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929 N.E.2d 164 (2006)
367 Ill. App.3d 1082
IN RE MARRIAGE OF BULLARD-FUNDICH.
No. 1-05-3914.
Appellate Court of Illinois, First District
September 20, 2006.
Aff'd & rem.
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696 N.W.2d 582 (2005)
Craig J. JENSEN, Appellant,
v.
James A. SATTLER and Julie M. Sattler, Appellees.
No. 03-1251.
Supreme Court of Iowa.
April 29, 2005.
Rehearing Denied June 1, 2005.
*583 Stephen J. Holtman, Leonard T. Strand, and Jason M. Steffens of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
Sean W. McPartland of Lynch Dallas, P.C., Cedar Rapids, for appellees.
STREIT, Justice.
Three years after a Cedar Rapids couple sold a man their mansion with its "touch of Beverly Hills," it turned into a money pit. The buyer sued the couple for misrepresentation and a violation of Iowa's Real Estate Disclosure Act. The district court ruled he had to prove fraud to recover and consolidated his claims. The court also dismissed one of the sellers from the suit because she did not sign a disclosure form. The buyer lost what remained of his case, which was tried to a jury. We reverse in part and remand for a trial on the claims the court prematurely dismissed.
I. Facts and Prior Proceedings
In December 1997, James and Julie Sattler sold their home to Craig Jensen for $660,000. The Sattlers had lived in the home since 1993. James Sattler owned Jim Sattler Construction Company, Inc., which built the house in 1992.
When James Sattler first showed Jensen the house, he handed Jensen a brochure that attested to the high quality of Sattler homes. The brochure characterized Sattler as a "hands-on" supervisor who was "on the job-site all the time." The house was featured in the local Parade of Homes and touted as "an elegant `touch of Beverly Hills' right here in Cedar Rapids!" It is a large executive home with over 8000 square feet of living space.
Prior to closing, the Sattlers gave Jensen a real estate disclosure form. See Iowa Code § 558A.2 (1997) (requiring transferors of real estate to provide buyers a written disclosure statement). James Sattler signed the form but Julie Sattler did not. Two problems were disclosed: (1) a crack in the front wall that caused water to leak into the basement "ONE TIME ONLY!" and (2) a faulty master shower valve. Neither problem dissuaded Jensen from buying the home. Jensen moved in and for three years did not have any problems, except for an intermittent inability to adequately cool the upper level of the house.
*584 In 2001, Jensen claimed he discovered problems with (1) the roof and attic, (2) electrical wiring in the foyer, and (3) improper drainage around the foundation. Trouble began on New Year's Day when Jensen found water streaming down the interior walls of the home. Inadequate attic ventilation had caused large ice dams to form on the roof. Water backed up behind the dams and seeped through the roof into the attic and down the inside of the house. Extensive damage resulted.
While repairing the water damage, Jensen found an electrical problem in the foyer. Jensen discovered sixty light bulb sockets in the foyer lighting were empty. Workers filled all the sockets with bulbs, but the electrical wiring proved insufficient, overloaded, and melted.
Lastly, Jensen had problems with the crack in the basement which the Sattlers had disclosed. The crack widened and water seeped into the basement. Jensen excavated around the crack and found the drainage tile around the foundation was clogged with dirt. The tile was only three inches in diameter and not surrounded by gravel. Jensen also claimed dirt was backfilled too high around the house.
Jensen sued the Sattlers on a common law and a statutory basis. Jensen's pleadings show three distinct common law claims: fraudulent misrepresentation, fraudulent nondisclosure, and negligent misrepresentation. Jensen also argued the Sattlers failed to disclose defects pursuant to Iowa Code chapter 558A.
The Sattlers filed a motion for summary judgment. The district court granted most of the motion. First, the district court dismissed all claims against Julie Sattler because she did not (1) make any affirmative representations to Jensen about the house or (2) sign the disclosure statement. Second, the district court dismissed Jensen's claims "as to any negligent misrepresentation claim against [James Sattler]" but overruled the motion "as to any claim of fraudulent misrepresentation or Chapter 558A violation by [James Sattler]." The court held "proof of the violation of the standards set out in Chapter 558A" was required to recover and later gave the jury an instruction that blended the common law and statutory claims into one common law claim of fraudulent nondisclosure.[1] The jury found in favor of Sattler. Jensen appealed.
II. Motion on Appeal
Before reaching the merits of the appeal, we must rule upon one outstanding *585 motion. This past June, the Sattlers filed a notice of additional authority. See Iowa R.App. P. 6.21. In their notice, the Sattlers directed our attention to a new case and discussed how it supported their arguments on appeal.
Jensen moved to strike the argumentative portions of the Sattlers' notice of additional authority. Jensen claimed a party may not use such a notice to interject additional written argument into an appeal. We grant Jensen's motion to strike.
III. The Merits
Jensen claims the district court erred when it (1) held proof of fraud was required for a buyer to recover under the Iowa Real Estate Disclosure Act; (2) consolidated Jensen's common law and statutory claims; (3) granted summary judgment in favor of Julie Sattler; and (4) erroneously excluded certain evidence from trial. The first three issues in this case involve issues of statutory interpretation, and therefore our standard of review is for errors at law. In re Detention of Willis, 691 N.W.2d 726, 728 (Iowa 2005). We review the evidentiary claims for an abuse of discretion. In re Detention of Palmer, 691 N.W.2d 413, 416 (Iowa 2005).
A. Does Iowa Code Section 558A.6(1) Require Proof of Fraud?
Iowa Code chapter 558A is Iowa's Real Estate Disclosure Act. It requires persons interested in transferring real estate to deliver a written disclosure statement to prospective buyers. Iowa Code § 558A.2. The disclosure statement must include certain information about the "condition and important characteristics and structures on the property" as provided in rules adopted by the real estate commission. Id. § 558A.4(1); see, e.g., Iowa Admin. Code r. 193E-14.1(6) (setting forth sample disclosure statement). A person who violates the Act's disclosure requirement is ordinarily liable for the amount of actual damage the buyer suffers. Id. § 558A.6. That said, the Act states
[t]he transferor ... shall not be liable for [any] error, inaccuracy, or omission in information required in a disclosure statement, unless that person has actual knowledge of the inaccuracy, or fails to exercise ordinary care in obtaining the information.
Id. § 558A.6(1) (emphasis added).
Jensen argues the plain language of the above-italicized portion of the statute permits a buyer to recover upon a showing the transferor did not exercise ordinary care in obtaining the information required to be disclosed. He contends this standard is something less than fraud. The Sattlers maintain Jensen did not preserve error. In the alternative, they claim the district court correctly interpreted the statute.
1. Error Preservation
We find no merit in the Sattlers' error preservation claim. Jensen alleged a violation of the statute in his petition. The Sattlers filed a motion for summary judgment and a reply brief in which they repeatedly insisted Jensen had to prove fraud to recover under the statute. It is true the summary judgment record is not a model of clarity. Jensen generally resisted summary judgment, however, and in hindsight it is plain the district court's ruling barred Jensen from introducing evidence to show the Sattlers did not exercise ordinary care in obtaining the information to disclose on the form. Jensen preserved error. See State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975) (if a trial court's ruling is dispositive on the issue of admissibility, it is considered final for purposes of appeal and no further objection is necessary).
*586 That Jensen preserved error is apparent from other pretrial filings. The Sattlers filed a motion in limine in which they contended the statute required a showing of fraud. They argued "[v]erbal references to a negligence standard would be highly prejudicial, misleading, and confusing to the jury" and requested Jensen, his counsel, and the plaintiff's witnesses be "admonished" not to make any such statements.[2] In a contemporaneously filed pretrial statement Jensen argued the Sattlers
can be liable for failure to make accurate disclosures not only for actual knowledge that the conditions exist but also for failing to "exercise ordinary care in obtaining the information." 558A.6(1).
The district court granted the Sattlers' motion and forbade Jensen from arguing a negligence standard at trial. Error was clearly preserved. See Miller, 229 N.W.2d at 768; see also State v. Wells, 629 N.W.2d 346, 355 (Iowa 2001) (pointing out our concern is what the ruling of the trial court does or purports to do, not the title of the motion or the prayer). Jensen was not required to file a posttrial motion to preserve error as the Sattlers suggest. See Miller, 229 N.W.2d at 768; see also Explore Info. Servs. v. Iowa Ct. Info. Sys., 636 N.W.2d 50, 57 (Iowa 2001) (holding "it is necessary to preserve error [with a rule 1.904(2)] motion only when the district court fails to resolve an issue ... properly submitted for adjudication" (emphasis in original)).
2. Exercising Ordinary Care in Obtaining the Information
Jensen argues the plain language of Iowa Code section 558A.6(1) permits a buyer of real estate to recover for damages even if the buyer is unable to prove fraud or that the seller had actual knowledge of the error, inaccuracy, or omission in the disclosure form. Jensen points to the "exercise ordinary care in obtaining the information" language in the statute, and argues this provision is intended to create a cause of action for negligence. Cf. Knapp v. Simmons, 345 N.W.2d 118, 124 (Iowa 1984) (equating "ordinary care" with "reasonable care"). The Sattlers argue the "ordinary care" language is not synonymous with a negligence standard. They contend that if we were to rule against them a parade of horribles would ensure, permitting buyers to sue sellers whenever they failed to exercise ordinary care in obtaining the information on the disclosure form. They also argue it would be absurd because no one would ever need to prove actual knowledge. In the alternative, the Sattlers claim Iowa Code section 558A.6(1) is intended to apply only to absentee owners so they will make a reasonable investigation into the property they own, not sellers like the Sattlers who had lived in the home for years and had complete knowledge of it.
We must read the statute as it is written. See Gannon v. Bd. of Regents, 692 N.W.2d 31, 43 (Iowa 2005); see also Iowa R.App. P. 6.14(6)(m) (noting it is well established that we find intent in what the legislature said, not what it might have said). The Sattlers' policy arguments are of little help in this case. The scope of the statute is a matter of public policy and therefore within the province of the legislature. PanDa Eng'g v. Eng'g & Land *587 Surveying Examining Bd., 621 N.W.2d 196, 199 (Iowa 2001).
The plain and unambiguous language of the statute clearly indicates a seller can be liable for something less than a knowingly inaccurate disclosure, i.e., if the seller "fails to exercise ordinary care in obtaining the information" to be put on the disclosure form. The Act places a limited affirmative duty upon sellers insofar as they must "exercise ordinary care in obtaining the information." Iowa Code § 558A.6(1); see also Leonard A. Bernstein & George F. Magera, Seller Disclosure Laws Gain Popularity, 9 Loy. Consumer L. Rep. 43, 49 n. 57 (1997) (including Iowa's statute among those requiring "at least some affirmative investigation"). There is nothing in the statute indicating this duty is limited to absentee owners as the Sattlers suggest. For example, one question on the disclosure form is "Do you know the zoning classification of the property?" Iowa Admin. Code r. 193E-14.1(6). A seller must exercise ordinary care in obtaining this information whether or not the seller lives on the property. This interpretation of the statute is in harmony with the Act's insistence that "[a]ll information required by this section and rules adopted by the [real estate] commission shall be disclosed in good faith." Iowa Code § 558A.3(1). Section 558A.3(1) states that good faith includes "a reasonable effort ... to ascertain the information." See also id. § 558A.3(2)(b) (using failure to exercise ordinary care language after discussion of good faith duty to amend disclosure statement).
3. Sedgwick
It is true in Sedgwick v. Bowers we stated the "court of appeals has held that [the elements of fraud] are required for recovery under an action based on chapter 558A, and we agree." 681 N.W.2d 607, 611 (Iowa 2004) (citing Arthur v. Brick, 565 N.W.2d 623, 625-26 (Iowa Ct.App.1997)). On further examination, we find this statement was inaccurate. In Arthur, the court of appeals was adjudicating a common law fraudulent misrepresentation claim, not a chapter 558A statutory nondisclosure claim. 565 N.W.2d at 625. In any event, Sedgwick is distinguishable from the case at bar because the plaintiff in that case apparently did not bring a claim under the ordinary care prong of the statute. 681 N.W.2d at 612 (holding that the district court's finding that seller had not "misrepresented" condition of property was not supported by substantial evidence). Sedgwick thus did not squarely address the issue presented here. Therefore our broad language in that case, even if it were valid, is not controlling. See Sager v. Farm Bureau Mut. Ins. Co., 680 N.W.2d 8, 14 (Iowa 2004).
4. Disposition
In sum, we hold the district court erred when it held proof of fraud was required for a buyer to recover under the Iowa Real Estate Disclosure Act. It is sufficient if the buyer shows the seller failed to exercise ordinary care in obtaining the information sought on the form. Iowa Code 558A.6(1). The complexity of this case, of course, is that one of the sellers was intimately involved in the construction of the home. We reverse and remand for a trial on Jensen's chapter 558A claim.
B. Was Consolidation of Jensen's Common Law and Statutory Claims Proper?
Because the district court held a buyer must prove fraud on the part of the seller to recover under the Act, it consolidated Jensen's common law and statutory claims into one claim for fraudulent nondisclosure. This was also error. The *588 causes of action are distinct and not subject to consolidation.
Iowa Code section 558A.6 only requires the plaintiff to show actual knowledge of a problem that was required to be disclosed, not the elements of fraud. To the extent Sedgwick holds to the contrary, we overrule it. The causes of action have different elements. Compare Iowa Code § 558A.6(1) (requiring proof of "actual knowledge" or "failure to exercise ordinary care in obtaining the information"), with Robinson v. Perpetual Servs. Corp., 412 N.W.2d 562, 565 (Iowa 1987) (setting forth the seven elements for recovery in a fraud action). The plaintiff also carries a greater burden of proof on a fraud claim. See Robinson, 412 N.W.2d at 565 (pointing out proof by a mere preponderance of the evidence not sufficient in fraud action). In addition, the Act explicitly states it "shall not limit or abridge any ... liability for disclosure created by another provision of law." Iowa Code § 558A.7. For all these reasons, we implicitly recognized the independent nature of chapter 558A and common law claims in a prior case. See Peterson v. Bottomley, 582 N.W.2d 187, 189 (Iowa 1998) (holding district court erred when it ruled on chapter 558A claim when plaintiff only pled a common law theory).
In sum, the district court should have permitted Jensen to independently pursue his common law and statutory claims, and it erred when it ruled otherwise. A jury could have found Jensen established a violation of the statute, even if he did not prove his common law fraud claim. We reverse and remand for a new trial on both the actual knowledge and the failure to exercise ordinary care prongs of Jensen's statutory claim.
Because Jensen does not contend the district court's instruction erroneously characterized his common law fraud claims, however, to that extent we let the jury's decision stand. We also affirm the district court's dismissal of Jensen's common law negligent misrepresentation claim, albeit apparently for a different reason than the district court. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002) (holding supreme court may affirm on an alternate ground so long as it was urged in the district court). In the district court, the Sattlers argued Jensen's negligent misrepresentation claim should be dismissed because he had made no showing the Sattlers owed him a duty of care. We agree. The Sattlers were not in the business or profession of supplying information to Jensen; this was an arms-length and adversarial transaction. Absent a special relationship giving rise to a duty of care, a plaintiff cannot establish negligent misrepresentation. See, e.g., Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 124 (Iowa 2001); Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 227 (Iowa 1998); Fry v. Mount, 554 N.W.2d 263, 265-66 (Iowa 1996); cf. Madren v. Super Valu, Inc., 183 F.Supp.2d 1138, 1143-44 (S.D.Iowa 2002) (applying Iowa law).
C. Mrs. Sattler
The district court dismissed Julie Sattler from the suit altogether. The court did so because she did not sign the disclosure form and there was no evidence she made any affirmative representations to Jensen. Jensen challenges dismissal of his statutory claim against Mrs. Sattler. He does not appeal dismissal of the common law claims with respect to her.
The disclosure requirements of Iowa Code chapter 558A apply to all prospective transferors of real estate. See Iowa Code §§ 558A.2, .6(1). The Act states "[a] person interested in transferring real property... shall deliver a written disclosure statement to a person interested in being transferred the real property." Id. § 558A.2(1). Elsewhere the Act defines a *589 transferor as "a person who is transferring real property as provided in an instrument containing the power to transfer real estate." Id. § 558A.1(6). Julie Sattler owned the house with her husband and was plainly a transferor under the Act. Therefore she was obligated to provide a written disclosure statement to Jensen.
The district court ruled that because Julie Sattler did not sign the disclosure form, she was not liable under chapter 558A for any defects in the property. Neither the Act nor the administrative rules, however, provides an exception from liability for transferors who do not sign their disclosure statements. Were either to do so, of course, no transferor would ever sign a disclosure statement, and thus the manifest purpose of the Act would be defeated. Simply because Julie Sattler did not sign the disclosure form should not allow her to escape liability.
The parties do not contest that James Sattler provided Jensen with a disclosure form. Julie Sattler thereby complied with the Act's mandate to provide the buyer a written disclosure statement. See Iowa Code § 558A.2(1) (requiring all transferors to provide a disclosure statement). That said, she may yet be liable if Jensen can show she violated the disclosure provisions of the Act. She remains liable if Jensen can prove she had actual knowledge of the undisclosed defects or failed to "exercise ordinary care in obtaining the information." Id. § 558A.6. We reverse and reinstate all statutory claims against Julie Sattler.
D. Evidentiary Matters
Jensen challenges two evidentiary rulings the district court made at trial. Jensen offered correction notices the City of Cedar Rapids issued to Sattler during the construction of the house and a neighbor's testimony regarding the amount of construction work James Sattler personally performed. The district court excluded the correction notices because it determined they were irrelevant and the neighbor's testimony because Jensen did not disclose it in a timely manner.
We afford the district court wide discretion in evidentiary matters, see State v. Price, 692 N.W.2d 1, 6 (Iowa 2005), and refusal to allow evidence is a proper sanction for violating a discovery order. Iowa R. Civ. P. 1.517(2)(b)(2). We find no abuse of discretion in either ruling. See Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002) (noting reversal under abuse of discretion standard only warranted when ruling rests on clearly untenable or unreasonable grounds). The jury's verdict on Jensen's common law fraud claim stands.
IV. Conclusion
We reverse and remand for another trial. Jensen shall be permitted to pursue his statutory claims against both James and Julie Sattler. Costs on appeal are assessed against the Sattlers.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
NOTES
[1] Instruction # 14 provided:
The Plaintiff must prove all of the following propositions by a preponderance of clear, satisfactory, and convincing evidence.
1. Special circumstances existed which gave rise to a duty of disclosure between the Plaintiff and the Defendant. The Defendant was a seller or transferor of real estate and owed a duty of disclosure pursuant to Iowa Code chapter 558A.
2. While such relationship existed, the Defendant was aware of the following facts: There were material defects with the roof, and/or the ventilation in the attic, and/or the tiling around the foundation, and/or the dome lighting.
3. While such relationship existed, the Defendant concealed or failed to disclose that there were material defects with the roof, and/or the ventilation in the attic, and/or the tiling around the foundation, and/or the dome lighting.
4. The undisclosed information was material to the transaction.
5. The Defendant knowingly failed to make the disclosure.
6. The Defendant intended to deceive the Plaintiff by withholding such information.
7. The Plaintiff acted in reliance upon the Defendant's failure to disclose and was justified in such reliance.
8. The failure to disclose was a proximate cause of the Plaintiff's damage.
9. The nature and extent of the Plaintiff's damage.
[2] At oral argument on the motion in limine, the Sattlers argued:
The question of whether or not there might be ... any discussion in front of the jury about anything other than a fraud standard... is ... addressed by the Court's ruling on the motion for summary judgment.... We would certainly want to avoid [plaintiff's] counsel urg[ing] in opening any sort of negligence standard, but I don't think that's really a problem anymore with the summary judgment motion.
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854 S.W.2d 60 (1993)
STATE of Missouri, Respondent,
v.
James JONES, Jr., Appellant.
No. 61434.
Missouri Court of Appeals, Eastern District, Division One.
June 1, 1993.
*61 S. Paige Canfield, John Klosterman, St. Louis, for appellant.
J. Christian Goeke, Asst. Pros. Atty., Franklin County, Union, for respondent.
*62 CRIST, Judge.
Defendant appeals from his conviction for third degree assault in connection with his attack on a thirteen-year-old girl. We affirm.
On March 16, 1991, Victim, a thirteen-year-old girl, was in her home with her sisters. Victim's mother was not home. Victim ate dinner, then, eventually went to the living room to watch television. Victim's mother's boyfriend, Defendant, who had been spending the night for several months, was also in the house.
Defendant came into the living room and began a conversation with Victim. At one point in the conversation, Defendant started telling Victim that he killed people. He told Victim if he killed her right then, her mom would get mad for a little while, but would still come back to him.
Victim then went to her mother's room and began looking in the mirror. Defendant came in the room and asked her to teach him to tie a tie. She used a scarf to show him, then put it around her own neck and sat on her mother's bed. Defendant continued to speak about the fact that he killed people. Defendant then pushed Victim down on her back on the bed and pinned down her arms. With his legs, Defendant attempted to spread apart Victim's legs. Defendant continued to talk about killing people during this time. He then let Victim go and she ran into the living room.
Defendant came in to the living room and asked Victim if she was ready for the truth. She said yes. Defendant went into the kitchen and returned with a knife in his back pocket and sat in front of Victim. Defendant began to ask Victim repeatedly to be his girlfriend. After Victim refused several times, Defendant grabbed the scarf which was still around Victim's neck and tried to choke her. Victim screamed, and Defendant let go. Victim ran to her sister's room.
In his first point, Defendant asserts the trial court abused its discretion in failing to grant a mistrial after certain testimony was given by an investigating police officer and by Victim. First, the prosecutor asked Officer Thomas Seymour, who responded to the crime scene, whether he wrote any notes at or near the time of the attack. Seymour responded he "wrote a report for an assault, sexual abuse, first degree." Defendant was being tried only for assault, not sexual abuse. Defense attorney asked for a mistrial. The judge denied the mistrial but instructed the jury to disregard the remark.
When a witness unexpectedly volunteers an inadmissible statement, the rule is "the nature of the action called for rests largely within the discretion of the trial court, that the trial judge has a duty to evaluate the whole situation to ascertain whether some other remedy short of a mistrial will cure the error, and that the appellate court reviews that decision only to verify that there has been no abuse of discretion." State v. McClain, 531 S.W.2d 40, 44-45[6] (Mo.App.1975). A mistrial is a drastic remedy and should be granted only in extraordinary circumstances. State v. Shaline, 793 S.W.2d 167, 171[15] (Mo.App. 1990).
Here, the reference to the sexual abuse report was brief; and after a brief discussion with the attorneys, the trial judge instructed the jury to disregard the comment. Further, any prejudicial impact was weakened by the fact that other evidence of Defendant's sexual attack on Victim was appropriately introduced into evidence. Victim testified that Defendant jumped on her, tried to force her legs apart with his legs, and asked her to be his "girlfriend." See State v. West, 743 S.W.2d 592, 593[1] (Mo.App.1988) (testimony of other crimes is admissible where it is so closely intertwined with the facts of the crime being charged that it is an integral part of it).
In addition, another investigating officer, Patricia Thomas, testified that Victim accused Defendant of sexually assaulting her. This testimony was not objected to and Defendant does not complain about it on appeal. Where evidence is improperly admitted, but other evidence before the court establishes essentially the same fact, there is no prejudice and no reversible error. State v. Zagorski, 632 S.W.2d 475, *63 478 n. 2 (Mo. banc 1982). Thus, we find no error in the trial court refusing to grant a mistrial.
Defendant also complains Victim testified Defendant told her he had been in jail for robbery. After objecting to this testimony, the court immediately told the jury that Defendant had not been convicted of robbery and that they should ignore the remark. Given the brevity of the comment, the fact that the crime suggested was dissimilar to the crime charged, and the judge's instruction that the remark was false, the trial court did not abuse its discretion in refusing to grant a mistrial. Point denied.
In Defendant's second point, he asserts the trial court erred by failing to strike two venirepersons from the panel for cause. "An individual accused of a crime is entitled to a full panel of qualified jurors before he is required to expend his peremptory challenges." State v. Walker, 795 S.W.2d 522, 525[1] (Mo.App.1990). The determination of whether a venireperson is qualified to serve on a jury is within the sound discretion of the trial court and such decision will only be reversed upon a clear showing of abuse of discretion. Id. at 525[3]. "To show such an abuse, the bare possibility of prejudice is not enoughit must clearly appear from the evidence that the challenged venireperson was in fact prejudiced." Id. If for any reason, statutory or otherwise, a venireperson cannot serve on a case with an open mind free of bias, that person is not a competent juror. State v. Holliman, 529 S.W.2d 932, 938[5] (Mo.App.1975) (citation omitted). Whether a venireperson is qualified to serve on a jury is determined from the entire examination. Walker, 795 S.W.2d at 595[3].
Defense attorney asked that a female venireperson, who had been raped six years prior to the trial, be struck for cause. The venireperson initially stated she would be biased toward Victim. However, upon further questioning she stated she could make a determination just on the evidence presented, put her bias aside, follow the judge's instructions, and be fair and impartial. In a subsequent line of questioning, she stated it would be very difficult for her to listen to the evidence impartially.
Additional questions about whether the venireperson could "separate" her rape in 1985 and the case before her were broadly phrased. The venireperson responded that she "could probably handle it" and she "could try." Defense attorney commented after these questions that the venireperson seemed emotional.
The real issue in determining a venireperson's qualification to serve as a juror is not whether that person will be emotionally affected by the case, but whether that person will be able to evaluate the evidence fairly and impartially despite any emotional effect. State v. Martin, 797 S.W.2d 758, 762[2] (Mo.App.1990).
Although the venireperson initially said she would be biased and later said it would be difficult for her to listen to the evidence impartially, she unequivocally stated she could set that bias aside and be impartial. Further, the rape occurred six years prior to trial, and the venireperson indicated that she thought she could separate the two events because of when the rape occurred. Based on the foregoing, we find no abuse of discretion.
Defendant also contends the trial court plainly erred in not striking Venireperson Jones, a St. Louis Police Officer, for cause. In order to prevail on a claim of plain error, a defendant must show the error "so substantially affects the rights of the accused that manifest injustice or miscarriage of justice inexorably results if left uncorrected." State v. Burgess, 800 S.W.2d 743, 746[7] (Mo. banc 1990) (citations omitted).
A venireperson is not disqualified from serving on a jury merely because he or she is a police officer. State v. Edwards, 716 S.W.2d 484, 487[1] (Mo.App. 1986). Only when other circumstances indicating prejudice exist should the venireperson be struck for cause. Id. at 488[1].
Jones was a police officer in the jurisdiction where the crime occurred, and he knew one of the officers who was a witness for *64 the State. However, Jones stated he had no personal contact with the officer/witness with whom he was acquainted. He also stated he could listen fairly and impartially to the evidence, including testimony of two fellow police officers, and give equal weight to all the witnesses in terms of credibility. We find no abuse of discretion and no manifest injustice. Point denied.
In his third point, Defendant contends the trial court erred by allowing the late endorsement, immediately before trial, of Officer Thomas, a witness for the State because defense attorney had no opportunity to prepare for her testimony which contained information not previously available to Defendant.
The trial court has broad discretion in permitting the late endorsement of witnesses, and a defendant has the burden of showing an abuse of discretion. State v. Allen, 710 S.W.2d 912, 915[1] (Mo. App.1986). The trial court, in exercising its discretion, should consider many factors including 1) whether the defendant waived the objection, 2) whether the state surprised the defendant or acted in bad faith with an intent to disadvantage the defendant, 3) whether in fact the defendant was surprised and suffered any disadvantage and, 4) whether the type of testimony given might readily have been contemplated. State v. Stokes, 638 S.W.2d 715, 719[2] (Mo. banc 1982).
Officer Thomas' name was in the police report as one of the officers who responded to a radio call. The court offered defense attorney as much as 24 hours to interview Officer Thomas. The court also stated: "If you find something highly prejudicial to your client that requires further investigations, I want you to come to me and tell me what specifically it is that this officer is going to say that so effects your ability to prepare for this case that you can't proceed to trial." We have no record whether the interview was conducted and no record of defense attorney requesting any continuance.
Officer Thomas generally testified as to the marks on Victim's neck, as to her description of the crime, as to Defendant's reaction to Victim's description of the crime, and as to Victim's mental state. The police report indicated the witness assisted in responding to the radio call, the judge gave defense attorney an opportunity to discover whether she would be prejudiced by the witness, and defense attorney did not ask for a continuance. Given this and the fact that the testimony was of the nature which could be anticipated in an assault case, we find no indication of prejudice and no abuse of discretion. Point denied.
In his fourth point, Defendant contends the trial court erred in submitting a reasonable doubt instruction based on MAI-CR3d 302.04. He asserts the instruction suggests a higher degree of doubt than is constitutionally required.
The reasonable doubt instruction has been challenged repeatedly under this same theory, and it has been upheld repeatedly. State v. Twenter, 818 S.W.2d 628, 634[5] (Mo. banc 1991). "These cases of recent origin firmly establish that the instruction complained of does not violate constitutional standards by decreasing the state's burden of proof." Id. Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), did not change Missouri law. Point denied.
The judgment of the trial court is affirmed.
AHRENS, P.J., and REINHARD, J., concur.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3908
No. 04-3909
___________
Same Day Surgery Centers, L.L.C., *
*
Plaintiff - Appellant/ *
Cross Appellee, *
* Appeals from the United States
v. * District Court for the
* District of Minnesota.
Montana Regional Orthopedics, L.L.C., *
*
Defendant - Appellee/ *
Cross Appellant. *
___________
Submitted: September 12, 2005
Filed: December 30, 2005
___________
Before LOKEN, Chief Judge, WOLLMAN and BYE, Circuit Judges.
___________
LOKEN, Chief Judge.
Montana Regional Orthopedics (MRO), an orthopedic physician group
practicing in Missoula, Montana, hired Minnesota-based Same Day Surgery (SDS)
to construct, equip, and manage an ambulatory surgical center in Missoula. After
SDS substantially completed the facility in June 2001, MRO denied demands for final
payments. SDS commenced this diversity action for breach of two contracts, and
MRO asserted breach of contract counterclaims. After a bench trial, applying
Minnesota law, the district court1 rejected SDS’s primary claim for reimbursement of
expenses invoiced by third party vendors, finding that SDS failed to prove that the
amounts it paid vendors exceeded MRO’s contract payments to SDS for this purpose.
The court upheld two of SDS’s lesser contract claims, rejected MRO’s counterclaims,
and entered judgment for SDS in the amount of $23,840.44, plus statutory
prejudgment interest and contract-based attorneys fees. SDS appeals the rejection of
its main claim. MRO cross-appeals the rejection of one counterclaim. We affirm.
I.
The parties’ relationship was reflected in a Development Agreement signed
June 1, 2000, and a Management Agreement signed July 1, 2000. Only the
Development Agreement is at issue on appeal. Under that Agreement, SDS agreed
to purchase real estate, design and construct the surgical center, purchase and install
necessary equipment, supervise selection of the nursing staff, and obtain certifications
and licenses. MRO agreed to reimburse SDS for costs and expenses incurred and to
pay SDS a “Development Fee” of $457,500. The Agreement provided that the total
Project costs including the Development Fee “will not exceed $2,042,603.”
Construction of the surgical center began in late October 2000. MRO
physicians saw their first patient at the facility in early March 2001. The surgical
center received provisional accreditation as an approved Medicare facility effective
June 18, 2001, which the parties agree was the Substantial Completion date under the
Agreement. During these phases of the Project, MRO made four progress payments
of $430,000 each, not always in response to SDS invoices. MRO paid SDS a total of
$1,857,006 under the Development Agreement. On January 30, 2002, SDS sent
1
The HONORABLE FRANKLIN L. NOEL, United States Magistrate Judge
for the District of Minnesota, presiding with the consent of the parties pursuant to 28
U.S.C. § 636(c).
-2-
MRO a final invoice of $246,007.62, an amount that exceeded the contract cap by
some $60,411. MRO refused to pay any part of that invoice. This lawsuit followed.
At trial, SDS conceded that MRO had paid the entire $457,500 Development
Fee but claimed that invoices received from third party vendors put the total Project
costs in excess of the $2,042,603 cap. Therefore, SDS argued, MRO owed an
additional $185,597 for unreimbursed vendor expenses. SDS calculated its claim by
subtracting the $1,857,006 paid by MRO from the contract cap. In support of the
claim, SDS introduced vendor invoices (which it did not include in the record on
appeal); Exhibit 4, a summary exhibit showing $1,561,820.59 in vendor invoices
received by SDS; Exhibit 6, a summary exhibit showing a total of $1,185,904.94 paid
by SDS to vendors; and testimony by Margaret Olin, a partner in SDS, explaining
which entries on Exhibit 4 and Exhibit 6 were included in the $185,597 claim.
There was also trial testimony that SDS experienced financial difficulty during
and after completion of the surgical center Project. Olin testified that she negotiated
invoice reductions with some vendors and paid some vendor obligations with
personal checks, and that one or two vendors had sued SDS and obtained money
judgments. MRO’s chief executive, Ronald Peterson, testified that MRO paid some
vendors directly to maintain needed relationships. Despite this episodic testimony,
neither party introduced probative evidence as to the status of vendor claims, nor did
SDS represent that monies it collected on its claim would be paid to vendors.
II.
On appeal, SDS argues that MRO received the full benefit of its bargain, SDS
presented evidence that it has incurred liabilities which exceed the contract cap, and
therefore SDS was entitled to payment of the full $2,042,603 cap. In response, MRO
argues that the trial evidence proved that SDS’s payments to vendors plus its
Development Fee were substantially less than the $1,857,006 paid by MRO under the
-3-
Agreement. Therefore, MRO does not owe SDS the claimed $185,597. Rather, SDS
owes MRO for its “overpayment” of reimbursable vendor expenses. These
competing contentions require a closer look at the payment provisions in the
Development Agreement. The interpretation of these provisions is a question of law
we review de novo. See Alpha Real Estate Co. of Rochester v. Delta Dental Plan of
Minn., 664 N.W.2d 303, 311 (Minn. 2003).
Section 2 of the Development Agreement is entitled “Development services to
be provided by [SDS].” It contains two relevant provisions:
2.2.3 Construction. . . . [SDS] will enter into appropriate
agreements with the general contractor and/or other parties for
construction of the Project. . . . [MRO] shall pay when due or promptly
reimburse [SDS] for all amounts payable under such construction
contracts.
2.2.4 Equipment Selection and Purchasing. . . . [SDS] will
coordinate the purchase and arrange for delivery and installation of all
capital equipment, instruments and supplies necessary for operation of
the Project through national vendors selected by [SDS] . . . . [SDS] shall
enter into appropriate agreements . . . for the purchase of such
equipment, instruments and supplies. [MRO] shall pay when due or
promptly reimburse [SDS] for all amounts payable under such
agreements.
Section 4 of the Agreement is entitled “[SDS’s] Fees and Expenses” and
contains what the parties consider the most relevant provision:
4.3 Direct Expenses. In addition to fees payable to [SDS],
[MRO] shall reimburse [SDS] for certain direct expenses advanced by
[SDS] . . . except where such expenses are expressly stated to be the
responsibility of [SDS]. . . . Direct expenses shall include out-of-pocket
disbursements, including but not limited to . . . fees or charges advanced
-4-
to other parties. . . . [SDS] shall send invoices . . . for its direct expenses
on a monthly basis during the development of the Project and [MRO]
shall pay such invoices within ten (10) days of receipt. Any amounts
remaining unpaid . . . shall be due and payable in full at Substantial
Completion.
Finally, Section 5 of the Agreement is entitled “[MRO] Responsibilities” and
contains the following provision:
5.4 Equity/Loan Funds; Payment Obligations. . . . [MRO] shall
pay when due all amounts to be paid to any third party in connection
with the development of the Project, regardless of whether [SDS] or
[MRO] entered into the contract with such third party, unless the
obligation to pay such amounts is expressly stated herein to be that of
[SDS].
The critical issue, as framed by the parties, is whether these provisions, and
particularly § 4.3 with its use of the word “advanced,” limit MRO’s reimbursement
obligations to amounts SDS has in fact paid to the third party vendors in question.
At trial, SDS’s Olin conceded that this was the course of dealing contemplated by the
parties at the outset of the Project. But SDS nonetheless argues that, as a matter of
contract interpretation, it incurred “direct expenses” triggering MRO’s obligation to
reimburse whenever a third party vendor invoiced SDS for goods or services the
vendor in fact provided to the Project, regardless of whether SDS paid the vendor.
The term “advanced” in § 4.3, SDS explains, is not a requirement that SDS advance
payment to the vendor before seeking reimbursement from MRO. Rather, it simply
refers to the fact that SDS “advanced” the vendor’s goods and services to the Project
before SDS sought reimbursement by MRO. SDS suggests the provision in § 4.3 that
direct expenses “include out-of-pocket disbursements” confirms that the parties
intended that the term “direct expenses” be broadly construed to reflect the principle
“that MRO should pay for the benefits it indisputably received.” The district court’s
-5-
contrary interpretation of § 4.3, SDS complains, is inconsistent with MRO’s clear
obligation to pay amounts due third party vendors under §§ 2.2.3, 2.2.4, and 5.4.
MRO argues that the plain and unambiguous meaning of § 4.3 is that SDS must
“advance” money to the vendor to trigger MRO’s obligation to reimburse SDS for a
“direct expense.” But § 4.3 must be read in conjunction with §§ 2.2.3, 2.2.4, and 5.4,
which provide that either SDS or MRO may contract with third party vendors and
obligate MRO to pay or reimburse SDS for amounts owed to vendors “when due.”
Taken together, these provisions made the contract ambiguous in the sense that they
left the parties flexibility in dealing with third party contractors and suppliers. Thus,
as the district court recognized, extrinsic evidence was needed to determine whether
SDS was entitled to be reimbursed for a particular vendor invoice. See Noreen v.
Park Constr. Co., 96 N.W.2d 33, 36 (Minn. 1959).
SDS’s Olin testified that the parties expected SDS to pay vendors before being
reimbursed by MRO, even though MRO made four substantial progress payments
during the construction phase without requiring detailed invoices from SDS.2 This
was a logical course of dealing. Because SDS chose the vendors, contracted with the
2
At trial, MRO’s Peterson testified that MRO sent SDS regular progress
payments without requiring SDS to prove vendors had been paid. The court noted
that this practice undermined MRO’s argument that SDS payment to the vendor was
a condition precedent to reimbursement:
THE COURT: Let me interrupt for a second. I’m confused. You
say you didn’t get monthly invoices from Same Day for direct
reimbursement pursuant to Section 2.3?
THE WITNESS: I got some, but I did not get all of them.
THE COURT: Well, how did it come that you paid them money?
* * * * *
THE WITNESS: I was paying in good-faith, assuming that the expenses
existed–
-6-
vendors, and was in charge of constructing and equipping the facility, a vendor
payment by SDS confirmed to MRO that the vendor had delivered proper goods or
services at the proper price and that the vendor’s invoice was “due” to be paid or
reimbursed. But we reject MRO’s contention that this sensible expectation was an
inflexible contract requirement. For example, if cash flow difficulties prevented SDS
from paying a vendor for goods or services already provided to the Project, the
contract would not bar MRO from paying the vendor directly, or from advancing
funds to SDS to pay the vendor, to compensate the vendor for benefits it provided to
MRO as facility owner. Cf. Mrozik Constr. Inc. v. Lovering Assoc., Inc., 461
N.W.2d 49 (Minn. App. 1990); Restatement (Second) of Contracts § 227(1) (1981).
At trial, rather than present detailed, vendor-by-vendor proof of its right to
additional expense reimbursement, SDS introduced only summary exhibits and vague
testimony describing what might be called the big picture. The evidence established
that MRO paid SDS a total of $1,857,006, $185,597 less than the $2,042,603 contract
cap. SDS paid third party vendors $1,185,904.94 and kept the $457,500
Development Fee. What SDS did with the remaining MRO proceeds was not
explained. To put this evidence in perspective, we will assume that the total Project
costs including the Development Fee exceeded the contract cap, as SDS alleged but
arguably did not prove. Under the parties’ course of dealing as described by Olin,
SDS should have used the payments received from MRO to pay vendors what they
were owed, applying any balance to the unpaid Development Fee. Then, when the
Project was substantially completed, SDS would demand that MRO pay the balance
of the Development Fee up to the contract cap. But SDS did not do that. Instead, it
pocketed the entire Development Fee from MRO’s progress payments, paid vendors
less than they were owed, and then demanded after substantial completion that MRO
pay additional reimbursement up to the contract cap.
In these circumstances, if MRO is held liable to SDS for the claimed additional
reimbursement, the remedy would not benefit vendors, who on this record are the
-7-
truly aggrieved parties. Rather, the recovery by SDS would have the practical effect
of increasing its Development Fee well beyond the agreed amount, $457,500. In our
view, by no stretch of the imagination would this result be consistent with the
Development Agreement. Therefore, the district court properly denied SDS’s claim
for $185,597 because SDS failed to prove that claim.
III.
At trial, MRO alleged that SDS breached the Development Agreement by not
timely completing the Project and breached the Management Agreement by failing
to provide competent services. The district court rejected those counterclaims on the
merits, rulings that MRO does not appeal. Based upon the trial evidence that SDS
paid vendors less than the total amount MRO paid SDS, minus the Development Fee,
MRO expanded its counterclaim to include a demand for a “refund” of its
overpayments. MRO cross-appeals the district court’s denial of that claim.
SDS presented evidence that MRO got the full benefit of its bargain. MRO did
not refute that evidence. We agree with the district court that “the Parties’ conflicting
exhibits . . . are too confusing, and the testimony regarding them, too inconclusive to
allow the Court to provide a precise accounting.” In these circumstances, MRO may
not rely on the inadequate proof that was insufficient to prove SDS’s claim to justify
a belated refund claim that MRO did not itself affirmatively establish.
The judgment of the district court is affirmed.
______________________________
-8-
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345 N.W.2d 107 (1984)
In re the MARRIAGE OF Lawrence Thomas NESSET and Joan Marie Nesset.
Upon the Petition of Lawrence Thomas Nesset, Appellant,
and Concerning Joan Marie Nesset, Appellee.
No. 83-851.
Supreme Court of Iowa.
February 15, 1984.
*108 James E. Shipman and Mark E. Liabo of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellant.
David S. Good of Nazette, Hendrickson, Marner & Good, Cedar Rapids, for appellee.
Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McCORMICK, and WOLLE, JJ.
UHLENHOPP, Justice.
This appeal primarily involves issues relating to a cost of living adjustment (COLA) clause in a marriage dissolution decree.
The district court dissolved the parties' marriage on April 3, 1981, and incorporated their stipulation of settlement into its decree. Under the stipulation and decree the wife, Joan Marie Nesset, was awarded custody of the parties' three children, and the husband, Lawrence Thomas Nesset, was required to pay $200 per month per child as child support, to be reduced by $200 per month as each child reaches age eighteen, dies, marries, or is emancipated. The stipulation and decree further state:
*109 On or before each anniversary date of this Decree the parties shall file a Stipulation with the Clerk of this Court, Friend of the Court Division, providing for increased or decreased child support payments based upon the following: Child support payments shall be increased or decreased by the same percentage as the percentage change in the National Consumer Price Index as published by the United States Department of Labor for the most recent 12-month period for which data is available provided that the Husband's gross income for the like period has increased by at least the same percentage. If the Husband's gross income increased by a lesser percentage, then the payments to the Wife for child support shall increase by this lesser percentage. In the event the Husband claims the benefit of the above limitation, he shall submit copies of his federal tax returns or other sufficient proof of income to the Wife for the relevant years. If the parties are unable to stipulate to the current adjustment amounts, either may request that the Court determine the same either itself or by appointment of a Special Master; the cost of such proceedings shall be shared equally by the parties and any adjustment made shall relate retroactively if necessary to the appropriate anniversary date.
Both parties stipulate and agree that this provision for a percentage increase or decrease in support payments contemplates only percentage changes in the National Consumer Price Index and any increase (regardless of the amount thereof) in the gross income of the Husband. Accordingly, any such future increase in the Husband's gross income (regardless of the amount thereof) shall not be the subject of any future modification proceedings by the Wife to increase child support. This provision expressly does not contemplate any decrease in the gross income of the Husband or any increase or decrease in the gross income of the Wife, the occurrence of any of which may be the subject of future modification proceedings by either party concerning child support.
The wife was awarded the parties' home in Marion, Iowa, subject to a lien in the husband's favor in the sum of $26,875 payable when child support is no longer due or upon sale of the home or remarriage of the wife. At the time of the decree the wife had $8520 and the husband had $25,300 of gross annual income.
The husband subsequently filed a petition to modify the decree, and trial was held on his petition on December 29, 1982. At that time the wife had $14,000 and the husband had $29,100 of gross annual income. The trial court denied the petition to modify, and the husband appealed. In his appeal the husband advances a number of arguments for modification. The arguments are largely factual in nature, raising questions as to the equities of the terms of the stipulation and decree.
I. Preliminary to modification of a dissolution decree, a party must establish a material change of circumstances. Leo v. Leo, 213 N.W.2d 495 (Iowa 1973). In this case we prefer first to address the husband's specific requests for modification on their merits. If we find any of the requests meritorious we will be required to confront directly the question of a material change of circumstances.
II. The husband first contends that the COLA clause in the decree has proved to be too vague and contradictory to be enforceable, and that it should therefore be abandoned. He first has trouble with these two sentences in the decree:
Child support payments shall be increased or decreased by the same percentage as the percentage change in the national Consumer Price Index as published by the United States Department of Labor for the most recent 12-month period for which data is available provided that the Husband's gross income for the like period has increased by at least the same percentage.
If the Husband's gross income increased by a lesser percentage, then the payments *110 to the Wife for child support shall increase by this lesser percentage.
The two sentences seem harmonious, but the husband argues that no provision is made for the case in which both the index and the husband's gross income decline. We do not think we should venture an opinion at this time on that hypothetical situation. In the present case the index and the husband's income both rose. We do not find merit in the husband's argument, under this factual record.
Further contending for elimination of the COLA clause, the husband argues several alleged infirmities as to the precise index which is to be used, the time period which is to be considered, the method by which the index is to be applied, and the principal amount of child support which is to be used as a factor.
We can best deal with this issue by illustration. The issue involves construction of the stipulation and dissolution decree. The decree was granted in the month of April. The Bureau of Statistics of the United States Department of Labor publishes a "CPI Detailed Report" for each month. The present parties are urban consumers, and on page 1 of the report the bureau lists the change in the consumer price index for all urban consumers (CPI-U) from the same month a year earlier. See e.g. CPI Detailed Report 1 (Feb. 1983) ("The February [1983] level of 293.2 ... was 3.5 percent higher than the index in February 1982."). See also Note, Inflation-Proof Child Support Decree: Trajectory to a Polestar, 66 Iowa L.Rev. 131 n. 6, 149 n. 143 (1980) (published before recent change in CPI format).
The stipulation and decree require the use of the CPI report "for the most recent 12-month period for which data is available provided that the Husband's gross income for the like period has increased by at least the same percentage." Each report is actually published two months after its particular month. As the anniversary month of the decree is April, the annual computation of a change in child support starting in April would be made in March, using the report just published for January preceding. Assuming that the monthly child support for the year beginning April 1984 is $225 per child (due to previous operation of the COLA clause), that the CPI Detailed Report for January 1984 lists the CPI-U for that month as 3% higher than for January 1983, and that the husband's gross income for the twelve months ending January 31, 1984, is 2% higher than for the twelve months ending January 31, 1983, the child support per child would increase by 2% times $200 or $4 per month, for a total of $229.
We thus conclude that the problems visualized by the husband in applying the COLA clause are not insuperable. Application could be simplified by operating the COLA clause on a calendar year basis, assuming the husband's income taxes are calculated on a calendar year basis, and the parties could, of course, agree to do so. Otherwise the clause will operate on the twelve-month period we have used in the illustration. We modify the trial court's supplemental decree to the extent it varies with this division of the present opinion.
III. Further objecting to the COLA clause, the husband argues that the clause has proved to be inequitable in operation. He contends that use of his increases in gross income does not take progressive income taxation into consideration. This argument must have been apparent when the stipulation was made. Moreover, the husband's increases in gross income do not themselves trigger increases in child support. Increases in child support are founded on increases in the cost of living; increases in the husband's gross income act only as a lid. Present application of the COLA clause does not appear so inequitable with respect to the husband's income taxes as to warrant modification of the decree.
The husband also contends that two of his burdens regarding child support tend to "double up." He is required to leave $26,875 invested in the home without interesthe recognizes that by so doing he is *111 assisting with the provision of shelter for the children. He is also required to provide medical insurance for the children and to pay the first $1500 of their uninsured medical expenses. At the same time, the husband argues, shelter and medical expense make up two of the components of the consumer price index involved in the COLA clause.
The husband's doubling-up argument has superficial appeal, but that is all. Actually the husband is not twice paying for the children's shelter and medical care. Shelter and treatment are only components of the consumer price index, among a number of components. True, they may be higher than some other components, but trying to ascertain their separate effect upon the index would involve us in speculation. We doubt that the parties intended to fine-tune the COLA clause to that degree when they signed the stipulation. We do not find merit in the husband's doubling up argument.
IV. The husband points to the increases in the wife's income since the decree and her ability to hold down family expenses in several respects. He urges again that the COLA clause should be eliminated or his child support load should otherwise be lightened. The wife has in fact improved her earnings, and further improvements appear possible if not probable. In addition, she appears to be careful with money. But at the time of the hearing her earnings were only up to $14,000 a year. She has a family of four to provide for, herself and the three growing children; she can hardly be considered affluent. She works outside the home in the business world, and must have reliable transportation and present a respectable appearance. We are aware of the clause in the stipulation and decree, "This [COLA] provision expressly does not contemplate any decrease in the gross income of the Husband or any increase or decrease in the gross income of the Wife, the occurrence of any of which may be the subject of future modification proceedings by either party concerning child support." We do not think, however, that the wife's income has risen to such extent, considering her financial load, that modification of the husband's liability should be granted at this point. The trial court did not rule out any relief should the wife's income "rapidly and radically increase...."
Upon consideration of all the husband's arguments, including his additional contentions in his brief, we conclude that the COLA clause should remain intact and that its terms should not be altered at this time.
V. The husband also requests two other changes. Under a clause in the stipulation and decree, when child support ceases for the first two of the children the amount of child support is reduced by $200 per month on each occasion. At that time, however, the child support may be more than $200 per child by operation of the COLA clause. As we understand him, the husband requests that the total amount of child support for three children be reduced by one-third, rather than by $200, as each child ceases to be eligible for child support.
The requested procedure, however, would not take into account the higher fixed costs per child for two children in comparison with three children or for one child in comparison with two children. By operation of the reduction clause and the COLA clause, the wife will have more funds per child for child support as each of the first two children becomes ineligible for support. This clause, like the COLA clause, was bargained for in the stipulation, and we do not think it should be modified under the present evidence.
This part also of the decree appears to be subject to misinterpretation. We construe it in the following illustration. Assume that at a given time the total monthly support for the three children is $700 by virtue of the operation of the COLA clause. One of the children then becomes of age, and the total monthly child support drops to $500 prospectively. In January following the rate of inflation is plus 3% over the preceding January, and for the same year the husband's gross income increases 2%. Beginning in April following, the total *112 monthly child support would be $500 plus 2% times $400 or $508. When the last child ceases to be eligible for child support, the child support will of course drop to zero prospectively.
The other change the husband seeks relates to the sum of $26,875 he is leaving in the home, without interest. He contends that the decree should be changed to allow him, at the time of distribution, the greater of $26,875 or a proportion of the eventual sale price of the home equal to the ratio of $26,875 to the value of the home at time of decree.
A question exists whether this part of the decree, dealing with property settlement, is subject to modification at all. In re Marriage of Knott, 331 N.W.2d 135, 137 (Iowa 1983). Assuming arguendo that it is, the husband appears to desire to have the advantage both ways: if real estate prices go up he wants to share in the increased price of the home, but if they decline he wants his $26,875. We note also that the house may be sold sooner than the time the last child ceases to be eligible for child support; the wife may sell the house at an earlier time or remarry. Moreover, the wife has all the interim expenses with reference to the home, and the husband's leaving $26,875 in the home appears to be one of the results of the bargaining for a stipulation. On the present record such inequity does not appear as to justify modification on this item.
VI. On the other side of the case, the wife points out that attorney fees are not allowed in modification proceedings, In re Marriage of Havener, 240 N.W.2d 670, 671 (Iowa 1976), and she states that for the present proceedings she will have attorney fees of $2000 which will have to be taken out of her living expenses. She therefore asks an allowance of an additional $2000 from the husband for living expenses. The request is ingenious, but we do not find merit in it.
We uphold the supplemental decree as modified, and find no necessity to determine whether a material change of circumstances occurred. We assess the appeal costs to the husband.
MODIFIED AND AFFIRMED.
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185 F.2d 1019
MOORE EQUIPMENT CO., Inc., a Corporation, Appellant,v.John O. ENGLAND, as Trustee of the Estates of Ted E. Fisher and Maxeen R. Fisher, Bankrupt, Appellee.
No. 12559.
United States Court of Appeals Ninth Circuit.
December 20, 1950.
Appeal from the United States District Court for the Northern District of California, Northern Division; Dal M. Lemmon, Judge.
Daniel S. Lane, Stockton, Cal. (Jones, Lane & Weaver, Stockton, Cal., of counsel), for appellant.
Shapro & Rothschild, San Francisco, Cal. (Raymond T. Anixter, San Francisco, Cal., of counsel), for appellee.
Before STEPHENS and HEALY, Circuit Judges, and MATHES, District Judge.
PER CURIAM.
1
The judgment of the District Court is affirmed. See England, as Trustee v. Moore Equipment Co., Inc., D.C.N.D.Cal.1950, 94 F. Supp. 532.
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895 N.E.2d 740 (2008)
SMEDLEY
v.
STATE.
No. 49A02-0803-CR-292.
Court of Appeals of Indiana.
October 29, 2008.
NAJAM, J.
Disposition of case by unpublished memorandum decision. Affirmed.
ROBB, J. Concurs.
MAY, J. Concurs.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3642
___________
Cesar Cordoba, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Marvin D. Morrison, Warden, FCI - * Eastern District of Arkansas.
Forrest City; George E. Snyder, Former *
Warden, FCI - Forrest City; * [UNPUBLISHED]
*
Appellees, *
*
Ginny Van Buren, Associate Warden, *
FCI - Forrest City; *
*
Defendant, *
*
James Campbell, Superintendent of *
Industries (UNICOR), FCI - Forrest *
City; *
*
Appellee, *
*
Harold Ivey, Safety Department *
Manager, FCI - Forrest City; Brad *
Jurgensen, UNICOR Factory Manager, *
FCI - Forrest City; *
*
Defendants, *
*
Rick James, UNICOR Supervisor, FCI - *
Forrest City; United States Bureau of *
Prisons, FCI, Forrest City, Arkansas, *
*
Appellees. *
___________
Submitted: October 6, 2005
Filed: October 11, 2005
___________
Before MELLOY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Former federal inmate Cesar Cordoba sued the United States Bureau of Prisons
and various prison officials, asserting under the Federal Tort Claims Act (FTCA) that
he was injured as a result of defendants’ negligent failure to train him to use certain
machinery safely during his UNICOR employment. Cordoba also asserted a
retaliation claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The district court1 dismissed Cordoba’s Bivens
claim after he failed to provide proof of exhaustion. The magistrate judge2 dismissed
without prejudice Cordoba’s FTCA claim upon finding that his sole remedy against
the government was a claim under the Federal Prison Industries’ Inmate Accident
Compensation (IAC) system. See 18 U.S.C. § 4126; 28 C.F.R. §§ 301.101-.319.
Cordoba appeals both rulings.
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
2
The Honorable John F. Forster, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
-2-
Following careful review of the record and Cordoba’s arguments on appeal, we
believe that Cordoba’s claims were properly dismissed. See 42 U.S.C. § 1997e(a)
(exhaustion); 18 U.S.C. § 4126 (inmate compensation for injuries); Porter v. Nussle,
534 U.S. 516, 524, 532 (2002) (prisoner cannot bring Bivens action involving prison
conditions before exhausting available administrative remedies); United States v.
Demko, 385 U.S. 149, 151-54 (1966) (§ 4126 is exclusive remedy for federal
inmates’ work-related injuries, and FTCA actions which seek recovery for such
injuries are barred). In particular, the district court was not bound by an Institution
Safety Committee’s finding--which, as Cordoba was advised, was subject to review
by an IAC Committee upon his filing of an IAC claim--that his injury was not work-
related; the record does not indicate Cordoba pursued an available remedy by filing
an IAC claim; and Cordoba did not allege retaliation, or even facts from which a
retaliation claim could be inferred, in his prison grievances.
Accordingly, the judgment is affirmed.
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-26-2008
Suharyadi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4254
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4254
GATOT SUHARYADI,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
On Petition for Review of the Board of Immigration Appeals
(BIA File No. A96-203-474)
Submitted Under Third Circuit LAR 34.1(a)
February 25, 2008
Before: McKEE, AMBRO, Circuit Judges, and IRENAS,* Senior District Judge.
(Filed: March 26, 2008)
OPINION
*
Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
IRENAS, Senior United States District Judge.
Petitioner, Gatot Suharyadi, seeks review of the decision of the Board of
Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision that
Petitioner was ineligible for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). For the following reasons, the Petition will be
denied.
I.
