy is to move in the Family Court to vacate or resettle the orders (see Matter of Rinaldi v Faiella, 172 AD3d at 871; Matter of O'Sullivan v Schebilski, 138 AD3d at 1172; Matter of Reilly v Reilly, 49 AD3d at 884). We agree with the Family Court's denial of the father's objections to the Support Magistrate's August 30, 2017, orders on the ground that the father failed to file an affidavit of service reflecting that the objections were properly served on the mother. Family Court Act § 439(e) provides, in pertinent part, that "[a] party filing objections shall serve a copy of such objections upon the opposing party," and that "[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal." Further, by failing to file proof of service of a copy of his objections upon the mother, the father failed to fulfill a condition precedent for Family Court review of his objections and, consequently, failed to exhaust the Family Court procedure for review of his objections (see Matter of Carroll v Brodsky, 168 AD3d 727, 728; Matter of Ndukwe v Ogbaegbe, 150 AD3d 858; Matter of Semenova v Semenov, 85 AD3d 1036, 1037). As such, his challenges to the Support Magistrate's August 30, 2017, orders are not reviewable on the appeal from the Family Court's October 6, 2017, order (see Matter of Carroll v Brodsky, 168 AD3d at 728; Matter of Ndukwe v Ogbaegbe, 150 AD3d at 858; Matter of Semenova v Semenov, 85 AD3d at 1037). The father's contentions relating to an order of the Family Court dated December 1, 2017, are not properly before us. DILLON, J.P., BALKIN, CONNOLLY and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	01-03-2023	12-24-2019
https://www.courtlistener.com/api/rest/v3/opinions/500153/	837 F.2d 475 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Roy FRENCH, Petitioner-Appellant,v.Bill SEABOLD, Warden, Respondent-Appellee. No. 87-5488. United States Court of Appeals, Sixth Circuit. Jan. 25, 1988. Before ENGEL, CORNELIA G. KENNEDY, and KRUPANSKY, Circuit Judges. ORDER 1 This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not necessary. Fed.R.App.P. 34(a). 2 This pro se Kentucky state prisoner appeals the district court's judgment adopting, over petitioner's timely objection, the magistrate's report recommending dismissal of his 28 U.S.C. Sec. 2254 habeas corpus petition. 3 Petitioner was convicted, by a jury, of voluntary manslaughter, willful murder, and two counts of malicious shooting and wounding. He was sentenced to life on the murder charge, and twenty-one years on each of the three other charges. In his petition, he argued that he did not knowingly waive his right to appeal and he was denied effective assistance of counsel. Upon review, we conclude the district court properly dismissed the petition. 4 Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit, for the reasons set forth in the magistrate's report dated January 22, 1987.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/544076/	907 F.2d 150 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Michael "Mickey" ANTHONY, Plaintiff-Appellant,v.Harold WONNELL; William Clark; Twyford & Donahey; OhioBar Association; Columbus Bar Assoc.; Ronald J. O'Brien;Earl Smith; Dwight Joseph; Anthony J. Celebrezze, Jr.,Attorney General; Ohio Supreme Court; Richard F. Celeste,Governor; Dana Rinehart, Defendants-Appellees. No. 89-3228. United States Court of Appeals, Sixth Circuit. July 1, 1990. Before MERRITT, Chief Judge and KEITH and NATHANIEL R. JONES, Circuit Judges. ORDER 1 Michael "Mickey" Anthony appeals a judgment of the district court which dismissed his complaint. He now moves for a temporary restraining order and to schedule the appeal for oral argument. Based upon review of the record and the parties' briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 2 Anthony filed a complaint in the United States District Court for the Southern District of Ohio. Although generally difficult to discern from the face of the complaint, the basis of Anthony's cause of action lay in his involvement in a number of civil and criminal actions in the Ohio state courts which commenced sometime in the early 1980's. Anthony further related that he was dissatisfied with the results of those proceedings which he ascribed to a conspiracy among defendants to deprive him of his rights under a number of federal statutes. Moreover, Anthony alleged that he reported those violations to the remaining defendants, but those individuals or organizations refused to investigate or act upon his grievances. As relief, Anthony requested an injunction, a declaratory judgment and over $41 million in monetary damages. Defendants responded to the complaint by filing a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted that motion and entered judgment in favor of defendants. Anthony then filed this appeal. 3 After a careful consideration of the record, this court has concluded that the district court did not err in dismissing the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826 (1984); Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir.1982), cert. denied, 460 U.S. 1086 (1983). Accordingly, the motions for a temporary restraining order and to schedule the appeal for oral argument are denied and the district court's final judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/410904/	692 F.2d 769 ***U. S.v.Wilde 81-6194 UNITED STATES COURT OF APPEALS Eleventh Circuit 11/3/82 1 S.D.Fla. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/7023658/	JUSTICE GREEN delivered the opinion of the court: On June 16, 1987, and during the administration of the estate of Emma Lucille Reeser Lewis in the circuit court of McLean County, petitioner Marilyn Webb, a legatee under the will of that decedent, filed a petition in that proceeding to recover assets. The respondent to that petition was Jerry Reeser, who was then serving as executor in that estate. In dispute was the ownership of two certificates of deposit (CDs), the signature cards for which set forth a statutory joint tenancy (Ill. Rev. Stat. 1985, ch. 17, par. 3304 — 8 (formerly Ill. Rev. Stat. 1983, ch. 17, par. 3101)) in the decedent and respondent. After an evidentiary hearing, the court entered an order on April 11, 1989, (1) finding the decedent had not made a valid lifetime gift of any interest in the certificates to respondent; and (2) ordering the certificates to be treated as an asset of the estate. Respondent has appealed. The heart of this appeal concerns the operation of the presumption of gift which arises from the creation of a statutory joint tenancy previously described. (Murgie v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470; Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850.) Respondent maintains on appeal that (1) the evidence was insufficient, as a matter of law, to negate the presumption the decedent made a gift to him of a survivorship interest in the CDs; and (2) the court erred in considering certain of his testimony in a discovery deposition as an admission. We need not consider the latter contention because we hold the evidence failed, as a matter of law, to overcome the presumption of gift. Accordingly, we reverse. The evidence showed (1) petitioner and respondent were two of the four heirs and surviving children of the decedent; (2) decedent died testate on February 2, 1986; (3) the value of the probated estate absent the two CDs was approximately $500,000; (4) after small gifts to grandchildren, the remainder of the estate was divided equally among the children; (5) the CDs were in the face amounts of $57,827.45 and $35,000 and bore dates of January 7, 1982, and October 6, 1982, respectively; and (6) respondent had contributed nothing toward the purchase of the CDs. Most of the evidence upon which petitioner relied to rebut the presumption of gift of the CDs came from the discovery deposition of respondent. There, he stated his mother had asked him to sign the signature card for the two accounts, and he had done so. However, he stated he had no knowledge concerning the meaning of those cards at the time he signed them and further acknowledged he first learned he was named a joint tenant of those documents when he opened his mother’s lock box after her death. He admitted he had had no access to her lock box during her lifetime, and she received the income from the certificates. He further testified in the deposition that, during the last four years of his mother’s life, he was an authorized signatory on her checking account and helped her pay her bills from that account either by signing checks or filling them out for her signature. He indicated his mother had numerous other accounts and CDs which stood in her name alone. Respondent’s testimony at the evidentiary hearing was more favorable to him. At that time he testified that, before signing the signature cards, he “skimmed the writing on them and understood the purpose of the cards was to make him a joint tenant.” He also stated his mother told him she was “putting [his] name on some [CDs],” and, based on prior gifts she had made to him, he had reason to believe she was making a gift to him. Respondent also stated at the hearing that, after his name was placed on the signature cards, he occasionally saw items relating to the CDs, such as statements of interest paid. Respondent testified that, when, upon his deposition, he stated he first learned of the joint tenancy after his mother’s death, he meant he did not know he would receive the CDs upon her death. He further stated he had forgotten about his name being on the signature cards by that time. Respondent also testified that during his mother’s last 10 years she lived approximately two blocks from him and he saw her three or four times a week. He indicated she wanted him to live close by her, and they had a very close relationship. On the other hand, he stated his mother and petitioner “fought like cats and dogs,” and his other sisters seldom helped his mother. In Murgic and Wubbena, the supreme court clarified the law in regard to statutory provisions which create interest in intangible personalty containing rights of survivorship. The substance of these holdings was (1) the rights of survivorship are created by the execution of the various instruments provided in the statute in conformity with the provisions of the statute; (2) following common law procedures necessary to create rights of survivorship was no longer necessary; (3) compliance with the statutory requirements creates a presumption that those furnishing consideration for the creation of such interests intend to make a gift to those who furnish less than their share or no consideration; and (4) “courts may look behind the form of the transaction to determine the parties’ rights,” but, in doing so, “the burden is upon one questioning the gift to overcome the presumption by clear and convincing proof.” Murgic, 31 Ill. 2d at 589, 202 N.E.2d at 471-72. After its decision in Murgic, the supreme court decided Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872, and Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128, by which the “bursting bubble” or Thayer theory of presumptions in civil cases has been adopted in this State. Under that theory, if the underlying facts which give rise to the presumption are established, a burden is placed on the party against whom the presumption operates to put forth sufficient evidence to rebut the presumption. If sufficient rebuttal evidence is presented, the presumption vanishes. The determination as to the sufficiency of the rebuttal evidence is a determination for the court to make. The Franciscan Sisters court held the evidence required to rebut a presumption “is not determined by any fixed rule” but that, “[i]f a strong presumption arises, the weight of the evidence brought in to rebut it must be great.” Franciscan Sisters, 95 Ill. 2d at 463, 448 N.E.2d at 877. The presumption of donative intent arising from compliance with statutory procedures for creating a survivorship interest in intangible assets is a civil presumption, and, thus, it is subject to the “bursting bubble” theory. As the precedential cases have required clear and convincing evidence to rebut the presumption, that is the logical standard to apply in determining whether the “bubble” had burst here, thereby negating the presumption. The record does not indicate whether the trial court applied that theory here. Whether it was applied makes little difference, however, because, regardless of whether we view the evidence to determine whether the bubble burst or whether we merely pass on the question of the sufficiency of the proof to rebut the presumption under some other theory of presumptions, we conclude the determination of the trial court cannot stand. Lack of donative intent on the part of the decedent was not shown by clear and convincing evidence, and, if any effect is to be given to the presumption, the award of the two CDs to the estate is contrary to the manifest weight of the evidence. The evidence that the decedent complied with statutory requirements in setting up the accounts with a purported right of survivor-ship in respondent is undisputed. In examining the facts presented to rebut the presumption of gift, we must recognize the trial court could have interpreted that testimony in a way most favorable to petitioner. From the deposition testimony, the court could have concluded respondent knew little about the existence of the CDs and his rights therein until after the decedent’s death. The evidence was undisputed he contributed nothing toward their creation and never exercised any authority or control over them. The court could properly have disbelieved respondent’s testimony his mother told him she was putting his name on some CDs. In support of her contention the evidence here supported the circuit court’s determination, petitioner relies upon decisions in the cases of In re Estate of Abbot (1987), 157 Ill. App. 3d 289, 510 N.E.2d 619, In re Estate of Friedman (1984), 123 Ill. App. 3d 82, 462 N.E.2d 692, and In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 388 N.E.2d 431. We conclude all of those cases present factors not present here. The Abbot case concerned a citation to obtain a bank account from one of a decedent’s heirs whose name was listed on that account as a joint tenant. The trial court had admitted testimony by heirs who would take from his estate that the decedent had made statements (1) indicating the joint bank accounts in question were created so that, if anything happened to him, the joint owner could pay his bills; and (2) that he wanted any funds left over to be shared equally. The appellate court agreed this testimony was barred by the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8—201) (Abbot, 157 Ill. App. 3d at 292, 510 N.E.2d at 621) but deemed the error harmless because other evidence of substance was produced which would support the trial court’s determination. As here, some evidence there showed the respondent did not believe a gift was being made to her, and she had little knowledge of what was in the account. However, there, unlike here, the joint account was created by the decedent just before he left for a hospital for surgery for a cancerous condition which resulted in his death some seven months later. Evidence also indicated that, after the death, the respondent used some of the money to pay her father’s bills and then sent to each of the other heirs a check for $5,000, saying she was following her father’s wishes. The total amount in the two accounts in question was approximately $90,000. The appellate court also noted that, there, unlike here, had the respondent’s right of survivorship been- upheld, she would receive almost all of the decedent's property, and the remaining heirs would receive almost nothing. This was deemed to be an outcome the decedent would not likely have desired. In Friedman, a similar type of citation proceeding was involved in regard to a joint tenancy bank account, and the appellate court upheld the trial court’s ruling that the account belonged to the estate of the decedent. There, a mother, while hospitalized, requested her daughter to set up a joint account. The decedent was in and out of hospitals thereafter until she died some three years later. Several joint tenancy accounts with the daughter were set up during this time. The respondent did make two withdrawals for her own benefit during the existence of the accounts, but, unlike here, the respondent made numerous withdrawals at the request of the decedent and for the decedent’s benefit. A similar dispute over rights of survivorship was involved in Guzak, where the appellate court also affirmed a circuit court determination the account belonged to the estate. There, also, the decedent was a parent, and the dispute arose among his children. The evidence showed the account had been held by the decedent and his wife until her death in 1944, and, in 1969, the name of respondent, a son, was added as a joint tenant. The opinion indicated the father stated at that time the son was being so named “in case anything happened to decedent.” (Guzak, 69 Ill. App. 3d at 554, 388 N.E.2d at 433.) Respondent lived with his father and sometimes made deposits, but the father kept the passbook. Another child testified she had made some deposits to the account for her father and had kept the passbook. She further testified that, when her father was hospitalized for the last time, he told her that a trust account he held was for respondent. Other evidence indicated respondent had admitted after his father’s death that the account belonged to the estate. In the case of In re Estate of Gibbons (1978), 65 Ill. App. 3d 314, 382 N.E.2d 585, an uncle had lived with his niece and her husband for 10 years and had his niece sign signature cards for two joint tenancy bank accounts. In regard to one account, the niece periodically posted the interest in the account book and treated the interest as hers for income-tax purposes, while she did nothing of that nature in regard to the other account; she conceded at trial that the latter account might have been created for convenience purposes. The trial court agreed and held the latter account belonged to the estate. The appellate court reversed, indicating the niece’s lack of control over the second passbook and her lack of knowledge as to why the account was created was insufficient as a matter of law to overcome the presumption of donative intent. Citing Abbot, Friedman and Guzak, petitioner maintains the relationship between the size of the estate and the sums in the survivor-ship account bears upon the likelihood of donative intent. In Abbot, the court indicated a donative intent on the part of the decedent was lacking because he would have been unlikely to have wanted one heir to receive almost all of his assets. Here, if respondent is entitled to the approximately $90,000 represented by the two CDs, some $500,000 will still be available to distribute to the four children. The decedent could well have intended to favor the child closest to her by giving him the two CDs while still giving substantial benefits to the others. Unlike in the cases cited by petitioner, no direct indication is given here that the decedent had any reason to place respondent’s name on the CDs for her convenience. She had a checking account which she used to pay her bills. She permitted respondent access to that account for purposes of handling her affairs. Thus, the only evidence giving any indication of lack of donative intent upon the part of the decedent is the evidence he exercised no control over the CDs and the fact he did not consider he was the owner. While those factors have been held in some cases to be of significance, no case has been called to our attention where those factors have alone been held to be sufficient to support a determination the account is an asset of the decedent’s estate. Quite often a person creating a joint account as a gift may hope the donee, joint owner, will not use the asset until the death of the donor and, thus, keep knowledge and control of the account from the donee, while one creating such an account for his or her convenience will give the joint owner more knowledge about, and control over, the account. In any event, the Gibbons court held that lack of knowledge upon the part of the surviving joint tenant of the existence of a gift and lack of control over the instruments of ownership failed, as a matter of law, to support a determination no gift was made. We deem that to also be the case here. As we have stated, we need not pass on the question of whether the court erred in admitting into evidence portions of respondent’s discovery deposition. Supreme Court Rule 212 provides, as petitioner has stated, discovery depositions may be used “as an admission made by a party.” (See 107 Ill. 2d R. 212(a)(2).) The hearsay exception of an admission by a party opponent involved here does not require that the admission be against the interest of the party, and any relevant admission is admissible. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §802.1, at 525 (4th ed. 1984).) We note the statements contained in respondent’s discovery deposition admitted certain matters which were relevant to the issue of the donative intent of the decedent. For the reasons stated, we reverse the judgment from which appeal is taken. Reversed. KNECHT, P.J., and McCULLOUGH, J., concur.	01-03-2023	07-24-2022
https://www.courtlistener.com/api/rest/v3/opinions/590098/	974 F.2d 170 Garrisonv.Collins NO. 91-5062 United States Court of Appeals,Fifth Circuit. Aug 27, 1992 1 Appeal From: E.D.Tex. 2 REVERSED.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/560712/	932 F.2d 958 Biggs (Wayne, Melba Canegata)v.Virgin Islands Board of Land Use Appeals NO. 90-3575 United States Court of Appeals,Third Circuit. APR 29, 1991 Appeal From: D.V.I., Brotman, J. 1 AFFIRMED. Honorable Stanley S. Brotman, United States District Judge for the District of New Jersey sitting	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2504443/	332 F.Supp.2d 584 (2004) ARTHUR GLICK TRUCK SALES, INC., Plaintiff, v. H.O. PENN MACHINERY CO., Caterpillar, Inc. Defendants. No. 04 CIV. 3988(SCR). United States District Court, S.D. New York. July 30, 2004. 585 Gerald Orseck, Orseck Law Offices, Liberty, NY, Michael Davidoff, Drew, Garigliano & Davidoff, Monticello, NY, Gerald Orseck, Orseck Law Offices, Liberty, NY, for Plaintiff. Eva Marie Ciko, Shazneen Rabadi Gandhi, Kirkpatrick & Lockhart LLP(Nyc), New York City, Aylin Abin, James H. Keale, Sedgwick, Detert, Moran & Arnold LLP, Newark, NJ, for Defendants. MEMORANDUM DECISION AND ORDER ROBINSON, District Judge. This case was brought on May 6, 2004 by Arthur Glick Truck Sales, Inc. ("Truck Sales") in Supreme Court in Sullivan County. Truck Sales asserted eight causes of action against defendants H.O. Penn Machinery Co., ("H.O.Penn") and Caterpillar, Inc. ("Caterpillar"). One claim sought money damages for violation of 15 U.S.C. § 1221 et seq., known as the Federal Automobile Dealers' Day in Court Act. Another sought injunctive relief to prevent the cancellation of its contract with H.O. Penn. Truck Sales obtained a temporary restraining order preventing cancellation of the contract in Supreme Court. On May 26, 2004, H.O. Penn removed the case to federal court and made motions to dismiss and in opposition to the preliminary injunction; Caterpillar has made similar motions. The defendants argue that the contract included a termination clause which they have every right to exercise, and that Truck Sales was acting outside the boundary of the contract in any case. The case was validly removed under 28 U.S.C. 1441, which permits removal to federal court of civil actions brought in state court that involve claims in which district courts have original jurisdiction.[1] Federal courts have original jurisdiction over cases involving federal questions, such as those posed under the Federal Automobile Dealer's Day in Court Act. 28 U.S.C. 1331. On June 2, 2004, plaintiff filed a motion for remand and a stay of all proceedings pending resolution of that motion. Defendants opposed the motion. In its reply brief, Truck Sales voluntarily withdrew its claim under the Federal Automobile Dealers' Day in Court Act and argued that, as no federal claim was pending, the case should be remanded. Once a case has been validly removed under 28 U.S.C. 1441, a District Court may exercise supplemental jurisdiction over remaining non-federal causes of action that arise from the same case or controversy. 28 U.S.C. 1367(a). Supplemental jurisdiction is not mandatory. A district court may decline to exercise supplemental jurisdiction if: 1) the claim raises a novel or complex issue of State law, 2) the claim substantially predominates over the claim or claims over which 586 the district court has original jurisdiction, 3) the district court has dismissed all claims over which it has original jurisdiction, or 4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. 1367(c). The concept of supplemental jurisdiction, codified in 28 U.S.C. 1367 in 1990, has its origins in the judicial doctrine of pendent jurisdiction, discussed by the United States Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). In Gibbs, the Supreme Court held that "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law," 383 U.S. at 726, 86 S.Ct. 1130. "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine judicial economy, convenience, fairness, and comity will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). In 2003, the Second Circuit discussed the appropriateness of a district court's exercise of supplemental jurisdiction when there are no federal causes of action. See Valencia v. Sung M. Lee, 316 F.3d 299 (2d Cir.2003). In Valencia the plaintiffs conceded that they had no viable federal claims in October 1998. 316 F.3d at 303. Although most pretrial discovery had been completed, the Second Circuit describes this as a relatively early stage of the case, as no substantive motions had been filed, no judicial opinions had been issued, and the case was not yet ready for trial. 316 F.3d at 306. The defendant's motion for summary judgment was not made until 1999; the district court's opinion was not filed until June 1999; trial did not take place until July and August 2000; and the district court's dispositive opinion was not filed until December 2000. 316 F.3d at 307. The Second Circuit held that "[g]iven plaintiffs' abandonment of all federal claims in this case long before any decision on the novel and complex issues of state law became necessary, we conclude that the district court's exercise of supplemental jurisdiction to decide plaintiffs' state-law claims against the [defendant] was an abuse of discretion." 316 F.3d at 308. In this case, the plaintiffs abandoned their sole federal claim before the Court decided the fully submitted motions for a preliminary injunction and to dismiss. No claims remain in which this court has original jurisdiction. Under Valencia, 28 U.S.C. § 1367(c), and in the interest of comity and judicial economy, the case should be remanded. Defendant H.O. Penn argues that the fully submitted motion for a preliminary injunction should be decided before the motion to remand. It alleges that courts (except in labor cases) have traditionally decided motions for preliminary relief before resolving questions of federal jurisdiction, and notes that courts have considered the probability that there is a basis for jurisdiction as one of the factors in determining whether preliminary relief should issue. See A.H. Bull S S Co. v. Nat'l Marine Engineers' Beneficial Ass'n, 250 F.2d 332, 337-38 (2d Cir.1957). It acknowledges, however, that no authority requires a federal court to decide a motion for a preliminary injunction prior to a motion for remand. In this case, prioritizing the jurisdictional question and deciding the motion to remand as the action of this *587 court is appropriate, because no federal question remains in the case. The case is remanded to New York State Supreme Court. It is So Ordered. NOTES [1] Removal was not based on diversity of parties, because there is not complete diversity in this case: both plaintiff and defendant H.O. Penn Machinery Co. are New York corporations.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/223634/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REBECCA A. RICKLEY,  Plaintiff-Appellant, No. 09-56498 v. D.C. No. COUNTY OF LOS ANGELES; WILLIAM  2:08-cv-04918- HOWARD; KEVIN PETROWSKY; SVW-AGR SOHEILA KALHOR; MICHAEL TRIPP; OPINION RAJESH PATEL, Defendants-Appellees.  Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted February 10, 2011—Pasadena, California Filed August 19, 2011 Before: Michael Daly Hawkins and Raymond C. Fisher, Circuit Judges, and Mark L. Wolf, District Judge.* Opinion by Judge Fisher The Honorable Mark L. Wolf, Chief United States District Judge for the District of Massachusetts, sitting by designation. 11191 11194 RICKLEY v. COUNTY OF LOS ANGELES COUNSEL Natasha Roit (argued), Malibu, California; Christopher L. Campbell, Los Angeles, California, for the appellant. Andrea Sheridan Ordin, County Counsel, and Casey C. Yourn, Deputy County Counsel, Office of County Counsel, Los Angeles, California; Deborah J. Fox (argued) and Philip A. Seymour, Meyers, Nave, Riback, Silver & Wilson, Los Angeles, California, for the appellees. RICKLEY v. COUNTY OF LOS ANGELES 11195 OPINION FISHER, Circuit Judge: Pursuant to 42 U.S.C. § 1988, we hold that a successful civil rights plaintiff may recover a reasonable attorney’s fee for legal services performed by her attorney-spouse. BACKGROUND1 Rebecca Rickley filed this federal civil rights action against the County of Los Angeles and individual County employees (collectively, the “County”), alleging violations of her consti- tutional rights to free speech and equal protection. She alleged that the County harassed her in retaliation for her complaints about the County’s failure to enforce building and safety codes against her Malibu neighbors. Rickley and Natasha Roit are legally married and co-own property in Malibu where they both reside. Their home, as well as their neighbors’ homes, are located in an area prone to landslides. Since at least 2001, Rickley and Roit have been complaining to the County regarding two of their neighbors’ illegal construction and land use. Frustrated by the County’s failure to stop the violations, Rickley and Roit, as co- plaintiffs, brought a civil action against their neighbors. After that civil action, which resulted in a permanent injunction against the neighbors, Rickley and Roit continued to complain to the County about their neighbors’ building code violations, and the County continued to fail to act. A majority of the complaints to the County were lodged by Roit, although Rick- ley says that Roit made the complaints in her capacity as Rickley’s attorney. 1 The facts are derived from the district court’s fee order and the parties’ summary judgment briefs. 11196 RICKLEY v. COUNTY OF LOS ANGELES Rickley, as sole plaintiff, then filed this 42 U.S.C. § 1983 action against the County, alleging the County took actions against her and Roit in retaliation for her complaints. Rickley and the County eventually reached a settlement that reserved the determination of attorney’s fees and costs to the district court. As the prevailing party, Rickley filed a motion to recover $145,930 in attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, including $124,510 for the legal work performed by lead attorney Roit and $21,420 for work performed by co-counsel Christopher L. Campbell. The district court granted Rickley’s request for attorney’s fees for Campbell in the amount of $13,770, but denied the request with respect to Roit. In denying fees for Roit’s legal services, the district court relied on Kay v. Ehrler, 499 U.S. 432 (1991), and Ford v. Long Beach Unified School District, 461 F.3d 1087 (9th Cir. 2006). In Kay, the Supreme Court held that § 1988 does not permit an award of attorney’s fees to attorney-plaintiffs who represent themselves in successful civil rights actions. See Kay, 499 U.S. at 437-38. In Ford, we extended Kay and held that the Individuals with Disabilities Education Act (IDEA) does not permit an award of attorney’s fees to attorney- parents who represent their children in proceedings under the IDEA. See Ford, 461 F.3d at 1090-91. We said that permit- ting fees to be awarded for legal services rendered by attorney-parents would undermine the primary purpose of the IDEA’s fee-shifting provision, which is to encourage parents “to seek independent, emotionally detached counsel for their children’s IDEA actions.” Id. at 1091 (quoting Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 131 (3d Cir. 2001)) (internal quotation marks omitted). From Kay and Ford, the district court derived a general principle that attor- ney’s fees may not be awarded under § 1988 other than for legal services performed by an “independent, emotionally detached counsel.” RICKLEY v. COUNTY OF LOS ANGELES 11197 The court concluded that Roit, as Rickley’s spouse and as the co-owner of the property subject to the litigation, could not satisfy this standard. The court noted that, although Rick- ley is the named plaintiff in the action, a majority of the com- plaints to the County were submitted by Roit. The court also noted that all of the County’s alleged retaliatory actions were directed at Rickley and Roit jointly, and that Roit stood to gain in equal measure with Rickley from any benefits obtained through the litigation. The court accordingly con- cluded, under Kay and Ford, that Rickley was barred from recovering fees for Roit’s legal work, explaining: “as the Ninth Circuit found that a parent-attorney cannot receive attorneys’ fees under IDEA when she is representing her child because the parent lacks independence, the Court finds that in the current situation, Roit cannot receive attorney’s fees because she is not an ‘independent emotionally detached coun- sel.’ ”2 Rickley timely appealed. STANDARD OF REVIEW “Awards of attorney’s fees are generally reviewed for an abuse of discretion.” Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005). “However, we only arrive at discre- tionary review if we are satisfied that the correct legal stan- dard was applied and that none of the district court’s findings of fact were clearly erroneous.” Id. We review questions of law de novo. See id. 2 The court also noted that Roit was a percipient witness to events giving rise to the lawsuit, creating the potential for a conflict of interest if Roit, as counsel, was called to testify at trial. The court raised this concern at a preliminary hearing, prompting the parties to enter into a stipulation wherein Roit agreed not to testify and to waive whatever rights she might have as a plaintiff or co-plaintiff and, in exchange, the County waived any right it might have to seek Roit’s disqualification as trial counsel. 11198 RICKLEY v. COUNTY OF LOS ANGELES DISCUSSION The sole issue on appeal is whether the district court prop- erly denied Rickley an award of attorney’s fees for Roit’s legal services. We hold that the district court erred. I. Section 1988 provides that, “[i]n any action or proceeding to enforce a provision of [42 U.S.C. § 1983], the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). Here, relying on Kay and Ford, the district court construed § 1988 as precluding an award of attorney’s fees for services per- formed by an attorney lacking independence and emotional detachment, ruling that “Roit cannot receive attorney’s fees because she is not an ‘independent emotionally detached counsel.’ ” The court misconstrued the applicable precedents. [1] In Kay, 499 U.S. at 437-38, the Supreme Court held that § 1988 does not permit awards of attorney’s fees to pro se plaintiffs who, being attorneys, represent themselves in successful civil rights actions. The Court identified § 1988’s “overriding statutory concern” as “the interest in obtaining independent counsel for victims of civil rights violations.” Id. at 437. The Court described the object of the statute as “ensur- ing the effective prosecution of meritorious claims,” id., and held that awarding attorney’s fees to pro se attorney-plaintiffs would undermine that purpose by creating a disincentive for plaintiffs to retain independent — and hence effective — counsel: Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical con- siderations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of pre- RICKLEY v. COUNTY OF LOS ANGELES 11199 senting the evidence, cross-examining hostile wit- nesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that “a lawyer who rep- resents himself has a fool for a client” is the product of years of experience by seasoned litigators. A rule that authorizes awards of counsel fees to pro se litigants — even if limited to those who are members of the bar — would create a disincentive to employ counsel whenever such a plaintiff considered himself competent to litigate on his own behalf. The statutory policy of furthering the successful prosecu- tion of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case. Id. at 437-38 (footnote omitted). The Court accordingly adopted a per se rule, categorically precluding an award of attorney’s fees under § 1988 to a pro se attorney-plaintiff. [2] In Ford, 461 F.3d at 1090-91, we held that parents per- forming legal services for their children are not entitled to attorney’s fees under the IDEA.3 We reasoned that, “[l]ike an attorney appearing pro se, a disabled child represented by his or her parent does not benefit from the judgment of an inde- pendent third party.” Id. at 1091. Quoting the Third Circuit’s decision in Woodside v. School District of Philadelphia Board of Education, 248 F.3d 129, 131 (3d Cir. 2001), and the Fourth Circuit’s decision in Doe v. Board of Education, 165 3 The IDEA contains a fee-shifting provision similar to § 1988. The cur- rent version, which is materially indistinguishable from the version in effect at the time we decided Ford, provides that, “[i]n any action or pro- ceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i) (2006). See Ford, 461 F.3d at 1090 n.5. 