Petitioner, a thirty-seven year old male, is a native and citizen of Indonesia. On
January 31, 2000, Petitioner was admitted to the United States on a B-2 visitor visa,
which permitted him to stay in the country for no more than six months. Without
obtaining additional authorization from the United States government, Petitioner
remained in the United States beyond July 30, 2000. On April 16, 2003, the Department
of Homeland Security issued a Notice to Appear, charging him with removability under 8
U.S.C. § 1227(a)(1)(B). At the master calendar hearing on October 22, 2003, Petitioner
admitted the factual allegations in the Notice to Appear, thus conceding he was
removable, and requested asylum, withholding of removal, and relief under the CAT.1
At a subsequent merits hearing on these claims, Petitioner testified that he was
originally from Kediri, a small village in Indonesia. Petitioner was born and raised as a
1
Petitioner declined to designate a country of removal at the master calendar hearing.
2
Muslim, and later converted to Christianity in 1990, in order to marry his wife, a Chinese
Christian.2 Petitioner’s wife is originally from Jakarta, and after attending university,
Petitioner lived “sometimes in Kediri, sometimes in Jakarta.” After he married his wife
in 1999, Petitioner and his wife lived primarily in Jakarta, where his wife’s family still
resides. Petitioner only attended church in Jakarta and did not attend church in his home
village of Kediri.
Petitioner testified that he initially came to the United States because of tensions
between Muslims and Christians in Indonesia. In addition to the overall religious
tensions in Indonesia, Petitioner’s family did not approve of his conversion and ultimately
evicted him (presumably from living with them) because he married a Christian.
Petitioner testified that he also wanted to come to the United States because many of his
wife’s friends were living peacefully here.
When asked what was the “worst thing that happened in Indonesia,” Petitioner
testified that he and his wife were the target of violence in 1998. Petitioner and his wife
(his then girlfriend) were on a motorcycle driving through the market when they
approached a group of individuals finishing their Friday prayers. A member of this group
told Petitioner to pull over; Petitioner pulled over, but did not fully stop the motorcycle.
A group member then hit Petitioner, who fell to the ground from the bike, and the entire
group then proceeded to beat Petitioner for approximately five minutes. The attackers did
2
Petitioner met his wife in 1986.
3
not rob Petitioner, but Petitioner sustained bruises from the incident. Petitioner’s wife
remained unharmed.
Petitioner testified that he does not want to return to Indonesia because he fears
that he will not be able to live peaceably because of his conversion to Christianity. With
the exception of the motorcycle incident and his family’s disapproval of his conversion
and marriage, Petitioner did not testify as to any other specific physical attacks or
incidents of adverse treatment. Petitioner believes that, if they return to Indonesia, he and
his wife would be safer living in Jakarta, as the people there are more tolerant and
accepting than in Kediri. Petitioner testified that his application for asylum was untimely
because he did not know what asylum was when he first arrived in the United States.
The IJ issued an oral decision and order on August 29, 2005, denying Petitioner’s
request for asylum, withholding of removal, and relief under the CAT, and ordering
Petitioner’s removal to Indonesia. The BIA adopted and affirmed the IJ’s decision on
August 31, 2006. This Petition for Review followed.
II.
This Court has jurisdiction to review the BIA’s final removal order pursuant to
8 U.S.C. § 1252(a). The BIA’s one paragraph opinion affirms and adopts the IJ’s oral
decision. Therefore, we review the BIA’s opinion, and also the IJ’s decision to the extent
4
it was relied upon by the BIA. See Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir. 2005)
(citing several cases demonstrating this Court’s recognition that “in some instances, we
review both the decisions of the IJ and the BIA”).
Factual determinations about past persecution or fear of future persecution, as
well as credibility determinations, are reviewed under the substantial evidence standard.
Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005). Thus, factual findings must be
upheld “‘unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). Denials of CAT relief are also
subject to substantial evidence review. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.
2003).
III.
We note at the onset that our review is limited to Petitioner’s claims for
withholding of removal and relief under CAT. As to Petitioner’s request for asylum, the
BIA determined that Petitioner did not file his asylum application within the one-year
limitations period set forth in 8 U.S.C. § 1158 (a)(2)(B) and that Petitioner did not
establish changed circumstances that materially affected his asylum application or
extraordinary circumstances related to the failure to meet the filing deadline. We are
therefore without jurisdiction to review Petitioner’s request for asylum. See 8 U.S.C. §
1158 (a)(2)(D) (“[n]o court shall have the jurisdiction to review any determination of the
5
Attorney General” regarding the timeliness of an asylum application or the existence of
changed circumstances); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).3
A.
Withholding of removal is available under 8 U.S.C. § 1231(b)(3)(A) “if the
Attorney General decides that the alien’s life or freedom would be threatened in that
country because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.” A finding of past persecution gives rise to a rebuttable
presumption that the “applicant’s life or freedom would be threatened in the future in the
country of removal on the basis of the original claim.” 8 C.F.R. § 208.16(b)(1)(I); see
also Jarbough v. Attorney General, 483 F.3d 184, 190 (3d Cir. 2007). In the alternative,
“[i]f the applicant’s fear of future threat to life or freedom is unrelated to the past
persecution, the applicant bears the burden of establishing that it is more likely than not
that he or she would suffer such harm.” 8 C.F.R § 208.16(b)(1)(iii).
While the IJ found the testimony of Petitioner to be credible, the IJ held that the
actions taken against Petitioner individually or cumulatively were not sufficient to trigger
3
Petitioner has not made any arguments regarding constitutional questions or issues of
law that could permit us to retain jurisdiction on the asylum claim. See Sukwanputra v.
Gonzales, 434 F.3d 627, 635 (3d Cir. 2006) (“[D]espite the changes of the REAL ID Act,
8 U.S.C. § 1158(a)(3) continues to divest the court of appeals of jurisdiction to review a
decision regarding whether an alien established changed or extraordinary circumstances
that would excuse his untimely filing.”).
6
a finding of past persecution. “Persecution” is “‘extreme conduct’” such as “‘threats to
life, confinement, torture, and economic restrictions so severe that they constitute a threat
to life or freedom.’” Lie v. Ashcroft, 396 F.3d 530, 534, 536 (3d Cir. 2005) (quoting
Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). Petitioner argues that the incident in
the market provides evidence of past persecution. While we recognize that the market
attack was harmful to Petitioner, we do not believe that this single incident is sufficiently
severe to give rise to a finding of past persecution.4 See Lie, 396 F.3d at 536 (holding
that, in the context of an asylum petition made by Chinese Christians from Indonesia,
“two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the
theft of some personal property and a minor injury, is not sufficiently severe to be
considered persecution”). Further, we do not believe the conduct by Petitioner’s family
falls within the definition of persecution, as their actions did not threaten Petitioner’s life
or freedom.
Because Petitioner has failed to establish past persecution, he must show that it is
more likely than not that he would be subject to future persecution in order to qualify for
withholding. See Toure v. Attorney General, 443 F.3d 310, 317 (3d Cir. 2006) (quoting
INS v. Stevic, 467 U.S. 407, 424 (1984)). As set forth in the 2002-2004 Country Reports
published by the Department of State for Indonesia (“Country Reports”), Petitioner
4
The IJ also questioned whether the market incident was even motivated by ethnic
hostilities.
7
references a history of racial and religious tensions as evidence of the likelihood that
Petitioner will be subject to future persecution due to his race, religion or membership in
a particular social group.5 This Circuit has previously held that there is not “a pattern or
practice of persecution of Chinese Christians in Indonesia,” particularly as the violence
toward Chinese “seems to have been primarily wrought by fellow citizens and not the
result of governmental action or acquiescence.” Lie, 396 F.3d at 537. Based on his
review of the more recent Country Reports and the Third Circuit’s prior position
regarding persecution of Chinese Christians from Lie, the IJ found that there was no
evidence that Petitioner would be singled out for persecution in the future.6 Further,
Petitioner’s own testimony indicated that he would be more comfortable and safer living
in Jakarta, as he believes the people there are more tolerant and accepting of interfaith
marriages. As substantial evidence supports the IJ’s holding that Petitioner would not be
subject to persecution if he returned to Indonesia, Petitioner is not eligible for
withholding of deportation.
5
Petitioner designated race, religion, and membership in a particular social group as
the bases for relief in his asylum application. The IJ noted that the race basis presumably
derived from his wife, but that it was unclear as to why Petitioner marked membership in
a particular social group, hypothesizing it was based in Petitioner’s membership in an
interfaith marriage.
6
The IJ recognized that the Court in Lie did not have the opportunity to review the
2004 Country Report on Indonesia, but noted that there was nothing in the updated report
to suggest that the Third Circuit would take a different position. The IJ’s analysis in this
case contrasts with the Sukwanputra IJ, who did not “specifically address[] whether a
pattern or practice of persecution existed in Indonesia.” 434 F.3d at 637.
8
B.
Article 3 of the CAT, to which the United States became a signatory in 1999, states
that “[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.” A petitioner must prove that “it is more likely than not that [he or]
she will be tortured by the government or with its acquiescence upon removal to a
particular country.” Chen, 434 F.3d at 216; see also 8 C.F.R. § 208.16 (c)(2). The alien
has the burden of supporting his claim through credible testimony. Ghebrehiwot v.
Attorney General, 467 F.3d 344, 352 (3d Cir. 2006). Torture is defined as “‘an extreme
form of cruel and inhuman treatment,’ but not ‘lesser forms of cruel, inhuman or
degrading treatment.’” Chen, 434 F.3d at 216 (citing 8 C.F.R. § 208.18(c)(3)(i)).
The IJ found nothing in the record to support Petitioner’s claim that he would be
subject to torture by the Indonesian government or its agents if he returned to Indonesia.
Further, as Petitioner has failed to present evidence that he would be subject to future
persecution, much less torture, were he to return to Indonesia, substantial evidence exists
to support the IJ’s decision that Petitioner is ineligible for relief under the CAT.
IV.
Accordingly, the Petition for withholding of removal and protection under the
9
CAT will be denied.
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2428
JOHN M. FLOYD & ASSOCIATES INCORPORATED,
Plaintiff-Appellant,
v.
STAR FINANCIAL BANK,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 01 C 355—Theresa L. Springmann, Judge.
____________
ARGUED JANUARY 19, 2007—DECIDED JUNE 7, 2007
____________
Before RIPPLE, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. This diversity case comes to us
after the district court entered partial summary judgment
in favor of the defendant. The plaintiff appeals. For the
reasons set forth below, we affirm.
I. BACKGROUND
Because we are reviewing entry of summary judgment in
favor of the defendant, we will construe the facts in favor
of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). John M. Floyd & Associates is a consult-
ing firm that provides services to banks. Early in 2000,
2 No. 06-2428
Floyd entered into an agreement with Star Financial
Bank. The agreement proposed four phases of the engage-
ment. In the “analysis” phase, Floyd would analyze cur-
rent operations at the bank and come up with recommen-
dations and a plan to implement the changes. During the
“presentation” phase, Floyd would meet with Star to
determine which recommendations Star would like to
pursue. During the third phase, which Floyd’s proposal
referred to as the “installation” phase, Floyd would
coordinate and assist in the installation of approved
changes and install monitoring processes to track how the
changes were working. In the final “follow-up” phase,
Floyd consultants would meet with Star to review the
results and fine-tune any implemented changes.
The parties now dispute whether Star was obligated to
pay for two changes that Floyd recommended. First, Floyd
recommended that the bank initiate an overdraft privilege
program. Under such a program, instead of returning
overdrawn checks unpaid, the bank would honor many of
those checks and would charge customers a fee for the
privilege of overdrawing their account. Second, Floyd
recommended that Star sell its portfolio of credit card
accounts to a major national credit card issuer.
Star asked Floyd not to implement either of these
ideas. But eventually the bank installed similar programs
either on their own or through another vendor. Shortly
after Floyd made the “presentation” phase on the over-
draft protection, Star contacted a company called Stratis
Technologies to install overdraft protection. Stratis had
been pursuing Star since the prior year. According to
Floyd, Stratis implemented substantially the same type
of program that Floyd had offered to implement, but
was willing to do it for roughly one fifth of what Floyd
intended to charge Star. Star also implemented Floyd’s
recommendation to sell its consumer credit card portfolio,
but used a different vendor for that sale. Star had been in
intermittent contact with a company called Kessler
No. 06-2428 3
Financial Services for about four years before Floyd’s
consulting work began. Kessler acted as an agent for
MBNA, then a large national bank with extensive credit
card portfolios, in trying to acquire the types of credit
accounts that Floyd recommended Star should sell. About
a month before Floyd moved to the presentation phase on
the credit card sale recommendation, Star had re-opened
contacts with Kessler and had raised the topic of selling
Star’s credit card assets to MBNA.
Floyd’s proposal to Star had set the compensation to be
contingent on savings from Floyd’s recommendations. The
cost to Star would be “one-third of the first-year’s pre-tax
earnings that are the results of [Floyd’s] recommenda-
tions plus out-of-pocket expenses.” R. 1 Ex. A p. 2. The
contract also provided that “[t]he bank will have the final
decision as to the installation of recommendations and only
approved and installed recommendations will be used to
quantify earnings.” Id. The parties agree that Floyd did
not install or follow-up on either of these recommendations
because Star went elsewhere. When Star implemented the
types of programs that Floyd had recommended, Floyd
sued Star for the contingent fees that Star would have
owed if Star had used Floyd for those two changes. After
discovery, both parties moved for summary judgment on
the question of breach of contract. The district court
granted Star’s motion for summary judgment. There were
other claims between the parties that eventually went to
trial, but those are not before us on this appeal. The only
issue presented for review is whether summary judgment
in favor of Star was appropriate on the facts recounted
above.
II. ANALYSIS
This is a question that requires us to interpret the
contract between Floyd and Star. The parties agree that
4 No. 06-2428
Indiana law controls. Under Indiana law, “[w]hen the
terms of a contract are clear and unambiguous, those
terms are conclusive, and the court will not construe the
contract or look at extrinsic evidence but rather will simply
apply the contract provisions.” Forty-One Assoc., LLC v.
Bluefield Assoc., L.P., 809 N.E.2d 422, 427 (Ind. Ct. App.
2004) (citing Stout v. Kokomo Manor Apartments,
677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997)). Floyd argues
that the contract requires that Star pay for any recom-
mendation that Floyd made, even if Star hired somebody
else to implement it or made the changes internally,
without the help of a consultant or other contractor. Star
argues that the contract only obligates it to pay for
changes if Floyd recommends and installs them (or
coordinates the installation). Although the terms of the
contract make it clear that final payment would not be
made until about a year after the changes were installed,
the parties are basically disputing when the obligation to
pay for a recommendation arose under the contract.
To interpret the contract in the way that Floyd asks us
to would require that we add terms to the contract that
are not contained within the four corners of the document.
We are unwilling to do this. The contract does not envi-
sion that Star would pay for ideas, but rather for action. In
the paragraph entitled “Payment,” Floyd’s proposal states
that the bank would “have the final decision” on any
recommendation and “only approved and installed recom-
mendations” would be used to quantify earnings. R. 1 Ex.
A p. 2. This is clear language that the obligation to pay did
not arise after analysis or presentation of recommenda-
tions, but only after a change was installed. By the very
terms of the contract, installation required that Floyd
would “coordinate and assist in installation of approved
changes [and] design and install monitoring and report-
ing mechanisms. . . .” Id. p. 5. The language here is
unambiguous: the obligation to pay could not arise until a
change was installed.
No. 06-2428 5
Floyd argues that by reading the installation clause in
the contract this way the district court erred by treating
Floyd’s installation obligations as a condition precedent
instead of a condition subsequent. Appellant’s Br. at 24-25.
Under Indiana law, there is a presumption against condi-
tions precedent. Floyd cites to Scott-Reitz Ltd. v. Rein
Warsaw Assoc., 658 N.E.2d 98, 103 (Ind. Ct. App. 1995) to
support this argument. We recognize, however, that the
term “condition precedent” carries multiple meanings, and
can refer to a condition precedent to the formation of a
contract, or a condition precedent to an obligation that
arises under an already existing contract. See JOHN D.
CALAMARI & JOSEPH M. PERILLO, CONTRACTS § 11-5 (2003).
Floyd urges us to read the stated obligations in the
installation phase as being a condition subsequent: that is,
that failure to perform those actions renders the contract
void. Floyd’s argument is that we should not read the list
of required actions in the installation phase as being
necessary for the obligation to pay to arise, but rather that
a failure to perform those tasks would void an already
existing obligation to pay. There is, of course, a third
interpretation: that the language is not at all conditional,
but was one of a series of interlocked promises that the
parties made to each other. See id. § 11-09 (“[I]n this area
it is clear that the courts, in a doubtful case prefer the
interpretation that particular language is language of
promise rather than language of condition.”). Nevertheless,
discussion of whether the term should be considered a
condition precedent or subsequent simply begs the ques-
tion of whether the obligation to pay arises if somebody
other than Floyd makes the installation of the recom-
mended changes.
We come back to the language of the contract, which sets
the measure of the payment at one-third of the benefit of
the recommendations that are “accepted and installed.”
But installed by whom? Floyd’s request for payment might
6 No. 06-2428
still be valid if the contract provides that Star would pay
for installed recommendations, even if Floyd was not
involved in the installation. It makes sense that consul-
tants might choose to enter a contract that provides for
reimbursement for their ideas even if somebody else
actually installs the recommendation. It could be that a
consultant puts so much effort into arriving at the recom-
mendations that the lion’s share of the work has been done
by that point. This is, at its heart, Floyd’s argument here:
“Floyd conferred a substantial benefit on Star through
its thorough analysis and its persuasive recommenda-
tion . . . .” Appellant’s Br. at 46. In such a case, even if the
measure of payment is determined by looking at the
savings after the fact, parties might agree that the obliga-
tion to pay arises when the recommendation is made.
For example, Floyd could have written into the contract
that Star would be obligated to pay Floyd for any recom-
mendation that was installed within twenty-four months
of their engagement, even if somebody other than Floyd
performed the installation. But Floyd did not write that
term into the proposal it sent to Star, so it is not part of
the contract between the two parties. We note that Floyd
submitted supplemental authority to the court under FED.
R. APP. P. 28(j) regarding a contract that Floyd had drafted
with a different bank which did include a term that
more specifically spelled out the bank’s obligation to pay
for recommendations implemented within a set time
period after the engagement, even if the change was
originally rejected. See John M. Floyd & Assoc., Inc. v.
Ocean City Home Sav. Bank, 206 F. App’x 129 (3d Cir.
2006).
Floyd also could have written an exclusivity clause into
the contract and required that Star refrain from using
another banking consultant to implement any change that
Floyd recommended for some time period after the engage-
ment. But Floyd did not write that clause into the con-
No. 06-2428 7
tract either. To give the contract the meaning that Floyd
urges would even require that Star pay Floyd for recom-
mendations that other consultants might have made as
long as they were also among the recommendations
that Floyd included in its list. By Floyd’s logic, if Star had
hired two sets of consultants with contracts that were
identical to the contract that Floyd drafted, and if each
consultant had made the exact same recommendations
that Floyd made, Star would have been obligated to pay
both consultants, even if a third party actually did the
work installing the overdraft system. This seems to be
well beyond the “plain and usual meaning” of the words
used in the contract. Dempsey v. Carter, 797 N.E.2d 268,
273 (Ind. Ct. App. 2003); 6 IND. LAW ENCYCL. CONT. § 64.
Floyd is stuck with the language of the contract as it is
written, and the language is clear. The contract terms,
as drafted by Floyd, gave two powerful options to the
bank. The bank received a right to unilaterally remove
certain projects from the compensation formula and there
were no limits on Star’s ability to shop around for better
deals from other providers. Taken together, this language
shifted the burden of risk onto Floyd that some of its up-
front work would not result in compensation. We have
mentioned, in passing, some of the clauses that Floyd could
have inserted to protect that compensation interest. But
Floyd did not insert any of that language. Failing to bind
Star to pay for Floyd’s work earlier in the engagement
might have been slipshod contract drafting, but a slipshod
contract is not necessarily an ambiguous contract. We are
left to enforce the contract as we find it—a contract that
left Star free to pick and choose which recommendations to
adopt and free to shop for a more competitive quote from
other consultants and service providers.
8 No. 06-2428
III. CONCLUSION
The terms of the contract between Floyd and Star are
unambiguous. The agreement does not require that Star
exclusively consult with Floyd, and the contract does not
require that Star pay for the preliminary ideas that Floyd
presented. The district court was correct that Star did
not breach its contract with Floyd when it used other
vendors to implement the overdraft policy and sell its
credit card portfolio. Accordingly, the judgment of the
district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-7-07
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2007*
Decided May 31, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2245 Appeal from the United
States District Court for the
BENYEHUDAH WHITFIELD, Northern District of Illinois,
Plaintiff-Appellant, Western Division.
v.
No. 02 C 50387
ILLINOIS DEPARTMENT OF CORRECTIONS, et al., Philip G. Reinhard, Judge.
Defendants-Appellees.
Order
Benyehudah Whitfield sued the Illinois Department of Corrections (which holds
him as a prisoner) and 31 of its employees. His grievance stems from the food he re-
ceived after converting from Islam to the African Hebrew Israelite faith, one tenet
of which is a vegan diet. Although the prison has furnished him a vegan diet since
2003, he complains that the change took too long (he converted in 2002), and that
when he undertook a hunger strike to protest the delay the prison allowed him to
imperil his health and retaliated for the inconvenience he had caused. Most of his
claims, against most defendants, were dismissed on the pleadings, and the rest
were resolved in the (remaining) defendants’ favor by summary judgment.
* After examining the briefs and the record, we have concluded that oral argument is unneces-
sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 06-2245 Page 2
We have little to add to the district court’s explanations and affirm without the
need for repetitive exposition—except with respect to Whitfield’s claim for damages
on account of the delay in providing a vegan diet. Whitfield advances several consti-
tutional theories, such as the free exercise clause of the first amendment and the
equal protection clause of the fourteenth (he thinks that adherents to other faiths
received better treatment), all of which the district court resolved against Whitfield
on the merits, relying principally on Kaufman v. McCaughtry, 419 F.3d 678 (7th
Cir. 2004), a decision that did not deal with religious diets. Although statutory
claims take priority to constitutional ones, the district judge declined to address
Whitfield’s argument that the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc–5, required the prison to accommodate his
religious dietary needs more promptly. When granting summary judgment, the dis-
trict court wrote that Whitfield had not “alleged” a violation of RLUIPA and that
“[p]laintiff cannot seek to add such a claim at this stage of the litigation.”
Whitfield had indeed advanced an argument based on RLUIPA. The district
court’s cryptic response appears to reflect a view that legal theories must appear in
the complaint. When opposing defendants’ motion to dismiss the complaint, Whit-
field invoked the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to
2000bb–4, which City of Boerne v. Flores, 521 U.S. 507 (1997), held may not be ap-
plied to the states. The RLUIPA, based on the spending power, applies only to
states that accept federal grants and thus is not subject (as RFRA is) to the limits of
national power under §5 of the fourteenth amendment. The statutes are substan-
tively identical with respect to prisoners’ entitlements. As the district court (appar-
ently) saw matters, however, the complaint’s failure to mention RLUIPA was a fatal
misstep. What is implicit in the district court’s explanation is explicit in the appel-
lees’ brief, which argues at length that Whitfield forfeited his rights under RLUIPA
when he did not amend his complaint to rely on that statute.
Yet nothing in Fed. R. Civ. P. 8 suggests that complaints must contain legal cita-
tions or arguments, and we have held that they need not. See, e.g., Bartholet v. Rei-
shauer A.G., 953 F.2d 1073 (7th Cir. 1992). The Federal Rules of Civil Procedure
has an appendix of forms that “are sufficient under the rules”. Fed. R. Civ. P. 84.
None of the form complaints in the official appendix specifies the statute or rule of
common law that supports the claim; it follows that legal citations are not required.
A prisoner’s complaint must have a legal foundation, see Neitzke v. Williams, 490
U.S. 319, 325 (1989), or it will be dismissed under 28 U.S.C. §1915A(b) or Fed. R.
Civ. P. 12(b)(6). But the complaint need not spell out that basis; that’s the function
of motions and briefs.
The RLUIPA supplies a foundation for Whitfield’s complaint, and he is entitled
to a decision on the merits. Statutory theories take priority over constitutional ones;
federal courts should not make unnecessary constitutional decisions. The district
court has yet to consider a statutory theory that is antecedent to Whitfield’s consti-
tutional arguments. The judgment of the district court is affirmed, except with re-
spect to the claim based on delay in providing a vegan diet, and the case is re-
manded for action consistent with this order. We suggest that the district court stay
further proceedings pending this court’s decision in Koger v. Bryan, No. 05-1904,
which presents a closely related question.
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2007
Decided June 21, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 06-3650
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Indiana, South Bend Division
v.
No. 3:05-CR-00151(01)RM
RANDY G. WATTERS,
Defendant-Appellant. Robert L. Miller, Jr.,
Chief Judge.
ORDER
Randy Watters was arrested and charged with possession with intent to
distribute marijuana. See 21 U.S.C. § 841(a)(1). A jury found him guilty, and
because the number of plants he was found to be cultivating or growing was 100 or
more, he faced a mandatory minimum of 60 months’ imprisonment, id.
§ 841(b)(1)(B). After the finding of guilt, the court imposed the minimum term of
60 months’ imprisonment and four years of supervised release. Watters appeals
and alleges that the court erred by not granting him relief under the “safety valve,”
see 18 U.S.C. § 3553(f); U.S.S.G. §§ 5C1.2, 2D1.1(b)(7). Watters has consistently
denied that he intended to distribute any marijuana, nor has he provided the
government with complete and truthful information concerning the offense. The
court thus did not err in denying him relief under the “safety valve.” We affirm.
No. 06-3650 Page 2
Background
In September of 2005 an Indiana State Police helicopter flew over Watters’s
property in Warsaw, Indiana. The trooper in a helicopter observed what he
believed to be marijuana growing near Watters’s house and based on this
information the police obtained a search warrant for the premises. When they
arrived at Watters’s home, the marijuana plants they had observed from the
helicopter were gone, and there was evidence that the plants had been recently
extracted from the ground. Shortly thereafter the police observed Watters standing
just outside his property line, surrounded by several piles of fresh marijuana plant
material that had been placed on the ground and propped against trees to dry and
furthermore he was observed harvesting buds from some of this plant material.
The police were convinced that this marijuana came from the plants they had seen
earlier from the helicopter. They discovered a total of some 100 stalks in number
near the drying plant material. Most of the stalks had been covered with brush.
Based on the number of (marijuana) stalks recovered and on another 29 live
marijuana plants found growing just north of Watters’s property, the police
concluded that Watters had been growing some 100 plus plants in the area.
At trial Watters admitted that he possessed some marijuana for personal use
but denied that he had grown marijuana intentionally or that he planned to
distribute the seized marijuana. He admitted that in 1992 he returned from
Jamaica with marijuana seeds and stated that he had thrown them on the ground
in the area observed from the helicopter and never tended to them again. He stated
that the sound of the police helicopter hovering over his property had alerted him to
investigate, and at that time he discovered to his surprise that a number of further
marijuana plants were growing in that location. Not wanting anyone to discover
these plants, he pulled them out of the ground and took them to the area where
they were discovered by the police. He stated that he placed them there to rot, but
admitted having harvested some buds for his personal use. As for the 29 plants
growing just north of his property, he asserted that he had no knowledge of those
plants until the police “led” him to that location.
After the jury found him to be untruthful and less than credible and they
rejected his fabricated story, Watters offered to be interviewed by the government
as a prelude to qualifying for the “safety valve.” The prosecutor’s office declined the
offer, rightly believing that Watters had been and was likely to be less than
forthcoming and truthful. Having been denied an interview, Watters submitted a
written “safety-valve” proffer on his own. In this proffer he admitted that he had
possessed and used marijuana and named two men who had supplied him with
relatively modest amounts of the drug. But he failed to admit to cultivating the
marijuana found near his property, nor did he admit that he planned to distribute
No. 06-3650 Page 3
this or any other marijuana. At his sentencing hearing he continued to deny that
he intended to distribute marijuana.
The trial court for good reason refused to give Watters the benefit of the
“safety valve” on the reasoning that he failed to provide the government with
complete and truthful information about his offense. See U.S.S.G. §§ 5C1.2,
2D1.1(b)(7). The court, citing the number of plants found near Watters’s property,
expressly agreed with the jury’s finding that Watters had intended to distribute the
marijuana and rejected his proffer as insufficient because of his failure to identify
the intended recipients of the drugs. The trial judge was convinced that Watters
had not named all of his sources of marijuana. Thus, the court decided that he
failed to comply with the requirements for the invocation of the “safety-valve.”
Analysis
The “safety valve” allows certain nonviolent, first-time drug offenders to
escape an otherwise-applicable mandatory minimum sentence. 18 U.S.C. § 3553(f);
U.S.S.G. § 5C1.2. In order to qualify, a defendant must meet five requirements.
The only one at issue in this case is the fifth requirement: that “not later than the
time of the sentencing hearing, the defendant has truthfully provided to the
Government all information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a common scheme or
plan . . . .” 18 U.S.C. § 3553(f)(5). Watters primarily argues that he never intended
to distribute any of the marijuana found on or near his property and thus the
district court should not have required that he name the potential distributees. But
this argument is meritless because Watters had the burden of establishing that he
met the fifth requirement, United States v. Ponce, 358 F.3d 466, 468 (7th Cir. 2004),
and he could not do this by asserting that he never intended to distribute marijuana
after a jury had found otherwise. The trial judge was certainly entitled to agree
with the jury’s verdict and reject Watters’s fairy tale that he did not discover the
129 marijuana plants growing outside his house until the police showed up. See
United States v. Montes, 381 F.3d 631, 636-37 (7th Cir. 2004). Furthermore this
argument for various reasons actually undermines Watters’s claim that he is
entitled to the “safety valve.” Certainly a defendant who denies even committing
the underlying crime falls short of making a complete and truthful proffer to the
government. See United States v. Thompson, 106 F.3d 794, 800-01 (7th Cir. 1995).
Watters next contends that, even assuming for the sake of argument that he
did plan to distribute the marijuana, the court still should not have required him to
name potential distributees because he might not at that time have decided who he
wanted to distribute the drugs to. Furthermore, the court did not err by failing to
consider this scenario because Watters never presented it to the sentencing judge.
He always maintained that he never planned to distribute. If in fact, as Watters
hypothesizes in his appellate brief, he did plan to distribute but had not decided on
No. 06-3650 Page 4
potential distributees, he could easily have advised the district court and the
government that this was the case.
Finally, at oral argument, Watters asserted that the district court erred in
denying him relief under the “safety-valve” when the government refused to give
him an opportunity to make a full proffer at a “safety-valve” interview. In United
States v. Brack, 188 F.3d 748, 763 (7th Cir. 1999), we held that it was error for the
district court to deny “safety-valve” relief on the ground of an incomplete proffer
when the defendant submits a truthful written proffer and offers to submit to a
“safety-valve” interview but is refused. We reasoned that the government cannot
refuse to let a defendant “finish” his story and then argue that he does not deserve
the “safety valve” because he has not revealed everything he knows. Id. Watters
waived this argument by not developing it in his opening brief. See United States v.
Kelley, 446 F.3d 688, 692-93 (7th Cir. 2006).
In any event, even if Watters had not waived this issue, his case is
distinguishable from Brack. The district court in Brack did not decide whether the
defendant was being untruthful and rested its decision solely on the incompleteness
of the defendant’s statement. Id. at 762-63. The trial court in this case, however,
found that Watters was less than truthful during sentencing when he repeatedly
claimed that he did not intend to distribute the marijuana he was growing. The
court’s decision properly focuses on the falsity of his fabricated statements and is
necessarily based on a finding that Watters’s statements were less than truthful as
well as incomplete. Watters was not denied an opportunity to finish his story.
Rather, he never really began telling his story since he has never admitted to the
most basic elements of the offense of conviction.
AFFIRMED.
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3624
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOLAN R. NELSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 CR 30107—Richard Mills, Judge.
____________
ARGUED SEPTEMBER 27, 2006—DECIDED JUNE 21, 2007
____________
Before POSNER, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. What is the meaning of life?
Or perhaps more pointedly, what is the equivalent of a
term of life imprisonment for sentencing purposes? In this
appeal, we are presented with that very question as we
review the district court’s calculation of Nolan Nelson’s
sentence. Nelson, age 30, faced a mandatory minimum
sentence of life imprisonment after he pleaded guilty to
his third felony drug conviction. Because Nelson decided
to cooperate with the government, the district court re-
duced his sentence to 262 months (21.8 years). Nelson now
appeals, citing error in the district court’s guideline
calculation because it declined to use, as the starting
point for its departure, the lowest offense level in the
2 No. 05-3624
United States Sentencing Guidelines associated with the
range of “360-life,” or level 37. The district court instead
chose to calculate the sentence reduction from the higher
offense level of 43, which corresponds to the guideline
range of “life.” We affirm the judgment of the district court
because we do not accept Nelson’s argument that the
sentencing judge erred in calculating his advisory range
in a manner that most closely reflects a plain reading of
the Guidelines. In reaching this conclusion, we also note
that the district court’s methodology resulted in a lower
sentence than Nelson would have received if the court had
used his life expectancy to calculate his reduced sentence.
I. BACKGROUND
Between 1998 and 1999, Nolan Nelson transported crack
cocaine from Chicago to Quincy, Illinois where he distrib-
uted the drugs through various individuals. Nelson’s
operation eventually led to his indictment in 2002 for
conspiracy to distribute more than fifty grams of crack
cocaine and more than five kilograms of powder cocaine,
possession of crack cocaine with intent to distribute, and
distribution of crack cocaine. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. After his arrest, Nelson agreed to
cooperate with the government and pled guilty to the
conspiracy charge in exchange for the government’s
agreement to dismiss the remaining charges against him.
After the application of various adjustments that are
not at issue on appeal, Nelson’s total offense level of 34
and criminal history category of VI resulted in a guide-
line range between 262 and 327 months.1 Nelson’s two
previous felony drug offenses, however, subjected him to
1
The 2004 edition of the Guidelines Manual was used to
calculate Nelson’s advisory range.
No. 05-3624 3
a mandatory minimum sentence of life imprisonment. See
21 U.S.C. § 841(b)(1)(A). Because Nelson’s mandatory life
sentence is greater than the maximum of his applicable
guideline range, the Guidelines advise that the life sen-
tence become his guideline sentence. See U.S.S.G.
§ 5G1.1(b).
At sentencing, the government asked the district court
to impose a sentence below that of life to reflect Nelson’s
cooperation and assistance in the government’s investi-
gation and prosecution of a number of figures involved
in Nelson’s drug operation. See 18 U.S.C. § 3553(e).2 The
government regarded Nelson’s assistance as having “far
reaching value” and, therefore, worthy of its “exceedingly
rare” recommendation that his mandatory sentence be
reduced by four sentencing guideline ranges. The govern-
ment suggested that the district court carry out the
reduction by starting from offense level 43, the level
associated with a life sentence. See U.S.S.G. Ch. 5, Pt. A.
Next, the district court was asked to “clump” the six
guideline ranges of “360-life” under category VI (offense
levels 42 to 37) “together into one.” Id. The government
then recommended that the district court “go down three
more from that” to arrive at offense level 34 and sentence
Nelson at the bottom of the range. Based on Nelson’s
criminal history category of VI, this translated to a
guideline range of 262 to 327 months3 and a final sentence
of 262 months.
2
This provision states in part: “Upon motion of the Government,
the court shall have the authority to impose a sentence below a
level established by statute as a minimum sentence so as to
reflect a defendant’s substantial assistance in the investiga-
tion or prosecution of another person who has committed an
offense.”
3
Notably, this would have been Nelson’s guideline range if he
were not subject by statute to a mandatory life sentence.
4 No. 05-3624
Nelson, in turn, argued that the applicable guideline
range for his mandatory life sentence was the “360-life”
range, and, as such, the district court should calculate
his sentence by starting from offense level 37, the lowest
offense level that supports a sentence of 360 months to
life. By Nelson’s methodology, a downward departure of
four (from offense level 37 to 33) would result in a range of
235 to 293 months. Nelson therefore recommended that
the district court sentence him at the bottom of this range
to 235 months, approximately two years less than the
government’s proposed sentence.
After considering the parties’ recommendations, the
sentencing judge agreed that Nelson’s cooperation with the
government entitled him to a sentence below his manda-
tory minimum of life and granted the government’s
§ 3553(e) motion. The judge then stated that the govern-
ment’s proposed reduction of four guideline ranges resulted
in a total departure of nine offense levels from level 43 to
34 and was the equivalent of a 40% reduction in Nelson’s
life sentence.4 As the judge commented, this reduction was
“extremely generous” and “a rare beast” as a 20% reduc-
tion is more common based on sentences that he and other
judges have imposed. Nelson was ultimately sentenced to
262 months’ imprisonment and now appeals.
II. ANALYSIS
We begin by addressing the government’s contention
that Nelson waived his right to challenge the district
court’s calculation of his sentence because he agreed to it
4
In Nelson’s criminal history category of VI, the term of
imprisonment associated with each guideline range between
offense levels 12 and 37 increases by approximately 10%. See
U.S.S.G. Ch. 5, Pt. A.
No. 05-3624 5
before and at sentencing. It is true that by pleading guilty,
Nelson agreed that “the effect of the mandatory life
sentence is to make the offense level 43.” See Plea Agmt.
at 8. He also waived his right to challenge the manner
in which his sentence was determined in exchange for
the opportunity to cooperate with the government and
earn a downward departure. Id. at 4. However, Nelson’s
plea agreement included a provision preserving his right
to appeal if the district court calculated his sentence “on
any basis other than by using, as the starting point for
that departure, the bottom of the lowest guideline level
and range that includes a potential life sentence.” Id.
Nelson’s appeal raises this very issue because he argues
that the district court erred in its calculation by starting
from the highest guideline level associated with a life
sentence. He therefore has preserved his challenge for
appellate review.
As we turn to the merits of Nelson’s case, we of course
recognize that the Guidelines are now advisory, United
States v. Booker, 543 U.S. 220, 245 (2005); nonetheless,
the Guidelines still demand consideration by a sentenc-
ing judge, id. at 259-60; United States v. Chamness, 435
F.3d 724, 726 (7th Cir. 2006). This means that the sen-
tencing judge must first correctly calculate the advisory
guideline range and then, based on the sentencing
factors set out in 18 U.S.C. § 3553(a), decide whether to
impose a sentence within that range. United States v.
Orozco-Vasquez, 469 F.3d 1101, 1107 (7th Cir. 2006).
Nelson’s appeal challenges only the district court’s cal-
culation, which we review de novo. See Chamness, 435
F.3d at 726.
The district court arrived at Nelson’s sentence after it
granted the government’s § 3553(e) motion to sentence
him below the statutory minimum of life imprisonment
to reflect the amount of assistance he provided to the
6 No. 05-3624
government. In recommending the extent of the departure,
the government’s attorney remarked, “if the defendant
was looking at anything other than mandatory life, I would
be recommending 40 percent as the departure. . . . [But,]
where do you start with when you’re trying to assess
what’s 40 percent, what does that mean when you’re
talking about mandatory life? 40 percent of what?” Sent.
Hr’g Tr. at 11-12. The government then suggested that
the district court use the Sentencing Table to calculate
Nelson’s guideline range by using offense level 43 (life)
in criminal history category VI as a starting point. Id. at
12-13; see U.S.S.G. Ch. 5, Pt. A.
On appeal, Nelson argues that the district court errone-
ously calculated his guideline range by choosing level 43
as the starting point for its departure instead of 37, which
is associated with the 360-life range in a criminal history
category of VI. Id. In support of his approach, Nelson relies
on our decision in United States v. Hayes, 5 F.3d 292,
294 (7th Cir. 1993), where we considered a defendant’s
challenge to his forty-seven-month sentence imposed after
the district court conducted a two-level downward depar-
ture from the applicable mandatory minimum of sixty
months. In arriving at this sentence, the district court
“first observed that the lowest United States Sentencing
Guidelines . . . offense level for which a 60-month sentence
could have been given is 24. Departing downward two
levels for Hayes’ substantial assistance results in an
offense level of 22, which carries a sentencing range of 41
to 51 months.” Hayes, 5 F.3d at 294. The defendant Hayes’
sentence of forty-seven months fell within that range. Id.
Hayes claimed error, arguing that the district court was
required to sentence him within a guideline range of
twenty-one to twenty-seven months, the range associated
with his original offense level and criminal history cate-
gory. Id. We disagreed and explained that because the
defendant’s statutorily required minimum sentence of sixty
No. 05-3624 7
months was greater than his applicable guideline range,
the statutory sentence became his guideline sentence. Id.
at 294-95 (quoting U.S.S.G. § 5G1.1(b)). We ultimately
affirmed the sentence, finding that the district court’s
method of “starting with the lowest offense level consistent
with a 60-month sentence and departing downward two
levels from that point [was] linked appropriately to the
structure of the Guidelines.” Id. at 295. According to
Nelson, it follows from our holding in Hayes that a sen-
tencing judge who decides to depart from a mandatory
minimum sentence of life should begin the downward
departure from the lowest offense level consistent with
that mandatory sentence, which in his case, Nelson argues,
is level 37 (360-life). Nelson’s position, however, overstates
our holding in Hayes and misinterprets the Guidelines.
Our focus in Hayes was the calculation of a downward
departure for substantial assistance and the extent of
such a departure. See id. There, we stated that, because
of Hayes’ mandatory minimum sentence, “[t]he appropri-
ate starting point for [his] downward departure was 60
months,” not, as he suggested, the guideline range that
resulted from his original offense level and criminal
history category. Id. We went on to consider the district
court’s two-level downward departure and concluded that
the extent of the departure was “linked appropriately to the
structure of the Guidelines.” Id. (citing United States v.
Thomas, 930 F.2d 526, 531 (7th Cir. 1991) (“These [guide-
line] provisions suggest that departures based on a defen-
dant’s cooperation with authorities may warrant some-
thing on the order of a two-level adjustment . . . .”),
overruled on other grounds by United States v. Canoy,
38 F.3d 893, 906 (7th Cir. 1994)). Our opinion was silent,
however, on the point from which a sentencing judge
must begin its downward departure from a mandatory
minimum when confronted with more than one guideline
range that encompasses the statutory sentence.
8 No. 05-3624
We now return to the calculation of Nelson’s sentence.
His prior criminal history subjected him to a manda-
tory minimum of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A). Because that sentence is higher than
Nelson’s original guideline range of 262 to 327 months,
§ 5G1.1(b) of the Guidelines advises that his mandatory
life sentence become his guideline sentence. A sentencing
judge who chooses to depart downward from a mandatory
minimum pursuant to 18 U.S.C. § 3553(e) may calculate
the departure by quantifying the defendant’s assistance
either “by a simple numerical reduction in the offense
level or by a percentage reduction of the total
sentence . . . .” United States v. Senn, 102 F.3d 327, 332
(7th Cir. 1996).
In Nelson’s case, the sentencing judge chose to reduce his
life sentence by offense levels and begin the down-
ward departure from level 43. In arguing that this was
error, Nelson presumes that the applicable guideline range
for a mandatory life sentence is 360 months to life. This
presumption would be reasonable had this range been
provided as the highest within which a defendant could
be sentenced in a criminal history category of VI. How-
ever, the Guidelines go a step beyond 360 to life and set
out a range of “life.” See U.S.S.G. Ch. 5, Pt. A. Because
Nelson is subject to the longest sentence a defendant
can receive under the Guidelines, his corresponding
guideline range should reflect the same. Accordingly, a
straightforward interpretation of the Guidelines requires
a finding that the applicable guideline range for a manda-
tory minimum sentence of life is life, which can only be
found at offense level 43. Id. Nelson is unable to provide us
with any authority that would persuade us to read the
Guidelines differently and find error in the district court’s
No. 05-3624 9
methodology.5 The language of the Guidelines is clear;
therefore, we conclude that the district court’s decision to
depart from Nelson’s mandatory life sentence by start-
ing at offense level 43 was proper.
We note that the sentencing judge could have cal-
culated Nelson’s sentence by a percentage reduction of his
total sentence. See Senn, 102 F.3d at 332. At sentencing,
the government indicated that it was faced with the
impossible task of predicting the future to determine
the length of Nelson’s life sentence; however, such clair-
voyance is unnecessary when life expectancy figures
are available. Although the Guidelines themselves pro-
vide no numerical equivalent for a life sentence, the 2006
Sourcebook of Federal Sentencing Statistics (“Sourcebook”)
tells us that the Sentencing Commission defines a life
sentence as 470 months. See Sourcebook, Appendix A, at
http://www.ussc.gov/ANNRPT/2006/ appendix_A.pdf (last
visited June 19, 2007); Keller, 413 F.3d at 711. This figure
reflects the average life expectancy of federal defendants
at the time of sentencing as determined by the United
States Census Bureau. See 2005 Sourcebook, Appendix A
5
In his brief, Nelson cites United States v. Burns, 438 F.3d 826,
831 (8th Cir. 2006), which affirmed a district court’s reduction
of a defendant’s mandatory life sentence by departing from 360
months. Burns, however, was vacated and rehearing en banc
granted shortly after Nelson filed his opening brief. In that case,
the government recommended that the district court depart
from 360 months to reflect the defendant’s substantial assistance.
438 F.3d at 828. In that now-vacated opinion, the Eighth Cir-
cuit affirmed, concluding, inter alia, that “the district court
properly departed from a presumptive life sentence of 360
months.” Id. at 831. But see United States v. Keller, 413 F.3d 706,
711 (8th Cir. 2005) (affirming a district court’s use of 470 months
as the equivalent of the defendant’s mandatory life sentence to
calculate a percentage reduction based on his substantial
assistance).
10 No. 05-3624
at http://www.ussc.gov/ANNRPT/2005/Appendix_A_Post.
pdf (last visited June 19, 2007). If we apply this figure
to Nelson’s case, we arrive at a sentence of 282 months
(470 months discounted by 40%), which is approximately
two years longer than the sentence Nelson received of 262
months.6 The district court’s approach therefore resulted
in a more favorable sentence for Nelson than had the court
based its reduction on his life expectancy. Because the
district court did not err in calculating Nelson’s guide-
line range, we affirm.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
6
Alternatively, if the district court had used Nelson’s life
expectancy as a thirty-year old African-American male of 500
months, see National Vital Statistics Reports, Vol. 54, No. 14,
April 19, 2006 at 3, http://www.cdc.gov/nchs/data/nvsr/nvsr54/
nvsr54_14.pdf (last visited June 19, 2007), it would have arrived
at a sentence of 300 months, three years longer than Nelson’s
sentence of 262 months. In highlighting the differences in
sentences that can result from using an average versus a more
individualized life expectancy figure, we do not mean to endorse
one approach over the other. Indeed, both are imperfect mea-
sures of life expectancy as one fails to consider a defendant’s
individual characteristics, and the other omits the impact of
incarceration. We leave it to the Sentencing Commission to
decide which method provides a superior estimate of life expec-
tancy, or, better yet, to formulate figures that account for age,
race, gender, and incarceration.
No. 05-3624 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-21-07
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808 F.2d 1512
U.S.v.Melhem
84-1375
United States Court of Appeals,First Circuit.
10/27/86
1
D.Mass.
AFFIRMED
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01-03-2023
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08-23-2011
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58 N.Y.2d 722 (1982)
In the Matter of Austin Erwin, Appellant,
v.
Edward V. Regan, as Comptroller of the State of New York, Respondent.
Court of Appeals of the State of New York.
Decided December 8, 1982.
Frank H. Penski for appellant.
Robert Abrams, Attorney-General (Alan W. Rubenstein of counsel), for respondent.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge GABRIELLI.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 753).
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01-03-2023
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10-30-2013
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694 F.2d 200
UNITED STATES of America, Plaintiff-Appellee,v.Helga Marie ADAMS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Masaru SHINGAKI, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jeni MUMMERT, aka Jeni Proctor, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Raymond James PROCTOR, Defendant-Appellant.
Nos. 82-1121, 82-1139, 82-1179 and 82-1180.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 4, 1982.Decided Dec. 7, 1982.
Paul A. Tomar, Honolulu, Hawaii, for Adams.
No appearance for Shingaki.
Pamela J. Berman, Honolulu, Hawaii, for Mummert.
Earle A. Partington, Honolulu, Hawaii, for Proctor.
Kathleen A. Felton, Washington, D.C., for U.S.
Appeal from the United States District Court for the District of Hawaii.
Before CHOY, SNEED and FARRIS, Circuit Judges.
CHOY, Circuit Judge:
1
Appellants Adams, Shingaki, Mummert, and Proctor were convicted on various counts relating to receiving, shipping, and distributing obscene print media involving minors. All four appellants challenge their convictions on the ground that the district court improperly failed to suppress evidence obtained through a joint federal-state wiretap. Appellants Proctor, Shingaki, and Mummert also claim that the district court's failure to dismiss certain counts of the indictments against them violated the Speedy Trial Act. In addition, appellant Proctor contends that there was insufficient evidence to sustain a conviction against him on one of the counts. Finally, appellants Proctor and Mummert contest their sentences on the ground that the district court improperly refused to strike the testimony of a Government witness at the sentencing hearing or, alternatively, to recall the witness for cross-examination. We affirm the convictions and sentences of all appellants.
I. Wiretap Evidence
2
The evidence presented at trial included videotapes of meetings and tape recordings of telephone conversations between appellants and Darryl Cosme, a United States Customs Service agent who posed as a pornography distributor and who consented to the wiretap surveillance. Both federal and state law-enforcement officials participated in the interceptions and recordings of the meetings and conversations. Appellants concede that under 18 U.S.C. Sec. 2511(2)(c), the interceptions and recordings were lawful as consensual wiretaps. However, appellants argue that the interceptions and recordings were illegal under the law of the State of Hawaii and that, therefore, evidence obtained from these activities was not admissible in federal court.
3
We need not reach the issue of the legality of the interceptions and recordings under Hawaii law, for this circuit has established a clear and simple rule that evidence obtained from a consensual wiretap conforming to 18 U.S.C. Sec. 2511(2)(c) is admissible in federal court proceedings without regard to state law. United States v. Hall, 543 F.2d 1229, 1234-35 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Keen, 508 F.2d 986, 989 (9th Cir.1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975).* Since the interceptions and recordings that occurred here conformed to federal law, the district court did not err in admitting evidence obtained from these activities.
II. Speedy Trial Act
4
Appellants Proctor, Shingaki, and Mummert sought to dismiss five of the counts against each of them on the ground of undue delay. They invoked a provision of the Speedy Trial Act, 18 U.S.C. Sec. 3161(b). That provision mandates that any information or indictment charging an individual with the commission of an offense shall be filed within 30 days of the date of arrest in connection with that offense. Proctor, Shingaki, and Mummert were arrested by state officers on June 12, 1980. Because the investigation that led to their arrest was a joint federal-state investigation, appellants argue that the relevant time period for purposes of 18 U.S.C. Sec. 3161(b) should be deemed to run from the date of the state arrest to the date of the federal indictment.
5
We join a unanimous body of case law in other circuits in holding that regardless of the degree of federal involvement in a state investigation and arrest, only a federal arrest will trigger the running of the time period set forth in 18 U.S.C. Sec. 3161(b). E.g., United States v. Iaquinta, 674 F.2d 260, 264-69 (4th Cir.1982); United States v. Wilson, 657 F.2d 755, 767 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); United States v. Lai Ming Tanu, 589 F.2d 82, 88 (2d Cir.1978); United States v. Mejias, 552 F.2d 435, 441-42 (2d Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977). Proctor, Shingaki, and Mummert were arrested by federal authorities on August 7, 1981, the same day the federal indictment was filed. Since the indictment was filed before federal agents arrested appellants, the requirements of Sec. 3161(b) of the Speedy Trial Act were met and no undue delay occurred.
III. Sufficiency of Evidence
6
Appellant Proctor challenges the sufficiency of the evidence to support his conviction on Count XII of the indictment, shipping pornographic materials involving minors in interstate and foreign commerce and the mails, for purposes of distribution and sale, in violation of 18 U.S.C. Sec. 2252(a)(1). Contrary to Proctor's assertions, the conviction was not based solely on evidence of the lawful interception of a package of pornographic materials addressed to him; other evidence in the record also supports a conviction on this count. For example, there was evidence that several of the appellants, including Proctor, told agent Cosme that Proctor intended to distribute pornographic materials he had purchased in Europe. The record also shows that when his house was searched, Proctor admitted that he expected more pornographic materials in the mail. Therefore, the district court's finding that Proctor intended to distribute the intercepted materials was not speculative, and there was substantial evidence to support the conviction on that count.
IV. Sentencing Testimony
7
At a continuance of the sentencing hearing, appellants Proctor and Mummert moved to strike the earlier testimony of the Government's witness, Dr. Osanka, or, alternatively, to have the Government return Osanka for cross-examination. Appellants now contend that denial of this motion was a violation of their due process rights. This contention is without merit.
8
While a criminal defendant is entitled to due process in the sentencing procedure, the range of due process rights at sentencing is not as extensive as that at trial. Gardner v. Florida, 430 U.S. 349, 358, n. 9, 97 S.Ct. 1197, 1205, n. 9, 51 L.Ed.2d 393 (1977); United States v. Morgan, 595 F.2d 1134, 1136 (9th Cir. 1979). Proctor and Mummert were offered, but declined, an opportunity to cross-examine Dr. Osanka immediately following his testimony. Moreover, Proctor and Mummert presented their own witness, Dr. Wolfgang, to rebut Dr. Osanka's testimony. Under these conditions, the district court did not abuse its discretion in finding that appellants had been given an adequate opportunity to rebut Dr. Osanka's testimony and in refusing to strike the testimony or to recall Dr. Osanka for cross-examination.
9
For the reasons stated above, the convictions and sentences are AFFIRMED.
*
Appellants seek to distinguish Hall and Keen on the basis that only federal officers participated in the wiretaps at issue in those two cases, while here state officers assisted in the wiretap surveillance activities. This factual difference is irrelevant to the applicability of the doctrine articulated in Hall and Keen, which is based on the fundamental principle that the bounds of federal admissibility are not subject to determination by the state. Hall, 543 F.2d at 1235
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132 F.3d 1461
U.S.v.White*
NO. 97-2519
United States Court of Appeals,Eleventh Circuit.
Dec 18, 1997
Appeal From: N.D.Fla. ,No.96001023CRLAC
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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01-03-2023
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04-18-2012
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Error: Couldn't open file '/var/www/court-listener/alert/assets/media/pdf/2009/05/20/Confederated_Tribes_v._Hhs.pdf': No such file or directory.
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01-03-2023
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694 F.2d 489
Kenneth G. LLOYD, Plaintiff-Appellee,v.Irma LOEFFLER and Alvin F. Loeffler, Defendants-Appellants.
No. 82-1824.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 5, 1982.Decided Nov. 30, 1982.
Mark J. Rogers, Milwaukee, Wis., for defendants-appellants.
Carole S. Gailor, Raleigh, N.C., for plaintiff-appellee.
Before PELL, ESCHBACH and POSNER, Circuit Judges.
POSNER, Circuit Judge.
1
This is an appeal from a judgment in favor of the plaintiff in a diversity suit for tortious interference with the custody of a child. The child, Carol Lloyd, was born in 1978, in Washington, D.C., to Kenneth Lloyd, the plaintiff below and the appellee in this court, and Bonnie Loeffler, now Bonnie McMahan, who was named as a defendant but, for reasons that will appear, is not an appellant. Kenneth and Bonnie have never been married. In 1979 a Maryland state court awarded Kenneth custody of Carol in a contested proceeding but gave visitation rights to Bonnie who by then was married to Earl McMahan, also a defendant below but not an appellant in this court.
2
On July 20, 1979, the McMahans, ostensibly in the exercise of Bonnie's summer visitation rights, picked up Carol from Kenneth Lloyd's babysitter in Virginia (where Lloyd lived) to take her to Wisconsin to visit Bonnie's parents, the Loefflers, who were defendants below and are the appellants here. The McMahans were to return Carol to her father in Virginia on August 5, but when they arrived at the Loefflers' house they told the Loefflers they would never return the child to her father--and they never have. Apart from brief clandestine visits by the McMahans and Carol to the Loefflers' house in November 1979 and April 1980, the whereabouts of the three of them have been and are unknown. Kenneth Lloyd got a contempt judgment against Bonnie, and arrest warrants, from the Maryland state court that had issued the custody decree, and he has spent thousands of dollars on private detectives to locate the McMahans and Carol, but all to no avail.
3
In June 1980 Kenneth Lloyd brought this suit in a Wisconsin federal district court against the McMahans and the Loefflers. Lloyd is a citizen of Virginia and the Loefflers citizens of Wisconsin, but the domicile of the McMahans is uncertain; if it is Virginia, the "complete" diversity of citizenship required for jurisdiction under 28 U.S.C. Sec. 1332, see Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806), would be lacking. Until their abduction of Carol the McMahans were citizens of Maryland. Lloyd believes they are now living in Wisconsin because the Loefflers have received some correspondence from the McMahans postmarked Milwaukee.
4
We have found no case involving the question of the domicile for diversity purposes of a fugitive from justice. It seems absurd to hold that since a fugitive might be domiciled anywhere or maybe even nowhere (cf. Pannill v. Roanoke Times Co., 252 Fed. 910, 913-15 (W.D.Va.1918)), the act of becoming a fugitive puts a person beyond the jurisdiction of the federal courts. Probably the last domicile of the fugitive before he fled should be his domicile for diversity purposes. Cf. Gregg v. Louisiana Power & Light Co., 626 F.2d 1315 (5th Cir.1980). That would be Maryland in this case, and would not destroy diversity. This is a simple rule, and avoids rewarding the fugitive for his elusiveness. But in any event the probability that the McMahans were citizens of Virginia when this suit was filed is too slight to make us worry that there may not in fact be complete diversity.
5
After a bench trial, the district court, 539 F. Supp. 998, found that the McMahans and the Loefflers had committed a tort under the common law of Wisconsin by interfering with Kenneth Lloyd's custody of Carol. The Loefflers' liability was based on conspiracy. Aware at all times of the custody decree and of the fact that the McMahans were in contempt of it, the Loefflers helped the McMahans conceal the child's whereabouts from Kenneth. Among other things they let the McMahans give the Loefflers' address to the federal government, which owed the McMahans (former federal employees) refunds of their retirement contributions; and when the money arrived the Loefflers forwarded it to the McMahans without revealing the McMahans' whereabouts to Kenneth. The Loefflers testified that they tried to persuade the McMahans to return the child to Kenneth, but the district court found their testimony unconvincing and instead credited testimony that Mrs. Loeffler had told a detective: "just tell that son-of-a-bitch that he will never see that child again." Mrs. Loeffler admitted that she thought Kenneth "physically incapable of taking care of this child."
6
The district court awarded Kenneth $70,000 in compensatory damages for which all the defendants were to be jointly and severally liable and $25,000 in punitive damages for which the McMahans alone were to be liable because of their greater culpability. The judgment provides that the award of punitive damages is to grow by $2,000 every month until Carol is returned to her father's lawful custody. The McMahans entered no appearance in the district court or this court.
7
Before reaching the merits we must decide whether this suit is within the exception to the diversity jurisdiction for domestic relations matters, including disputes over who should have custody of a child. Recently two circuits have held that tort suits for interference with custody are not within the exception. See Wasserman v. Wasserman, 671 F.2d 832 (4th Cir.1982); Bennett v. Bennett, 682 F.2d 1039 (D.C.Cir.1982). A third has upheld a damage award in such a case without discussing jurisdiction. See Fenslage v. Daukins, 629 F.2d 1107 (5th Cir.1980). But it is a question of first impression in this circuit, though Daily v. Parker, 152 F.2d 174 (7th Cir.1945), could be likened to Fenslage. The short but perhaps incomplete answer to the question is that such cases do not involve an actual dispute over custody. The McMahans have not challenged the decree of the Maryland court awarding custody of Carol to Kenneth Lloyd; they have defied it. This answer would be conclusive if the McMahans and the Loefflers were strangers who had kidnapped Carol. But because Bonnie McMahan is Carol's mother and the Loefflers her maternal grandparents the abduction is in a sense a continuation of the custody fight that the Maryland court thought it had resolved when it awarded custody to Kenneth and visitation rights to Bonnie. Cf. 18 U.S.C. Sec. 1201(a) (the exception in the federal kidnapping statute for the kidnapping of a minor by a parent).
8
The usual account of the domestic relations exception, as of the probate exception discussed recently in Dragan v. Miller, 679 F.2d 712 (7th Cir.1982), is a historical one. The first judiciary act gave the federal courts diversity jurisdiction of "all suits of a civil nature at common law or in equity," Judiciary Act of 1789, ch. 20, Sec. 11, 1 Stat. 78 (simplified in the present diversity statute, but without change of meaning, see Reviser's Note to 28 U.S.C. Sec. 1332 (1976), to "all civil actions," 28 U.S.C. Sec. 1332(a)); and divorce, custody, and related matters were in England the province of the ecclesiastical courts (on which see 3 Blackstone, Commentaries on the Laws of England 87-103 (1768)) rather than of the common law and equity courts. The historical account is unconvincing. See Spindel v. Spindel, 283 F. Supp. 797, 802-03, 806-09 (E.D.N.Y.1968). It exaggerates the nicety with which the jurisdictional distinctions among the English courts were observed. Applied to this case, it overlooks the extensive custody jurisdiction of the Court of Wards and Liveries, a royal court distinct from the ecclesiastical courts. See Bell, An Introduction to the History and Records of the Court of Wards & Liveries 112-32 (1953). And it assumes without discussion that the proper referent is English rather than American practice, though if only because there was no ecclesiastical court in America American law and equity courts had a broader jurisdiction in family-law matters than their English counterparts had. Probably the reference to law and equity in the first judiciary act is mainly to English practice rather than to the diverse judicial systems of the colonies and states; but it would be odd if the jurisdiction of England's ecclesiastical courts, theocratic institutions unlikely to be well regarded in America, should have been thought to define the limits of the jurisdiction of the new federal courts.
9
The historical account would be of little assistance in this case even if it were sound. The tort of wrongful interference with a child's custody did not exist at the time the first judiciary act was passed, and it would strain our historical imagination to the breaking point to try to determine whether, had there been such a tort then in England, it would have been within the exclusive jurisdiction of the ecclesiastical courts.
10
However dubious and unhelpful its historical pedigree, the domestic relations exception is too well established to be questioned any longer by a lower court. See e.g., Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 512-14 (2d Cir.1973); Solomon v. Solomon, 516 F.2d 1018, 1021-26 (3d Cir.1975). This is so even though one might question, see Dragan, supra, 679 F.2d at 713, the suggestion in Rosenstiel, supra, 490 F.2d at 514, that a century of congressional silence constitutes legislative adoption of what was originally, and maybe still is today, a purely judge-made exception to the diversity jurisdiction. The boundaries of the exception are uncertain, however; and to fix them we must consider what contemporary function the exception might be thought to serve.
11
At its core are certain types of cases, well illustrated by divorce, that the federal courts are not, as a matter of fact, competent tribunals to handle. The typical divorce decree provides for alimony payable in installments until the wife remarries, and if there are children it will provide for custody, visitation rights, and child support payments as well. These remedies--alimony, custody, visitation, and child support--often entail continuing judicial supervision of a volatile family situation. The federal courts are not well suited to this task. They are not local institutions, they do not have staffs of social workers, and there is too little commonality between family law adjudication and the normal responsibilities of federal judges to give them the experience they would need to be able to resolve domestic disputes with skill and sensitivity.
12
The present case, a tort suit that does not--not overtly anyway--seek one of the distinctive remedies provided by family courts, is not within the core of the domestic relations exception as we have described it. But there is also a periphery to be considered. When a case must begin in state court, as a divorce or custody case must, retention of any ancillary litigation in the same court is supported by considerations of judicial economy, and also by considerations of relative expertness since the issues in an ancillary proceeding may be the same as those in cases that are within the core of the domestic relations exception and hence within the exclusive jurisdiction of the state courts. Cf. Dragan, supra, 679 F.2d at 714-15. In this vein Judge Friendly suggested in Rosenstiel that if the plaintiff had been seeking attorney's fees for work performed in connection with his client's divorce action the federal court should have declined jurisdiction. See 490 F.2d at 515.
13
The concept of ancillarity may explain decisions which hold that actions to enforce an alimony or custody decree are outside the diversity jurisdiction if the decree remains subject to modification by the court that entered it, see Morris v. Morris, 273 F.2d 678, 681-82 (7th Cir.1960); Hernstadt v. Hernstadt, 373 F.2d 316 (2d Cir.1967); Sutter v. Pitts, 639 F.2d 842 (1st Cir.1981), though it is true that in such cases the risk of inconsistent state and federal decrees is substantial and presents an even stronger reason than judicial economy for federal abstention. At the other extreme is Crouch v. Crouch, 566 F.2d 486 (5th Cir.1978), where the federal court was asked simply to enforce the monetary provisions of a separation agreement between persons long divorced. There the connection with the original matrimonial action was tenuous, the danger of inconsistent decrees trivial. Alimony decrees that have become final are sometimes enforced in diversity cases on similar grounds. See 13 Wright, Miller & Cooper, Federal Practice and Procedure Sec. 3609 at pp. 673-74 (1975). But Rosenstiel suggests, sensibly in our view, that the question is not only whether the exercise of federal jurisdiction will create a potential for inconsistent decrees but also whether it will result in piecemeal, duplicative, or inexpert handling of what is substantially a single controversy.
14
On this analysis, if under Maryland law a tort action arising out of a custody decree had to be tried in a proceeding ancillary to the custody proceeding, this would be a strong argument against federal jurisdiction. Cf. Dragan, supra, 679 F.2d at 716. But though we have found no Maryland case dealing with the tort of wrongful interference with custody, it is clear that such a case if it arose would be litigated as an independent civil action and not as an appendix to the custody proceeding, which is strictly equitable. See Md.Code Sec. 3-602(a), as interpreted in Kapneck v. Kapneck, 31 Md.App. 410, 356 A.2d 572 (1976). In addition, of course, a Maryland court might not be able to obtain personal jurisdiction over the Loefflers, even though the new federal Parental Kidnapping Prevention Act of 1980, codified in 18 U.S.C. Sec. 1073, 28 U.S.C. Sec. 1738A, and 42 U.S.C. Sec. 663, makes it easier for states to enforce their state custody decrees against parental abductors who cross state lines. Incidentally, by declining to create federal judicial remedies for parental abductions, the Act confirms the primacy of the states in custody matters. But it cannot we think be read to express a federal policy against the exercise of federal jurisdiction in a case such as this if the ordinary requirements of diversity jurisdiction are satisfied.
15
There is thus no issue of judicial economy here. The choice is not between one Maryland action and two actions--the custody action in Maryland and a tort action in a state or federal court in Wisconsin--but between a tort action in a Wisconsin state court and this suit in a federal district court in Wisconsin. And since the Loefflers do not contest the validity of the Maryland custody decree, the tort issues in this case are not entangled with issues that only state courts are competent to resolve. The federal court is being asked to decide not who should have custody over Carol but only whether the McMahans and the Loefflers have violated or (in the case of the Loefflers) conspired to violate the custody decree by taking Carol away from her father, and if so what damages he has suffered. The resolution of these issues requires no special experience with the business of domestic relations courts; the requisite empathy, if any is required, is possessed by any parent. Finally, this is not a case like Rosenstiel where the plaintiff's invocation of the diversity jurisdiction has no basis in the concern with prejudice to out-of-state litigants that underlies that jurisdiction. The plaintiff is not a resident of Wisconsin, where the case was tried; the Loefflers, the only appearing defendants, are Wisconsin residents.
16
One feature of the decree, though, raises a serious question under the domestic relations exception: the provision that makes the award of punitive damages against the McMahans grow by $2,000 a month until they restore Carol to Kenneth Lloyd's lawful custody. That provision may not, strictly speaking, be before us since the only people who could complain about it, the McMahans, are not before us. But to pass over it in silence might leave the impression that there are no problems with the district court's jurisdiction to issue such a decree, and there are; and as they may affect a child's welfare we shall discuss them.
17
In a case of a continuing tort a variable award of punitive damages, though unprecedented so far as we are able to determine and seemingly not contemplated by the Federal Rules of Civil Procedure, see Rule 58, is perfectly logical; the enormity of the wrong that the McMahans have committed against Kenneth Lloyd grows with every day that they fail to return Carol to his custody. But the variable award is also the practical equivalent of an injunction ordering the McMahans to return Carol. It is as if the district court had issued an injunction, the McMahans had disobeyed it, and the court had then found them in civil contempt of its decree and ordered them to pay the plaintiff $2,000 a month until they complied. Of course there was no injunction and no finding of contempt and perhaps that is reason enough to doubt the propriety of the relief. But in any event it would seem that, before entering the kind of judgment it did, the district court should have considered whether it had the power to enjoin the McMahans directly.
18
An affirmative answer would produce a collision with the recent decision of the District of Columbia Circuit in Bennett v. Bennett, supra. The court allowed the plaintiff in a tortious interference with custody suit to obtain damages but held that the grant of an injunction directing that the child be returned to the plaintiff was barred by the domestic relations exception to the diversity jurisdiction. The court was concerned that enforcing such an injunction would be the equivalent of issuing a custody decree. The basis of its concern is illustrated by the facts of the present case. It is three years since Carol was abducted. She is now four and a half years old. She probably does not remember her father. No matter how egregiously the McMahans have behaved, it might be a terrible thing today to wrench Carol from their custody and return her to her father--and all the more terrible at some hypothetical future date when the McMahans, finally intimidated by the mounting costs of their contumacy, as the district court intended they be intimidated, surrender Carol. The district court can try to compensate Kenneth Lloyd for his loss. But to put pressure on the McMahans to return the child, by means of an escalating damage award bearing no necessary relationship to Kenneth's loss, is implicitly to answer the question who should have custody of Carol today. True, the escalating damage award is contingent on Kenneth's retaining lawful custody of Carol, so it is open to the McMahans to go back to the Maryland court and ask for a modification of the decree in light of changed circumstances--the growing attachment, as we may assume, of Carol to her mother and her mother's husband. But this would be a costly option for the McMahans to pursue; every month that passed while the Maryland court was deciding whether to modify the decree would cost them another $2,000.
19
Against all this it may be said that so long as Kenneth is free to bring fresh suits against the Loefflers and the McMahans for damages incurred by him after the date of the judgment below, the same financial pressure will be brought to bear on the McMahans to return the child regardless of what is best for her. But it will not be quite the same. We do not know whether Kenneth will bring another suit, or if he does whether he will be able to prove substantial damages beyond what he has already incurred. If there is another suit, we do not know whether the McMahans will again be joined as defendants along with the Loefflers, and if they are whether Kenneth will try to collect any part of the judgment from the McMahans, assuming that they and the Loefflers are held to be jointly and severally liable for that judgment as they were for the compensatory damages awarded in this case. So there is a difference, and though it is one of degree rather than of kind it is sufficient in our judgment to raise a substantial question whether the escalating punitive damage award in the district court's decree was within the court's subject-matter jurisdiction. As no party to this appeal is challenging this portion of the decree we doubt that we have the power to vacate it, but we should not like our affirmance of the judgment to be interpreted as approval of the decree in its entirety.
20
Still another threshold issue in this case is choice of law. The court below held that the applicable substantive law was that of Wisconsin. The only basis it gave for this conclusion was a citation to Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). But Erie did not hold, as the district court's citation may seem to imply, that in common law diversity cases the substantive law to be applied is that of the state in which the case is tried. On the contrary, Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S. Ct. 1020, 1021-22, 85 L. Ed. 1477 (1941), deduced from Erie that the proper choice of law rule to apply in a diversity suit is the rule of the forum state. The district court should have determined whether under Wisconsin conflict of laws principles the substantive law applicable to this case is that of Wisconsin or that of some other state, such as Maryland where the custody decree was issued, or Virginia where Lloyd resides and where the tort might be said to have occurred if the McMahans formed the intent not to return Carol before they picked her up from the babysitter. There is no indication that the district court made such a determination.
21
In a supplementary brief the Loefflers argue that Maryland rather than Wisconsin substantive law should be applied under Wisconsin's choice of law rules. But they did not raise this issue in their main brief or even, it appears, in the district court. At the oral argument of this appeal both counsel stated that the parties had stipulated in the district court that Wisconsin substantive law applied to the case, and though we do not find a written stipulation in the record we cannot see what difference it makes whether it is written or oral. So there is no conflict of laws issue before us unless the issue goes to our subject-matter jurisdiction.
22
We hesitate to say that a conflicts question never can affect jurisdiction. If the parties had stipulated that the substantive law to be applied was the Code of Hammurabi, we think the district court should have said that it did not have the power to render a decision on that basis. Such a decision could not have any value as precedent, and the production of precedents is a major function of judicial decision-making. Stipulations of law, as distinct from fact, thwart that function; maybe that is why they have no binding force. See, e.g., Sanford's Estate v. Commissioner of Internal Revenue, 308 U.S. 39, 51, 60 S. Ct. 51, 59, 84 L. Ed. 20 (1939). But reasonable stipulations of choice of law are honored in contract cases, see Weintraub, Commentary on the Conflict of Laws 355-56 (2d ed. 1980), and we do not see why the same principle should not apply in tort cases, though the issue has not to our knowledge arisen in such a case. There is no necessary inconsistency between this principle and cases like Sanford's Estate. A court has an interest as we have said in applying a body of law that is in force somewhere, but less interest in which such body of law to apply.
23
The stipulation of Wisconsin law was reasonable here--indeed, if the parties, rather than so stipulating, had not raised any choice of law issue, and had litigated the case under Wisconsin law, that would have been proper. An implicit rule of Wisconsin conflicts law is that in the absence of objection the substantive law to be applied to a suit tried in a Wisconsin state court is that of Wisconsin. Central Soya Co. v. Epstein Fisheries, Inc., 676 F.2d 939, 941 (7th Cir.1982); cf. Electronic Associates, Inc. v. Automatic Equipment Development Corp., 440 A.2d 249, 251 n. 3 (Conn.1981). Klaxon makes this rule equally applicable to suits brought in federal court in Wisconsin under the diversity jurisdiction. Central Soya Co., supra, 676 F.2d at 941.
24
We arrive finally at the merits, where the principal issue is whether Wisconsin recognizes the tort of wrongful interference with a child's custody--more precisely, whether it would recognize it if the question arose in a Wisconsin state court case, as it has not yet done. The appellants pitch their whole case that Wisconsin would not recognize such a tort on In re Pierce, 44 Wis. 411 (1878). Pierce had been divorced from her husband, and custody of their child had been awarded to him. She abducted the child, was imprisoned for contempt of the decree, and petitioned for habeas corpus. The court believed that she could not properly be adjudged in contempt unless her conduct had caused "a loss or injury which would entitle the injured party [her husband] to maintain an action against the offender to recover damages for his misconduct," id. at 424, and the court thought her husband could not maintain such an action because a father's status under a divorce and custody decree "is not that of father and child, nor yet that of master and servant. It is more nearly like that of guardian of the person and ward. In that relation the guardian is not entitled to the services of the ward." Id. at 425. Portions of In re Pierce have been overruled, see Emerson v. Huss, 127 Wis. 215, 226, 106 N.W. 518, 522 (1906); Larson v. State ex rel. Bennett, 221 Wis. 188, 194, 266 N.W. 170, 173 (1936), but not the analysis of the father's right to maintain a damage action for the abduction of a child.
25
Nevertheless, we are pretty confident it would not be followed today. The analysis assumes that a parent can complain about a child's being disabled (or what amounts to the same thing, abducted) only if the parent has lost money in the quite literal sense that the child's earnings, which at common law belong to the parents during the child's minority, are impaired. That was the common law rule when In re Pierce was decided. See, e.g., Callies v. Reliance Laundry Co., 188 Wis. 376, 380, 206 N.W. 198, 200 (1925). Since a father who had custody under a divorce decree had no right to the child's earnings--unlike a married parent but like a guardian--he had no basis for maintaining a damage action against the abductor. This is the entire premise of In re Pierce so far as is relevant to this case and it was destroyed in 1975 when the Supreme Court of Wisconsin, in Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975), overruled Callies and held that parents are entitled to recover damages for loss of the companionship of a minor child who has been injured by someone's negligence. The fact that as in Pierce there is no pecuniary loss is now irrelevant under Wisconsin law.
26
Pierce is therefore no obstacle to Wisconsin's recognizing a tort of wrongful interference with a child's custody; and Shockley fairly requires such recognition, for it can make no logical or practical difference, so far as a parent's action for loss of companionship is concerned, whether the child is physically injured by a third party's negligence or abducted by the third party. At least this is clear where the abductor is a stranger rather than, as is more common, a relative. Although these two cases are not identical, those states that recognize a tort of wrongful interference with custody make no distinction based on the relationship between the abductor and the child, provided of course that the abductor does not have lawful custody of the child. See, e.g., McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978); Kipper v. Vokolek, 546 S.W.2d 521 (Mo.App.1977); Restatement of Torts (Second) Sec. 700 (1981). As no other state has made such a distinction we think it unlikely that Wisconsin would. The only question therefore is whether it would draw the line at physical injury and refuse to recognize any tort liability for abduction even though the effect on the parent's interest in the companionship of the child is the same. This would be an arbitrary distinction, and we doubt very much that Wisconsin would make it. We know of no state that, having swallowed the camel of allowing parents to sue for intangible loss of companionship as well as pecuniary loss, has strained at the gnat of allowing that loss to be recovered when it is caused by abduction rather than by physical injury. Moreover, since abductions are always deliberate and physical injuries usually, as in Shockley, merely negligent, it would be anomalous to allow liability only in the latter case. Consistently with this distinction, California allows it only in the former. See Baxter v. Superior Ct. of Los Angeles Cty., 19 Cal. 3d 461, 466 and n. 3, 138 Cal. Rptr. 315, 318 and n. 3, 563 P.2d 871, 874 and n. 3 (1977).
27
The Loefflers argue, finally, that even if Wisconsin would recognize a tort of wrongful interference with a child's custody, their role in the abduction by the McMahans was too small to make them guilty of conspiracy. This argument raises only an evidentiary issue, which the district court resolved against them, and we cannot say that its finding was clearly erroneous. Without the active cooperation of the Loefflers the McMahans would have found it much more expensive to conceal Carol's whereabouts, as the McMahans would have been afraid to give their address to any creditor lest Kenneth Lloyd's detectives get hold of it and track them down. The Loefflers, fully aware of, and we may infer from the "son of a bitch" remark sharing, the McMahans' purpose of concealing Carol, provided them with a discreet mail drop and other assistance.
28
It is true, as we observed in a recent case, that conspiracy has a somewhat anomalous status under tort law, since a tort, to be actionable, requires that an injury actually be suffered, while conspiracies are no less unlawful for being nipped in the bud. See Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.1982). But that observation has no relevance where the conspiracy achieves its object, as it did here. The purpose of the conspiracy concept in such a case is not to punish merely preparatory conduct--a more suitable function for criminal law than for tort law--but to identify the tortfeasors. By helping the McMahans conceal Carol the Loefflers became joint tortfeasors in the original sense of the term. See, e.g., Brown v. Brown, 338 Mich. 492, 503-04, 61 N.W.2d 656, 661-62 (1953); Prosser, Handbook of the Law of Torts 291 (4th ed. 1971).
29
AFFIRMED.
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694 F.2d 717
McNeilv.Dupree
82-6562
UNITED STATES COURT OF APPEALS Fourth Circuit
11/4/82
1
E.D.N.C.
DISMISSED
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08-23-2011
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58 N.Y.2d 952 (1983)
In the Matter of Ottavio Fanelli, Appellant,
v.
New York City Conciliation and Appeals Board, Respondent, and William R. Biery, Intervenor-Respondent.
Court of Appeals of the State of New York.
Decided February 23, 1983.
George A. Burrell for appellant.
Ellis S. Franke and Mary Ellen Cronly for respondent.
Michael R. Finder for intervenor-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 756).
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10-30-2013
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947 N.E.2d 771 (2011)
PEOPLE State of Illinois, respondent,
v.
Dennis McGRUDER, petitioner.
No. 108926.
Supreme Court of Illinois.
May 25, 2011.
In the exercise of this Court's supervisory authority, the Appellate Court, First District, is directed to vacate its order in People v. McGruder, case No. 1-07-2569 (06/17/09). The Appellate Court is instructed to reconsider its decision in light of People v. Morris, 236 Ill. 2d 345, 338 *772 Ill.Dec. 863, 925 N.E.2d 1069 (2010), to determine whether a different result is warranted.
THEIS, J., took no part.
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58 N.Y.2d 817 (1983)
In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for a Project Known as College Point Industrial Park, Urban Renewal Project II. Peter Reiss et al., Respondents.
Court of Appeals of the State of New York.
Decided January 18, 1983.
Frederick A. O. Schwarz, Jr., Corporation Counsel (Peter A. Mound of counsel), for appellant.
Ignatius John Mileto and Michael J. Greco for respondents.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge 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. The findings of the Appellate Division more nearly comport with the weight of the evidence.
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726 S.E.2d 181 (2012)
STATE of North Carolina
v.
Victor Jerome WADE and Roderick Jermaine Young.
No. 357P11.
Supreme Court of North Carolina.
June 13, 2012.
Kevin P. Bradley, Durham, for Young, Roderick Jermaine.
Dahr Joseph Tanoury, Assistant Attorney General, for State of N.C.
Daniel F. Read, Durham, for Wade, Victor Jerome.
Rick Shaffer, District Attorney, for State of N.C.
ORDER
Upon consideration of the petition filed on the 23rd of August 2011 by Defendant (Roderick Jermaine Young) 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 13th of June 2012."
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644 F.3d 1096 (2011)
Lynn McDONALD-CUBA, Plaintiff-Counter-Defendant-Appellant,
v.
SANTA FE PROTECTIVE SERVICES, INC., Defendant-Counter-Claimant-Appellee.
No. 10-2151.
United States Court of Appeals, Tenth Circuit.
May 9, 2011.
*1098 Submitted on the briefs:[*]
Bryan G. Davis, William G. Gilchrist, IV, Albuquerque, NM, for Plaintiff-Counter-Defendant-Appellant.
David A. Garcia, Mickey D. Barnett, Albuquerque, NM, for Defendant-Counter-Claimant-Appellee.
Before O'BRIEN, ANDERSON, and TACHA, Circuit Judges.
ANDERSON, Circuit Judge.
Lynn McDonald-Cuba brought this action against her former employer, Santa Fe Protective Services, Inc. (SFPS), seeking damages for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and New Mexico state law. SFPS responded with counterclaims for breach of contract, intentional interference with prospective economic advantage, and breach of the duty of loyalty. SFPS later voluntarily dismissed these counterclaims. The district court then granted summary judgment in favor of SFPS on McDonald-Cuba's discrimination and retaliation claims. She appeals, we have jurisdiction, see 28 U.S.C. § 1291, and we affirm in part and remand in part with instructions to dismiss in part for lack of subject matter jurisdiction.
BACKGROUND
SFPS provides security services and obtains this work through competitive bidding. It employed McDonald-Cuba from February 9, 2005 until December 7, 2007. She performed clerical and accounting work for SFPS.
McDonald-Cuba's starting salary at SFPS was $30 per hour, without benefits. By September 2005, SFPS had offered her a full-time position as a financial accounting manager, for which she was paid an annual starting salary of $58,000, plus medical benefits.
In April 2006, McDonald-Cuba married Terry Cuba, SFPS's Chief Operating Officer. Since medical insurance was now available through her husband, she declined the medical benefits SFPS offered. She then persuaded SFPS's president to compensate her for the value it had previously been paying toward her unused medical insurance. Reflecting this agreement, SFPS gave McDonald-Cuba what amounted to a thirteen percent salary increase in 2006, which included five percent for a performance increase and another eight percent equal to SFPS's portion of her health insurance cost.
SFPS continued to provide McDonald-Cuba with favorable treatment. In December 2006, she received a $2,000 bonus. Also, at her request, SFPS permitted her to work four ten-hour days per week instead of the typical five eight-hour days. Though she was classified as a salaried manager, she was required to work only a forty-hour work week.
McDonald-Cuba nevertheless began complaining that SFPS was discriminating against her and other female supervisors. In particular, she contended that female supervisory employees at SFPS were improperly classified as "managers" rather than "directors." In February 2007, to appease her, SFPS's president Christina Maki promoted McDonald-Cuba to the position of Director of Accounting and Finance, at an annual salary of $69,789.
At the time of this promotion, five other management employees worked full time at SFPS's corporate headquarters. Three of them were classified as directors. Each *1099 of these directors were paid less than McDonald-Cuba, in some cases substantially less. Only Maki and Cuba were paid a higher salary than McDonald-Cuba.
Director Mark Liming, for example, SFPS's Director of Business Development, was paid $60,000 in salary and received a bonus of $3,500 in December 2006. For this, he worked over sixty hours per week, including nights and weekends. His job duties included hiring, disciplining, and terminating employees. McDonald-Cuba's duties, by contrast, were largely clerical.
McDonald-Cuba alleged that in November 2007 she registered another complaint about discrimination at SFPS. Maki had told her in March 2007 that no management employee at SFPS would receive more than a six percent salary increase that year. But Liming and another male director did receive salary increases that exceeded six percent. Maki explained that the reason for this was that these male directors (who made less than McDonald-Cuba) had not received salary increases in earlier years. McDonald-Cuba told a fellow employee that she was going to write to Maki about her concerns regarding the higher salary increases for these two male directors. Though she did not actually complain to Maki, she alleged that the fellow employee reported her intention to do so to Maki, shortly before SFPS fired McDonald-Cuba.
In the meantime, in May 2007 Terry Cuba resigned from SFPS. In June 2007, McDonald-Cuba and Cuba formed a company called Brahma Defense Enterprises, LLC (Brahma). McDonald-Cuba contends that Brahma did not directly compete with SFPS. It is notable, however, that in connection with its registration on the Central Contracting Registry (CCR), a database for government contractors, Brahma identified one of its business functions using North American Industry Classification System (NAICS) code 561612, "Security Guards and Patrol Services," one of the same codes used by SFPS. Aplt. App. at 134. Also, Brahma was identified as a woman- and minority-owned business, that could compete with SFPS for contracts.
Maki learned of Brahma's current CCR registration status, and the NAICS code, in early December 2007. Prior to that time, although she knew that McDonald-Cuba and her husband had started a business, Maki testified she believed the business was only "a consulting company for unions," and did not understand that it also was registered as performing security guard services. Id. at 152.
Maki believed this registration represented "a huge conflict of interest." Id. at 151. She testified to her belief that both McDonald-Cuba and Terry Cuba "misled us to believe that they had a company doing consulting work strictly for unions, and that [Cuba] was getting out of the security field." Id. at 153.
Two days after her discovery of Brahma's CCR registration status, Maki terminated McDonald-Cuba's employment. In addition to her concern that McDonald-Cuba had misled her, Maki believed that "the confidential information that [McDonald-Cuba] had, she could have given to [Cuba], which he could have given to [Brahma], and used that towards their advantage." Id. at 156.
After pursuing administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) and receiving a right-to-sue letter from the EEOC, McDonald-Cuba brought this suit, charging that SFPS discriminated and unlawfully retaliated against her by (1) giving male employees a higher annual pay increase than the six percent she received; (2) terminating her employment; and (3) making false statements about her alleged *1100 conflict of interest and termination from employment with SFPS to third parties, including the New Mexico Department of Workforce Solutions. SFPS responded by filing an answer containing counterclaims for breach of contract, intentional interference with prospective economic advantage, and breach of the duty of loyalty. McDonald-Cuba then filed a first amended and supplemental complaint in which she alleged that SFPS had brought and pursued its counterclaim in a bad faith effort to retaliate against her for her protected activity.
ANALYSIS
1. Standard of Review
"We review the grant of summary judgment de novo, applying the same standard as the district court. . . ." Gwinn v. Awmiller, 354 F.3d 1211, 1215 (10th Cir. 2004). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). We view the record on summary judgment "in the light most favorable to the nonmoving party." Gwinn, 354 F.3d at 1215.
McDonald-Cuba raises two issues on appeal. First, she contends that the district court improperly granted summary judgment on her claims premised on post-employment retaliation. Second, she argues that the district court improperly granted summary judgment on her retaliatory/discriminatory termination claim.
2. Post-Employment Retaliation Claims
A. SFPS's Counterclaims
In her amended and supplemental complaint, McDonald-Cuba raised a claim that SFPS retaliated against her by filing its counterclaims in this action. She did not file a new or amended charge of discrimination with the EEOC prior to asserting this claim.
In Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir.2003), we held that conduct occurring after the filing of an employee's Title VII complaint in federal court involving "discrete and independent [retaliatory] actions" requires the filing of a new EEOC charge. The employee in that case was fired after he filed his Title VII complaint in district court, complaining of prior acts of alleged retaliation. He attempted to add a claim for retaliation based on the firing by including it in his summary judgment brief, but he did not exhaust this new claim before the EEOC and did not move to amend his complaint to include it. We upheld the district court's grant of summary judgment, reasoning that the firing was a "discrete and independent action[]" that should have been exhausted, even though it "occurred after the filing of the judicial complaint." Id. at 1211 (applying exhaustion requirement for discrete and independent retaliatory acts expounded in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110-14, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)).
The question here is whether the rule in Martinez applies when the alleged retaliatory act occurs as part of the federal court proceedings themselves.[1] It is undeniable *1101 that a principal purpose of the exhaustion requirement is to permit the parties to resolve their dispute without resort to litigation. "[R]equiring exhaustion of administrative remedies serves to put an employer on notice of a violation prior to the commencement of judicial proceedings. This in turn serves to facilitate internal resolution of the issue rather than promoting costly and time-consuming litigation." Martinez, 347 F.3d at 1211 (emphasis added).
Martinez nevertheless applied the exhaustion requirement to alleged retaliation that occurred after the plaintiff had commenced judicial proceedings. See id. The fact that the plaintiff had already resorted to litigation did not excuse the exhaustion requirement for later, discrete acts of retaliation. The only significant difference between Martinezwhich we are required to follow as binding circuit precedentand this case is that here the alleged retaliatory act involves an action taken in connection with federal proceedings themselves. McDonald-Cuba fails to supply a convincing rationale for distinguishing Martinez on this basis, however. We conclude that a plaintiff must exhaust administrative remedies as to discrete acts of alleged retaliation that involve the filing of a counterclaim in federal court.
McDonald-Cuba's post-termination retaliation claim based on SFPS's filing of a counterclaim, then, falls within our general rule that exhaustion of administrative remedies is a jurisdictional prerequisite to a Title VII suit. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005). Federal courts "lack jurisdiction to review Title VII claims that are not part of a timely-filed EEOC charge." Annett v. Univ. of Ks., 371 F.3d 1233, 1238 (10th Cir.2004). Accordingly, we remand with instructions to the district court to dismiss this claim without prejudice for failure to exhaust administrative remedies.
B. Unemployment Proceedings Claim
We also affirm the grant of summary judgment on McDonald-Cuba's claim that "SFPS made untrue statements to third parties, including the New Mexico Department of Workforce Solutions, about Plaintiff regarding her supposed conflict of interest and termination from employment with SFPS[.]" Aplt.App. at 98, ¶ 27. In her complaint, McDonald-Cuba complained that "SFPS made [retaliatory] statements about Plaintiff in a bad faith effort to retaliate against Plaintiff for her participation in protected activity." See id. ¶ 28. She failed to specifically identify the protected activity that sparked the alleged retaliation.
The district court appears to have relied on her pre-termination activities and to have concluded that they were too temporally removed from SFPS's opposition to support a retaliation claim. We need not decide whether this analysis is correct or whether summary judgment was properly granted sua sponte on this basis. On appeal McDonald-Cuba has clarified matters by abandoning reliance on her pre-termination activities. In her opening brief in this court, she specifically identifies three forms of protected activity for which SFPS allegedly retaliated by its post-employment actions: "filing a post-employment EEOC charge, seeking unemployment compensation benefits, and filing her Title VII lawsuit." Aplt. Opening Br. at 20.
Neither the filing of her EEOC charge nor her filing of this suit can serve as protected activity for purposes of her retaliation claim, however, because neither of those activities occurred before she filed the EEOC charge mentioned in her complaint (No. 543-2008-00260). Had SFPS retaliated for either of these actions by opposing her application for unemployment benefits, McDonald-Cuba would have been obliged to file a second EEOC *1102 charge complaining of such retaliation in order to exhaust her retaliation claim. Nothing in her complaint, the record, or her submissions to this court indicates that she did so. See Celli v. Shoell, 40 F.3d 324, 327 (10th Cir.1994) ("Federal courts are courts of limited jurisdiction, and the presumption is that they lack jurisdiction unless and until a plaintiff pleads sufficient facts to establish it.").
That leaves her third alleged form of protected activity: the filing of her claim for unemployment benefits. While she could potentially have exhausted a retaliation claim based on this activity as part of her EEOC chargeif both her unemployment benefits claim and SFPS's opposition took place before she filed the charge this allegation fails because it presents no protected activity in opposition to discrimination. "Protected activity" consists of activity opposing or complaining about discrimination by the employer based on race, color, religion, gender, or national origin. See 42 U.S.C. § 2000e-2. While we have recognized that an employer's opposition to an unemployment benefits claim may represent an adverse employment action, see Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090-91 (10th Cir.2007), McDonald-Cuba fails to cite any authority recognizing an application for unemployment benefits, without more, as a form of protected activity under Title VII.
McDonald-Cuba's retaliation claim therefore fails as a matter of law. She has identified no protected activity that could form the basis for a properly-exhausted retaliation claim.
3. Termination Claim
McDonald-Cuba also asserts a claim that SFPS discriminated and retaliated against her by firing her. We analyze this claim using the burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Under the McDonnell Douglas approach, the plaintiff must first establish a prima facie case of discrimination or retaliation. Johnson v. Weld County, Colo., 594 F.3d 1202, 1210-11 (10th Cir.2010). In response, "the defendant then must articulate a legitimate, non-discriminatory [or non-retaliatory] reason for the adverse employment action." Id. at 1211. At that point, "the burden then shifts back to the plaintiff, who must prove by a preponderance of the evidence that the employer's reasons are a pretext for unlawful discrimination" or retaliation. Id.
We will assume that McDonald-Cuba established her prima facie case. In response, SFPS asserted that it fired her because "she had an undisclosed majority ownership interest in a company able to compete with SFPS." Aplee. Br. at 15. The burden then shifted back to McDonald-Cuba to show that this reason was pretextual, by presenting evidence of "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir. 2005) (quotation omitted).
A. Maki's Prior Knowledge
McDonald-Cuba contends that SFPS's reason for firing her is unworthy of belief because "Ms. Maki already had some knowledge regarding Brahma's existence and operations prior to terminating" her employment. Aplt. Opening Br. at 30. She contends she told Maki about Brahma's security and labor relation consulting between May and December 2007 and *1103 points out that SFPS even hired Brahma to consult on bidding for a contract in the Fall of 2007, prior to her termination. Thus, Maki could not have believed Brahma was only doing consulting work for unions. None of this, however, demonstrates that Maki knew that Brahma had registered with CCR to provide security services (as opposed to merely consulting about security) as a minority, female-owned business until just prior to terminating McDonald-Cuba's employment. The undisputed evidence shows that Maki fired McDonald-Cuba within two days of discovering Brahma's competing CCR registration with its identical NAICS code.
In her affidavit, McDonald-Cuba asserted that notwithstanding the information on the printout, "Brahma was not [going after], and has never gone after the same contracts as SFPS" and in conclusory fashion maintained that "Brahma's selection of NAICS code 561612 on [the CCR] report did not mean that it was providing security guard and patrol services." Aplt.App. at 228. She contends that factual issues remain concerning whether Maki's belief that Brahma was a potential competitor was "reasonable." Aplt. Opening Br. at 30. But that is not the test. "The relevant inquiry is not whether the employer's proffered reasons were wise, fair, or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs." Rivera v. City & County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (brackets omitted). Maki testified that when she learned of the CCR she "thought that it was a huge conflict of interest." Aplt.App. at 151. She felt that McDonald-Cuba had "started a company that was in direct competition with me behind my back." Id. at 152. McDonald-Cuba fails to show that Maki did not honestly believe these reasons or that she did not act in good faith upon her beliefs when she fired McDonald-Cuba for operating a competing business.
B. Liming's Conflict of Interest
McDonald-Cuba further asserts that she demonstrated pretext because similarly-situated male employees also had conflicts of interest with SFPS but were not fired for them. Director Mark Liming, for example, held a New Mexico "resident manager" license for four other private patrol companies in 2007. McDonald-Cuba contends that these companies are SFPS's competitors and that Liming's actions therefore violated SFPS's Conflict of Interest Policy. She argues that SFPS's justifications were pretextual because Liming was not disciplined or terminated for violating the Conflict of Interest Policy as she was.
The evidence shows that Liming was not similarly situated to McDonald-Cuba and the differential treatment he allegedly received therefore does not demonstrate pretext. First, Liming fully disclosed his activities regarding the licenses to SFPS before he became employed at SFPS. Id. at 273 (Liming depo. at 147-48). Although he received $200 per month as a stipend for performing this service from three of the companies involved, neither Terry Cuba nor Maki felt his holding the licenses was a problem. Id. at 277. Second, Liming explained that a "resident manager" merely acts as a sort of "registered agent" for out-of-state patrol companies. This does not rise to the level of starting and owning a competing business, as Maki believed McDonald-Cuba had done.
In response, McDonald-Cuba contends that she also disclosed her activities at Brahma to SFPS and Maki had no problems with them, at least not initially. See id. at 228. The problem arose later, when Maki discovered the CCR printout and what it suggested about the nature and scope of McDonald-Cuba's business. McDonald-Cuba *1104 contends that a similar printout existed regarding Liming.
As noted, Liming identified himself to SFPS as a "resident manager" for four out-of-state companies. A resident manager serves only as a point of contact on behalf of an out-of-state security company that does business in New Mexico. Id. at 272 (Liming depo. at 135). But McDonald-Cuba points to a state-generated printout identifying Liming as a Private Patrol Operations Manager, or "PPO Manager." Id. at 242. She asserts that under New Mexico law, a PPO Manager has much greater responsibilities than a "resident manager." A PPO manager is responsible for "operation, direction, control and management of [a] private patrol company" in cases where the company's owner is "not licensed as a [PPO] or registered as a level three security guard." Aplt. Opening Br. at 33 (quoting N.M. Stat. Ann. § 61-27B-23(B)).
At his deposition, Liming explained that this printout was in error, and he is in fact only a resident manager, not a PPO Manager, for companies other than SFPS. Aplt.App. at 231 (Liming depo. at 134), 232-33 (Liming depo. at 140-41). Even if the printout was correct, and Liming had an intention to deceive SFPS, McDonald-Cuba points us to no evidence that Maki knew that a New Mexico printout identified Liming as a PPO Manager instead of a resident manager. All Maki knew was what Liming had told her, that he was a resident manager for these companies. Both she and Cuba had already determined that this did not represent a conflict of interest sufficient to avoid hiring Liming or to require firing him.[2] Absent any evidence that Maki knew of the printout in Liming's case, and treated him differently than McDonald-Cuba, McDonald-Cuba fails to show that Liming was a similarly-situated male employee accorded differential treatment.
C. Aduddell's Conflict of Interest
McDonald-Cuba further alleges that male employee Brett Aduddell owned a security company called Alpha Pro prior to his hiring by SFPS in 2005. She asserts that Maki approved his hiring because she believed that Alpha Pro was inactive, but that Alpha Pro was in fact in good standing with the Colorado Secretary of State during the time she was employed with SFPS. She contends that Aduddell was therefore similarly situated to her, but he was not fired.
This showing of pretext suffers from the same deficiency as that concerning Liming. McDonald-Cuba fails to demonstrate that Maki knew about Alpha Pro's status with the Colorado Secretary of State prior to the time Aduddell left SFPS in 2008. He was therefore not similarly situated to her.
McDonald-Cuba further argues that both Liming and Aduddell were given the opportunity to ameliorate any violation of the Conflict of Interest Policy when they disclosed their conflicts at the time of hiring, but she was not. This argument ignores the fact that unlike Liming and Aduddell, she did not disclose the conflict (which did not yet exist) at the time of hiring, and in fact did not ever voluntarily disclose the crucial information surrounding her conflict with SFPS. Instead, Maki discovered it through other means. Here again, McDonald-Cuba is not similarly-situated to Liming or Aduddell.
*1105 D. Alleged Disparate Treatment
Finally, McDonald-Cuba asserts that evidence of disparate treatment of female supervisors at SFPS meets her burden of showing pretext. She complains that Liming and Aduddell received higher-than-six-percent salary increases in 2007, and were not required to undergo written performance evaluations to receive these increases. This argument ignores Maki's testimony that the increases were provided because Liming and Aduddell had not received increases in previous years and their pay was lagging. McDonald-Cuba cannot contest the fact that in 2007 she was being paid more than Liming or Aduddell. See Aplt.App. at 129. Once again, she fails to show that she was similarly situated to either Liming or Aduddell.
She also complains of a favorable action on SFPS's part: her promotion to directorship at SFPS. She contends this was offered only as a sort of "fig leaf" to hide discrimination against females at SFPS, and was only provided after she complained of discrimination because she was not a director. She objects to the fact that Maki gave her the promotion to "make her feel better" and to avoid the appearance that SFPS discriminates against women. Id. at 159-60.
McDonald-Cuba's argument appears to be that SFPS's actions were condescending and hence redolent of discriminatory animus because they failed to take into account her entitlement to the position as a director, based on merit alone. The district court characterized this argument as "absurd." Id. at 32. We need not go that far. We will simply note that we fail to see how a promotion based on a complaint of discrimination, even if provided grudgingly, meets McDonald-Cuba's burden to establish that SFPS's asserted reasons for firing her were pretextual.
CONCLUSION
We VACATE the district court's entry of judgment on McDonald-Cuba's claim concerning post-employment retaliation from SFPS's filing of a counterclaim and REMAND for its dismissal without prejudice due to lack of jurisdiction. The remainder of the district court's judgment is AFFIRMED.
NOTES
[*] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
[1] A prior unpublished decision from this circuit suggests that it should. See McNulty v. Sandoval County, 222 Fed.Appx. 770, 776 (10th Cir.2007) (citing Martinez; upholding district court's refusal to grant employee leave to amend federal court complaint to assert retaliation claim based on employer's filing of counterclaim, where such amendment would have been futile because employee had not yet filed EEOC charge pertaining to counterclaim).
[2] McDonald-Cuba's argument that SFPS's conflict-of-interest policy does not distinguish between degrees of conflict, lacks merit. She fails to show that Maki lacked discretion in applying the policy, or was not permitted to waive its provisions under appropriate circumstances.
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924 N.E.2d 460 (2010)
235 Ill.2d 603
PEOPLE
v.
SERGIO WILLIAMS.
No. 109325.
Supreme Court of Illinois.
January 1, 2010.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.
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185 F.2d 1020
Erville Mitford BREWER, Appellant,v.Julian N. FRISBIE, Warden, Appellee.
No. 11199.
United States Court of Appeals Sixth Circuit.
December 19, 1950.
Appeal from the United States District Court for the Eastern District of Michigan; Arthur A. Koscinski, Judge.
Robert Jordan, Cincinnati, Ohio, for appellant.
Stephen J. Roth and Walter H. Taylor, and Edmund E. Shepherd, all of Lansing, Mich., for appellee.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
1
The judgment of the District Court is affirmed upon the authority of Whalen v. Frisbie, Warden, 6 Cir., 185 F.2d 607.
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895 N.E.2d 742 (2008)
BATTS
v.
STATE.
No. 49A02-0805-CR-399.
Court of Appeals of Indiana.
October 31, 2008.
BROWN, J.
Disposition of case by unpublished memorandum decision. Affirmed.
BAKER, C.J. Concurs.
MATHIAS, J. Concurs.
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-11-2008
Bus Edge Grp v. Champion Mtg
Precedential or Non-Precedential: Precedential
Docket No. 07-1059
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Bus Edge Grp v. Champion Mtg" (2008). 2008 Decisions. Paper 1349.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1349
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1059
THE BUSINESS EDGE GROUP, INC.,
Appellant,
v.
CHAMPION MORTGAGE COMPANY, INC.,
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 03-cv-5498)
District Judge: Honorable Susan D. Wigenton
Argued January 3, 2008
Before: FUENTES, JORDAN, Circuit Judges, and DUBOIS,*
District Judge.
(Filed March 11, 2008)
Steven F. Gooby (Argued)
* Honorable Jan E. DuBois, Senior District Judge for the
United States District Court of the Eastern District of Pennsylvania,
sitting by designation.
DLA Piper
Two Tower Center Boulevard
Suite 1600
East Brunswick, New Jersey 08816
Attorneys for Appellant
Thomas J. Burns (Argued)
Reed Smith
136 Main Street
Suite 250, Princeton Forrestal Village
Princeton, New Jersey 08540
Attorneys for Appellees
OPINION OF THE COURT
FUENTES, Circuit Judge.
This case involves a company, The Business Edge Group,
Inc. (“Business Edge”), which targeted and subscribed to a vanity
toll free telephone number in order to take advantage of the value
it presented to Champion Mortgage Company, Inc. (“Champion”).1
The issue we address is whether Business Edge’s actions violated
an FCC regulation which prohibits entities from acquiring toll free
telephone numbers in order to sell them and from hoarding toll free
telephone numbers. For the reasons that follow, we conclude that
Business Edge did not sell the telephone number at issue to
Champion and that the case must be remanded for a determination
of whether Business Edge engaged in hoarding.
I.
1
A vanity telephone number is a number that spells a word
or phrase on a telephone number pad.
2
At some point prior to 1998, Business Edge acquired the toll
free telephone number 1-800-242-6740 (1-800-Champi0[n], or “the
Number”).2 Sheldon Kass, the President of Business Edge,
testified during a deposition that he acquired the Number because
“it had certain spellings” associated with it, namely, “the word
champion,” and thus the Number had potential application in the
mortgage business. (App. 98.) After subscribing to the Number,
Business Edge routed all calls to the Number to an unnamed
mortgage company. It then contacted Champion to inform them
that it had an 800 number that spelled “Champi0n” and that when
people misdialed Champion’s toll free telephone number, using a
“zero” rather than the letter “o,” they were being routed to another
mortgage company. When Cindy Stancavish, a marketing manager
at Champion, called the Number to validate Business Edge’s claim,
she found that the mortgage company did not identify itself,
leading callers to believe they were speaking with Champion.
Because of the perceived loss of business, Champion
offered to purchase the number from Business Edge for $60,000,
but Business Edge rejected the offer. The parties then entered into
an agreement (the “1998 Agreement”) pursuant to which Business
Edge would route calls to the Number to Champion for $.10 per
minute, plus $3.00 per each customer with an unique telephone
number that called the Number.3 The purpose of the 1998
Agreement was to set up a trial period to show Champion the
volume of traffic to the Number so it could determine whether to
enter into a longer-term agreement with Business Edge. During the
pendency of the 1998 Agreement, Business Edge consulted Gelt
Financial, a local mortgage lender and servicing company, to get
a valuation of the routing arrangement from Champion’s
2
In contrast, Champion’s telephone number is 1-800-242-
6746, or 1-800-Champio[n]. Thus, the difference between the two
telephone numbers is whether you dial the “o” in Champion as a
zero or the letter “o,” which corresponds to a “6” on a telephone
number pad.
3
The parties appear to dispute whether the offer to buy the
Number occurred before or after entering the 1998 Agreement.
This dispute has no impact on the analysis.
3
perspective. Following Gelt’s report, Business Edge and
Champion agreed to an arrangement in which Champion would pay
$25,000 per month for five years in exchange for Business Edge
routing calls made to the Number to Champion (the “1999
Agreement”).
The parties performed on the 1999 Agreement from August
1999 through December 2002. The following month, Champion
sent Business Edge a letter stating that the contract violated an
FCC regulation, 47 C.F.R. § 52.107, and demanded reimbursement
for the payments that had been made on the contract. Despite the
letter, Champion continued to pay on the 1999 Agreement through
April 2003. Champion failed to pay the final $375,000 remaining
on the 1999 Agreement and Business Edge terminated the contract
and its routing services.
Business Edge filed a complaint in state court, claiming
breach of contract for Champion’s failure to pay the final $375,000
in monthly fees. Champion removed the case to federal court on
diversity grounds. In the District Court, Champion argued that the
case should be transferred to the FCC under the doctrine of primary
jurisdiction because resolution of the case requires interpretation
of FCC rules and policies, or, in the alternative, that the District
Court should determine that the 1999 Agreement was void ab initio
because Business Edge violated 47 C.F.R. § 52.107 by brokering
the Number to Champion. In contrast, Business Edge contended
that there was no technical sale of the Number, so there could be no
violation of 47 C.F.R. § 52.107. The District Court determined on
the eve of trial that no material issues of fact were in dispute and
the case could be disposed of as a matter of law.
The District Court first decided that it was unnecessary to
transfer the case to the FCC under the doctrine of primary
jurisdiction. The District Court found that it was just as well suited
as the FCC to determine the principal issue in the case, whether the
contract violated 47 C.F.R. § 52.107, which provides that “[t]oll
free subscribers shall not hoard toll free numbers” and that “[n]o
person or entity shall acquire a toll free number for the purpose of
selling the toll free number to another entity or to a person for a
4
fee.” 4 (App. 12-16.)
The court then focused on whether Business Edge acquired
the number in order to sell it to Champion and found that because
the value of the 1999 Agreement was in line with the value that
Champion would receive for the calls, rather than being in line with
the cost of routing services, the 1999 Agreement should be re-
characterized as a sale of the Number. Thus, the District Court
held that the 1999 Agreement violated 47 C.F.R. § 52.107.
Finding that both parties had unclean hands in creating the 1999
Agreement, the court excused Champion from further payments
under the contract and denied restitution of the payments
previously made. Business Edge appeals the District Court’s
order.5
4
The regulation reads, in pertinent part, as follows:
(a) As used in this section, hoarding is the
acquisition by a toll free subscriber from a
Responsible Organization of more toll free numbers
than the toll free subscriber intends to use for the
provision of toll free service. The definition of
hoarding also includes number brokering, which is
the selling of a toll free number by a private entity
for a fee.
(1) Toll free subscribers shall not hoard toll
free numbers.
(2) No person or entity shall acquire a toll
free number for the purpose of selling the toll
free number to another entity or to a person
for a fee.
47 C.F.R. § 52.107(a).
5
The District Court had jurisdiction over the case pursuant
to 28 U.S.C. § 1332. The District Court’s December 11, 2006
summary judgment order disposed of all claims of all parties.
Accordingly, jurisdiction is proper in this court pursuant to 28
U.S.C. § 1291. We exercise plenary review over a district court’s
summary judgment ruling. Univ. of Pittsburgh v. United States,
5
II.
A. The Regulation
Section 52.107(a) provides that “(1) [t]oll free subscribers
shall not hoard toll free numbers” and that “(2) [n]o person or
entity shall acquire a toll free number for the purpose of selling the
toll free number to another entity or to a person for a fee.”
Hoarding is defined as “the acquisition of more toll free numbers
than one intends to use for the provision of toll free service, as well
as the sale of a toll free number by a private entity for a fee.” 47
C.F.R. § 52.107(b). Number brokering, which is included in the
definition of hoarding, is defined as “the selling of a toll free
number by a private entity for a fee.” 47 C.F.R. § 52.107(a).
B. Primary Jurisdiction
We will first review the District Court’s decision not to
transfer this case to the FCC under the doctrine of primary
jurisdiction. The parties did not raise this issue on appeal.
However, we can review, sua sponte, whether it is appropriate to
transfer the case to the FCC under the doctrine of primary
jurisdiction. See MCI Telecomms. Corp. v. Teleconcepts, Inc., 71
F.3d 1086, 1103 (3d Cir. 1995).
Primary jurisdiction “requires a court to transfer an issue
within a case that involves expert administrative discretion to the
federal administrative agency charged with exercising that
discretion for initial decision.” Richman Bros. Records, Inc. v.
U.S. Sprint Commc’ns Co., 953 F.2d 1431, 1435 n.3 (3d Cir. 1991)
(citations omitted). According to Richman, “[t]he doctrine has
been applied . . . when an action otherwise within the jurisdiction
of the court raises a question . . . involv[ing] technical questions of
fact uniquely within the expertise and experience of an agency –
such as matters turning on an assessment of industry conditions.”
Id.
507 F.3d 165, 166 n.1 (3d Cir. 2007).
6
While this case presents “technical questions of fact” that
are “within the expertise” of the FCC, we believe it more
appropriate to remand to the District Court for further proceedings
than to transfer it to the agency because we find that the meaning
of the regulation can be determined from its text. See Advance
United Expressways, Inc. v. Eastman Kodak Co., 965 F.2d 1347,
1353 (5th Cir. 1992) (holding that a court need not refer a case
under the doctrine of primary jurisdiction if “it can resolve the
issues before it, using the plain language of the [regulations] and
the ordinary rules of construction”); cf. Distrigas of Massachusetts
Corp. v. Boston Gas Co., 693 F.2d 1113, 1118 (1st Cir. 1982)
(referring case under doctrine of primary jurisdiction because “the
meaning of the disputed language . . . cannot be determined solely
from the text itself, nor even by reference to the intent of the
parties”).
C. Defining Sale
The District Court concluded that the 1999 Agreement was
a contract for the sale of the Number and thus violated 47 C.F.R.
§ 52.107. We disagree. First, we note that subscribers do not
“own” toll free telephone numbers. In the Matter of Toll Free
Service Access Codes, 20 F.C.C.R. 15089, 15090 ¶ 4, 2005 WL
2138620, at *2 (F.C.C. Sept. 2, 2005) (“Telephone numbers are a
public resource and neither carriers nor subscribers ‘own’ their
telephone numbers.”). Because subscribers do not own their
telephone numbers, they can never “sell” them outright. Instead,
they “sell” the interest that they have in the number; that is, the
right to use it to provide toll free service. In order to determine
whether the 1999 Agreement constituted a sale for the purposes of
47 C.F.R. § 52.107, we review dictionary definitions of “sale” and
“sell” to assess whether the agreement falls within the definitions.
Black’s Law Dictionary (8th ed. 2004) (“Black’s”) defines “sale”
as “[t]he transfer of property or title for a price,” id. at 1364, and
defines “sell” as “[t]o transfer (property) by sale,” id. at 1391.
Black’s defines “transfer” as “[a]ny mode of disposing of or
parting with an asset or an interest in an asset.” Id. at 1535.
Meanwhile, Merriam-Webster’s Online Dictionary defines “sale”
as “the act of selling; specifically: the transfer of ownership of and
title to property from one person to another for a price” and, in
7
relevant part, defines “sell” as “to give up (property) to another for
something of value (as money).” Id. at http://www.merriam-
websters.com (last visited Feb. 12, 2008). Next, Random House
Webster’s Unabridged Dictionary (“Webster’s”) defines “sale,” in
relevant part, as a “transfer of property for money or credit,” id. at
1693, and “sell,” in relevant part, as “to transfer (goods) to or
render (services) for another in exchange for money; dispose of to
a purchaser for a price,” id. at 1739. Webster’s defines “dispose
of,” in relevant part, as “to transfer or give away, as by gift or
sale.” Id. at 568.