11200 RICKLEY v. COUNTY OF LOS ANGELES F.3d 260, 263 (4th Cir. 1998), we observed that “emotionally charged parent[s] . . . are generally incapable of exercising sufficient independent judgment on behalf of their children to ensure that reason, rather than emotion, will dictate the con- duct of the litigation.” Ford, 461 F.3d at 1091 (citations and internal quotation marks omitted). We recognized that, “on some occasions, attorney-parents will provide independent, reasoned representation to their children.” Id. But we con- cluded that a per se bar on recovery of fees — “which pre- sumes irrefutably that parents and guardians are always unable to provide independent, dispassionate legal advice — w[ould] better serve Congress’ intentions.” Id. Echoing Kay, we held that “[t]he statutory policy of furthering successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain [independent] counsel in every case.” Id. (alteration in original) (quoting Kay, 499 U.S. at 438) (internal quotation marks omitted). We therefore held that the IDEA precludes an award of attorney’s fees to attorney-parents representing their children. In addition to Ford, we have applied Kay on two other occasions. In Elwood v. Drescher, 456 F.3d 943, 946-48 (9th Cir. 2006), we adopted a per se rule precluding an award of attorney’s fees under § 1988 to pro se attorney-defendants. We decided that certain of the policies underlying Kay applied not only to plaintiffs who successfully represent them- selves in civil rights actions, but also to defendants who do so. In Weissburg v. Lancaster School District, 591 F.3d 1255, 1260 (9th Cir. 2010), which we decided after the district court’s decision here, we declined to extend Kay and Ford “to a grandparent who provides legal representation to his or her grandchild in proceedings brought under the IDEA.” We rea- soned that, “[u]nlike parents, who have a special role under the IDEA as the enforcers of their children’s education rights, other relatives are not so uniquely invested in IDEA proceed- ings.” Id. (footnote omitted). We therefore held that the plain- tiffs, who were the parents of a child with special education RICKLEY v. COUNTY OF LOS ANGELES 11201 needs, were eligible to receive an award of attorney’s fees for the legal representation provided by the child’s attorney- grandmother in IDEA proceedings. See id. at 1261. [3] The district court misconstrued these precedents as pre- cluding an award of attorney’s fees to Rickley because Roit “is not an independent emotionally detached counsel.” First, neither § 1988 nor the IDEA imposes a general rule requiring counsel to be independent and emotionally detached. Neither the Supreme Court nor this court has ever adopted such a rule. Nor could such a rule be harmonized with Weissburg, where we awarded attorney’s fees for legal services performed by an attorney-grandmother notwithstanding the grandmother’s obvious emotional attachment to her grandson. [4] Second, the district court misapplied the framework established in Kay by conducting an individualized rather than a categorical inquiry. Kay, Ford, Elwood and Weissburg did not ask whether a particular attorney was sufficiently inde- pendent or emotionally detached to provide effective repre- sentation. Rather, each of these cases addressed whether a category of lawyers should be excluded from § 1988 or the IDEA because that class of attorneys as a whole should be presumed to lack independence or detachment. See Kay, 499 U.S. at 437 (holding that the category of pro se attorney- plaintiffs are excluded from recovery under § 1988); Ford, 461 F.3d at 1091 (extending Kay to the category of attorney- parents under the IDEA); Elwood, 456 F.3d at 948 (extending Kay to the category of pro se attorney-defendants); Weiss- burg, 591 F.3d at 1260-61 (declining to extend Kay to the cat- egory of nonparent relatives under the IDEA). By abandoning this categorical framework in favor of a specific inquiry into whether Roit in particular was sufficiently independent and emotionally detached to render effective representation, the district court misapplied Kay. The district court’s denial of fees for Roit’s services therefore rests on legal error. 11202 RICKLEY v. COUNTY OF LOS ANGELES II. The County acknowledges that the district court did not apply Kay’s categorical framework, but urges us to do so on appeal, contending that we should extend Kay and hold that successful civil rights plaintiffs are categorically barred from recovering attorney’s fees under § 1988 for legal services per- formed by their attorney-spouses. We do not find the argu- ment persuasive. [5] Married couples have strong emotional bonds with one another. The County is therefore certainly correct that there exists some risk that an attorney who represents her spouse in a civil rights action may allow emotion to cloud her indepen- dent legal judgment. But we see no reason to presume that attorney-spouses are, as a general proposition, “unable to pro- vide independent, dispassionate legal advice.” Ford, 461 F.3d at 1091. There is therefore no basis for a bright-line prohibi- tion on awarding fees to successful civil rights plaintiffs who are represented by their attorney-spouses. [6] Ford, upon which the County heavily relies, is distin- guishable. As we explained in Weissburg, the rule we adopted in Ford was justified not only by the close relationship between a parent and a child, but also by the “special role” parents play under the IDEA’s statutory framework. Weiss- burg, 591 F.3d at 1260. The IDEA designates parents as “en- forcers of their children’s education rights,” making them “uniquely invested in IDEA proceedings.” Id. (citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53-54 (2005) (describ- ing the significant statutory role parents serve in making edu- cational decisions under the IDEA)).4 Spouses serve no 4 Parents’ special role under the IDEA carries over to that statute’s attor- ney’s fee provision, which makes parents the direct beneficiaries of fee awards. See 20 U.S.C. § 1415(i)(3)(B)(i) (providing for an “award [of] reasonable attorneys’ fees . . . to a prevailing party who is the parent of a child with a disability” (emphasis added)). RICKLEY v. COUNTY OF LOS ANGELES 11203 comparable function in federal civil rights actions. They have no “special role” under § 1983. Nor are they designated by any statute to “enforce” their spouses’ federal civil rights. And they are not, by statutory design, “uniquely invested” in their spouses’ § 1983 proceedings. [7] The courts to have addressed this question, though few in number, have uniformly held that Kay should not be extended to attorney-spouses. In Mahtesian v. Snow, Nos. 03- 5372MMC & 04-1306MMC, 2004 WL 2889922 (N.D. Cal. Dec. 14, 2004), the court properly noted the absence of any authority “in which the reasoning in Kay has been extended to cases in which the client and the attorney are spouses or, for that matter, adults in any type of familial relationship.” Id. at 4. The court also reasoned that, “[u]nlike the situation presented in the attorney-parent cases, an adult client can be presumed to . . . have made an informed choice as to whether his spouse can fairly represent his interests.” Id. The court accordingly declined to extend Kay to attorney’s fees sought under § 1988 for legal services provided to a successful civil rights plaintiff by the plaintiff’s attorney-spouse. See id.; see also Bennett v. Smith, No. 96 C 2422, 2002 WL 169323, at 2 (N.D. Ill. Feb. 1, 2002) (concluding that Kay does not pro- hibit awarding attorney’s fees to an attorney-spouse under Title VII of the Civil Rights Act of 1964). We find these deci- sions persuasive. [8] Extending Kay to attorney-spouses would not further the overall purposes of § 1988. There are times when an attorney-spouse may be the only attorney, or the best attorney, available to the plaintiff. Were fees categorically barred in such cases, a meritorious claim might not be brought at all, or it might be brought with counsel who is, though more “inde- pendent” than the plaintiff’s spouse, less effective. We do not believe that § 1988 mandates those results, or that such results could be harmonized with the purpose of § 1988 “to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 11204 RICKLEY v. COUNTY OF LOS ANGELES (1983) (quoting H.R. Rep. No. 94-1558, p. 1 (1976)). We see no reason to presume that plaintiffs who are represented by their attorney-spouses will be “deprived of the judgment of an independent third party.” Kay, 499 U.S. at 437. To the con- trary, civil rights plaintiffs can be presumed to make “in- formed choice[s] as to whether [their] spouse[s] can fairly represent [their] interests.” Mahtesian, 2004 WL 2889922, at 4. For these reasons, we hold that a plaintiff who is repre- sented by her attorney-spouse in a successful civil rights action may be awarded “a reasonable attorney’s fee as part of the costs” under § 1988.5 III. [9] The district court suggested that fees might be denied for another reason — because Rickley and Roit may have acted strategically “in naming Rickley as the plaintiff and Roit as the attorney.” The district court appears to have disap- proved of this strategy, noting that “[b]y only naming Rickley as the plaintiff, the couple can protect their constitutional rights and their property rights, as well as receive attorney’s fees for doing so.” The County urges us to affirm on this basis, describing the “contrived proxy arrangement attempted by Roit and Rickley here” as an improper attempt “to avoid the ban on attorneys’ fees for self-representation announced in Kay.” County’s Answering Brief 24.6 5 Because we agree with Rickley that § 1988 does not preclude an award of attorney’s fees for legal services performed by an attorney-spouse, we need not address Rickley’s argument that, by virtue of the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, § 3(a), 110 Stat. 2419 (1996), 1 U.S.C. § 7, she and Roit are not “spouses” for purposes of § 1988. 6 In support of this argument, the County cites an unpublished, 2006 decision of this court. The County’s citation is improper under Ninth Cir- cuit Rule 36-3(c). RICKLEY v. COUNTY OF LOS ANGELES 11205 [10] We do not agree with the County’s assessment. Even assuming that Rickley and Roit acted “strategically” in the manner suggested by the district court, there would have been nothing improper in doing so. It is not an end-run around Kay for a plaintiff to recover both damages for her injuries and attorney’s fees for her attorney’s legal services. See Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005) (“To require Defendants to pay reasonable attorney’s fees relevant to the prosecution of the successful claim does not create a windfall, but fulfills the Congressional purpose of § 1988(b).”). In any event, it is far from clear that Rickley would have been precluded from obtaining attorney’s fees had Roit been joined as a plaintiff. See Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30, 32 (1st Cir. 1999) (per curiam) (holding that an attorney-plaintiff was properly awarded attorney’s fees under § 1988 when he represented another plaintiff in addition to himself). We therefore decline to affirm the district court’s decision on the ground that Rick- ley and Roit could have structured their attorney-client rela- tionship differently. IV. The County did not raise in the district court (and does not raise on appeal) an argument that Rickley should not recover attorney’s fees for Roit’s services because “special circum- stances exist sufficient to render an award unjust.” Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1126 (9th Cir. 2008) (quoting Thomas, 410 F.3d at 648) (internal quotation marks omitted). Having failed to raise this issue in the district court, the County has forfeited it. See Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 636 F.3d 1115, 1122 (9th Cir. 2011) (explaining that issues not raised before the district court are generally forfeited). The issue is not preserved for remand. V. For the foregoing reasons, we hold that the district court erred by denying Rickley an award of attorney’s fees for 11206 RICKLEY v. COUNTY OF LOS ANGELES Roit’s legal services. It remains for the district court to deter- mine a reasonable fee. In the district court, the County argued that Roit’s hours and hourly rates were excessive and that Roit’s fees should be reduced based on Rickley’s limited suc- cess. The district court has not yet addressed those arguments and they are preserved for purposes of remand. We express no opinion on their merits. CONCLUSION We vacate the portion of the district court’s fee order deny- ing Rickley an award of attorney’s fees for Roit’s services. The case is remanded for determination of a reasonable attor- ney’s fee. AFFIRMED IN PART, VACATED IN PART and REMANDED. Costs of appeal are awarded to appellant.	01-03-2023	08-19-2011
https://www.courtlistener.com/api/rest/v3/opinions/223647/	FILED United States Court of Appeals Tenth Circuit August 19, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT KERRY R. HICKS, Plaintiff-Appellee, v. No. 10-1575 (D.C. No. 1:04-CV-02616-ZLW-KLM) DANIEL C. CADLE, (D. Colo.) Defendant-Appellant, and THE CADLE COMPANY; BUCKEYE RETIREMENT CO., LLC, LTD.; WILLIAM E. SHAULIS, Defendants. ORDER AND JUDGMENT * Before HARTZ, Circuit Judge, and HOLLOWAY and PORFILIO, Senior Circuit Judges. * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Defendant Daniel C. Cadle appeals from a district court order confirming an arbitration award of $3.15 million, plus prejudgment interest, against him on plaintiff Kerry R. Hicks’s claims of defamation and intentional infliction of emotional distress. While couched in various ways, all of Mr. Cadle’s objections concern whether the dispute was properly referred to arbitration. The district court rejected Mr. Cadle’s objections for alternative reasons, holding that he was judicially estopped from challenging the arbitrator’s authority and that the dispute was in any event properly referred to arbitration. On de novo review, McWilliams v. Logicon, Inc., 143 F.3d 573, 575 (10th Cir. 1998), we affirm on the basis of judicial estoppel and hence do not address any issues unrelated to that rationale. I. THREE PHASES OF ARBITRATION A summary of the successive phases of arbitration between the parties will put this appeal, involving the third phase, in context. See Hicks v. Bank of Am., N.A. (Hicks I), 218 F. App’x 739 (10th Cir. 2007) (appeal from first phase), and Hicks v. Cadle Co. (Hicks II), 355 F. App’x 186 (10th Cir. 2009) (appeal from second phase). In 2002, Buckeye Retirement Company (Buckeye), alter ego of the Cadle Company (Cadle Co.), 1 purchased a $1 million promissary note held by Bank of America (BOA). While Mr. Hicks was nominally liable, jointly and 1 Buckeye and Cadle Co. were recognized as alter egos by this court in the decisions cited above. References herein to “Cadle defendants” include Buckeye, Buckeye manager William Shaulis, Cadle Co., and Daniel C. Cadle. -2- severally, for the full amount of the initial version of the (twice-renewed) note, in light of a collateral agreement between him and BOA, he was not liable on the renewed $1 million note, and BOA so informed Buckeye. Buckeye nevertheless sued Mr. Hicks on the note in Tennessee federal district court in 2003. The note has an arbitration clause providing that any controversy or claim between or among the parties hereto including but not limited to those arising out of or relating to this instrument, agreement or document or any related instruments, agreements or documents, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act[.] Aplt. App. Vol. I at 8-9. Invoking this clause, Mr. Hicks initiated arbitration in Colorado against BOA for fraud and against Cadle defendants for bringing suit against him in Tennessee in violation of the clause and for tortious collection activities. BOA repurchased the $1 million note from Buckeye, leading to the dismissal of the suit in Tennessee. But the Colorado arbitration against Cadle defendants for their conduct in attempting to collect on the note continued. In the meantime, Buckeye’s manager sent letters to the Tennessee and Colorado Attorneys General suggesting that Mr. Hicks be investigated for bank fraud. This prompted Mr. Hicks to file suit in Colorado against BOA and Cadle defendants, seeking redress for abuse of process, defamation, and intentional infliction of emotional distress relating to the letters as well as for the alleged wrongdoing already under review in the Colorado arbitration proceeding. BOA -3- removed the suit to federal court and then, joined by Cadle defendants and opposed by Mr. Hicks, moved for a stay on the ground that the suit had to proceed by way of arbitration in light of the arbitration clause in the underlying note. After the stay was granted, the arbitrator bifurcated the expanded proceeding before him into a phase one, involving the claims arising out of the Tennessee collection suit, and a phase two, involving the claims arising out of the letters sent to the state attorneys general. The first phase concluded with an award of $400,000 in damages plus fees for Mr. Hicks. The district court confirmed the award, rejecting a challenge to the arbitrator’s authority over Cadle Co., which had not purchased the note or filed the suit to collect on it and argued that it could not be bound by the arbitration provision it contained. We affirmed the district court’s rejection of this challenge for two reasons: “First, there was abundant evidence . . . that Cadle and Buckeye operated as alter-egos.” “Second, and more importantly, Cadle vigorously participated in the arbitration, advancing a counterclaim against Hicks and joining in BOA’s motion to stay pending completion of the arbitration.” Hicks I, 218 F. App’x at 746. As to the second point, we invoked waiver/estoppel principles that are relevant to the instant appeal: Cadle defendants asserted that this action must be arbitrated because the arbitration clause in the note clearly encompassed all of the issues and claims Hicks asserted. Cadle therefore waived its objection to arbitration and is estopped from arguing that the arbitrator lacked personal jurisdiction to enter an award against it. -4- Id. The second phase of arbitration also concluded favorably to Mr. Hicks. The arbitrator allowed him to amend his claims to conform to evidence showing another fourteen defamatory communications regarding bank fraud and perjury, and then awarded him nearly $2 million in compensatory and punitive damages, with interest. The district court confirmed the damages award, rejecting again Cadle defendants’ objections that the arbitrator lacked jurisdiction over them and the tort claims asserted against them. We agreed. Regarding Cadle defendants’ objection that Mr. Cadle could not be subject to the arbitration clause since he was never a party to the note, we held he was “bound by the arbitration clause as agent[] of The Cadle Co. and Buckeye.” Hicks II, 355 F. App’x at 193. And we had this to say in rejecting Cadle defendants’ objection that the arbitration clause “did not provide a basis for arbitration jurisdiction over [them] for the new tort claims” based on conduct directed toward Mr. Hicks “after [he] had been released from liability under the note”: We agree with the district court that the second-phase claims were within the jurisdiction of the arbitrator. The note’s arbitration clause applied to all controversies arising out of and relating to the note. The note was binding on [BOA’s] successors. Defendants’ tortious actions are directly tied to the note. Defendants engaged in a continuous course of wrongful conduct all arising from a note with a broad arbitration clause. Id. (citations omitted). Most importantly for our purposes here, in addition to these direct rejoinders, we also held Cadle defendants were judicially estopped -5- from challenging the arbitrator’s jurisdiction, even citing our prior holding to that effect in Hicks I as law of the case. Id. The third phase of arbitration began while the second was under judicial review. The district court permitted Mr. Hicks to file a supplemental complaint, promptly referred to the arbitrator, alleging tortious conduct by Mr. Cadle similar to prior acts but occurring after the second-phase award. He had sent more letters accusing Mr. Hicks of fraud and perjury, this time to attorneys general for Ohio and California in addition to Tennessee and Colorado, as well as letters to the Comptroller of the Currency and the Internal Revenue Service. In short, he “kept on pursuing his crusade” against Mr. Hicks, Aplt. App. Vol. II at 263 (Arbitration Award for third phase), through “a repetition and expansion of his acts in the [second-phase] arbitration,” id. at 275. As the arbitrator recognized, “the conduct in question [in the third phase] is substantially similar to that in th[e] previous arbitration hearings” and “the core issues that gave rise to the arbitration [in the second and third phases] are the same.” Id. at 260. The arbitrator awarded Mr. Hicks $1.25 million in compensatory damages and $1.9 million in punitive damages against Mr. Cadle. II. JUDICIAL ESTOPPEL Mr. Cadle challenged the third-phase award on the same grounds he raised, unsuccessfully, in opposition to the first two phases, nevertheless insisting that this time he should prevail. We agree with the district court that Mr. Cadle is -6- again judicially estopped from denying that the arbitration clause covers the claims asserted. The district court held Mr. Cadle estopped from disputing the arbitrator’s authority over the third-phase claims for the same reason he was estopped from disputing the same point with respect to the substantively similar second-phase claims referred to arbitration at his own insistence: The claims in the [second phase] were compelled to arbitration based on judicial estoppel because Defendants had stated to the Court their position that the relevant arbitration clause “clearly encompasses all issues and claims” asserted in the Amended Complaint. The “issues and claims” in the Supplemental Complaint [i.e., the third-phase claims] differ only in that they pertain to acts performed three years later. . . . Thus, because Defendants, including Cadle, were judicially estopped from asserting that the arbitrator lacked jurisdiction over the claims in the [second phase], Cadle also is judicially estopped from asserting that the arbitrator lacked jurisdiction over the claims against him in the Supplemental Complaint. Id. at 360. Unable to gainsay the substantive commonality of the tort claims involved in the second and third phases of arbitration, Mr. Cadle points to their one distinguishing feature–chronology–and insists that it makes all the difference in the applicability of judicial estoppel. He contends that because the referral to arbitration instigated at his insistence involved only the second-phase claims, the estoppel consequences of his action must be so limited and cannot be the basis for holding him to the arbitration of the later-asserted third-phase claims. -7- Mr. Cadle’s view of judicial estoppel, limiting it to specific claims rather than applying it to the legal position he took in connection with those claims, is unduly constricted, as revealed by comparison with the Supreme Court’s controlling estoppel decision in New Hampshire v. Maine, 532 U.S. 742 (2001). That case involved a dispute between New Hampshire and Maine regarding an inland river boundary. While it was the first time they had litigated competing claims over the river, twenty-five years earlier they had litigated rival claims over lobster-fishing rights in the marine waters off the nearby coast. In the earlier litigation, New Hampshire took the legal position that a 1740 English decree, as jointly interpreted by the parties, should control boundary disputes in the area. The marine boundary was fixed accordingly. But in the litigation over the river boundary, New Hampshire sought an advantageous ruling by asserting a contrary view of the 1740 decree. The Supreme Court rejected this gambit on judicial estoppel grounds. For present purposes, it is most significant that the Court did so without hesitating over the fact that the specific rights in dispute in the two cases were different; the material point was that New Hampshire sought a litigation advantage by taking incompatible legal positions in the cases. The Court’s general articulation of the judicial estoppel principle reflects this same focus on change of legal position: Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary -8- position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him. . . . This rule, known as judicial estoppel, generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Id. at 749 (alteration omitted) (internal quotation marks omitted). As we have seen, Mr. Cadle was able to force Mr. Hicks into arbitration on his tort claims for defamation and intentional infliction of emotional distress by taking a clear-cut legal position: Mr. Hicks’s tort claims arising from Mr. Cadle’s accusations of fraud and perjury concerning Mr. Hicks’s liability on the promissary note trigger the note’s arbitration provision. And in Hicks II we held Mr. Cadle to that legal position when he tried to argue that the arbitration provision did not apply. Now, in response to more claims of the same type based on his continuation of similar tortious conduct, Mr. Cadle again tries to argue that the arbitration provision should not apply. But this time, he insists, he is not estopped from taking this self-contradicting position, because these were not the same specific tort claims he previously succeeded in forcing into arbitration. The weakness in this argument should be apparent from what we have already said about the thrust of the New Hampshire decision: the focus of the estoppel analysis is not on the particular claims at issue (coastal-versus-inland boundaries in New Hampshire; initial-versus-later tort claims here), but on the litigant’s tactical about-face in legal position (as to the effect of the 1740 decree in New Hampshire and the effect of the arbitration provision here). -9- Mr. Cadle has not cited any authority undercutting the guidance we have drawn from the language and substance of the New Hampshire decision. We therefore see no reason for questioning the application of judicial estoppel based on the fact that the tort claims in the third-phase proceedings accrued and were brought into the litigation after Mr. Cadle had successfully forced the second-phase claims into arbitration. Mr. Cadle also advances a much broader objection to the use of judicial estoppel here. Indeed, he argues that the principle is unavailable per se in the arbitration context, because it constitutes a compulsory override of the consent that is the basic precept of arbitration under the Federal Arbitration Act (FAA), see generally Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1773-74 (2010). He is unable to cite any authority for this categorical position, however, and of course it is contrary to our decisions in Hicks I and Hicks II. We now make explicit what is tacit in those decisions: judicial estoppel here is premised on Mr. Cadle’s own request for arbitration based on his position regarding the effect of the arbitration clause, and it would be a perverse understanding of the concept of consent to hold that a party has not consented to arbitration that it voluntarily sought. Judicial estoppel does not override consent; it enforces past consent by preventing tactical after-the-fact retraction. It is worth noting that in Granite Rock Co. v. International Brotherhood of Teamsters, 130 S. Ct. 2847 (2010), a recent case repeatedly cited by Mr. Cadle, the Court -10- considered the merits of an argument for arbitration by “waiver or estoppel” without any indication that such legal principles were categorically inapposite in that context, id. at 2863 (rejecting argument on the facts). In the absence of more compelling argument and/or authority, we will not adopt a broad rule barring application of estoppel principles to the question of arbitration. We therefore agree with the district court that Mr. Cadle is estopped from challenging the arbitrability of the tort claims asserted herein by Mr. Hicks. 2 The judgment of the district court is AFFIRMED. Entered for the Court John C. Porfilio Senior Circuit Judge 2 Because arbitration “necessarily waives jury trial,” Harrington v. Atl. Sounding Co., 602 F.3d 113, 126 (2d Cir. 2010), cert. denied, 131 S. Ct. 1054 (2011), our conclusion that this case was properly referred to arbitration undercuts Mr. Cadle’s objection that he was wrongly denied a jury trial–a point we recognized on his last appeal, see Hicks II, 355 F. App’x at 194 n.3. -11-	01-03-2023	08-19-2011
https://www.courtlistener.com/api/rest/v3/opinions/3018785/	UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ___________ No. 96-2248 ___________ Helen R. Payne, * Administratrix of the Estate * of Michael L. Payne, Deceased, * * Appellant, * Appeal from the United States * District Court for the v. * Western District of Arkansas * ABB Flexible Automation, Inc., * (UNPUBLISHED) * Appellee. * ___________ Submitted: December 13, 1996 Filed: June 9, 1997 ___________ Before LOKEN and HANSEN, Circuit Judges and PERRY,1 District Judge. ___________ PER CURIAM. This case arises from an industrial accident that fatally injured Michael L. Payne while he was working in the cell of an automated robot at the Fayetteville, Arkansas, facility of Superior Industries ("Superior") on September 27, 1994. Helen Payne, the Administratrix of the estate of Michael Payne, brought a product liability 1 The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri, sitting by designation. action against ABB Flexible Automation, Inc. ("ABB"), the manufacturer of the robot, alleging strict -2- liability and negligence. The district court2 granted summary judgment to ABB and the appellant now appeals. We affirm. On the evening of September 27, 1994, Payne was working as a "cell operator" at Superior. As a cell operator, Payne was responsible for operating and programming an M93 IRB 6000 automated robot used for the production of aluminum automobile wheels, and for supervising other employees working in the robot's cell. There were no witnesses to the accident. Payne had instructed his co-workers to take a break, while he remained in the cell. When a co-worker returned to the cell, he found Payne pinned between the robot's gripper arm and a wheel inside a drilling machine. Payne died two days later. In the amended complaint, appellant alleged that ABB was negligent and strictly liable for designing and manufacturing a robot that was defective and unreasonably dangerous. ABB moved for summary judgment, asserting that appellant failed to produce evidence necessary to support the elements of her claims. In support of the motion for summary judgment, ABB submitted an accident/safety report prepared by the Occupational Health and Safety Administration ("OSHA"), and Superior’s "Accident/Incident Report," prepared by supervisors, technicians and engineers of ABB and Superior. The OSHA report did not attribute the accident to a defect in the robot, but cited Superior for removing safety devices from the cell of a programmed robot, and for allowing 2 The Honorable H. Franklin Waters, United States District Court for the Western District of Missouri. -3- employees to enter into the immediate operational area of the robot, thereby exposing them to the danger of injury by being caught in the robot's jaws. OSHA subsequently deleted the citation and waived the penalty following an informal conference in which Superior agreed to correct the violations. The Superior report indicated that inattention by Payne was the primary factor in the accident, and found that Payne had overlooked safety measures by entering the cell before "locking it out," -4- and by running the robot at 100% test speed while inside the cell, rather than at 25% speed as required by Superior's safety guidelines. In opposing the motion for summary judgment, plaintiff did not submit affidavits or depositions, but only offered admissions of ABB, made in response to plaintiff's request for admissions, claiming that they "in and of themselves, raise genuine issues of material facts as to the elements alleged herein of strict liability and negligence." The district court granted the motion for summary judgment, concluding that the admissions failed to create any triable issue of fact as to whether the robot was negligently or defectively designed. We review a grant of summary judgment de novo. Anderson v. F.J. Little Machine Co., 68 F.3d 1113, 1114 (8th Cir. 1995). A grant of summary judgment should be affirmed if the record, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Under this standard, the inquiry is not on whether the evidence favors one side or the other, but "whether a fair minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 251. The district court properly granted defendant's motion for summary judgment because plaintiff failed to introduce evidence which created a genuine issue of -5- material fact concerning its claims of negligence and defective design.3 Under Arkansas law, to sustain a negligence action a plaintiff must produce evidence that (1) defendant has 3 In her complaint, plaintiff also alleged that defendant was strictly liable for its failure to warn users of the robot's defective condition. As this issue was not raised in appellant's brief, the court will treat it as having been abandoned. Fed. R. App. 28(a)(5); see Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740 (8th Cir. 1985). -6- failed to use the standard of care that a reasonably careful person would use, Arkansas Kraft v. Cottrell, 855 S.W.2d 333, 337 (Ark. 1993), and that (2) the failure to exercise this care was the proximate cause of injuries suffered by the plaintiff. See Skinner v. R.J. Griffin & Co., 855 S.W.2d 913, 915 (Ark. 1993). Similarly, in a product liability action alleging strict liability, a plaintiff must establish that: (1) the supplier is engaged in the business of manufacturing, selling or distributing the product, (2) the product was supplied to the plaintiff in a defective condition which rendered it unreasonably dangerous, and (3) the defect was the proximate cause of the injury. ARK. CODE ANN. § 4-86-102(a) (Michie 1987). The first admission submitted by appellant concedes that the robot did not meet the requirements of the American National Standard for Industrial Robots and Robot Systems-Safety Requirements 15.06-1992 with regard to slow speed definition.4 The district court properly held that this admission was irrelevant, because plaintiff did not produce evidence that the robot was operating at slow speed or that the gripper arm was positioned at tool centerpoint at the time of the accident. Indeed, the uncontradicted evidence in the record establishes that the robot had been running in the "100% speed test mode" at the time the accident occurred. 