Without exception, these definitions of “sale” and “sell”
emphasize the transfer of property or ownership for a price and the
finality of the transaction. Here, the fundamental features of the
1999 Agreement were that Business Edge retained control of the
Number, preserving responsibility for paying toll charges, and that
Business Edge would only perform routing services for a period of
five years. We, therefore, cannot conclude that the 1999
Agreement was a sale. Therefore, we vacate the District Court’s
decision that the 1999 Agreement should be invalidated for
violating the prohibition on selling toll free telephone numbers in
47 C.F.R. § 52.107.
D. Brokering
At oral argument, the appellees focused their efforts on
convincing us that even if we do not find that the 1999 Agreement
constituted a sale, we should find that it constituted impermissible
number brokering. See 47 C.F.R. 52.107(a)(1). We find no
support for this notion. Again and again the FCC has defined
number brokering as the sale of a number. In the regulation itself,
number brokering is defined as “the selling of a toll free number by
a private entity for a fee.” 47 C.F.R. 52.107(a). The FCC repeated
the regulatory language in the December 21, 2007 decision,
indicating that “[s]ection 52.107(a)(2) of the Commission’s rules
prohibits ‘brokering,’ which is the selling of a toll-free number by
a private entity for a fee.” In the Matter of Toll-Free Service
Access Codes, 2007 WL 4481492, at *1. Ten years earlier, the
FCC indicated that “[b]rokering is the buying or selling of
numbers.” In the Matter of Toll Free Service Access Codes,
8
Second Report and Order and Further Notice of Proposed
Rulemaking, 12 F.C.C.R. 11162, 11164-65 ¶ 2 n.10 (F.C.C. 1997).
Accordingly, we find no basis to conclude that number brokering
is broader than selling toll free telephone numbers.
E. Hoarding
Finally, we consider whether the 1999 Agreement should
be invalidated because Business Edge improperly hoarded toll
free telephone numbers. Regulation 47 C.F.R. 52.107 defines
“hoarding,” as “the acquisition of more toll free numbers than
one intends to use for the provision of toll free service, as well as
the sale of a toll free number by a private entity for a fee.” 47
C.F.R. § 52.107(b). As discussed above, we cannot conclude
that Business Edge sold the Number to Champion. However, it
is possible that Business Edge acquired more numbers than it
intended to use for the provision of toll free service in violation
of the prohibition on hoarding. In In the Matter of Toll Free
Service Access Codes, Second Report and Order and Further
Notice of Proposed Rulemaking, 12 F.C.C.R. at 11189 ¶ 38, the
FCC discussed the purpose of regulating the hoarding and
brokering of toll free numbers:
Hoarding occurs when a toll free subscriber
acquires more numbers from a [telephone
company] than it intends to use for the provision of
toll free service. If a subscriber refuses to release
numbers that are not in use, the pool of available
numbers decreases. This will exacerbate toll free
number depletion and necessitate the opening of an
additional toll free relief code earlier than would
be necessary otherwise. It is time consuming and
costly for the industry to perform the necessary
modifications to the network so that it can support
calls using the new code. Hoarding can also result
in some customers being unable to obtain toll free
numbers, even though certain numbers are not
being used.
After defining the concept of hoarding, the FCC stated
9
why number hoarding and number brokering is against the
public interest:
Brokering provides motivation for hoarding and
therefore results in quicker exhaustion of the
current [supply of numbers] and interferes with the
orderly allocation of numbering resources. Simply
prohibiting a subscriber from hoarding a number
will not fully eliminate the effects of hoarding. For
example, a subscriber could acquire a group of
numbers it expected to sell at a later date. The
subscriber could then nominally place the numbers
in service through “dummy” affiliates or other
entities that otherwise would not employ a toll free
number.
Id. Given the record before us, we believe Business Edge
clearly violated the spirit of 47 C.F.R. § 52.107 as it did not
intend to use the Number for its own customers; Sheldon Kass
testified that he acquired the Number because it spelled “the
word champion,” and therefore could be marketed to a company
in the mortgage business. (App. 98.) However, we cannot
determine, in the first instance, whether Business Edge violated
47 C.F.R. § 52.107(a)(1).6 Hoarding requires subscribing to
more telephone numbers than the entity intends to use for the
provision of toll free service and the record before us is
inadequate to make that determination. Accordingly, we will
remand the case to the District Court for further proceedings
6
We are mindful that, given the way section 52.107 is
currently drafted, an entity such as Business Edge can avoid
running afoul of the regulation by simply refusing to “sell” a toll
free telephone number outright, and to instead offer a lease for the
number, as Business Edge apparently did here. It strikes us that the
goal of prohibiting the sale of toll free telephone numbers –
eliminating the motivation for hoarding and the resultant
accelerated exhaustion of the number supply – is equally served by
prohibiting toll free telephone number leasing. This represents a
clear loophole in the regulation that the FCC may wish to address.
10
consistent with this decision.
11
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-18-2008
Elite Sportswear v. NY Life Ins Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4870
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Elite Sportswear v. NY Life Ins Co" (2008). 2008 Decisions. Paper 1429.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1429
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4870
ELITE SPORTSWEAR PRODUCTS, INC.,
Appellant
v.
NEW YORK LIFE INSURANCE COMPANY
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 05-cv-05181)
Magistrate Judge: The Honorable Timothy R. Rice
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit Judges
(Opinion Filed: March 18, 2008)
OPINION
BARRY, Circuit Judge
Between October 1984 and November 1986, New York Life Insurance Company
(“NYLIC”) issued four life insurance policies to Elite Sportswear Products, Inc. (“Elite”).
On September 30, 2005, Elite filed suit against NYLIC asserting various tort and breach
of contract claims arising from NYLIC’s use of loans secured against the policies’ cash
values and dividends to pay the policies’ premiums. The District Court granted summary
judgment in favor of NYLIC on October 25, 2006, holding (1) that Elite’s tort claims
were barred by Pennsylvania’s two-year statute of limitations and (2) that Elite’s breach
of contract claims failed as a matter of law. The District Court also held that the class
action settlement agreement in Willson v. New York Life Insurance Co., No. 94-127804,
1995 N.Y. Misc. LEXIS 652 (N.Y. Sup. Ct. Nov. 8, 1995), barred Elite’s claims under
the doctrines of release and res judicata. Elite timely appealed.1
Elite raises a single issue on appeal, namely whether the District Court erred in
concluding that the notice of settlement provided in Willson met the requirements of due
process. We need not reach this issue, however, because, as appellee correctly argues, it
is one of two alternative grounds on which the District Court’s decision was based.
Elite’s failure to challenge the District Court’s conclusions with respect to the timeliness
of its tort claims and the adequacy of its contract claims in its opening brief constitutes a
waiver of these issues on appeal,2 see United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
1
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1332. We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
2
Elite does not seriously challenge these conclusions even in its reply brief, stating
only the following:
[NYLIC] argues that [Elite], in its Appellant brief, argued notice but
failed to discuss the two year statute of limitations for tort claims or argue
breach of contract. Because the tolling of the statute of limitations in tort
and breach of contracts [claims] are dependant upon notice and discovery,
whether or not adequate notice was provided to Elite is a genuine issue of
2
2005) (“It is well settled that an appellant’s failure to identify or argue an issue in his
opening brief constitutes waiver of that issue on appeal”), and we therefore will affirm
because these unappealed aspects of the District Court’s decision represent an adequate
and independent ground for granting summary judgment in favor of NYLIC.
material fact to a finding of either.
(Reply Br. at 1.) Although it is less than clear, Elite’s argument appears to conflate notice
of the accrual of its claims against NYLIC with notice of the Willson settlement. If this is
the argument, it is without merit.
3
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717 S.E.2d 388 (2011)
STATE
v.
Jerry Delane JENKINS.
No. 31P05-2.
Supreme Court of North Carolina.
August 25, 2011.
Charles E. Reece, Assistant Attorney General, for State of NC.
Jerry Delane Jenkins, Morganton, for Jenkins, Jerry Delane.
Garland N. Yates, District Attorney, for State of NC.
The following order has been entered on the motion filed on the 30th of June 2011 by Defendant for Petition for Discretionary Review:
"Motion Dismissed by order of the Court in conference, this the 25th of August 2011."
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-30-2008
DIRECTV Inc v. Jarvis
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3299
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"DIRECTV Inc v. Jarvis" (2008). 2008 Decisions. Paper 1658.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1658
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3299
___________
DIRECTV, INC., A CALIFORNIA CORPORATION
V.
JOSEPH JARVIS,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 04-cv-00055)
District Judge: Honorable Susan D. Wigenton
_________________________
Submitted under Third Circuit LAR 34.1(a)
January 22, 2008
Before: MCKEE, SMITH and CHAGARES, Circuit Judges
(Opinion filed: January 30, 2008)
___________
OPINION
___________
PER CURIAM
Pro se appellant Joseph Jarvis appeals from the U.S. District Court for the District
of New Jersey’s December 14, 2006 order granting DIRECTV, Inc.’s (“DIRECTV”)
motion for summary judgment as well as the July 9, 2007 order denying Jarvis’s motion
for reconsideration. For the reasons discussed below, we conclude that we do not have
jurisdiction to review the December 14, 2006 order and that we will affirm the July 9,
2007 order.
I.
In May 2003, DIRECTV filed a complaint against Jarvis and several other
individuals alleging that the defendants violated numerous federal statutes by purchasing
and using illegal devices to unlawfully intercept and receive its satellite television
programming. (See D.N.J. Civ. No. 03-cv-2423.) As the litigation proceeded, DIRECTV
served discovery on the defendants. Jarvis apparently complied (at least in part) with his
discovery obligations by responding to DIRECTV’s requests for admissions.
In December 2003, the District Court severed the matter against Jarvis, and
DIRECTV refiled its complaint against him in January 2004. (See D.N.J. Civ. No. 04-cv-
00055.) Given that the severed case was a distinct action, the Magistrate Judge ordered
the parties to reserve written discovery. Therefore, on October 28, 2005, DIRECTV
served Jarvis’s counsel1 with a new set of discovery requests, which included requests for
admissions. Despite repeated letters from DIRECTV’s counsel and an order by the
Magistrate Judge to respond to the overdue discovery requests by April 17, 2006, Jarvis
failed to respond to the request for admissions until at least June 14, 2006—two weeks
1
Jarvis was represented by counsel until the District Court’s June 27, 2006 order
allowing his attorney to withdraw. The June 27 order stated that Jarvis would be
proceeding pro se.
2
after DIRECTV filed its summary judgment motion.
In an order entered December 14, 2006, the District Court granted DIRECTV’s
motion for summary judgment and denied Jarvis’s cross-motion. Federal Rule of Civil
Procedure 36(a) provides that “a matter is deemed admitted unless, within 30 days after
service of the request or within such shorter or longer time as the court may allow. . . the
party to whom the request is directed serves upon the party requesting the admission a
written answer or objection. . . .” Because Jarvis did not answer the 2005 requests for
admissions within 30 days of service or within the time ordered by the Magistrate Judge,
the District Court deemed Jarvis to have admitted every one of DIRECTV’s requests for
admissions. The District Court then held that the admissions, in addition to the papers
submitted by the parties and certain internet postings by Jarvis, led it to determine that
there were no material facts in dispute. It thus ordered summary judgment in favor of
DIRECTV. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168,
176 n.7 (3d Cir. 1990) (“This Court and others have held that ‘deemed admissions’ under
Fed. R. Civ. P. 36(a) are sufficient to support orders of summary judgment.”).
Twenty-one days after entry of summary judgment, Jarvis filed a motion to
enlarge his time to file a motion for reconsideration, which the District Court denied.2 On
January 17, 2007, Jarvis moved the District Court to reconsider the denial of his motion
2
Jarvis filed a notice of appeal from the summary judgment decision on January 17,
2007. He withdrew the appeal after the Clerk of this Court notified him that it was
subject to dismissal for untimeliness.
3
for enlargement. The District Court apparently considered the motion as a second request
for an enlargement of time to file a motion for reconsideration of the summary judgment
order. And on February 2, 2007, the District Court granted the motion and allowed Jarvis
10 days to file a motion for reconsideration “provided that” he include new evidence to
support his assertion that he had responded to the 2005 requests for admissions.
Jarvis’s motion for reconsideration did not, however, include any new evidence.
Rather, through his exhibits, he appeared to argue that his responses to the 2003 requests
for admissions should count as answers to the 2005 requests for admissions. Jarvis also
contended that the District Court should not have applied Rule 36(a) because he
eventually answered the 2005 requests for admissions—albeit nearly eight months after
they were served, two months after the Magistrate Judge’s deadline, and two weeks after
DIRECTV filed its summary judgment motion.
On July 9, 2007, the District Court denied Jarvis’s motion for reconsideration. The
District Court determined that instead of presenting new evidence, the motion merely
demonstrated Jarvis’s disagreement with the summary judgment decision.
On July 30, 2007, Jarvis filed a pro se notice of appeal as to the District Court’s
December 14, 2006 and July 9, 2007 decisions.
II.
We first address the issue of our jurisdiction. Subject to certain exceptions, a
notice of appeal must be filed within 30 days from the disputed order’s entry date. Fed.
4
R. App. P. 4(a)(1)(A). Jarvis’s July 30, 2007 notice of appeal was thus untimely filed as
to the District Court’s December 14, 2006 order. Id. Although a motion for
reconsideration under Federal Rules of Civil Procedure 59 or 60 will toll the time for
filing a notice of appeal if it is filed within 10 days of entry of the order, see Fed. R. App.
P. 4(a)(4)(A), Jarvis did not even file his motion for an enlargement of time to file a
motion for reconsideration until 21 days after the District Court’s summary judgment
order. Therefore, we lack jurisdiction to review the District Court’s December 14, 2006
order.
We do, however, have authority to review the July 9, 2007 order denying Jarvis’s
motion for reconsideration. Although Jarvis did not specify whether his motion was
brought under Federal Rule of Civil Procedure 59(e) or 60(b), we believe that, read
liberally, the motion may be construed as one filed pursuant to Rule 60(b)(6). See
Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (stating that when a motion is
“filed outside of the ten days provided for under Rule 59(e) but within the year permitted
under Rule 60(b), and the motion may be read to include grounds cognizable under the
latter rule, we will consider it to have been filed as a Rule 60(b) motion”). See also Helm
v. Resolution Trust Corp., 43 F.3d 1163, 1166-67 (7th Cir. 1995). We review the District
Court’s decision for abuse of discretion. Reform Party of Allegheny County v. Allegheny
County Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999) (“An abuse of discretion
may be found when the district court’s decision rests upon a clearly erroneous finding of
5
fact, an errant conclusion of law, or an improper application of law to fact.” (internal
citation omitted)).3
The District Court did not abuse its discretion by denying Jarvis’s motion for
reconsideration. Relief under Rule 60(b)(6) is “extraordinary relief and may only be
invoked upon a showing of exceptional circumstances,” Coltec Indus., Inc. v. Hobgood,
280 F.3d 262, 273 (3d Cir. 2002), and this case does not present any exceptional
circumstances. In the motion, Jarvis asserted that he had responded to DIRECTV’s
requests for admissions and thus that the requests should not have been deemed admitted.
In support of this assertion, Jarvis attached: (1) his responses to the 2003 requests for
admissions, and (2) his responses to the 2005 requests for admissions that he submitted to
DIRECTV two weeks after its summary judgment motion and two months after the
Magistrate Judge’s deadline. This was not new evidence. The District Court had these
pieces of information when it decided the summary judgment motions, and Jarvis’s
motion for reconsideration merely spells out his disagreement with the District Court’s
application of Rule 36(a). This is not an appropriate basis for reopening a judgment, and
the District Court properly denied Jarvis’s motion. See Martinez-McBean v. Gov’t of
Virgin Islands, 562 F.2d 901, 911 (3d Cir. 1977) (“[I]t is improper to grant relief under
3
We note that an appeal from the denial of a Rule 60(b) motion places at issue only
the denial of the motion for review, not the merits of the underlying decision. Smith v.
Evans, 853 F.2d 155, 158 n.1 (3d Cir. 1988).
6
Rule 60(b)(6) if the aggrieved party could have reasonably sought the same relief by
means of appeal.”).4 Moreover, neither Jarvis’s responses to the 2003 requests for
admissions nor his untimely responses to the 2005 requests for admissions would have
required the District Court to change its decision deeming the 2005 requests admitted.
See Fed. R. Civ. P. 36(b).
For the foregoing reasons, we will affirm the District Court’s order entered on July
9, 2007.
4
To the extent that Jarvis’s sought reconsideration based on his argument that
DIRECTV violated the statute of limitation or did not provide sufficient evidence to
succeed on summary judgment, these are issues that should have been brought in an
appeal. See Martinez-McBean, 562 F.2d at 911.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1790
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
John Turnage, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 1, 2006
Filed: February 9, 2006
___________
Before ARNOLD, BYE, and SMITH, Circuit Judges.
___________
PER CURIAM.
A jury found John Turnage guilty of possessing more than 5 grams of cocaine
base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the district
court1 sentenced him to 360 months in prison and 8 years of supervised release. On
appeal, his counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), and Turnage has filed a pro se supplemental brief.
For the reasons discussed below, we affirm the judgment of the district court and grant
counsel’s motion to withdraw.
1
The Honorable Rodney S. Webb, United States District Judge for the District
of North Dakota.
First, we conclude that the district court did not err in denying Turnage’s
suppression motion. See United States v. Williams, 431 F.3d 1115, 1117 (8th Cir.
2005) (standard of review). While police are required to engage in some independent
verification of information provided to them by a previously unknown informant, they
did so adequately in this case. See United States v. Amaya, 52 F.3d 172, 173-74 (8th
Cir. 1995). Also, even if we assume for the sake of argument that Turnage made a
substantial preliminary showing that police intentionally or recklessly omitted facts
from the search warrant application that made it misleading, he did not make a
substantial preliminary showing that the application could not support a finding of
probable cause if the omitted facts had been included. See United States v. Wells, 223
F.3d 835, 838 (8th Cir. 2000).
Second, we conclude that the evidence is sufficient to support Turnage’s
conviction. See United States v. Barrow, 287 F.3d 733, 736 (8th Cir.) (standard of
review; elements of offense), cert. denied, 537 U.S. 1024 (2002). In finding that
Turnage intended to distribute the crack, the jury was entitled to believe the
government witnesses’ testimony and disbelieve Turnage’s testimony. See United
States v. Fellers, 397 F.3d 1090, 1099 (8th Cir.), cert. denied, 126 S. Ct. 415 (2005).
Third, we conclude that the district court’s denial of Turnage’s downward-
departure motion is unreviewable because the court stated that it recognized its
authority to depart. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005).
Finally, having reviewed the record independently pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we conclude that there are no nonfrivolous issues for appeal.
Accordingly, we affirm the judgment of the district court, and we grant counsel’s
motion to withdraw.
______________________________
-2-
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NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
ANTHONY G. HUNT,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, '
Resp0nden.t-Appellee.
2012-7039
Appea1 from the United States Court of Appea1S for
Veterans C1aims in case no. 09-4707, Judge Lawrence B.
Hagel.
ON MOTION
PER CURIAM.
0 R D E R
Anthony G. Hunt moves this court to compel the gov-
ernment to produce various d0cuments. In the alterna-
tive, Hunt moves for the appointment of counsel
HUNT V. DVA 2
Neither the Federal Rules of Appel1ate Procedure nor
the Federal Circuit Rules allow discovery on appeal ln
addition, this court has no procedure to appoint counsel
for pro se litigants. Hunt is advised that pro bono counsel
may be available to veterans for representation at this
court through various assistance programs including the
Federal Circuit Bar Association's Veterans Pro Bono
Program. Pro bono counsel may also be available for
representation at the Court of Appeals for Veterans
Claims through the Veterans Consortium Pro Bono Pro-
gram.
Accordingly,
lT IS ORDERED THAT
The motions are denied
FOR THE CO‘URT
APR 30 2[H2 /s/ Jan Horbaly
Date J an Horbaly
, Clerk
cc: Anthony G. Hunt
Daniel B. V0lk, Esq.
FlLED
u.s. couFrr or APFEALs mn
S24 T14EFEr)5rz.»_LclncurT
APR 30 2012
JAN HURBALY
CLERK
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932 F.2d 959
David H., by Susan H., Melvin H.v.Palmyra Area School District, Gilhool (Thomas K.); David H.,Susan, Melvin H.
NO. 90-5839
United States Court of Appeals,Third Circuit.
APR 16, 1991
Appeal From: M.D.Pa.,
Rambo, J.
1
AFFIRMED.
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963 A.2d 581 (2008)
SNYDER
v.
DEMKO.
No. 1457 WDA 2007.
Superior Court of Pennsylvania.
September 15, 2008.
Affirmed.
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
MARCH 17, 2005 Session
CITY OF JACKSON, TENNESSEE v. WALKER-HALL, INC., ET AL.
Direct Appeal from the Circuit Court for Madison County
No. C01-130 Roger A. Page, Judge
No. W2004-01612-COA-R3-CV - Filed August 3, 2005
This is an action to recover for damage done to personal property. During the course of a road
improvement project, the city placed some heavy equipment and debris alongside the roadway being
repaired. An employee of the corporate owner of the land abutting the roadway noticed the debris
and an excavator parked adjacent to the roadway during a route inspection of the property. Believing
the debris and excavator to be on his employer’s land, the employee had the excavator towed.
Apparently, the towing company selected by the landowner’s property manager severely damaged
the excavator during the course of removing it. The city subsequently filed suit against the
landowner and several other defendants claiming they had negligently harmed the city’s personal
property. The trial court held that the landowner was negligent and committed a trespass against the
city. The landowner appealed, and we reverse the decision of the trial court.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.
David J. Sneed, Brentwood, TN, for Appellants
J. Brandon McWherter, Lewis L. Cobb, Jackson, TN, for Appellee
OPINION
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1999, the City of Jackson, Tennessee (“City” or “Appellee”), undertook a project to repair
and resurface Walker Road. Walker Road, which runs north and south, is bounded on the east by
West Towne Commons Shopping Center (“West Towne Commons”). The City has a right-of-way
encompassing eight (80) feet along Walker Road — forty (40) feet on each side of the centerline of
the roadway. Walker Road is approximately twenty (20) feet wide, therefore, the City possesses a
right-of-way consisting of thirty (30) feet on each side of the paved surface. In addition, the City
possesses a utility easement which extends an additional twenty-five (25) feet beyond its right-of-
way on either side of Walker Road. Thus, the City has the ability to use fifty-five (55) feet of the
property located on either side of Walker Road. During the course of the project to repair and
resurface Walker Road, the City placed materials and equipment on the eastern side of Walker Road
closest to West Towne Commons in an area it used as a staging area for the project.
Walker-Hall, Inc., d/b/a Broadmoor Investment Corporation (“Walker-Hall” or “Appellant”),
a Tennessee corporation, owns West Towne Commons. Walker-Hall hired Trammell Crow
Tennessee, Inc., d/b/a Trammell Crow Residential Services (“Trammell Crow”), to manage West
Towne Commons. Maria Hopper (“Ms. Hopper”), an employee of Trammell Crow, served as the
property manager for West Towne Commons during the period of time at issue in this case.
In April of 1999, William Scarbrough (“Mr. Scarbrough”), the director of development for
Walker-Hall, upon returning from a business trip in Atlanta, stopped in Jackson to inspect West
Towne Commons. Upon driving through West Towne Commons, Mr. Scarbrough noticed piles of
debris and a 1988 model John Deere excavator sitting adjacent to Walker Road. Mr. Scarbrough did
not get out of his vehicle and stated that he did not see any markings on the excavator identifying
its owner. In fact, the excavator had a logo about two to three feet in size identifying it as the
property of the City. Believing that the debris and the excavator were sitting on property owned by
Walker-Hall, Mr. Scarbrough called Ms. Hopper and instructed her to have the excavator removed.
Ms. Hopper contacted three towing companies and ultimately selected S & M Towing & Recovery
(“S & M Towing”), a business operating within the City, to remove the excavator.
When S & M Towing removed the excavator, the key which operates the electrical
components on the machine had been removed by the City’s employees after they parked it. The
City’s employees stated that the machine can be started and moved without the key, however, a key
is required to operate the electrical components on the excavator. When operating the machine
without a key, the driver cannot switch from low gear to a higher gear. Employees of the City
testified that they left machine in low gear when they parked it. They also stated that, before S & M
Towing removed the excavator from Walker Road, the excavator worked properly. The supervisor
for the Walker Road project, O’Neal Thomas (“Mr. Thomas”), stated that his crew checked the oil
in the excavator every morning before they began using it.
-2-
After S & M Towing removed the excavator and took it to its facility some ten to fifteen
miles from Walker Road, the City sent two employees to retrieve it. One of the City’s employees
stated that, when he inspected the machine at S & M Towing, it was still in low gear. The other
employee sent to retrieve the excavator stated that they had to add eleven quarts of oil to the
machine. The employees started the excavator, but when they attempted to load it onto the trailer,
they noted that it did not have any power and would barely move. The City’s employees opined that
the damage they found was consistent with driving the excavator in low gear for approximately ten
to fifteen miles. The City ultimately had the excavator repaired.
Thereafter, on April 16, 2001, the City filed suit against Walker-hall, Mr. Scarbrough, S &
M Towing, Trammell Crow, and Ms. Hopper1 in the Circuit Court of Madison County, Tennessee.
When S & M Towing failed to answer the complaint, the City moved for a default judgment against
them. On March 13, 2002, the trial court entered an order granting the City a default judgment
against S & M Towing and reserved an award of damages pending the outcome of the case.2
Walker-Hall and Mr. Scarbrough filed an answer to the City’s complaint asserting, as an affirmative
defense, that the City trespassed on property owned by Walker-Hall when it placed the materials and
excavator where it did.3
In bringing this lawsuit, the City sought damages for the cost of repairing the excavator, loss
of use of the excavator, and loss of the time expended by its employees in recovering the excavator.
During the trial, the City’s employees testified as to the condition of the excavator before and after
S & M Towing removed it from Walker Road. Barbara Long (“Ms. Long”), the City’s records
custodian at the time of the events giving rise to the lawsuit, presented an invoice in the amount of
$11,296.14 representing the cost of repairing the excavator and testified concerning the number of
hours the City’s employees spent retrieving the excavator. Although there was no proof that the City
actually rented a replacement excavator or needed the use of one while its excavator was being
repaired, the City nonetheless presented testimony concerning the rental cost of a replacement
excavator.
Following a bench trial, the trial court entered a final judgment on June 2, 2004, in favor of
the City and against Walker-Hall and S & M Towing in the amount of $11,296.14. The court
dismissed the City’s action against Trammell Crow, Ms. Hopper, and Mr. Scarbrough. In issuing
1
The City’s original complaint did not name Trammell Crow and Ms. Hopper as defendants. The City
subsequently amended its complaint to add them as defendants.
2
S & M T owing, owned and operated by Mike and Sarah Pierce, did not file a notice of appeal in this case,
therefore, we do not consider any issues related to the trial court’s grant of a default judgment to the City in adjudicating
the instant appeal.
3
W alker-Hall and Mr. Scarbrough filed an original answer and two amended answers in this case. . The trespass
defense was raised in the second and third amended answers. In the third amended answer, W alker-Hall asserted several
additional defenses, which, for purposes of this appeal, we need not address.
-3-
its final judgment, the trial court incorporated its memorandum opinion issued just prior to the final
judgment, wherein the court stated:
After considering the evidence and the credibility of the witnesses,
the Court makes the following determinations by a preponderance of
the evidence:
1. The excavator owned by the City of Jackson was in good
working order when placed near the intersection of Channing
Way and Walker Road on April 29, 1999.
2. After considering the testimony of the City employees and the
individual defendants and thoroughly reviewing the plat,
deed, and pictures, this Court has concluded that the
excavator was parked by the City of Jackson employees on
property owned or within control of the City of Jackson.
3. The excavator’s engine was damaged by S & M Towing &
Recovery when it was moved to that company’s premises
approximately ten to fifteen miles away. The excavator was
moved by someone who did not know the proper method for
moving it.
4. The excavator was clearly marked as property of the City of
Jackson.
The Court had concluded that the excavator was parked by the City
of Jackson employees in a proper area. Mr. Scarbrough saw the
excavator in an area that he thought was owned by his employer. He
admitted that he did not get out of his automobile to examine the
excavator. He also admitted that if he had known it was owned by
the City of Jackson he would have handled the situation in a different
manner. Under the circumstances, Mr. Scarbrough should have
attempted to determine the ownership of the excavator before having
it towed. The failure to investigate the matter was clearly negligent.
....
The testimony of the City of Jackson employees has proven to this
Court by a preponderance of the evidence that the engine of the
excavator was damaged by the towing and had to be replaced. The
City of Jackson has proven the necessity of replacing the engine.
Defendants challenge the reasonableness of the amount charged for
replacing the engine. This Court has considered the amount of the
bill for replacing the engine and concluded that it is reasonable.
Moreover, Defendants presented no evidence to contest the amount
-4-
of the repair bill. The Court has also considered the evidence of loss
of use of the excavator and loss of time of the city employees and
concluded that the evidence is inadequate to support a judgment.
The Court has further concluded that Walker-Hall, Inc. should be
responsible for the negligent acts of the employees of S & M Towing
& Recovery. Mr. Scarbrough was acting in his capacity as agent of
Walker-Hall, Inc. when he directed Ms. Hopper to have the excavator
towed. In this Court’s view, Walker-Hall, Inc. exercised enough
control over the right to employ the towing company to impose
responsibility. In addition, the Court has concluded that Walker-Hall,
Inc. participated in a trespass and is responsible for the action of S &
M Towing.
(citations omitted).
Walker-Hall filed a notice of appeal to this Court and presents the following issues for our
review:
1. Whether the trial court erred in finding that the City parked the excavator on property owned
or within the control of the City at the time of its removal by S & M Towing;
2. Whether the trial court erred in finding that Walker-Hall was negligent in removing the
excavator; and
3. Whether the trial court erred in finding that the City had properly proven the amount of
damages award by the trial court.
For the reasons set forth more fully herein, we reverse the decision of the trial court.
II.
STANDARD OF REVIEW
Since we are asked to review a decision rendered by the trial court sitting without a jury, we
must employ the standard of review set forth in Rule 13(d) of the Tennessee Rules of Appellate
Procedure. Thus, we must review the record de novo affording the trial court’s findings of fact a
presumption of correctness unless the preponderance of the evidence proves otherwise. Tenn. R.
App. P. 13(d) (2004); see also Conatser v. Ball, No. M1999-00583-COA-R3-CV, 2001 Tenn. App.
LEXIS 569, at *7 (Tenn. Ct. App. Aug. 3, 2001). We must review the trial court’s conclusions of
law under a pure de novo standard of review without affording any presumption of correctness to
those conclusions. S. Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn.
2001). A significant portion of the evidence presented in this case was testimonial in nature,
therefore, we are mindful that:
Unlike appellate courts, trial courts are able to observe
witnesses as they testify and to assess their demeanor, which best
-5-
situates trial judges to evaluate witness credibility. See State v.
Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836
S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the
most favorable position to resolve factual disputes hinging on
credibility determinations. See Tenn-Tex Properties v.
Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989);
Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998).
Accordingly, appellate courts will not re-evaluate a trial judge’s
assessment of witness credibility absent clear and convincing
evidence to the contrary. See Humphrey v. David Witherspoon, Inc.,
734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg
Fabrics. Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978).
Wells v. Tenn. Bd.oOf Regents, 9 S.W.3d 779, 783 (Tenn. 1999); see also Mitchell v. Archibald, 971
S.W.2d 25, 29-30 (Tenn. Ct. App. 1998).
III.
LAW AND ANALYSIS
A.
The Location of the Excavator
Although the City’s original complaint did not clearly state the City’s theory of recovery
against Walker-Hall, after reading its amended complaint and brief filed on appeal, it appears as
though the City sought recovery from Walker-Hall and the other defendants under a negligence
theory. The trial court’s written findings allude to negligence as the City’s legal basis for recovery.
The trial court determined that Mr. Scarbrough was negligent in failing to investigate and determine
the ownership of the excavator prior to having it towed. The trial court also found Walker-Hall to
be responsible for the negligent acts of S & M Towing, citing to cases discussing respondeat superior
and agency law. However, the trial court also went on to find that Walker-Hall participated in a
trespass, an intentional tort.4
On appeal, Walker-Hall contends that the trial court erred in finding that the City parked the
excavator on property it either owned or had control over. Walker-Hall argues that the evidence in
the record clearly preponderates against this finding and shows that the excavator was located on
property owned by Walker-Hall. It makes this argument in an effort to establish that the City, not
Walker-Hall, was the trespasser in this case. “One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm to any legally protected interest of the other, if he
intentionally . . . enters land in the possession of the other, or causes a thing or a third person to do
so.” Restatement (Second) of Torts § 158 (1965); accord Restatement (Second) of Torts § 161
(1965).
4
The trial court does not elaborate on whether the trespass was to realty or chattel.
-6-
At trial, Mr. Thomas admitted that he never sought permission from Walker-Hall to park the
excavator where it was located prior to being towed. Another City employee testified that, prior to
undertaking the road improvement project, they looked at the plat to determine the size of their right-
of-way. On appeal, the City contends that the trial court did not err in finding that the City parked
the excavator on property it owned or that came within its control. First, the City takes the position
that its employees parked the excavator within the City’s right-of-way which extended thirty (30)
feet on either side of Walker Road. In the alternative, the City argues that, even it its employees did
not park the excavator within the right-of-way, they did park it within the City’s utility easement
which extends twenty-five (25) feet beyond the right-of-way. While the trial court determined that
the City’s employees parked the excavator within property “owned or within the control of” the City,
the court did not determine whether the excavator was parked within the right-of-way or the utility
easement.
At trial, the City introduced, through Mr. Thomas, several photographs as exhibits. Mr.
Thomas testified that one photograph, entered as “Exhibit 5,” depicted the location of the excavator
along Walker Road prior to it being towed by S & M Towing. In the photograph, a City employee
is standing next to track marks made in the dirt. Just beyond the City’s employee in the photograph,
and toward Walker-Hall’s property, is a pile of debris. (Exhibit 5). Mr. Thomas testified that the pile
of debris was twelve (12) to fifteen (15) feet from the edge of the pavement on Walker Road.5 He
also stated that the City’s employees parked the excavator between the pile of debris depicted in the
photo and Walker Road. Thus, according to Mr. Thomas’ testimony, the City’s employees parked
the excavator no more than twelve (12) to fifteen (15) feet from the edge of Walker Road, placing
it within the City’s right-of-way.
On cross-examination, Mr. Thomas reiterated that the tracks and the City employee in the
photograph mark the location of the excavator prior to its removal, and he acknowledged that the
employee is standing underneath a power line. In fact, Mr. Thomas admitted that if the employee
in the picture were to look straight up he would be looking directly at the power lines. Mr. Thomas
also acknowledged that, in the photograph, there are two sizeable trucks parked parallel to Walker
Road and sitting next to each other. Between the employee standing under the power lines and the
parked trucks is another employee, and Mr. Thomas acknowledged that the employee in the middle
is five to ten feet away from the employee under the power lines.
In support of its position that the evidence preponderates against the trial court’s finding
regarding the location of the excavator on the day S & M Towing removed it; Walker-Hall points
to the testimony of Mr. Scarbrough. During his testimony, Mr. Scarbrough also identified the tracks
and the City employee in the photograph as an accurate depiction of the location of the excavator on
the day he visited the property. Mr. Scarbrough testified that, after the excavator had been removed,
5
In the picture depicting the location of the excavator is another City employee who
appears to be taking measurements. Ms. Long testified that, after the excavator had
been towed, the City sent two employees out to W alker Road to take measurements of the right-
of-way. Interestingly, none of the witnesses presented by the City testified
as to the results of such measurements.
-7-
he went back to Walker Road and took measurements. He stated that the distance from the center
line of Walker Road to the utility pole is sixty-five (65) feet. He was also given a copy of the plat
during his testimony. On the plat, Mr. Scarbrough marked the location of the excavator the day he
visited the property, marking the location as just beyond the utility easement on Walker-Hall’s
property.
After reviewing the testimony of the witnesses and the photographs introduced as exhibits
at trial, we cannot say that the evidence preponderates against the trial court’s finding that the
excavator was parked on property the City had the lawful ability to use. However, even a cursory
inspection of the photographs reveals that Mr. Thomas’ testimony to the effect that the excavator
was parked no more than twelve (12) to fifteen (15) feet from the edge of Walker Road is inaccurate.
The only alternative measurements presented to the trial court were those of Mr. Scarbrough, who
stated that the utility poles depicted in the photographs are sixty-five (65) feet from the centerline
of Walker Road. We are cognizant of the fact that the City admits that the right-of-way and utility
easement collectively extend sixty-five (65) feet from the centerline of Walker Road. The
photographs, which witnesses for both parties admit accurately depict the location of the excavator
on the day it was removed, depict the excavator’s tracks leading right up to the utility lines.
Therefore, the evidence plainly shows that the excavator was either entirely or partially within the
City’s utility easement.6 We are mindful that there was conflicting testimony at trial concerning
whether the excavator or parts thereof extended over the utility line easement. We do not find clear
and convincing evidence in the record to disrupt the trial court’s implicit finding, which would
necessarily hinge on credibility determinations, that the excavator did not extend beyond the utility
easement. See Wells v. Tenn. Bd. Of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
In 1975, the City, by express grant, obtained a utility easement extending twenty-five (25)
feet beyond its right-of-way along Walker Road.7 Said easement grants the City:
[A] permanent easement and right-of-way, for the following
purposes, namely: the perpetual right to enter at any time and from
time to time and to construct, maintain, repair, rebuild, operate, and
patrol its electric, gas, water, and sanitary sewer line(s) and all
necessary appurtenances in, on, over, under and across said right-of-
way together with the right to clear said right-of-way and keep the
same clear of brush, trees, buildings, and fire hazards; and to remove
6
For purposes of determining whether the City has engaged in a trespass, it is sufficient that even a portion of
the excavator touched land owned by W alker-Hall. See Restatement (Second) of Torts § 158 cmt. I (1965); 87 C.J.S.
Trespass § 13 (2000).
7
W e note that, upon reviewing the document purporting to grant the easement, the original grantor was Union
University. W hile neither party presented proof at trial that W alker-Hall became the successor in interest to the subject
property burdened by the easement, the evidence in the record before this Court indicates that W alker-Hall owns the
servient estate burdened by the easement.
-8-
danger [sic] trees, if any, located beyond the limits of said right-of-
way; all over, upon, across, and under the following described land[.]
At trial, Mr. Thomas testified that the Walker Road project had been finished for several weeks prior
to the excavator being towed. At the time of its removal, the City was using the excavator to remove
debris placed on the property during the road resurfacing project. Mr. Thomas also stated that, prior
to the excavator being removed, it had been several days since the City last used the excavator to
move any of the debris.
While we cannot say that the evidence presented at trial preponderates against the trial court’s
findings of fact regarding the location of the excavator (i.e. that it was parked on either of the City’s
right-of-way or the utility easement), we must undertake a de novo review of a trial court’s
conclusions of law. “An easement is an interest in property that confers on its holder an enforceable
right to use another’s property for a specific purpose.” Bradley v. McLeod, 984 S.W.2d 929, 934
(Tenn. Ct. App. 1998) (citations omitted), overruled on other grounds by Harris v. Chern, 33
S.W.3d 741 (Tenn. 2000); see also 28A C.J.S. Easements § 2 (1996). An easement is not a form of
tangible real estate, as it does not consist of a quantity of land, but it is merely a privilege to use the
land of another. Yates v. Metro. Gov’t of Nashville & Davidson County, 451 S.W.2d 437, 440-41
(Tenn. Ct. App. 1969).
When we are asked to determine if a party’s use of land falls within the scope of an easement,
we are mindful of the following principles of law:
The use of an easement must be confined strictly to the
purposes for which it was granted or reserved. A principle which
underlies the use of all easements is that the owner of an easement
cannot materially increase the burden of it upon the servient estate or
impose thereon a new and additional burden.
A fundamental principle is that an easement for the benefit of
a particular piece of land cannot be enlarged and extended to other
parcels of land, whether adjoining or distinct tracts, to which the right
is not attached. In other words, an easement appurtenant to a
dominant tenement can be used only for the purposes of that
tenement; it is not a personal right, and cannot be used, even by the
dominant owner, for any purpose unconnected with the enjoyment of
his estate. The purpose of this rule is to prevent an increase of the
burden upon the servient estate, and it applies whether the easement
is created by grant, reservation, prescription, or implication.
A principle which underlies the use of all easements is that the
owner thereof cannot materially increase the burden of it upon the
servient estate, nor impose a new and additional burden thereon. . . .
It may be said in general that if an easement is put to any use
-9-
inconsistent with the purpose for which it was granted, the grantee
becomes a trespasser to the extent of the unauthorized use.
Adams v. Winnett, 156 S.W.2d 353, 357 (Tenn. Ct. App. 1941) (citations omitted); see also
McCammon v.Meredith, 830 S.W.2d 577, 580 (Tenn. Ct. App. 1991); Ogle v. Trotter, 495 S.W.2d
558, 565 (Tenn. Ct. App. 1973). Moreover, we are mindful that the City’s utility easement takes the
form of an express grant. “If the easement is claimed under a grant, the extent of the easement is
determined by the language of the grant.” Foshee v. Brigman, 129 S.W.2d 207, 208 (Tenn. 1939).
Therefore, the grantee’s use of the easement must be strictly confined to the purpose stated in the
grant. Henry v. Tenn. Elec. Power Co., 5 Tenn. App. 205, 208 (Tenn. Ct. App. 1927). When the
grant specifically sets forth the terms of the easement, the grantee cannot use the easement for a
purpose beyond its intended use. Id.; accord 28A C.J.S. Easements §§ 57, 148, 160 (1996).
In the instant case, the City’s utility easement expressly states that it is limited to activities
related to public utilities (i.e. electric, gas, water, and sanitary sewer lines). The City asserts that the
easement authorizes the City to “clear said right-of-way and keep the same clear of brush, trees . .
. and to remove danger [sic] trees, if any, located beyond the limits of the right-of-way.” While
acknowledging that it used the property as a staging area for its road improvement project, the City
contends that, pursuant to the language in the easement, it is permitted to enter the property to
remove any debris remaining after the project was completed. We cannot agree.
Ordinarily, the holder of an easement may enter upon the property that is the subject of the
easement to remove an obstruction which occurs naturally or is unlawfully placed there. See Rollins
v. Elec. Power Bd. Of the Metro. Gov’t of Nashville & Davidson County, No. M2003-00865-COA-
R3-CV, 2004 Tenn. App. LEXIS 358, at *15-16 (Tenn. Ct. App. June 8, 2004) (citation omitted);
28A C.J.S. Easements §§ 181 (1996). The utility easement at issue clearly incorporates this right
into its express language. The City’s right to enter the easement to remove obstructions is “together
with” the manner in which the City may use the property. Thus, the right to remove obstructions is
clearly intended to further the enumerated uses of the easement. In this case, however, the
obstructions (i.e. the debris remaining from the road improvement project) existed on the easement
by virtue of the City’s own conduct. It is disingenuous for the City to utilize the utility easement in
a manner which is clearly not contemplated by the express language of the easement (i.e. as a staging
area for a road construction project) and subsequently assert that it has the authority, pursuant to the
same easement, to enter onto the land to remove that which it could not place there in the first
instance.
Accordingly, the preponderance of the evidence supports the trial court’s finding that the City
parked the excavator on land “owned or within the control of” the City. Although the trial court did
not go further and say whether the excavator was parked on the right-of-way or the utility easement,
our review of the record reveals that the preponderance of the evidence indicates that the excavator
was at least partially parked within the utility easement. See Ganzevoort v. Russell, 949 S.W.2d 293,
296 (Tenn. 1997) (“When the trial judge has failed to make specificfindings of fact, this Court will
review the record to determine the preponderance of the evidence.”). However, as a matter of law,
-10-
the City’s use of the utility easement exceeded the scope of that easement, therefore, it became a
trespasser. See Adams v. Winnett, 156 S.W.2d 353, 357 (Tenn. Ct. App. 1941); see also Henry v.
Tenn. Elec. Power Co., 5 Tenn. App. 205, 207-08 (Tenn. Ct. App. 1927). Thus, the trial court erred
in finding that Walker-Hall participated in a trespass.
B.
Damages
On appeal, Walker-Hall raises two additional issues for our consideration. First, Walker-
Hall argues that the trial court erred in finding that it was negligent in having the excavator removed
from the property. Next, we are asked to examine whether the City sufficiently proved the amount
of damages awarded by the trial court during the proceedings below.
Having determined that the City became a trespasser by exceeding the scope of the
permissible use of the utility easement, Walker-Hall would be privileged to have the excavator
removed. See Restatement (Second) of Torts § 77 (1965). As both parties acknowledge , “[t]he
owner of realty owes to a trespasser the duty not to injure him willfully, maliciously, or
intentionally.” Yarbrough v. Potter, 207 S.W.2d 588, 589 (Tenn. 1948); but see Hudson v. Gaitan,
675 S.W.2d 699, 703 (Tenn. 1984) (rejecting the common law classifications of invitee and licensee
and adopting a duty of reasonable care as to these individuals). A person acts willfully when his
actions are “voluntary and intentional, but not necessarily malicious.” Black’s Law Dictionary 1593
(7th ed. 1999); see also Barkley v. State, 54 S.W.2d 944, 945 (Tenn. 1932). “A person acts
maliciously when the person is motivated by ill will, hatred, or personal spite.” Hodges v. S. C. Toof
& Co., 833 S.W.2d 896, 901 (Tenn. 1992); see also Carson v. Baird, 900 S.W.2d 685, 690-91 (Tenn.
1995). “A person acts intentionally when it is the person’s conscious objective or desire to engage
in the conduct or cause the result.” Hodges, 833 S.W.2d at 901; see also Carson, 900 S.W.2d at 690-
91. Thus, to recover for the damage done to its excavator, the City needed to present evidence
showing that Walker-Hall’s conduct, or that of its employees or agents, rose to one of these levels.
It is clear from reading the City’s complaints and reviewing the evidence presented at trial
that the City sought recovery based on the alleged negligence of Walker-Hall in having the excavator
removed. In fact, the trial court concluded that, by failing to determine the ownership of the
excavator prior to having it towed, Mr. Scarbrough acted negligently. However, we find no proof
in the record tending to show that Walker-Hall, its employees, or agents acted willfully, maliciously,
or intentionally in damaging the City’s excavator while removing it. Negligence is not the standard
by which the courts of this state must evaluate the actions of a landowner against a trespasser. Thus,
even if the actions of Walker-Hall rose to the level of negligence, the trial court erred in awarding
damages to the City on this basis.
Accordingly, we do not need to reach the arguments raised by the parties concerning whether
the City adequately proved its damages at trial because, based on the record before this Court, the
-11-
City is not entitled to recover for the damage to its equipment. Furthermore, sinceWalker-Hall did
not file a counterclaim for damages against the City for trespass, we need not address what damages,
if any, Walker-Hall would be entitled to.
IV.
CONCLUSION
For the foregoing reasons, we reverse the decision of the trial court and remand this case to
the trial court for any further proceedings which are necessary as a result of this opinion. Costs of
this appeal are taxed to the Appellee, the City of Jackson, Tennessee, for which execution may issue
if necessary.
___________________________________
ALAN E. HIGHERS, JUDGE
-12-
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898 N.E.2d 1216 (2008)
KLOTZ
v.
HOYT.
Supreme Court of Indiana.
July 10, 2008.
Transfer granted.
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696 F.2d 984
Pryorv.Fireman's Fund Ins. Co.
82-5271
UNITED STATES COURT OF APPEALS Third Circuit
11/19/82
D.Pa., 537 F.Supp. 971
AFFIRMED
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646 F.2d 1216
8 Fed. R. Serv. 239
PILLSBURY CO., Appellant,v.CLEAVER-BROOKS DIVISION OF AQUA-CHEM, INC., Appellee.
No. 80-1223.
United States Court of Appeals,Eighth Circuit.
Submitted March 9, 1981.Filed April 22, 1981.
Robins, Zelle, Larson & Kaplan, Minneapolis, Minn., James D. Steiner, Minneapolis, Minn., argued, Robert M. Wattson, Minneapolis, Minn., Kenneth M. Moran, Jamestown, N. D., for appellant.
Paul G. Woutat, Grand Forks, N. D., argued, Vaaler, Gillig, Warcup, Woutat, Zimney & Foster, Grand Forks, N. D., for appellee.
Before BRIGHT, Circuit Judge, GIBSON, Senior Circuit Judge, and ROSS, Circuit Judge.
ROSS, Circuit Judge.
1
In this products liability action, the Pillsbury Company sought recovery for damages to a steam boiler unit from the unit's manufacturer, Cleaver-Brooks Division of Aqua-Chem, Inc. Pillsbury alleged that a defect in the design of the automatic cutoff devices prevented the boiler from shutting itself off during a low water condition on April 26, 1975, and sought recovery for the damages to the boiler under the theories of negligence, breach of warranty and strict products liability. Following a trial to the court, Judge Paul Benson1 held that Pillsbury had "failed to prove its case by a preponderance of the evidence."
2
On appeal, Pillsbury contends that the evidence is insufficient to support the trial court's decision, that the trial court erred in applying the controlling principles of North Dakota law and, finally, that the trial court erred in admitting into evidence the hearsay report of defendant's employee, James Loibel. We disagree on all grounds.
3
Judge Benson's ultimate conclusion in this case was a factual one regarding Pillsbury's failure to prove that a defect in the design of the low water cutoff mechanism was the cause of the damage to the boiler. From our review of the record and the arguments of the parties, written and oral, we cannot conclude that this factual conclusion concerning causation is clearly erroneous. Automated Controls, Inc. v. MIC Enterprises, 599 F.2d 288, 289 (8th Cir. 1979). In addition, we find no merit in Pillsbury's contention that Judge Benson's decision is contrary to the controlling principles of North Dakota law. Accordingly, we affirm the decision of the trial court as to these two issues on the basis of Judge Benson's Memorandum of Decision and Order of December 20, 1979.
4
The third and final issue, which was not addressed in Judge Benson's opinion, requires some discussion here. During the trial, Judge Benson admitted into evidence over the plaintiff's objection the written report of James Loibel, one of the defendant's employees. Loibel reported that he arrived at the plant to inspect the boiler two days after the accident, and that he spoke to Dave Nichols, one of Pillsbury's supervisors. Loibel's report noted that E. J. Penn, the operator of the boiler at the time of the incident, had stated that the burner went off during a low water test, which would indicate that at least one of the cutoff devices had operated properly. Pillsbury argues that this is the only direct evidence which would support the possibility that the cutoff devices functioned properly because Penn testified at trial that the only time the boiler shut down was when he, Penn, had accidentally shut it off.
5
Pillsbury argues on appeal that it was prejudicial error for the district court to admit this report containing multiple hearsay into evidence at trial. We disagree for two reasons. First, we believe that the statements of Penn and Nichols fall within the category of representative admissions of party opponents under Rule 801(d)(2)(D) of the Federal Rules of Evidence. Unlike the situation in Cedeck v. Hamiltonian Federal Savings and Loan Ass'n, 551 F.2d 1136, 1138 (8th Cir. 1977), the statements were known to have been made by employees of the defendant in the scope of their employment relationship and during the existence of that relationship. Kaiser Aluminum & Chemical v. Illinois Central Gulf Railroad Co., 615 F.2d 470, 476 (8th Cir.), cert. denied, -- U.S. --, 101 S. Ct. 249, 66 L. Ed. 2d 116 (1980). And although the statements of the two employees appear in Loibel's third party account, we find no basis for excluding the report. Loibel's deposition was read into evidence and he indicated in that testimony that what he had written down about his conversations with Penn and Nichols accurately reflected those conversations. Pillsbury had the opportunity to question Penn, Nichols and Loibel about the report. In addition, we feel that Nichols adopted the contents of the report, pursuant to Rule 801(d)(2)(B) of the Federal Rules of Evidence, by signing each page of the report right after it was made.2 Under Rule 801(d)(2)(D) of the Federal Rules of Evidence, the statements are not hearsay, and they were properly admitted by Judge Benson as admissions by the defendant's employees.3
6
Second, we would reach the same conclusion even if we were to conclude that the report was erroneously admitted into evidence. In our view, other evidence in the record lends support to the trial court's conclusion that Pillsbury had failed to prove its case by a preponderance of the evidence. Among other things, Judge Benson pointed out that there was evidence in the record which could support alternative theories of causation, and there was evidence from which the court could conclude that the primary cutoff devices had operated properly. Moreover, the court found that the only evidence of possible misalignment of the piping system due to the alleged existence of a design defect came after the accident when the boiler was rebuilt. Thus, in light of the other evidence which was inconsistent with the plaintiff's theory of causation, we find that any error which might have existed in the admission of Loibel's report was harmless. Rule 61, Federal Rules of Civil Procedure.
7
Accordingly, the decision of the district court is affirmed.
1
The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota
2
Loibel's report was admitted into evidence during Cleaver-Brooks' cross-examination of Nichols. Nichols testified that he had signed each page of Loibel's report and that it was his personal policy to sign reports made by servicemen whenever a report is reviewed with him and he understands its contents. In addition, Nichols specifically agreed that his signature indicated that the content of the report was accurate to his knowledge
Pillsbury attempted to discredit the notion that Nichols had adopted the report on their voir dire. In response to the plaintiff's questions, Nichols testified that his signature did not mean that he vouched for the truth of what Penn had told Loibel, and that he was not present during those conversations. This court previously has held, however, that personal knowledge is not a prerequisite for the adoption of another's statement pursuant to Rule 801(d)(2) (B) of the Federal Rules of Evidence. Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626, 630-31 (8th Cir. 1978).
3
Although Judge Benson commented that the statements contained in the report were admissions against interest, it is clear from the comments of counsel and the foundation laid for the admission of the exhibit that it was offered as an admission of the employees of the party opponent
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722 S.E.2d 13 (2012)
STATE
v.
HUFFMAN.
No. COA11-1103.
Court of Appeals of North Carolina.
Filed February 21, 2012.
Case Reported Without Published Opinion
No Error.
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721 S.E.2d 763 (2012)
BAKER
v.
BAKER.
No. COA11-1010.
Court of Appeals of North Carolina.
Filed February 7, 2012.
Case Reported Without Published Opinion
Affirmed.
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694 F.2d 723
Medinav.Stockton Terminal and Eastern R.R.
81-4451
UNITED STATES COURT OF APPEALS Ninth Circuit
10/28/82
1
E.D.Cal.
AFFIRMED
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
ASSIGNED ON BRIEFS MARCH 17, 2005
IN THE MATTER OF B.L.R., D.O.B. 10/14/02, A CHILD UNDER
EIGHTEEN YEARS OF AGE
Direct Appeal from the Juvenile Court for Weakley County
No. C-1422 James H. Bradberry, Judge
No. W2004-02636-COA-R3-PT - Filed August 4, 2005
This appeal involves the termination of the parental rights of a biological father to his infant
daughter. The day after the daughter was born, the Department of Children’s Services became
involved with the family and learned that both the mother and father were using methamphetamine.
Shortly after the department became involved in this case, the mother took very little interest in her
infant daughter. The department implemented several permanency plans calling for father to
demonstrate that he remained drug free and was attending counseling to resolve his addiction. When
the father failed to attend counseling on a regular basis and continually tested positive for
methamphetamine, the department filed a petition to terminate his parental rights. Following a
hearing on the petition, the trial court held that the department had proven, by clear and convincing
evidence, all the grounds for termination alleged in the petition. The trial court also held that
terminating father’s parental rights was in the child’s best interest. Father appealed, and we affirm
the trial court’s decision regarding the grounds for termination, however, we vacate the order and
remand this case to the trial court for further action consistent with this opinion.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part;
Vacated in Part and Remanded
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.
Langdon S. Unger, Jr., Martin, TN, for Appellant
Paul G. Summers, Attorney General and Reporter, Kate Eyler, Deputy Attorney General, Nashville,
TN, for Appellee
OPINION
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 14, 2002, Brandy Lynn Adams (“Mother”) gave birth to a daughter, B.L.R.
While Mother was not married at the time she gave birth to B.L.R., Larry Gene Roney (“Father” or
“Appellant”) subsequently acknowledged that he is the biological father of B.L.R. Mother and
Father never married.
On October 15, 2002, the Department of Children’s Services (“DCS”) received a referral,
apparently from hospital staff, concerning B.L.R. Camille Liggons (“Ms. Liggons”), an investigator
with Child Protective Services, was assigned the referral. Ms. Liggons learned that, despite having
a normal delivery, Mother had not engaged in prenatal care, and Mother and Father were using,
manufacturing, and/or selling methamphetamine.1 Thereafter, DCS placed Intensive Family
Preservation into the home on October 21, 2002, to work with Mother. At the time of B.L.R.’s birth,
Mother lived with her mother and father. During Ms. Liggons’ initial interview with Mother, Mother
stated that she and Father were having relationship problems, and she agreed that she would continue
to reside with her parents.2 Shortly after B.L.R. was born, Mother’s parents forced her to leave their
home. Mother then moved in with Father, and DCS paid the rent and some utilities to assist Mother
and Father with setting up a new home. However, Mother and Father were ultimately evicted when
they stopped paying rent. Mother subsequently took B.L.R. and returned to her parents’ home.
On December 12, 2002, Ms. Liggons attempted to contact Mother and Father to follow up
on their progress, but she could not locate them. On December 18, 2002, Ms. Liggons finally located
Mother and B.L.R. at a house occupied by one of Father’s relatives. Ms. Liggons stated that she
found B.L.R. to be “extremely dirty” and Mother to be “strung out.” DCS apparently administered
a drug screen, and Mother tested positive for methamphetamine use. DCS could not locate Father,
and Ms. Liggons learned that both Mother and Father had outstanding warrants for their arrest. On
December 18, 2002, DCS took B.L.R. into protective custody. On December 20, 2002, DCS filed
a “Petition for Temporary Custody” in the Juvenile Court of Weakley County, Tennessee, claiming
that B.L.R. was a dependent and neglected child. That same day, the juvenile court entered a
“Protective Custody Order” temporarily placing B.L.R. into the custody of DCS.
After DCS took custody of B.L.R., Mother disappeared and could not be located for some
1
In approximately 1998, Mother gave birth to a son who tested positive for methamphetamine at birth. DCS
took custody of the child, and Mother’s parental rights to her son were eventually terminated. Around the year 2000,
a family adopted B.L.R.’s older brother.
2
Around the time of B.L.R.’s birth, Father had just been released from jail on bail pending resolution of
charges for domestic violence assault against Mother.
-2-
time. On January 14, 2003, DCS created a permanency plan with the sole goal of returning B.L.R.
to her parents. Under this plan, Father was responsible for satisfying the following requirements
before he could regain custody of B.L.R.: (1) complete an alcohol and drug assessment, follow
treatment recommendations, and submit to random drug screens; (2) maintain a safe and stable home
for at least four months; (3) complete a mental health evaluation, follow treatment recommendations,
and continue with any counseling until released by the counselor; and (4) resolve all pending legal
issues. Subsequent plans entered on July 213 and September 23, 2003,4 reiterated the above
requirements, but they also required Father to avoid associating with known drug users and/or
dealers, maintain employment, and obtain his driver’s license.5 After creating the initial permanency
plan, DCS referred Father for an alcohol and drug assessment and also made a referral for a mental
health evaluation. DCS subsequently placed Intensive Family Preservation services in the home to
help Father work toward reunification. All of the services required by the permanency plans were
paid for by either DCS or TennCare.
Father underwent an initial mental health evaluation in January of 2003. DCS apparently
permitted Father, based upon the recommendation of the mental health counselor, to have
unsupervised visitation with B.L.R. for eight hours one day per week. DCS subsequently learned
that Father had allegedly molested a child a number of years prior, therefore, DCS referred Father
for a psychological and psycho-sexual evaluation. DCS also filed a petition in the juvenile court on
June 20, 2003, seeking a no contact order. That same day, the juvenile court entered a “Restraining
Order and No Contact Order” forbidding contact between Father and B.L.R. pending a future
hearing. On July 18, 2003, the trial court entered an order requiring that future visitation between
B.L.R. and Father be supervised. Father never completed a psycho-sexual evaluation.
On November 3, 2003, DCS filed a petition in the juvenile court seeking to terminate
Father’s parental rights regarding B.L.R.6 The petition alleged that B.L.R. had been in DCS custody
since December 18, 2002. The petition also alleged that Father had been given nine drug screens,
five of which revealed he tested positive for methamphetamine use. DCS also stated that Father had
not complied with the drug and mental health counseling required by the permanency plans.
Accordingly, DCS alleged the following as grounds for terminating Father’s parental rights: (1)
3
This permanency plan listed the dual goals of returning B.L.R. to her parents or placement with a relative.
4
This permanency plan listed the dual goals of returning B.L.R. to her parents or adoption.
5
Father had previously been convicted of driving under the influence, and he was also arrested for driving
on a revoked license during the pendency of the case.
6
In its petition, DCS also sought to terminate M other’s parental rights. That same day, the DCS case
manager assigned to the case filed an affidavit with the juvenile court stating that Mother’s whereabouts were
unknown. DCS’s last contact with Mother occurred in August of 2003 when Mother refused a drug screen stating
that she used methamphetamine the prior weekend. The trial court ordered that notice of the petition be published in
a local newspaper for four consecutive weeks. On March 3, 2004, the juvenile court entered an order terminating
Mother’s parental rights to B.L.R. by default. Mother has not filed an appeal in this case, therefore, we are only
concerned with Father’s parental rights to B.L.R. on appeal.
-3-
abandonment by his willful failure to visit, (2) abandonment by his willful failure to support, (3) the
condition which led to removal, or other conditions, still persist in the home, and (4) substantial
noncompliance with the permanency plans implemented by DCS. On August 19, 2004, the juvenile
court conducted a hearing on DCS’s petition. At trial, DCS presented the testimony of numerous
witnesses and introduced several exhibits to primarily explain Father’s lack of effort toward
satisfying the requirements in the permanency plans between the implementation of the first
permanency plan and the date of trial.
Terry Winbush (“Mr. Winbush”), a licensed addictions therapist with Pathways Behavioral
Health Services (“Pathways”), testified concerning Father’s level of participation in drug counseling.
He conducted the initial alcohol and drug assessment of Father on February 21, 2003. In conducting
the evaluation, Mr. Winbush found that Father had a “high probability of having a substance
dependence disorder and is in need of care.” Father subsequently entered substance abuse
counseling with Pathways on an outpatient basis on March 27, 2003. On August 21, 2003, Mr.
Winbush created a report explaining that Father had attended three sessions and missed four up to
that date. In this report, Mr. Winbush stated that “[Father’s] progress is mostly superficial and has
a poor prognosis.” He also discussed a letter, dated December 9, 2003, that he and a colleague
drafted at the request of Father’s attorney stating that, as of that date, Father attended eleven and
missed seven of his appointments with the counselors. Mr. Winbush also stated in the letter that
he believed Father to be drug free at that point. Mr. Winbush admitted, however, that, at the time
he drafted the letter, he had never seen the results of any of Father’s drug screens. The last time Mr.
Winbush saw Father was on March 15, 2004, and he had not released Father from counseling at that
point. Mr. Winbush testified that Father simply stopped coming to their sessions. He admitted that
Father called him after he stopped attending the counseling sessions, but he did not have time to
return his calls. Mr. Winbush also expressed his opinion that, if Father were allowed to embark on
a new program of counseling, Father could overcome his addiction.
Several witnesses called by DCS to testify at the hearing presented testimony and exhibits
demonstrating that Father continued to use methamphetamine both prior to and after DCS filed the
petition to terminate Father’s parental rights to B.L.R. Laura Tony (“Ms. Tony”), an employee of
Pathways, testified that she conducted random drug screens of Father. Ms. Tony stated that, early
on during the process, Father would come to her office and request a drug screen, but she refused
his offers because the test would not be random. She first tested Father on February 12, 2003, and
performed a total of eight drug screens on Father by taking urine samples. Her records indicated that
Father tested positive for methamphetamine on February 12, 2003, February 20, 2003, and March
6, 2003. Father tested negative for methamphetamine on March 26, 2003, October 14, 2003,
December 9, 2003, January 13, 2004, and May 25, 2004. Emily Gatlin (“Ms. Gatlin”), the records
custodian for Rapid Care, a facility which collects and screens different samples to identify drug use,
identified two documents showing the results for two drug screens performed on hair samples
submitted by Father. The first test, performed on July 8, 2003, indicated that Father tested positive
for methamphetamine. The second test, performed on December 9, 2003, indicated that Father
tested positive for methamphetamine and amphetamine.
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Dr. James Meeker (“Dr. Meeker”), a licensed toxicologist with West Tennessee Health Care,
testified concerning the various samples used to test for drugs in the human body. Dr. Meeker
reviewed several drug screens performed on Father’s hair, blood, and urine between February of
2003 and March of 2004. He stated that methamphetamine can be detected in blood for up to forty-
eight (48) hours, urine for three to four days, and hair, if taken from the base of the scalp, for up to
ninety (90) days.7 After analyzing the test results of the various samples taken from Father, Dr.
Meeker created a chart encompassing all of the months of 2003. Dr. Meeker used this chart to
explain to the trial court how, using the results from various samples, he charted Father’s drug use
during 2003. Dr. Meeker did admit, however, that his analysis could not identify a particular drug
user’s specific pattern or frequency of use.
Dr. Meeker evaluated two urine samples submitted by Father which were tested in February
of 2003, both revealing positive results for methamphetamine. With the ability to detect
methamphetamine in urine for three to four days, he surmised that father used methamphetamine in
the month of February 2003. Next, he evaluated a blood sample which was taken from Father and
tested in May of 2003, and it also indicated positive for methamphetamine use. This result from a
blood sample, he opined, would mean that Father used methamphetamine in May of 2003 within
forty-eight (48) hours of that test. He also evaluated the test results from a hair sample taken from
Father in July of 2003 which tested positive for methamphetamine. He testified that this indicated
that Father had used methamphetamine on multiple occasions between April of 2003 and July of
2003. Then, he evaluated a urine sample taken from Father in August of 2003 which tested positive
for methamphetamine, indicating Father used the drug within that month. Finally, Dr. Meeker
evaluated the test results from another hair sample taken from Father in December 2003 which also
tested positive for methamphetamine. This indicated to him that Father had used methamphetamine,
again on multiple occasions, between September 2003 and December 2003.
DCS also presented testimony related to Father’s mental health. John Burroughs (“Mr.
Burroughs”) and Carolyn Burroughs (“Mrs. Burroughs”) have been B.L.R.’s foster parents since she
came into DCS custody in December 2002. Mrs. Burroughs is also Father’s cousin. Mrs. Burroughs
has interacted with B.L.R. since she was born, and she and Mr. Burroughs expressed their desire to
adopt B.L.R. At trial, Mr. Burroughs testified concerning a previous suicide attempt by Father which
he witnessed. Mr. Burroughs stated that Father had a .22 caliber rifle and asked Mr. Burroughs to
shoot him, but he refused Father’s request. Later that same night, Father, in the presence of Mr.
Burroughs, took the rifle and shot himself in the shoulder. He stated that Father told him “he wanted
to know what it felt like to shoot hisself in case he did commit suicide.” Mrs. Burroughs testified
that Father has a bad temper, but she admitted that she has not been inside Father’s house within the
year prior to the trial.
On April 4, 2004, Dr. Charles Viar (“Dr. Viar”), a licensed senior psychological examiner
with Pathways, evaluated Father and prepared a report setting forth his findings. During the initial
evaluation, Dr. Viar reported that Father “approached evaluation with anger, sarcasm, made crude
7
Dr. Meeker testified that every half-inch of hair typically represents a thirty-day period of detection.
-5-
attempts throughout the evaluation to manipulate the procedure in his favor and continually blamed
[DCS] for his problems.” He described Father’s disposition during their initial meeting as “quite
hostile.” Dr. Viar recommended that Father undergo individual psychotherapy and drug treatment.
He diagnosed Father as having major depression, amphetamine dependence, alcohol dependency,
and antisocial personality disorder. Dr. Viar recommended that Father initially go through such
therapy over a six month period. Dr. Viar testified that, if Father had not been attending therapy
sessions, he would question returning custody of B.L.R. to Father. He also admitted that, at the time
he made his diagnosis, he only had access to four drug screens conducted on Father, all of which
were positive for methamphetamine use. When asked if knowledge that some of Father’s drug
screens were negative would change his diagnosis, Dr. Viar stated that he would have reached the
same diagnosis, but the chances of Father successfully completing therapy would have improved.
Other than their initial meeting, Dr. Viar had no further contact with Father.
Kelly Green (“Ms. Green”) served as the case manager for B.L.R.’s case on behalf of DCS.
She testified that Father consistently refused to provide DCS with proof of his income, despite
adding the requirement that he obtain employment to the permanency plan. Ms. Green testified that
Father’s employment has been sporadic, and she would call Father’s employer after he worked at a
particular job for a while only to learn that he had either been fired or quit. Ms. Green stated that
Father has never paid child support for B.L.R., and he is currently in arrears in the amount of
$5,000.00. However, Father was able to pay his fines in the thousands of dollars, and he even paid
between $1,500.00 and $2,000.00 to secure a new driver’s license. Ms. Green stated that, at the time
he obtained his new license, Father did not have a job. Regarding his present home, Ms. Green
admitted that Father keeps it clean and appropriate. She also stated that the psychological evaluation
performed on Father revealed two prior suicide attempts, in addition to the one witnessed by Mr.
Burroughs.
Ms. Green stated that, in her opinion, Father’s drug use was the biggest obstacle to reuniting
him with B.L.R. She conveyed how Father would become “very aggressive” and curse her when he
was asked to submit to a drug screen. After a hearing in August of 2003, Ms. Green randomly tested
Father and found him to be positive for methamphetamine. They then took Father to a hospital to
submit to a urine test which also indicated Father had used methamphetamine. When she confronted
him with the results, Ms. Green stated that Father became angry and told her that he submitted a six-
year old’s urine at the hospital as his own sample, therefore, the test was wrong. Ms. Green relayed
that, during one of B.L.R.’s supervised visits with Father, he stated that some individuals had come
by his house to buy drugs. He told Ms. Green that he sent them away, however, she became
concerned about how they knew to come to Father to buy drugs. Ms. Green also expressed her
concerns that some of Father’s family members also use illegal drugs. She stated that DCS stopped
giving Father drug screens in 2004 after DCS refused to provide more funding for testing. In March
of 2004, Ms. Green gave Father the last test performed by DCS which came back positive for
methamphetamine use.
In response to the proof presented by DCS, Father called several of his own witnesses to
demonstrate the improvement he made in his life since DCS filed the petition to terminate his
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parental rights to B.L.R. Bobby Doyer (“Ms. Doyer”), an employee of Outback Victims Assistance
Program and Father’s neighbor, testified that, at the time of trial, she believed Father was no longer
taking drugs. She stated that Father keeps an “immaculately clean home.” Ms. Doyer stated that
Father came to her for help, but she admitted that she is not a licensed counselor. She also admitted
that she did not keep records of her interactions with Father because their relationship was not
conducted pursuant to her employment. Starla Roney, Father’s sister, reiterated that Father made
improvements in his life in the months before trial, but she stated that, while she had never seen
Father use methamphetamine, she did know that he had tested positive for the drug in the past. Eury
Smith, Father’s pastor, testified that, while he did not know the specifics of Father’s prior drug use,
he believed Father was sincere about reuniting with his daughter.
Father also testified at trial. When asked about the money he used to pay his fines, he stated
that he paid the fines by doing “side jobs.” He also stated that he could not remember when he last
filed an income tax return. When asked about his drug use, Father admitted that he had previously
engaged in manufacturing methamphetamine about eight years prior. He also stated that he last used
methamphetamine about six months prior to the hearing. When he did use methamphetamine, Father
stated that he would use it approximately once a week. When asked about the present state of his
methamphetamine use, Father testified as follows:
Q. Do you feel like you have a methamphetamine problem?
A. Yes, I’ve had a problem with it.
Q. But you say you don’t have a problem now?
A. I’m not going to say that. I mean, its not no — just get over
it, overnight thing.
Father also stated that he has family members who have problems with methamphetamine as well.
Father testified that he substituted a six year old child’s urine for his own during one of his drug
screens which produced a positive result.
Father also testified that, as of the date of the hearing, he had resolved all of his criminal
matters that were previously pending. While he secured a valid license by the time of the hearing,
Father admitted that he drove without a valid license for several months. Father acknowledged his
obligation under the permanency plans to seek counseling, but he stated that he did not attend
because he had to work. He also acknowledged that he is partially to blame for missing his
counseling sessions. Father acknowledged that he has not paid child support, but he has paid his
fines and other bills.
Father’s position at the hearing was that, in the months leading up to the trial, he has
improved his station in life. According to Father, he has started attending church, and he argues that,
as the most recent drug screens indicate, he remained drug free for several months prior to the
hearing. Father asserted that, if the trial court were to give him six more months to go through
counseling as Dr. Viar suggested, he would change. In fact, Father stated that if he did not remain
drug free for an additional six-month period, he would voluntarily sign over his rights to B.L.R.
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At the conclusion of the hearing, the trial court addressed the parties on the record. The
juvenile court, after discussing certain aspects of the proof, determined that DCS proved the grounds
for termination alleged in the petition by clear and convincing evidence and that terminating Father’s
parental rights was in B.L.R.’s best interest. On September 27, 2004, the trial court entered a written
order setting forth its specific factual findings, in relevant part, as follows:
11. That the initial permanency plan was entered into with the
parents on January 14, 2003 requiring Respondent Larry
Roney would complete an alcohol and drug assessment,
maintain a stable home, complete a mental health intake, and
cooperate and resolve all pending legal matters.
12. That services were put into place, including alcohol and drug
assessment through Terry Winbush, counseling with
Elizabeth Shanklin, a psychological by Dr. Charlie Biar [sic],
random drug screens, and therapeutic visitation was set up
with Respondent Larry Roney.
13. That Respondent Larry Roney has tested positive for
methamphetamine on numerous occasions over the past two
(2) years; and that he states he has been drug-free for the past
five (5) months. On September 2, 2003, Mr. Roney tested
positive for methamphetamine, but stated that there was no
way he could test positive because he took urine from a six-
year old child to the test. This Court additionally found that
there were concerns as to sexual abuse of a stepdaughter in
June of 2003.
14. That the Court finds the witnesses for the Department of
Children’s Services are more credible than Mr. Roney.
15. That based upon the testimony of the expert witness, James E.
Meeker, that Respondent Larry Roney has had a substantial
history of methamphetamine usage and that he has been less
than forthright about his usage of same.
....
17. That Elizabeth Shanklin, LCSW testified as an expert
witness; that Terry Winbush testified as an expert witness;
and that Dr. Charlie Viar testified that Respondent Larry
Roney did in fact have a dependence upon methamphetamine;
that he would require a long-term period of stability and
counseling; and that he had been noncompliant with
counseling in the past. Elizabeth Shanklin testified that Mr.
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Roney would have cycles of stability and then instability.8
His prognosis was poor.
The juvenile court also made the following conclusions of law in its final order:
18. The child was found to be dependent and neglected by this
Court and was placed in the custody of the Department of
Children’s Services; the Department made reasonable efforts
to prevent removal or the child’s situation prevented
reasonable efforts from being made prior to removal; the
Department has made reasonable efforts to assist the parent,
Larry Roney to establish a suitable home for the child for a
period of four (4) months following the removal, but
Respondent, Larry Roney, has made no reasonable efforts to
find a suitable home and has demonstrated a lack of concern
for the child to such a degree that it appears unlikely that he
will be able to provide a suitable home for the child at an
early date.
19. The child has been removed by order of this Court for a
period of six (6) months; the conditions which led to her
removal still persist; other conditions persist which in all
probability would cause the child to be subjected to further
abuse and neglect and which, therefore, prevent the child’s
return to the care of the Respondent, Larry Roney; there is
little likelihood that these conditions will be remedied at an
early date so that this child can be returned to Respondent,
Larry Roney, in the near future; and the continuation of the
legal parent and child relationship greatly diminishes the
child’s chances of early integration into a stable and
permanent home.
20. Despite frequent explanations of the Statement of
Responsibilities set out in the periodic foster care plans
prepared for and signed by Respondent, Larry Roney, has
failed to comply in a substantial manner with those reasonable
responsibilities related to remedying the conditions that
necessitated foster care placement.
21. Awarding legal and physical [sic] of the child to said
Respondent would pose a risk of substantial harm to the
physical and psychological welfare of the child.
8
After reviewing every page of the transcript of the testimony presented to the trial court on August 19,
2004, we find no testimony provided by Elizabeth Shanklin. The only reference to Mr. Shanklin contained in the
record is found in a letter she co-authored along with Mr. W inbush which DCS introduced as an exhibit at trial.
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22. That it is by clear and convincing evidence that it is in the
best interest of the child, [B.L.R.], that the parental rights of
Respondent Larry Roney to the child be forever terminated
and that the complete custody, control, and guardianship of
the child be awarded to the State of Tennessee, Department of
Children’s Services, with the right to place to [sic] the child
for adoption and to consent to such adoption in loco parentis.
23. That the Department of Children’s Services has exercised
reasonable efforts to prevent removal and reunify the family,
including intensive family preservation, payment of rent,
counseling, alcohol and drug assessment counseling,
psychological evaluation, random drug testing, therapeutic
visitation, and case management.
Father filed an appeal to this Court presenting, as we perceive them, the following issues for
our review:
(1) Whether DCS established, by clear and convincing evidence, one of the grounds for
terminating Father’s parental rights; and
(2) Whether terminating Father’s parental rights is in the best interest of his daughter.
For the reasons set forth more fully herein, we affirm in part, reverse in part, and remand this case
to the trial court for further proceedings.
II.
STANDARD OF REVIEW
“A biological parent’s interest in the care, custody, and control of his or her child is among
the oldest of the judicially recognized fundamental liberty interests.” Ray v. Ray, 83 S.W.3d 726,
732 (Tenn. Ct. App. 2001) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). Both the United
States and Tennessee Constitutions recognize that parents have a fundamental right to the care,
custody, and control of their children. Santosky v. Kramer, 455 U.S. 745, 754 (1982); Stanley v.
Illinois, 405 U.S. 645, 651 (1972); Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002); In re
Swanson, 2 S.W.3d 180, 187 (Tenn. 1999); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993); Ray,
83 S.W.3d at 732. However, this is not a right which is entirely immune from state involvement.
In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). A biological parent’s rights regarding the
custody of a minor child will continue so long as the parents have not voluntarily relinquished their
rights, abandoned their rights, or engaged in conduct requiring the limitation or termination of their
rights. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); Stokes v. Arnold, 27 S.W.3d 516, 520
(Tenn. Ct. App. 2000).
Proceedings in Tennessee to terminate the parental rights of a biological parent are governed
by statute. See Tenn. Code Ann. § 36-1-113 (2003); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
-10-
2002); In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 Tenn. App. LEXIS 160, at *14 (Tenn.
Ct. App. Mar. 9, 2004); In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 Tenn. App. LEXIS 415,
at *31 (Tenn. Ct. App. June 3, 2003). A party seeking to terminate a biological parent’s parental
rights must prove two things: (1) the existence of one of the statutory grounds justifying termination
by clear and convincing evidence, Tenn. Code Ann. § 36-1-113(c)(1) (2003); In re D.L.B., 118
S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re C.W.W., 37
S.W.3d 467, 475 (Tenn. Ct. App. 2000); and (2) terminating the biological parent’s parental rights
is in the child’s best interest, Tenn. Code Ann. § 36-1-113(c)(2) (2003); In re A.W., 114 S.W.3d 541,
545 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d at 475-76.
Terminating a biological parent’s parental rights is a harsh result, Tenn. Code Ann. § 36-1-
113(l)(1) (2003), therefore, in order to prevent the unwarranted termination of parental rights, the
legislature requires that a statutory ground for termination be proven by clear and convincing
evidence. Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
This Court has previously described the clear and convincing evidence standard in the following
terms:
Evidence that satisfies this heightened burden of proof eliminates any
serious or substantial doubt concerning the correctness of the
conclusion to be drawn from the evidence, Walton v. Young, 950
S.W.2d 956, 960 (Tenn. 1997); Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992); In re C.D.B., 37 S.W.3d 925, 927
(Tenn. Ct. App. 2000). It should produce in the fact-finder’s mind a
firm belief or conviction regarding the truth of the allegations sought
to be established. O'Daniel v. Messier, 905 S.W.2d [182, 188 (Tenn.
1995)].
Ray, 83 S.W.3d at 733. “In contrast to the preponderance of the evidence standard, clear and
convincing evidence should demonstrate that the truth of the facts asserted is ‘highly probably’ as
opposed to merely ‘more probable’ than not. In re C.W.W., 37 S.W.3d at 474 (citing Lettner v.
Plummer, 559 S.W.2d 785, 787 (Tenn. 1977); Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct.
App. 1992); Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn. Ct. App. 1981)).
Parental termination proceedings, due to their complexity and the gravity of their
consequences, require individualized decision making. In re Swanson, 2 S.W.3d 180, 188 (Tenn.
1999); In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004); In re S.M., 149 S.W.3d 632, 639
(Tenn. Ct. App. 2004). When reviewing a lower court’s decision to terminate a biological parent’s
parental rights, we utilize the following standard of review:
Because of the heightened burden of proof required by Tenn. Code
Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s
customary standard of review for cases of this sort. First, we must
review the trial court’s specific findings of fact de novo in accordance
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with Tenn. R. App. P. 13(d). Thus, each of the trial court’s specific
factual findings will be presumed to be correct unless the evidence
preponderates otherwise. Second, we must determine whether the
facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the
elements required to terminate a biological parent’s parental rights.
In re M.J.B., 140 S.W.3d at 654 (citations omitted); see also Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002); Ray, 83 S.W.3d at 733.
We are also mindful that, in cases of this nature, a significant portion, if not all, of the
evidence is testimonial in nature. Thus, when reviewing a parental termination case on appeal, we
are bound by the following principle of appellate jurisprudence:
Unlike appellate courts, trial courts are able to observe witnesses as
they testify and to assess their demeanor, which best situates trial
judges to evaluate witness credibility. See State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d
563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the most
favorable position to resolve factual disputes hinging on credibility
determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc.,
778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971
S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly, appellate courts
will not re-evaluate a trial judge’s assessment of witness credibility
absent clear and convincing evidence to the contrary. See Humphrey
v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987);
Bingham v. Dyersburg Fabrics. Co., Inc., 567 S.W.2d 169, 170
(Tenn. 1978).
Wells v. Tenn. Bd. Of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (emphasis added); see also In re
R.L.H., No. M2002-01179-COA-R3-JV, 2003 Tenn. App. LEXIS 414, at *20 (Tenn. Ct. App. June
3, 2003); Powell v. Powell, 124 S.W.3d 100, 104-05 (Tenn. Ct. App. 2003); In re Petition of
Weatherford, No. W1999-01014-COA-R3-CV, 2000 Tenn. App. LEXIS 837, at *11-12 (Tenn. Ct.
App. Dec. 29, 2000); In re M.C.G., No. 01A01-9809-JV-00461, 1999 Tenn. App. LEXIS 327, at
*21-22 (Tenn. Ct. App. May 26, 1999).
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III.
DISCUSSION
A.
Grounds for Termination
In its petition to terminate Father’s parental rights, DCS alleged the following grounds: (1)
abandonment pursuant to section 36-1-113(g)(1) of the Tennessee Code, (2) substantial
noncompliance with the permanency plans pursuant to section 36-1-113(g)(2) of the Tennessee
Code, and (3) persistent conditions pursuant to section 36-1-113(g)(3) of the Tennessee Code. Clear
and convincing evidence of any one of these grounds is sufficient to support terminating Father’s
parental rights to B.L.R. See In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Turning to the first issue presented for review on appeal, Father makes two arguments. First,
Father asserts that the trial court did not make specific findings of fact regarding each ground alleged
by DCS when issuing its oral order following the hearing. Although he cites to section 36-1-113(k)
of the Tennessee Code in support of this position, Father has misconstrued the statute. Section 36-1-
113(k) provides: “The court shall enter an order which makes specific findings of fact and
conclusions of law within thirty (30) days of the conclusion of the hearing.” Tenn. Code Ann. § 36-
1-113(k) (2003) (emphasis added). It is a well-established principle of law in this state that a court
speaks only through its written judgments, duly entered upon its minutes. Green v. Moore, 101
S.W.3d 415, 420 (Tenn. 2003); Evans v. Perkey, 647 S.W.2d 636, 641 (Tenn. Ct. App. 1982). Thus,
when this Court undertakes a review of a parental termination case, we are concerned with whether
the trial court’s final written order, not its oral statements to the parties, satisfies the statute. See In
re Muir, No. M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831, at *8-10 (Tenn. Ct. App.
Nov. 25, 2003). Upon reviewing the trial court’s order, we have determined that it satisfies the
statutory requirement so far as the grounds for termination are concerned.
Next, Father argues that the evidence presented by DCS at trial does not rise to the level of
clear and convincing evidence. Father devotes the entire argument section of his brief to addressing
section 36-1-113(g)(2) of the Tennessee Code, the substantial noncompliance ground for
termination. Accordingly, we will first examine whether DCS carried its burden at trial of proving,
by clear and convincing evidence, that Father was substantially noncompliant with the permanency
plans implemented by DCS in this case.
Section 36-1-113(g)(2) provides that a ground for terminating a biological parent’s parental
rights exists when “[t]here has been substantial noncompliance by the parent. . .with the statement
of responsibilities in a permanency plan or a plan of care pursuant to the provisions of title 37,
chapter 2, part 4.” Tenn. Code Ann. § 36-1-113(g)(2) (2003). DCS is required, within thirty (30)
days of a child entering foster care, to prepare a plan setting forth the goals (i.e. return to the parent,
placement with a relative, adoption, or other planned permanent living arrangement) for the child.
Tenn. Code Ann. § 37-2-403(a)(1) (2003). “The permanency plan for any child in foster care shall
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include a statement of responsibilities between the parents, the agency and the caseworker of such
agency.” Tenn. Code Ann. § 37-2-403(a)(2) (2003). In addressing the substantial noncompliance
ground for termination, our supreme court has stated:
Substantial noncompliance is a question of law which we
review de novo with no presumption of correctness. Substantial
noncompliance is not defined in the termination statute. The statute
is clear, however, that noncompliance is not enough to justify
termination of parental rights; the noncompliance must be substantial.
Black’s Law Dictionary defines “substantial” as “of real worth and
importance.” Black’s Law Dictionary 1428 (6th ed. 1990). In the
context of the requirements of a permanency plan, the real worth and
importance of noncompliance should be measured by both the degree
of noncompliance and the weight assigned to that requirement. Terms
which are not reasonable and related are irrelevant, and substantial
noncompliance with such terms is irrelevant.
In re Valentine, 79 S.W.3d 539, 548-49 (Tenn. 2002) (emphasis added). “Trivial, minor, or
technical deviations from a permanency plan’s requirements will not be deemed to amount to
substantial noncompliance.” In re M.J.B., 140 S.W.3d 643, 657 (Tenn. Ct. App. 2004). In
conjunction with making a determination as to whether there has been substantial noncompliance
with the requirements in a permanency plan, the trial court must also determine that the permanency
plan’s requirements “are reasonable and are related to remedying the conditions which necessitate
foster care placement.” Tenn. Code Ann. § 37-2-403(a)(2)(C) (2003); In re Valentine, 79 S.W.3d
at 547.
In the instant case, the permanency plans implemented by DCS required Father to do the
following: (1) complete an alcohol and drug assessment, follow treatment recommendations, and
submit to random screens; (2) maintain a safe and stable home for at least four months; (3) complete
a mental health evaluation, follow treatment recommendations, and continue with any counseling
until released by the counselor; (4) resolve all pending legal issues; (5) avoid associating with known
drug users and/or dealers; (6) maintain employment; and (7) obtain a driver’s license. DCS
explained these requirements to Father, and he signed each plan agreeing to comply with the terms.
The trial court found these requirements to be reasonably related to remedying the conditions which
led to B.L.R.’s placement in foster care, and we agree with that assessment.
The evidence in the record established that Father obtained a valid driver’s license and
established a safe, stable home for at least four months by the time of trial. While Father had
resolved a significant portion of his legal issues by the time of trial, he testified that, at the time of
the hearing, he was out of jail on bond pending resolution of a contempt charge. Regarding Father’s
employment, Ms. Green testified that Father never provided her with proof of his income. Father
did provide her with a letter showing he was working at an automotive garage, and she verified this
to be true. At trial, Father stated that, since the birth of his daughter, he had worked “off and on.”
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However, Ms. Green stated that Father did not stay employed anywhere continuously, and he
“jumped from job to job.” After Father worked at a particular job for a couple of weeks, Ms. Green
called to verify his employment only to learn that he had either quit or been fired.
While Father’s steps toward satisfying each of the aforementioned requirements sheds light
on his level of compliance, or lack thereof, with the permanency plans, we must turn our attention
to the most important requirements. See In re Valentine, 79 S.W.3d at 548-49. At trial, Ms. Green
readily admitted that Father’s drug use was the biggest obstacle to reunification with his daughter.
As such, the permanency plans required Father to submit to random drug testing and attend drug and
mental health counseling in an effort to ensure that he remained drug free.
Between January of 2003, when the first permanency plan was implemented, and November
2003, when DCS filed the petition to terminate Father’s parental rights, Father tested positive for
methamphetamine use five times. Father tested positive twice for methamphetamine use in February
2003, and he tested positive in May, July, and August of 2003. Dr. Meeker testified concerning the
extent of Father’s drug use as gleaned from the various samples taken from Father. Based on the hair
samples which tested positive, Dr. Meeker was able to surmise that Father used methamphetamine
on multiple occasions between April and July 2003, as well as between September and December
2003. After DCS filed the petition in this case, Father continued to test positive for
methamphetamine use in December of 2003 and March of 2004. The March 2004 test was the last
test to show that Father was positive for methamphetamine use. At trial, Father stated that he has
remained drug free since that test was given, and he relies on subsequent tests showing negative
results to support his position. Father, relying on the testimony of Dr. Viar, asserted that, if he is
given another six month period to work on his drug habit, he could remain drug free.
Despite Father’s assurances, the record indicates that DCS has clearly and convincingly
established that Father has been substantially noncompliant with the permanency plan in this case.
First, the trial court expressly found that Father was not a credible witness, and the court even
discussed Father’s demeanor during the proceedings when addressing the parties at the conclusion
of the hearing. The trial court referred to Father’s “chuckling” and displaying a “cavalier” attitude
during the trial. Furthermore, not only was Father to remain drug free, but the permanency plans also
required that Father attend counseling to address his addiction and mental health issues. Between
January and November of 2003, Father’s attendance at counseling was sporadic. In a report filed
in August of 2003, Mr. Winbush described Father’s progress up to that point as “superficial” and
determined Father had a “poor prognosis.” The record demonstrates that little has changed since that
time. According to Mr. Winbush, Father stopped attending counseling altogether in March 2004
without being released by his counselors. When Father went to see Dr. Viar in April of 2004, Dr.
Viar reported that Father was “quite hostile” and uncooperative. Dr. Viar also testified that, if
Father were not attending his therapy sessions, he would question returning custody of B.L.R. to
Father. At trial, Father freely admitted that he continued to have a problem with his
methamphetamine addiction, however, the record indicates that Father has not returned to therapy
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since March of 2004.9 Finally, Father has not addressed the mental health issues raised by the
counselors during their sessions. The evidence revealed three previous suicide attempts by Father,
and Dr. Viar diagnosed Father as having major depression and antisocial personality disorder. The
record reveals that Father has not made an effort to remedy these concerns either. In fact, Father
acknowledged at trial that he is partially to blame for missing his counseling sessions.
Father’s assurances at trial that, if he is given six more months to address his drug problem,
he will change are “too little, too late.” Compare In re A.R.G., No. M2004-00894-COA-R3-PT,
2005 Tenn. App. LEXIS 122, at *16 (Tenn. Ct. App. Feb. 25, 2005); State v. B.L.K., No. E2002-
01724-COA-R3-JV, 2003 Tenn. App. LEXIS 360, at *24 (Tenn. Ct. App. May 20, 2003); In re A.W.,
114 S.W.3d 541, 546 (Tenn. Ct. App. 2003); In re C.A.T., No. 01-A-01-9510-JV-00474, 1996 Tenn.
App. LEXIS 291, at *15-16 (Tenn. Ct. App. May 17, 1996), with In re M.J.M., No. M2004-02377-
COA-R3-PT, 2005 Tenn. App. LEXIS 221, at *33-36 (Tenn. Ct. App. Apr. 14, 2005) (noting that
a Mother’s efforts were not “too little, too late” when she demonstrated that, after the petition to
terminate her parental rights was filed, she continued to work diligently toward addressing her
methamphetamine addiction by seeking out counseling on her own.) Since we have determined that
DCS clearly and convincingly proved the ground for termination found in section 36-1-113(g)(2) of
the Tennessee Code, we need not address the remaining grounds for termination. See In re N.P., No.
W2004-00345-COA-R3-PT, 2004 Tenn. App. LEXIS 879, at *13 (Dec. 23, 2004); In re J.S., No.
W2004-00509-COA-R3-PT, 2004 Tenn. App. LEXIS 739, at *16 (Tenn. Ct. App. Nov. 8, 2004),
cert. denied, 2005 Tenn. LEXIS 88 (Tenn. 2005); In re K.M., No. W2003-02156-COA-R3-PT, 2004
Tenn. App. LEXIS 300, at *11 (Tenn. Ct. App. Apr. 30, 2004); State v. Darr, No. 03A01-9706-JV-
00213, 1998 Tenn. App. LEXIS 202, at *9 (Tenn. Ct. App. Mar. 24, 1998); State v. Manier, No.
01A01-9703-JV-00116, 1997 Tenn. App. LEXIS 755, at *18-19 (Tenn. Ct. App. Oct. 31, 1997).
B.
Best Interest
Prior to terminating the parental rights of a parent to a minor child, the trial court must also
find that doing so is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c)(2) (2003). On
appeal, Father argues that the trial court failed to articulate any specific findings of fact regarding
the best interest analysis required by section 36-1-113(c)(2) of the Tennessee Code. The trial court’s
order provides, in relevant part, as follows:
That it is by clear and convincing evidence that it is in the best
interest of the child, [B.L.R.], that the parental rights of Respondent
Larry Roney to the child be forever terminated and that the complete
custody, control, and guardianship of the child be awarded to the
9
Father cannot rely on his interactions with Ms. Doyer to prove otherwise. As Ms. Doyer stated at trial, she
did not keep records of her interactions with Father because he did not seek her help in a professional capacity.
According to Ms. Doyer, their relationship was not conducted pursuant to her employment but as friends.
Furthermore, Ms. Doyer admitted that she is not a licensed counselor.
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State of Tennessee, Department of Children’s Services, with the right
to place to [sic] the child for adoption and to consent to such adoption
in loco parentis.
In In re Muir, No. M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831 (Tenn. Ct. App.
Nov. 25, 2003), this Court addressed a trial court’s statutory duty to make specific findings of fact
in parental termination cases, stating:
A trial court’s responsibility to make findings of fact and
conclusions of law in termination cases differs materially from its
responsibility in other civil cases. Generally, trial courts, sitting
without juries, are not required to make findings of fact or
conclusions of law unless requested in accordance with Tenn. R. Civ.
P. 52.01. Termination cases, however, are another matter. Tenn. Code
Ann. § 36-1-113(k) explicitly requires trial courts to “enter an order
which makes specific findings of fact and conclusions of law” in
termination cases. Thus, trial courts must prepare and file written
findings of fact and conclusions [of] law with regard to every
disposition of a petition to terminate parental rights, whether they
have been requested or not.
Tenn. Code Ann. § 36-1-113(k) reflects the Tennessee
General Assembly’s recognition of the necessity of individualized
decisions in these cases. In re Swanson, 2 S.W.3d 180, 188 (Tenn.
1999) (holding that termination cases require “individualized decision
making”). It also reflects the General Assembly’s understanding that
findings of fact and conclusions of law facilitate appellate review and
promote the just and speedy resolution of appeals. Bruce v. Bruce,
801 S.W.2d 102, 104 (Tenn. Ct. App. 1990). Because of Tenn. Code
Ann. § 36-1-113(k), trial courts cannot follow the customary practice
of making oral findings from the bench and later adopting them by
reference in their final order.
When a trial court has not complied with Tenn. Code Ann. §
36-1-113(k), we cannot simply review the record de novo and
determine for ourselves where the preponderance of the evidence lies
as we would in other civil, non-jury cases. In accordance with In re
D.L.B., 118 S.W.3d at 365, 2003 Tenn. LEXIS 983, 2003 WL
22383609, at *6, we must remand the case for the preparation of
appropriate written findings of fact and conclusions of law.
In re Muir, 2003 Tenn. App. LEXIS 831, at *8-10 (emphasis added); see also D.L.B., 118 S.W.3d
360, 367 (Tenn. 2003).
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In subsequent decisions, this Court, recognizing the mandatory nature of the language found
in section 36-1-113(k) of the Tennessee Code, has firmly established that, when a trial court fails to
perform its statutorily required duty in parental termination cases, this Court must remand the case
to the trial court for the entry of written findings of fact and conclusions of law. See In re M.J.M.,
No. M2004-02377-COA-R3-PT, 2005 Tenn. App. LEXIS 221, at *18-19 (Tenn. Ct. App. Apr. 14,
2005); In re F.R.R., No. M2004-02208-COA-R3-PT, 2005 Tenn. App. LEXIS 130, at *8-9 (Tenn.
Ct. App. Mar. 1, 2005); In re M.O., No. M2004-01602-COA-R3-PT, 2005 Tenn. App. LEXIS 125,
at *14-15 (Tenn. Ct. App. Feb. 25, 2005); State v. C.H.K., 154 S.W.3d 586, 590-91 (Tenn. Ct. App.
2004); In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 Tenn. App. LEXIS 449, at *18-19 (Tenn.
Ct. App. July 13, 2004); In re M.J.B., 140 S.W.3d 643, 653-54 (Tenn. Ct. App. 2004); In re C.M.M.,
No. M2003-01122-COA-R3-PT, 2004 Tenn. App. LEXIS 160, at *16-17 (Tenn. Ct. App. Mar. 9,
2004); State v. McBee, No. M2003-01326-COA-R3-PT, 2004 Tenn. App. LEXIS 85, at *14-16
(Tenn. Ct. App. Feb. 9, 2004); In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re CNR,
No. M2003-01301-COA-R3-PT, 2003 Tenn. App. LEXIS 915, at *6-8 (Tenn. Ct. App. Dec. 23,
2003). We have also noted that the statutory requirement to prepare written findings of fact and
conclusions of law applies with equal force to the best interest component of parental termination
cases. See White v. Moody, M2004-01295-COA-R3-PT, 2004 Tenn. App. LEXIS 890, at *8 (Tenn.
Ct. App. Dec. 30, 2004) (noting that, when handling a parental termination case for the third time
on appeal, this Court had previously remanded the case to the trial court due to its failure to enter
written findings of fact and conclusions of law on the best interest factors); In re C.D.B., No.
M2003-00345-COA-R3-JV, 2003 Tenn. App. LEXIS 804, at *12 (Tenn. Ct. App. Nov. 13, 2003)
(“The findings of fact and conclusions of law required by Tenn. Code Ann. § 36-1-113(k) must
address the two necessary elements of every termination case.”).
The trial court’s order in this case contains a perfunctory statement that terminating Father’s
parental rights is in B.L.R.’s best interest. The order does not include an analysis of the factors set
forth in section 36-1-113(i) of the Tennessee Code and their applicability to the facts of this case.
In White v. Moody, No. M2004-01295-COA-R3-PT, 2004 Tenn. App. LEXIS 890 (Tenn. Ct. App.
Dec. 30, 2004), cert. denied, 2005 Tenn. LEXIS 265 (Tenn. 2005), this Court had before it a parental
termination case for the third time on appeal. White, 2004 Tenn. App. LEXIS 890, at *1. In the
original appeal, this Court affirmed the trial court’s findings regarding the grounds for termination,
but, regarding the best interest analysis, we stated:
We noted that the trial court had failed to make a specific finding that
terminating Mr. Moody's parental rights was in Nicole’s best
interests. Accordingly, we remanded the case to the trial court with
directions to conduct a hearing regarding whether terminating Mr.
Moody's parental rights was in Nicole’s best interests.
Id. at *8 (emphasis added). No only did this Court remand so that the trial court could comply with
the requirements of section 36-1-113(k) of the Tennessee Code, but we directed the trial court to
conduct a new hearing on remand. Id.
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Regarding the actions taken by the trial court on remand, this Court stated:
The trial court conducted two days of hearings in November
2001 and March 2002 to determine whether terminating Mr. Moody’s
parental rights was in Nicole’s best interests. During this hearing, the
trial court limited its consideration to the original record and declined
to permit the parties to introduce new evidence regarding events
occurring after March 2000. Ultimately, in April 2002, the trial court
entered a second order concluding that terminating Mr. Moody’s
parental rights was in Nicole’s best interests. Mr. Moody appealed
again. On July 25, 2003, we again vacated the judgment terminating
Mr. Moody’s parental rights after concluding that the parties should
have been permitted to present evidence regarding Nicole’s best
interest.
Id. at *9 (emphasis added). After the trial court conducted another hearing involving new evidence
and entered its third order, the case came before this Court for the third time on appeal. Id. at *10-
11. After recognizing a trial court’s duty to enter written findings of fact and conclusions of law in
parental termination cases, this court “determined that this case should not be remanded for the entry
of written findings of fact and conclusions of law because of the inordinate delay that has already
occurred in the final disposition of this case.” Id. at *11.
In addressing the most recent order issued by the trial court in White, this Court noted:
In this case, the trial court made oral findings from the bench
at the conclusion of the February 12, 2004 hearing. However, it did not
enter a final order until April 7, 2004, and this order contained neither
findings of fact nor conclusions of law. It simply recites that “it is in
the best interest and welfare of the minor child for the Respondent’s
parental rights [to] be terminated and that the step-father be allowed
to adopt the minor child.” Accordingly, no conclusion can be drawn
other than the trial court has not complied with Tenn. Code Ann. §
36-1-113(k).
Id. at *12-13 (emphasis added). However, in choosing not to remand the case once more to the trial
court, we stated:
In most circumstances, the appropriate remedy for the trial
court’s oversight would be to vacate the judgment terminating Mr.
Moody’s parental rights and granting Mr. White’s adoption petition
and remand the case to the trial court with directions to file written
findings of fact and conclusions of law in accordance with Tenn. Code
Ann. § 36-1-113(k). However, we have already been required to
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remand this case twice. These remands have delayed the final
resolution of this case by approximately three years. Incurring further
delay by remanding this case a third time will not serve the interests
of any of the persons who have been enmeshed in this litigation for
seven long years. Accordingly, rather than remanding the case as we
would customarily do, we will address the substantive merits of the
trial court’s conclusion that terminating Mr. Moody’s parental rights
at this time is in Nicole’s best interests using the trial court’s oral
findings of fact.
Id. at *13-14 (emphasis added).
Remanding this case to the trial court will not result in the undue delay contemplated by
White. The trial court in this case has failed to comply with the requirements of section 36-1-113(k)
of the Tennessee Code in the first instance. Since the trial court reached a decision on the best
interest component of this parental termination case but failed to enter specific findings of fact when
doing so, we must, in accordance with In re Muir and its progeny, vacate the trial court’s order and
remand this case to the trial court for further proceedings. On remand, the trial court is instructed to
enter a new order setting forth its specific findings of fact as they relate to the statutory best interest
factors. If the trial court is unable to do so based on the present record, the trial court may conduct
a new hearing to entertain evidence on whether termination is in B.L.R.’s best interest.
IV.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s finding that one of the grounds for
terminating Father’s parental rights has been established by clear and convincing evidence. However,
we vacate the trial court’s order due to the trial court’s failure to enter the statutorily required findings
of fact and conclusions of law on the issue of whether terminating Father’s parental rights is in
B.L.R.’s best interest. As a result, we must remand this case to the trial court for the entry of findings
of fact and conclusions of law on the best interest prong. Costs of this appeal are taxed to the
Appellant, Larry Roney, for which execution may issue if necessary.
___________________________________
ALAN E. HIGHERS, JUDGE
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Appellant predicates his motion for rehearing upon the contention that the indictment is duplicitous now for the first time raising that question. We see no vice in the indictment in the respect mentioned. Even if it were vulnerable to such an attack it comes too late when made for the first time after conviction. Melley v. State, 93 Tex.Crim. R., 248 S.W. 367; Ramsey v. State, 108 Tex.Crim. R., 299 S.W. 411; Garner v. State, 100 Tex.Crim. R., 272 S.W. 167.
The motion for rehearing is overruled.
Overruled.
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895 N.E.2d 693 (2005)
357 Ill. App. 3d 1082
BOYD
v.
ILLINOIS DEPT. OF CHILDREN & FAMILY SERVICES.
No. 1-04-0483.
Appellate Court of Illinois, First District.
June 30, 2005.
Affirmed.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1995
___________
United States of America, *
*
Appellant, *
* Appeal From the United States
v. * District Court for the
* Eastern District of Missouri.
Kendrix D. Feemster, *
*
Appellee.
___________
Submitted: November 16, 2005
Filed: January 24, 2006
___________
Before SMITH, HEANEY, and BENTON, Circuit Judges.
___________
HEANEY, Circuit Judge.
Following a jury trial, Kendrix D. Feemster was convicted of two counts of
distribution of cocaine base (crack), in violation of 18 U.S.C. § 841(a)(1). Feemster
was sentenced to 120 months of imprisonment, to be followed by eight years of
supervised release. On appeal, the sole issue for our consideration is whether the
district court erred in imposing a 120-month sentence when Feemster’s guidelines
range was 360 months to life. Because we cannot ascertain whether the sentence is
unreasonable based on the record before us, we remand.
BACKGROUND
On March 16, 2004, Feemster sold 11.2 grams of crack to an undercover DEA
Task Force officer. On March 25, 2004, Feemster sold 6.8 grams of crack to the same
officer. Feemster was subsequently charged by indictment with two counts of
distributing crack.1 Feemster went to trial, and was found guilty by a jury of both
counts.
According to undisputed sections of the presentence report, Feemster had
accumulated a lengthy criminal history as a juvenile and adult, mostly made up of
petty crime convictions. Two of his adult offenses, however, qualified as felony
crimes of violence, invoking the guidelines’ career offender enhancement. See USSG
§ 4B1.1. One of these crimes was a first-degree burglary that Feemster committed
while he was seventeen, but for which he was certified as an adult.2 The other
qualifying offense was a first-degree robbery that Feemster committed when he was
twenty-three. Feemster was also subject to a ten-year mandatory minimum due to a
prior felony drug crime that he committed when he was sixteen, but for which he was
also prosecuted as an adult. See 21 U.S.C. § 841(b)(1)(B). Without application of the
statutory minimum or the career offender enhancement, Feemster’s guidelines range
would have been 92 to 115 months of imprisonment. The career offender
enhancement, however, increased his sentencing range to 360 months to life.
1
Feemster was originally charged with three counts, but one of these counts was
dismissed on the government’s motion to protect the confidentiality of one of its
informants.
2
The guidelines definition of “crime of violence” includes those crimes that
were “committed prior to age eighteen . . . if it is classified as an adult conviction
under the laws of the jurisdiction in which the defendant was convicted.” USSG §
4B1.2, comment. (n.1).
-2-
At sentencing on March 10, 2004, Feemster asked the court to consider a
sentence lower than his guidelines range. He reminded the court that, absent his two
qualifying crimes of violence, he would be facing a sentencing range of 92 to 115
months. The court recognized that one of these crimes occurred at a time when
Feemster was seventeen years old and the other happened when he was twenty-three.
The court noted that Feemster’s sentencing range had already increased from 92 to
115 months to at least 120 months by virtue of the mandatory minimum. The
government argued that a thirty-year guidelines sentence was reasonable. The court
disagreed:
I think this sentence is too much. 360 is too much because the offense
you’re counting on [for application of the ten-year mandatory minimum]
is this 16-year-old drug offense for one when he was 16 years old. He’s
only 24. The crimes of alleged violence were one at 17, burglary, and the
other at 23, the robbery.
(Mar. 10, 2004 Sent. Tr. at 15-16.) The court then imposed concurrent 120-month
sentences on each count of conviction, to be followed by three years of supervised
release. On March 17, 2004, Feemster was brought before the court to correct the
term of supervised release so that it met the statutory minimum of eight years. The
court reiterated its reasons for deviating from Feemster’s guidelines range: “I
sentenced him there because in considering the defendant’s age, current age and age
at which he committed the prior offenses including offense when he was 17 – 16 and
17 years old, and that’s why I gave him that sentence that he received.” (Mar. 17,
2004 Sent. Tr. at 3.) This appeal followed.
ANALYSIS
The government first asserts that the district court erred by failing to consult the
guidelines in fashioning its sentence. See United States v. Haack, 403 F.3d 997,
1002-03 (8th Cir. 2005) (requiring sentencing courts in the advisory guidelines regime
-3-
to nonetheless consider the appropriate guidelines range before imposing a sentence).
This assertion is directly contradicted by the record. The court referenced the fact that
Feemster’s guidelines range was 360 months in the March 10, 2004 sentencing
hearing. Moreover, in its Statement of Reasons for the sentence, the court specifically
determined the guidelines range to be 360 months to life. We therefore find the
insinuation that the district court did not know Feemster’s guidelines range wholly
without merit.
We now turn to whether the district court’s imposition of a ten-year sentence
is unreasonable. See United States v. Booker, 125 S. Ct. 738, 766 (2005) (directing
appellate courts to review the sentences of district courts imposed under the advisory
guidelines system for “unreasonableness” with regard to the factors enumerated in 18
U.S.C. § 3553(a)). Booker requires courts to fashion an appropriate sentence,
considering: the nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence imposed to advance
institutional integrity, provide deterrence, protect the public, and rehabilitate the
defendant; and the kinds of sentences available, including the guidelines range.
Booker, 125 S. Ct. at 757; see also 18 U.S.C. § 3553(a).
We note that while the deviation from the guidelines in this case is large, it is
not unique. In United States v. Rogers, 423 F.3d 823 (8th Cir. 2005), our court
affirmed a 360-month sentence for a defendant with a guidelines range of 57 to 71
months. In United States v. Winters, 416 F.3d 856 (8th Cir. 2005), a divided panel
affirmed a 240-month sentence when the guidelines called for 177 to 191 months.
Lastly, in United States v. Christenson, 403 F.3d 1006 (8th Cir. 2005), opinion
vacated and district court judgment aff’d without opinion en banc by an equally
divided court, 424 F.3d 852 (8th Cir. 2005) (en banc), the district court departed from
a 240-month sentence to a 60-month sentence. Thus, large variances from guidelines
sentences are not unprecedented.
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Moreover, the guidelines themselves have recognized that the career offender
enhancement can often result in a gross overstatement of a defendant’s criminal
history. See 4A1.3(b)(3) (permitting a one-category departure for defendants who,
by virtue of the career offender enhancement, have a criminal history category that
overrepresents the seriousness of their past offenses). Our court has done the same,
albeit in pre-Booker jurisprudence. In United States v. Greger, 339 F.3d 666, 671 (8th
Cir. 2003), a panel considered the extent to which a sentencing court could depart for
a career offender defendant. The court noted that the career offender enhancement
raises both the defendant’s offense level and criminal history category. Because the
enhancement raised both ends of a defendant’s sentencing matrix, the court held that
a departure based on the enhancement’s overstatement of the defendant’s criminal
history could affect the same. Thus, the court permitted “career offender-based”
downward departures that lowered both the offense level and the criminal history of
the defendant. Greger, 339 F.3d at 671; see also United States v. Hutman, 339 F.3d
773, 775-77 (8th Cir. 2003) (discussing the availability of downward departures for
defendants whose sentencing ranges reflect an overstated criminal history due to the
career offender enhancement).
For the reasons stated above, we reject the government’s position at oral
argument that any variance from the guidelines sentence would be unreasonable. On
the basis of the record before us, however, we are reluctant to affirm the sentence in
this case. Further analysis is required to support the variance. At sentencing, the
government asked the court to specify which § 3553(a) factors it was relying upon,
but the court simply stated that it already had, appropriately referencing the impact of
the defendant’s youth as a mitigating factor. We agree that the history and
characteristics of the defendant are appropriate considerations here, particularly
because the defendant’s guidelines range more than tripled based on acts committed
while a juvenile. Accord United States v. Senior, 935 F.2d 149, 150-51 (8th Cir.
1991). Booker mandates that the sentencing court go further, and consider all factors
enumerated in § 3553(a). We have often recognized that we defer to the district
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court’s superior position with respect to sentencing decisions. See, e.g., Rogers, 423
F.3d at 829 (noting that post-Booker unreasonableness review “‘is akin to . . . abuse
of discretion review’” (quoting United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir.
2005)). That said, we have also stressed that, in the wake of Booker, a court maintains
a duty to explain its reasons for the sentence imposed with some degree of specificity.
United States v. Engler, 422 F.3d 692, 696-97 (8th Cir. 2005). Accordingly, we
remand the matter for imposition of sentence following more explicit and thorough
consideration of all factors enumerated in § 3553(a).3
CONCLUSION
For the reasons stated herein, we remand to the district court for resentencing.
Because we find the record at this time does not permit our court to undertake a
meaningful analysis of whether the sentence imposed is unreasonable, we express no
opinion on that issue.
______________________________
3
If the district court finds it necessary, it may hold further hearings on the issue
of Feemster’s sentence in order to more fully develop the record.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7321
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM R. TALLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (CR-99-530, CA-01-2420-6-13)
Submitted: November 7, 2002 Decided: November 15, 2002
Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
William R. Talley, Appellant Pro Se. Elizabeth Jean Howard, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William R. Talley seeks to appeal the district court’s order
accepting the recommendation of the magistrate judge and denying
relief on his motion filed under 28 U.S.C. § 2255 (2000). We have
reviewed the record and conclude on the reasoning of the district
court that Talley has not made a substantial showing of the denial
of a constitutional right. See United States v. Talley, Nos. CR-
99-530; CA-01-2420-6-13 (D.S.C. filed July 25, 2002 & entered July
26, 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
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00290-CR
Jay Thayer Williams § From the 372nd District Court
§ of Tarrant County (1154636D)
v. § December 5, 2013
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By _________________________________
Justice Lee Ann Dauphinot
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695 F.2d 564
Robbinsv.White-Wilson Medical Clinic, Inc.
80-5442
UNITED STATES COURT OF APPEALS Fifth Circuit
12/13/82
N.D.Fla., 682 F.2d 503
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 25, 2006
STATE OF TENNESSEE v. CANDICE ALENE PEERY
Direct Appeal from the Criminal Court for Sullivan County
No. S49, 333 Phyllis H. Miller, Judge
No. E2005-02019-CCA-R3-CD - Filed October 16, 2006
Pursuant to a plea agreement, the defendant, Candice Alene Peery, pled guilty to aggravated burglary
and theft of property over $1,000. In return, she received an effective eight-year sentence as a Range
II multiple offender with the manner of service of her sentence to be determined by the trial court.