4 In reviewing the limited amount of evidence in the record, it appears that "slow speed definition" refers to the movement of the robot's gripper arm in the 25% slow speed mode when it is positioned at tool centerpoint. -7- The court also properly held that the second admission, that a robot can make unexpected movements as a result of programming error, also failed to create a genuine issue of material fact. While plaintiff can use direct or circumstantial evidence to support her claim, she can not rely on inferences based on conjecture or speculation. Arkansas Kraft, 855 S.W.2d at 337. The assertion of possible causes does not satisfy the plaintiff's burden of proving causation, and the possibility that programming error -8- could have caused unexpected movements, therefore, does not establish that programming error was the proximate cause of Payne's injuries. In the third admission submitted by plaintiff, ABB conceded that a pause or stop in the pattern of movement of the robot may be followed by movements at high speed if such movements are a part of the program installed in the robot. The fourth admission acknowledged that signals from external equipment can change the pattern of movement of the robot, without warning, if the robot controller is interfaced with external equipment. The court correctly dismissed both admissions as irrelevant since plaintiff failed to produce evidence that the robot that injured Payne was interfaced with external equipment or programmed to execute "high speed movements" following a pause or stop in movement. The last admission submitted by plaintiff conceded that the robot was not installed with a safety feature, referred to as a "presence-sensing device," which would enable the robot to detect the entry of personnel into its sensing field. The absence of a safety device may be considered in determining whether a product was negligently designed or defective rendering it unreasonably dangerous. French v. Grove Mfg. Co., 656 F.2d 295, 298 (8th Cir. 1981). Hindsight knowledge that the presence-sensing device might have possibly prevented the accident, in and of itself, however, does not establish that the robot was defective. See Verson Allsteel Press Co. v. Garner, 547 S.W.2d 411, 415 (Ark. 1977). Under the Arkansas Product Liability Act, a "defective condition" is a "condition of a product that -9- renders it unsafe for reasonably foreseeable use and consumption." ARK. CODE ANN. § 4-86-102(a) (Michie 1979). A product is deemed to be unreasonably dangerous when it creates a danger which is beyond that which would be contemplated by the ordinary and reasonable user of the product who possesses the ordinary knowledge of similar users regarding the risks, hazards and proper uses of the product. Id. While not conclusive, evidence that a particular safety device is commonly used in a particular industry carries weight in determining whether a proper standard of care has been breached. Verson Allsteel, 547 S.W.2d at 415. - 10 - Moreover, the opinion of an expert witness can also create an issue as to whether a machine is defective and dangerous without a specific safety feature. Cowart v. Casey Jones, Contractor, Inc., 467 S.W.2d 710, 711 (Ark. 1971). Plaintiff, however, failed to produce any evidence which showed that ABB's failure to manufacture the robot with the safety device constituted negligence, or that it rendered the robot defective or unreasonably dangerous. Appellant failed to present any evidence showing that the absence of the safety device was the proximate cause of Payne's injuries. In proving causation, a plaintiff must introduce evidence which excludes other possible causes which are supported by the evidence. Kaplon v. Howmedica, Inc., 83 F.3d 263, 267 (8th Cir. 1996); Williams v. Smart Chevrolet Co., 730 S.W.3d 479, 482 (1987). Merely asserting that a safety device would have prevented an accident does not satisfy plaintiff's burden of proving causation. Skinner, 855 S.W.2d at 915. Appellant, therefore, failed to negate other possible causes of the accident and offered no evidence to support her theory that the absence of the presence-sensing device was the proximate cause of the accident. Appellant also argues that ABB has not satisfied its burden under Rule 56(c) because it relies on unsworn, out of court statements that amount to hearsay. However, the moving party is not required to come forward with affidavits which negate the plaintiff's claims under Rule 56(c). Fed. R. Civ. P. 56(c); Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992). Movant is only required to specifically point to the relevant portions of the record that show a lack of a genuine issue. Celotex - 11 - Corp. v. Catrett, 477 U.S. 317, 324 (1986). Here, ABB has met its burden by indicating the absence of elements necessary to support the plaintiff's claims. In her brief, appellant also argues that summary judgment should not be granted in this case because the parties were in the early stages of the discovery process. Rule 56(c) requires that the parties have adequate time for discovery. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The record reveals that plaintiff was given an additional 23 days to respond to the motion for summary judgment. - 12 - Appellant did not request additional time to respond to the motion or to conduct additional discovery, choosing instead to rely on ABB's responses to the requests for admissions. The district court did not consider the motion prematurely. See Celotex, 477 U.S. at 326. Because the admissions, pleadings, and record on appeal fail to present evidence which raises a material issue as to whether the robot was negligently or defectively designed, the court properly granted ABB's motion for summary judgment. The judgment of the district court is affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT - 13 -	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3018800/	United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 96-4102 ___________ Eric Lynn Self, * * Plaintiff/Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Auburn Steel Company, Inc.; * Sumitomo Corporation of America; * [UNPUBLISHED] SC Steel Investment, Inc.; Yamato * Kogyo (U.S.A.) Corporation, doing * business as Arkansas Steel * Associates, an association of * partners, * * Defendants/Appellee. ___________ Submitted: May 22, 1997 Filed: June 6, 1997 ___________ Before MURPHY, HEANEY, and MAGILL, Circuit Judges. ___________ PER CURIAM. Eric Self sued his employer, Auburn Steel Company, in January 1996 on the theory that certain employment actions affecting him were in retaliation for his father's participation in a 1991 lawsuit against the company under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1997). The district court1 granted summary judgment for Auburn Steel, and we affirm. Self’s complaint alleged a violation of the retaliation provision of Title VII. Title VII makes it unlawful for employers to discriminate on the basis of race, sex, color, national origin, or religion, see 42 U.S.C. § 2000e-2(a), and it prohibits an employer from retaliating against an employee on the basis that he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]. 42 U.S.C. § 2000e-3(a) (1997). Self made no factual allegations and produced no evidence related to a case alleging discrimination on the basis of race, sex, color, religion or national origin. The district court was therefore correct in dismissing this claim. Sometime after his complaint was filed Self moved to amend it to include a cause of action for retaliation under the ADEA. The ADEA prohibits an employer from discriminating against an employee or applicant for employment who has opposed any practice made unlawful by [the ADEA], or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA]. 1 The Honorable William R. Wilson, United States District Judge for the District of Eastern Arkansas. -2- 29 U.S.C. § 623(d) (1997). The district court denied the motion to amend without prejudice, but went on to consider his claim as if he had brought it under the ADEA.2 Assuming the ADEA retaliation claim is properly before us, we conclude that the district court did not err in granting summary judgment in favor of Auburn Steel because Self failed to produce evidence sufficient to show a claim under 29 U.S.C. § 623(d). The judgment of the district court is affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 2 Self indicated in his notice of appeal that he was not appealing that portion of the court's order which denied his motion to amend. -3-	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/1008837/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-7293 PETRA E. HERNANDEZ, Petitioner - Appellant, versus CAROL CALDWELL; MACK JARVIS, Respondents - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CA-97-717-5-H) Submitted: August 29, 2002 Decided: October 16, 2002 Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. Petra E. Hernandez, Appellant Pro Se. Clarence Joe DelForge, III, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Petra E. Hernandez seeks to appeal the district court’s order denying relief on her petition filed under 28 U.S.C. § 2254 (2000). We have reviewed the record and the district court’s opinion and conclude on the reasoning of the district court that Hernandez has not made a substantial showing of the denial of a constitutional right. Hernandez v. Caldwell, No. CA-97-717-5-H (E.D.N.C. July 18, 2001). Accordingly, we deny a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We deny Hernandez’s motions for appointment of counsel and formal briefing. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/2170753/	151 Conn. 372 (1964) JOEL H. REED II, STATE'S ATTORNEY FOR TOLLAND COUNTY v. GEORGE E. RISLEY ET AL., SELECTMEN OF THE TOWN OF VERNON Supreme Court of Connecticut. Argued January 9, 1964. Decided February 5, 1964. KING, C. J., MURPHY, SHEA, ALCORN and COMLEY, JS. 373 Robert J. Pigeon, for the appellants (defendants). Wesley C. Gryk, with whom, on the brief, was Anthony J. Gryk, for the appellee (plaintiff). ALCORN, J. The question on this appeal is whether the defendant selectmen may, on a request properly made, refuse to call a special town meeting to act on the acceptance of designated streets as public highways on the ground that the purpose of the meeting is illegal because the streets have not received the prior approval of the selectmen. In an action in the nature of mandamus, the court ordered the defendants to call the meeting, and they have appealed. On October 30, 1962, a group of qualified voters in Vernon filed, with the selectmen of the town, an application which concededly met the requirements of §§ 7-1 and 7-9 of the General Statutes. The application requested the selectmen to call a town meeting to consider whether the town should vote to accept, as public highways, three streets in Vernon. The streets appear on a 1934 map filed in the Vernon land records. The defendants refused to call the meeting on the ground that the purpose 374 of the meeting was illegal because the proposed streets were less than three rods in width and had not received the prior approval of a majority of the selectmen. The court has found that the person who laid out the streets did not seek or obtain the approval of the layout from the board of selectmen, that no certificate approving them is in the town clerk's possession, and that they are private ways less than three rods in width. The plaintiff has assigned error in these findings. Practice Book, 1963, § 623. In our view of the case, it is unnecessary to consider whether these facts are supported by the evidence. We shall assume, without deciding, that they were properly established. It does not appear from the record that a planning commission exists in Vernon. At the time the case arose and was decided below, the applicable statutes were General Statutes §§ 13-3 and 13-25. Section 13-3 and the material portions of § 13-25 are quoted in the footnote.[1] These sections 375 of the statutes were rewritten by the 1963 General Assembly and now appear as §§ 48 and 71 respectively of Public Acts 1963, No. 226. The only change made by the 1963 statute in § 13-3 was to substitute the words "any proposed highway" for the words "any street or highway." This changed language is obviously more accurate in view of the fact that the term "highway" means a public way. Stavola v. Palmer, 136 Conn. 670, 683, 73 A.2d 831. There was no change made by the 1963 statute in § 13-25 which is pertinent to the present case. We will consider the case from the standpoint of the statutes which were applicable when the action complained of was taken. By asserting that the town could not legally accept these streets because they had not been approved pursuant to § 13-25, the selectmen adopt an incongruous position. They seemingly overlook the portion of § 13-25 which requires the first selectman immediately to close any street or highway laid out in violation of that section and to keep it closed until 376 it meets the approval of the selectmen, on penalty of a fine for failure to do so. But that aside, when we turn to other provisions of § 13-25, it is apparent, first of all, that the statute specifically exempts municipal corporations from the prohibition against laying out a street less than fifty feet in width without the selectmen's approval. Second, the statute establishes no absolute requirement concerning the width of streets laid out by private agencies other than that a street less than fifty feet wide must have the approval of the selectmen. In other words, the statute leaves the width of a street laid out by a town to the discretion of the town and leaves the width of a street laid out by a private agency to the approval of the selectmen. Under the common law, a street may be dedicated to public use with no particular formality. Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271, 141 A.2d 241. A street may be opened and used without prior official approval, and that use may, under proper circumstances, result in a common-law acceptance of the street if it is not interfered with under the authority conferred by § 13-25. Kenneson v. Bridgeport, 130 Conn. 298, 302, 33 A.2d 313; Paulsen v. Wilton, 78 Conn. 58, 64, 61 A. 61. We said in Stratford v. Fidelity & Casualty Co., 106 Conn. 34, 38, 137 A. 13, that the purpose of the predecessor of § 13-25 was "undoubtedly to meet the difficulty inherent in the doctrine of the dedication of highways, which permits acceptance by the general public, and which makes it possible, where an individual or private corporation has laid out a street, that it shall become a highway through use by the public, no matter how narrow or tortuous it may be, and no matter whether or not it has been in any way improved." We said further in the same case (p. 39) that "[t]he statute 377 [now § 13-25] has to do with the layout and improvement of roads or streets by individuals or private corporations, and the approval of the selectmen is an approval of the layout and opening of private ways and not of public highways; it looks to the possibility of their becoming public highways, but does not constitute an acceptance of them as such." The approval of a proposed street by the selectmen and its acceptance as a public street by the town are entirely separate and distinct proceedings. Section 13-25 governs the selectmen's approval of the layout of ways by private persons. Section 13-3 concerns the town's entirely distinct function of formally accepting ways as public streets. The two sections consistently place no arbitrary minimum limit on the width of either a private or a public street. Sections 13-3 and 13-25 are not interdependent or in conflict in the treatment of their differing objectives. Section 13-25 vests in the first selectman the necessary authority to close a way laid out by a private person which the board of selectmen refuses to approve. Under § 13-3 the vote of the town in a legal town meeting determines what street it will accept as a public highway. There is nothing in the language of § 13-3 which suggests any limitation on the authority of a town meeting to accept any street as a public highway. On the contrary, the language is expressly that the town may "accept as a public highway any street or highway situated in such municipality." The court was correct in rendering judgment in the nature of mandamus ordering the selectmen to call a special town meeting pursuant to the application made to them. Cummings v. Looney, 89 Conn. 557, 562, 95 A. 19. The judgment, however, fixed a date for compliance which has now passed. 378 There is no error; the case must be remanded with direction to modify the judgment by fixing a new date for compliance. In this opinion the other judges concurred. NOTES [1] "Sec. 13-3. ACCEPTANCE OF HIGHWAYS BY MUNICIPALITIES. Any municipality whose duty it is to maintain the highways within its limits may, except as otherwise provided in its charter, at any annual or special meeting held for that purpose, accept as a public highway any street or highway situated in such municipality." "Sec. 13-25. LAYOUT BY INDIVIDUALS. (a) No person, company or corporation, except municipal corporations, shall lay out any street or highway in this state less than fifty feet in width unless with the prior written approval of a majority of the selectmen of the town, ... wherein such street or highway is located, except that, where there exists a planning commission in such town ... operating under the general statutes or special act, which commission has adopted subdivision regulations, such written approval shall be obtained from such planning commission. (b) No street or highway shall be opened to the public until the grade, layout, location, width and improvements of such street or highway have received the written approval of the majority of the selectmen of the town ... wherein such street or highway is located, except that, where there exists a planning commission in such town ... operating under the general statutes or special act, which commission has adopted subdivision regulations, such approval shall be obtained from such planning commission, nor until such approval has been filed in the office of the clerk of such town .... No such clerk shall receive or place on file any map of any such new street or streets, highway or highways, or any map of land showing such new highways or streets, until he has received a certificate, signed by a majority of the selectmen of the town or of the planning commission, ... that such new layout has been approved by such selectmen ... or planning commission as herein provided. (c) If any street or highway has been laid out in violation of the provisions of this section, such street or highway shall be immediately closed by the first selectman of the town ... and shall be kept closed until such time as the grade, layout, location, width and improvement of such street or highway have received the approval herein provided for. The first selectman of a town, ... who fails to comply with the requirements of this section concerning the closing of such new streets or highways as have not been approved as herein provided shall be fined not more than twenty-five dollars."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2509951/	719 S.E.2d 40 (2011) Anne Marie LONG v. GATEWAY COMMUNITIES, LLC (f/k/a Gateway Homes, LLC), Douglas R. Levin, Vernon L. Faircloth, John A. Ashworth, IV, B & G Realty Company (f/k/a Brown & Glenn Realty), and Brown & Glenn Realty Co., Inc. No. 180P11. Supreme Court of North Carolina. December 8, 2011. James E. Ferguson, II, for Long, Anne Marie. *41 Andrew W. Lax, Charlotte, for Brown and Glen Realty Co., Inc. Grady Jessup, for Long, Anne Marie. C. Byron Holden, Charlotte, for Gateway Communities, LLC, et al. ORDER Upon consideration of the petition filed on the 10th of May 2011 by Plaintiff in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 8th of December 2011."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/227493/	190 F.2d 207 James Floyd PHILPOTT, Appellant,v.UNITED STATES of America, Appellee. No. 11295. United States Court of Appeals Sixth Circuit. June 4, 1951. Appeal from the United States District Court for the Middle District of Tennessee, Nashville; Elmer D. Davies, Judge. J. Floyd Philpott, pro se. Ward Hudgins, Nashville, Tenn., for appellee. Before HICKS, Chief Judge, and MARTIN and MILLER, Circuit Judges. PER CURIAM. 1 This appeal from the order of the United States District Court denying the motion of appellant to vacate judgment has been duly considered upon the record, the brief of appellant, and the brief and oral argument of the United States Attorney for the appellee; 2 And it appearing that there is no reversible error in the proceedings below; 3 The judgment of the District Court is affirmed; and it is so ordered.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2589869/	58 N.Y.2d 957 (1983) City of New York et al., Respondents, v. Uniformed Firefighters Association, Local 94, IAFF, AFL-CIO, Appellant. Court of Appeals of the State of New York. Argued February 16, 1983. Decided February 23, 1983. John F. Mills, Robert A. Kennedy and David Westermann, Jr., for appellant. Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for respondents. Beverly Gross, Harold L. Fisher, Murray Gordon, Ann F. Hoffman, Jeffrey S. Karp, James R. Sandner, David N. Stein and Nancy E. Tripp for Municipal Labor Committee, amicus curiae. Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur in memorandum. 958MEMORANDUM. The order of the Appellate Division should be reversed, with costs, and the award confirmed. The city concedes, and we agree, that subdivision b of section 1173-4.3 of the Administrative Code of the City of New York (Collective Bargaining Law) does not proscribe permissive bargaining of management prerogatives such as the "personnel by which government operations are to be conducted" but argues that by including in its contract with UFA the job description of a full-duty fireman it did not agree to bargain in that respect. The difficulty with that argument is that the effect of inclusion in the job description was the issue submitted to the arbitrator and his award (enjoining use of civilian inspection employees in fire department districts) can only be overturned if it is contrary to law or if "without engaging in extended fact-finding or legal analysis * * [the court can] conclude that public policy precludes its enforcement" (Matter of Sprinzen [Nomberg], 46 N.Y.2d 623, 631). Neither subdivision a of *959 section 487 of the City Charter nor subdivision b of section 1173-4.3 of the Collective Bargaining Law declares a public policy which is beyond waiver and the arbitrator having ruled that the city did waive, his ruling, even if erroneous, is not irrational and, therefore, is binding on the city with respect to the present contract (Rochester City School Dist. v Rochester Teachers Assn., 41 N.Y.2d 578, 582). Order reversed, etc.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1008843/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-1625 RODNEY MICHAEL BAILEY, Plaintiff - Appellant, versus MID ATLANTIC ISOTOPES/GEODAX, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA- 01-3795-JFM) Submitted: October 10, 2002 Decided: October 16, 2002 Before WILLIAMS, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Rodney Michael Bailey, Appellant Pro Se. Patrick Milton Pilachowski, SHAWE & ROSENTHAL, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rodney Michael Bailey appeals the district court’s order granting summary judgment in favor of Mid Atlantic Isotopes/GEODAX and dismissing Bailey’s employment discrimination action. 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. Bailey v. Mid Atlantic Isotopes/GEODAX, No. CA-01- 3795-JFM (D. Md. filed May 1, 2002; entered May 2, 2002). 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/750716/	134 F.3d 260 S.P., a Citizen of Takoma Park, Maryland, Plaintiff-Appellant,v.The CITY OF TAKOMA PARK, MARYLAND; Robert Phillips, in hisofficial capacity as Chief of the Takoma Park PoliceDepartment; Brian Rich, individually and in his capacity asan officer of the Takoma Park Police Department; Unknownand Unidentified Police Officers of the Takoma PoliceDepartment who were present at and involved in the incidentscomplained of herein, individually and in their capacity asofficers of the Takoma Park Police Department; WashingtonAdventist Hospital; Cyril Hardy; James Buxbaum; PaulO'Brien; Carla Cunningham; Marlene Wesley, Defendants-Appellees.American Civil Liberties Union of Maryland, Inc., Amicus Curiae,Zuckert, Scoutt & Rasenberger, L.L.P., Movant. No. 97-1218. United States Court of Appeals,Fourth Circuit. Argued Oct. 1, 1997.Decided Jan. 15, 1998. ARGUED: Mark McLaughlin Hager, Professor of Law, Washington College of Law, American University, Washington, DC, for Appellant. Daniel Karp, Allen, Johnson, Alexander & Karp, Baltimore, MD; Alan Douglas Titus, Carr, Goodson, Lee & Warner, P.C., Washington, DC; Andrew Edward Vernick, Wharton, Levin, Ehrmantraut, Klein & Nash, Annapolis, MD, for Appellees. ON BRIEF: Michelle L. Bower, Allen, Johnson, Alexander & Karp, Baltimore, MD, for Appellees. Dwight H. Sullivan, American Civil Liberties Union Of Maryland, Baltimore, MD; David B. Isbell, Mark H. Lynch, Nancy Dickinson, Covington & Burling, Washington, DC, for Amicus Curiae. Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge HAMILTON and Senior Judge BUTZNER joined. OPINION WILLIAMS, Circuit Judge: 1 In this appeal, we address the Fourth Amendment concerns attendant to the involuntary seizure and transportation of an individual by police officers to a private medical facility for an emergency psychiatric evaluation. Susan Peller, claiming that her civil rights were violated when she was involuntarily detained for an emergency evaluation, brought suit under 42 U.S.C.A. # 8E8E # 1983 (West Supp.1997) & 1985 (West 1994), against several City of Takoma Park police officers, including Police Chief Robert Phillips and Officer Brian Rich; the Washington Adventist Hospital (WAH) and several of its personnel; and the City of Takoma Park. 2 Pursuant to defendants' motions for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court granted Officer Rich and the other unnamed Takoma Park officers qualified immunity on the ground that Peller failed to allege facts establishing a violation of clearly established law. Additionally, the court dismissed the claims against WAH and its personnel, concluding that they were not acting under color of state law when they treated Peller.1 The district court denied Takoma Park's motion to dismiss. After discovery by both parties, however, the court subsequently granted Takoma Park's summary judgment motion on the ground that there was no causal link between the city's involuntary commitment policy and Peller's injuries. For reasons discussed fully below, we affirm. I. 3 The following facts, unless otherwise noted, are based upon the allegations in Peller's complaint. See Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.1997) (en banc) (noting that for purposes of reviewing a dismissal under Rule 12(b)(6) of Federal Rules Civil Procedure we must assume that the facts as stated in the complaint are true), cert. denied, --- U.S. ----, 118 S. Ct. 881, 139 L. Ed. 2d 869 (1997). On the morning of May 6, 1992, Peller and her husband had an argument in their home in Takoma Park, Maryland. As a result of the argument, Mr. Peller left the house at about 9:30 a.m. He went to a coffee shop and telephoned information. He requested a listing for a "mental health hot-line." (J.A. at 7.) After the operator informed him that there was no such listing, Mr. Peller called the police department's business line and asked for a referral to a marriage counselor. 4 The non-emergency police dispatcher to whom Mr. Peller was speaking, for reasons that are not clear from the record, transferred his call to an emergency dispatcher. Mr. Peller reiterated his request for a marriage counselor referral. The emergency dispatcher, after first gathering routine information regarding Peller's address and current location, told Mr. Peller that the only listing she had was for a suicide hot-line. After further conversation with Mr. Peller, the emergency dispatcher sent police officers to the Pellers' home to investigate. Police dispatch records submitted with Takoma Park's motion for summary judgment confirm that the dispatcher informed the officers that the problem at the home was a "possible suicidal person: Susan Peller." (J.A. at 256.) 5 At approximately 9:48 a.m., four uniformed officers, including Officer Rich, arrived at the Peller home. When the officers arrived, Mrs. Peller was visibly agitated and crying. She stated that she and her husband had had a "painful argument." (J.A. at 10.) After additional conversation between Officer Rich and Mrs. Peller, Sergeant Bonn,2 Officer Rich's supervisor, entered the room. He decided that the officers should take Peller to the hospital for an emergency psychiatric evaluation. Peller disagreed and resisted leaving her home. As a result, the officers were required to handcuff her before removing her from her home. 6 Upon arrival at WAH with Peller, Officer Rich prepared a petition seeking an emergency psychiatric evaluation under Maryland law. See Md.Code Ann., Health-Gen. I. § 10-622(a) (1994). His petition reported: 7 I responded to Ms. Peller's home for a check on welfare. Ms. Peller's husband called the police to report that she may commit suicide. Upon our arrival Ms. Peller [were] very upset and distraught. She told us [that] if it was not for her kids she would end her life. She told me [that] she would disappear by the end of the day. She appeared very upset and irrational. We then felt she was in danger of hurting herself and took her to WAH for mental evaluation. 8 (J.A. at 270.) Upon receipt of Officer Rich's properly executed petition, two WAH emergency room physicians, Dr. O'Brien and Dr. Buxbaum, examined Peller to determine whether she met the statutory criteria for involuntary admission. See Md.Code Ann., Health-Gen. I § 10-624(b) (1994). After their examination, the doctors concluded that Peller had a mental disorder, needed inpatient care, presented a danger to herself, was unable or unwilling to be voluntarily committed, and there was no less restrictive intervention available. These findings met the requirements of Maryland law for involuntary admission. See Md.Code Ann., Health-Gen. I § 10-617 (1994). 9 Shortly after the completion of the examination, Peller telephoned her husband. He subsequently contacted WAH to report that his wife's detention was the result of a grave error and miscommunication with the police department. Because the doctors had diagnosed Peller as "depression/suicidal," (J.A. at 272-73), and had determined that she met the qualifications for involuntary detention under Maryland law, the WAH staff refused to release Peller into her husband's custody. Instead, the WAH personnel, following statutory procedures, involuntarily admitted Peller to WAH that afternoon, several hours after the police had removed her from her home. 10 The next evening, May 7, WAH's attending psychiatrist, Dr. Cyril Hardy, gave Peller a complete psychiatric examination and determined that she was neither suicidal nor suffering from a mental disorder at that time. As a result of Dr. Hardy's new diagnosis, Peller was released from WAH on the morning of May 8, 1992. II. 11 Peller has narrowed her issues on appeal to three claims. First, she claims that the police officers violated clearly established law when they seized and transported her to WAH without probable cause and, therefore, are not entitled to qualified immunity. Second, she argues that WAH, Nurse Wesley, and Dr. Hardy were acting under color of state law when they caused her to be involuntarily committed and, therefore, are subject to liability under 42 U.S.C.A. § 1983. Finally, Peller contends that Takoma Park's emergency psychiatric detention policy, as interpreted and applied within its police department, unconstitutionally deprived her of her Fourth Amendment right to be free from unreasonable seizure. We will address each of Peller's claims in turn. A. 12 Peller first argues that the district court erroneously dismissed her claims against the police officers in their individual capacities. She contends that she stated a claim upon which relief could be granted by alleging that the police violated clearly established law when they involuntarily detained her without probable cause. After a de novo review, see Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir.1997) (en banc), we conclude that Peller failed to allege facts demonstrating the violation of clearly established law; therefore, the officers are entitled to qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 306-08, 116 S. Ct. 834, 839, 133 L. Ed. 2d 773 (1996) (holding that a defendant pleading qualified immunity on a motion to dismiss is entitled to prevail if the allegations in the complaint fail to state a claim of violation of clearly established law); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985) ("Unless [a] plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."); Jenkins, 119 F.3d at 1160 (holding that when the complaint fails to show that the plaintiff has suffered a deprivation of a constitutional right, a defendant pleading qualified immunity is entitled to dismissal of the claim under Rule 12(b)(6)). 13 It is a well settled proposition that government officials performing discretionary functions are entitled to qualified immunity from liability for civil damages to the extent that "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). When determining whether law enforcement officers are entitled to qualified immunity, we must (1) identify the right allegedly violated, (2) determine whether the constitutional right violated was clearly established at the time of the incident, and (3) evaluate whether a reasonable officer would have understood that the conduct at issue violated the clearly established right. See Smith v. Reddy, 101 F.3d 351, 355 (4th Cir.1996). "If the right was not clearly established at the relevant time or if a reasonable officer might not have known that his or her conduct violated that right, the officer is entitled to immunity." Id. The question before us is whether Peller has alleged the violation of a clearly established constitutional right. Peller asserts that the clearly established right that the officers violated was her Fourth Amendment right to be free from seizure for the purpose of medical treatment absent probable cause to believe that she suffered from a mental disorder, posed a danger of serious harm to herself, and that there was no less restrictive alternative available consistent with her welfare.3 Because we conclude that the contours of such a right were not clearly established so as to make the unlawfulness of these officers' actions apparent, we affirm the district court's order granting the officers qualified immunity and dismissing her claim. 1. 14 "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action ... assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 635, 107 S. Ct. 3034, 3036, 97 L. Ed. 2d 523 (1987) (quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2738). In 1992 we recognized that "the general right to be free from seizure unless probable cause exists was clearly established in the mental health seizure context." See Gooden v. Howard County, 954 F.2d 960, 968 (4th Cir.1992) (en banc) (emphasis added). Moreover, it was arguably clearly established that an officer must have probable cause to believe that the individual posed a danger to herself or others before involuntarily detaining the individual. See id. We have held, however, that " 'if the test of "clearly established law" were to be applied at this level of generality, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability.' " Id. (quoting Anderson, 483 U.S. at 639, 107 S. Ct. at 3039) (alterations in original omitted). 15 Thus, to defeat a qualified immunity defense, Peller must show that the right allegedly violated was "clearly established" in more than just a general sense. She must demonstrate that the particular actions of these police officers were unlawful under the law established at the time of the incident. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039; see also Cullinan v. Abramson, 128 F.3d 301, 310 (6th Cir.1997) (holding that "[i]t is not determinative ... that the plaintiff has asserted the violation of a broadly stated general right" (citation omitted)). To be clearly established for purposes of qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. "[T]he basic purpose of qualified immunity ... is to spare individual officials the burdens and uncertainties of standing trial in those instances where their conduct would strike an objective observer as falling within the range of reasonable judgment." Gooden, 954 F.2d at 965. "Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992). In other words, to establish liability, Peller had to allege facts demonstrating that the established contours of probable cause were sufficiently clear at the time of the seizure such that the unlawfulness of the officers' actions would have been apparent to reasonable officers. 16 Noting the meticulousness with which courts have defined probable cause in the criminal context, in Gooden we lamented "[t]he lack of clarity in the law governing seizures for psychological evaluations," 954 F.2d at 968, and concluded that "the law was not clear," id.; see also id. ("We are aware of no cases that define 'dangerousness' with the requisite particularity or explain what type of evidence would be constitutionally sufficient to establish probable cause of a dangerous condition."); id. at 967 (noting that it is "all too facile [to suggest] that the officers should have walked away from the situation because [the plaintiff] evidenced no injuries at the time they were with her [because if] the officers had refused to act until they saw blood, bruises, and splintered furniture, it might have been too late" (internal quotation marks omitted) (first alteration in original)). Accordingly, we conclude that there was no clearly established authority which would have put these officers on notice that their conduct violated Peller's Fourth Amendment rights. 2. 17 We decided Gooden v. Howard County, the only case in this Circuit addressing the constitutionality of police officers seizing an individual they believed to be mentally ill, four months prior to the events giving rise to this appeal. In Gooden, police officers in Baltimore, Maryland, responded to a call from a resident of an apartment complex complaining that screams were emanating from the apartment located above her. Id. The officers questioned Ms. Gooden, the occupant of the upstairs apartment. Ms. Gooden explained that she had been asleep and had no knowledge of the noise. Id. Observing no signs of physical abuse, the officers departed. Approximately a week and a half later, the officers were again called to investigate the screams. Upon hearing what one officer described as a "long, loud blood-chilling scream," the officers again questioned Ms. Gooden. Id. The officers reported that she was vague and evasive in her responses to their inquiries. As a result of Ms. Gooden's perceived demeanor and the neighbor's complaints, the officers decided to involuntarily detain Ms. Gooden for an emergency mental evaluation pursuant to the same Maryland procedures relied upon in this appeal. The officers admitted that there was no evidence to suggest that Ms. Gooden had injured herself or anyone else and that she had denied making the screams. Id. The examining physician found no sign of mental illness and released Ms. Gooden. Id. at 964. Ms. Gooden, like Peller, subsequently brought suit against the officers in their individual capacities, alleging that they had violated her Fourth Amendment rights when they seized her without probable cause. On appeal, we reversed the district court and held that the officers were entitled to qualified immunity. See id. at 968-69. In doing so, we concluded that "the law was not clear and thus failed to put these officers on notice that their conduct was unlawful." Id. at 968. 18 These officers responded to an emergency police dispatch alerting them that Peller's husband had telephoned the police department seeking help. When they arrived, the officers were confronted with an obviously distraught and crying individual alone in her home. Peller initially refused to speak with the officers but she finally relented and allowed them into her home. Although she denied having any suicidal thoughts, being depressed, or being under the care of a physician, she was uncooperative, hostile, very upset, and irrational. During Officer Rich's questioning, Peller admitted that she had had a "painful" argument with her husband and that if not for her children, she would have considered committing suicide. The police officers did not decide to detain Peller in haste. Rather, they had ample opportunity to observe and interview Peller before making a deliberate decision. Moreover, they were acting pursuant to Maryland law which authorized them to involuntarily detain and transport an individual to a facility for an emergency mental evaluation if they had "reason to believe that the individual has a mental disorder and that there is clear and imminent danger of the individual's doing bodily harm to the individual or another." Md.Code Ann., Health-Gen. I § 10-622(a) (1994). 19 Reasonable officers, relying upon our decision in Gooden and the other circuit court decisions addressing similar situations, would have concluded that involuntarily detaining Peller was not only reasonable, but prudent.4 See Gooden, 954 F.2d at 969 (holding "that the officers' conduct ... satisfie[d] the test of objective reasonableness laid down by the Supreme Court"). As in Gooden, these officers were responding to an emergency call from a concerned third-party alerting them of a potentially dangerous situation. See also Maag v. Wessler, 960 F.2d 773, 775 (9th Cir.1992) (finding officers' detention of individual reasonable when accomplished, in part, based upon concerned family members' requests for help); Chathas v. Smith, 884 F.2d 980, 987 (7th Cir.1989) (finding officers' detention of individual reasonable when effectuated based upon information provided by doctor, rather than their own personal observations). Also, as in Gooden, even though the individual exhibited no signs of physical abuse and denied any psychiatric problems, the officers perceived Peller to be evasive and uncooperative. Finally, the officers were acting in reliance upon the same Maryland involuntary commitment statute we cited with approval in Gooden. Cf. Maag, 944 F.2d at 657 (granting officers qualified immunity based, in part, upon their adherence to the Montana involuntary commitment statute). Based upon the foregoing, we conclude that there was no clearly established authority available which would have notified these officers that their conduct was unlawful. As a result, they are entitled to qualified immunity.5 B. 20 Second, Peller contends that the district court erroneously dismissed her federal claims under 42 U.S.C.A. § 1983 (West Supp.1997), against WAH, Nurse Marlene Wesley, and Dr. Hardy, because Maryland's involuntary commitment statute required them to conduct the evaluation that led to her involuntary commitment. As a result, Peller contends that WAH and its personnel were state actors.6 We conclude, however, that the statutory scheme, when viewed as a whole, is more permissive than mandatory, and that it grants private physicians complete medical discretion in determining whether an individual should be involuntarily committed. Accordingly, we decline to hold the private individuals to be state actors and dismiss Peller's § 1983 claims against them. Section 1983 of Title 42 provides that 21 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. 22 42 U.S.C.A. § 1983 (West Supp.1997). Under the express terms of the statute, § 1983 applies only to those persons who act "under color" of law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 2753-54, 73 L. Ed. 2d 482 (1982) (holding that a § 1983 claim requires a showing that "the conduct allegedly causing the deprivation of [the plaintiff's rights] be fairly attributable to the State"). WAH, Nurse Wesley, and Dr. Hardy are all private entities or individuals, not state employees. 23 This Court has identified three situations, however, in which a private party's conduct may constitute "state action." A private entity regulated by the state acts under color of state law (1) when there is either a sufficiently close nexus, or joint action between the state and the private party; (2) when the state has, through extensive regulation, exercised coercive power over, or provided significant encouragement to, the private actor; or (3) when the function performed by the private party has traditionally been an exclusive public function. See Conner v. Donnelly, 42 F.3d 220, 223-24 (4th Cir.1994) (citing Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S. Ct. 2777, 2785-86, 73 L. Ed. 2d 534 (1982)). The district court found that none of these tests had been satisfied. On appeal, Peller focuses upon the second test, i.e., state compulsion, to prove that WAH and its personnel were acting under color of state law when they involuntarily detained Peller.7 Peller cites five statutory provisions as evidence that Maryland's involuntary commitment statute coerces private medical parties, upon presentation of a properly executed petition, to conduct an emergency evaluation, and if the state-prescribed criteria are met, to admit involuntarily the evaluee. First, Maryland law provides that "[i]f the petition is executed properly, the emergency facility shall accept the emergency evaluee," Md.Code Ann., Health-Gen. I § 10-624(b)(1) (1994), and that "[i]f an emergency evaluee meets the requirements for an involuntary admission and is unable or unwilling to agree to a voluntary admissions under this subtitle, the examining physician shall take the steps needed for involuntary admission," Md.Code Ann., Health-Gen. I § 10-625(a) (1994). One of the requirements for involuntary admission is that a physician conclude that the evaluee has a "mental disorder," a term defined in the statute. Peller argues that the statutory definition of "mental disorder", i.e., one that is described in the current version of the American Psychiatric Association's Diagnostic and Statistical Manual--Mental Disorders, replaces the physician's discretion with state-prescribed criteria. See Md.Code Ann., Health-Gen. I § 10-620(e)(ii) (1994). Peller also points to the statutory provisions providing for reimbursement for services provided under an emergency petition if the emergency evaluee is unable to pay, see Md.Code Ann., Health-Gen. I § 10-628 (1994), and exempting police officers from liability under state law, see Md.Code Ann., Health-Gen. I § 10-629 (1994), to show that WAH and its staff were compelled to act. 24 This Circuit has never addressed under what circumstances, if any, a private medical professional acting pursuant to a state involuntary commitment statute is acting under color of state law. We, like the Seventh Circuit, however, find it difficult to believe that "the relevant provisions of the Mental Health Code were enacted ... to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors' goods." Spencer v. Lee, 864 F.2d 1376, 1379 (7th Cir.1989) (en banc); see also Pino v. Higgs, 75 F.3d 1461, 1467 (10th Cir.1996) (concluding that independent physicians were not state actors in the context of mental civil commitments); Harvey v. Harvey, 949 F.2d 1127, 1131 (11th Cir.1992) (same); Janicsko v. Pellman, 774 F. Supp. 331 (M.D.Pa.1991) (same), aff'd, 970 F.2d 899 (3d Cir.1992). The provisions of the Maryland statute cited by Peller use language which arguably suggests a degree of coercion. A review of Maryland's entire involuntary commitment statutory scheme, however, convinces us that it is permissive and leaves a great deal of discretion to the private medical provider. 25 Section 10-622(a), the initial step of the involuntary commitment process, provides that: 26 A petition for emergency evaluation of an individual may be made under this section only if the petitioner has reason to believe that the individual has a mental disorder and that there is clear and imminent danger of the individual's doing bodily harm to the individual or another. 27 Md.Code Ann., Health-Gen. I § 10-622(a) (1994) (emphasis added). Contrary to Peller's assertions, this section does not mandate the initiation of involuntary commitment proceedings whenever the state-prescribed criteria are met. Rather, it states that such proceedings cannot be initiated absent the existence of the criteria. Moreover, under § 10-617(a), a hospital is prohibited from involuntarily admitting an individual absent an examining physician's finding that the individual meets certain criteria. See Md.Code Ann., Health-Gen. I § 10-617(a) (1994). The converse, that a hospital must admit an individual who meets the criteria, is not true.8 Also, while "mental disorder" is statutorily defined, it is defined broadly with reference to a generally accepted psychiatric diagnostic guidebook. Moreover, it is but one of five criteria that must be satisfied before an evaluee is eligible for involuntary admission. The evaluation of the remaining four criteria is left to the complete discretion of the examining physician. See Md.Code Ann., Health-Gen. I § 10-617(a). 28 In sum, the statutory scheme, while providing guidelines to mental health care providers, does not coerce, or even encourage, physicians to involuntarily commit individuals. Cf. Janicsko, 774 F. Supp. at 338-39 (construing a nearly identical statute as permissive rather than mandatory). As the Supreme Court held in Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982), a state is not liable for determinations that "ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State." Id. at 1008, 102 S.Ct. at 2780. Accordingly, we dismiss Peller's federal claims against WAH and its staff, including Dr. Hardy. C. 29 Peller claims that the City of Takoma Park should be held liable for her alleged injuries because she sustained them as a direct result of Takoma Park's policy that allowed the police officers to detain her based simply upon their "reason to believe" that she met the statutory requirements for involuntary detention, a threshold she and Amicus interpret to be much lower than the "probable cause" standard required by the Constitution.99 Indeed, Peller correctly recites the law of this Circuit when she states that, in the context of mental health seizures, officers must have probable cause. See Gooden, 954 F.2d at 967. In light of the additional undisputed facts before the district court at summary judgment, however, we conclude that the police officers had the requisite probable cause to detain Peller. Thus, even if Takoma Park's policy were unconstitutional, the policy did not cause Peller's injuries and, therefore, she cannot recover from Takoma Park. Accordingly, we affirm the grant of summary judgment to Takoma Park. 1. 30 Before we begin our analysis of Peller's challenge to the constitutionality of Takoma Park's involuntary detention policy, it is important to note that Peller does not assert a facial challenge to the policy.10 This is not surprising in light of the numerous court decisions upholding the constitutionality of this specific statute and other similarly phrased statutes allowing police officers to involuntary detain individuals if they have "reason to believe" or a "reasonable belief" that the individual is mentally ill and poses a danger to herself or others. See Gooden, 954 F.2d 960 (finding police officers' detention of individual for mental evaluation pursuant to Maryland statute objectively reasonable and therefore, not violative of the Fourth Amendment); Ahern v. O'Donnell, 109 F.3d 809, 817 (1st Cir.1997) (interpreting Massachusetts statute authorizing a police officer who "believes that failure to hospitalize a person would create a likelihood of serious harm by reason of mental illness" to detain such person as requiring probable cause, and therefore, constitutional); Monday v. Oullette, 118 F.3d 1099, 1103 (6th Cir.1997) (concluding that police officer's compliance with Michigan statute authorizing officer who "reasonably believe[s]" that an individual requires psychiatric treatment satisfied the probable cause requirement of the Fourth Amendment); Pino v. Higgs, 75 F.3d 1461, 1468-69 (10th Cir.1996) (dismissing plaintiff's Fourth Amendment claim because police officers detained her in accordance with New Mexico statute authorizing police officers to detain individual once they had "reasonable grounds to believe that the person, as a result of mental illness, present[ed] a serious likelihood of harm to [her]self or others"); Sherman v. Four County Counseling Center, 987 F.2d 397, 410 (7th Cir.1993) (finding that Indiana statute authorizing police officers to detain individuals if they have "reasonable grounds to believe that an individual is mentally ill, dangerous, and in immediate need of hospitalization and treatment" was facially valid). Rather, Peller seeks to establish that Takoma Park's policy, while facially valid, is unconstitutionally applied by its police department as evidenced by the department's inadequate training of its officers. 31 A municipality may be held liable under 42 U.S.C.A. § 1983 for constitutional violations resulting from its failure to train municipal employees. See Canton v. Harris, 489 U.S. 378, 380, 109 S. Ct. 1197, 1200, 103 L. Ed. 2d 412 (1989). Viewing the evidence in the light most favorable to Peller, we assume that Takoma Park failed to instruct its police officers that its policy allowing the seizure of an individual based upon the officers' "reason to believe" is not a lesser standard of evidence, but is consistent with the Fourth Amendment's requirement that they have probable cause to lawfully detain an individual for an emergency psychiatric evaluation.11 The omission of instruction regarding the proper constitutional standard to detain an individual in the mental health context is clearly inadequate training. See Gooden, 954 F.2d at 967 (holding that a police officer's seizure of an individual for an emergency psychiatric evaluation must be supported by probable cause); see also Monday, 118 F.3d at 1101; Ahern, 109 F.3d at 817; Pino, 75 F.3d at 1467-68; Sherman, 987 F.2d at 401; Glass v. Mayas, 984 F.2d 55, 58 (2nd Cir.1993); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir.1991); In re Barnard, 455 F.2d 1370, 1373-74 (D.C.Cir.1971). Even assuming for the purposes of summary judgment that the training of its officers was unconstitutional, Takoma Park cannot be held liable when, as here, no constitutional violation occurred because the officers had probable cause to detain Peller. See Board of County Commissioners v. Brown, --- U.S. ----, ----, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626 (1997) (holding that a plaintiff must show a "direct causal link between the municipal action and the deprivation of federal rights" before a municipality may be held liable under 42 U.S.C.A. § 1983); City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 1573, 89 L. Ed. 2d 806 (1986) (holding that a municipality may be held liable under 42 U.S.C.A. § 1983 only for an actual constitutional violation committed by individual official). 2. 32 In Gooden, we concluded that the law governing what constitutes probable cause in the mental health context was unclear in comparison with the abundance of guidance found in the criminal context. 954 F.2d at 968. Moreover, we acknowledged that reasonableness under the Fourth Amendment is a fact-specific determination that must be made on a case-by-case basis. See id. As the Supreme Court has held: 33 Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are common-sense, non-technical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. As such, the standards are not readily, or even usefully, reduced to a neat set of legal rules.... We have cautioned that these two legal principles are not finely-tuned standards, comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. 34 Ornelas v. United States, 517 U.S. 690, ----, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911 (1996) (citations and internal quotation marks omitted) (emphasis added). 35 When, as in this case, there is no genuine issue of material fact, the existence of probable cause becomes a purely legal question subject to de novo review. See Potts v. City of Lafayette, 121 F.3d 1106, 1112 (7th Cir.1997) (holding that "[i]f the underlying facts supporting the probable cause determination are not in dispute, the court can decide whether probable cause exists"). In the context of a criminal arrest, we have held that when 36 assessing the existence of probable cause, courts examine the totality of the circumstances known to the officer at the time of the arrest. Probable cause exists when the facts and circumstances known to the officer would warrant the belief of a prudent person that the arrestee had committed or was committing an offense. Probable cause must be supported by more than a mere suspicion, but evidence sufficient to convict is not required. 37 Taylor v. Waters, 81 F.3d 429, 434 (4th Cir.1996) (citations and internal quotation marks omitted); see also United States v. Dorlouis, 107 F.3d 248, 255 (4th Cir.1997) (holding that "probable cause ... depends upon whether ... the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant or defendants had committed an offense"), cert. denied, --- U.S. ----, 117 S. Ct. 2525, 138 L. Ed. 2d 1025 (1997). While probable cause remains, even in the criminal context, a sometimes difficult and always fact-specific inquiry, there are a plethora of cases refining its boundaries. Unfortunately, the law governing seizures for psychiatric evaluations is not nearly as well-defined. See Gooden, 954 F.2d at 968 ("Certainly the concept of 'dangerousness' which calls on lay police to make a psychological judgment is far more elusive than the question of whether there is probable cause to believe someone has in fact committed a crime."); id. ("The lack of clarity in the law governing seizures for psychological evaluations is striking when compared to the standards detailed in other Fourth Amendment contexts, where probable cause to suspect criminal misconduct has been painstakingly defined."); id. ("We are aware of no cases that define 'dangerousness' with the requisite particularity or explain what type or amount of evidence would be constitutionally sufficient to establish probable cause of a dangerous condition."). 38 "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803, 114 L. Ed. 2d 297 (1991). Reasonableness is measured in objective terms by examining the totality of the circumstances. See Ohio v. Robinette, 519 U.S. 33, ----, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996). In determining the reasonableness of a seizure "it is necessary 'first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to [seize] against the invasion which the [seizure] entails.' " Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 537, 87 S. Ct. 1727, 1734, 1735, 18 L. Ed. 2d 930 (1967)); see also Villanova v. Abrams, 972 F.2d 792, 796 (7th Cir.1992) (determining that reasonableness of detainee's commitment turns upon whether the seriousness of the potential harm and the probability of that harm outweigh the cost of confinement to the detainee). 39 Maryland's involuntary commitment procedures, adopted verbatim by Takoma Park, provide that an emergency evaluee transported to a medical facility must be evaluated by a physician within six hours of arrival. See Md.Code Ann., Health-Gen. I § 10-624(b)(2) (1994). The statute further directs the prompt release of the evaluee after the examination unless she is voluntarily admitted to the facility or the physician determines that the evaluee meets the requirements for involuntary admission. See Md.Code Ann., Health-Gen. I § 10-624(b)(3) (1994). Peller's detention and transportation to WAH for the limited purpose of a psychiatric evaluation within six hours by trained medical professionals was a very limited intrusion and objectively reasonable in light of the totality of the circumstances confronting the officers. In addition to the facts outlined in the complaint and previously discussed, supra in Part II.A.2., it is undisputed that the officers were informed by the dispatcher that Peller's husband had reported her to be suicidal. Moreover, Peller made certain disturbing statements to Officer Rich, including "I want to leave this earth," "I don't want to be here," "I will not be around when my children get home," (J.A. at 259), and that she would "disappear by the end of the day," (J.A. at 270).12 Based upon the foregoing, we hold as a matter of law that the officers had probable cause to believe that there was a clear and imminent danger that Peller, as a result of a mental disorder, would harm herself if left alone. See Gooden, 954 F.2d at 967 (noting that it is "all too facile [to suggest] that the officers should have walked away from the situation because [the plaintiff] evidenced no injuries at the time they were with her [because if] the officers had refused to act until they saw blood, bruises and splintered furniture, it might have been too late" (internal quotation marks omitted) (first alteration in original)); cf. Monday, 118 F.3d at 1102-03 (probable cause supported detention of individual for mental evaluation, despite individual appearing coherent and denying suicidal thoughts, when officer had been summoned by dispatcher to respond to suicide threat, individual was drinking, and a number of prescription pills were missing); Ahern, 109 F.3d at 817-18 (probable cause supported detention of individual for mental evaluation when individual threatened another a day earlier and had a history of harassment, threats, and stalking, despite the lack of visible signs of mental illness or threat of dangerousness at the time of the seizure); Sherman, 987 F.2d at 401-02 (probable cause supported detention of individual for mental evaluation based upon individual's numerous threats against others and odd public behavior); Maag, 960 F.2d at 776 (probable cause supported detention of individual for mental evaluation based upon information from family members and friends that individual was irrational, individual's disoriented appearance, and a physician's advice). Because the officers had probable cause to detain Peller for the limited purpose of transporting her to WAH for an emergency mental evaluation, no constitutional violation occurred. As such, Takoma Park necessarily is not liable for any alleged injuries. Accordingly, we affirm the district court's grant of summary judgment to Takoma Park. III. 40 In conclusion, we affirm the district court's dismissal of Peller's federal claims against the individual police officers, holding that their actions did not violate clearly established law and therefore, they are entitled to qualified immunity. We conclude that WAH and its personnel were not acting under color of law when they involuntarily detained and subsequently admitted Peller, and therefore, are not subject to liability under 42 U.S.C.A. § 1983. And finally, we hold that, considering the totality of the circumstances, the officers had probable cause to believe that Peller suffered from a mental disorder and was a clear and imminent danger to herself. Accordingly, Peller's constitutional rights were not violated and therefore, Takoma Park is not liable to Peller. 41 AFFIRMED. 1 The district court also dismissed the federal claims against Chief Phillips pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, stating that the complaint did not provide him with fair notice of the claims against him and that to sue him in only his official capacity was a mere redundancy because the City of Takoma Park was already named as a defendant. Further, the district court dismissed several state law claims against the municipal defendants, concluding that Peller had failed to comply with Maryland's statutory notice requirements. See Md.Code Ann., Cts. & Jud. Proc. § 5-404(a) (1995). Additionally, the district court declined to exercise jurisdiction over Peller's pendent state law claims against WAH and its personnel and dismissed them without prejudice. The district court also concluded that Peller failed to allege facts sufficient to establish a 42 U.S.C.A. § 1985 conspiracy claim between the police officers and the medical defendants. None of these rulings have been appealed 2 Sergeant Bonn is not identified by name in the complaint. He is referred to therein as "John Doe I." (J.A. at 200.) 3 Peller contends that the officers had to have probable cause to believe that there were no less restrictive alternatives to transporting her to WAH. We disagree. Maryland requires only a reasonable belief that an individual suffers from a mental disorder and is a clear and imminent danger to herself or others to justify a petition for an emergency evaluation. However, before an evaluee may be involuntarily admitted to a hospital, a physician must conclude, among other things, that there is no less restrictive form of intervention available. The Supreme Court requires no more. See O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396 (1975) (requiring an evaluation of less restrictive alternative forms of intervention before confining a mentally ill individual who does not pose a danger to himself or others) 4 To the extent that these Maryland officers should be charged with the knowledge of other circuit court decisions, we are convinced that those decisions failed to clarify the law such that these officers should have known that their conduct was unlawful. All of the circuit courts that had addressed the reasonableness of a seizure by police officers of an individual believed to be a danger to herself or others for the purpose of an emergency mental evaluation, had concluded that the officers' actions were reasonable and, therefore, that they were entitled to qualified immunity. See Maag v. Wessler, 960 F.2d 773, 776 (9th Cir.1992) (granting officers qualified immunity who detained individual for emergency mental evaluation pursuant to Montana law and based upon his family's statements that he was acting irrational, his disoriented appearance, and a physician's advice); Chathas v. Smith, 884 F.2d 980, 987 (7th Cir.1989) (granting officers qualified immunity who detained individual for mental observation based upon individual's prior threats to "blow away" police officers, prior incidents in which individual used firearms when upset, and information that individual was under psychiatric care); McKinney v. George, 726 F.2d 1183, 1188 (7th Cir.1984) (granting officers qualified immunity who involuntarily transported individual to mental facility for evaluation after he created a disturbance and ran "naked through the halls" of the police station after he was lawfully arrested); Harris v. Pirch, 677 F.2d 681, 689 (8th Cir.1982) (granting officers qualified immunity who detained woman for emergency mental evaluation when the officer knew of woman's recent hospitalization, she was upset and became angry when questioned, and officer feared she had taken an overdose) 5 Peller's argument that the officers are not entitled to the defense of qualified immunity because they did not know that they needed "probable cause" to effectuate a lawful detention is meritless. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3039-40, 97 L. Ed. 2d 523 (1987) (holding that an officer's subjective beliefs are irrelevant when evaluating the reasonableness of their actions); Rowland v. Perry, 41 F.3d 167, 173 (4th Cir.1994) (holding that an "officer's subjective state of mind is not relevant to the qualified immunity inquiry"); see also Maag v. Wessler, 960 F.2d 773, 776 n. 3 (9th Cir.1992) (granting police officers qualified immunity for detaining individual for emergency mental evaluation even though officers could not cite to specific statutory section authorizing their actions) 6 The Maryland involuntary commitment statute provides that: (a) In general.--A facility or Veterans' Administration hospital may not admit the individual under Part III of this subtitle [i.e., involuntary admission] unless: (1) The individual has a mental disorder; (2) The individual needs inpatient care or treatment; (3) The individual presents a danger to the life or safety of the individual or of others; (4) The individual is unable or unwilling to be admitted voluntarily; and (5) There is no available, less restrictive form of intervention that is consistent with the welfare and safety of the individual. Md.Code Ann., Health-Gen. I § 10-617 (1994). 7 We also conclude that Peller fails to meet the requirements of the first and third tests for the reasons stated by the district court. See S.P. v. City of Takoma Park, Md., C.A. No. JFM-95-1295 (D.Md. Dec. 4, 1995) (rejecting the nexus/joint action test because the state does not take away the private physicians' discretion through regulations and Peller failed to allege facts showing a conspiracy between the officers, WAH, and the WAH staff and rejecting the public function test because the involuntary commitment of the mentally ill is not an exclusively public function) 8 We disagree with Peller's argument that § 10-624 & § 10-625 of Maryland's involuntary commitment statute require the treatment of an individual meeting certain requirements. While the provisions provide that the hospital and physician "shall" begin treatment upon the finding of certain statutory criteria, the Supreme Court has recently held that, although "shall" generally means "must," it may be construed to mean "should," "will," or even "may." See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 n. 9, 115 S. Ct. 2227, 2236 n. 9, 132 L. Ed. 2d 375 (1995). Accordingly, we cannot say that the provisions coerce the private medical parties to involuntarily detain an individual. Rather, we conclude that the legislature's intent was to protect the individual and potentially the general public, not to coerce the involuntary commitment of the individual. See Janicsko v. Pellman 774 F. Supp. 331, 338 (M.D.Pa.1991) (construing similar provisions of Pennsylvania involuntary commitment statute as protective rather than coercive), aff'd, 970 F.2d 899 (3d Cir.1992) 9 The American Civil Liberties Union of Maryland filed an amicus brief in support of Peller on this issue only. The ACLU contends that Takoma Park's policy for emergency psychiatric detention violates the Fourth Amendment by allowing police to seize a person for an emergency evaluation without probable cause. (Amicus Br. at 2.) 10 Takoma Park has adopted verbatim the Maryland involuntary commitment statute as its own policy 11 Peller submitted depositions of Officer Rich, Officer Frishkorn, and Captain Wortman in which they all testified that they believed that "reason to believe," the standard necessary to lawfully detain an individual pursuant to Md.Code Ann., Health-Gen. I § 622(a) (1994), was a lower standard of evidence than probable cause. (J.A. at 411-12, 451-52, 547.) 12 Peller argues that a material issue of genuine fact exists because she denied, by affidavit submitted in opposition to summary judgment, making the statements attributed to her by the police officers. In an earlier deposition, however, Peller admitted that she told the officers "something to the effect that I'd just like to get out of here and leave and just not have to deal with anything" and that she used the word "disappear." (Supp. J.A. at 12.) "It is well established that'[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.' " Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir.1997) (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984)); see also Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975-76 (4th Cir.1990) (disregarding affidavit of witness that contradicted witness' own prior sworn deposition testimony). Accordingly, Peller's later denial of her statements does not create a genuine issue of a material fact	01-03-2023	04-18-2012