The court ordered the defendant to serve her sentence in confinement and she appealed, arguing that
the court erred in denying an alternative sentence. Finding no error, we affirm the judgments of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER, JJ., joined.
William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appellant, Candace
Alene Peery.
Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Teresa Murray Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On September 7, 2004, the defendant was indicted for aggravated burglary, a Class C felony,
and theft of property over $1,000, a Class D felony. Thereafter, on May 6, 2005, the defendant pled
guilty to these offenses, agreeing to an effective eight-year sentence as a Range II multiple offender
with the manner of service of this sentence to be determined by the trial court. At the plea
acceptance hearing, the state and the defendant stipulated to the incriminating proof, which
established that the defendant and an accomplice broke into a home and stole over $1000 in property.
The trial court accepted the defendant’s plea and ordered the defendant’s eight-year sentence to run
consecutive to her prior sentences. The court then scheduled a hearing to determine the manner of
service of the sentence.
At the sentencing hearing, the defendant was the only witness to testify. She testified that
she was twenty-one years old and was incarcerated in Washington County. She was currently
serving a six-year sentence that, pursuant to the plea agreement, would run consecutively to her
eight-year sentence. The defendant stated that while incarcerated she had not used drugs and she had
a job. The defendant said that she had been in jail for a year and asserted that being incarcerated for
this period of time served as a “wakeup call.” She realized that she had messed things up and “how
quick [she] could take [herself] back away from everybody and [her] daughter and [her] grandmother
. . . .” The defendant voiced her desire to stay drug free and parole out to a halfway house. The
defendant noted that her daughter was three-and-a-half years old and was staying with her in-laws
while she was incarcerated.
The defendant acknowledged that she had been using some type of drug since she was ten
years old. She also admitted that she had been in drug treatment programs before but never took the
treatment seriously and ended up using drugs again. The defendant stated that she obtained her GED
but had not gone to college. The defendant said she desired to get a job and go back to school.
On cross-examination, the defendant stated that she was married. She admitted that she
failed a drug test on January 10, 2005, at the Blountville Probation Office where she tested positive
for marijuana and cocaine. She also admitted that upon failing the drug test, she told the probation
officer that she had used those substances while incarcerated in the Sullivan County Jail. However,
the defendant claimed that she was attending a twelve-step program in jail. The defendant further
admitted that her grandmother was the victim of her prior forgery convictions and that she had not
provided restitution to the victim, whose house she burglarized.
The defendant’s presentence report was introduced into evidence. According to the report,
the defendant had a lengthy criminal history including convictions for: felony failure to appear;
misdemeanor failure to appear; driving on a suspended license; improper registration; possession and
distribution of intoxicating liquor by a person under 21; forgery of numerous checks; unlawful
possession of drug paraphernalia; and felony possession of drugs. The report also indicated that the
defendant had not abided by the terms of her previous probation and release into the community.
The report indicated that the defendant had violated previous probationary sentences by incurring
new criminal charges, failing to appear for her probation hearings, and failing to comply with the
conditions of her probation.
Following the sentencing hearing, the trial court noted that the defendant was not presumed
to be a favorable candidate for alternative sentencing because she pled as a Range II multiple
offender. The court then meticulously considered all the enhancing and mitigating factors, the
principles of sentencing, the presentence report, and the defendant’s testimony. The court found that
the defendant had an extensive history of criminal convictions and criminal behavior. The court also
found that the defendant was the leader in the commission of the aggravated burglary and theft. The
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court further found that the defendant had a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community. The court also considered various
mitigating factors but gave them little to no weight. The court then denied the defendant’s request
for alternative sentencing and ordered her to serve her eight-year sentence in confinement.
Thereafter, the defendant filed a timely notice of appeal to this court.
ANALYSIS
The defendant’s sole issue on appeal is whether the trial court erred in denying alternative
sentencing and imposing full confinement. When an accused challenges the length and manner of
service of a sentence, this court conducts a de novo review of the record with a presumption that the
trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). This 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. Pettus, 986 S.W.2d 540,
543-44 (Tenn. 1999). However, if the record shows that the trial court failed to consider the
sentencing principles and all relevant facts and circumstances, then review of the challenged
sentence is purely de novo without the presumption of correctness. State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). On appeal, the party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401(d), Sentencing
Commission Comments. In conducting our de novo review of a sentence, this court must consider
(a) the evidence adduced at trial and the sentencing hearing; (b) the pre-sentence report; (c) the
principles of sentencing; (d) the arguments of counsel as to sentencing alternatives; (e) the nature
and characteristics of the offense; (f) the enhancement and mitigating factors; and (g) the defendant’s
potential or lack of potential for rehabilitation or treatment. Id. §§ 40-35-103(5), -210(b).
Tennessee Code Annotated section 40-35-103 provides guidance as to whether the trial court
should grant alternative sentencing or sentence the defendant to total confinement. Sentences
involving confinement should be based upon the following considerations:
(A) Confinement is 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 . . . .
....
(5) The potential or lack of potential for the rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of
a term to be imposed. . . .
Tenn. Code Ann. § 40-35-103(1), -(5).
-3-
In the instant case, the defendant was eligible for probation because her actual sentence was
eight years or less and the offense for which she was sentenced was not specifically excluded by
statute. See Tenn. Code Ann. § 40-35-303(a). However, as a multiple offender, she was not
presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6).
As a result, the burden of establishing suitability for alternative sentencing rested with the defendant.
Upon review, the record fully supports the trial court’s denial of alternative sentencing. The record
reflects that the defendant had a long history of criminal convictions and criminal behavior. The
record further reflects that efforts less restrictive than confinement had frequently and recently failed,
as the defendant was given several opportunities at probation and violated the conditions of her
probation many times. Accordingly, we conclude that the defendant has failed to carry her burden
of establishing that she is entitled to alternative sentencing.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court. However, we discern a clerical error in the judgment for theft of property over $1,000. The
judgment incorrectly states that the defendant’s sentence is six years and not eight years as reflected
in the transcript of the plea hearing. Therefore, we remand for correction of this judgment.
___________________________________
J.C. McLIN, JUDGE
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Jackson June 6, 2006
STATE OF TENNESSEE v. WILLIAM H. GRISHAM, II
Direct Appeal from the Criminal Court for Jackson County
Nos. 03-25, 03-26 J.O. Bond, Judge
No. M2005-02072-CCA-R3-CD - Filed September 11, 2006
The defendant, Willam H. Grisham, II, was indicted on two counts of first degree premeditated
murder, two counts of felony murder, and one count of especially aggravated robbery. The jury
returned not guilty verdicts on each count of felony murder. The defendant was convicted of two
counts of first degree premeditated murder and one count of especially aggravated robbery. The trial
court imposed consecutive life sentences for each of the murder convictions and a consecutive
sentence of ten years for the robbery. In this appeal of right, the defendant argues that the evidence
was insufficient to support any of the three convictions. The judgments of the trial court are
affirmed.
Tenn. R. App. P. 3; Judgments of the Trial Court are Affirmed
GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.
MCLIN , JJ., joined.
Gregory D. Smith, Clarksville, Tennessee (on appeal), and Comer Donnell, Public Defender and
Tom Bilbrey, Assistant Public Defender (at trial), for the appellant, William H. Grisham, II.
Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Tom
P. Thompson, District Attorney General; and Howard Chambers and Tiffany Gibson, Assistant
District Attorneys General, for the appellee, the State of Tennessee.
OPINION
On December 4, 2002, Detective Michael Smith of the Gainesville Police Department was
dispatched to a residence in Jackson County regarding a possible shooting. When he entered the
residence, Detective Smith discovered the bodies of the victims, Ernest and Maybelle Stafford,
seated in recliners in their living room. At the time of their deaths, each of the victims had physical
disabilities. Ms. Stafford had suffered a stroke, was unable to walk, and had no use of her arms. Mr.
Stafford had back problems and had suffered three heart attacks.
During the course of the investigation which followed, TBI Special Agent Russ Winkler
interviewed the defendant, who had known the victims for about a year prior to their deaths and who
had admitted that he had purchased the prescription drug OxyContin from them on prior occasions.
The defendant claimed to the officer that he had been to the Stafford residence the day before the
shooting and had been informed that they did not have any drugs available for sale at that time. He
stated that he later acquired sixty or eighty forty-milligram pills of OxyContin from a man by the
name of Chad Jones who, in turn, had claimed to have purchased the pills from a Bubba Fox. The
defendant told the officer that he understood Fox had "killed a man for the pills."
After acquiring the statement from the defendant, Agent Winkler found a Chad Jones, who
neither met the physical description provided by the defendant nor drove the vehicle the defendant
had described. Agent Winkler then looked for others in the area by the same name but was
unsuccessful in locating anyone. In a second interview by Agent Winkler, the defendant made a
sworn statement claiming that he had illegally purchased two or three forty-milligram pills per week
from the Staffords at thirty dollars each. He stated that shortly before the shooting, he had learned
from Mr. Stafford that a Bubba Fox and Troy Pharris had threatened to kill him "if he (Mr. Stafford)
even thought about turning them in" to the authorities. The defendant claimed that later on the same
day, he saw Fox and Pharris who informed him that they "had took care of the one down there that
was going to be doing all the narcing." The defendant told Agent Winkler that Pharris showed him
a .22 or .32 caliber revolver. He also claimed that Fox told him "to keep my mouth shut or I'd be
next." The defendant informed the officer that on the next day, he first learned that the Staffords had
been murdered.
Agent Winkler acquired search warrants for the Pharris and Fox residences, conducted
searches, and found nothing indicating that either of the two men were involved in the murders.
Later, the officer was contacted by the defendant who claimed that two car loads of people wearing
masks had blocked him in his driveway and had threatened to kill him if he talked any further to law
enforcement.
One week after the murder, the defendant made a third statement to Agent Winkler admitting
that he had lied about Chad Jones, Bubba Fox, and Troy Pharris. He acknowledged that he had
never heard Ernest Stafford say that any of these men had threatened him. The defendant also
admitted that he had lied about the two car loads of masked individuals. He told the officer that he
actually owed Ernest Stafford money for drugs and claimed that he traveled to the Stafford residence
in a vehicle driven by Mike Sizemore, who intended to buy some pills. The defendant contended
that he gave Sizemore sixty dollars to purchase some "Oxy's in the forty size" and that while he
waited outside in the vehicle, he heard two gunshots. The defendant told the officer that when he
ran to the residence, he saw each of the Staffords slumped in their chairs and saw Sizemore with a
gun in his hand. He contended that Sizemore, who was armed with a .22 caliber revolver, threatened
to kill him and his family unless he kept his "mouth shut." The defendant told Agent Winkler that
Sizemore, who had "a big wad of money" and "two big white bags of pill bottles" in his possession,
handed him $2,000 in cash.
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After taking this statement, Agent Winkler asked the defendant to wear a body wire in an
effort to determine whether Sizemore might implicate himself in the shootings. On the trip from
Carthage to Gainesboro, the defendant informed the agent that he had stolen his grandfather's .22
revolver that Sizemore used in the shootings. He claimed that he then traded the weapon to
Sizemore for pills. The defendant also told the officer that his fingerprints would be on the weapon
because he had actually fired it on a prior occasion. At that point, the defendant admitted that he still
had possession of the revolver, claiming Sizemore had asked him to get rid of it after the shooting.
The defendant informed Agent Winkler that he had buried the gun under his grandfather's barn and
then led him to its location.
After gaining possession of the weapon, Agent Winkler advised the defendant of his Miranda
rights. The defendant signed a waiver form and made another statement. While continuing to assert
that Sizemore had killed the victims, he admitted to having stolen the weapon from his grandfather,
but claimed he had traded it to Sizemore and then hidden it after the shootings. He explained that
he feared telling the truth to the officer because "I was scared the gun had my fingerprints on it and
if it was found it would look like I killed the Staffords." After this admission, the defendant declined
to submit to a body wire in a conversation with Sizemore. After further discussion, he finally
acknowledged that Sizemore had nothing to do with the shooting. In his final version, the defendant
contended that he had driven to the Stafford residence on the night of the shooting, knocked on the
door, and been confronted by Ernest Stafford, who possessed a shotgun. He claimed that Ernest
Stafford accused him of "setting him up" and then raised his shotgun. The defendant told Agent
Winkler that he then pulled his gun from his waistband and shot Ernest Stafford in the back of the
head. He stated that when Mrs. Stafford was awakened by the noise, he shot her in the head. The
defendant recalled that he grabbed the shotgun, unloaded it, and returned it to the bedroom, but left
the shotgun shells on the coffee table. In an effort to "make it look like a robbery," he took $2,300
cash from Ernest Stafford's front pocket and took a paper bag of pills from the refrigerator. The
defendant told the officer that the bag contained sixty to eighty Somas, three Lortab tens, and ten to
fifteen OxyContin tens. The defendant admitted that he owed Ernest Stafford $235 for prior
purchases of pills and acknowledged that he had acted alone in the shootings.
An autopsy established that Ernest Stafford died from a single gunshot to the back of his
head. Mrs. Stafford died of a single gunshot wound to the right side of her head. The TBI
determined that the bullets recovered from each of the victims were fired from the defendant's .22
caliber revolver.
The defendant first asserts that the evidence was insufficient for first degree murder because
the state failed to prove premeditation. He next argues that the evidence was insufficient to support
a conviction of especially aggravated robbery because the taking occurred after the victims had been
shot.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
-3-
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Because a verdict of guilt against a defendant removes the presumption of innocence and raises a
presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992).
The defendant first argues that the robbery did not appear to be the motive because nearly
$40,000 in cash was found at the Stafford residence after the shootings. The defendant argues that
there was no evidence the murders had been planned in advance. He contends that State v. West,
844 S.W.2d 144 (Tenn. 1992), stands for the proposition that any efforts toward concealment of a
homicide is not proof of premeditation.
In State v. Keough, 18 S.W.3d 175 (Tenn. 2000), our supreme court described first degree
murder as the "'premeditated and intentional killing of another.'" Id. at 181 (quoting Tenn. Code Ann.
§ 39-13-202 (a)(1) (1997)). "'Intentional' refers to a person who acts intentionally with respect to
the nature of the conduct or to a result of the conduct when it is the person's conscious objective or
desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-302(a)(1997). The
element of premeditation is defined by statute:
"[P]remeditation" is an act done after the exercise of reflection and judgment.
“Premeditation” means that the intent to kill must have been formed prior to the act
itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused
for any definite period of time. The mental state of the accused at the time the
accused allegedly decided to kill must be carefully considered in order to determine
whether the accused was sufficiently free from excitement and passion as to be
capable of premeditation.
Tenn. Code Ann. § 39-13-202(d). In Keough, our supreme court cited State v. Bland, 958 S.W.2d
651, 660 (Tenn. 1997), as having identified circumstances from which the element of premeditation
might be inferred:
[T]he use of a deadly weapon upon an unarmed victim; the particular cruelty of a
killing; any threats or declarations of intent to kill made by the defendant; the
procurement of a weapon; any preparations to conceal the crime which are
undertaken before the crime is committed; and calmness immediately following a
killing.
18 S.W.3d at 181.
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Premeditation may, of course, be inferred from the circumstances of the killing. Hicks v.
State, 533 S.W.2d 330, 334-35 (Tenn. Crim. App. 1975). The existence of premeditation is a
question for the jury and may be established by the proof of the circumstances surrounding the
offense. State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000).
In this instance, there was nothing other than the claim of the defendant to indicate that Mr.
Stafford was armed. Further, the defendant admitted that he was armed when he entered the Stafford
residence. He acknowledged that he shot Ernest Stafford in the back of the head and then shot Mrs.
Stafford when she was awakened by the noise. The defendant, who conceded that he owed the
Staffords money and had driven to their residence in order to illegally purchase drugs, was armed
with a revolver when he confronted the couple. After the shootings, the defendant took $2,300 in
cash from the pocket of Ernest Stafford and removed several prescription pills from the refrigerator.
That the defendant disposed of the empty shells, reloaded the weapon, wiped off his finger prints and
buried the revolver underneath his grandfather's barn implies a degree of calmness after the shooting.
In our view, these circumstances adequately establish the element of premeditation.
Robbery is the intentional or knowing theft of property from the person of another by
violence or by putting the person in fear. Tenn. Code Ann. § 39-13-401(a) (1997). When a robbery
is accomplished by a deadly weapon and the victim suffers serious bodily injury, the robbery is
especially aggravated. Tenn. Code Ann. § 39-13-403(a). The defendant admitted taking the money
and the prescription drugs. Because the Staffords were murdered, the defendant was able to steal
the cash and the drugs. In State v. Shawnda James, No. 01C01-9803-CC-00093 (Tenn. Crim. App.,
at Nashville, Aug. 11, 1999), a panel of this court was not persuaded by an argument that the
defendant was only guilty of theft because there was no intention to steal by violence or by placing
the victim, whom she had shot and killed, in fear. The circumstantial evidence here refutes the
contention of the defendant. Further, the defendant owed the victims money, he regularly used the
addictive drugs that he typically acquired from the victims, and he searched the refrigerator for drugs
before leaving the residence. That suggests that the defendant was motivated by his desire for the
money for the drugs or for both. In our view, the evidence of the robbery was sufficient.
Accordingly, the judgments of the trial court are affirmed.
___________________________________
GARY R. WADE, PRESIDING JUDGE
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________ *
*
No. 05-2367 *
________________ *
*
United States of America, *
*
Appellee, *
*
v. *
*
John H. Sitting Bear, *
*
Appellant. * Appeals from the United States
* District Court for the
________________ * District of South Dakota.
*
No. 05-2368 *
________________ *
*
United States of America, *
*
Appellee, *
*
v. *
*
Melinda L. Marshall, *
*
Appellant. *
________________
Submitted: January 11, 2006
Filed: February 7, 2006
________________
Before MURPHY, HANSEN, and SMITH, Circuit Judges.
________________
HANSEN, Circuit Judge.
John H. Sitting Bear pleaded guilty to committing second degree murder in
Indian country, 18 U.S.C. §§ 1153 and 1111, and Melinda L. Marshall pleaded guilty
to aiding and abetting second degree murder in Indian country, 18 U.S.C. §§ 1153,
1111, and 2, following the tragic death of their four-year-old son, John, Jr. The
district court1 sentenced each of them to 228 months (19 years) of imprisonment, from
which they both appeal. We affirm as to each defendant.
I. Background
Sitting Bear and Marshall were the parents of four-year-old John, Jr., who died
following a period of abuse by Sitting Bear and Marshall. Marshall's sister raised
John, Jr. from the time of his birth until he was almost four years old while Marshall
was serving time in federal prison for assault with a deadly weapon. Marshall and
Sitting Bear fought for and won custody of John, Jr. around Christmas 2002. He died
less than six months later on June 19, 2003.
Marshall and Sitting Bear each accused the other of various forms of abuse
against John, Jr. prior to his death. The evidence revealed that John, Jr. was toilet
trained when he was returned to his parents. Following his return to their custody,
Marshall got upset when John, Jr. made messes in his pants, and she often withheld
food from him so that she would not have to clean up after him. In the six months in
which John, Jr. was under Marshall's and Sitting Bear's care, he lost 19 pounds,
weighing only 30 pounds at the time of his death. Marshall also spanked John, Jr.
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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with the metal handle of a fly swatter on his back, legs, and buttocks. According to
Sitting Bear, these beatings were nearly daily. Sitting Bear was a forest firefighter and
was away from home for stretches at a time. Although he left the primary discipline
to Marshall, Marshall claimed that Sitting Bear frequently spanked John, Jr. with a fly
swatter, belt, or curtain rod as well.
Both defendants claimed that the other beat John, Jr. on the evening of June 17.
It is undisputed, however, that on June 18, Sitting Bear woke John, Jr. early in the
morning as Sitting Bear was getting ready for a firefighter training class and sent
John, Jr. out to the outhouse to use the bathroom. Unsatisfied with John, Jr.'s slow
pace, Sitting Bear shoved John, Jr. out the door, causing John, Jr. to fall on the
cement. John, Jr. was still moving slowly when he returned to the house, so Sitting
Bear shoved him again, this time pushing him into a wall. Sitting Bear then picked
him up and swung him around by his arm, swinging his head into a table. John, Jr.
was unresponsive following the blow to his head. Sitting Bear and Marshall took
John, Jr. to the Rosebud hospital, and he was transported by air ambulance to Rapid
City Regional Hospital where he died the following day. Both were charged with first
degree murder and aiding and abetting first degree murder. Sitting Bear ultimately
pleaded guilty, without the benefit of a written plea agreement, to second degree
murder, and Marshall pleaded guilty, pursuant to a written plea agreement, to aiding
and abetting second degree murder.
At the joint sentencing hearing held in May 2005, Sitting Bear and Marshall
continued to blame the other for various abuses to John, Jr., although Sitting Bear
admitted to his actions on June 18 that led to John, Jr.'s death. The district court
assessed a two-level enhancement to Sitting Bear's base offense level for obstruction
of justice based on Sitting Bear's interviews with the FBI investigators. The court also
granted Sitting Bear a three-level reduction for acceptance of responsibility, resulting
in a sentencing range of 151 to 188 months. The court determined that upward
departures no longer exist after United States v. Booker, 543 U.S. 220 (2005), and,
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applying the sentencing factors contained in 18 U.S.C. § 3553(a), sentenced Sitting
Bear to a non-Guidelines sentence of 228 months of imprisonment. The district court
determined Marshall's sentencing range to be 151 to 188 months, based in part on a
criminal history category III. Marshall had a prior felony conviction for assault with
a deadly weapon and was on supervised release from that conviction at the time of the
instant offense. Although not included in her criminal history score, Marshall also
had a prior child neglect conviction in tribal court (involving a different child) and
several child abuse arrests over the previous several years. The court likewise
sentenced Marshall to 228 months in prison, noting the irony of the fact that while
Marshall had committed most of the abuse over the prior six months in which she and
Sitting Bear had custody of John, Jr., it was Sitting Bear's actions that led to his
ultimate death. The court found them equally culpable in John, Jr.'s death.
Sitting Bear appeals his sentence, arguing that the district court erred in
assessing the two-level enhancement for obstruction of justice, erred in sentencing
him above the sentencing range without giving notice under Federal Rule of Criminal
Procedure 32(h), and violated his right to due process by sentencing him above the
advisory Guidelines range without considering the departure factors contained in the
United States Sentencing Guidelines, resulting in an unreasonable sentence. Marshall
appeals her sentence, arguing that it is an unreasonable sentence in light of the
§ 3553(a) sentencing factors.
Sitting Bear's Sentence
A. Rule 32(h) Notice
Sitting Bear's sentence above the advisory Guidelines range was not based on
an upward departure for which he was entitled to notice under Rule 32(h).2 Rather,
2
"Before the court may depart from the applicable sentencing range on a ground
not identified for departure either in the presentence report or in a party's prehearing
submission, the court must give the parties reasonable notice that it is contemplating
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it was a non-Guidelines sentence, a variance if you will, based upon the district court's
review of the case and Sitting Bear's history in light of all of the § 3553(a) sentencing
factors. Sitting Bear's claim to Rule 32(h) notice lacks merit under our circuit
precedent, see United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005)
("[N]otice pursuant to Rule 32(h) is not required when the adjustment to the sentence
is effected by a variance, rather than by a departure."); United States v. Egenberger,
424 F.3d 803, 805 (8th Cir. 2005) (same), cert. denied, 2006 WL 37949, 74 U.S.L.W.
3393 (U.S. Jan. 9, 2006), and the district court did not err in failing to give Sitting
Bear any Rule 32(h) notice.
B. USSG § 3C1.1 Obstruction of Justice Enhancement
Sitting Bear argues that his interviews with the investigators did not amount to
an obstruction of justice warranting a two-level enhancement under U. S. Sentencing
Guidelines Manual (USSG) § 3C1.1 (2003). We review the district court's factual
findings used to support an obstruction of justice enhancement for clear error, but we
apply a de novo review to the application of the enhancement to the facts found by the
district court. United States v. Vinton, 429 F.3d 811, 818 (8th Cir. 2005).
The obstruction of justice enhancement applies if the defendant "willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice during the course of the investigation . . . of the instant offense of conviction."
USSG § 3C1.1. One example of behavior that triggers the enhancement is when a
defendant "provid[es] a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation . . . of the instant
offense."Id. § 3C1.1, comment. (n.4(g)). "Material" is defined as "evidence, fact,
statement, or information that, if believed, would tend to influence or affect the issue
under determination." Id., comment. (n.6).
such a departure. The notice must specify any ground on which the court is
contemplating a departure." Fed. R. Crim. P. 32(h).
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Sitting Bear met with investigators several times beginning on June 18, the day
John, Jr. went into a coma and was hospitalized. Sitting Bear originally told FBI
agents on that date that John, Jr.'s injuries resulted from him falling off of the hood of
a parked car a few days prior to going into the coma. Sitting Bear denied ever hitting
John, Jr. Sitting Bear met with the agents two days later on June 20, after John, Jr.
had died, and added to his story that John, Jr. had fallen off of his bike a week prior
to entering the coma, had been knocked down by a dog, and had recently fallen from
a jungle gym. At this time Sitting Bear admitted to pushing John, Jr. out of the door
the morning that he went into the coma, causing him to hit his head on the cement
porch, but he continued to deny any further involvement.
Sitting Bear and Marshall were both indicted on first degree murder charges in
August 2003. During an interview in February 2004, Sitting Bear told investigators
that Marshall had hit John, Jr. on the evening of June 17, knocking his head into a
door frame. It was not until an interview on April 7, 2004, nearly ten months after
John, Jr.'s death, that Sitting Bear told investigators about swinging John, Jr.'s head
into the table.
The district court found that Sitting Bear lied on June 18 when he told the
investigators that John, Jr.'s injuries resulted from falling off of a parked car three days
earlier and when he denied hitting John, Jr. Sitting Bear's argument that the other
events that might have caused John, Jr.'s injuries actually happened, and therefore he
did not lie, misses the point. He may not have lied about the other accidents
occurring, but he certainly misled the investigators about the cause of John, Jr.'s
injuries that put him into a coma. We further reject Sitting Bear's brazen attempt to
construe his statement that he did not hit John, Jr. as technically truthful. Sitting
Bear's denial that he hit John, Jr., knowing full well that he had shoved John, Jr. into
a wall and swung his head into a table immediately prior to John, Jr. losing
consciousness, was a blatant lie in an attempt to place the blame for his son's injuries
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elsewhere. The district court's conclusion that Sitting Bear lied to the investigators
is not clearly erroneous.
Lying to investigators in and of itself does not support a § 3C1.1 enhancement
for obstructing justice. The false statements must have been material to the
investigation. Further, general denials of guilt that are not made under oath do not
support an obstruction enhancement. See United States v. Yankton, 986 F.2d 1225,
1228 (8th Cir. 1993) (holding that a statement to tribal officers that "I did not rape .
. . my niece" was a general denial which would not support an obstruction
enhancement). But Sitting Bear did more than deny his guilt. He misled the
investigators with stories unrelated to his own actions in an attempt to divert the
investigators from focusing their attention on him, and he denied his own
involvement. The misleading stories and denial of any involvement were certainly
material to the investigation into the cause of John, Jr.'s injuries.
We also agree with the district court that Sitting Bear's misleading statements
impeded the investigation. One of the investigators testified that Sitting Bear's
admission in April 2004 that he swung John, Jr. into the kitchen table "was a
significant step forward in the investigation." (Nov. 29, 2004, Sent. Tr. at 52.) Prior
to that time, the investigators were focused on both parents as the cause of John, Jr.'s
death, but the investigators had no basis for determining which of the two was
responsible for the ultimate act that sent John, Jr. into a coma and caused his death.
In February 2004, Sitting Bear implicated Marshall by telling the investigators that
Marshall had knocked John, Jr. into a door frame the night before he went into the
coma, but Sitting Bear continued to withhold the extent of his own actions on the
morning of June 18. Although Sitting Bear had no obligation to tell investigators
anything, once he chose to talk, he had an obligation to be truthful. Sitting Bear's
exculpatory explanations and attempts to point the finger at his codefendant without
providing the full picture of his own actions support the district court's application of
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the obstruction of justice enhancement. See United States v. Baker, 200 F.3d 558, 562
(8th Cir. 2000) (holding that statements to the investigator that provided an
exculpatory version of events and caused the investigator to conduct further analysis
of financial transactions was more than a mere denial of guilt and supported an
obstruction enhancement).
C. The Reasonableness of Sitting Bear's Sentence
At sentencing, the district court stated that following Booker, "[t]here's no such
thing as an upward departure." (May 9, 2005, Sent. Tr. at 72; see also id. at 68, 71.)
We agree with Sitting Bear that the district court clearly erred in so concluding. As
we explained in United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert.
denied, 126 S. Ct. 276 (2005), post-Booker, there are essentially three steps to
determining an appropriate sentence. First, the district court should determine the
applicable Sentencing Guidelines range without consideration of any Guidelines
departure factors, because the Guidelines remain an important sentencing factor. See
§ 3553(a)(4). Second, the district court, where appropriate, should consider the
departure provisions contained in Chapter 5, Part K and/or § 4A1.3 of the Guidelines,
as those sentencing provisions have not been excised by Booker. The resulting range
is the post-Booker advisory Guidelines range. Third, the district court should consider
the rest of the § 3553(a) factors in determining whether to impose the "Guidelines
sentence" as determined in the prior steps or a "non-Guidelines sentence" driven by
the other § 3553(a) considerations, and sentence the defendant accordingly. Haack,
403 F.3d at 1003; see also United States v. Denton, No. 05-1978, 2006 WL 162980,
at *7 (8th Cir. Jan. 24, 2006) (reviewing the sentence imposed by the district court
under the three-part Haack methodology). "When a court of appeals reviews a district
court's sentencing determination for reasonableness, the correct [G]uidelines range is
still the critical starting point for the imposition of a sentence." United States v. Hawk
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Wing, No. 05-2263, 2006 WL 27681, at *7 (8th Cir. Jan. 6, 2006) (internal marks
omitted).
Sitting Bear argues that the district court's failure to consider an upward
departure under the Haack analysis deprived him of due process because it allowed
the district court to circumvent the assessment of justifying factors contained in the
departure Guidelines. Although the district court erred, the error was harmless. As
we recently noted in rejecting a similar argument in Long Soldier:
The district court's erroneous belief that it could not depart upward did
not deprive [Sitting Bear] of any substantial-or even beneficial-right. He
was deprived merely of the opportunity to receive an upward departure
and, perhaps, a longer sentence. As such, any error is harmless pursuant
to Fed. R. Crim. P. 52(a).
431 F.3d at 1122. Further, there can be no due process violation without a showing
of undue harshness, see United States v. Wade, No. 05-2181, 2006 WL 73474, at *2
(8th Cir. Jan. 13, 2006), which is totally lacking here.
Finally, Sitting Bear has failed to establish that his ultimate sentence is
unreasonable, i.e., that the district court abused its discretion in sentencing him to 228
months of imprisonment, or 40 months above the advisory Guidelines range
(computed without considering any grounds for an upward departure). After
considering Sitting Bear's minimal criminal history, background, and the specific facts
of the case, the district court stated, "[t]his is such an aggravated case. It is one thing
to cause the death of your child. But with this amount of torture that was going on I
am, of course, going to take that into account in sentencing here." (May 9, 2005, Sent.
Tr. at 79.) We conclude that the sentence is not unreasonable.
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III. Marshall's Sentence
The only challenge Marshall makes to her sentence is its reasonableness. We
review the sentence imposed by the district court for an abuse of discretion. Long
Soldier, 431 F.3d at 1123. "A sentencing court abuses its discretion if its fails to
consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the
appropriate factors but commits a clear error of judgment in weighing those factors."
Id. Relevant factors for sentencing purposes are those factors identified in § 3553(a).
Marshall points to § 3553(a)(6), the need to avoid unwarranted sentencing
disparity, and argues that she should have been sentenced based on her actual conduct,
which was child abuse. She believes that her 228-month sentence is extreme when
compared to two cases where defendants convicted of abusing children received
sentences of 51 and 63 months. We dismiss this disparate sentencing argument by
noting simply that those cases did not involve the six months of torture endured by
John, Jr. at the hands of his own mother or result in the children's death. Marshall
pleaded guilty to aiding and abetting second degree murder, not to committing child
abuse. Whoever aids and abets the commission of another crime is punishable as a
principal. 18 U.S.C. § 2. This is not the type of disparity with which Congress was
concerned.
The district court found that Marshall and Sitting Bear were equally culpable
for the actions that led to and ultimately caused John, Jr.'s death. It supported its
sentence with findings that "up until the last day of [John, Jr.'s] life [Marshall] was
responsible for more of this child abuse than was Mr. Sitting Bear." (May 9, 2005,
Sent. Tr. at 72.) In addition, John, Jr. had at least seven impact injuries to his head
and 26 separate impact injuries to his back, buttocks, and legs. There was ample
evidence of nearly daily abuse, mostly by Marshall. The pathologist who performed
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the autopsy could not determine whether John, Jr.'s death was caused by the June 18
blow to his head or a combination of blows, some of which were older. During the
six months that John, Jr. was in his mother's and father's care, he lost 19 pounds.
Numerous witnesses testified that Marshall withheld food from him because he
messed his pants and she did not like cleaning up after him. The district court
considered Marshall's childhood, history of prior abuse toward her children, and the
testimony of various witnesses in setting Marshall's sentence 40 months above the
advisory Guidelines range. The district court amply supported the sentence it imposed
on Marshall, which we believe is more than reasonable.
We likewise reject Marshall's argument that the district court erroneously
considered her criminal history in sentencing her outside of the Guidelines range
because her history was included in the Criminal History category III that resulted in
the 151- to 188-month advisory range. The district court relied in part on the abuse
inflicted against John, Jr., as well as abuse inflicted against her other children, none
of which was reflected in Marshall's criminal history. There was no improper double
counting of Marshall's criminal history.
III. Conclusion
The district court's judgments are affirmed.
______________________________
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01-03-2023
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10-13-2015
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JUSTICE WELCH delivered the opinion of the court: In an action seeking recovery for personal injury, plaintiff, Lee Ellis, appeals from a judgment entered December 10, 1987, in the circuit court of St. Clair County, following the return of a jury verdict in favor of defendant, St. Louis Southwestern Railway Company. Plaintiff, Lee Ellis, was employed by St. Louis Southwestern Railway Company (hereinafter Railway) in 1972 as a switchman-brakeman. Plaintiff was promoted to the position of assistant trainmaster in 1975. In 1979, the railway found it necessary that plaintiff return to his previous position as a switchman-brakeman. Approximately two years later, on December 20, 1981, while working in his capacity as a switchman-brakeman, plaintiff allegedly injured his back. A brakeman-switchman works in the rail yards, where his duties require that he lift heavy objects, jump on and off of box cars, bend, squat and crawl. At the time plaintiff allegedly was injured, he was working in the trainyard as a pinlifter. A pinlifter walks beside a train of slowly moving railroad cars and disconnects certain cars from the train. To disconnect a railroad car, the pinlifter pulls up on a pin that disengages the knuckle coupling one railroad car to the next. At trial, plaintiff testified that on the day he was injured, one of the pins on a railroad car did not release on the first pull. Since the pin did not release on the first pull as it was supposed to, plaintiff jerked on the pin three or four times, but was still unsuccessful in disengaging the knuckle. Plaintiff stated that on the third or fourth jerk, he “gave it all [he] had” and felt something snap in his back. After feeling a snap in his back, plaintiff testified, he stopped and went to inform the foot board yardmaster of the incident. Because only a small fraction of the railway cars remained to be uncoupled in the switching operation then in progress, the yardmaster asked whether the plaintiff could continue. Plaintiff responded that he would make an attempt, and continued working. In completing his accident report form, plaintiff stated that the accident happened “[w]hile pulling pins, on about 45th car, I started developing lower back pain on right side extending down right leg.” Although the Railway had a program for mechanical inspections of the cars as they arrived at the trainyard, plaintiff knew of no inspection program which included a check to determine whether the pinlifters were working properly. Plaintiff stated that, by looking at a pinlifter, he could not determine whether a defect existed. Moreover, plaintiff knew that it was the Railway’s practice to inspect any reported defective conditions. However, plaintiff testified that he did not report the car which allegedly caused his injury because there was nothing unusual about a pinlifter sticking, and because he assumed that the foreman on duty was aware of the particular car which had an inoperative pinlifter. James McAllister, the foot board yardmaster on duty at the time of plaintiffs alleged injury, was required to complete two accident forms. Neither of these forms reports any defective condition. In fact, in response to the portion of the report form requesting that he state how the accident occurred, McAllister responded “Don’t know.” Moreover, McAllister testified at trial that, although pinlifters have mechanical defects approximately 1% of the time, he recalled no particular problem with any pinlifters at the time of plaintiff’s alleged injury. Ashley Spears was the assistant trainmaster on duty at the time of plaintiff’s alleged injury. At that time, Spears was working in the control tower and was informed that plaintiff wished to speak with him. Plaintiff informed Spears that, while pulling pins, his back began bothering him. In his capacity as trainmaster, it was Spears’ responsibility to investigate on-the-job accidents. As part of the preliminary investigation, Spears required plaintiff, and other members of plaintiff’s crew, to complete standard accident report forms used by Railway. In completing the accident report, plaintiff made no reference to a pinlifter sticking or being otherwise defective. Also as part of Spears’ investigation, he was required to complete an accident investigation guide sheet. Spears testified that when a personal injury is reported it becomes a primary concern of the Railway to inspect the equipment which caused injury. When Spears asked plaintiff whether there was any particular car involved, plaintiff responded that there was none. When asked if he slipped, tripped, or fell, plaintiff responded that he had not. When asked if the inclement weather on the evening of the alleged injury, which included freezing rain and sleet, had anything to do with the alleged injury, plaintiff responded that it had not. Likewise, plaintiff stated that the speed of the cars had nothing to do with his alleged injury. The first issue presented for our consideration is whether the trial court erred in failing to submit to the jury plaintiff’s tendered issue instruction related to the Railway’s potential liability for failing to provide plaintiff a safe place in which to work. Plaintiff tendered two issues instructions pertaining to the theories under which plaintiff believed he was entitled to recovery. These issues were that the Railway provided plaintiff with a defective pinlifter with which to work, and that the Railway failed to provide plaintiff with a reasonably safe place in which to work. Of these two issues instructions, the trial court allowed the former to be submitted to the jury and refused submission of the second. Upon review, we affirm the trial court’s determination that only the former issues instruction be submitted to the jury. Under the Federal Employer’s Liability Act (45 U.S.C. §51 et seq. (1982)), it is required that Railway provide its employees with a safe place in which to work. In an instruction separate from the issues instructions, the jury was instructed on the Railway’s duty to provide plaintiff a safe place in which to work. On appeal, plaintiff argues that the safe place to work instruction should have been submitted to the jury as a separate issue instruction. We disagree. On review, the proper inquiry is whether the instructions as a whole were sufficiently clear so as to not mislead the jury and to fairly and correctly state the law. (Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806.) A trial court has discretion in deciding which issues are raised by the evidence. (Black v. Peoria Marine Construction Co. (1987), 160 Ill. App. 3d 357, 513 N.E.2d 622.) In the case now before us, the record does not support an issue instruction on Railway’s failure to provide a safe place to work. Although Railway’s failure to provide a safe place to work was one theory of recovery alleged in plaintiff’s complaint, it does not necessarily follow that plaintiff is automatically entitled to have the jury instructed on this theory of recovery. The trial court is empowered with the discretion to refuse to submit to the jury an issue instruction based on a theory not supported by the record. In the present case, the only theory of defendant Railway’s negligence arguably supported by the record is the Railway’s failure to provide the plaintiff with pinlifters in good working order. In the face of evidence that it was the policy of the Railway that its employees pull on the pinlifters only once, and not jerk the pinlifters, plaintiff testified that he pulled on the alleged injury-causing pinlifter two or three times, and then, after the knuckle did not uncouple, “gave it all he had.” This evidence indicates that plaintiff’s injury was a sudden snap of his back. Somewhat to the contrary, other evidence in the record, such as plaintiff’s complaint at the time of the accident that he began developing back pain, and his inability to assign his injury to any particular train car, indicates that the injury may not have been the result of any isolated pinlifting attempt, but rather, a cumulative effect of many pinliftings. Although there appears to be some inconistency in the evidence, this inconsistency affects only the weight to e assessed to the evidence by the jury, and not the admissibility of he evidence. Thus, the record does support the submission of the issues instruction relating to the defective pinlifters. However, we are unable to so find on plaintiff’s tendered safe workplace issue instruction. When asked if the weather (which was cold and icy), the condition of the railway, or the speed of the train had anything to do with his injury, the plaintiff responded they did not. Nor do we find any other evidence to support a safe workplace issue instruction. Without making reference to any particular evidentiary support, plaintiff argues on appeal that the trial court’s failure to submit the tendered issue instruction regarding a safe place to work deprived plaintiff of any opportunity of enforcement of the law. We disagree. The jury was instructed in more than one general instruction that the Railway, pursuant to the Federal Employer’s Liability Act, was required to provide its employees with a safe place to work. Although Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 1 L. Ed. 2d 493, 77 S. Ct. 443, the landmark case on causation in Federal Employer’s Liability Act cases, effectively reduces the causation requirement necessary to prove a negligence case, it is still necessary for a plaintiff to show that the defendant’s negligence played at least a slight part in producing the injury for which recovery is sought. Thus, it is not sufficient merely to state that the employer was negligent in providing a safe place to work and that the plaintiff was injured. Plaintiff must attempt to draw some causal relation between defendant’s negligence and plaintiff’s injury. It is at that point that plaintiff becomes entitled to an issue instruction on the underlying theory of negligence. Plaintiff, in the case sub judice, failed to present evidence to support a theory of negligence based on Railway’s failure to provide a safe place to work; therefore, the trial court properly denied submission of plaintiff’s tendered issue instruction based on a theory not supported by the evidence. Plaintiff’s second argument on appeal is that the trial court erred in failing to enter judgment for plaintiff on plaintiff’s motion for directed verdict, or, in the alternative, erred in failing to set aside the verdict and ordering a new trial. Plaintiff argues that, pursuant to the Safety Appliance Act (45 U.S.C. §2 (1982)), Railway is strictly liable for plaintiff’s injuries which resulted from his attempt to correct a malfunctioning coupler. Section two of the Safety Appliance Act provides: “It shall be unlawfiil for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” (45 U.S.C. §2 (1982).) Plaintiff relies on the holding of this court in Buskirk v. Burlington Northern, Inc. (1982), 103 Ill. App. 3d 414, 431 N.E.2d 410, where we held defendant railroad strictly liable for the injuries suffered by an employee while going between two train cars to straighten a misaligned drawbar. This reliance upon Buskirk is misplaced, because in that case the facts were undisputed that plaintiff was between two train cars attempting to straighten misaligned drawbars at the time he was injured. (103 Ill. App. 3d at 415, 431 N.E.2d at 412.) In the present case, the facts surrounding plaintiff’s injury are not undisputed. Had the facts in the instant case unequivocally indicated that plaintiff was injured while going between two railway cars due to the cars’ failure to automatically couple, or uncouple, without it becoming necessary for an employee to go between the cars, then section 2 of the Act would be applicable. However, in this case, there is no evidence in the record to support a claim that plaintiff was injured while between two cars. At one point in his testimony, plaintiff claimed that, due to the varying size of train cars, it sometimes was necessary to position himself in front of or behind another car in order to handle a pinlifter. However, we find no evidence to support a claim that plaintiff was between the ends of two cars at the time of his injury. Therefore, a finding of strict liability pursuant to the Act would have been improper on these facts. For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby affirmed. Affirmed. RARICK, J., concurs.
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07-24-2022
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JUSTICE GOLDENHERSH, dissenting: I respectfully dissent. The majority in this opinion affirms the trial court’s refusal of laintiff’s tendered instruction on a safe place to work and in the ourse of the opinion reviews the evidence admitted on that question, differ with my colleagues, determining that on the record before us here is sufficient evidence to submit a safe place to work instruction nd that the trial court’s failure to give that tendered instruction was eversible error. It is basic law that a jury should be instructed on all theories of a given case that have evidence in the record to support that particular theory. Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500, stands for the proposition that a plaintiff has the right to have the jury “clearly and fairly instructed” on each theory of his case that is supported by the evidence. 65 Ill. 2d at 145, 357 N.E.2d at 503. The majority opinion recites sufficient evidence to support plaintiff’s theory of failure to provide a safe place to work in its succinct recitation of the events on the day in question. The proper standard to be applied by the trial court is whether there is evidence in the record that arguably supports the theory in question. Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265. As related in the majority opinion: “At trial, plaintiff testified that on the day he was injured, one of the pins on a railroad car did not release on the first pull. Since the pin did not release on the first pull as it was supposed to, plaintiff jerked on the pin three or four times, but was still unsuccessful in disengaging the knuckle. Plaintiff stated that on the third or fourth jerk, he ‘gave it all [he] had,’ and felt something snap in his back.” (193 Ill. App. 3d at 359.) This scenario, standing alone, is arguable support for the theory of failure to provide a safe place to work. A jury contemplating this evidence could reasonably conclude, if properly instructed, that a railroad’s duty of a safe place to work meant in this particular case that the railroad had the obligation to supply pins that would release on the first pull. As the majority opinion later notes, it was the policy of the railroad that its employees pull on these pinlifters only once. The trier of fact could reasonably conclude that the workplace, inclusive of its machinery, should properly meet the standards that the employer itself has set and that failure to do so was negligence. In order to consider or reach these conclusions, however, the jury must be properly instructed and meet the Ervin test as stated above. The majority opinion notes that the instructions as a whole should not mislead the jury, citing Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806, but in this particular trial, the instructions as a whole did, in fact, mislead. Initially, the jury was instructed as part of Illinois Pattern Jury Instructions (IPI), Civil 2d No. 1.01, that: “The law applicable to this case is contained in these instructions and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction and disregarding others.” (Illinois Pattern Jury Instructions, Civil, No. 1.01[2] (2d ed. 1971).) They were subsequently instructed in IPI Civil 2d No. 160.08 that: “It was the duty of the railroad to use ordinary care to provide the plaintiff with a reasonably safe place in which to do his work.” (Illinois Pattern Jury Instructions, Civil, No. 160.08 (2d ed. 1971).) Plaintiff tendered, and the court refused, IPI Civil 2d No. A20.01 (Modified) (Supp. 1986), noted as “Plaintiff’s Instruction No. 16,” which noted in part: “The plaintiff claims that he was injured and sustained damage and that the defendant St. Louis Southwestern Railway Company was negligent in one or more of the following respects: In that St. Louis Southwestern Railway Company: failed to provide plaintiff with a reasonably safe place in which to work; provided plaintiff with a defective pin lifter with which to work. Plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.” (See Illinois Pattern Jury Instructions, Civil, No. A20.01 (2d ed. Supp. 1986).) The trial court, in fact, instructed the jury with plaintiff’s instruction No. 16A, IPI Civil 2d No. A20.01 (Modified) (Supp. 1986), which read as follows: “The plaintiff claims in Count I of his Complaint that he was injured and sustained damage and that the defendant St. Louis Southwestern Railway Company was negligent in one or more of the following respects: provided plaintiff with a defective pin lifter with which to work. The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.” See Illinois Pattern Jury Instructions, Civil, No. A20.01[l] (2d ed. Supp. 1986). Defendant argues to this court that since the jury was told of the uty to provide a safe place within which to work, the jury was not misled. This is clearly not so when one considers the admonition of the court to consider the instructions as a whole and the standard cited above in Lundberg that the instructions taken as a whole should .ot mislead the jury. This jury was told to heed all the instructions as whole and not individually, was told that a duty existed and then vas not told that plaintiff was alleging a breach of that particular uty. The only fair and reasonable way to read these instructions as a hole is that defendant complied with the duty to provide a safe place to work and that the jury, being guided by these instructions as a whole, should not consider a possible breach of that duty. Since the evidence submitted in this case, as recited in the majority opinion, shows that there was arguable support for the theory of breach of the duty to provide a safe place to work, failure of the trial court to instruct the jury on this issue was error, and justifies reversal and remand. For the foregoing reasons, I would reverse and remand this cause for a new trial.
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07-24-2022
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65 So.3d 520 (2011)
BROWN
v.
STATE.
No. 2D10-5532.
District Court of Appeal of Florida, Second District.
July 13, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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10-30-2013
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4179
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Francis M. Summe, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: April 17, 2006
Filed: May 30, 2006
___________
Before ARNOLD, FAGG, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
After obtaining information that Eric Thompson had robbed pharmacies to
obtain Oxycontin, officers with the Kansas City police department’s career criminal
unit went to a hotel to arrest Thompson for violating his supervised release. The hotel
manager confirmed that Thompson was checked in for the past two days and showed
the officers paperwork with a copy of Thompson’s photograph on an identification
card. The manager stated Thompson was not there, but was expected back because
he had reserved the room for another night. Police were not told and did not know
anyone besides Thompson was checked into the room, although Francis M. Summe
had paid for the cost of staying the third night. The officers set up surveillance and
waited for Thompson’s return. Later, Thompson arrived at the hotel in his car with
Summe. Summe got out of the car and started walking toward the hotel, while
Thompson remained in the car. As one officer stopped Summe, another approached
Thompson. The officers had drawn their weapons because Thompson had a lengthy
criminal record, including a conviction for armed bank robbery. While some of the
officers handcuffed and arrested Thompson, others handcuffed Summe for their
protection until they determined his identity and whether he had any outstanding
warrants. Summe identified himself and admitted he had an earlier drug conviction.
The officers noticed Summe had been drinking, and called dispatch to confirm the
information. In the meantime, the other officers searched Thompson incident to his
arrest and found Oxycontin in his pants pockets. Some of the pills were in a bottle
with the label peeled off. The officers confirmed that Summe had an earlier felony
drug conviction, but there were no warrants for his arrest.
When informed of Thompson’s arrest, the hotel manager stated she would not
allow Summe to remain in the room and asked the officers to escort Summe off the
property. The officers asked Thompson if Summe could take possession of his
belongings because the hotel wanted them removed from the room. Thompson
agreed, and stated the officers could go up to the room to remove his property. At the
hotel manager’s request, officers escorted Summe to the hotel room, and found two
bags. Summe claimed ownership of one, a black duffle bag. Before handing the bags
over to Summe, officers checked both bags to make sure they did not contain any
weapons. Inside the black duffle bag, the officer found two pill bottles with the labels
peeled off, containing 310 pills that appeared to be Oxycontin. The officers found
500 pills in the other bag. The officers then arrested Summe, and the Government
charged him with conspiracy to distribute Oxycontin and possession with intent to
distribute Oxycontin.
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Summe filed a motion to suppress the drugs found in his bag, asserting police
had no reason to detain him or search his luggage. The district court* denied Summe’s
motion, holding it was reasonable for the officers briefly to detain Summe to
determine his identity, whether he was wanted for any earlier criminal activity, and
whether he was armed. The court also held it was reasonable for the officers to check
the luggage for guns and contraband before turning them over to Summe. After the
denial of his motion, Summe conditionally pleaded guilty and was sentenced to 57
months in prison.
On appeal, Summe challenges the denial of his motion to suppress, arguing the
scope of his detention violated the Fourth Amendment. We review de novo whether
Summe’s detention amounted to an arrest. United States v. Ruiz, 412 F.3d 871, 879
(8th Cir. 2005). “During an investigative stop, officers should ‘employ the least
intrusive means of detention and investigation, in terms of scope and duration, that are
reasonably necessary to achieve the purpose’ of the temporary seizure.” United States
v. Maltais, 403 F.3d 550, 556 (8th Cir. 2005) (quoting United States v. Navarrete-
Barron, 192 F.3d 786, 790 (8th Cir. 1999)). “The means used to effect the seizure
must be objectively reasonable in light of the facts and circumstances confronting the
officers.” Id. Summe contests the manner of his detention–handcuffing him from the
initial encounter through the search of the luggage. Under the circumstances, we do
not believe Summe’s handcuffed detention was objectively unreasonable. A police
officer’s use of handcuffs can be a reasonable precaution during an investigatory stop.
See United States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992). The officers had a
legitimate concern that Thompson might be armed, see id., and did not know Summe’s
identity, whether he was a fugitive, or whether he was involved in illicit activity with
Thompson. The district court found that only ten to fifteen minutes elapsed between
Summe’s initial detention and his arrest. We cannot say the mere fact that Summe
*
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
-3-
remained handcuffed for five minutes after officers learned he was not a wanted
fugitive converted the investigatory stop into an arrest. The officers did not know
whether someone else was in the hotel room or whether there might be weapons there,
and kept Summe cuffed for their safety until they could dispel their concerns. See
United States v. Claxton, 276 F.3d 420, 423 (8th Cir. 2002) (reasonable for officers to
suspect anyone involved in drug trafficking may be armed with a gun).
Summe also argues the search of the hotel room was unreasonable. We
disagree. By the time of the search, the hotel manager had asked Summe to vacate
the premises. The officers could reasonably believe the manager could eject Summe
because the room had been used for an unlawful purpose. See Mo. Rev. Stat. §
315.075(3). Having been ejected from the room, Summe lacks standing to contest the
officers' entry (search) into the room. United States v. Rambo, 789 F.2d 1289, 1295-
96 (8th Cir. 1986); United States v. Allen, 106 F.3d 695, 699 (8th Cir. 1997). Further,
the officers had Thompson’s consent to enter the hotel room for collection of his
belongings.
Summe last argues that even if the officers had authority to enter and search the
hotel room, their search inside his black duffle bag violated the Fourth Amendment.
See Rambo, 789 F.3d at 1296 (although evicted motel guest lacked standing to
challenge search of motel room, standing to challenge search of locked luggage inside
room “raise[d] a more difficult question”). “[W]hen a hotel guest’s rental period has
expired or been lawfully terminated, the guest does not have a legitimate expectation
of privacy in the hotel room or in any articles therein of which the hotel lawfully takes
possession.” United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987) (after hotel took
possession of luggage left in room beyond rental period, law enforcement conducted
inventory search); see United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997) (drugs
in plain view inside room). If the hotel properly takes possession of a guest’s luggage
under state lien law, then the guest has no legitimate expectation of privacy in the
luggage. Rahme, 813 F.3d at 34-35.
-4-
Although Thompson and Summe were not evicted for nonpayment rendering
their bags seizable by the hotel under Missouri law, see Mo. Rev. Stat. § 419.060.1,
we believe any legitimate expectation of privacy Summe had in the bag was
outweighed by the officer’s concern for their safety. Cf. United States v. Owens, 782
F.2d 146, 151 (10th Cir. 1986) (even if officers properly entered hotel room to perform
a cursory investigation for dangerous cohorts, searching closed bag found inside
closed drawer exceeded scope of protective sweep). The officers had just placed
Thompson, a federal fugitive guilty of armed bank robbery, under lawful custodial
arrest, and found a large quantity of suspected illegal pills in his possession. The
officers could reasonably believe that Thompson was armed and dangerous, see New
York v. Class, 475 U.S. 106, 117 (1986), and that the black duffle bag found in
Thompson’s room might belong to him and contain a weapon, despite Summe’s
claimed ownership of the bag. Given the substantial public concern for the safety of
police officers lawfully carrying out enforcement efforts, we cannot say the officers
acted unreasonably in making sure the bags did not contain weapons before turning
them over to Summe, a previously convicted felon.
We thus affirm the district court.
______________________________
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 12, 2006
STATE OF TENNESSEE v. DERRICK WALTON
Appeal from the Criminal Court for Shelby County
No. 04-04268 James C. Beasley, Jr., Judge
No. W2005-01592-CCA-R3-CD - Filed October 16, 2006
Following a jury trial, the Defendant, Derrick Walton, was convicted of one count of second degree
murder. He was sentenced to twenty-three years in the Department of Correction. The Defendant’s
sole issue on appeal is whether the trial court erred in enhancing his sentence. We affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.
Marvin Ballin, Memphis, Tennessee, for the appellant, Derrick Walton.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assisntant Attorney General;
William L. Gibbons, District Attorney General; and James Wax and Teresa McCusker, Assistant
District Attorneys General; for the appellee, State of Tennessee.
OPINION
Factual Background
On November 14, 2003, the victim, Brook Davis, was sitting in his car using his cellular
telephone when three men, including the Defendant, approached and began shooting into the car.
The victim attempted to drive away from the scene, but he ran his car into a tree. The victim later
died, and the cause of death was determined to be from two gunshot wounds to the back.
Officer Willie Sanders of the Memphis Police Department witnessed the shooting, along with
several other individuals. Officer Sanders pursued the three men fleeing from the scene, stopped
their car, and found a .40 caliber handgun. The Defendant was arrested and admitted that he shot
the victim. The Defendant stated that the motive for the shooting was that the victim had sold him
about a quarter of a kilogram of counterfeit cocaine several weeks before for $4200.00.
Procedural Background
The Defendant was indicted by a Shelby County grand jury for first degree murder. After
a trial by jury, the Defendant was convicted of second degree murder. The Defendant was sentenced
to twenty-three years in the Department of Correction. The trial court’s sentencing determination
was based upon the enhancement factor of committing the offense with a firearm. The Defendant
filed a motion for a new trial, alleging that his sentence was “excessive.” The trial court denied the
Defendant’s motion. This timely appeal followed.
Analysis
The Defendant’s sole issue on appeal is whether the trial court properly enhanced his
sentence for second degree murder based upon the statutory factor that the Defendant used a firearm
in the commission of the offense. The Defendant argues that the trial court did not follow the
statutory procedures, did not make findings of fact, and gave excessive weight to the enhancement
factor.1 The State counters that the trial court did adhere to the statutory guidelines, did make clear
findings of fact on the record, and did properly weigh the enhancement factor heavily in the
sentencing determination. We agree with the State and conclude that the trial court did not err in its
sentencing determination.
Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the trial and the sentencing hearing; (b) the pre-sentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704
(Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and the
method by which the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).
Upon a challenge to the sentence imposed, this Court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
1
W e note that the legislature has amended several provisions of the Criminal Sentencing Reform Act of 1989,
said changes becoming effective June 7, 2005. However, the Defendant’s crimes in this case, as well as his sentencing,
predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendments, and the
statutes cited in this opinion are those that were in effect at the time the instant crimes were committed.
-2-
and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.
In the present case, the trial court meticulously documented the sources of evidence for its
sentencing determination. The trial court made findings of fact, applied the principles of sentencing,
analyzed the enhancement factors, and assessed the weight to be given to the enhancement factors
as required by Tennessee Code Annotated section 40-35-210(b). Ultimately, the trial court
determined that one enhancement factor merited an increase in the Defendant’s sentence.2
Under Tennessee Code Annotated section 40-35-114(10), the trial court may enhance the
Defendant’s sentence if he “possessed or employed a firearm . . . during the commission of the
offense.” Id. Because the evidence showed that the Defendant did shoot the victim twice with a .40
caliber handgun, the trial court was justified in finding this enhancement factor applied.
Furthermore, the trial court specifically stated on the record that this factor deserved a “great deal
of weight” because the victim would probably not be deceased had the Defendant not possessed a
firearm. The trial court did not find any mitigating factors to counterbalance the enhancement factor.
After determining that only one enhancement factor would be applied to the Defendant’s
sentence, the trial judge properly considered the sentencing range for a Class A felony to be fifteen
to twenty-five years. See Tenn. Code Ann. § 40-35-112(1). The Defendant’s presumptive sentence
was the midpoint of the range. See id. § 40-35-210(c). The trial judge then increased the sentence
from the presumptive sentence of twenty years to an enhanced sentence of twenty-three years based
upon his discretionary determination of the heavy weight of the enhancement factor.
Because we conclude that the trial court properly followed the statutory requirements in
imposing the Defendant’s sentence, we must presume that the sentence is correct. The Defendant
2
The trial court also found that two other enhancement factors applied to the Defendant’s case: (1) The Defendant “has
a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range” under
Tennessee Code Annotated section 40-35-114(2); and (2) The Defendant “was a leader in the commission of an offense involving
two (2) or more criminal actors” under Tennessee Code Annotated section 40-35-114(3). The trial court declined to enhance the
Defendant’s sentence based upon these additional factors because his prior criminal record included “low-grade misdemeanor
offenses” and because the State was unable to prove that the other men present at the time of the shooting “had any involvement or
any knowledge whatsoever that this offense was going to occur or that they anticipated in any manner in [sic] the commission of the
offense . . . .”
-3-
has failed to establish that the sentence was otherwise improper. Therefore, we affirm the sentence
imposed by the trial court.
Conclusion
Based on the foregoing authorities and reasoning, the judgment of the trial court is affirmed
.
______________________________
DAVID H. WELLES, JUDGE
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185 F.2d 1022
NATIONAL LABOR RELATIONS BOARD, Petitionerv.ALABAMA MARBLE COMPANY, Respondent.
No. 13111.
United States Court of Appeals Fifth Circuit.
Jan. 22, 1951.
Joseph A. Jenkins, Field Attorney, Fort Worth, Tax., A. Norman Somers, Asst. General Counsel, David P. Findling, Associate General Counsel, National Labor Relations Board, for petitioner.
John J. Smith, Birmingham, Ala., for respondent.
Before HOLMES, BORAH and RUSSELL, Circuit Judges.
PER CURIAM.
1
It is considered by the Court, and so ordered, that the petition to enforce the order of the Board be, and the same hereby is, granted.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2793
___________
Blue Moon Entertainment, LLC, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
City of Bates City, Missouri, a *
Municipal Corporation; Greg Ford *
in his individual capacity, *
*
Appellees. *
___________
Submitted: January 12, 2006
Filed: March 10, 2006
___________
Before BYE, HEANEY, and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Blue Moon Entertainment, LLC (“Blue Moon”) appeals the district court’s
denial of its motions for a temporary restraining order and/or a preliminary injunction.
We vacate the district court’s order and remand for further proceedings.
I.
Blue Moon Entertainment owns a parcel of developed, but apparently unzoned,
property, identified as 304 Old U.S. Highway West, Bates City, Missouri. Blue Moon
seeks to operate an adult entertainment establishment, featuring dancing performed
by women attired only in “pasties” and “G-strings.” All businesses in Bates City are
required to obtain an occupational license prior to commencing operations, and on
January 8, 2004, Blue Moon filed an application for such a license. According to the
municipal code, if no action is taken on an application within fifteen days, the
applicant may appeal to the Board of Aldermen of Bates City. On January 28, 2004,
after no action had been taken on its license, Blue Moon filed a written appeal.
In a letter dated February 24, 2004, Bates City informed Blue Moon that the
municipal code had been amended on April 10, 2001, to add section 406. This
section includes a requirement that businesses obtain permits for certain “conditional
uses,” and it classifies an “adult night club” as a “conditional use which must be
approved after public hearings before the Planning and Zoning Commission and the
Board of Aldermen.” The new section provides, in pertinent part:
Any of the following uses may be allowed by special permission of The
Board of Aldermen after a recommendation from the Planning and
Zoning Commission under the standard included herein and under such
conditions as the Board of Aldermen may impose. After a public
hearing by the Planning and Zoning Commission and a public hearing
by the Board of Aldermen a “Conditional Use Permit” may be issued.
The issuance of this permit must provide that in the judgment of the
Board of Aldermen such use will not seriously injure the appropriate use
of neighboring properties, and will conform to the general intent and
purpose of this ordinance, and shall comply with height and area
requirements of the district the special use is located in.
-2-
Conditions set by the Board of Aldermen may include, but [are] not
limited to; special yard requirements, open spaces, buffer zones, fences,
walls, landscaping and it’s [sic] maintenance, erosion control, street
improvement requirement, vehicle parking, building time frame, hours
of operation, building location, or any other condition the Board of
Aldermen may deem necessary to ensure the compatibility with
surrounding uses, and to preserve the public health, safety, and welfare.
Section 406 further states that “adult night clubs” are “allowed in C-1 Districts
provided that no such use be established within 1,250 [feet] of any church, school,
day care facility, public building, public or private park, hospital, any use listed in
Section A-12 or A-15, or area zoned for residential use.” To receive a permit, the
applicant also must show that the proposed use will not “be contrary to the public
interest or injurious to nearby properties, and the spirit and intent of the ordinance
will be observed,” the use will not “encourage or enlarge the development of a
‘blighted’ area,” and the use will not “cause an unwanted increase in the normal law
enforcement exposure in the area.” Finally, the “[p]arking areas shall be of hard
surface and designed by an engineer to drain storm water in an appropriate manner
not on adjoining properties.” (J.A. at 30-31).
In its letter responding to Blue Moon’s appeal, Bates City explained that
because the occupational licensing provision “requires that the applicant for a
occupational license ‘comply in every respect with the zoning ordinance and/or other
ordinances of the City,’ and a conditional use permit has not yet been obtained, the
issuance of an occupational license is not appropriate.” (J.A. at 75). Bates City
concluded that until Blue Moon obtained a conditional use permit, it would not be
eligible for an occupational license. On March 3, 2004, Bates City informed Blue
Moon that in addition to obtaining a conditional use permit, Blue Moon must also
request a zoning change for the property to a C-1 General Commercial District. (J.A.
at 77).
-3-
Blue Moon did not apply for a conditional use permit or seek to have the
property rezoned, but instead filed suit in the district court. The complaint alleged
that section 406 was enacted in violation of municipal and state law, and,
alternatively, that it was an unconstitutional restriction on Blue Moon’s rights under
the First and Fourteenth Amendments. Blue Moon sought a temporary restraining
order and/or a preliminary injunction to enjoin enforcement of the ordinance. The
district court denied Blue Moon’s motion for injunctive relief, and Blue Moon
appeals.
II.
In determining whether to issue a preliminary injunction, the district court must
consider (1) the threat of irreparable harm to the movant, (2) the balance between
such harm and the injury that granting the injunction will inflict on the other
interested parties, (3) the probability that the movant will succeed on the merits, and
(4) whether the issuance of an injunction is in the public interest. Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). We review the
district court’s decision for abuse of discretion. Id. at 114.
In denying injunctive relief, the district court correctly noted that the failure of
a movant to show irreparable harm is an “independently sufficient basis upon which
to deny a preliminary injunction.” Blue Moon Entm’t, L.L.C. v. Bates City, No. 04-
1050-CV-W-HFS, slip op. at 3 (W.D. Mo. May 13, 2005) (citing Watkins Inc. v.
Lewis, 346 F.3d 841, 844 (8th Cir. 2003)). Seeking to maintain consistency with a
prior unpublished opinion from the same court, Blue Springs Gifts, L.L.C. v. City of
Blue Springs, No. 00-0586-CV-W-SOW-ECF (W.D. Mo. June 15, 2000), the district
court held that because Blue Moon’s “alleged harm might be remedied upon a simple
application,” Blue Moon could not demonstrate the irreparable harm necessary to
obtain injunctive relief, unless it first applied for, and was denied, a conditional use
permit. Blue Moon Entm’t, L.L.C., slip op. at 4 (internal quotation omitted). The
-4-
court noted that it would not have taken this course “if there were Eighth Circuit law
or subsequent law placing it in serious doubt,” id. at 5, but that in the absence of such
precedent, the ruling of another judge on the same court should be followed “unless
plainly unreasonable.” Id. at 4 n.4. The district court thus denied Blue Moon’s
motion for a preliminary injunction based on the absence of irreparable harm, and did
not consider the merits of the First Amendment claim. Id. at 5.
Bates City does not dispute that Blue Moon’s proposed activities are protected
by the First Amendment, in light of the Supreme Court’s conclusion that even fully
nude dancing is expressive conduct entitled to some First Amendment protection.
City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion); id. at 310
(Souter, J., concurring); id. at 319 (Stevens, J., dissenting); Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 565-66 (1991) (plurality opinion); id. at 592 (White, J.,
dissenting); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); see also
SOB, Inc. v. County of Benton, 317 F.3d 856, 859 (8th Cir. 2003). First Amendment
activities generally may be restricted by a zoning ordinance that contains “content-
neutral” regulations governing the time, place, and manner of expression, so long as
the ordinance is designed to serve a substantial governmental interest and does not
unreasonably limit alternative avenues of communication. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47 (1986). If, however, the ordinance requires that an
individual obtain a license or permit prior to engaging in the protected activity, then
the licensing scheme is analyzed as a “prior restraint” on the activity. FW/PBS, Inc.
v. City of Dallas, 493 U.S. 215, 223 (1990) (plurality opinion); id. at 238 (Brennan,
J., concurring in the judgment); City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 750, 757 (1988).
Ordinarily facial challenges to legislation are disfavored, but in the context of
prior restraints on speech or expression, the Supreme Court has “long held that when
a licensing statute allegedly vests unbridled discretion in a government official over
whether to permit or deny expressive activity, one who is subject to the law may
-5-
challenge it facially without the necessity of first applying for, and being denied, a
license.” City of Lakewood, 486 U.S. at 755-56; see also FW/PBS, Inc., 493 U.S. at
223; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969); Freedman v.
Maryland, 380 U.S. 51, 56 (1965). This is because “the mere existence of the
licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates
parties into censoring their own speech, even if the discretion and power are never
actually abused.” City of Lakewood, 486 U.S. at 757. A licensing scheme generally
must provide narrow, objective, and definite standards to guide the licensing
authority, Shuttlesworth, 394 U.S. at 151, may only impose a restraint for a specified
and reasonable period, and must provide for prompt judicial review. Freedman, 380
U.S. at 58-59; FW/PBS, 493 U.S. at 228. It must not vest unbridled discretion in the
hands of a government official. FW/PBS, Inc., 493 U.S. at 225-26.
Section 406 of the Bates City Municipal Code requires an adult business to
obtain a conditional use permit prior to engaging in a protected activity, and,
therefore, it is a prior restraint that Blue Moon may challenge facially. See, e.g.,
FW/PBS, Inc., 493 U.S. at 225. The loss of First Amendment freedoms, even for the
period required to litigate a facial challenge, may constitute an irreparable injury. See
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). Thus, the district court
erred in finding that Blue Moon’s failure to apply for the conditional use permit is per
se fatal to its ability to demonstrate irreparable harm.
At oral argument, Bates City argued that even if the conditional use permit
requirement, as currently designed by the city, amounted to an unconstitutional prior
restraint, Blue Moon still could not show irreparable harm, because adult businesses
are permitted only within areas zoned as “C-1,” and Blue Moon has not sought to
have the parcel rezoned accordingly. Blue Moon is not entitled to injunctive relief,
the city contends, because its inability to operate an adult business at the current
location cannot fairly be traced to the permit requirement. See, e.g., M.J. Entm’t v.
City of Mount Vernon, 234 F. Supp. 2d 306, 311-13 (S.D.N.Y. 2002). Because the
-6-
district court concluded that Blue Moon could not show irreparable harm without first
applying for a conditional use permit, it did not address this argument regarding
zoning. Nor did the district court consider whether the permit scheme conformed to
constitutional requirements, whether the ordinance was validly enacted, or whether
Blue Moon could satisfy the other Dataphase requirements for the granting of
injunctive relief. Accordingly, we remand the case for the district court to develop
the evidentiary record, if appropriate, and to consider these matters in the first
instance.1
We vacate the district court’s order denying Blue Moon’s motion for a
preliminary injunction and remand for further proceedings not inconsistent with this
opinion.
______________________________
1
Blue Moon also argues that the district court erred by denying its motion to
file excess pages as part of its suggestions in support of its motion for injunctive
relief. It is evident that the district court accepted the overlength submission and then
denied the motion as moot, because the suggestions already had been filed. (App. at
115, 119-20). Accordingly, there is no merit to this aspect of Blue Moon’s appeal.
-7-
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10-13-2015
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754 N.W.2d 853 (2008)
MARQUARDT
v.
RYBROEK.
No. 2008AP000628-W.
Supreme Court of Wisconsin.
June 20, 2008.
Motion for reconsideration. Dismissed
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01-03-2023
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10-30-2013
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Cioffi v S.M. Foods, Inc. (2019 NY Slip Op 09252)
Cioffi v S.M. Foods, Inc.
2019 NY Slip Op 09252
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.
REINALDO E. RIVERA
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.
2016-05298
(Index No. 55391/11)
[*1]Frederick M. Cioffi, et al., appellants,
vS.M. Foods, Inc., et al., respondents (and a third-party action).
Grant & Longworth, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellants.
White & Quinlan, LLP, Garden City, NY (Terence M. Quinlan of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated April 11, 2016. The order denied the plaintiffs' cross motion for leave to amend their bill of particulars and interrogatory responses.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the plaintiffs' cross motion for leave to amend their bill of particulars and interrogatory responses is granted.
"While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise" (Kirk v Nahon, 160 AD3d 823, 824), "once discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances" (Mackauer v Parikh, 148 AD3d 873, 877 [internal quotation marks omitted]; see Schreiber-Cross v State of New York, 57 AD3d 881, 884). "Where a motion for leave to amend a bill of particulars alleging new theories of liability not raised in the complaint or the original bill is made on the eve of trial, leave of court is required, and judicial discretion should be exercised sparingly, and should be discreet, circumspect, prudent, and cautious" (Navarette v Alexiades, 50 AD3d 869, 870-871; see Schreiber-Cross v State of New York, 57 AD3d at 884).
Nevertheless, "[l]eave to amend a bill of particulars may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant" (Ortiz v Chendrasekhar, 154 AD3d 867, 869 [internal quotation marks omitted]; see Tuapante v LG-39, LLC, 151 AD3d 999, 1000; Vidal v Claremont 99 Wall, LLC, 124 AD3d 767, 767-768). Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine (see Edenwald [*2]Contr. Co. v City of New York, 60 NY2d 957, 959; Vidal v Claremont 99 Wall, LLC, 124 AD3d at 768; HSBC Bank v Picarelli, 110 AD3d 1031, 1032).
Here, despite their unreasonable and unexplained delay in seeking leave to amend their bill of particulars and interrogatory responses, the plaintiffs did not seek to assert any new theory of liability, but rather, sought to narrow a theory previously asserted. Specifically, whereas the plaintiffs had previously alleged violation of "all provisions of the [Federal Motor Carrier Safety Regulations] Parts 300 to 399," their proposed amendment sought to narrow this allegation to specify a violation of 49 CFR 392.2 as a result of a violation of Tuckahoe Village Code § 21-33.1. Since the proposed amendment was meritorious and sought to narrow the issues before the Supreme Court, the court should have granted the plaintiffs' cross motion for leave to amend their bill of particulars and interrogatory responses as requested (cf. Gjeka v Iron Horse Transp., Inc., 151 AD3d 463, 464-465; Jara v New York Racing Assn., Inc., 85 AD3d 1121, 1123).
MASTRO, J.P., RIVERA, DUFFY and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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01-03-2023
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12-24-2019
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JUSTICE GOLDENHERSH delivered the opinion of the court: Plaintiff, Pat Langford, appeals from an order of the circuit court of Saline County granting the motion to dismiss with prejudice of defendant, Sentry Insurance of Illinois, Inc., pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). In this cause, plaintiff argues that the circuit court should not have considered the time before the expiration of the statute of limitations in determining reasonable diligence in serving defendant. In addition, plaintiff argues that even if the circuit court did not consider the time before expiration of the statute, it erred in dismissing the cause with prejudice. We reverse and remand. As an aid to understanding the history of this case, we include the following chronology of its significant events: July 6,1986 Defendant issued a fire insurance policy to plaintiff on her home in Saline County. The policy issued included the standard one-year contractual limitation during which plaintiff may file suit. Note: The limitation period tolled for 206 days from filing of the proof of loss statement until denial of the claim. August 9,1986 Fire destroyed plaintiff’s home. October 6, 1986 Plaintiff submitted a sworn proof of loss statement. January 28, 1987 An examination under oath was conducted of plaintiff in Harrisburg. Plaintiff and her attorneys were present. April 30, 1987 Defendant denied plaintiff’s claim on the grounds of misrepresentation regarding the cause of the fire and circumstances of loss. Plaintiff filed her complaint. (This was eight months prior to the expiration of the statute of limitations.) Plaintiff directed summons to the Director of the Illinois Department of Insurance. It was returned unserved. June 29,1987 The contractual limitation period expired. March 2,1988 Alias summons issued and mailed to the Sheriff of Du Page County. (This was 8V2 weeks after the expiration of the limitations period.) April 28,1988 Service on defendant. (This is 10 weeks after the expiration of the limitations period.) May 16, 1988 On June 14, 1988, defendant filed a motion to dismiss plaintiff’s complaint with prejudice. Defendant alleged that plaintiff failed to use reasonable diligence to serve defendant as required by Rule 103(b). The circuit court, without hearing or oral argument, dismissed the complaint on June 28, 1988. The order, in its entirety, states: “Defendant’s motion, filed 6-14-88, to dismiss the complaint is granted.” In her motion to set aside the dismissal, plaintiff argued that the circuit court should examine only the time after the expiration of the limitations period to determine whether due diligence had been exercised. The parties submitted memoranda in support of their arguments. On December 19, 1988, the circuit court denied plaintiff’s motion. Rule 103(b) states: “(b) Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 107 Ill. 2d R. 103(b). The determination of reasonable diligence is traditionally left to the sound discretion of the circuit court. A reviewing court will only interfere when there is an abuse of that discretion. (Hebting v. Miller Brewing Co. (1980), 82 Ill. App. 3d 981, 983, 403 N.E.2d 671, 673; Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 885, 305 N.E.2d 389, 392; Mosley v. Spears (1970), 126 Ill. App. 2d 35, 40, 261 N.E.2d 510, 513-14.) The circuit court either did consider the time and actions before the expiration of the statute of limitations, or it did not. Either way, the circuit court abused its discretion. In ruling on a Rule 103(b) motion, a court may not consider the period or activities before the expiration of the statute of limitations. This is self-evident in the rule itself. Rule 103(b) indicates a difference between actions before the statute of limitations runs and those after. The rule provides that prestatute dismissal will be without prejudice, and post-statute dismissal will be with prejudice. The committee comments to the rule clearly state that the rule was revised in 1969 to provide: “[A] dismissal with prejudice shall be entered only when the failure to exercise due diligence to obtain service occurred after the expiration of the applicable statute of limitations. Prior to the expiration of the statute, a delay in service does not prejudice a defendant.” (107 Ill. 2d R. 103(b), Committee Comments, at 296.) The supreme court cited the comments in Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 619, 363 N.E.2d 796, 798; see Juechter v. Grace (1977), 55 Ill. App. 3d 606, 608, 371 N.E.2d 179, 181. A public policy inherent in the rule and its application is to encourage the process of discovery before trial when the claim is not yet stale. To indicate that a court could consider the time and actions before the running of the statute would encourage the filing of claims at the tail end of the statute of limitations so the prestatute time would not be held against a plaintiff. This is clearly contrary to the policy and intent of the rule. In People ex rel. Powell v. Luttrell (1970), 130 Ill. App. 2d 241, 264 N.E.2d 737, the First District Appellate Court implied a similar result. In Luttrell, the State commenced an action to recover a tax. Service occurred almost 12 ^2 years later. The court reasoned that as there was no applicable statute of limitations, there could be no failure to exercise diligence after the statute of limitations ran. Therefore, dismissal with prejudice was inappropriate. Luttrell, 130 Ill. App. 2d at 245, 264 N.E.2d at 740. In Department of Mental Health v. Kendall (1973), 15 Ill. App. 3d 881, 305 N.E.2d 389, the court found that the Department failed to exercise due diligence. The court dismissed with prejudice those charges for which the statute had run and dismissed without prejudice those charges for which the statute had not yet run. See also Juechter v. Grace (1977), 55 Ill. App. 3d 606, 607-08, 371 N.E.2d 179, 180-81 (dismissing with prejudice when statute had run; dismissing without prejudice when statute had not run). Defendant cites Curtis v. Pekin Insurance Co. (1982), 105 Ill. App. 3d 561, 434 N.E.2d 555, for the proposition that a circuit court must consider the entire time period in a Rule 103(b) ruling. In Curtis, however, the fourth district never specifically addressed the issue whether or not to consider the time before the statute ran. Justice Mills points out that the main point of contention was whether the standard 12-month limitation period, required in all fire insurance policies, is a statute of limitations for Rule 103(b) purposes. (Curtis, 105 Ill. App. 3d at 565, 434 N.E.2d at 558.) We disagree with the implication that a circuit court must look at the entire time period when ruling on a Rule 103(b) motion. (Curtis, 105 Ill. App. 3d at 565-66, 434 N.E.2d at 558.) Of course, one could read Curtis to hold that the eight months after the expiration of the limitation are an unreasonable delay. On that, we do not rule. If the circuit court did not consider the time before the expiration of the statute, it still abused its discretion in dismissing the case with prejudice. We hold that the passing of only 10 weeks after the running of the statute of limitations until actual service of an alias summons on defendant is not unreasonable. Further, the passing of only 8V2 weeks from the running of the statute until issuance of the alias summons is not an unreasonable delay. Therefore, dismissal with prejudice was an abuse of discretion. For the foregoing reasons, this court reverses the order of the circuit court of Saline County and remands for further proceedings not inconsistent with this opinion. Reversed and remanded. HARRISON and WELCH, JJ., concur.
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504 F. Supp. 43 (1980)
In re Ethel KRAVITZ.
No. H.C. 635.
United States District Court, M. D. Pennsylvania.
May 12, 1980.
*44 Harold Cramer, Philadelphia, Pa., for petitioner.
Ronald T. Williamson, Asst. Dist. Atty., Norristown, Pa., for respondent.
MEMORANDUM
NEALON, Chief Judge.
Petitioner Ethel Kravitz was found guilty of the murder of her husband by a jury in Montgomery County, Pennsylvania in 1958. She sought to overturn that conviction through various judicial and extra-judicial proceedings for more than twenty-one years. On January 17, 1980, after evidentiary hearings into the substantive merits of her claims had been concluded, but before the legal issues could be presented for resolution, Mrs. Kravitz passed away.[1]
Death terminates Mrs. Kravitz's long, personal quest for vindication. Her attorneys argue, however, that death does not end the instant habeas corpus action. They assert that petitioner's tarnished reputation and the operation of the Pennsylvania Slayer's Act, 20 Pa.Const.Stat.Ann. §§ 8801 et seq. (Purdon) (1975), which precludes petitioner's estate from inheriting through her murdered husband's estate, are "collateral *45 legal consequences" that save her habeas corpus petition from landing "ignominiously in the limbo of mootness." Parker v. Ellis, 362 U.S. 574, 577, 80 S. Ct. 909, 911, 4 L. Ed. 2d 963 (1960) (Warren, C. J., dissenting).
After careful consideration, I must disagree. Neither the stigma of a murder conviction nor the pecuniary loss to her estate invest the deceased habeas applicant's collateral challenge to the validity of the 1958 conviction with the "live controversy" necessary to sustain this court's limited subject-matter jurisdiction. Accordingly, the petition for a writ of habeas corpus will be dismissed as moot.
I.
Pervading petitioner's efforts to reverse her 1958 murder conviction has been her strong desire to secure a declaration of her innocence; her interest in litigating the constitutionality of that conviction seems to have been only secondary. Indeed, Mrs. Kravitz has placed the finger on the man she claims actually killed her husband. She asserts that only some strange duress or compulsion exerted over her by the alleged perpetrator prevented her from divulging his identity at the time of the criminal investigation. During the hearings conducted in this case, however, Mrs. Kravitz, under oath, named her slain husband's brother-in-law, Morris Passon, as the real murderer. Passon, also under oath, vehemently denied the accusation.
This sensational charge and Passon's cryptic involvement in the whole affair fuel the intrigue that surrounds this celebrated and highly publicized case.[2] But the mystery and sensationalism interjected throughout the proceedings must not obscure the fact that the federal habeas court's role is limited to ascertaining the constitutionality of a conviction, not its correctness.[3] Nor can the merits or demerits of petitioner's claims distract this court's consideration of the mootness issue. To put this matter in proper perspective, it is perhaps best to briefly relate the factual predicate for the constitutional issue presently before this court, and chronicle the procedural background of this protracted litigation.[4]
*46 II.
Petitioner's husband was found dead in the marital bedroom of their home in Wynnewood, Pennsylvania, late in the afternoon of Independence Day, 1958. He had been shot several times and had been bludgeoned about the head and face. There were apparently no witnesses to the brutal slaying, but certain circumstantial evidence tended to inculpate petitioner and suspicion focused on her almost immediately.[5] Less than an hour after the police arrived at the Kravitz home, Captain Shaefer, in the presence of several other Lower Merion Township police officers, questioned petitioner concerning the murder.[6] During this interrogation, petitioner appeared distraught, and answered Captain Shaefer's questions hesitantly. Approximately forty-five minutes after the interrogation began, petitioner's pulse and blood pressure were checked by Dr. Shoemaker. Captain Shaefer resumed questioning petitioner twenty minutes later, but this interrogation lasted for only five minutes.
At approximately 9:30 that night, petitioner was taken to the Lower Merion Township police station for further questioning. Montgomery County Chief Detective Charles G. Moody interrogated petitioner at the police headquarters for about two hours, from 10:30 P.M. to 12:30 A.M. Between 1:00 and 1:30 A.M. petitioner was advised that she was being charged with the murder of her husband. Petitioner was then questioned by District Attorney Bernard DiJoseph from 2:00 to 2:30 A.M. Following this interrogation, which was tape-recorded, petitioner was asked a few questions by Detectives Tammany and Waller concerning certain blood-splattered apparel. At no time during any of these interrogations was petitioner advised of her right to remain silent or of her right to assistance of counsel.[7]
At the murder trial, law enforcement officers testified that petitioner had admitted wearing on the day of the homicide blood-splattered clothing found in the bedroom where petitioner's husband was slain.[8] Also during the trial, Detective Moody testified that petitioner had made contradictory statements regarding the route she had taken to the home of her husband's brother-inlaw, *47 Morris Passon, on the day of the murder.[9] The alleged murder weapon was found in a culvert along Morris Road, one of the routes Detective Moody said that petitioner admitted taking to the Passon home on the day of the murder.[10]
No objections to the admissibility of her incriminatory statements were ever made at trial.[11] Nor does it appear that the voluntariness of these statements was questioned in her post-trial motions and direct appeal to the Pennsylvania Supreme Court. It seems that this issue was first raised when petitioner instituted the instant habeas corpus action in 1965.[12] While the admission of the challenged statements caused our Court of Appeals some concern, it affirmed Judge Follmer's dismissal of this claim on the ground that the Pennsylvania Post Conviction Hearing Act[13] seemed to offer a state judicial forum for its adjudication.[14]See In re Kravitz, 358 F.2d 734, 735 (3d Cir. 1966) (per curiam).
*48 Petitioner's subsequent bid to seek state judicial review of the voluntariness of the incriminating statements was rejected without a hearing on the ground that she had "waived" this claim under section 4 of the PCHA. See Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912 (1970). Petitioner then sought an executive pardon, but this avenue also proved unsuccessful.
In September 1975, petitioner instituted an action in the United States District Court for the Eastern District of Pennsylvania, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that her conviction was "null and void." This lawsuit was dismissed without opinion.
Also in September 1975, petitioner filed in the Eastern District of Pennsylvania an application for a writ of habeas corpus. By this time petitioner had been released from prison and discharged from parole, and the habeas corpus action was dismissed for want of subject matter jurisdiction inasmuch as petitioner had not been "in custody" at the time the petition was filed, as required under 28 U.S.C. § 2254.
The Court of Appeals for the Third Circuit affirmed both dismissals. Kravitz v. Commonwealth, 546 F.2d 1100 (3rd Cir. 1977). Circuit Judge Gibbons dissented from the dismissal of the habeas corpus action, opining that jurisdiction over petitioner's Fifth Amendment claim was satisfied by relation back to the 1965 petition filed in this court. Judge Gibbons then suggested using Rule 60 of the Federal Rules of Civil Procedure to reopen the 1965 habeas corpus proceeding, and thereby obtain a federal determination of the constitutionality of her conviction.
On May 4, 1977, petitioner filed a motion pursuant to Rule 60 "to obtain a clarification or modification of the Court's Order ... denying the ... petition ...." Specifically, petitioner sought to add to Judge Follmer's Order of August 25, 1965 "express language retaining jurisdiction pending determination by the state courts of the constitutional issues presented to, but undecided by, this Court...." This motion was denied by Order dated June 16, 1977, with leave to file a second motion that conformed to the requirements of Rule 60(b).
Petitioner subsequently filed a motion under Rule 60(b)(6),[15] which was granted by Order dated November 2, 1977. Respondent then moved to dismiss the petition for lack of jurisdiction on the grounds that petitioner was no longer in custody and Rule 60(b) relief was time-barred. By Order dated August 2, 1978, respondent's motion was denied. The August 2nd Order also vacated the Order of November 2, 1977 reopening this case, and scheduled a hearing on the question of the reasonableness for the delay in filing the Rule 60 motion. After reviewing the testimony offered at this hearing I concluded that the delay was not unreasonable and granted petitioner's motion for relief from judgment. See In re Kravitz, 471 F. Supp. 665 (M.D.Pa.1979).
While petitioner's Rule 60(b) motion was still pending, respondent moved to dismiss the habeas corpus petition on the ground of waiver.[16] By Memorandum and Order dated June 5, 1979, 488 F. Supp. 38, I held that the 1970 state court waiver ruling was not conclusive in this federal habeas corpus proceeding and that an evidentiary hearing would be necessary to resolve the matter. In recognition of the likelihood that witnesses *49 would become unavailable with the passage of additional time, and in an effort to efficiently employ judicial resources, the federal "waiver" hearing was combined with a hearing on the merits of petitioner's voluntariness claim.
These hearings were conducted August 20-22, 1979, and October 26, 1979. Following the October 26th hearing a schedule was established for presentation of proposed findings of fact and legal memoranda. Before this agenda was completed petitioner passed away.
III.
"Mootness" is one aspect of the "justiciability" doctrine, which "prohibits consideration of constitutional issues except as a necessary incident to the resolution of a concrete `case' or `controversy.' This doctrine limits the jurisdiction of federal courts; when its requirements are not satisfied courts are without power to proceed, regardless of the wishes of the parties."[17] Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 Harv.L.Rev. 297, 297-98 (1979). Justiciability, however, is not an immutable concept. Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 377 (1974). Instead, it has been characterized as "flexible," recognizing exceptions based upon "practicalities and prudential considerations." United States Parole Commission v. Geraghty, 445 U.S. 388, 404, n.11, 100 S. Ct. 1202, 1212, n.11, 63 L. Ed. 2d 479 (1980). In Geraghty, the Supreme Court explained the inter-relationship between the "case or controversy" requirement and the mootness doctrine:
Article III of the Constitution limits federal `judicial Power', that is, federal court jurisdiction, to `Cases' and `Controversies'. This case or controversy limitation serves two complementary purposes. It limits the business of federal courts to `questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,' and it defines the `role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of the government.' Likewise, mootness has two aspects: `when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'
Id. at 395, 100 S. Ct. at 1208. (citations omitted).
Consideration of the dual aspects of the mootness doctrine with a view toward the function and purpose of the writ of habeas corpus militates against finding a justiciable "case or controversy" here. The function of the writ "is to test in a court of law the legality of restraints on a person's liberty." R. Sokol, Federal Habeas Corpus § 1 (2d ed. 1969). A criminal conviction resulting in a prison sentence generally imposes restraints on a person's liberty beyond an actual loss of freedom, and so long as these "collateral legal consequences" subsist a challenge to the validity of the conviction, either on direct appeal or collaterally, remains "live."[18]See, e. g., Pennsylvania v. Mimms, 434 U.S. 106, 108, n.3, 98 S. Ct. 330, 332, n.3, 54 L. Ed. 2d 331 (1977) (per curiam); Sibron v. New York, 392 U.S. 40, 55-58, 88 S. Ct. 1889, 1898, 20 L. Ed. 2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. *50 1556, 1559, 20 L. Ed. 2d 554 (1968); Jessup v. Clark, 490 F.2d 1068 (3d Cir. 1973). See generally Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 380-83 (1974). But when the criminal judgment no longer affects the convicted person's legal rights, the challenge to the constitutionality of the conviction does not present a "case or controversy." See, e. g., North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971); United States v. Bohling, 399 F.2d 305 (6th Cir. 1968). That is, the removal of the collateral legal consequences precludes the court from entering a decree that affects an individual in a concrete case.
Since death has removed the vestigial remnants of petitioner's conviction, i. e., there are no longer restraints on her liberty resulting from her conviction, the controversy is no longer "live." In sum, petitioner's actual, concrete injury suffered as a result of the putatively unconstitutional conviction continued up until the time of her death, but not beyond. The abstract question of whether petitioner's constitutional rights have been violated does not sustain federal jurisdiction.
Petitioner's counsel argues, however, that the moral stigma attaching to a murder conviction and the inability of petitioner's estate to inherit through her husband's estate are subsisting collateral legal consequences that save this case from the bar of mootness. Petitioner's claim that reputation alone sustains federal court jurisdiction is not supported by the case law. The Supreme Court "has never mentioned the moral stigma of a criminal conviction as a collateral consequence justifying the continuing exercise of jurisdiction."[19] Note, The Mootness Doctrine in the Supreme Court, 83 Harv.L.Rev. 373, 381, n.38 (1974). Furthermore, the Court of Appeals for this circuit, relying on St. Pierre v. United States, 319 U.S. 41, 43, 63 S. Ct. 910, 911, 87 L. Ed. 1199 (1943), has ruled that the moral stigma attending a conviction does not satisfy Article III jurisdictional requirements. See Government of the Virgin Islands v. Ferrer, 275 F.2d 497, 499 (3d Cir. 1960). Accord, United States v. Galante, 298 F.2d 72, 73 (2d Cir. 1962). Simply stated, the interest in posthumously restoring petitioner's reputation is not sufficient to present a "case or controversy" for judicial resolution.[20]
Nor do I believe that the operation of the Pennsylvania Slayer's Act defeats mootness.[21] As Judge Lord observed in United States ex rel. Schwartz v. Lennox, 320 F. Supp. 754, 756 (E.D.Pa.1971):
[I]t would be a prostitution of the Great Writ, historically dedicated to the vindication of personal rights, to permit it to be used by beneficiaries, whose constitutional rights are not in question, as a device to obtain money.
*51 The simple fact is that we are in no position to restore any rights of personal freedom to [petitioner]. We cannot command the sheriff to release him for he is no longer in custody. We cannot restore his freedom to hold office, or his freedom to serve as a juror. In short, death, and not his conviction, has intervened to obliterate those freedoms for all time. Any favorable action by us would operate only to enhance the property rights of persons other than [petitioner]. Since no personal freedom rights of [petitioner] are any longer involved, his petition does not survive his death.
But even assuming that the effect of the Slayer's Act is a sufficient collateral legal consequence to make this controversy "live," the second aspect of the mootness doctrine a personal stake in the outcome is not satisfied here. The "personal stake" requirement, which is rooted in standing concepts, impacts on the first purpose of the justiciability doctrine "limiting judicial power to disputes capable of judicial resolution." United States Parole Commission v. Geraghty, 445 U.S. at 395, 100 S. Ct. at 1208. "The imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions." Id. at 397, 100 S. Ct. 1210 (emphasis added).
At the present time there is no self-interested party vigorously seeking vindication of petitioner's constitutional rights.[22] Indeed, petitioner was the only person that had standing to collaterally attack the validity of her conviction. Neither the administrator of her estate nor its beneficiaries can sue to obtain a judgment that petitioner's constitutional rights have been violated.[23] Although these parties may have been injured by the conviction and the resulting preclusive effect of the Pennsylvania Slayer's Act, their interests in maximizing their inheritance is not arguably within the zone of interests protected by the constitutional guarantee involved here or the habeas corpus statute.[24]See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 153, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184 (1970). See generally C. A. Wright, Handbook of the Law of Federal Courts, § 13 (3rd ed. 1976). Accordingly, the petition must be dismissed for want of a justiciable controversy.[25]
*52 The reported decisions that have addressed the issue have all concluded that death moots a habeas corpus action. See Knapp v. Baker, 509 F.2d 922 (5th Cir. 1975) (per curiam); Goronto v. MacDougall, 482 F.2d 361 (5th Cir. 1973) (per curiam); United States ex rel. Lynch v. Fay, 284 F.2d 301 (2d Cir. 1960) (per curiam); Hann v. Hawk, 205 F.2d 839 (8th Cir. 1953); United States ex rel. Schwartz v. Lennox, 320 F. Supp. 754 (E.D.Pa.1971).[26] In fact, counsel have not cited, and my research has not disclosed, any case holding to the contrary. In view of the above analysis, which clearly compels a finding of mootness, and the unanimity of the decisional authority, I am constrained to dismiss this action for want of subject matter jurisdiction.[27]
NOTES
[1] Hearings inquiring into the validity of petitioner's conviction were conducted on August 20-22, 1979, and October 26, 1979. The final transcript of these hearings was filed on November 5, 1979. Petitioner's memorandum and proposed findings of fact were filed on December 3, 1979. After two time extensions, to which petitioner's counsel acquiesced, respondent's reply memorandum and proposed findings of additional facts were filed on the day petitioner died. The briefing schedule established by the court contemplated a response from petitioner and allotted ten days from the filing of respondent's brief and proposed findings of fact. Thus, this matter would not have been ripe for disposition until January 28, 1980. (January 27 was a Sunday.)
[2] Passon was present with petitioner when she allegedly "discovered" her husband's dead body, and he summoned the police to her house. He later testified as a prosecution witness at petitioner's criminal trial. After petitioner's accusation received some publicity, Passon instituted defamation actions against petitioner and her attorneys.
Petitioner's story is that Passon had forced her to engage in sexual acts with him while her husband was in the military service. Petitioner says she did not tell her husband of Passon's conduct until shortly before July 4, 1958. Passon purportedly feared that petitioner's husband would use this information to ruin Passon, and so, petitioner alleges, he killed him and placed the blame on her.
[3] Sokol notes: "The guilt or innocence of the petitioner is also not brought into question by habeas corpus. Of course it is altogether possible that a man can be innocent and still be legally detained. For `the denial of a fair hearing is not established by proving merely that the decision was wrong....'" R. Sokol, Federal Habeas Corpus § 2 (2d ed. 1969).
[4] The following is the specific claim asserted in the initial petition filed in this court on March 15, 1965 and now pending:
The testimony of Detective Moody that he had a long conversation with the petitioner in the police fingerprint room late the night of the murder (when she was not represented by counsel) violated the petitioner's right to be protected from compulsory self-incrimination. He did not testify that he warned her of her rights against self-incrimination. This violation of her constitutional rights was compounded by the Trial Judge who, instead of instructing the jury about the impropriety of such testimony, commented upon it as though it, in fact, was the testimony of the petitioner.
The other issues initially raised by petitioner were disposed of on their merits by the late Judge Follmer, and his decision was affirmed by our Court of Appeals. See In re Kravitz, 358 F.2d 734 (3d Cir. 1966) (per curiam).
Prior to the hearings conducted in this case in August and October of 1979, petitioner moved to amend the 1965 habeas corpus application to include a claim of juror prejudice. Petitioner also moved to reconsider the decision of the late Judge Follmer that the repetitive and erroneous references by the trial judge to petitioner's refusal to take a blood test were harmless error. Following the hearings conducted in this case, petitioner moved to amend her 1965 petition to include claims that petitioner was denied her right to a fair trial by virtue of alleged "inaccurate testimony severely questioning the credibility of [certain] witnesses," and by virtue of an alleged "suppression by the Commonwealth of evidence contradictory to that offered at her trial and material to the issue of petitioner's innocence...."
[5] For a review of the significant circumstantial evidence introduced at the murder trial see Commonwealth v. Kravitz, 400 Pa. 198, 200-16, 161 A.2d 861 (1960), cert. denied, 365 U.S. 846, 81 S. Ct. 807, 5 L. Ed. 2d 811 (1961).
[6] The factual recitation presented here is limited to matters on which there is general agreement. There is a sharp split between petitioner's and the Commonwealth witnesses' version of what transpired during the night of July 4, and early morning hours of July 5, 1958. Petitioner testified that she was questioned almost continually by relays of law enforcement officials from approximately 5 P.M. until daylight the following morning. She also related that she had been physically abused and humiliated, and forced to urinate in the presence of a police officer. She further stated that she was exhausted and fainted during the interrogation on that hot summer night, and that she was denied food and water. The Commonwealth witnesses denied these lurid claims of abuse and physical indignities, averring that questioning of petitioner was intermittent, not conducted by batteries of officers, and that petitioner's physical condition did not evidence exhaustion, fatigue or shock. There are also other credibility issues concerning petitioner's purported refusal to submit to a blood test and her failure to tell her attorney about the manner in which she was interrogated. This memorandum disavows any inference that credence has been given to one side's story, and leaves the specific factual disputes unresolved.
[7] Petitioner's conviction ante-dated Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and the issue here is whether the incriminating statements were the product of police coercion. The failure to apprise petitioner of her Fifth and Sixth Amendment rights is a factor to be taken into account under the "totality of the circumstances" test for determining the voluntariness of incriminatory statements, but is not alone dispositive.
[8] Detectives Tammany and Waller testified at petitioner's murder trial that she had acknowledged wearing the clothes identified at the police station during the early morning hours of July 5, 1958. (Trial N.T. 1201-02).
[9] At the habeas corpus hearing, conducted in this case two separate typescripts of Moody's interrogation, both apparently prepared by Moody, were produced. The one typescript, identified as P-6, did not contain anything about the route petitioner had taken to Passon's home. The other, marked as R-17, contained the incriminatory contradictory statements. At the October hearing, Moody attempted to explain the confusion surrounding the existence of the two typescripts of his interrogation of petitioner. (Notes of Testimony of October Habeas Corpus Hearing 70-75 (Oct. H.C.N.T. 70-75)).
[10] Detective Moody gave the following testimony at petitioner's trial concerning his interrogation of petitioner:
She said: "I was going to take [flower pots] to my brother-in-law because he just built a new greenhouse." And I said, "Did you take those flower pots to your brother-in-law?"
She said, "Yes."
I said, "What route did you use?"
She said, "Morris Road." She said, "No, Haverford Avenue." She said: "There are three or four ways to go there."
I said, "Tell me all the routes you can use to go to your brother-in-law's house."
She said: "Well, I used Haverford Avenue."
(Trial N.T. 1188-1189). Moody also testified that petitioner had told him she had worn brown shorts and a reddish-gray shirt on the day of the murder, a description that matches the blood-splattered clothing found in the room where her husband was killed.
The Pennsylvania Supreme Court remarked that the contradictory statements attributed to petitioner concerning the route she had taken to Passon's home "indicated an attempt to deceive the police and conceal her guilt." Commonwealth v. Kravitz, 400 Pa. at 207, 161 A.2d 861. The court also noted the significance of the appearance of blood on clothing petitioner admitted wearing that day.
[11] Pennsylvania's procedure at the time of petitioner's trial for determining the voluntariness of inculpatory statements was similar to that proscribed in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Under that procedure, unless a confession was clearly coerced the question of voluntariness was submitted to the jury that determined the accused's guilt or innocence. Petitioner's trial attorney, William O'Hey, testified that he believed that raising the voluntariness issue before the same jury that determined guilt or innocence would be prejudicial. (Notes of Testimony, August Habeas Corpus Hearing 119 (Aug. H.C.N.T. 119)) He also related that Moody's testimony corroborated the story told by petitioner to him, and that he believed the trial judge's charge, which attributed the inconsistency to petitioner, made Moody's testimony appear more damaging. (Id. at 127) It should also be noted that petitioner apparently did not tell O'Hey that she had been slapped or humiliated by law enforcement officials. (Id. at 134).
[12] Petitioner had previously filed a claim to her husband's residuary estate, and, to overcome the bar of the Pennsylvania Slayer's Act, she offered to testify that she was innocent of her husband's murder and to support her claim of innocence by the testimony of additional witnesses. Her claim to her husband's residuary estate was disallowed on the ground that a murder conviction precludes re-litigation of the issue of guilt or innocence under the Slayer's Act. See Kravitz Estate, 418 Pa. 319, 211 A.2d 443 (1965).
[13] Pa.Stat.Ann. tit. 19, §§ 1180-1 et seq. (Purdon) (Supp.1980) [hereinafter referred to as the PCHA].
[14] The Court of Appeals noted that petitioner's remaining claims were "clearly without merit." In re Kravitz, 358 F.2d at 735. Those claims concerned:
1. The actions of the trial judge and the District Attorney at petitioner's trial relating to the alleged but unproved refusal to take a blood test.
2. Participation of a tipstaff in jury deliberations.
3. Prejudicial influence of newspaper and radio publicity.
4. The court's failure to charge that the jury verdict must be unanimous.
5. The charge of the court with relation to the matter of reasonable doubt.
6. The general unfairness of the trial.
[15] Rule 60(b)(6) provides, in pertinent part, as follows:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time....
[16] The concept of "waiver" in the context of habeas corpus actions under 28 U.S.C. § 2254 recognizes that in a federal system such as ours the procedural regimes of the state courts must be accorded due respect. Thus, in appropriate circumstances, non-compliance with a state procedural requirement will foreclose or "waive" federal collateral review.
[17] Mootness "was initially grounded in the common-law doctrine that courts lacked power to decide abstract questions in cases where no dispute exists," and its connection to the case or controversy requirement of Article III was only recently recognized. Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 374-75 (1974).
[18] The following have been identified as possible collateral legal consequences attending a criminal judgment: inability to engage in certain businesses; disqualification to serve as a labor union official; disqualification as a juror; disenfranchisement; professional disciplinary proceedings; loss of the right to hold federal or state office; and use of the conviction to impeach credibility. The collateral legal consequences rule has generally been applied where the prison sentence has been completely served. Only in United States ex rel. Schwartz v. Lennox, 320 F. Supp. 754 (E.D.Pa.1971), is there an intimation that the rule applies where the convicted person dies. See discussion infra.
[19] Pennsylvania applies the collateral consequences rule to PCHA challenges to the validity of a conviction where the petitioner has completed his sentence, but Pennsylvania has declined to follow the view that the petitioner's interest in clearing his name, per se, permits review or attack upon the conviction. See Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976).
[20] In United States v. Schrimsher, 493 F.2d 842, 844 (5th Cir. 1974), the court noted the adverse effect on a person's professional reputation as a possible collateral consequence defeating mootness. The Court of Appeals for the Fifth Circuit did not purport to rule that interest in one's personal reputation is sufficient to invest a criminal appeal with a "live" controversy. Petitioner's lawyers have not cited and my independent research has not disclosed any federal decision holding that reputation alone sustains a challenge to a criminal conviction.
[21] Petitioner's murder conviction precludes relitigation of her guilt or innocence for purposes of sharing in her husband's estate, see n.11 supra, but a finding that her conviction is unconstitutional would not automatically enable her estate to inherit through her husband's estate. Although the Pennsylvania Supreme Court has not decided the issue, see In re Estate of Klein, 474 Pa. 416, 425, 378 A.2d 1182 (1977), it would appear that a reversal would simply allow the issue of petitioner's guilt or innocence to be re-litigated in the Orphan's Court. Cf. Prudential Insurance Company of America v. Doane, 339 F. Supp. 1240, 1242 (E.D.Pa.1972) (an acquittal does not foreclose a challenge under the Pennsylvania Slayer's Act).
[22] Counsel for petitioner has not substituted a party to represent petitioner's interests. It must also be noted that there is nothing in the record to indicate that petitioner died testate or has any surviving relatives who would be entitled to share in her estate under the New York or Pennsylvania intestate laws. (Petitioner was a New York resident when she died.)
[23] Although 28 U.S.C. § 2242 permits "next of friend" habeas corpus applications, see R. Sokol, Federal Habeas Corpus § 5.1 (2d ed. 1969), it appears that the person on whose behalf the petition is filed must be personally affected by the habeas court's decision. No case has been found holding that the executor of an estate could pursue a habeas corpus petition for a deceased applicant.
[24] The fact that under Pennsylvania law a damage action for libel does not abate upon the plaintiff's death, see Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975), is of no import here. While petitioner's good name and reputation undoubtedly have intrinsic value, there is simply no party with the requisite standing to challenge her conviction.
[25] Petitioner's attorneys refer to the federal rule that death pending an appeal from a conviction abates the entire proceeding, including the guilty verdict, ab initio, see, e. g., United States v. Bechtel, 547 F.2d 1379 (9th Cir. 1977) (per curiam), and the Pennsylvania rule that a decision on the merits will be rendered even though the appellant dies pending appeal, see Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972), as supporting a finding that petitioner's case has not mooted out. The federal rule, however, is premised on the de facto mootness of the matter and the unfairness of allowing a conviction to stand before the appellant has had the benefit of appellate review, which is an `integral part of [our] system for finally adjudicating [his] guilt or innocence.'" United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977). Thus, for example, the Supreme Court dismisses a petition for certiorari, which is discretionary, when the person challenging his federal conviction dies while the petition is pending. See Dove v. United States, 423 U.S. 325, 96 S. Ct. 579, 46 L. Ed. 2d 531 (1976) (per curiam). The Pennsylvania rule also recognizes the unfairness of depriving a litigant of his right to appellate review, and, not being constrained by Article III limitations, allows the appeal to continue. Neither rule purports to hold that death does not moot the matter, and the federal rule, by implication, supports the decision reached here.
[26] To the extent that the ruling in United States ex rel. Schwartz v. Lennox, supra, may suggest that an adverse impact on the petitioner's estate would save a habeas corpus action, I decline to follow it.
[27] It should be noted that generally a writ of habeas corpus is issued conditionally, and the state is given an opportunity to re-try the petitioner before the writ becomes absolute. See, e. g., United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3rd Cir. 1978). See generally Wright, Procedure for Habeas Corpus, 77 F.R.D. 227, 247 (1978). Here, if this court were to find petitioner's conviction unconstitutional, the Commonwealth would be denied an opportunity to re-try petitioner.
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
This matter comes before the court as a hearing in damages being an action brought to recover for injuries suffered by the plaintiff as a result of an automobile accident on January 28, 1997. The plaintiff was the operator of an automobile when it was struck in the rear by a vehicle operated by the defendant in the City of Stamford.
After the accident the plaintiff was removed from the scene on a stretcher with a neck collar and brought by ambulance to St. Joseph Medical Center emergency room. There, X-rays of her neck and shoulder were taken and anti-inflammatory prescription drugs were administered. The plaintiff complained of pains in her neck, her lower back and down her leg as well as shoulder pain. She was shortly thereafter examined by her internist and referred to an orthopaedic surgeon, Dr. Joseph D'Amico. Dr. D'Amico ordered that the patient be treated symptomatically for acute cervical sprain, acute lumbar sprain and left shoulder contusion. He prescribed exercise and referred her to a course of physical therapy.
The plaintiff testified that the therapy helped a little but that she continued on antiinflammatory drugs. She was released from care within a year after the accident, her last visit to the Moore Center for Rehabilitation being October 6, 1997. She last consulted a physician on September 4, 1997. Dr. Mitchell Hubsher has diagnosed the plaintiffs condition as cervical neuritis, and lumbar neuritis.
The plaintiff testified that she has been advised that there is nothing more that can be done for her medically other than to be careful about her activities and to take over-the-counter pain medication such as Tylenol and Advil. She claims to have continuing neck and back pain although the pain does not radiate to her extremities. She claims that she is limited now in her physical activities as a result of the accident and her continued pain, pointing out that she no longer participates in dance classes which she enjoyed as recreation. She had taken dance CT Page 11472 lessons, including ballet, since she was five years old, participated in recitals and attended classes two or three times a week. This she can no longer do. She also claims that she has been slowed down in her other activities such as bike riding and running. It must be noted however that there is no evaluation of any permanent partial disability by a medical doctor and that the X-rays taken of the plaintiffs neck and shoulder were negative. Her medical specials amount to $2,739.48, and she makes no claim for loss wages.
The court awards fair, just and reasonable compensation as follows:
Economic damages $2,739.48
Non-economic damages $20,000 ____________ Total $22,739.48.
So Ordered.
Dated at Stamford, Connecticut, this 18th day of August, 1999.
D'ANDREA, J.
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO FILE FOURTH REVISED COMPLAINT
On May 6, 1992, the plaintiffs filed a third revised complaint in one count alleging negligence for injuries sustained as a result of an automobile accident. That complaint did not contain a count seeking double or treble damages under General Statutes 14-295. The third revised complaint became the operative complaint pursuant to defendants' request dated July 10, 1991 to revise the second and third counts seeking to delete recklessness as a cause of action and the damages resulting therefrom, when the CT Page 9021 plaintiffs failed to object to the request to revise in a timely manner.
On June 2, 1992, the defendants answered the third revised complaint and filed a special defense, to which plaintiffs replied. On August 14, 1992, the plaintiffs filed a motion for permission to file a fourth revised complaint, which in effect added a second count again alleging statutory violations for which they seek double or treble damages pursuant to General Statutes 13-295.
The defendants now object to plaintiffs' motion on the ground that it would be improper for the court to allow the plaintiffs to add this count when it had previously been revised out.
In paragraphs two and three of the defendant's request to revise dated July 10, 1992, the defendants sought to delete counts two and three of the plaintiffs' complaint on the ground that the plaintiffs had failed to allege sufficient facts to support an action for recklessness. These claims of the defendants regarding the legal sufficiency of the facts alleged in the complaint would have been more properly raised by way of a motion to strike rather than a request to revise. Practice Book 152.
A party may amend his pleadings or other parts of the record or proceedings . . . by order of the court . . . or by filing a request for leave to file the amendment with the amendment appended. Practice Book 176. In Lo Sacco v. Young, 2 Conn. App. 6 (1988) our Appellate Court stated at pages 7-8:
Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . .
Since it appears that the proposed amendment will not cause any unreasonable delay or prejudice, and that the substantive basis of defendants' objection was not properly CT Page 9022 addressed by their unopposed motion to revise, the plaintiffs' motion to file Fourth Revised Complaint is granted.
Wagner, J.
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE AMENDED APPLICATION TO CONFIRM ARBITRATIONAND MOTION FOR MODIFICATION
These parties submitted something to arbitration before a three person panel. A hearing was held and an award issued. The defendant received notice of the award on July 26, 1996.
Plaintiff applies to confirm, correct and modify. Defendant moves to modify.
Facts
The arbitrator's award reads as follows:
"The award to the Plaintiff is set forth as follows under the assumption that worker's compensation will pay the two contested bills in the amount of $8,172.00:
Total Award $385,000.00 -tortfeasor payment (100,000.00) -carpal tunnel stipulation (7,500.00) -Connecticut Diagnostic and Rehab bills (8,172.00) Net award to the Claimant $269,328.00
Arbitrator, Mark Neistat, disagreed with the conclusion that the $7,500.00 carpal tunnel claim be deducted from the award and that he took an exception from this decision." The court has no evidence except the award and admissions of parties. In addition the court has the parties' briefs which were submitted to the arbitrators from which the court may infer some facts the arbitrators may have considered. The court can find no specific submission.
The court finds that there was an automobile accident in which the plaintiff was injured and that as a result he CT Page 5495-Q received all the insurance from the tortfeasor's insurance policy in the amount of $100,000. He also eventually received workers' compensation payments of $94,060.50 but he had to surrender $57,393.97 to the workers compensation carrier. He did not have to pay the balance of $36,666.53.1 The arbitrators did not deduct all of that figure but did deduct from it $7,500 for a compensation payment and two medical bills totalling $8,172.