https://www.courtlistener.com/api/rest/v3/opinions/2118171/	56 Cal.App.3d 412 (1976) 128 Cal. Rptr. 572 JERRY L. SMITH et al., Plaintiffs and Appellants, v. MT. DIABLO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents; INTERNATIONAL BUSINESS MACHINES CORPORATION, Real Party in Interest and Respondent. Docket No. 36871. Court of Appeals of California, First District, Division Four. March 23, 1976. 414 COUNSEL Boatwright, Adams & Safine, Stuart A. Safine and Bruce Board for Plaintiffs and Appellants. John B. Harmon and Harold L. Howard as Amici Curiae on behalf of Plaintiffs and Appellants. John B. Clausen, County Counsel, and Silvano Marchesi, Deputy County Counsel, for Defendants and Respondents. Pillsbury, Madison & Sutro, Walter R. Allan and James J. Walsh for Real Party in Interest and Respondent. OPINION CALDECOTT, P.J. The question presented by this appeal is whether Code of Civil Procedure sections 860-870 (the validating statutes) govern a school district's contract for the purchase of a computer. We conclude that they do not. Appellants, as taxpayers, commenced this action for injunctive and declaratory relief against respondents Mt. Diablo School District (District), the members of the board of education (Board), superintendent of the District, and International Business Machines Corporation (IBM). On November 13, 1973, the Board passed a motion that bids be called for on the purchase of a computer, based upon certain stated specifications. These specifications, set forth in a notice to bidders on November 14, listed items allegedly "available from only one supplier and/or 415 manufacturer," namely, IBM, and therefore allegedly prevented open competitive bidding from other responsible bidders as required by state law. (Gov. Code, § 4380.) On December 7, 1973, bids were opened and summarized. The Board determined that the three bids lower than that of IBM did not meet the specifications, and they were therefore disqualified. At its meeting on January 29, 1974, the Board passed a motion that the IBM bid "be accepted, subject to review by legal counsel; the money for the purchase to come from District bond funds." On March 14, 1974, a purchase order was prepared by the District and a contract was signed by the superintendent, who was also secretary of the Board, for the purchase. Appellants alleged that the Board had not delegated the power to contract to the superintendent, nor had they approved or ratified the contract by resolution or otherwise. Respondents moved for dismissal of the action on the ground that the complaint showed on its face that it had not been filed within 60 days from the award of the contract, citing section 860 et seq. of the Code of Civil Procedure. The motion was granted and judgment entered for respondents. The appeal is from the judgment. I Appellants' initial contention is that the trial court mistakenly construed their complaint and proceeded on the unfounded assumption that a contract "existed" under the language of Code of Civil Procedure section 864: "For the purposes of this chapter, bonds, warrants, contracts, obligations, and evidences of indebtedness shall be deemed to be in existence upon their authorization. Bonds and warrants shall be deemed authorized as of the date of adoption by the governing body of the public agency of a resolution or ordinance authorizing their issuance, and contracts shall be deemed authorized as of the date of adoption by the governing body of the public agency of a resolution or ordinance approving the contract and authorizing its execution." Appellants base this argument on two interrelated points: the court below improperly interpreted the pleadings, and the contract signed by IBM and the superintendent was not validly authorized or approved, nor within the statutory powers of the Board. 416 The first of these allegations is refuted by the plain language of the complaint, and requires no further analysis. The physical existence of a contract is clear. The second point is the crux of appellants' complaint that the contract signed by IBM and the superintendent is invalid. However, appellants err in their conclusion that an invalid contract is necessarily not in existence for purposes of the validating statutes, assuming that they apply to such contracts at all. (1a) The validity of the matters encompassed by Code of Civil Procedure sections 860-870 is the precise question to be answered thereunder; hence, cognizance under those sections is not based upon the validity of the substance or procedures attacked, but upon the specific definitions provided in Code of Civil Procedure section 864, supra. The fairness of the bidding process, compliance with applicable statutes and ordinances, and proper execution and authorization all are relevant at this juncture only insofar as they relate to the applicability of Code of Civil Procedure section 864. The pertinent provisions of that section specify that "contracts ... shall be deemed to be in existence upon their authorization.... [C]ontracts shall be deemed authorized as of the date of adoption by the governing body of the public agency of a resolution or ordinance approving the contract and authorizing its execution." Appellants rest their argument on the contention that the Board, admittedly the "governing body of the public agency" involved, did not approve the contract or authorize its execution, nor did it delegate its authority to the superintendent or any other person under the provisions of Education Code section 15961. They argue that the allegedly improper bidding procedures precluded a "valid" contract from being formed, though they acknowledge that "[i]f the bidding procedures herein were correct under the law, perhaps there could have been a contract formed on January 29, 1974 when the bid was awarded to IBM." As noted above, this concern with "validity" of the contract misses the mark.[1] (2) At the time the written bid was accepted by the Board at its January 29 meeting, a contract was formed. (United States v. Purcell Envelope Co., 249 U.S. 313, 319-320 [63 L.Ed. 620, 624-625, 39 S.Ct. 300]; 417 Berkeley Unified Sch. Dist. v. James I. Barnes Const. Co., 112 F. Supp. 396, 398-399; City of Susanville v. Lee C. Hess Co., 45 Cal.2d 684, 694 [290 P.2d 520]; 15 Ops. Cal. Atty. Gen. 123, 125.) The motion of the Board, passed by a vote of four to one, was therefore the requisite approval of the contract and authorization of its execution, as a motion, is the equivalent of a resolution under such circumstances. (5 McQuillin, Municipal Corporations (1969 rev. vol.) § 15.02, pp. 43-45, § 15.06, pp. 56-58, § 15.08, pp. 63-65; cf. City of Sausalito v. County of Marin, 12 Cal. App.3d 550, 565-566 [90 Cal. Rptr. 843]; McPherson v. Richards, 134 Cal. App. 462, 466 [25 P.2d 534].) Whether the superintendent, who is also secretary of the Board, was authorized to thereafter sign the formal written contract is irrelevant for purposes of section 864; that is one of the matters which may be tested under the validating procedures themselves, if they apply to such contracts. (1b) It must be reiterated that the finding of "existence" of a contract, as defined in Code of Civil Procedure section 864, has no bearing on the question of validity or enforceability of that contract under the applicable laws. II The primary question raised on this appeal is whether the validating statutes, Code of Civil Procedure sections 860-870, govern the instant action.[2] The issue revolves around the language of Government Code section 53511, which reads: "A local agency may bring an action to determine the validity of its bonds, warrants, contracts, obligations or evidences of indebtedness pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure." (Italics added.) It is the meaning of the word "contracts" that leads to the basic dispute herein. Both parties assert that this language was taken from Code of Civil Procedure section 864, but they reach different conclusions as to the interpretation of that latter section. The court below impliedly found that "contracts" includes the type of agreement in the instant case, and therefore applied the provisions of Code of Civil Procedure sections 860, 863, and 869, to bar appellants' complaint as untimely in view of their failure to bring an action within 60 days of the "existence of the contract." 418 Only two cases have previously analyzed the precise statutes in issue here. Phillips v. Seely, 43 Cal. App.3d 104 [117 Cal. Rptr. 863], was a taxpayers' action challenging the validity of a contract between a county board of supervisors and a private party for the rendition of legal services. The court unanimously held that "the contract for rendition of legal services to the county by Warren was not subject to sections 860 and 863," in spite of the language of Government Code section 53511. (43 Cal. App.3d at pp. 111, 112.) This result in Phillips rested almost entirely upon certain dicta in the Supreme Court opinion in City of Ontario v. Superior Court, 2 Cal.3d 335 [85 Cal. Rptr. 149, 466 P.2d 693]. In that decision, the court considered at length the question presented in the instant action, but decided the case on the ground that the "complex and debatable" issue of applicability at least constituted the "good cause" required by section 863 of the Code of Civil Procedure for relief from default (for failure to comply with the summons procedure of the validating statutes). (2 Cal.3d at pp. 345-347.) (3) Although not controlling, the dicta is entitled to substantial weight, particularly in view of its thoroughness. (San Joaquin etc. Irr. Co. v. Stanislaus, 155 Cal. 21, 28 [99 Cal. Rptr. 365]; Granger v. Sherriff, 133 Cal. 416, 417 [65 P. 873]; In re Olson, 37 Cal. App.3d 783, 789 [112 Cal. Rptr. 579].) It is clear that the language of Government Code section 53511, while perhaps appearing unambiguous and unqualified, cannot be so deemed in view of the legislative background. It is true that where the meaning of a statute is plain and unambiguous, and there is no uncertainty as to legislative intent, there is no need for construction and courts should not indulge in it. (Caminetti v. Pac. Mutual L. Ins. Co., 22 Cal.2d 344, 354 [139 P.2d 908].) (4) However, "`The literal meaning of the words of a statute may be disregarded ... to give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole.'" (County of Sacramento v. Hickman, 66 Cal.2d 841, 849, fn. 6 [59 Cal. Rptr. 609, 428 P.2d 593], quoting Silver v. Brown, 63 Cal.2d 841, 845 [48 Cal. Rptr. 609, 409 P.2d 689].) 419 The Supreme Court enumerated in City of Ontario, various aspects of the legislative history suggesting inapplicability of the validating statutes to contracts of the type here in question. Certain other features of that historical background, however, suggest an opposite interpretation. Most of the statutes enacted simultaneously with the validating act included language involving bonds and assessments. Some, however, referred to validation of contracts; although most of these latter concerned contracts with other often federal agencies, some involved contracts of acquisition and construction. Thus, Water Code section 43730 was enacted (Stats. 1961, ch. 1531, p. 3367), and its reference to "contracts ... or the taking of any other action by the district or by the board" clearly encompasses powers previously granted to enter into contracts of construction or improvement. (Wat. Code, §§ 43300-43309.)[3] Streets and Highways Code section 5265 (Stats. 1961, ch. 1523, p. 3361), likewise relating to "the validity of any contract," has reference to prior sections dealing with contracts for construction, and for acquisition of materials, supplies and equipment. (Sts. & Hy. Code, § 5240 et seq.) Similarly, Streets and Highways Code section 10601 (as amended by Stats. 1961, ch. 1526, p. 3364) relates in part to contracts for construction of improvements. (Sts. & Hy. Code, § 10500 et seq.) Similar language in the numerous uncodified Water Act provisions enacted simultaneously with Code of Civil Procedure sections 860-870[4] reaffirms the conclusion that, at least in certain instances, the Legislature understood the word "contracts" in section 864 to include matters other than "the limited topic of a local agency's financial obligations." (City of Ontario, supra, 2 Cal.3d at p. 344.) This is not dispositive of the issue, however, for it must be apparent that "contracts" as used in section 864 had no static meaning. Rather, the term must be defined by the legislative context in which it appears in particular follow-up enactments. Thus, although the unqualified word "contract" is utilized in a number of the statutes created simultaneously with the validating act, it is clear that in some of these sections no broad meaning is intended or even possible. (See e.g., Wat. Code, §§ 23225, 35855.) The Supreme Court's admonition that "under well-known 420 canons of statutory interpretation, [the language of Gov. Code, § 53511] ... should ordinarily be given the same meaning as it had in the earlier statute [§ 864]" (City of Ontario, supra, 2 Cal.3d at p. 343) is therefore of little guidance in construing Government Code section 53511. The statutory context of that latter section, the legislative counsel's characterization of the measure, and the inaptness of its language if intended to express the broad general meaning found by the lower court here, are all described in City of Ontario. (2 Cal.3d at pp. 343-344.) Certain rules of construction are also of assistance in ascertaining the legislative intent, our primary objective. (East Bay Garbage Co. v. Washington Township Sanitation Co., 52 Cal.2d 708, 713 [344 P.2d 289]; California Sch. Employees Assn. v. Jefferson Elementary Sch. Dist., 45 Cal. App.3d 683, 691 [119 Cal. Rptr. 668].) The intent of the Legislature may be ascertained from all of the circumstances and from the consequences that flow from the various interpretations of the statute. (Pulcifer v. County of Alameda, 29 Cal.2d 258, 262 [175 P.2d 1]; Estate of Ryan, 21 Cal.2d 498, 513 [133 P.2d 626].) (5) Substance rather than form should be considered if strict adherence to form would result in injustice, or absurd or unjust results would follow from a literal interpretation of the language. (Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 113 [142 P.2d 929]; Golden v. City of Oakland, 49 Cal. App.3d 284, 291 [122 Cal. Rptr. 400].) The untoward results of the construction urged by respondents have been appropriately described by the Supreme Court and are worth repeating here: "The practical consequence of this statutory scheme should be clearly recognized: an agency may indirectly but effectively `validate' its action by doing nothing to validate it; unless an `interested person' brings an action of his own under section 863 within the 60-day period, the agency's action will become immune from attack whether it is legally valid or not. Indeed, in the case at bar the City concedes this to be so. Thus a statute which begins by providing a remedy to be pursued by public agencies, expressly declaring it to be `in the nature of a proceeding in rem' (§ 860), concludes by making it unnecessary for such agencies to do anything at all, and the incidental or derivative remedy of an `interested person' turns out to be controlling. This is truly a case of the tail wagging the dog." (2 Cal.3d at pp. 341-342.) Such an onerous practical result is contrary to the purposes, background and statutory context of both sections 53511 and 860-870. (6) We must conclude that it was not the intention of the 421 Legislature that the contract between the District and IBM is the kind of financial obligation contemplated to be automatically validated absent a challenge within the 60 days. III Appellants request that attorney's fees and costs be awarded on this appeal. (7) Recognizing that no statutory (Code Civ. Proc., § 1021) or contractual provisions authorize fees, they rely on certain recognized nonstatutory grounds as authority for their request. However, at this stage of the proceedings, none of the asserted nonstatutory bases is available. Appellants have thus far not even established their proper representation of a class, nor does the opinion herein express any view or indication of the outcome of the action on the merits. No specific fund has yet been created or preserved (D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 25 [112 Cal. Rptr. 786, 520 P.2d 10]; Mandel v. Hodges, 54 Cal. App.3d 596 [127 Cal. Rptr. 244]), nor has any "substantial benefit" yet been attained. (Knoff v. City etc. of San Francisco, 1 Cal. App.3d 184, 203-204 [81 Cal. Rptr. 683].) The issue of attorney's fees is thus prematurely raised. The judgment is reversed. Christian, J., and Emerson, J.,[] concurred. NOTES [1] Appellants contend that "[i]f a contract could be formed by violating bidding procedures, the bidding regulations themselves would be totally useless." However, it is clear that such procedural violations can be a ground for invalidating the contract under Code of Civil Procedure sections 860-870, if they apply to such contracts at all. [2] Neither party contends that Education Code section 21708, applying the Code of Civil Procedure validating act to school district bond proceedings, applies to the instant case. However, amici curiae raise the additional question of whether the Education Code provision precludes applicability of the validation statutes, through other laws (such as Gov. Code, § 53511), to other actions of school districts, such as contracts of the type here in issue. Nothing in the legislative history of the Education Code section (enacted in 1959 and amended simultaneously with enactment of the validating act to which it refers) indicates such an exclusivity. Application of both Government Code section 53511 and Education Code section 21708 to school district presents no evident disharmony, though of course, the more specific statute would control any differences. Neither is there any indication that the more general provision, later enacted, was intended to repeal the earlier section by implication. Rather, the statutes may be harmonized and reconciled and effect given to both. [3] Indeed, the predecessor to this 1961 legislation also referred to validation of, inter alia, such contracts. (Wat. Code, § 43900, repealed Stats. 1961, ch. 1531, p. 3367.) Other pre-1961 statutes were similarly worded. (See Summary of Existing Validating Procedures, Judicial Council of Cal., 18th Biennial Rep. (1961) pp. 116-118.) [4] These sections are listed at 36 State Bar J. (1961) page 717. Those including validation of a "contract" are Statutes 1961, chapters 1482-1485, 1489-1491, 1494, 1501, 1506, 1514-1516, 1559. [] Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/560714/	932 F.2d 959 Energetic Chemical Specialties, Inc.v.Dymax Corporation NO. 90-5679 United States Court of Appeals,Third Circuit. APR 19, 1991 Appeal From: D.N.J., Ackerman, J. 1 AFFIRMED.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/242067/	243 F.2d 784 Albert HABAZ, Appellant,v.EMPLOYERS' FIRE INSURANCE COMPANY, Appellee. No. 15682. United States Court of Appeals Eighth Circuit. May 1, 1957. Richard W. Hobbs, Hot Springs, Ark. (B. W. Thomas, Hot Springs, Ark., was with him on the brief), for appellant. E. L. McHaney, Little Rock, Ark. (John M. Lofton, Jr., James M. McHaney, G. Thomas Eisele, and Owens, McHaney, Lofton & McHaney, Little Rock, Ark., were with him on the brief), for appellee. Before JOHNSEN, VOGEL and VAN OOSTERHOUT, Circuit Judges. VOGEL, Circuit Judge. 1 Albert Habaz, appellant, brought this suit to recover on a policy of insurance issued to him by the appellee. Diversity of citizenship and involvement of more than the statutory requirement form the basis for federal jurisdiction. 2 At the time in question, the appellant was the operator of a shop at 322 Central Avenue in Hot Springs, Arkansas. Central Avenue forms the bottom of a narrow valley which in periods of rainfall exceeding the capacity of storm sewers becomes a drainway funneling water through the City of Hot Springs. On the morning of February 15, 1956, there were severe cloudbursts at Hot Springs. Central Avenue was flooded to a depth of at least three feet. During or following the cloudburst the front door of appellant's shop caved in. The shop was flooded with water and appellant's merchandise was damaged in an amount alleged to be $16,299.08. 3 The pleadings, admissions, answers to interrogatories and appellant's pre-trial deposition established that at the time of the flood an automobile was propelled by the force of the flood waters onto the sidewalk in front of appellant's place of business in such a manner that it diverted flood waters against the door of appellant's shop, that the door was thus caused to break down, letting water into the shop with the resultant damage. Flood water entered some but not all of the other buildings on Central Avenue in the vicinity of the appellant's shop. The automobile that lodged in front of appellant's shop struck the front of the building, causing a slight crack in one of the small white tiles below one front show window but no water entered the building on that account. All of the water entered through the door opening, some little distance from the automobile itself. 4 It was admitted that the appellee had issued its policy of insurance to the appellant covering certain contents of the building located at 322 Central Avenue, Hot Springs, Arkansas, and that the policy had an extended coverage endorsement which, insofar as it may be pertinent herein, provided as follows: 5 "* * * the coverage of this policy is extended to include direct loss by Windstorm, Hail, Explosion, Riot, Riot Attending a Strike, Civil Commotion, Aircraft, Vehicles, and Smoke." (Emphasis supplied.) The endorsement further provided: 6 "Provisions Applicable Only to Loss by Aircraft and Vehicles: The term `vehicles', as used in this endorsement, means vehicles running on land or tracks but not aircraft. Loss by aircraft or by vehicles shall include only direct loss resulting from actual physical contact of an aircraft or a vehicle with the property covered hereunder or with the building containing the property covered hereunder, except that loss by aircraft includes direct loss by objects falling therefrom. This Company shall not be liable, however, for loss (a) by any vehicle owned or operated by the Insured or by any tenant of the described premises; (b) by any vehicle to fences, driveways, walks or lawns; (c) to any aircraft or vehicle including contents thereof other than stocks of aircraft or vehicles in process of manufacture or for sale." (Emphasis supplied.) 7 Appellant contended, and the appellee denied, that his loss was covered by the terms of the policy. 8 Based upon admission of facts, answers to interrogatories and the deposition of the appellant taken at the instance of the appellee, the appellee made a motion to dismiss which the court treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. 9 In granting appellee summary judgment, the trial court found that the policy involved was primarily a fire and lightning policy and that appellant's flood loss was not covered by the extended coverage endorsement, which included direct loss by vehicles. The trial court stated that it was basing its decision on two factors: 10 "First, the loss sustained by plaintiff was not proximately caused by the contact of the vehicle with the building. The same damage could have occurred even though the vehicle never in fact touched the building, but was merely lodged close enough to the building to divert the water into the doorway. In other words, the striking of the building by the automobile was not the cause of the damage; the cause of the damage was the flood water that was diverted into the doorway by the automobile, which acted as a dam. 11 "The second reason the Court is convinced that the defendant is entitled to a summary judgment is that the proximate cause of the damage was the flood water and not the vehicle. It was the flood water which propelled the vehicle into the position shown by the photograph and it was the flood water that entered the building and caused the damage. In other words, the flood water was the initiating and proximate cause of the whole occurrence." 12 It is fundamental, of course, that summary judgment may not be granted unless there remains in the case no genuine issue as to any material fact. It is one of the appellant's contentions that a jury should have been allowed to determine whether the vehicle was propelled into position by flood waters or found its way there by other means. While we do not believe that the manner in which the vehicle was lodged between a parking meter and one of the show windows of the appellant's shop is of controlling importance here, nevertheless we are of the opinion that the District Court was thoroughly justified by the record in making the statement: 13 "During the course of the flash flood an automobile was propelled into the position shown on the photograph, above referred to, by the force of the flood water." 14 There is no allegation as to the manner in which the vehicle got into the position where it acted as a dam for the flood waters, but in answer to a request for admission of facts in that regard, the appellant, after first objecting to answering on the ground that his answer would be based on hearsay, stated that he was informed by other persons that the automobile was propelled into the position described by the force of the flood waters and gave the names of his witnesses with reference thereto. We accordingly believe that the District Court was correct in making the conclusion that it did and that no material fact issue remained in the case. Resort to summary judgment was proper. 15 We also conclude that the trial court was correct in its statement that "the proximate cause of the damage was the flood water and not the vehicle". This is not a case of having to choose from several possible proximate causes of loss, such as the appellant suggests. Here the active, initiating cause was the flood which set in motion a chain of events bringing about the result without the intervention of any new and independent force. The vehicular presence was a mere circumstantial incident in the events put in motion and controlled throughout by the flood waters. The loss did not in any way result from the fact that the object damming up the waters was a "vehicle". It was not being used as a vehicle at the time. Any object of similar mass could have produced a like result. The District Court was eminently correct in holding that this was flood damage and not "direct loss by vehicle". 16 The cardinal guidepost in the construction of contracts is the intention of the parties. 29 Am.Jur.Insurance § 157. The law of Arkansas is the same. Penn-National Hardware Mutual of Huntington, Pennsylvania v. Griffin, 1927, 174 Ark. 627, 296 S.W. 66, 53 A.L.R. 1106; Mercury Ins. Co. v. McClellan, 1950, 216 Ark. 410, 225 S.W.2d 931, 14 A.L.R. 2d 806. 17 No Arkansas case construes the precise contractual provisions here involved; however, Mercury Ins. Co. v. McClellan, supra, indicates the attitude of the Arkansas Supreme Court on several points important to the determination of the instant case. In that case, two insurance contracts covering automobile collision or upset were to be construed. A tornado had picked up a vehicle, rolled it over a number of times, and blew it into a tree. The same tornado had also caused the wall of a building and a timber to topple onto another vehicle. The Supreme Court reversed the lower court and denied recovery under the usual "collision" and "upset" clauses of the policies. The decision was grounded on the intent of the parties at the time of making the contract. It simply was not contemplated by anyone that the insured risk included tornado damage. There was no question that the tornado was the proximate cause of the losses but nevertheless the court said that the controlling factor was whether or not losses resulted from the precise risk insured against, at page 935 of 225 S.W. 2d: 18 "The liability of appellant depends upon whether the losses sustained were the result of a risk or hazard against which the appellees were covered by the policies." 19 This court bases affirmation of the District Court upon the same reasoning set forth in Mercury Ins. Co. v. McClellan, supra, 225 S.W.2d 931, 935: 20 "In a case involving the liability of an insurance carrier, Judge Cardozo said: `General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts.' Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y. 47, 51, 120 N.E. 86, 87, 13 A.L.R. 875. 21 "The right of appellees to recover and the liability of appellant to pay, must be determined by the intention of the parties as expressed in the policy. We must assume from the stipulations of fact that appellees only intended to avail themselves of the sort of protection which the policy shows they purchased. We think it is clear from the language and terms of the policy that appellees did not intend to pay for, and appellant did not intend to accept, the risk for insurance against losses arising from windstorm or tornado." 22 Certainly the vehicle that was rolled over several times and then blown into the top of a tree suffered "upset" and "collision", but the Supreme Court of Arkansas refused to sustain recovery on the basis that the tornado was the motivating force and the intention of the parties was not to insure against loss by tornado. Here, with equal vigor, it can be said that the insurance was for direct loss by vehicle and as the flood was the motivating force, the loss was not covered as being outside the intention of the parties. It could not reasonably have been within the contemplation of the parties when they entered into their contract that flood damage was to be covered, nor can we say that reasonable minds could differ on the conclusion that this is flood damage and not "direct loss by vehicle". 23 Under the law of Arkansas, a policy of insurance is to be construed most strongly against the company. That does not mean, however, that courts may achieve a forced construction plainly outside the language used in the policy contract. See Mercury Ins. Co. v. McClellan, supra, at page 933 of 225 S.W.2d. Here only through a forced construction of the language used could it be said that appellant's flood damage was covered by this policy of insurance against "direct loss by vehicle". 24 Affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/749793/	132 F.3d 48 U.S.v.Daniel Williams, Jr. NO. 96-3099 United States Court of Appeals,Eleventh Circuit. Dec 01, 1997 M.D.Fla., 121 F.3d 615 1 DENIALS OF REHEARING EN BANC.	01-03-2023	04-18-2012
https://www.courtlistener.com/api/rest/v3/opinions/749825/	132 F.3d 417 54 Soc.Sec.Rep.Ser. 677, Unempl.Ins.Rep. (CCH) P 15816BPeter C. BRACHTEL, Appellant,v.Kenneth S. APFEL, Commissioner of Social SecurityCommission,1 Appellee. No. 97-1478. United States Court of Appeals,Eighth Circuit. Submitted Nov. 20, 1997.Decided Dec. 18, 1997. John A. Bowman, Davenport, IA, argued (Michael DePree, Davenport, IA, on the brief), for appellant. Gary L. Hayward, Des Moines, IA, argued, for appellee. Before BOWMAN and MURPHY, Circuit Judges, and CONMY,2 District Judge. BOWMAN, Circuit Judge. 1 Appellant Peter Brachtel appeals the judgment of the District Court3 affirming the decision of the Commissioner of Social Security denying disability benefits. Brachtel first applied for disability insurance benefits and Supplemental Security Income benefits in 1991. Brachtel's applications were denied. An administrative law judge (ALJ) then conducted a hearing and issued a decision denying benefits. Brachtel appealed to the District Court, which reversed the decision, ruling that the ALJ's decision was not supported by substantial evidence. The court remanded the case to the ALJ to create a full and proper record. Specifically, the District Court found that the ALJ's hypothetical question to the vocational expert was inadequate in several ways. 2 On remand, the ALJ again determined that Brachtel was not disabled and accordingly denied benefits. Brachtel again appealed to the District Court. This time the court held that the ALJ's decision was supported by substantial evidence and affirmed the ALJ's decision. This appeal followed. I. 3 Brachtel argues that the hypothetical, upon which the ALJ relied in denying benefits, was defective because it failed to include: 1) the impairment requiring that Brachtel lie down frequently throughout the day; 2) certain impairments noted by consultative psychiatrists and psychologists; and 3) impairments that even the ALJ himself accepted as existing. We believe the hypothetical was adequate. 4 We must affirm the judgment of the district court if there is substantial evidence on the record as a whole to support the decision of the ALJ. See Smith v. Shalala, 31 F.3d 715, 717 (8th Cir.1994). A vocational expert's testimony constitutes substantial evidence only if that testimony is based on a proper hypothetical. See Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.1996). A hypothetical is proper only if it includes all of the claimant's relevant impairments. See Baugus v. Secretary of Health and Human Serv., 717 F.2d 443, 447 (8th Cir.1983). If the hypothetical does not relate all of a claimant's impairments, the resulting testimony of the vocational expert cannot constitute substantial evidence to support the ALJ's decision. See Ekeland v. Bowen, 899 F.2d 719, 722 (8th Cir.1990). A. The Need To Lie Down 5 Brachtel first argues that the hypothetical upon which the ALJ relied failed to contain an assumption that Brachtel would need to lie down frequently throughout the day. At the first administrative hearing, there was evidence suggesting that Brachtel needed to lie down as a result of medication he took for headaches. The ALJ asked the vocational expert several hypotheticals, one of which included the need to lie down during the day. The vocational expert responded by stating that this impairment would eliminate the prospect of employment. The ALJ, however, found Brachtel's need to lie down not credible and denied benefits by relying on a different hypothetical, one which did not include the lying-down impairment, wherein the vocational expert identified four jobs Brachtel could perform. In its first opinion, the District Court stated: 6 It was similarly erroneous for the ALJ to dismiss the [vocational expert]'s testimony about the hypothetical encompassing the need to take naps. There is evidence on the record to suggest such a need would be present, and indeed, no evidence of record to contradict such an alleged need.... [T]he ALJ has a duty to develop the record completely.... 7 Admin. Tr. at 614 (Mem. Op. of Dist. Ct.). At the hearing on remand, the ALJ again did not include the lying-down impairment in the hypothetical upon which he relied to deny benefits. On appeal, Brachtel argues that the above passage indicates that the District Court made a finding of fact regarding the lying-down impairment and, therefore, that the "law of the case" doctrine required the ALJ to include this impairment in the hypothetical. 8 "The law of the case doctrine prevents the relitigation of a settled issue in a case and requires courts to adhere to decisions made in earlier proceedings...." United States v. Bartsh, 69 F.3d 864, 866 (8th Cir.1995). The "law of the case" doctrine also applies to administrative agencies on remand. See Rios-Pineda v. United States Dep't of Justice, I.N.S., 720 F.2d 529, 532 (8th Cir.1983), rev'd on other grounds, 471 U.S. 444, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985); see also Chicago & N.W. Transp. Co. v. United States, 574 F.2d 926, 930 (7th Cir.1978). Thus, if the District Court actually found that Brachtel needed to lie down, the ALJ would be bound by that finding. 9 The "law of the case" doctrine is inapplicable here because the District Court did not actually decide (i.e., make a finding of fact) that Brachtel needed to lie down. First, the District Court did not specifically instruct the ALJ to proceed on remand based upon a finding of fact that Brachtel needed to lie down. The court simply instructed the ALJ to create a full and proper record. Second, and more telling, had the District Court made the finding of fact, it would have reversed the ALJ's decision and mandated payment of benefits--not remanded to the ALJ for further proceedings. The vocational expert had already established, and it is not now disputed, that if Brachtel needed to lie down, there would be no employment opportunities available. With no employment opportunities, Brachtel would be eligible for benefits without the need for further inquiry; a remand would have been pointless. Finally, the District Court affirmed the ALJ's denial of benefits the second time around. In doing so, the District Court necessarily rejected the argument that the ALJ was compelled by its previous order to find that Brachtel needed to lie down throughout the day. See Admin. Tr. at 986 (Affirmance by Dist. Ct.). The District Court knew its original intent in remanding the case, and we will defer to the District Court's construction of its own order. 10 Because the "law of the case" doctrine does not apply here, the ALJ was free to find facts concerning Brachtel's need to lie down. Thus, as long as there is evidence in the record to support the ALJ's finding that Brachtel's need to lie down was not credible, evidence which is present, the vocational expert's answer to a hypothetical without the lying-down impairment constitutes substantial evidence. B. Consultative Examinations 11 Brachtel next argues that the ALJ failed to include in the hypothetical certain impairments noted by particular consultative psychiatrists and psychologists. Brachtel claims that the ALJ erred because he "offer[ed] no cogent reason for characterizing these reports [made by consultative psychiatrists and consultative psychologists] as enlightening, and then failing to incorporate the precise restrictions that the reports themselves contained." Appellant's Br. at 27. 12 First, the precise meaning of the ALJ's reference to the examination reports as "most enlightening" is not entirely clear. See Admin. Tr. at 470 (ALJ Decision Upon Remand). But given the context of the statement, it appears most likely that the ALJ characterized the reports as "most enlightening" because they illustrated Brachtel's history of dishonest and manipulative statements regarding his alleged disabilities. See id. Second, and more important, it is properly left to the fact-finder to weigh the evidence provided by examining professionals. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir.1993). These examining professionals disagreed on the extent to which Brachtel was disabled. The resolution of this conflicting evidence is within the province of the ALJ. It was certainly not error for the ALJ to make findings of fact more consistent with the report of one doctor, while finding the reports of other doctors useful in some respects. C. Impairments Accepted By ALJ 13 Finally, Brachtel argues that the ALJ's decision was not supported by substantial evidence because the hypothetical failed to set forth impairments that even the ALJ himself accepted as existing. On the "Psychiatric Review Technique Form" filled out by the ALJ and attached to his decision, the ALJ indicated that Brachtel would "Often" manifest "Deficiencies of Concentration, Persistence or Pace Resulting in Failure to Complete Tasks in a Timely Manner."4 Admin. Tr. at 488. Brachtel contends that the hypothetical did not take into account these impairments. 14 To constitute substantial evidence, a hypothetical must set forth the impairments accepted as true by the ALJ. See Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir.1985). In a case similar to the one at hand, this Court ruled that when an ALJ states that a claimant has impairments of concentration, persistence, or pace, the hypothetical must include those impairments. See Newton v. Chater, 92 F.3d 688, 695 (8th Cir.1996). In Newton, the ALJ stated on the Psychiatric Review Technique Form that the claimant "often" had deficiencies of concentration, persistence, or pace, but the hypothetical presented to the vocational expert merely limited the claimant's capabilities to simple jobs. See id. The hypothetical did not specifically include impairments regarding concentration, persistence, or pace. We held that the reference to simple jobs in the hypothetical was not enough to constitute inclusion of such impairments. See id. This Court remanded with instructions to include the impairments of concentration, persistence, or pace in the hypothetical. 15 As a preliminary matter, it is significant to note that the ALJ did not necessarily attribute all three impairments--deficient concentration, persistence, and pace--to Brachtel. The classification is written in the disjunctive: "Deficiencies of Concentration, Persistence or Pace." Admin. Tr. at 488 (emphasis added). This language suggests that when an ALJ puts a check mark in this block, he is not necessarily making a finding that the claimant has all three of these impairments. In fact, in this case the ALJ wrote in his report that "various examinations indicate that the claimant demonstrates few concentration deficits and has a very good memory." Id. at 465 (ALJ Decision Upon Remand). The fact that the ALJ checked the "often" box for the "concentration, persistence or pace" category, yet acknowledged examination reports that did not regard Brachtel as being deficient in concentration, indicates that the ALJ read the classification in the disjunctive; the ALJ did not necessarily attribute all three impairments to Brachtel. 16 The hypothetical upon which the ALJ relied5 included the ability "to do only simple routine repetitive work, which does not require close attention to detail." Id. at 598 (Tr. of Hr'g On Remand). Also, the ALJ included the impairment that "[Brachtel] should not work at more than a regular pace." Id. While this is scantly more than what was included in the Newton hypothetical, it is enough. In addition to the ability to do only simple work, the ALJ's hypothetical specifically limited concentration (work "which does not require close attention to detail") and pace ("should not work at more than a regular pace"). These specific limitations are supported by the record, and their inclusion in the hypothetical is enough to distinguish this case from Newton. II. 17 The record as a whole supports the ALJ's denial of benefits. The judgment of the District Court is affirmed. 1 Kenneth S. Apfel has been appointed to serve as Commissioner of Social Security, and is substituted as appellee pursuant to Fed. R.App. P. 43(c) 2 The Honorable Patrick A. Conmy, United States District Judge for the District of North Dakota, sitting by designation 3 The Honorable Harold D. Vietor, United States District Judge for the District of Iowa 4 The ALJ made this designation on a multiple choice form 5 The Commissioner's brief mistakenly cites to a hypothetical upon which the ALJ did not base his decision	01-03-2023	04-18-2012
https://www.courtlistener.com/api/rest/v3/opinions/410785/	692 F.2d 762 D'Amatov.Aerial Spotters, Inc. 80-5950 UNITED STATES COURT OF APPEALS Ninth Circuit 9/20/82 1 S.D.Cal. ORDER VACATED AND APPEAL DISMISSED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/247570/	264 F.2d 776 GIBSON-STEWART COMPANY, Inc., Appellant,v.WM. BROS BOILER AND MANUFACTURING COMPANY, Appellee. No. 13500. United States Court of Appeals Sixth Circuit. February 19, 1959. Howard E. Moore, Dallas, Tex.; Cecil L. Wood, Fort Worth, Tex., W. D. Cole of Kuth & Cole, Cleveland, Ohio, on the brief, for appellant. Andrew E. Carlsen and Douglas L. Carlsen, Minneapolis, Minn.; John F. Oberlin of Oberlin & Limbach, Cleveland, Ohio, on the brief, for appellee. Before ALLEN, Chief Judge, MARTIN, Circuit Judge, and GOURLEY, District Judge. MARTIN, Circuit Judge. 1 In this suit for patent infringement, the able and experienced district judge held the four claims of Bros, et al., Patent (No. 2,610,557) to be valid and infringed by the appellant, Gibson-Stewart Company, Inc. 2 As stated by the patentee, the invention in the patent in suit relates to the art of compacting earth for roads, highways, airport runways, fills for dams, etc., where deep penetration and uniform but maximum density are important objectives and where the primary purpose is to provide a novel, efficient and practical pneumatic-tired compactor that will effectively, yet economically, meet these rigid objectives or requirements. The inventor stated that a typical exigency is presented by airport runways, which must receive and support aircraft weighing as much as three hundred thousand pounds. It was said further, in the patent application, that the resulting impact is such as to break down the runway pavement, unless properly constructed by base courses and sub-grades which have been compacted to an extremely high degree of density and to a depth of as much as five to six feet below the surface. The inventor then goes further to detail the specifications in the patent and makes four claims: all of which, as heretofore stated, were upheld by the district court. 3 Claim One is for an earth compaction roller comprising a hollow body member adapted to receive weight-producing ballast and having a transversely extending arched recess between its front and rear ends, an axially aligned series of pneumatic-tired wheels mounted in such recess to support the body member with its center of gravity substantially over the wheels, and a draft beam extending longitudinally through the lower part of the body, centrally thereof, such draft beam traversing the arch recess between two of such wheels and rigidly connecting opposite wall portions of the recess. 4 The other claims are in substance, as follows: 5 Claim Two. A unitary body structure having the central recess and employing two pairs of wheels — one of which is under each side — each pair being carried by the support beam additionally operating to maintain the lower ends of the recess wall in parallelism. 6 Claim Three is similarly limited to the use of four wheels and mountings in the recess; but this claim is directed specifically to the feature of arranging the four wheels so that they will carry equal loads and be spaced to produce equal compaction pressures in equally spaced paths. 7 Claim Four, in a general way, is similar to Claim Three; but it includes the parallelism-maintaining characteristic in addition to the wheel-spacing arrangement, which is specifically confined to an arrangement in which the space between any two wheels is less than the width of the tread of one wheel so as to prevent any substantial movement of earth upwardly between the tires. 8 The district judge received in evidence various exhibits revealing the prior art. He heard testimony of experts and other witnesses, analyzed the case and rendered an oral opinion, subsequently revised. He stated that "the defendant at the trial admitted infringement was present if the patent claims were valid." 9 On the issue of validity of the patent, the judge considered it more than a mere aggregation or assembly of well-known elements in the road-building art where densification of the ground is one of the principal accomplishments desired and compaction is another. He thought that the need for a marketable machine for compaction had been fulfilled by the appellee in a new and useful way, even though it had been necessary to use the prior art and structures to accomplish it. He considered that the problem solved by the inventor had been to bring together in a compact, efficient unit the necessary elements to meet a need by the use of means which would make the completed structure an easy on to manipulate, while accomplishing all that the old machines and structures had done. He stated that the arched recess is old and, standing alone, put nothing new into the combination of elements, being useful nevertheless. He said further that the oscillation and rocker-beam idea was not new and that the appellee did not even claim originality or novelty for most of the elements embraced in the structure. But he well reasoned that novelty, usefulness and commercial acceptance for the manner in which the known elements were put together — not as a mere aggregation, but as a combination which accomplishes the job sought to be accomplished in a new and better way — was manifest. 10 The judge asserted that it had been conceded on the trial that the structure had met with commercial success which, had there been doubt about the validity of the patent, might have been sufficient to maintain validity. There was no doubt in the mind of the judge as to validity of the patent. 11 Judge Jones went into further discussion of the elements of the patent and concluded that the arrangement of the patented structure, distributing the load equally in all portions as it does, required more than ordinary mechanical and engineering skill for accomplishment. The distinguished jurist thought that, on the whole, the equalizing of the weight by the distribution of the wheels of the patent in suit and the recess part were not shown exactly by anything in the prior art. He considered the Browning structure in the prior art distinguishable, in that the load distributed to the two rollers — when taken apart — would not have been adequate to accomplish the purpose of the patent structure. 12 The judge reasoned that the spacing of the wheels themselves in Browning, although apparent in some structures, was staggered differently because they were alternating wheels, with the result that the whole area could be covered by two separate sets of wheels, one at one end of the structure and one at the other. He concluded that the arrangement of the patent in suit accomplished the purpose of bringing the whole load to bear uniformly on the sub-surface and effected in a more concise, compact way what had been attained previously by the staggered wheels. 13 Accordingly, a permanent injunction was issued against infringement by appellant of the patented structure; and the customary reference to a Master was ordered for an accounting to ascertain the profits and damages due by appellant to appellee. We are of opinion that the judgment of the district court should be affirmed. 14 Williams Manufacturing Co. v. United Shoe Machinery Corp., 6 Cir., 121 F.2d 273, 277, decided June 27, 1941, affirmed 316 U.S. 364, 365, 62 S. Ct. 1179, 86 L. Ed. 1537, was the first case at that time in which, for some fifteen years, the Supreme Court in an opinion had upheld the validity of a patent. In that case, Judge Simons, speaking for our court, said: "To the presumption of validity that attaches to a granted patent, where the most pertinent prior art has been cited against it in the patent office, there must probably now be added the force of a growing recognition of finality that is generally being accorded to administrative determinations supported by evidence, on the ground that the administrative agency is expected to have developed an expertness in its specific field beyond what may be expected from the courts wherein adjudications range the whole field of human controversies. It is true, of course, that in the most strict sense, the granting of a patent is not, except when an interference is declared, the result of an adversary proceeding, as in usual administrative determinations of agencies exercising quasi-judicial functions. Nevertheless, it wears, in the broader sense, an adversary aspect, since patent office examination protects the public against unmerited monopoly, and so the public, as represented by the examiner, is always impliedly in adversary position to the application just as it is ever a third party to an infringement suit. Kellogg Switchboard & Supply Co. v. Michigan Bell Telephone Co., 6 Cir., 99 F.2d 203. To the inferences in support of validity thus noted, must now be added the implication of correctness that attaches to the findings and conclusions of the District Judge who heard the testimony of the witnesses and saw the machines in operation." It was pointed out, moreover, that an infringer who assails the validity of a patent, fair upon its face, bears a heavy burden of persuasion and fails unless his evidence has more than a dubious preponderance. 15 In Trabon Engineering Corporation v. Dirkes, 6 Cir., 136 F.2d 24, 27, Judge Simons gave expression to a principle directly pertinent in the present controversy. He stated that "long recognition of an existing problem in any art, and the advantages to accrue to an industry from its solution, have been considered as highly persuasive of invention when success is finally achieved; that sometimes achievement is revolutionary, but more often an inventor begins where others leave off, and perceives the vital forward step to which predecessors had been blind." 16 It is established, of course, that in a patent case the findings of fact of the district court — unless clearly erroneous — should not be disturbed. Modern Products Supply Co. v. Drachenberg, 6 Cir., 152 F.2d 203, 207. This principle applies to issues of both validity and infringement. 17 Illustrative cases from this circuit, holding that a combination patent should not be invalidated by the mere fact that certain elements of the combination are old if invention inheres in the combination, are, among others: General Motors Corporation v. Swan Carburetor Co., 6 Cir., 88 F.2d 876, 887; International Visible Systems Corp. v. Remington-Rand, Inc., 6 Cir., 78 F.2d 606. 18 It would seem that the opinion of the Supreme Court in Great Atlantic & Pacific Tea Company v. Supermarket Equipment Corp., 340 U.S. 147, 71 S. Ct. 127, 95 L. Ed. 162, is not applicable here because of the vast difference in the complexities of the two inventions. There, the condemned invention consisted simply in opening up the apex of the equivalent of an ordinary pool ball rack so that the legs of the triangle became parallel to each other and perpendicular to the base, the open rack being merely hand-pushed along an elongated table in the handling of food sold in stores. The pushing element was not automatic — not even mechanical. 19 Here, as has been previously shown, the huge patented device was highly complicated and most ingeniously designed; and it served a purpose not theretofore known for practical requirements in its field. 20 Judge Allen has written for this court a carefully considered opinion in which are set forth several principles applicable to the instant case. Cold Metal Process Company v. Republic Steel Corp., 6 Cir., 233 F.2d 828. The opinion contains a wealth of citations of value to the patent bench and bar. To quote a few excerpts, the opinion stated [at pages 837, 838-839]: "The long-standing want and insistent demand satisfied by the patentee demonstrate the existence of invention. Goodyear Tire & Rubber Co., Inc. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S. Ct. 593, 88 L. Ed. 721; Watson v. Heil, 4 Cir., 192 F.2d 982, 985, * * * In order to secure a true and patentable combination of old elements, the elements must co-act to produce the result achieved, the result must be new and useful, and the method of operation must be new. Great Lakes Equipment Co. v. Fluid Systems, Inc., 6 Cir., 217 F.2d 613, 617. If the method of operation is new and the result is new, the old elements perform a new function in their new environment." The opinion stated also [233 F.2d at page 837]: "The best of the art relied on here [as in the instant case] was before the Patent Office and this fact strengthens the presumption of validity. Modern Products Supply Co. v. Drachenberg, 6 Cir., 152 F.2d 203, 205, certiorari denied 327 U.S. 806, 66 S. Ct. 964, 90 L. Ed. 1030." 21 As we think has been hereinbefore indicated, the trial judge made an adequate, succinct and accurate statement of the reasons for which the claims of the patent were considered valid. There was ample basis in the testimony of expert witnesses to support his deductions. In the light of the record, we think it would be an all too sweeping and incorrect generalization to say that the subject matter of the patent in suit would be obvious to those schooled in the art at the time the invention was disclosed. We think the objective was attained by the claims of the patent to provide a pneumatic-tired roller, so constructed and of such weight as to produce compaction of sufficient magnitude to bring about deeper penetration and more intense densification than had been accomplished before, without the sacrifice of rigidity of body or maneuverability. The roller was also kept within the limitation of ground area. 22 Upon careful analysis, the claims of the patent in suit seem to present a distinctive inventive concept which had no equivalency in the prior art. We think that neither the oscillating wheels of Grace, nor the body in Browning, nor Porter's wheel-spacing represents anticipation of the combination patent in suit. 23 Accordingly, for the reasons set forth in this opinion and in that of the United States District Judge as herein analyzed, the judgment of the district court is affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2481110/	936 N.E.2d 1225 (2007) 371 Ill. App.3d 1199 PEOPLE v. ALLEN. No. 1-05-1484. Appellate Court of Illinois, First District. March 29, 2007. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2101051/	233 S.W.3d 523 (2007) UNION PACIFIC RAILROAD COMPANY, Appellant, v. Jose Miguel TORRES, Individually and on Behalf of the Estate of Flora Torres, Deceased, and on Behalf of the Estate of Haide Torres, Deceased, Flora Torres, Jose M. Torres, Jr., and Pedro Gomez and Aurora Lucero, Individually and as Parents of Flora Torres, Deceased, Appellees. No. 08-06-00023-CV. Court of Appeals of Texas, El Paso. August 16, 2007. Thomas R. Phillips, Joseph Knight, Baker Botts, LLP, Austin, TX, for Appellant. Marie Yeates, Vinson & Elkins, Houston, TX. for Appellees. Before CHEW, C.J., McCLURE, and CARR, JJ. OPINION KENNETH R. CARR, Justice. Pending before the Court is a Joint Motion to Abate the Appeal, in which the parties requested that the Court abate the appeal pending the execution of a final settlement agreement. See Tex.R.App. P. 42.1(a)(2)(C). The Court, having received notice that the parties have executed a final settlement, is of the opinion that the motion is now moot. Also pending before the Court is a Joint Motion to Vacate Judgment Pursuant to Settlement. See Tex.R.App. P. 42.1(a)(2)(B). The parties represent to the Court that they have achieved a voluntary resolution and settlement of the underlying case and request that the Court: (a) vacate the judgment of the trial court without reference to the merits; (b) remand the case to the trial court for entry of a take-nothing judgment pursuant to settlement; and (c) command that each *524 party bear its own court and litigation costs. Having considered both motions, we grant the Joint Motion to Vacate Judgment Pursuant to Settlement, and deny the Motion to Abate the Appeal. See Tex. R.App. P. 42.1(a)(2). The trial court's judgment is therefore vacated and the case remanded for further action in accordance with the parties' settlement agreement pursuant to Tex.R.App. P. 42.1(a)(2)(B). The Motion to Abate the Appeal is denied as moot. Costs are taxed against the party incurring the same, pursuant to the parties' agreement. See Tex.R.App. P. 42.1(d).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/564059/	937 F.2d 605 Ramirez-Melgarv.I.N.S.Ramirez -Melgar v. NO. 90-4466 United States Court of Appeals,Fifth Circuit. JUL 08, 1991 1 Appeal From: .N.S. 2 I.N.S.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2101071/	233 S.W.3d 772 (2007) Roland ALFRED, Movant/Appellant, v. STATE of Missouri, Respondent. No. ED 89128. Missouri Court of Appeals, Eastern District, Division Two. September 25, 2007. Timothy Forneris, St. Louis, MO, for appellant. Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent. Before LAWRENCE E. MOONEY, P.J., BOOKER T. SHAW and NANNETTE A. BAKER, JJ. ORDER PER CURIAM. Roland Alfred appeals the motion court's denial without an evidentiary hearing of his Rule 29.15 motion for post-conviction relief. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, setting forth the reasons for our decision. We affirm. Rule 84.16(b)(2).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3962026/	When we disposed of the questions submitted upon certificate of dissent in this case, we were of opinion that the majority of the court correctly held that the language of counsel of the appellee upon the argument before the jury was a ground for a reversal of the judgment; and we are still of that opinion. We thought, however, that a ruling upon the other question was not necessary to a decision of the case, and therefore declined to answer it. Counsel for the appellee in their motion for a rehearing urgently insist upon an answer to the other question, and we have reached the conclusion that in view of another trial the question ought to be determined. When we answered the second question, we were inclined to think that the Page 715 majority of the court were right upon both, and we are now of that opinion. Our conclusion is that both questions should be answered in the affirmative and our opinion will be so certified. Except for the purpose of answering the first question certified, the motion for a rehearing is overruled. Opinion delivered May 25, 1899. Page 1	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3962046/	Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $50 and thirty days confinement in the county jail; hence this appeal. Appellant excepted to the action of the court in permitting the witness Frank Overton to state that when he came from the rear of the pool-room, after purchasing some whisky from appellant, he came directly across the street by the Cleburne Grocery store, and he there saw the sheriff, and another man whom he took to be Dug Wade. This was objected to on the ground that it was a transaction between other parties not had and made in the presence or hearing of the defendant, and was immaterial and inadmissible. As presented in this bill, the testimony does not appear to be pertinent, but it does not appear to be harmful, and could not be ground for reversal, because the bill does not show how such testimony could affect appellant. However, as we take it from other portions of the record, this testimony was admissible inasmuch as the sheriff testifies that he saw the transaction between appellant and the prosecutor Frank Overton, and that Overton came immediately to where he was. This serves to identify the transaction. When appellant was on the stand in his own behalf, he testified in regard to the same transaction in which the witness Overton had testified against him, as to the sale of whisky, that instead of the prosecutor buying whisky, that he bought the half pint of whisky from the prosecutor. On cross-examination he was asked if he had ever told about this transaction before. He answered that he had not. This was objected to by appellant. In our opinion this testimony was properly elicited from appellant on his cross-examination. He claims, as a matter of defense, that he had not bought the whisky from the prosecutor, that the prosecutor had at that time bought a bottle of whisky from him, and it was pertinent, it occurs to us, to prove by him that he had never mentioned that matter before. The fact that the State could make use of such testimony to impugn the credit of appellant, was the very reason afforded for its admission. During the argument of the case, in closing for the State, the county attorney said that the evidence in this case shows not only that the defendant made the sale to the prosecuting witness in this case, but that he is engaged in the sale of intoxicating liquor. This was objected to by appellant, and a charge was asked eliminating this from the consideration of the jury, it being claimed that there was *Page 606 no evidence to justify such declaration. In support of appellant's contention we are referred to Taggart v. State, 17 Texas Ct. Rep., 74, and 97 S.W. Rep., 95. That was a case where proof had been admitted showing that the defendant there had been engaged in soliciting the sale of whisky for some time previous to the alleged sale; that evidence under the circumstances of that case was held competent. In discussing the case the county attorney stated to the jury, in effect, that a man who would solicit the sale of whisky in a local option territory, and the people did not want it sold there, would sell whisky. In that case a charge was requested telling the jury not to consider that argument against appellant, which charge was given by the court. It was held in that case that that procedure was not error. That, however, was not authority for the proposition that because the court failed to eliminate the argument in this case there would be error. It was not even stated in the Taggart case that if the court had failed to instruct the jury not to consider the argument that it would have been a reversible error. In the case here we find no evidence authorizing the argument that appellant was engaged in the sale of whisky except being engaged in the sale of the particular whisky here charged. While the argument may have been objectionable, we do not believe it was of that character which would require a reversal of this case. There being no error in the record, the judgment is affirmed. Affirmed. ON MOTION FOR REHEARING. March 22, 1907	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/306298/	468 F.2d 950 Dejongv.U. S. 71-2351 UNITED STATES COURT OF APPEALS Fifth Circuit March 6, 1972 1 S.D.Ga.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2101093/	689 N.W.2d 232 (2004) IN RE D.J.S. No. 127327. Supreme Court of Michigan. December 9, 2004. SC: 127327, COA: 253435. On order of the Court, the application for leave to appeal the August 24, 2004 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. CAVANAGH, KELLY, and MARKMAN, JJ., would remand this case to the trial court for reconsideration.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494178/	60 So.3d 1075 (2011) TIMMONS v. STATE. No. 5D10-4140. District Court of Appeal of Florida, Fifth District. May 3, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/565404/	940 F.2d 649 Torresv.Hoke NO. 89-2392 United States Court of Appeals,Second Circuit. JUN 14, 1991 1 Appeal From: E.D.N.Y. 2 AFFIRMED.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2494179/	59 So.3d 123 (2011) HABER v. STATE. No. 4D09-2968. District Court of Appeal of Florida, Fourth District. April 13, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494185/	57 So.3d 217 (2009) EX PARTE ROGER DALE MELVIN, JR. No. CR-08-1925. Court of Criminal Appeals of Alabama. September 25, 2009. DECISION WITHOUT PUBLISHED OPINION. Transferred to Jefferson Cir. Ct.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494190/	59 So.3d 126 (2011) CASTRO v. STATE. No. 5D11-390. District Court of Appeal of Florida, Fifth District. March 22, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494191/	60 So.3d 387 (2011) GUERRIER v. BLUNDON. No. SC10-2493. Supreme Court of Florida. March 31, 2011. DECISION WITHOUT PUBLISHED OPINION Mandamus denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4467524/	People v Gordon (2019 NY Slip Op 09285) People v Gordon 2019 NY Slip Op 09285 Decided on December 24, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 24, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JEFFREY A. COHEN ROBERT J. MILLER FRANCESCA E. CONNOLLY, JJ. 2018-02042 (Ind. No. 17-00018) [1]The People of the State of New York, respondent, vZenas R. Gordon, appellant. Thomas R. Villecco, Jericho, NY, for appellant. David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (IDV Part) (Lori Currier Woods, J.), rendered February 15, 2018, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The defendant pleaded guilty in the County Court to assault in the second degree. During the plea allocution, the defendant acknowledged that he understood that at sentencing the assistant district attorney was going to recommend a determinate term of imprisonment of five years, but that the court was not bound by that recommendation, and that no one had promised him anything different or anything other than what he had just been told. The court also indicated that it had not yet received the presentence investigation report, but that, based on the information then known, it would likely impose a sentence that did not include a period of incarceration beyond what the defendant had already served. At sentencing, having reviewed the presentence investigation report, the court concluded that the defendant's sentence should include a period of incarceration beyond what the defendant had already served. The defendant made an application, in effect, to withdraw his plea. The court denied the defendant's application and imposed a determinate term of imprisonment of three years followed by three years of postrelease supervision. The defendant appeals. The defendant contends that his plea was involuntary because it was induced by an unfulfilled promise. However, the County Court made no promise regarding the sentence except to inform the defendant that the prosecutor was recommending a term of imprisonment of five years. Although the court indicated during the plea proceeding that it would likely impose a sentence that did not include a period of incarceration beyond what the defendant had already served, the court was unaware of the defendant's prior conviction, and it expressly retained the discretion to determine an appropriate sentence subject to its review of the presentence investigation report (see People v Selikoff, 35 NY2d 227, 238). An objective reading of the plea agreement demonstrates that its terms were complied with, and the defendant's misinterpretation of the agreement or his disappointment with his sentence does not suffice as a reason for vacating his plea of guilty (see People v Cataldo, [2]39 NY2d 578, 579-580; People v Gaines, 110 AD3d 1099; People v Philpot, 99 AD3d 1025; People v Rodriguez, 98 AD3d 693). Accordingly, the court providently exercised its discretion in denying the defendant's application, in effect, to withdraw his plea of guilty. DILLON, J.P., COHEN, MILLER and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	01-03-2023	12-24-2019
https://www.courtlistener.com/api/rest/v3/opinions/1060626/	IN THE SUPREME COURT OF TENNESSEE AT JACKSON April 11, 2000 Session CASSANDRA LYNN LIPSCOMB v. JOHN DOE Appeal by Permission from the Court of Appeals, Western Section Circuit Court for Shelby County Nos. 81763-8 T.D., 85203-8 T.D. Hon. D’Army Bailey, Judge No. W1997-00132-SC-R11-CV - Filed November 30, 2000 The primary issue in this case is whether a plaintiff properly initiates suit pursuant to the “John Doe” provisions of the uninsured motorist statutes when (1) the plaintiff is aware that the driver of the other vehicle is one of several persons, but (2) the plaintiff does not actually know which of the other possible drivers was responsible for the accident. The trial court dismissed the original “John Doe” complaint, finding that because the plaintiff was aware the other driver was one of three people, the other driver was not “unknown” within the meaning of the “John Doe” provisions. The trial court also denied the plaintiff’s motion to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119. The Court of Appeals affirmed the dismissal of the “John Doe” complaint, holding that because the plaintiff was not entitled to a remedy against the actual uninsured motorists, then she was also without a remedy against her insurance carrier. Upon review of the record and the applicable legal authority, we hold that the plaintiff’s suit was properly commenced under the “John Doe” provisions of the uninsured motorist statutes. The judgment of the Court of Appeals is reversed, and this case is remanded to the Shelby County Circuit Court for further proceedings consistent with this opinion. Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Reversed; Case Remanded WILLIAM M. BARKER, J., delivered the opinion of the court, in which, E. RILEY ANDERSON, C.J., and ADOLPHO A. BIRCH, JR., J., joined. JANICE M. HOLDER, J., filed a dissenting opinion. FRANK F. DROWOTA, III, J., not participating. A. Wilson Wages, Millington, Tennessee, for the appellant, Cassandra Lynn Lipscomb. Fred P. Wilson, Memphis, Tennessee, and Stuart A. Wilson, Memphis, Tennessee, for the appellee, Amerisure Companies. John A. Day, Nashville, Tennessee, and John D. Wood, Nashville, Tennessee, for amicus curiae, Tennessee Trial Lawyers Association. OPINION On the early morning of September 24, 1995, the plaintiff, Cassandra Lynn Lipscomb, completed her night-shift at work and ate an early breakfast with several of her friends. At about 5:00 a.m., the plaintiff started her trip home to Memphis, and at some point during this journey, her car was struck from behind by another car. This other car struck the plaintiff several more times before finally forcing her off of the road. The other car had three occupants, one of whom went to the plaintiff’s car and shot the plaintiff in the chest through the car window. After stealing the plaintiff’s money and her cellular phone, the three individuals left the plaintiff to die on the side of the road. After her attackers left, the plaintiff, who apparently did not realize that she had been shot, ran to a nearby phone to call the police. While dialing the phone, she saw blood coming from her chest, causing her to collapse into unconsciousness. Arriving shortly thereafter, the police rushed the plaintiff to the hospital, where doctors discovered that the bullet was lodged between her heart and lungs. The plaintiff remained hospitalized for a week and was released. Within days of the plaintiff’s shooting, officers of the Memphis Police Department arrested three individuals believed to be the persons involved in the plaintiff’s accident and shooting. These three individuals, Antonio Chaney, James Logan, and Cory Dyson, were charged with attempted murder and aggravated robbery. In a later criminal proceeding arising out of this episode, Cory Dyson apparently admitted to being the driver of the car causing the plaintiff’s accident.1 On October 7, 1995, the Memphis Commercial Appeal ran an article containing an interview with the plaintiff following her release from the hospital. The newspaper article also listed the names and addresses of three individuals arrested and charged with the plaintiff’s robbery and attempted murder. About a month after the printing of the article, the plaintiff contacted her uninsured motorist carrier, Amerisure Companies, and informed an agent of Amerisure of the names of the suspects arrested and charged with her attack. In addition, the plaintiff told the Amerisure agent that the names and addresses of her alleged assailants were contained in the October 7 Commercial Appeal article, and she faxed a copy of the article to Amerisure. On September 24, 1996, the plaintiff filed suit under the uninsured motorist statutes claiming damages sustained in her attack, which occurred exactly one year earlier. Pursuant to Tennessee 1 The record in this case does not contain the actual statements made by Dys on in this regard, no r does it contain other evidence from Dyson’s trial collaborating the veracity of his alleged statement. The record also does not reveal wheth er Dyson o r any one of the other defen dants were c onvicted o f any crime resu lting from this episo de. -2- Code Annotated section 56-7-1206(b), she named “John Doe” as the nominal defendant, alleging that the accident was “caused by an unknown driver who left the scene of the accident.” The plaintiff, who made no specific mention of Chaney, Logan, or Dyson in her allegations, also forwarded a copy of the complaint and summons to Amerisure. Amerisure filed an answer in its own behalf as the plaintiff’s uninsured motorist insurer, and alleged that the “name of the driver of the [other] vehicle was known or should have been known to the plaintiff prior to the filing of the lawsuit . . . .” Pursuant to Tennessee Rule of Civil Procedure 36, Amerisure also requested that the plaintiff admit, among other things, that she knew (1) that an article appeared in the Commercial Appeal on October 7, 1995 which contained the names and addresses of her attackers; (2) that the Memphis Police Department arrested and charged these individuals with her attack after investigation of the accident; and (3) that the plaintiff knew “the names and addresses of the person or persons who struck the rear of [her] car and shot [her] on September 24, 1995.” In her response to the requests for admission, the plaintiff admitted the existence of the Commercial Appeal article and that the Memphis police arrested and charged the persons mentioned in the article. The plaintiff specifically denied, however, that she knew who actually drove the car the morning of her attack. In response to the last request for admission, the plaintiff stated: “Denied. I still do not know for sure who was driving the car. I honestly [believe] that Antonio Chaney was driving[,] but I believe in Court that Cory Dyson said he was driving.” On December 5, 1995, Amerisure filed a motion to dismiss the complaint, alleging among other things, that “the plaintiff has failed to comply with the requirements of [Tennessee Code Annotated section] 56-7-1201 et seq.” More specifically, Amerisure argued that because the plaintiff was aware that the driver of the other car was one of three people, the “John Doe” provisions of Tennessee Code Annotated section 56-7-1206 could not be properly used. The plaintiff then moved to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119 to allege a cause of action against Dyson, Logan, and Chaney as defendants. The amended complaint asserted that the “[p]laintiff, after diligent inquiry and effort has been unable to ascertain for sure the driver of the vehicle occupied by the Defendants. Plaintiff believes that one of the Defendants was driving[,] but in Criminal Court, a different Defendant [was] alleged to have been driving.” On February 13, 1997, Amerisure filed motion to dismiss any claims asserted by the plaintiff against Dyson, Logan, and Chaney, and by consent of the parties, the trial court consolidated all motions pending before it. After holding hearings on the issues presented by the motions, the trial court granted Amerisure’s motion to dismiss the plaintiff’s original complaint on October 31, 1997 for improper use of the “John Doe” procedures. The trial court also denied the plaintiff’s motion to amend the complaint pursuant to Rule 15 or section 20-1-119. The Court of Appeals affirmed the judgment of the trial court in all respects. Addressing the amendment issue first, the court held that Rule of Civil Procedure 15 could not be used to amend the -3- complaint because Dyson, Logan, and Chaney were not given notice of the pendency of the suit “within the applicable statute of limitations or within 120 days after commencement of the action” as required by the rule. Moreover, the court held that section 20-1-119 could not be used to assert a claim against Dyson, Logan, or Chaney, because the statute “is applicable only when the plaintiff is unaware of the fault of the third party at the time the plaintiff filed his or her complaint.” As to the proper use of the “John Doe” procedures, the Court of Appeals held that the plaintiff’s “John Doe” complaint was properly dismissed because the plaintiff had no remedy against the driver(s) of the other car. The court then reasoned that the “John Doe” procedures could not give a plaintiff greater rights against the insurance carrier than the plaintiff would have against the uninsured motorist. The Court of Appeals did not address whether the plaintiff’s “John Doe” complaint was properly filed in the first instance. The plaintiff then requested, and we granted, permission to appeal on the following issues: (1) whether the plaintiff’s “John Doe” suit was properly dismissed; and (2) whether the trial court properly denied the plaintiff’s motion to amend her original complaint to add additional defendants pursuant to Rule of Civil Procedure 15 or Tennessee Code Annotated section 20-1-119. For the reasons given herein, we hold that the plaintiff’s initial “John Doe” suit was properly filed. Because this issue is dispositive of the other issues in this case, we reverse the judgment of the Court of Appeals and remand this case to the Shelby County Circuit Court for further proceedings consistent with this opinion. STANDARD OF APPELLATE REVIEW In this case, we are asked to decide questions involving the proper scope of the uninsured motorist statutory scheme, as well as issues concerning the scope of Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119. Because issues of statutory construction are questions of law, see Wakefield v. Crawley, 6 S.W.3d 442, 445 (Tenn. 1999); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn. 1999), we review the issues in this case de novo without any presumption that the trial court’s legal determinations were correct, see Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn. 2000); Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999). ANALYSIS Tennessee Code Annotated section 56-7-1206(b) (1994) allows a plaintiff to file a “John Doe” action in order to recover damages from his or her uninsured motorist policy for injuries caused by an “unknown” owner or operator of another motor vehicle. Before a plaintiff may recover in a “John Doe” action under this section, however, the owner or operator of the other vehicle must be “unknown,” and the plaintiff must satisfy the three requirements listed in section 56-7-1201(e) (1994). This section reads as follows: -4- (e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured shall have no right to recover under the uninsured motorist provision unless: (1)(A) Actual physical contact shall have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or (B) The existence of such unknown motorist is established by clear and convincing evidence, other than any evidence provided by occupants in the insured vehicle; (2) The insured or someone in the insured’s behalf shall have reported the accident to the appropriate law enforcement agency within a reasonable time after its occurrence; and (3) The insured was not negligent in failing to determine the identity of the other vehicle and the owner or operator of the other vehicle at the time of the accident. Amerisure essentially argues that because the plaintiff was aware that the driver or operator of the other vehicle was among a known universe of drivers, then the other driver was not “unknown” within the meaning of the uninsured motorist statute. Conversely, the plaintiff argues that because she does not actually know of the identity of the other driver and because the driver’s identity is still at issue in this case, the suit was properly initiated under the “John Doe” procedures. According to the plaintiff’s interpretation, the fact that the potential universe of drivers has been narrowed does not mean that the other driver is “known” within the meaning of the uninsured motorist statutes. We agree. Our primary purpose in construing statutes is “to ascertain and give effect to the intention and purpose of the legislature.” See, e.g., Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000). “Legislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.” Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn. 1997). When the language of the statute is clear and unambiguous, then this Court usually applies the plain language of the statute to resolve the issue. See, e.g., State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000). Where the plain language of the statute does not directly address the issue or leads to an absurd result, however, this Court will look beyond the language of the statute and adopt a reasonable construction that provides for harmonious operation of the laws. See State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997). The plain language of the statute is not determinative of the issue in this case. Neither section 56-7-1206(b), nor section 56-7-1201(e), explicitly defines the phrase “unknown motorist.” -5- As indicated by section 56-7-1201(e), the legislature probably intended that an “unknown motorist” be one whose identity is not discoverable after reasonable investigation. Indeed, this conclusion is strengthened by the fact that the General Assembly has elsewhere required “diligent inquiry” before permitting the conclusion that a person is “unknown.”2 Despite this conclusion, though, the issue still remains whether a motorist remains “unknown” for purposes of the “John Doe” provisions when, after reasonable inquiry and investigation, the plaintiff has narrowed the possible universe of drivers but has no actual knowledge of the identity of the driver of the other vehicle. Where the language of the statute does not speak to the precise issue, courts should “give consideration to the purpose, objective and spirit behind the legislation.” See Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976). This Court has previously recognized that the purpose of each of the three requirements of section 56-7-1201(e) is “to eliminate fraudulent claims [against an insurer] based [upon allegations of] a phantom driver.” Hoyle v. Carroll, 646 S.W.2d 161, 162 (Tenn. 1983) (discussing section 56-7-1201(e)(1)(A) specifically). See also Fruge v. Doe, 952 S.W.2d 408, 411 (Tenn. 1997) (“The high standard of proof required by [section 56-7-1201(e)(1)(B)] . . . obviously was intended by the legislature as a safeguard against bogus claims arising from one-vehicle accidents.”). Although the General Assembly was obviously concerned that plaintiffs are not without an adequate remedy against unknown tortfeasors, this concern was carefully balanced in the uninsured motorist statutes with protections for insurance carriers against fraudulent claims. As such, when determining whether the driver of the other vehicle in this case was “unknown” at the time the suit was originally filed, we should be mindful that the purpose of section 56-7-1201(e) was to eliminate fraudulent claims against a plaintiff’s insurance carrier. With this purpose in mind, we conclude that no intent to defraud can be inferred where an insured diligently discovers information on possible operators of the other vehicle, and where the insured communicates this information directly to the insurer within a reasonable time before filing suit. Consequently, the failure of the plaintiff to rename the possible drivers in the complaint is not materially prejudicial in any way. Because the plaintiff in this case informed Amerisure of the possible—though not certain—identity of the other driver who caused her accident, the insurer had an adequate basis from which to begin investigation and preparation for litigation. The plaintiff’s failure to rename these individuals in her complaint, especially when such naming would amount to some degree of speculation, did not deprive Amerisure of any notice or opportunity to present a defense beyond that normally present in a “John Doe” action. If, and when, the identity of the other driver actually becomes known through the course of litigation, then the parties are free to proceed under the procedures outlined by the General Assembly in section 56-7-1206(e). 2 See, e.g., Tenn. Code A nn. § 29-1 8-115(a )(4)-(5) (1 980) (re quiring the pla intiff to make “dilige nt inquiry” before allowing a pe rson to be u nknown so as to dispen se with personal service of proc ess in forcible entry and detainer actions); Tenn. C ode Ann . § 21-1-20 3(a)(4)-(5 ) (1994 ) (requiring the plaintiff to make “diligent inquiry” before allowing a person to b e unknown so as to dispense with personal service of process in chancery court actions); Tenn. Code Ann. § 54-14-103(a)(3) (1998) (requiring petitioner requesting an easement or right of way to diligently inquire as to the identity of the owner of affected lands). -6- We are reluctant to adopt the position advocated by Amerisure, which would have us hold that the plaintiff must name all persons within the possible universe of drivers before an action is proper under the uninsured motorist statutes. It appears to be uncontroverted from the record that (1) the plaintiff acted with due diligence in uncovering the identity of the possible drivers of the other car which caused her accident; (2) the plaintiff has no actual knowledge of the identity of the owner or operator of the other vehicle; and (3) the plaintiff acted reasonably in communicating her findings to her insurance company a full nine months before filing suit. To dismiss the plaintiff’s suit for failing to name all possible defendants, in the absence of prejudice to the insurer, improperly shifts the focus of the inquiry from diligent discovery to the failure to name all other possible drivers.3 We decline to strictly focus upon the pleadings of the case without looking to the larger purposes underlying section 56-7-1201(e), which are to prevent fraudulent claims by the plaintiff against his or her uninsured motorist carrier. We are also reluctant to adopt the approach advocated by the dissent in this case, which concludes that because the plaintiff “honestly believed” that a specific individual, such as Chaney, was the driver of the other car, she was not entitled to “abandon[] the traditional rules of pleading” in favor of invoking the “John Doe” procedures. The dissent apparently ignores that the jury is not bound to accept as true the plaintiff’s “honest belief” as to the identity of the other driver, and in ignoring this potentially critical fact, the dissent turns a blind eye to the plaintiff’s plight if the jury were to determine that her suspected driver was not the actual driver. This very concern was expressed by the Georgia Court of Appeals in Smith v. Doe, 375 S.E.2d 477 (Ga. Ct. App. 1987). In Smith, the plaintiff was the victim of a hit-and-run accident, and although the plaintiff did not actually know the identity of the other driver, several witnesses identified the other driver from photographs. In the subsequent suit for damages under his uninsured motorist policy, the plaintiff named “John Doe” as the nominal defendant, and in an alternative count, he alleged the suspected driver as the person responsible for the accident. The insurer then successfully moved to dismiss the “John Doe” complaint, arguing that the other driver was not “unknown” as evidenced by the plaintiff’s alternative count. In reversing the dismissal, the Georgia Court of Appeals stated the plaintiff’s quandary as follows: If a jury should find against the appellant, that would establish that [the named party] was not the tortfeasor. That being so, the identity of the tortfeasor would be unknown, but the earlier grant of summary judgment to John Doe would foreclose a judgment against an unknown tortfeasor. [The a]ppellant would then be unable to obtain the judgment against the tortfeasor which is a condition precedent to recovery against the uninsured motorist carrier. 3 A much different situation would be presented if the plaintiff in this case knew of the p ossible drive rs but did not inform her insurer. In such a case, the legislature’s concerns with prevention of fraudulent claims would not be minimized, and a different result may therefore be compelled. -7- Smith, 375 S.E.2d at 479. As such, even though the identity of the other driver was reasonably suspected, the court permitted the plaintiff to allege alternative counts of liability against both “John Doe” and the suspected, though not certain, driver. We agree with the rationale of the Georgia Court of Appeals in Smith, and we choose to follow a similar course. As such, where the plaintiff has no actual knowledge of the identity of the other driver, but the universe of suspected drivers has been narrowed through the plaintiff’s reasonable investigation, the prudent plaintiff should allege alternative theories of liability against “John Doe” and the suspected driver(s). A trial court should then dismiss a “John Doe” complaint only when the identity of the other driver is no longer at issue. In this way, plaintiffs are able to protect themselves against the possibility that the jury could determine that someone other than the specific individuals named in the complaint is at fault, and the goal of the General Assembly to provide remedy against uninsured motorists is furthered.4 Although the plaintiff in this case did not allege alternative theories of liability in her original complaint, we disagree with the dissent that complete dismissal is the appropriate remedy for this shortcoming. The fact still remains (1) that the identity of the other driver is the subject of some dispute, notwithstanding the plaintiff’s suspicions, and (2) that the insurer in this case has not been prejudiced in any material way by the plaintiff’s failure to allege an alternative count of liability against Chaney. Dismissal the plaintiff’s “John Doe” complaint under these circumstances is unreasonably harsh as it would unduly restrict the scope of the uninsured motorist statutes and would reach a result not contemplated by the General Assembly. This Court has previously recognized that the uninsured motorist statutes reflect the “intention of the General Assembly to permit the insured to pursue, insofar as possible, [his or her] ordinary tort remedy against the uninsured motorist.” Cavalier Ins. Corp. v. Osment, 538 S.W.2d 399, 403 (Tenn. 1976). Section 56-7-1206 specifically is remedial in nature, see Hutchison v. Tennessee Farmers Mut. Ins. Co., 652 S.W.2d 904, 906 (Tenn. Ct. App. 1983), and this Court traditionally gives a liberal construction to remedial statutes, so long as the legislative intent is not disturbed and the result is not clearly contrary to the language of the statutes, see, e.g., Dailey v. State, 225 Tenn. 472, 477, 470 S.W.2d 608, 610 (1971). Allowing the plaintiff to pursue her “John Doe” suit under the unique facts of this case in no way interferes with the legislature’s legitimate concerns of fraud prevention, and because the statute does not directly address this issue, our result today is not plainly contrary to the language of section 56-7-1201(e). We therefore conclude that the plaintiff properly commenced suit in this case under the “John Doe” provisions of the uninsured motorist statutes. 4 This is precisely the route attempted by the plain tiff, albeit unwittingly, when she attempted to amend her “John Doe” complaint to include an alternative theory of recove ry against the susp ected drive rs, Dyson an d Chane y. Appare ntly, the dissent would deny the plaintiff the opportunity to assert an alternative cause of action against “John Doe” even if the identity of the other driver was not actually known and is still a fact in issue. We simply do not believe that the Gener al Assemb ly intended to force the pla intiff into the dissent’s all-or-no thing scenario in which the po ssibility exists that she could be denied an adequate remedy merely for the sake of neatness in pleading. -8- The Court of Appeals in this case reasoned that because the plaintiff could not assert a cause of action against the driver of the other car,5 then she was also without a remedy against her insurer. Respectfully, however, this analysis is incomplete for all practical purposes, because it fails to take into account the effect of section 56-7-1206(e) on the pleading process. This section states that [i]n the event the uninsured motorist’s whereabouts is discovered during the pendency of the proceedings, an alias process may issue against the uninsured motorist. In such a case, the uninsured motorist shall be allowed a reasonable time within which to plead to the original process, and then the case may proceed against the uninsured motorist as if the motorist was served with process in the first instance. Tenn. Code Ann. § 56-7-1206(e). Significantly, the General Assembly has provided that when “the uninsured motorist’s identity and whereabouts are discovered during the pendency of the proceeding,” then section 56-7- 1206(e) “shall govern the proper course of action following such discovery.” See Tenn. Code Ann. § 56-7-1206(b). With the use of this language, it is clear to us that the General Assembly intended to abrogate application of Rules of Civil Procedure 3 and 15 when the plaintiff seeks to amend a “John Doe” complaint upon discovery of the identity of the “John Doe” defendant. See Lady v. Kregger, 747 S.W.2d 342, 345 (Tenn. Ct. App. 1987).6 Because the plaintiff has a “reasonable time within which to plead to the original process” once the identity of the “John Doe” motorist becomes known, expiration of the time limits in Rules 3 and 15 cannot affect the plaintiff’s remedy against the newly identified motorist under an action that was properly commenced in the first instance.7 5 The Co urt of App eals found tha t the statute of limitation s had run ag ainst the three p ossible drivers of the other car and that the complaint was amende d outside o f the time limitation in R ule of Civil Pr ocedure 15. Con sequently, the Court of A ppeals rule d that beca use the plaintiff could not maintain an action against the actual driver of the other car, she could not maintain an action against her insurer. 6 The Court of Appeals in Lady v. Kregger, reasoned that because rules of civil procedure are “laws,” they are “subject to being superseded in the same manner as statutes.” 747 S.W.2d at 345. Although Lady only addressed service of process under section 56-7-1206(e), its reasoning applies with equal strength to formal amendme nt of the pleadings. 7 In reaching its conclusion, the Court of Appeals in this case relied upon the unreported decision in Gafford v. Caruthers, No. 91C-2709, 1994 WL 420917 (Tenn. Ct. App. Aug. 12, 1994). In Gafford, the plaintiff filed suit against a number of identified defendants alleged to have contributed to a car accident, and after the running of the statute of limitations, the plaintiff also filed suit against a “John Doe” defendant. The Court of Appeals held that because the statute of limitations had run against the “John Doe” defendant, then the plaintiff could not maintain an action against her uninsured motorist carrier. In this case, however, the “John Doe” complaint was properly filed within the applicable statute of limitations, and it otherwise met all of the criteria of section 56-7-1201(e). When a “John Doe” action is properly commenced and the identity of “John Doe” is later discovered in the course of litigation, section -1206(e) allows the plaintiff a “reasonab le time” to amend the pleadings and to affect service of process on the “John Doe” defendant. Because the Gafford plaintiff did not properly commence the “John Doe” action in the first instance, that case is clearly not applica ble to the issue in this case, and the Court of Appeals erred in relying upon Gafford to affirm dismissa l of the plaintiff’s (continued ...) -9- Therefore, we conclude that the Court of Appeals improperly affirmed the dismissal of the plaintiff’s “John Doe” complaint. AMENDMENT OF THE COMPLAINT Because we hold that the “John Doe” procedures were not improperly used by the plaintiff in this case, we need not reach the issues of whether the trial court improperly denied the plaintiff’s motion to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 or Tennessee Code Annotated section 20-1-119. In the course of further proceedings, the parties may use the provisions of Tennessee Code Annotated section 56-7-1206(e) to pursue litigation against other parties. CONCLUSION Although the facts of this case are rather unique, we hold that a plaintiff may properly commence an action under the “John Doe” provisions of the uninsured motorist statutes, Tenn. Code Ann. §§ 56-7-1201(e), 56-7-1206(b), when: (1) the plaintiff satisfies the requirements of section 56- 7-1201(e), including undertaking reasonable efforts to identify the owner or operator of the other vehicle; (2) the plaintiff does not actually know the identity of the owner or operator of the other vehicle at the time of filing the “John Doe” action; and (3) the plaintiff has notified her insurer, before commencing the “John Doe” action, of the reasonable efforts taken to discover the identity of the other owner or operator and of the results of the investigation. Although both parties in this case have apparently narrowed the universe of possible drivers of the other vehicle, the identity of the other driver is still at issue, and he remains the subject of some dispute. Accordingly, because the plaintiff took reasonable steps to discover the identity and addresses of the possible drivers, and because the plaintiff communicated this information to her insurer a full nine months before she filed suit, we conclude that the plaintiff properly commenced suit under the “John Doe” procedures of the uninsured motorist statutes. The judgment of the Court of Appeals is reversed, and this case to the Shelby County Circuit Court is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to the appellee, Amerisure Companies. ___________________________________ WILLIAM M. BARKER, JUSTICE 7 (...continued) “John D oe” com plaint. -10- -11-	01-03-2023	10-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/389110/	645 F.2d 127 25 Fair Empl.Prac.Cas. 645,25 Empl. Prac. Dec. P 31,695Eugene B. GOODMAN, Plaintiff-Appellee,v.HEUBLEIN, INC. and Heublein International Division ofHeublein, Inc., Defendants-Appellants. No. 567, Docket 80-7685. United States Court of Appeals,Second Circuit. Argued Dec. 31, 1980.Decided March 25, 1981. Abner W. Sibal, Washington, D.C. (Edward J. Dempsey, and Farmer, Wells, McGuinn, Flood & Sibal, Washington, D.C., Jay S. Siegel, Diana Garfield, and Siegel, O'Connor & Kainen, Hartford, Conn., on brief), for defendants-appellants. Eugene B. Goodman, pro se. Karen MacRae Smith, Washington, D.C. (Leroy D. Clark, Gen. Counsel, Constance L. Dupre, Acting Associate Gen. Counsel, and Vincent Blackwood, Asst. Gen. Counsel, Washington, D.C., on brief), for the Equal Employment Opportunity Commission as amicus curiae. Before TIMBERS and NEWMAN, Circuit Judges, and EGINTON,* District Judge. NEWMAN, Circuit Judge: 1 Eugene Goodman brought this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1976), alleging that his employer, appellant Heublein, Inc. and Heublein International Division of Heublein, Inc. (hereafter collectively "Heublein"), failed to promote him to vice-president because of his age, and precipitated his discharge by ordering him transferred out of the country in retaliation for his pressing his age discrimination claim. After a jury trial in the District Court for the District of Connecticut (T. Emmet Clarie, Chief Judge), the jury awarded Goodman $226,200 in compensatory damages plus $226,200 in liquidated damages. Heublein appeals the judgment entered pursuant to this verdict, raising numerous contentions. We affirm. 2 The evidence presented fair jury questions both as to age discrimination on two occasions in denying promotion to different offices at the level of vice-president and as to a retaliatory discharge. Since the sufficiency of the evidence is not challenged on appeal, it need not be detailed. 3 Heublein challenges the award of liquidated damages on the ground that such damages may not be awarded unless the court determines that the employer was not acting in good faith. This contention is based on the interrelationship between the ADEA and two other federal statutes. Section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), incorporates the "powers, remedies, and procedures" of the Fair Labor Standards Act (FLSA), as set forth in FLSA §§ 11(b), 16(b)-(e), and 17, 29 U.S.C. §§ 211(b), 216(b)-(e), and 217 (1976). As enacted, § 16(b) of the FLSA had mandated awards of liquidated damages, equal in amount to wages due, but Congress ameliorated this requirement in 1947 by providing, in § 11 of the Portal-to-Portal Act (PPA), 29 U.S.C. § 260 (1976), that in an FLSA action the Court has discretion to disallow all or part of the liquidated damages if it finds that the employer acted in "good faith." Heublein contends that § 7(b) of the ADEA, by incorporating FLSA procedures, also incorporates this procedural aspect of the PPA. We disagree. 4 In Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), the Supreme Court pointedly observed that the ADEA selectively adopts only some of the procedural changes that the PPA made applicable to the FLSA. Id. at 581-82 n.8. As the Court noted, the ADEA, in § 7(e), 29 U.S.C. § 626(e) (1976), specifically incorporates §§ 6 and 10 of the PPA, 29 U.S.C. §§ 255 and 259 (1976) (concerning statute of limitations and reliance on agency rulings), but not § 11, 29 U.S.C. § 260 (1976), the liquidated damages provision. Moreover, in enacting the ADEA, Congress departed from the FLSA procedure by adopting "willfulness" as an element of liability for liquidated damages,1 and by committing the issue of the employer's state of mind to the trier of fact.2 We reject Heublein's contention, agreeing with the three Circuits that have considered the same claim after the Supreme Court's opinion in Lorillard. Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). But see Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976) (pre-Lorillard ); Bertrand v. Orkin Exterminating Co., 454 F.Supp. 78 (N.D.Ill.1978) (post-Lorillard ); Johnson v. Hidalgo, 23 E.P.D. P 31,125 (D.D.C. July 25, 1980) (semble). 5 Heublein contends that the instructions to the jury were erroneous in several respects. First, the claim is made that the charge placed the burden of proof upon Heublein when the jury was told that Heublein had to "produce evidence which shows or demonstrates some legitimate and non-discriminatory reason for its employment decisions concerning the plaintiff, and that age was not a determinative factor." Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff in a discrimination case must present a prima facie case that adverse action was taken on the basis of an impermissible factor, in this instance, age. If he does, the defendant then has the burden of producing evidence of a non-discriminatory reason for the challenged action. If the defendant produces such evidence, the plaintiff is then entitled to show that the defendant's reason is a pretext for discrimination. See Texas Department of Community Affairs v. Burdine, --- U.S. ----, 101 S.Ct. 1089, 67 L.Ed.2d --- (1981). Despite the shifting in the burden of going forward with evidence, which McDonnell contemplates, the burden of persuasion remains on the plaintiff on the ultimate issue of discrimination. The defendant does not have to prove "absence of discriminatory motive." Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 296, 58 L.Ed.2d 216 (1978). 6 The McDonnell procedure was developed in the context of Title VII court trials, and, as the First Circuit has observed, it may not necessarily be helpful to bring it to the attention of the jury. Loeb v. Textron, Inc., supra, 600 F.2d at 1016. One risk of doing so is that the jury may be confused by the distinction between the burden to produce evidence, which shifts to the defendant after the plaintiff presents a prima facie case, and the burden of persuasion, which remains on the plaintiff. That risk was adequately guarded against here. The passage objected to placed on Heublein only a burden to "produce evidence," and other passages emphasized the plaintiff's burden of proof.3 The jury charge, read as a whole, fairly conveyed the correct standard. 7 Second, Heublein challenges the instruction that permitted the jury to consider, as part of recoverable incidental damages, the interest that would have been earned on savings Goodman alleged he was obliged to spend because of his discharge. This instruction related to damages the jury was entitled to award only if it did not find Heublein's discrimination to have been willful. Since the jury awarded liquidated damages, which it was instructed were allowable only upon a finding of willfulness, it is clear that no damages for lost interest were included in the verdict. 8 Heublein raises three additional challenges to the charge, none of which was presented to the District Court: failure to instruct that Goodman was required to prove, in establishing his prima facie case, that he applied for the position of vice-president,4 failure to include "intentional" in the definition of willfulness,5 and failure to require the jury to consider separately the willfulness of each act of discrimination. We decline to consider these contentions, raised for the first time on appeal, Fed.R.Civ.P. 51; Levitt v. Desert Palace, Inc., 601 F.2d 684, 686 (2d Cir. 1979). We note that whether a formal application needs to be made for a high-level executive position is a factual question dependent on the particular institutional structure and practices of the employer. In this case the evidence permitted the jury to infer that Heublein was alerted to Goodman's interest in being considered for promotion to vice-president, without a formal application. We also note that the charge on willfulness, though omitting the adjective "intentional," did require the jury to find that Heublein either "knew" or showed "reckless disregard" as to whether its conduct was prohibited by the ADEA. Cf. Wehr v. Burroughs Corp., supra.6 9 Heublein next questions the adequacy of Goodman's compliance with the administrative procedures required by the ADEA, because Goodman did not file a claim with the Connecticut Commission on Human Rights and Opportunities (CHRO) concerning his retaliation charge, after he filed his initial claim concerning denial of promotion. Although § 14(b) of the ADEA, 29 U.S.C. § 633(b) (1976), requires a claimant to file a complaint with the appropriate state agency before proceeding in a federal court, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the section is to be construed to accord with the similar requirements of § 706(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(c) (1976), 441 U.S. at 756, 99 S.Ct. at 2071. Under Title VII, we have held that a claimant need not file additional claims with the federal administrative agency when those claims, arising subsequent to the initial filing, are reasonably related to the allegations of an initial claim that was properly filed. Kirkland v. Buffalo Board of Education, 622 F.2d 1066 (2d Cir. 1980). Similarly here, we conclude that Goodman, having brought his age discrimination claim to the state agency, did not have to file a second claim with that agency in order to assert his retaliation claim in federal court. 10 Finally, Heublein contends that the District Court erred in permitting Goodman to assert claims arising more than 180 days prior to the filing of the notice of intent to sue, which is required to be filed with the Secretary of Labor 60 days prior to filing an ADEA lawsuit. ADEA § 7(d), 29 U.S.C. § 626(d) (1976). Section 7(d)(1) bars claims filed more than 180 days prior to such notice, but § 7(d)(2) extends this period to 300 days in any case to which § 14(b), 29 U.S.C. § 633(b), applies. This latter provision, applicable in so-called "deferral states," i. e., those, like Connecticut, having an age discrimination law, requires an ADEA plaintiff to wait 60 days after proceedings under the state law have been "commenced" before filing his lawsuit in federal court. Goodman commenced a proceeding before the Connecticut CHRO, but his complaint was untimely under state law. Heublein contends that a late state filing renders § 14(b) inapplicable and is therefore ineffective to give an ADEA plaintiff the benefit of the 300-day period established by § 7(d)(2). However, the Supreme Court, construing § 14(b), has held that an ADEA plaintiff's state filing need not be timely under state law in order to permit him to proceed in federal court. Oscar Mayer & Co. v. Evans, supra, 441 U.S. at 759, 99 S.Ct. at 2073. He need only commence the state action, even though that action is subject to dismissal because of the late filing. In Bean v. Crocker National Bank, 600 F.2d 754 (9th Cir. 1979), the Ninth Circuit, applying Oscar Mayer, held that the 300-day period, and not the 180-day period, applies to an ADEA plaintiff in a deferral state who has filed an untimely claim with the state agency. 11 Heublein urges that the Ninth Circuit's reasoning has been impaired by Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), in which the Supreme Court held that a Title VII complaint, sent to the Equal Employment Opportunities Commission (EEOC) prior to any state filing, was not "filed" under § 706(c) of Title VII because that provision prohibited a Title VII plaintiff in a deferral state from filing with the EEOC until 60 days after a state proceeding had been commenced. Mohasco viewed the Title VII complaint as "filed" with the EEOC after the expiration of 60 days from the date the EEOC sent the complaint to the state agency; unfortunately for the plaintiff, this 60-day period expired more than 300 days after the alleged violation, and the complaint was therefore untimely under § 706(e), 42 U.S.C. § 2000e-5(e) (1976). Mohasco concerns only the prerequisites for proper filings with the pertinent federal agency. It creates no timeliness requirement for filing with a state agency; in fact, the Court specifically noted that Congress had not imposed time limitations on state filings. 447 U.S. at 816 n.19, 100 S.Ct. at 2491. Subsequently, the Court vacated for reconsideration in light of Mohasco the judgments of two courts of appeals that had rejected the Ninth Circuit's reasoning in Bean and had denied an ADEA claimant the benefit of the 300-day claim period because he had not commenced state proceedings within 180 days after the discriminatory act. Ewald v. Great Atlantic & Pacific Tea Co., 620 F.2d 1183 (6th Cir.), vacated, --- U.S. ----, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980); Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir.), vacated, --- U.S. ----, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980). We remain bound by the construction of the ADEA provisions in Oscar Mayer, and we agree with the Ninth Circuit that even an untimely filed state proceeding is "commenced" within the meaning of § 14(b) so as to make available the 300-day period of § 7(d)(2). The judgment is affirmed.7 * The Honorable Warren W. Eginton of the United States District Court for the District of Connecticut, sitting by designation 1 "Willfulness" is also pertinent to ADEA suits in another respect. Section 6 of the PPA, 29 U.S.C. § 255, extends the two-year statute of limitations for FLSA suits to three years for "willful" violations; § 7(e) of the ADEA, 29 U.S.C. § 626(e), specifically incorporates § 6 of the PPA. The Fifth Circuit has held, in an FLSA suit, that an employer can act willfully for purposes of the three-year statute of limitations and still be in good faith for purposes of mitigating liquidated damages. Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir. 1971), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972). This suggests that willfulness in the ADEA is a lesser degree of culpability than bad faith in the FLSA. The Ninth Circuit goes even farther by stating that in ADEA suits willfulness for purposes of liability for liquidated damages is a lesser degree of culpability than willfulness for purposes of the three-year statute of limitations. Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981) 2 Prior to Lorillard uncertainty existed as to whether the trier of fact in an ADEA case would be the jury (unless waived). Compare Pons v. Lorillard, 549 F.2d 950 (4th Cir. 1977), aff'd, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (right to jury trial); Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (3d Cir. 1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978) (same), with Morelock v. NCR Corp., 546 F.2d 682 (6th Cir. 1976), vacated and remanded, 435 U.S. 911, 98 S.Ct. 1463, 55 L.Ed.2d 503 (1978) (no right to jury trial). While Lorillard was being litigated, the Senate added an amendment to the bill, H.R. 5383, 95th Cong., 1st Sess. (1977), that Congress was considering to amend the ADEA. The Senate amendment was added to "clarify" that damage claims under the ADEA could be tried to a jury. 123 Cong.Rec. S17, 196 (daily ed. Oct. 19, 1977) (remarks of Sen. Kennedy). By the time the Conference Committee considered the bill, Lorillard had been decided, but, as the Conference Report noted, the Supreme Court ruled on a right to jury trial only as to compensatory damages and did not rule as to liquidated damages. H.Conf.Rep.No.950, 95th Cong., 2d Sess. 13-14, reprinted in (1978) U.S.Code Cong. & Ad.News 528, 535. The plaintiff in Lorillard had agreed that the liquidated damage claim would be decided by the court. 434 U.S. at 577 n.2, 98 S.Ct. at 868. In accepting the Senate amendment, which clarified the right to jury trial "of any issue of fact" in an ADEA suit "for recovery of amounts owing as a result of a violation," ADEA § 7(c)(2), 29 U.S.C. § 626(c) (2) (Supp. II 1978), the Conferees correctly noted that the reasoning in Lorillard would make a jury trial available for liquidated damages: "Because liquidated damages are in the nature of legal relief, it is manifest that a party is entitled to have the factual issues underlying such a claim decided by a jury." H.Conf.Rep.No.950, supra at 14, (1978) U.S.Code Cong. & Ad.News 535 3 For example, the jury was told that the "burden of convincing you as to what happened is always on the plaintiff," the "defendants' burden is limited to going forward and stating reasons for the action that it did or did not take," and the "plaintiff has the burden of convincing you with his evidence that he did not get these two promotions to vice-presidency ... because of his age." 4 Trial counsel objected to the charge for its inclusion of the McDonnell procedure, including the element of a prima facie case, but did not contend that the content of the McDonnell discussion was deficient 5 Trial counsel objected to the charge of willfulness only because the explanation of willfulness at one point included but at another point omitted from the definition of willfulness that Heublein acted in reckless disregard of whether its conduct violated the ADEA. Trial counsel suggested this left the definition "ambiguous," but did not ask that the definition include "intentional," the point now urged on appeal 6 In finding, under proper instructions, that Heublein had denied Goodman a promotion because of age, the jury necessarily concluded that Heublein's action was intentional. In a discriminatory treatment case, such as this, an employer's action, if taken because of an impermissible factor such as age, cannot be the result of negligence, mistake, or other innocent reason. On the other hand, in a discriminatory impact case, where an employer acts on the basis of some standard that is shown, in practice, to have a disproportionate impact on some group identifiable by a characteristic such as age, a finding of liability will not inevitably mean that the employer discriminated intentionally. Cf. Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980) (hiring criterion of less than five years' experience found to result in unjustified discrimination on the basis of age) 7 While this appeal was pending, Goodman filed a motion with this Court, asking that the judgment be modified to provide for interest on the jury's award from the date of the verdict until the date of the judgment. Without intimating any views on the merits of this claim, we deny the motion without prejudice to renewal before the District Court, which has not yet been afforded an opportunity to consider either the merits of the claim or whether the additional relief has been sought too late. See generally, Comment, Interest on Judgments in the Federal Courts, 64 Yale L.J. 1019 (1955)	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/7023660/	JUSTICE CHAPMAN delivered the opinion of the court: On October 19, 1985, John Marshall, a minor, and no relationship to our first chief justice insofar as the record reflects, sustained an injury to his right knee when he fell in an open sewer manhole in the City of Centralia. The manhole was located at the intersection of Sycamore and McCord on the west side of Sycamore and approximately two feet north of McCord. The plaintiff was walking east on the sidewalk on the north side of McCord towards Sycamore, which is a north-south street. As he approached the intersection, he noticed that on the far side of Sycamore, his projected path of travel, the sidewalk was covered with mud., Being unwilling to subject his red Ponys to such conditions, he decided to skirt the muddy area by moving from the sidewalk into the street. Although the record does not reflect the entire course of study being followed by young John, we may safely assume that Euclid and/or his good friend, Pythagoras, will play some part in his studies, because he chose a hypotenusal path to accomplish his goal of mud-avoidance. He moved diagonally from the sidewalk across the short span of grass, and as he was almost ready to step into the street, his right foot went into an open manhole, therefore thwarting both his ability to keep his red Ponys clean and injuring his right knee. The injury in this case occurred not on the roadway, but in the parkway owned by the defendant. Although there is some confusion in the record as to the directions and locations, the following rough diagram is an approximation of the locations of the streets, the manhole and the plaintiff’s originally intended direct path and the alternate route he took to avoid the muddy sidewalk. [[Image here]] Suit was brought by his mother and next friend and the amended complaint alleged: “4. That at the above-mentioned time and place, because of a defect in the sidewalk, the plaintiff was required to deviate from the sidewalk and walk upon a grassy area, and thereby fell by slipping and falling into an open sewer manhole at the curb sustaining serious and permanent injuries as will hereinafter be more fully alleged. 5. That at the above-mentioned time and place, the defendant, by and through its agents, servants and employees, committed one or more of the following negligent acts and/or omissions; (a) that the defendant negligently failed to maintain its curbs and sewer manholes; (b) that the defendant negligently failed to repair the sewer manhole covers; (c) that the defendant failed to periodically inspect and repair its broken and/or misplaced sewer manhole covers; (d) that the defendant failed to keep its sidewalks, walkways, curbs and streets in a reasonably good condition for use by the plaintiff and other pedestrians; (e) that the defendant failed to warn the plaintiff of th defective sidewalk, walkway, street, curb and/or open sewe manhole cover; 6. That as a direct and proximate result of one or more c the foregoing acts or omissions on the part of the defendam plaintiff was injured when he fell as a result of having to cros the street because of a defective sidewalk, walkway, curb an street, and manhole cover’s disrepair.” Discovery was conducted, and the trial court had various pleading; statements, and the plaintiff’s deposition before it at the time that i ruled upon the defendant’s motion for summary judgment. These materials reflected that the plates covering the sewer mar holes had on occasion been removed by children in the neighborhoo and that their removal had been reported to the appropriate author ties of the defendant, but nothing had ever been done about it. In ac dition, the defendant had employees cleaning sewer drains on Octobe 14, 1985, and October 15, 1985, but the defendant had no records a to the exact location where the employees had been working or as t which drains had been cleaned. The sewer manhole into which plair tiff fell was on Sycamore about two feet north of McCord. The plair tiff had seen the sewer drain before the accident, but it had alway had the cover on it. At the time of the accident the curb area wher the plaintiff fell was covered with autumn leaves. As the plaintii walked across the grass between the sidewalk and curb, he steppe into the leaves in the curb area and his right leg went into the ope hole. At the time of the accident the plaintiff had not yet entered th street. The manhole was on the curb of Sycamore Street at the nortl west corner of the intersection. The plaintiff was about 10 to 15 fee from Sycamore Street when he first noticed the mud on the othe side of Sycamore. He described the muddy condition of the sidewal east of Sycamore as being “enough to get it on the bottom of your feet,” but not enough to cover the entire width of the sidewalk. There were “bald spots” on the sidewalk east of Sycamore, but they were not sufficient to leave a path big enough to walk through. The “high spots” of the sidewalk were clear. The plaintiff described the mud spots as “little layers of mud which were about two to three feet long” and “about a foot wide.” He guessed that there were three to four such mud spots between Sycamore’s eastern curb and his friend’s house, his destination, located almost a block east of Sycamore Street. Based on the facts described above the trial court held that there was no genuine issue of material fact and that as a matter of law the defendant could not be liable to the plaintiffs. The presiding judge concluded that the city owed no duty to maintain its sewer drains and curbs in a condition reasonably safe for use by pedestrians inasmuch as the plaintiff was not an intended user of this type of municipal property. The trial court entered summary judgment for the defendant, and the plaintiff has appealed. The defendant argues that the plaintiff in this case is essentially a jaywalker and that the city owes him no duty, citing Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357, and Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590. The city also relies upon Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888, for the proposition that a municipality owes no duty to a jogger who is utilizing the road surface. Finally, and closest factually to the instant case, the city relies upon Householder v. City of Bunker Hill (1988), 172 Ill. App. 3d 1037, 527 N.E.2d 528, which upheld that trial court’s dismissal of a complaint seeking recovery for injuries sustained by a plaintiff who stepped into an open manhole while pushing her car on the defendant’s street. Based on these cases, the defendant argues that the trial court was correct in finding that plaintiff’s use of the parkway was not an intended use of that area and the city owes no duty to one who voluntarily deviates from the sidewalk. Plaintiff’s deposition testimony and his amended complaint, however, state that he was required to leave the sidewalk to avoid the muddy conditions on Sycamore Street. Plaintiff argues that this situation brings this case within the purview of Johnson v. City of Rockford (1962), 35 Ill. App. 2d 107, 182 N.E.2d 240, Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716, and City of Beardstown v. Smith (1894), 150 Ill. 169, 37 N.E. 211. In Johnson the plaintiff claimed that the defendant had allowed a sidewalk to be obstructed by ice and snow for a distance of 100 feet, which forced him to walk in the street where he was struck by a car. The trial court dismissed the complaint, and the appellate court reversed, holding: “Applying these principles to the allegations of the amended complaint, we conclude that a jury might reasonably find that defendants could have reasonably foreseen the injuries to the plaintiff as a natural and probable result of their negligence. It is not necessary that the defendants should have reasonably foreseen the precise injury which resulted; it is enough if the exercise of reasonable foresight would have warned the defendants of the danger to pedestrians in obstructing a sidewalk with a bank of snow and ice for a distance of 100 feet.” Johnson, 35 Ill. App. 2d at 119, 182 N.E.2d at 246. In Thorsen the court affirmed the jury verdict against the city based on the plaintiff’s claim that he was struck by a drunk driver after he was forced to walk in the street because the city had removed the sidewalk to install a water main. In City of Beardstown v. Smith the plaintiff fell into an open ditch or drain that was actually located in the street area. While no actual sidewalk was present, the plaintiff was on a path beaten down by pedestrian use when she fell. While we agree that the facts of this case might arguably bring it within the holdings of Johnson and Thorsen, we need not decide whether those cases are controlling here. Instead we find that the cases cited by the defendant (Risner, 150 Ill. App. 3d 827, 502 N.E.2d 357; Deren, 13 Ill. App. 3d 473, 300 N.E.2d 590; Eddings, 135 Ill. App. 3d 190, 478 N.E.2d 888; Householder, 172 Ill. App. 3d 1037, 527 N.E.2d 528) are distinguishable on the basis that the injuries occurred in the street or roadway area, and the courts held that no duty existed to keep roadways reasonably safe for pedestrian traffic. In this case the manhole extended from the grassy, leaf-covered parkway in the curb on the west side of Sycamore approximately two feet north of McCord. It would appear to be almost at the point of the corner and approximately three feet south of the south edge of the sidewalk. A city has a duty to maintain its streets and sidewalks, including its parkways, in a reasonably safe condition considering the intended use of such areas. Greig v. City of Park Ridge (1964), 49 Ill. App. 2d 237, 240, 199 N.E.2d 609, 610-11; Pinto v. DeMunnick (1988), 168 Ill. App. 3d 771, 523 N.E.2d 47, appeal allowed (1988), 122 Ill. 2d 593, 530 N.E.2d 263. We hold that the city has a duty to cover open sewer drains located in a parkway at a corner in a residential area. Therefore the summary judgment in defendant’s favor is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion. Reversed and remanded. HOWERTON and RARICK, JJ., concur.	01-03-2023	07-24-2022
https://www.courtlistener.com/api/rest/v3/opinions/2441305/	966 N.E.2d 617 (2008) 381 Ill. App. 3d 1166 359 Ill. Dec. 296 DAVIS v. ERVIN. No. 5-06-0544. Appellate Court of Illinois, Fifth District. May 6, 2008. Rev'd & rem.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/411474/	694 F.2d 717 Justicev.Bordenkircher 82-6723 UNITED STATES COURT OF APPEALS Fourth Circuit 11/10/82 1 S.D.W.Va. VACATED AND REMANDED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2101145/	95 N.Y.2d 827 (2000) 734 N.E.2d 749 712 N.Y.S.2d 437 THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. ANDREW LASALLE, Respondent. Court of Appeals of the State of New York. Argued June 6, 2000. Decided June 29, 2000. 828 Jeanine Pirro, District Attorney of Westchester County, White Plains (Richard Longworth Hecht and Richard E. Weill of counsel), for appellant. Kevin P. Gilleece, White Plains, for respondent. Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur. OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed. In this case, the Appellate Division ruled that the trial court "erred in imposing consecutive sentences for the defendant's convictions of sodomy in the first degree and criminal use of a firearm in the first degree since both convictions arose out of a single incident" (258 AD2d 668, 669). Its order modified the judgment by "deleting the provision thereof imposing consecutive indeterminate terms of imprisonment and substituting therefor a provision that all of the sentences shall run concurrently to one another" (id.). 829 The sole issue raised in the People's appeal is whether, under CPL 470.20, the Appellate Division's only available corrective action on the illegal sentence was to remit for resentencing by the trial court. To the contrary, an intermediate appellate court, in exercising its responsibility under CPL 470.20 to take "such corrective action as is necessary and appropriate," has the discretion, upon reversing or modifying a sentence, either to remit to the trial court for resentencing or to substitute its own legal sentence for the illegally imposed sentence. The Appellate Division did not abuse its discretion by choosing the latter option. Order affirmed in a memorandum.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4467496/	Residential Credit Solutions, Inc. v Guzman (2019 NY Slip Op 09313) Residential Credit Solutions, Inc. v Guzman 2019 NY Slip Op 09313 Decided on December 24, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 24, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL ANGELA G. IANNACCI LINDA CHRISTOPHER, JJ. 2017-07764 (Index No. 4017/10) [1]Residential Credit Solutions, Inc., respondent, vRene Guzman, etc., appellant, et al., defendants. Ronald D. Weiss, P.C., Melville, NY (William Birmingham of counsel), for appellant. Stern & Eisenberg, P.C., Depew, NY (Anthony P. Scali and Peter Lawrence of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Rene Guzman appeals from a judgment of foreclosure and sale of the Supreme Court, Queens County (Leslie J. Purificacion, J.), entered May 24, 2017. The judgment, upon an order of the same court entered May 2, 2017, denying that defendant's motion pursuant to CPLR 5015(a)(4) to vacate an order of reference dated April 24, 2013, entered upon his default in answering the complaint, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, inter alia, directed the sale of the subject property. The notice of appeal from the order entered May 2, 2017, is deemed to be a notice of appeal from the judgment of foreclosure and sale (see CPLR 5512[a]). ORDERED that the judgment of foreclosure and sale is affirmed, with costs. In February 2010, the plaintiff's assignor, American Home Mortgage Servicing, Inc., commenced this action to foreclose a mortgage against, among others, the defendant Rene Guzman (hereinafter the defendant). Although the defendant did not file a timely answer, notices of appearance were filed on his behalf by two successive attorneys. The defendant did not raise an objection to personal jurisdiction at the time of filing either notice of appearance. On April 24, 2013, the plaintiff's unopposed motion for an order of reference was granted. In November 2016, the defendant moved to vacate the order of reference, and to dismiss the complaint for lack of personal jurisdiction. In an order entered May 2, 2017, the Supreme Court denied the defendant's motion, finding that he had waived any objection to personal jurisdiction. A judgment of foreclosure and sale was entered on May 24, 2017. The defendant appeals. We agree with the Supreme Court's determination that the defendant waived any claim that the court lacked personal jurisdiction over him. "[A]n appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer as provided [2]in rule 3211" (CPLR 320[b]). "By statute, a party may appear in an action by attorney, and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction" (Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140 [citation omitted]). Here, notices of appearance were filed by two successive attorneys who represented the defendant, and neither of the attorneys nor the defendant raised an objection to jurisdiction by way of an answer or motion to dismiss under CPLR 3211 (see Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 847; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181-1182). Moreover, the defendant informally appeared in the proceedings "by actively litigating the action before the court" (Taveras v City of New York, 108 AD3d 614, 617) when he engaged in motion practice without raising an objection to personal jurisdiction (see HSBC Bank USA, N.A. v Taub, 170 AD3d 1128, 1130). Accordingly, the defendant waived any objection on the ground of lack of personal jurisdiction, and we agree with the court's determination to deny his motion to vacate the order of reference and to dismiss the complaint. The defendant's remaining contentions need not be reached in light of our determination. MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	01-03-2023	12-24-2019
https://www.courtlistener.com/api/rest/v3/opinions/1008875/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7265 MAX ARBAUGH, Petitioner - Appellant, versus THOMAS MCBRIDE, Respondent - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, Senior District Judge. (CA-02-14-2) Submitted: October 15, 2002 Decided: October 22, 2002 Before WILLIAMS, MOTZ, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Max Arbaugh, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Max Arbaugh seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his petition filed under 28 U.S.C. § 2254 (2000). We have reviewed the record and conclude for the reasons stated by the district court that Arbaugh has not made a substantial showing of the denial of a constitutional right. See Arbaugh v. McBride, No. CA-02-14-2 (N.D.W. Va. Aug. 8, 2002). Accordingly, we deny a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/1657678/	351 So.2d 1022 (1976) Alan P. DEVIN and Beverly A. Parrott, Appellants, v. The CITY OF HOLLYWOOD, Florida et al., Appellees. No. 75-570. District Court of Appeal of Florida, Fourth District. July 23, 1976. Rehearing Denied October 8, 1976. Salvatore V. Fiore of DiGiulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for appellants. J. Bart Budetti, Hollywood, for appellees. BASKIN, NATALIE, Associate Judge. This is an appeal by two City of Hollywood police officers alleging discrimination by the City of Hollywood Chief of Police in failing to promote them. Plaintiffs-Appellants contend that Civil Service requires promotion of police department employees to be on the basis of merit and fitness only, as determined by competitive examination and resulting ranked eligibility lists provided by the Civil Service Board. They urge that no discretion exists in making promotions within the police department, but state that even if some discretion should be found to exist, it was abused when Plaintiffs-Appellants Parrott and Devin were bypassed and persons ranked below them were appointed. 1023 Plaintiffs-Appellants amended complaint for declaratory relief, injunctive relief and damages filed against the City of Hollywood, the Civil Service Board of the City of Hollywood, Board members, the Chief of Police of the City of Hollywood and the Acting City Manager of the City of Hollywood was dismissed with prejudice after hearing.[1] Appellant Devin is a sergeant employed by the City of Hollywood Police Department. Appellant Devin was number one on the eligibility list for promotion to lieutenant but was not promoted because he did not receive any recommendations for promotion from the lieutenants called upon by Defendant-Appellee Martin, Chief of Police, to make such recommendations. Chief Martin utilized recommendations of lieutenants to assist him in determining which officer on the eligibility list should be promoted. Appellant Devin had already received outstanding comments and ratings by lieutenants and captains during the course of his nine years employment. He was advised by members of the Civil Service Board that he was not promoted in 1974 nor in the past, despite outstanding ratings, because he was not a member of the "club". Appellant Parrott has been a police officer with the City of Hollywood for seven years. She was tenth on the eligibility list for promotion to sergeant when promotions of the individuals listed as numbers 1, 2, 3, 4, 6, 7, 8, 12, 13, 20 and 24 were made. She was not promoted. She was advised on a prior occasion that although she had received recommendations from other officers, the Chief of Police did not feel that there was a slot for a female and that her assignment to the patrol division would not be fair to the men, but without patrol experience Officer Parrott would not receive recommendations for promotion. There is no testimony that service in the patrol division is a prerequisite to promotion to the rank of sergeant. Although Appellant Parrott had received above average evaluation reports during her employment, the reports were not contained in her personnel file when it was circulated among the captains and lieutenants who were to make recommendations for promotion and with whom she had not worked. This appeal questions whether the Civil Service Act affords discretion to the Chief of Police in making promotions within the police department and if so to what degree. The problem facing the court is to determine, in the absence of a statement by the legislature or by the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida, from what portion of the list of eligibles certified by the Civil Service Board promotions may be made. Is the promoting authority required to select the individual at the top of the list or may the selection be made from the top three, four or more persons?[2] Because the legislature has failed to announce a standard to guide in the selection of applicants on the eligible list and to define the limits of discretion of the appointing authority in making promotions, the legislative intent must be examined. The primary guide to statutory interpretation is to determine the purpose of the legislature. Tyson v. Lanier, 156 So.2d 833 (Fla. 1963). Uncertainty should be resolved by an interpretation that best accords with the public benefits. Sunshine State News Company v. State, 121 So.2d 705 (Fla.App. 1960). It is not the function of the judicial branch to supply omissions of 1024 the legislature. Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. App. 1963). In order to determine the legislative intent, an examination of the Civil Service Act and Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida becomes necessary. The stated purpose of the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida is: "... that the City and its employees may have assurance that personnel will be dealt with on an equitable basis and that the citizens of Hollywood, Florida, may derive the benefits and advantages which can be expected to result from a competent staff of City employees." The Civil Service Act of the City of Hollywood,[3] Section 6, states: "Advancement by competitive examination. Employees coming within the provisions of this chapter shall be employed and retained in employment and advance to any higher grade on merit and fitness only, and the merit and fitness of any applicant for said departments, or for advancement therein, shall be determined by competitive examination, as hereinafter provided." Merit and fitness are defined by Rule 5 of the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida to be ascertained by examination prepared by or under the direction of the Civil Service Board. "All examinations shall be impartial and shall relate to those matters which will test fairly the capacity and fitness of the candidates to discharge efficiently the duties of the position to be filled. Examinations may be assembled or non-assembled, and may include written, oral, physical test, performance tests, ratings of training and experience or any combination of these. They may take into consideration such factors as education, experience, aptitude, knowledge, character, physical fitness or any qualifications or attributes which, in the judgment of the Civil Service Board, enter into a determination of the relative fitness of applicants. Promotional examinations shall take into consideration the quality and length of employment in addition to any or all of the above factors." Rule 9 provides that persons shall be placed upon the eligible lists as candidates in order of their relative excellence as determined by examination. All promotional appointments include a probationary period under Rule 11. Rule 19 provides: "The term `Promotional Examination' signifies a fitness test to determine the relative standing of applicants for positions in a specified class and open only to employees in the classified service." Rule 8, Section 2, permits the appointing authority the privilege of examining the papers of applicants, if desired, in connection with determining the relative fitness of persons under consideration for appointment. References in the above mentioned Rules to relative merit, when considered in the light of the standards of the Civil Service Act, indicate a legislative intent to obtain the best persons available to perform duties under Civil Service. The competitive examinations rank applicants on a wide variety of factors, including personality traits, before they are placed on the list.[4] It is apparent that the legislature sought to limit the discretion to be exercised by the promoting authority. The use 1025 of a "rule of one", coupled with a probationary period during which unfit persons might be rejected for valid reasons, best fulfills the legislative purpose. Appellees have cited authorities upholding a "rule of three". Those authorities are distinguishable from the case at bar. The decision of the District Court of Appeal, Third District, in Bowlin v. County of Dade, 296 So.2d 602 (Fla.App. 1974) is distinguishable from the situation in the case at bar. In Bowlin, a "rule of four" was contained in the Dade County Rules giving discretion to the Department of Public Safety to promote from the highest of four candidates. The District Court of Appeal, Third District, upheld the "rule of four" as constitutional finding that it was reasonable to afford the Director of Public Safety discretion in the right of selection when promotion based entirely upon written examination would be unduly rigid. In the case at bar, however, no discretion is provided the appointing authority other than to review the papers of individual applicants to determine their relative fitness. The case at bar involves more than a written examination (Rule 5, supra) and includes recommendations obtained during the course of employment and based upon past performance as well as oral examinations.[5] Also distinguishable is the Opinion of the Attorney General, 073-225, dealing with a Civil Service Board established under prior Florida Statute 174. The Opinion involved a situation where the Civil Service Rules had announced a "rule of three". Other jurisdictions have placed limitations on the discretion of the promoting authority. State ex rel. Wolcott v. Celebrezze, 141 Ohio St. 627, 49 N.E.2d 945 (1943); City of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961). By specifying in Section 6 of Rule 9 that initial appointments may be chosen from the entire list, the legislature has implied an intention to limit the discretion to select individuals for promotion. The mention of one thing implies the exclusion of another. Bergh v. Stephens, 175 So.2d 787 (Fla.App. 1965). Although this court could apply a standard of "reasonableness" and permit the use of a "rule of three" or a "rule of four", such action by this court would constitute judicial legislation and would be based upon an arbitrary determination.[6] That determination should emanate from the legislature if it sees fit to provide greater discretion to the promoting authority.[7] We therefore hold that the Rules and Regulations for Municipal Civil Service for the City of Hollywood and the Hollywood Civil Service Act do not authorize promotions other than of the individual at the top of the certified list. We further hold that the procedure employed in making promotions constituted an abuse of discretion by the promoting authority and permitted the abuses sought to be corrected by the Civil Service Act to continue. 1026 In the event the legislature chooses to conduct the City of Hollywood Civil Service promotions by some other method, it may express itself accordingly. We also hold that the trial court erred in relying upon expert testimony to determine the meaning of terms which were questions of law to be decided by the trial court. Consolidated Mutual Insurance Company v. Ramy, 238 So.2d 431 (Fla.App. 1970). Since the trial judge stated on the record that he had examined the exhibits to his satisfaction, Appellants' allegation of error on this point is without merit. Based upon foregoing considerations, we find that the trial court committed error in dismissing Appellants' amended complaint. We reverse and remand. MAGER, C.J., and DOWNEY, J., concur. NOTES [1] The trial court found that the Chief of Police of the City of Hollywood had the authority pursuant to the Civil Service Act to exercise reasonable discretion in the choice of persons to be promoted from the certified list supplied him by the Civil Service Board and further found that Plaintiffs had not sustained their burden of providing sufficient evidence that the police chief abused his discretion, discriminated against Plaintiffs, acted in an arbitrary or capricious manner, or otherwise acted illegally in selection of persons to be promoted. [2] The selection of the first individual on the list is referred to as a "rule of one". A "rule of three" refers to selection from the three highest scores, etc. [3] Special Act of the legislature of the State of Florida, House Bill 1265, enacted May 19, 1965. [4] For this reason, the obtaining of additional recommendations furnished by officers with knowledge they would be in a position to influence promotions exceeded the bounds of objectivity contemplated by the Civil Service Act and reverts to a personal preference system sought to be eliminated by the Act. This is particularly poor practice when the file of Officer Parrott failed to contain recommendations she had earned during the course of her employ. [5] Recommendations furnished during a course of employment based upon past performance appear to be more in keeping with the Act than the recommendations specifically requested by the Chief of Police for the purpose of determining promotion, as follows: "In lieu of a vacancy for lieutenant and two for sergeant, the following is a letter sent by my office to all captains and lieutenants. Attached is a list of eligibles for promotion to the rank of police lieutenant and sergeant, as submitted to me by the Civil Service Board. You are hereby instructed to recommend one individual from the attached list, to be promoted to the rank of lieutenant, and two individuals, to be promoted to the rank of sergeant. The recommendations submitted by the captains and lieutenants, will be the determining factor in this selection process." (Emphasis added.) [6] The court will refuse to tack additional words on a statute in a situation where uncertainty prevails as to the intent of the legislature. Re Estate of Jeffcott, 186 So.2d 80 (Fla.App. 1966); Armstrong v. Edgewater, 157 So.2d 422 (Fla. 1963). [7] If a "rule of one" is not followed, it appears that under existing practice Appellants could remain at the top of the list and never be promoted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1657624/	670 So.2d 62 (1996) THE FLORIDA BAR, Complainant, v. Milton KELNER, Respondent. No. 84435. Supreme Court of Florida. March 21, 1996. John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, Florida; and Jan Wichrowski, Bar Counsel, Orlando, Florida, for Complainant. John D. Kelner of the Law Offices of John D. Kelner, Miami, Florida, for Respondent. PER CURIAM. We have for review the complaint of The Florida Bar (the Bar) and the referee's report regarding alleged ethical breaches by Milton Kelner. We have jurisdiction. Art. V, § 15, Fla. Const. We approve the report. The referee made the following findings of fact based on the evidence presented: 3. The respondent represented plaintiff in civil action 91-5836, in the Ninth Judicial Circuit of Florida, Ronald Purdy v. John Tatum, M.D. The plaintiff sued Dr. Tatum [the psychiatrist who treated Mr. Purdy's former wife, Christine Purdy] for loss of consortium with his wife after Mrs. Purdy had an affair with Dr. Tatum. Based upon her affair with Dr. Tatum, Mrs. Purdy separated from her husband and he filed for divorce against her. Mrs. Purdy filed a malpractice action against Dr. Tatum which was concluded by a settlement. 4. Prior to trial, the defendant, John M. Tatum M.D., filed a motion in limine 63 regarding recoverable damages. It requested that the evidence before the jury be limited to recoverable damages, and that reference to improper damages, which were not properly derivative of a loss of consortium or breach of contract action be prohibited. 5. The court granted defendant's Motion in limine and instructed respondent... not to elicit any testimony or evidence with respect to any claims, for alienation of affections, as defined specifically during the hearing. The court specifically stated that the plaintiff's damages were limited to loss of consortium and that he could not recover for his own personal injuries relating to his mental anguish caused by plaintiff's divorce.... The plaintiff ... was further prohibited from seeking costs incurred during the divorce. 6. In contravention of the court's order in regard to the motion in limine, respondent... made repeated references to the personal injuries of his client suffered as a result of the mental anguish caused by Christine Purdy's affair with Dr. Tatum. 7. The court strongly advised respondent... to cease this conduct which it considered to be in violation of its previous order on the motion in limine. 8. The court gave curative instructions to the jury concerning recoverable damages in the plaintiff's action in an attempt to cure any possible damage caused by respondent's violation of his orders. 9. Directly after the court's final curative instruction, the respondent ... continued to violate the court's order by repeatedly asking questions which violated the court's order in limine inquiring about the emotional effect upon Mr. Purdy caused by his separation from Christine Purdy and his son, and attempting to offer Dr. Tatum's telephone records into evidence through a completely inappropriate witness. 10. Ultimately a mistrial resulted in this case due to the problems caused by respondent's violation of the court's order in limine. Based upon the above findings, the referee recommends as follows: 1. That the respondent be found guilty of violating rule 4-3.1, Rules Regulating The Florida Bar, for asserting an issue within the proceeding which was without a basis. 2. That the respondent be found guilty of violating rule 4-3.4(e), Rules Regulating The Florida Bar, for alluding to matters, in trial, that the lawyer does not reasonably believe relevant or supported by admissible evidence. 3. That the respondent be found innocent of violating rule 4-3.5(c), Rules Regulating The Florida Bar, for engaging in conduct intended to disrupt a tribunal. 4. That the respondent be found innocent of violating rule 4-8.4(d), Rules Regulating The Florida Bar, for engaging in conduct that is prejudicial to the administration of justice. . . . . . . . [T]hat the respondent receive a public reprimand without probation, as provided for in rules 3-5.1(c) and 3-5.1(d), Rules Regulating The Florida Bar. Our review of the record shows that competent, substantial evidence supports the referee's findings of fact and recommendations of guilt and we approve those findings and recommendations. Kelner argues that he did not act intentionally in disobeying the court's order in limine and that, as a result, the referee's recommended discipline is excessive. We disagree. Our review of the record reveals that Kelner repeatedly violated the trial court's order even after being admonished by the trial judge. Further, as noted above, competent, substantial evidence supports the referee's recommendation that Kelner violated Rule Regulating the Florida Bar 4-3.4(e) for alluding to matters, in trial, which he did not reasonably believe to be relevant or supported by admissible evidence. While Kelner has a duty to zealously represent his clients, this duty does not require that he violate a court order and produce a mistrial. We approve of the referee's recommended discipline and order that Kelner be publicly reprimanded by publication of this opinion in 64 Southern Reporter. Judgment for costs in the amount of $2,001.53 is entered for The Florida Bar against Milton Kelner, for which sum let execution issue. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, HARDING, WELLS and ANSTEAD, JJ., concur. KOGAN, J., recused.	01-03-2023	10-30-2013

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