When those three amounts are deducted from the $36,666.53 the net amount plaintiff received which was not deducted from the award would be $20,994.53. Although the claims may be mathematically confused it is this sum that defendant seems to say should have been deducted under state regulation §38a-334-6(d). However, the award is produced "under the assumption that worker's compensation will pay the two [medical] bills of $8,172.00"
It is plaintiff's position that no worker's compensation payments are deductible in this instance because the regulations in question do not mention school buses.
The relevant underinsured insurance policy provision on this issue is as follows:
D. LIMIT OF INSURANCE
1. Regardless of the number of covered "autos", "insureds," premiums paid, claims made or vehicles involved in the "accident", the most we will pay for all damages resulting from any one "accident" is the LIMIT OF INSURANCE for UNINSURED MOTORISTS COVERAGE shown in the Declarations.
2. Any product payable under this coverage shall be reduced by:
a. All sums paid or payable under any workers compensation, disability benefits or similar law, CT Page 5495-R and
b. All sums paid by or for anyone who is legally responsible, including all sums paid under this Coverage Form's LIABILITY COVERAGE.
c. Any amount paid under this coverage will reduce any amount an "insured" may be paid under this Coverage Form's LIABILITY COVERAGE.
The arbitrators had this policy language before them. They followed the policy language in regard to all worker's compensation net payments except for the $20,994.53.
From reading the "Decision of Arbitrators" it is clear that they want to deduct any benefits "paid or payable under any worker's compensation or disability benefits law." In addition that decision makes it clear they do not want to deduct payments not resulting in a net sum to plaintiff. From this the court infers that the arbitrator decided that, except for the $7,500 and the two medical bills all the worker's compensation had been paid back to the carrier. As a result the award is correct.
Application to confirm is granted. Motion to correct or modify is denied. Motion for modification is denied.
N. O'Neill, J.
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These two suits involve similar issues and were tried together. They are brought to recover unpaid taxes. General Statutes Section 1231. In the first the taxes due from Mr. Aimes individually are the subject of inquiry and in the second those assessed on property owned by Mr. and Mrs. Aimes jointly. The taxes have not been paid and the real defense is that the defendants are either unable or unwilling to pay them. The claims based on the 1935 lists *Page 392
were withdrawn.
I.
Only one defense has been interposed to the merits of the plaintiffs' claims. The defendant attempted to show that the assessments were excessive. Evidence along this line was excluded. At least two methods are available to test the amount of the assessment. The taxpayer may appeal to the Board of Relief and if still unsatisfied may appeal from its decision to the Superior Court. General StatutesSections 1194, 1195, 1200. Action may also be brought under CumulativeSupplement 1935 Section 375c or its predecessors.Lomas Nettleton Company vs. Waterbury, 122 Conn. 228.
Both of these methods provide for a speedy determination of the question. To bring the matter up when, as in this case, the assessments go back seven years is impractical and not within the contemplation of the statutes. It would open the door to endless litigation. As far as I recall, no attempt was made by either defendant to secure a reduction of the assessments by either method described.
II.
The first technical defense is to the effect that the plaintiffs have improperly joined in one suit. The description of the plaintiffs in the writs is as follows: "The Town of West Haven, the West Haven School District, both municipal corporations located in the Town of West Haven, and Robert F. Sylvester, Tax Collector for said Town and School District, a resident of said Town of West Haven . . ."
Section 65 of the Practice Book provides that the exclusive remedy for misjoinder of parties is by motion. The defect should be raised in the trial court, Loomis vs. Hollister,75 Conn. 275, 278, by a pleading, King vs. Malone, 91 Conn. 342,345. No motion or other pleading having been filed and the point not having been raised on the trial, the action should not be defeated on this technical ground (General StatutesSection 5522) unless it makes the rendition of a proper judgment impossible. This result will not follow. A joint judgment will be res judicata as to all matters properly pleaded.Spencer vs. Mack, 112 Conn. 17, 24, and the defendants will therefore be amply protected in any payments made thereon. The plaintiffs having elected to join in their demand, any quarrels as to the disposition of these payments must be settled *Page 393
between themselves. See Cumulative SupplementSection 394c for the legislative policy.
III.
The defendants claim a variance between the tax alleged and that in fact laid. This variance is immaterial in an action on a debt and should be disregarded. Practice BookSection 96.
IV.
The defendants claim that since this is an action on a debt the interest should be figured at 6% instead of at the rate legal for taxes. No authority for this proposition has been cited or found and General Statutes Section 1217 is controlling.
V.
The certificate of error is attacked. The property of the defendants is divided by the Shore Road. A part of the property lying south of this road known as 75 Ocean Avenue was placed in the list of Mr. Aimes on the lists of 1929, 1930 and 1931. In those years, Mr. Aimes signed the tax lists of both Mrs. Aimes and himself. In 1932 it was discovered that this property should in fact have been set in the joint list of husband and wife. To correct this clerical error, a certificate of error was filed on December 29, 1932. This certificate purported to remove this property, assessed at $15,890., from the individual list of Mr. Aimes and to add it to the joint list. The taxes on the joint list for those years had been paid in full before the certificate of error was filed. The taxes due from Mr. Aimes were and still are in arrears for 1929, 1930 and 1931 in an amount greater than the amount due on $15,890. now added to the joint list. It follows that the plaintiffs, as far as this issue is concerned, are fairly entitled to the amount claimed and that for the defendants to retain it would result in their failure to bear their just share of the municipal tax burden by that amount.
The certificate of error was filed under General StatutesSection 1161. This section is discussed and applied in BridgeportBrass Company vs. Drew, 102 Conn. 206. That case holds, among other things, that the provision that clerical omissions or mistakes may be corrected by the assessors "at any time" does not place any limit on the time when the *Page 394
correction may be made. Presumably, if vested rights had intervened, based on a tax bill receipted in full, the correction would come too late. Such a situation would arise if a mortgagee had made a loan after inquiry. But here, where the affair was a family matter and the person seeking to avail himself of the defense, himself signed the tax bill, the statute covers the situation. As far as appears, the list of the joint and individual property was given in by Mr. Aimes personally and the time for him to complain of the error was at a meeting of the Board of Relief. To relieve him of the payment of the entire tax on the joint property as claimed by the defendants would be to allow him to benefit by his own carelessness.
If error is found in this conclusion, it can be easily corrected by subtracting from the total in # 50762 the amount of tax, interest and lien charge for these years, or $1104.98.
VI.
Certain other errors in computation are claimed. They are small in amount and appear to be adequately corrected in the revised statement of the plaintiffs attached to their brief.
In case # 50761 I find the amount due the Town to be $11,820.28, the amount due the School District to be $3047.45, and that judgment should enter for the plaintiffs against the defendant for $14,867.73.
In case # 50762 I find the amount due the Town to be $3132.13, the amount due the School District to be $855.68, and that judgment should enter for the plaintiffs against the defendants for $3987.81.
Judgment accordingly.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3367865/
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION FOR TURNOVER ORDER
The plaintiff Yale New Haven Hospital obtained a money judgment in this case against the defendant Mark Giordano for $3692.67 on June 21, 1999.
Thereafter on August 17, 1999, the plaintiff applied to the clerk's office for a wage execution against the defendant, pursuant to Conn. Gen. Stat. § 52-361a(a). The clerk issued the wage execution directing the defendant's employer Quarry Paving Company to deduct the statutory amount from the defendant's weekly wages and remit that sum to the levying officer to satisfy the judgment.1 When the plaintiff received no funds, the plaintiff requested that the court issue an order to show cause why a turnover order should not issue against the employer, pursuant to Conn. Gen. Stat. § 52-361a(g) and § 52-356b. The court set the hearing date for August 21, 2000. The Motion for Turnover Order and the Order for Notice and Hearing, signed by the court, were delivered to a deputy sheriff who was directed by counsel to serve them on what is listed in bold print as keeper of records or ErwinTrojanowski of Quarry Paving Company.
The problem is that the Order for Notice and Hearing were not served by the deputy sheriff on Erwin Trojanowski but rather on one Rebecca Brandroff who is identified in the sheriff's return as the "Bookkeeper and Treasurer of Company [sic]." Also delivered to her by the officer was a subpoena directing that the keeper of records or Erwin Trojanowski appear in court on the day of the hearing and bring records of the defendant's wages. Attached to the legal process that was served by the deputy sheriff was the following notice pursuant to Conn. Gen. Stat. § 52-356b: CT Page 11622
NOTICE UPON SERVICE OF THIS ORDER, YOU MUST OBEY IMMEDIATELY. IF YOU FAIL TO OBEY, YOU MAY BE SUBJECT TO BEING HELD IN CONTEMPT OF COURT, ARRESTED, JAILED, AND HELD PERSONALLY RESPONSIBLE FOR ANY DAMAGES SUSTAINED AS A RESULT OF THE CONTEMPT INCLUDING THE PLAINTIFF'S ATTORNEY FEES.
The employer, though having been properly served, did not appear in court on August 21, 2000. There being no opposition to the plaintiff's Motion for Turnover Order, the court issued an order that the employer turn over "records of Mark Giordano's wages and hours from December 10, 1999 to the present to [the offices of] Tobin Melien, P.C. on or before September 18, 2000". Notice of that order was sent by regular mail from the clerk to all parties and to the employer on August 21, 2000.
September 18, 2000, has come and plaintiff's counsel reports that no records have been received in accordance with the court's order. The plaintiff asks the court for appropriate relief.
There is insufficient service of process directing any one individual to appear in court for the court to find an identifiable natural person in contempt or to issue a capias for failure to appear in response to the subpoena. The court is satisfied, however, that proper service has been made on the employer of the process ordering the employer to comply with the wage execution against the defendant and with the order to turn over the defendant's wage records.
The court finds that the employer did not comply with these valid orders of the court of which it had notice. Moreover the court finds that the employer had notice, by proper officer's service on an agent of the employer, that contempt was a risk for failure to comply with such orders of the court.
The court finds the employer Quarry Paving Company in contempt for failure to turn over wage records of the defendant to the plaintiff. The court enters an order that the employer be fined $16.00 per day for each day that the employer fails to turn over all previously ordered documentation on defendant's wages to the plaintiff's attorneys. The order is retroactive to September 18, 2000. Further the court orders that the employer pay a reasonable attorney fee to the plaintiff to be determined by the court once the employer is in compliance with the turnover order. The court directs that this order be served upon the employer Quarry Paving Company by a proper officer and a separate copy be CT Page 11623 served on Erwin Trojanowski and on Rebecca Brandroff. At such time as this order is served, it shall constitute notice of this judgment and order against the defendant's employer. Execution would then be stayed during the period of appeal. Thereafter upon request of the plaintiff, the clerk shall from time to time issue an execution against Quarry Paving Company for such sums as are due under this order.
This fine shall remain in effect until the court finds that the employer purges itself of the contempt. This fine is not a substitute for and shall be in addition to such sums as may be due from the employer in compliance with the underlying wage execution.
It is so ordered.
Patty Jenkins Pittman, Judge
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/560727/
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932 F.2d 959
Freiberg (Randy), Estate of Freiberg (Bernard), d/b/a TheCheltenham Tru-Value Hardware Storev.Sentry Insurance Co.
NO. 90-1907
United States Court of Appeals,Third Circuit.
APR 17, 1991
Appeal From: E.D.Pa.,
Hannum, J.
1
AFFIRMED.
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/2101323/
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233 S.W.3d 771 (2007)
Kendrick ASKEW, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 89152.
Missouri Court of Appeals, Eastern District, Division Three.
September 25, 2007.
Gwenda R. Robinson, Saint Louis, MO, for Movant/Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before Judge ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J. and GLENN A. NORTON, J.
ORDER
PER CURIAM.
Kendrick Askew ("Movant") appeals from the judgment of the motion court denying his motion for post-conviction relief pursuant to Rule 24.035 without an evidentiary hearing. On appeal, Movant argues that he is entitled to an evidentiary hearing on his motion, because he received ineffective assistance from his probation revocation counsel.
The motion court's findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/747140/
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127 F.3d 42
Raymond J. Demarcov.Alabama Department of Revenue
NO. 96-6302
United States Court of Appeals,Eleventh Circuit.
Sept 15, 1997
N.D.Ala., 117 F.3d 1432
1
DENIALS OF REHEARING EN BANC.
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01-03-2023
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04-17-2012
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https://www.courtlistener.com/api/rest/v3/opinions/2101326/
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233 S.W.3d 768 (2007)
Orlando MONDAINE, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 88811.
Missouri Court of Appeals, Eastern District, Division Two.
September 25, 2007.
Scott Thompson, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, 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.
The movant, Orlando Mondaine, appeals the motion court's denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. We have reviewed the parties' briefs and the record on appeal and find no clear error. Rule 29.15(k). An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.
The motion court's order and judgment denying the movant's Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/411986/
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696 F.2d 66
LEWIS SERVICE CENTER, INC., Appellant,v.MACK FINANCIAL CORP., an Ohio corporation, Appellee.
No. 82-1139.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 8, 1982.Decided Dec. 27, 1982.
Law Offices of Cobb & Rehm, P.C., Lincoln, Neb., for Lewis Service Center, Inc., appellant.
Cline, Williams, Wright, Johnson & Oldfather, Lincoln, Neb., for Mack Financial Corp., appellee.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
HENLEY, Senior Circuit Judge.
1
Plaintiff Lewis Service Center (Lewis), a franchised dealer of Mack trucks, appeals the order of the district court1 granting summary judgment to defendant Mack Financial Corp. (Mack), in this action based on 42 U.S.C. Sec. 1983. We affirm.
2
Mack, a subsidiary of Mack Trucks, provides financing to dealers pursuant to an agreement by which it receives a security interest in the inventory of the dealer. As a result of a dispute between Lewis and Mack concerning payments under the financing contract, Mack filed a replevin action against Lewis on October 20, 1980 in the state district court in Nebraska to recover possession of thirty-five vehicles in Lewis's inventory. In conjunction with this petition, Mack requested the court to enter a temporary order pursuant to Neb.Rev.Stat. Sec. 25-1093.02 which requires the defendant in the replevin action to hold the property "unimpaired and unencumbered" until a hearing which must take place within fourteen days after service and at which the court determines plaintiff's right to possession pending final resolution on the merits.
3
The hearing was held on November 3, and an order was entered on November 7, vacating the temporary order because Mack had failed to make an effective demand for payment. On November 10 Mack filed a motion to dismiss without prejudice and filed a new petition alleging that demand had been made and requesting a second temporary order which was entered on November 12. After a hearing on November 24 the court ordered immediate delivery of the property to Mack.
4
In the present action, Lewis claims that the issuance of the temporary orders deprived Lewis of property rights in violation of due process and Sec. 1983. Both Lewis and Mack filed motions for summary judgment based on the question of the constitutionality of the temporary order procedure. The remainder of the replevin statute is not challenged.2 The district court concluded that the temporary order procedure satisfied due process standards and granted defendant's motion.
5
We agree with the district court that the temporary order results in a deprivation of property rights sufficient to trigger due process protection. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606, 95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1975) (garnishment of debtor's bank account deemed deprivation of use of property subject to due process scrutiny). The issue, then, as appellant contends, is whether the procedural protections provided by the statute meet constitutional standards. We recognize that due process "guarantees 'no particular form of procedure.' " Mitchell v. W.T. Grant Co., 416 U.S. 600, 610, 94 S.Ct. 1895, 1899, 40 L.Ed.2d 406 (1974). Rather, due process analysis necessitates a balancing of the creditor's interest in protecting his property rights and the debtor's interest in avoiding a wrongful seizure. Guzman v. Western State Bank of Devils Lake, North Dakota, 516 F.2d 125, 128 (8th Cir.1975).
6
The district court found useful the following guidelines set forth in Aaron Ferer & Sons Co. v. Berman, 431 F.Supp. 847 (D.Neb.1977):
7
(1) The [temporary order] must issue only upon an affidavit containing facts. The affidavit must be by the creditor or his attorney who has personal knowledge of the facts.
8
(2) The [temporary order] must be issuable by a judge or at least involve judicial participation.
9
(3) The creditor must be required to indemnify the debtor from the risk and damages of a wrongful taking.
10
(4) The debtor must be able to dissolve the [temporary order] by filing a bond.
11
(5) The debtor must be afforded an immediate post-seizure hearing wherein the creditor shall have to prove the grounds upon which the [temporary order] was issued.
12
Id. at 852 (footnote omitted) (citing North Georgia Finishing, Inc. v. Di-Chem, Inc., supra; Mitchell v. W.T. Grant Co., supra; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)). Although Aaron Ferer involved the constitutionality of the Nebraska prejudgment attachment procedure to acquire quasi in rem jurisdiction, we think the guidelines provided therein are helpful to the present analysis.
13
The first two factors weigh in favor of upholding the constitutionality of the temporary order procedure. The order is issuable only by a judge upon the filing of an affidavit which states facts showing plaintiff's interest in the property. Neb.Rev.Stat. Secs. 25-1093.01 to 1093.02.
14
With respect to the hearing, Lewis urges that the issuance of the temporary order without a mandatory hearing for up to fourteen days violates the due process requirement of an immediate hearing. We note that the Supreme Court in Di-Chem emphasized the need for an "early" hearing rather than an "immediate" hearing and declined to impose a specific time limit. 419 U.S. at 606-07, 95 S.Ct. at 722. The relevant portion of the replevin statute provides: "Unless otherwise determined and ordered by the court, the date of [the] hearing shall be seven days after service of the order upon the defendant, but in no event later than fourteen days after service." Neb.Rev.Stat. Sec. 25-1093.02. The district court construed this language as requiring an immediate hearing if the debtor so requests.3 So construed, the statute satisfies the due process hearing requirement.
15
Lewis contends that the temporary order procedure is constitutionally infirm because the creditor is not required to post bond before obtaining the temporary order.4 We do not think that this is a fatal defect in view of the retention of possession by the debtor pending the provision of a prompt hearing.5 Cf. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. at 606, 95 S.Ct. at 722 (debtor's bank account was "put totally beyond use during the pendency of the litigation"). Nor do we think it necessary for the debtor to be able to dissolve the temporary order by posting bond since he can request an immediate hearing.6
16
We conclude that the temporary order procedure meets due process standards. The judgment of the district court is affirmed.
1
The Honorable Warren K. Urbom, Chief Judge, United States District Court, District of Nebraska
2
Mack also attacked the jurisdiction of the court. However, we think this issue was recently settled by the Supreme Court in Lugar v. Edmonson Oil Co., Inc., --- U.S. ----, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), in which the Court held that the jurisdictional requirements of "state action" and action "under color of state law" may be satisfied by the invocation of the aid of state officials pursuant to state created provisional remedy procedures insofar as the constitutionality of the state statute is challenged. Id. 102 S.Ct. at 2756-57
3
The interpretation of state law by a district judge sitting in that forum is entitled to great deference. Zrust v. Spencer Foods, Inc., 667 F.2d 760, 764 (8th Cir.1982)
4
It is undisputed that the creditor must post bond before obtaining actual delivery. Neb.Rev.Stat. Sec. 25-1098
5
We find it unnecessary and therefore decline, in the absence of a state court decision, to construe the temporary order provision as requiring a bond pursuant to Neb.Rev.Stat. Sec. 25-1067 which imposes a bond requirement before the issuance of an injunction "unless provided by special statute."
6
If, after the hearing, defendant is ordered to deliver the property, he may retain possession by posting bond. Neb.Rev.Stat. Sec. 25-1098
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/2526328/
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946 N.E.2d 664 (2011)
KOHLHOUSE
v.
BLACK'S EXCAVATION.
No. 42A01-1010-SC-594.
Court of Appeals of Indiana.
May 6, 2011.
NAJAM, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
ROBB, C.J., concurs.
CRONE, J., concurs.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2526333/
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17 N.Y.3d 713 (2011)
957 N.E.2d 1157
933 N.Y.S.2d 653
2011 NY Slip Op 87102
MATTER OF BUTLER
v.
HESS.
Motion No: 2011-867
Court of Appeals of New York.
Decided October 20, 2011.
Motion for leave to appeal denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/748461/
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129 F.3d 1255
Cecil McLendon, Don Vandertulip, Jimmie Cartharn, Jr., Konrad Trojniarv.Continental Group, Inc., a New York Corporation Incorporatedin 1913, Continental Beverage Packaging, Inc., (f/k/aCintinental Can Company, U.S.A., Inc., o/k/a Continental CanCompany, Inc.), Continental Packaging Company, Inc.,Continental Group, Inc., a New York Corporation Incorporatedin 1982, Continental Can Company, Inc. (f/k/a TDV HoldingCorporation) a Delaware Corproation Incorporated in
NO. 96-5736
United States Court of Appeals,Third Circuit.
Sept 18, 1997
1
Appeal From: D.N.J. ,Nos.8301340, 8904009, 8904066
2
Affirmed.
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01-03-2023
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04-17-2012
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https://www.courtlistener.com/api/rest/v3/opinions/2101382/
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233 S.W.3d 799 (2007)
Yuvonise KIMBER, Appellant,
v.
Thomas D. JEFFERIES, Jr., Respondent.
No. WD 67256.
Missouri Court of Appeals, Western District.
October 2, 2007.
*800 Rebecca Rivers, Kansas City, MO, for appellant.
Sherrie L. Brady, Independence, Dennis J. Campbell Owens, Co-Counsel, Kansas City, MO, for respondent.
Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.
ORDER
PER CURIAM.
Yuvonise Kimber appeals certain orders entered by the circuit court concerning contemporaneous motions to modify and to transfer custody of her child with Respondent Thomas Jeffries. After a thorough review of the record, we find that the judgment is supported by substantial evidence, is not against the weight of the evidence, that no error of law appears, and that the court did not abuse its discretion. An extended opinion would have no precedential value, but a memorandum explaining our reasoning has been provided to the parties.
Judgment affirmed. Rule 84.16(b).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/76748/
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388 F.3d 1373
Richard CHAPPELL, Sr., Plaintiff-Appellant,v.Elaine L. CHAO, Secretary, Department of Labor, Defendant-Appellee.
No. 03-14750.
United States Court of Appeals, Eleventh Circuit.
October 28, 2004.
John Derek Wales, Law Offices of John D. Wales, Marietta, GA, for Plaintiff-Appellant.
Stephanie H. Webster, Julia B. Anderson, Sharon Douglas Stokes, Asst. U.S. Atty., Atlanta, GA, for Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before BIRCH, BARKETT and COX, Circuit Judges.
BARKETT, Circuit Judge:
1
Richard Chappell appeals the grant of summary judgment in favor of the Department of Labor (DOL) for lack of subject matter jurisdiction in this employment discrimination case. Chappell filed several administrative complaints against his supervisors in the Department of Labor alleging discriminatory treatment based on race and age, and retaliation for filing complaints on his own behalf and affidavits in support of other employees. When the Department of Labor's Equal Employment Office ruled against him, he appealed to federal district court. At the same time, he appealed his termination claim to the United States Court of Appeals for the Federal Circuit. The statutory scheme established by Congress for federal employees requires them either to combine their related employment discrimination and termination claims and pursue them in federal district court, or to appeal their termination claims to the Federal Circuit and waive any discrimination claims. Because Chappell elected to appeal his termination claim to the Federal Circuit, which disposed of it, and his discrimination and termination claims were based on the same facts, we affirm the dismissal of Chappell's suit in federal district court.
BACKGROUND
2
Chappell filed his first administrative complaint with the Department of Labor's Equal Employment Office (EEO) in March 1997, alleging disparate treatment based on race in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. He claims that he was reassigned to another post shortly thereafter but given inadequate training and resources to perform satisfactorily at his new position. Over the next three years, he filed several additional complaints with the EEO, alleging discrimination based on race and age, as well as retaliation for filing previous EEO complaints and helping other employees with their complaints. In June 2000, he requested a hearing before an administrative law judge with the Equal Employment Opportunity Commission (EEOC).
3
While Chappell's EEO complaints were pending, he was placed on a Performance Improvement Plan (PIP) in January 2000. When he failed to meet the requirements of the PIP, he was terminated in July 2000. On July 28, 2000, although his discrimination claims were still being considered by the EEOC, Chappell filed a parallel appeal of his termination to the Merit Systems Protection Board (MSPB), an administrative agency that has jurisdiction over specified "adverse employment actions" affecting federal civil servants, including terminations, demotions, and suspensions. See 5 U.S.C. § 7512.1 When a federal employee has been subject to one of these adverse actions, he is entitled to appeal to the MSPB. See 5 U.S.C. § 7513(d). Although the MSPB does not have jurisdiction over discrimination claims that are not related to adverse actions,2 it can entertain appeals in "mixed cases," where an employee alleges a Title VII violation in relation to one of the specified adverse employment actions. See 5 U.S.C. § 7702; 29 C.F.R. § 1614.302; Sloan v. West, 140 F.3d 1255, 1259 (9th Cir.1998).3 In a mixed case, a final decision from the MSPB exhausts an employee's administrative remedies and allows him to seek judicial review. See McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995). In the MSPB appeal, Chappell challenged the fairness of the performance reviews and alleged that his termination was based in part on discrimination and retaliation for formal EEO complaints regarding the PIP.
4
Before the MSPB entered its order in his agency appeal of the termination, the EEOC, on May 1, 2001, found that Chappell had not made an adequate showing to establish his discrimination claims. Pursuant to 42 U.S.C. § 2000e-5(f)(1), which gave him the right to file a civil action in federal district court within 90 days of a decision by the EEOC, Chappell filed an action in the Northern District of Georgia on August 3, 2001, which forms the basis of this appeal.
5
After Chappell filed this suit, the MSPB appeals board issued a final order upholding Chappell's termination on September 28, 2001. The MSPB order informed Chappell that he had three options for appeal: (1) He could seek EEOC review of his discrimination claims pursuant to 5 U.S.C. § 7702(b)(1); (2) He could file a civil action in federal district court on both his discrimination and his termination claims under 5 U.S.C. § 7703(b)(2); or (3) He could request the United States Court of Appeals for the Federal Circuit to review the termination decision, but he could only pursue this avenue if he did not seek review of his discrimination claims, because the Federal Circuit does not have jurisdiction to hear discrimination appeals. See 5 U.S.C. § 7703(b)(1)-(2).4 Thus, according to the statutory scheme governing review of MSPB final orders, if a federal employee wants to pursue any type of discrimination claim on appeal, the employee must file a complaint in a federal district court, as the federal district court is the only forum in which an employee can appeal both parts of a mixed claim.
6
In November 2001, Chappell elected to appeal the MSPB decision pertaining to his termination to the Federal Circuit. Upon filing a petition for review of an MSPB final order, the Federal Circuit requires the filing of a Statement Concerning Discrimination, which Chappell submitted through his attorney. To complete the form, he had to select one of five statements to describe his appeal. He checked a box in front of the following statement: "Any claim of discrimination by reason of race, sex, age, national origin, or handicapped condition raised before the employing agency or the Merit Systems Protection Board or arbitrator has been abandoned or will not be raised or continued in this or any other court." Notwithstanding the fact that the form itself strictly prohibited "alter[ing] or add[ing] to any of the statements," Chappell's attorney submitted the form with a line drawn through the words "or any other" between "this" and "court," so that the sentence read: "[a]ny claim of discrimination by reason of race, sex, age, national origin, or handicapped condition raised before the employing agency or the Merit Systems Protection Board or arbitrator has been abandoned or will not be raised or continued in this or any other court." The attorney's initials were written below the crossed-out words.
7
In January 2002, while the Federal Circuit appeal of his termination was pending, Chappell attempted to amend his petition in the district court proceeding in Georgia, to add his termination claims to the existing discrimination suit. The court rejected the attempt because Chappell never filed a motion for leave to amend. Although the court indicated that it would consider such a motion if Chappell wanted to file the petition again, Chappell never did so. Instead, Chappell moved the Federal Circuit to transfer his termination claims to the district court in Georgia. In July 2002, the Federal Circuit denied Chappell's motion, citing 28 U.S.C. § 1631, which permits transfer to a court in which the action could have been brought "at the time it was filed or noticed." Because the termination claim would have been untimely if filed in district court at the time of Chappell's motion to transfer, the Federal Circuit denied the transfer. Thereafter, the Federal Circuit dismissed Chappell's termination appeal on the merits. The DOL then moved for summary judgment on Chappell's discrimination complaint in the district court because it contained claims related to events already litigated in the Federal Circuit. The district court granted summary judgment in favor of the DOL, holding that it lacked subject matter jurisdiction over the case, and Chappell now appeals.
DISCUSSION
8
Summary judgment decisions are reviewed de novo. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). We may affirm the district court's decision for reasons different than those stated by the district court. See Securities & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (stating that the decision of the lower court must be affirmed if the result is correct even though the lower court relied upon a wrong ground or gave a wrong reason); Lucas, 257 F.3d at 1256.
9
The Federal Circuit has held that a federal employee cannot split a mixed case into discrimination and non-discrimination claims in order to pursue two separate appeals from an MSPB final order. See Williams, 715 F.2d at 1490 (stating that "Congress did not direct or contemplate bifurcated review of any mixed case," and explaining that 5 U.S.C. § 7702, which gives the MSPB jurisdiction over mixed cases, reflects the understanding that in mixed cases, claims of adverse action and discrimination "will be two sides of the same question and must be considered together"). Once an employee appeals a discrimination claim to the district court, he or she may no longer go to the Federal Circuit to appeal related adverse action claims. See id. (dismissing adverse action claims because they could have been raised before the district court).
10
Similarly, the District of Columbia Circuit has held that an employee waives discrimination claims by appealing to the Federal Circuit after an MSPB ruling on a mixed appeal. In Smith v. Horner, 846 F.2d 1521, 1523 (D.C.Cir.1988), the court held that an employee waived the right to pursue his Title VII claims in district court when he rejected an opportunity to transfer his claims to the district court and misleadingly told the Federal Circuit that his "appeal involve[d] no claim of discrimination and no claim of discrimination was raised before the agency or before the [MSPB]," when he had a Title VII retaliation action pending in district court. The court also remarked that even aside from this waiver, "Smith could also be held precluded from litigating his Title VII claim because .... [he] had the opportunity to litigate both claims in a court of competent jurisdiction (here, the district court), but instead chose to split them." Id. at 1524 n. 3. See also Otiji v. Heyman, 47 F. Supp. 2d 6, 7 (D.D.C.1998) (holding that an employee who had raised mixed claims before the MSPB and then appealed to the Federal Circuit waived his discrimination claims when he checked the first box on the Statement Concerning Discrimination, stating that "[n]o claim of discrimination... has been or will be made in this case").5
11
The Eighth Circuit has analogously found that, at the administrative level, an employee may waive discrimination claims by failing to include them in an MSPB appeal based on "similar issues arising out of overlapping facts." McAdams v. Reno, 64 F.3d 1137, 1142-43 (8th Cir.1995). In McAdams, a federal employee who was fired brought a sex discrimination action in district court and also appealed her demotion and termination to the MSPB. Id. at 1140-41. The district court dismissed her discrimination action, holding that the claims should have been included in her MSPB appeal. Id. at 1141. On appeal, McAdams argued that the district court should have heard her discrimination claims because they were unrelated to the discrimination claims she had raised before the MSPB. Id. at 1142. The Eighth Circuit rejected this argument, finding that all of her discrimination claims were based on the same underlying facts.6 The court held that by electing to proceed with an appeal to the MSPB, rather than the EEOC, the employee had to bring all of her mixed claims there in order to exhaust her administrative remedies and have the right to sue in district court. See id. Because she did not, her discrimination claims were "abandoned" and could not be brought in district court. Id.
12
In this circuit we have not addressed this issue. However, we are persuaded by the Federal Circuit's interpretation of the governing statutory scheme, and agree that the language, legislative history, and underlying policies of 5 U.S.C. § 7702 indicate that "Congress did not direct or contemplate bifurcated review of any mixed case." Williams, 715 F.2d at 1490. Because "the issues of a mixed case are tied together for resolution at the same time," id. at 1489,7 and because the Federal Circuit does not have jurisdiction over appeals of mixed cases, see 5 U.S.C. 7703(b)(1), federal district court is the only forum in which a federal employee may seek judicial review of a mixed case after a final order from the MSPB. We are further persuaded by the D.C. Circuit and the Eighth Circuit that it necessarily follows from this statutory scheme that a federal employee who wants to preserve both discrimination and non-discrimination claims after a final order from the MSPB must do so by bringing all his related claims in federal district court. Accordingly, an employee who chooses to appeal an adverse action to the Federal Circuit waives his right to pursue not only any discrimination claims he raised before the MSPB, but also any other discrimination claims arising out of the same facts.
13
Although the district court has subject matter jurisdiction to consider Chappell's discrimination and termination claims,8 we conclude that Chappell waived his right to proceed on his discrimination action in district court when he elected to appeal his termination claim to the Federal Circuit, rather than bringing his related discrimination and termination claims in one forum, as required. First, although the MSPB order stated explicitly that Chappell could pursue both claims only in district court, Chappell decided to appeal to the Federal Circuit, where he could only appeal the termination decision. In addition, despite the suggestion of the district court, he chose not to file a motion for leave to amend his district court action to add an appeal of the MSPB decision. Similarly, when he attempted to appeal his termination claims to the Federal Circuit, he submitted, through his attorney, a form stating that he did not plan to pursue related discrimination claims elsewhere. His attempts to alter that form despite instructions to the contrary cannot be countenanced. See Otiji, 47 F.Supp.2d at 7 ("To hold otherwise, especially where, as here, petitioner was represented by counsel, would be to encourage tactics `designed to circumvent the Federal Circuit's effort to prevent litigants from seeking, in this area of review of government personnel decision, "two bites of the apple."'") (quoting Smith, 846 F.2d at 1524). Thus, Chappell had ample notice of the consequences of filing his appeal in the Federal Circuit and numerous opportunities to avoid those consequences.
14
This waiver applies even though Chappell contends he raised different discrimination claims before the MSPB and the district court. Chappell relies on an untenable distinction when he claims that he should be able to proceed with his discrimination claims in district court because the discrimination claims he brought before the MSPB were unrelated to those he brought in district court. As in McAdams, Chappell's "various administrative filings raised related issues" and "arose out of overlapping facts." 64 F.3d at 1142-43. Before the MSPB, Chappell alleged that the DOL was acting out of discrimination and retaliation when it imposed the Performance Improvement Plan in January 2000. Before the district court, he raised claims referring to events ending in late 1999, including allegations that the DOL used unreasonable performance standards and failed to provide Chappell with the training and staff he needed to perform his job. All of these complaints related to Chappell's work environment and ability to do his job, including the conditions leading up to his termination. Indeed, Chappell's 2000 performance review and termination are more accurately seen as the culmination of his years of conflict with the DOL over his work conditions, rather than as entirely separate issues.
15
We therefore conclude that all of Chappell's discrimination claims were related to his termination claims, and could have been brought before the MSPB as mixed claims. Because all of these claims could have been brought together, they should have been brought together—before the district court, if not before the MSPB. See Williams, 715 F.2d at 1490 (citing with approval the description of adverse action claims and discrimination claims in mixed cases as "two sides of the same question [that] must be considered together"). Chappell's decision not to bring these claims together in district court when he had the opportunity to do so constitutes a waiver of the right to pursue his discrimination claims now. Accordingly, summary judgment in favor of the DOL is
16
AFFIRMED.
Notes:
1
Congress created the MSPB in 1978 as part of the Civil Service ActSee 5 U.S.C. § 1201 et seq. MSPB review of adverse employment actions was designed to protect federal employees from widespread politically motivated terminations whenever the party in power changed hands. See Sloan v. West, 140 F.3d 1255, 1258 (9th Cir.1998).
2
Federal employees with Title VII claims that are not mixed with adverse actions within the MSPB's jurisdiction must file an initial complaint with their agency EEO to pursue their claimsSee Sloan, 140 F.3d at 1259. After the employee exhausts administrative remedies, she may file a civil action in federal district court. See 42 U.S.C. § 2000e-5; E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir.2002).
3
Specifically, for a case to qualify as a mixed case appeal, an employee must "allege[] that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, handicap or age." 29 C.F.R. § 1614.302
4
See also Williams v. Dept. of the Army, 715 F.2d 1485, 1491 (Fed.Cir.1983) ("[W]here jurisdiction lies in the district court under 5 U.S.C. § 7703(b)(2), the entire action falls within the jurisdiction of that court and this court has no jurisdiction, under 5 U.S.C. § 7703(b)(1), over such cases.").
5
In bothSmith and Otiji, the courts found it significant that the employees had attorneys. In Smith, the court noted that because the employee "was represented by counsel ... his response appears designed to circumvent the Federal Circuit's effort to prevent litigants from seeking, in this area of review of government personnel decision, `two bites at the apple.'" 846 F.2d at 1524. See also Otiji, 47 F.Supp.2d at 7.
6
"McAdams' demotion and removal appeals to the MSPB included allegations of sex discrimination and reprisal. She attached a copy of her EEO complaint to her demotion appeal. Her removal appeal also included attachments related to charges of discrimination. Moreover, her complaint in [the district court] action lists her demotion and removal as examples of the discriminatory actions taken against her."McAdams, 64 F.3d at 1142.
7
We also agree that this holds true both in administrative proceedings and for the purposes of judicial reviewSee id. at 1490.
8
Title VII gives the district court subject matter jurisdiction over federal employees' employment discrimination claims when administrative remedies have been exhaustedSee 42 U.S.C. § 2000e-16(c); Brown v. General Servs. Admin., 425 U.S. 820, 832-33, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). The district court also has jurisdiction to review a final order of the MSPB in a mixed case. See 5 U.S.C. §§ 7702-7703. No statutory provision strips the district court of subject matter jurisdiction in a mixed case like Chappell's. Although the federal district court had subject matter jurisdiction over all of Chappell's claims once the MSPB issued its final order, Chappell waived his right to file in that court by proceeding in the Federal Circuit.
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01-03-2023
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04-27-2010
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https://www.courtlistener.com/api/rest/v3/opinions/305896/
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467 F.2d 943
Sessionsv.State of Connecticut
72-2003
UNITED STATES COURT OF APPEALS Second Circuit
Oct. 18, 1972
1
D.Conn.
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/748464/
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129 F.3d 1255
H. Landau & Companyv.Victor Jesus Quiles, Tulia Quiles, Edwin Quiles, Ruth Noemi Quiles
NO. 95-1567
United States Court of Appeals,Third Circuit.
Sept 18, 1997
Appeal From: E.D.Pa. ,No.94cv04185 ,
Yohn, J.
1
Affirmed.
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01-03-2023
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04-17-2012
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https://www.courtlistener.com/api/rest/v3/opinions/2484486/
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930 N.E.2d 412 (2010)
236 Ill.2d 523
PEOPLE
v.
STERLING JOHNSON.
No. 109712.
Supreme Court of Illinois.
March 1, 2010.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1412116/
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65 F. Supp. 430 (1944)
PIASCIK
v.
UNITED STATES.
District Court, S. D. New York.
July 21, 1944.
*431 James B. M. McNally by Thomas H. Walker, both of New York City, for the United States.
Jacob Rassner, of New York City, for libellant.
BONDY, District Judge.
The libellant's contention that the libel states a cause of action under Public Law 17, 50 U.S.C.A.Appendix, § 1291, can not be sustained because the law expressly provides that it applies only to seamen employed through the War Shipping Administration, and because there is no allegation of such fact. Nor can the contention that the Jones Act, 46 U.S.C.A. § 688 applies, be sustained. The Suits in Admiralty Act, 46 U.S.C.A. §§ 741-752, provides a remedy against the United States. This is the exclusive remedy against the United States on the facts alleged. Johnson v. United States Shipping Board Emergency Fleet Corporation, 280, U.S. 320, 327, 50 S. Ct. 118, 74 L. Ed. 451. See Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S. Ct. 425, 87 L. Ed. 471. Under this statute suit must be brought within two years after the cause of action arises, 46 U. S.C.A. § 745, that is, two years after death, and not as contended, two years after the appointment of an administrator. See Reading Co. v. Koons, 271 U.S. 58, 46 S. Ct. 405, 70 L. Ed. 835. This limitation is incorporated by reference in Public Law 17, 50 U.S.C.A.Appendix, § 1291 and Public Vessels Act, 46 U.S.C.A. § 782, which was also referred to by counsel.
It may be noted that no facts are disclosed showing that this is the proper district in which this suit should be brought. See 46 U.S.C.A. § 742; Blamberg Bros. v. United States, 260 U.S. 452, 43 S. Ct. 179, 67 L. Ed. 346.
The exceptions accordingly are sustained and the libel dismissed with leave to amend.
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10-30-2013
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872 F.2d 430
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,v.Leonarda O. BARRERA, Defendant-Appellant.
No. 87-1363.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 9, 1989.Decided April 5, 1989.
Before GOODWIN, ALARCON and NELSON, Circuit Judges.
1
MEMORANDUM*
2
Leonarda O. Barrera appeals her conviction, following a jury trial, for possession of 108 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 842(a)(1) and (b)(1)(d), and for importation of the marijuana, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and 960(b)(4). She contends that: (1) the evidence was insufficient to support her conviction; (2) the district court improperly admitted hearsay evidence; and (3) the prosecutor engaged in misconduct by asking prejudicial questions during the trial.
3
Although we conclude that the district court erred in admitting hearsay evidence, the error was harmless and, accordingly, we affirm.
I. Sufficiency of the Evidence
4
We uphold a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 807, 319 (1979); United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir.1987). The government is entitled to all reasonable inferences that might be drawn from the evidence. Aceves-Rosales, 832 F.2d at 1157.
A. Possession with Intent to Distribute
5
Barrera was arrested at the Mexican border after customs inspectors discovered 108 pounds of marijuana in a hidden compartment in the back of a truck she was driving. She contends that the government failed to prove beyond a reasonable doubt that she had knowledge of the marijuana found in the truck and was able to exercise control over it. The contention is meritless.
6
Conviction for possession of a controlled substance requires both knowledge of the presence of the substance and ability to exercise control over it. United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987). Mere presence in a vehicle in which contraband is found is not enough, id. at 351, but the trier of fact may draw reasonable inferences of guilty knowledge from additional evidence. United States v. Haro-Portillo, 531 F.2d 962, 963 (9th Cir.1976). Guilty knowledge may be inferred from the defendant's possession of a contraband-laden vehicle when in addition there are inconsistencies and improbabilities in the defendant's case, id., or when the contraband is worth a large sum of money. United States v. Del Aguila-Reyes, 722 F.2d 155, 157-58 (5th Cir.1983).
7
Here, evidence of Barrera's possession and control of the truck and knowledge of the marijuana's presence was overwhelming. A notarized document in the truck's glove compartment showed that the truck's owner had entrusted it to her. Although her adult son was also in the truck, she was its driver. Percodan pills found in her purse and in blankets covering the hidden compartment linked her to the location where the marijuana was found. The marijuana's $100,000 value was sufficiently high to raise a reasonable inference that Barrera would not have been casually or innocently entrusted with it. See Del Aguila-Reyes, 722 F.2d at 157-58.
8
Moreover, there were several inconsistencies in Barrera's testimony. Barrera told one border agent that she was returning from the border town of Nogales, Mexico, but told a second agent that she was returning from Hermosillo, Sonora, some distance from the border. Barrera initially told an agent that she had not bought any drugs in Mexico; later she admitted to having bought percodan pills. Although she testified that she had been a mere passenger in the truck, and that her son had been driving until the truck ran out of gas near the border, she later conceded that she had driven the truck around Nogales and then to the border. Barrera initially denied having put anything in the truck's back section, but then admitted having put the blankets and pills there. Although an inspector testified to a strong perfume odor in the truck's back section, Barrera denied smelling perfume.
9
In sum, evidence of Barrera's possession and control of the truck, of her having been near the truck's hidden compartment, and of the marijuana's value, combined with numerous inconsistencies and improbabilities in her testimony, more than sufficed to establish that she knew of the marijuana and was able to exercise control over it. See Penagos, 823 F.2d at 350.1
B. Importation of a Controlled Substance
10
To sustain a conviction for importation of a controlled substance, the government must prove that the defendant knowingly or intentionally imported a controlled substance into the United States. United States v. Flickinger, 573 F.2d 1349, 1359 (9th Cir.1978). There was ample evidence to establish Barrera's knowing possession of the marijuana (see subpart A, supra ). In addition, it is undisputed that Barrera was attempting to enter the United States from Mexico. Accordingly, the evidence sufficed to sustain her conviction for importation. See Flickinger, 573 F.2d at 1359.
II. Admission of Hearsay Testimony
11
Barrera contends that the district court erred in permitting a customs agent to testify, over objection, that a man who came to the border station while Barrera was being detained displayed a birth certificate that identified him as having the last name of Barrera.
12
If the man's tender of a birth certificate was an assertional act, then the agent's testimony was hearsay offered to prove the truth of the matter asserted--namely, that the man was the person identified by the certificate--and properly should have been excluded. Fed.R.Evid. 801(a), 802. The government contends that the tender was not an assertional act, relying on this court's reasoning that "a name, however learned, is not really testimonial ... [but] is a bit of circumstantial evidence." United States v. May, 622 F.2d 1000, 1007, cert. denied, sub nom., Phipps v. United States, 449 U.S. 984 (1980). See also United States v. Snow, 517 F.2d 441, 443 (9th Cir.1975).
13
Although Snow and May are relevant, they are not controlling due to significant differences between their facts and those of Barrera's case. First, the hearsay testimony here challenged described physical evidence, a birth certificate, that was not introduced into evidence, whereas in both May and Snow the government introduced the physical evidence itself. Had the government produced the birth certificate, Barrera would have had the opportunity to challenge its authenticity, pursuant to Fed.R.Evid. 803(9).
14
Second, May is distinguishable because there the court found that the challenged items--cards containing photos of protestors charged with trespass and names given by the pictured persons--had not been admitted to establish the names of the pictured individuals. In contrast, here, the name on the birth certificate was used to establish the truth of the matter asserted; namely, the identity of the man at the border station.
15
Thus, Snow and May do not support the conclusion that the man's tender of a birth certificate was a non-assertional act. Since testimony of the tender was offered to prove the truth of the matter asserted, and since the testimony did not fall within any exception to the hearsay rule, the testimony was inadmissible hearsay, and the district court abused its discretion by admitting it. See United States v. Cowley, 720 F.2d 1037, 1040 (9th Cir.1983).
16
Barrera contends that the error was not harmless because the erroneously admitted testimony directly contradicted her testimony that her husband had stayed in Los Angeles while she traveled to Mexico and, accordingly, substantially undermined her credibility. We reject that contention. In light of the overwhelming evidence against Barrera and the numerous inconsistencies in her testimony (see part I, supra ), the error in admitting the hearsay testimony was harmless beyond a reasonable doubt. See United States v. Medina-Gasca, 739 F.2d 1451, 1454 (9th Cir.1984).
III. Prosecutorial Misconduct
17
Prosecutorial comments to which a defendant objected are reviewed for harmless error; if the defendant did not object, the standard of review is the "plain error" test. United States v. Endicott, 803 F.2d 506, 513 (9th Cir.1986).
A. Questioning Concerning Percodan Pills
18
Barrera claims that the prosecutor committed prejudicial misconduct in questioning a customs inspector about the legality of her possessing percodan pills, and also in questioning her and other witnesses about the pills in a manner designed to emphasize their illegality. This contention fails.
19
This court condemns prosecutorial behavior as misconduct only when, considered in the context of the entire trial, the behavior affected the jury's ability to judge the evidence fairly. Endicott, 803 F.2d at 513.
20
Although an inspector did testify that he believed Barrera's possession of the pills was illegal, the district court promptly sustained Barrera's objection and instructed the jury to disregard the statement. Any prejudice resulting from the statement was cured by the court's prompt instruction. See Endicott, 803 F.2d at 513.
21
Other questions about the pills clearly were proper. The prosecutor questioned two witnesses about the pills before the inspector commented on their illegality. Thus, those questions could not have emphasized the pills' illegality. When the prosecutor questioned Barrera following the inspector's testimony, she made no mention of the pills' illegality. Rather, she confronted Barrera with the fact that pills found in her purse were the same as those found in the truck near the hidden compartment, and elicited from her an admission that she had been in that part of the truck. Because that questioning did not affect the jury's ability to judge the evidence fairly, the prosecutor did not engage in misconduct. See Endicott, 803 F.2d at 513.
B. Misstating the Evidence
22
Barrera further contends that the prosecutor misrepresented the evidence during cross-examination of Barrera by stating that a man who walked through the border station about two hours after her arrest gave the name of her husband. This contention fails.
23
A prosecutor may not cross-examine an accused in such a way as to imply the existence of a prejudicial fact unless he or she is prepared to prove that fact. United States v. Tham, 665 F.2d 855 (9th Cir.1981), cert. denied, 456 U.S. 944 (1982). Here, the prosecutor improperly implied that the man had identified himself as Daniel Barrera, the name of Barrera's husband, when in fact the inspector had testified only that the man had shown a birth certificate with the last name of Barrera. However, Barrera did not object. Accordingly, the plain error standard applies. Endicott, 803 F.2d at 513. Plain error is "a highly prejudicial error affecting substantial rights." United States v. Bustillo, 789 F.2d 1364, 1367 (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979)).
24
Here, there was no plain error in admitting testimony that the man at the border station gave "Barrera" as his last name (see Part II, supra. The misstatement that he also gave "Daniel" as his first name was not so significant as to constitute plain error. See Endicott, 803 F.2d at 513.
C. Vouching for a Witness's Credibility
25
Barrera contends that the prosecutor, by asking her why a customs inspector's testimony contradicted her own, improperly vouched for, and obliged her to comment on, the inspector's credibility. However, merely asking a defendant to speculate as to why his or her testimony conflicts with the testimony of a government witness does not amount to vouching for the government witness's credibility. See United States v. Wellington, 754 F.2d 1457, 1468 (9th Cir.1985), cert. denied, 474 U.S. 1032 (1986). Further, because the trial court sustained Barrera's objection to the question, Barrera was not obliged to comment on the inspector's veracity. In addition, the trial court gave a standard instruction on credibility of witnesses that eliminated any danger of prejudice. See United States v. Buras, 633 F.2d 1356, 1360-61 (9th Cir.1980). Thus, the prosecutor did not engage in misconduct. See Endicott, 803 F.2d at 513.
D. Cumulative Error
26
Barrera contends that, even if each claimed instance of prosecutorial misconduct independently were harmless, the cumulative effect deprived her of a fair trial. See United States v. Berry, 627 F.2d 193, 200-01 (9th Cir.1980). The contention is without merit. In light of the strong evidence of Barrera's guilt and numerous inconsistencies in her testimony, any errors concerning prosecutorial misconduct, even when viewed together, were clearly harmless.
27
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3
1
Barrera does not challenge the sufficiency of the evidence to establish her intent to distribute. That intent may be inferred from the value and quantity of the marijuana she possessed. See United States v. Savinovich, 845 F.2d 834, 838 (9th Cir.1988)
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106 F.3d 409
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Irving C. STEVENS; Jeanette E. Stevens, Plaintiffs-Appellants,v.CITY OF CANNON BEACH; State of Oregon, Acting by & throughits Department of Parks & Recreation, Division of StateLands, Land Conservation & Development Commission & JudicialDepartment, Defendants-Appellees.
No. 95-35837.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 9, 1997.Decided Jan. 17, 1997.
Before: ALDISERT,* PREGERSON, and THOMAS, Circuit Judges.
1
ORDER**
2
We affirm for the reasons set forth in the well-written, well-reasoned opinion of the district court published at 893 F.Supp. 944 (D.Or.1995).
*
Honorable Ruggero J. Aldisert, Senior Circuit Judge for the Third Circuit, sitting by designation
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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01-03-2023
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04-17-2012
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
ERNEST LEE HILL v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 88-05450-58; P-27581 Paula Skahan, Judge
No. W2005-02971-CCA-R3-HC - Filed October 11, 2006
The Petitioner, Ernest Lee Hill, appeals the trial court's denial of his petition for habeas
corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial
of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has failed to allege
any ground that would render the judgments of conviction void. Accordingly, we grant the State's
motion and affirm the judgment of the lower court.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.
Juni Samrat Ganguli, Memphis, Tennessee, for the appellant.
Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General, for
the appellee, the State of Tennessee.
MEMORANDUM OPINION
On April 7, 1989, the Petitioner Ernest Lee Hill entered a guilty plea to robbery with a deadly
weapon and was sentenced to seventy-five years confinement as a range II offender. On May 22,
1989, the Petitioner entered guilty pleas in cases 88-5450 through 88-5458 to eight counts of
robbery with a deadly weapon and one count of murder in the perpetration of a robbery. The trial
court sentenced the Petitioner as an aggravated range II offender to life imprisonment on each count.
The trial court further ordered that the sentences be served concurrent with one another.
1
On August 8, 2003, the Petitioner filed an application for writ of habeas corpus relief seeking
relief from the judgments of conviction against him and alleging that the judgments of conviction
are void. In support of his application, the Petitioner contends that the Class X sentences are in
direct contravention of the statutory mandates in effect at the time of sentencing. The Petitioner
additionally alleges that his conviction for murder in the perpetration of robbery was not a criminal
offense under the applicable law. By order entered September 16, 2003, the lower court denied
habeas corpus relief, finding that the Petitioner had failed to provide any documents supporting the
petition as required by section 29-21-107(b)(2), Tennessee Code Annotated. Notwithstanding, the
State, by pleading filed February 27, 2004, conceded that the original petition submitted by Petitioner
did comply with section 29-21-107(b)(2), Tennessee Code Annotated. On June 2, 2004, the lower
court granted the Petitioner’s motion for relief from the September 16, 2003, order. After re-
considering the Petitioner’s application for habeas corpus relief, the lower court, by order entered
December 7, 2005, entered an order denying habeas corpus relief. In denying relief, the lower court
made the following findings of fact and conclusions of law:
Petitioner contends that his convictions and sentences are void under Class X
designation. . . .Petitioner argues that the Trial Court lacked jurisdiction to sentence
him for Class X felonies on May 22, 1989. Petitioner does admit in paragraph 1 of
his amended petition that prevailing authority suggests that the Class X designation
was only repealed with the enactment of the 1989 Sentencing Code which came into
effect November 1, 1989.
...
. . . Only a portion of the Class X Felonies Act was deleted by the 1985 act: T.C.A.
40-28-301 relating to release and parole provisions, but it was replaced with T.c.A.
40-34-501. The 1987 supplement cites T.C.A. 40-35-112 and states “all persons who
commit crimes on or after July 1, 1982, shall be tried and sentenced under this
chapter.” The changes in 1985 did not remove the Class X designation nor did they
removed the authority to sentence the defendant according to the Class X
designation.
. . . T.C.A. 40-35-117 specifically states that the sentencing act of 1989 applies only
to crimes committed after November 1, 1989 or to persons sentenced on or after
November 1, 1989. . . . Therefore, the defendant was properly sentenced according
to the provisions in effect at the time of his offense and at the time of his sentencing.
....
The Petitioner timely filed a notice of appeal document. On appeal before this Court, the Petitioner
asserts that the repeal of the Class X felony designation renders his sentences void.
The State has filed a motion requesting affirmance by this Court pursuant to Rule 20, Rules
of the Court of Criminal Appeals. In support of its motion, the State asserts that the Petitioner is not
entitled to relief as the plain language of the statute precludes its application to the Petitioner.
2
Contemporaneous with the filing of the State’s motion requesting affirmance is the State’s motion
to accept the late-filed motion. Under Rule 2, Tennessee Rules of Appellate Procedure, it is within
the discretion of this Court to suspend the Rules of Appellate Procedure for good cause, including
the interest of expediting decision upon any matter. See also Tenn. R. App. P. 21(b). Having
reviewed the State’s motion and having found that suspension of the Rules in this matter is
appropriate, we grant the State’s motion to late file its motion for affirmance by memorandum
opinion.
The right to seek habeas corpus relief is guaranteed by article I, section 15 of the Tennessee
Constitution. Hickman v. State,153 S.W.3d 16, 19 (Tenn. 2004). However, the grounds upon which
habeas corpus relief will be granted are narrow. Id. at 20 (citations omitted). Relief will only be
granted if the petition establishes that the challenged judgment is void. Id. A judgment is void “only
when ‘[i]t appears upon the face of the judgment or the record of the proceedings upon which the
judgment is rendered’ that a convicting court was without jurisdiction or authority to sentence a
defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.” Id.
(quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). Unlike the post-
conviction petition, the purpose of the habeas corpus petition is to contest a void, not merely
voidable, judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189
(1968).
The petitioner has the burden of establishing either a void judgment or an illegal confinement
by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994). If the petitioner carries this burden, he is entitled to immediate release. Id. However, if the
habeas corpus petition fails to demonstrate that the judgment is void or that the confinement is
illegal, neither appointment of counsel nor an evidentiary hearing are required and the trial court may
properly dismiss the petition. Hickman, 153 S.W.3d at 20 (citing T.C.A. § 29-21-109 (2000); Dixon
v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002)); Passarella, 891 S.W.2d at 619.
The Petitioner asserts that his convictions are void as the trial court sentenced him under
repealed legislation. Essentially, he contends that the Class X felony sentencing law was no longer
in effect at the time of his crimes and convictions and, therefore, his class X felony sentences are
illegal and void. The Tennessee Reform Act of 1982 stated that it governed the sentence, release
eligibility, and manner of service of Class X felonies committed on or after July 1, 1982. T.C.A. §
40-35-112(b)(1)-(2) (1982) (repealed 1989). The Comprehensive Correction Improvement Act of
1985 applied the provisions of the Tennessee Reform Act of 1982 regarding the release eligibility
date, manner of service and of release and parole to defendants who committed Class X felonies
before July 1, 1982. See Comprehensive Correction Improvement Act of 1985, ch. 5, §§ 7-8, 1985
Tenn. Pub. Acts 22, 23. Additionally, the Act extended eligibility for sentence reduction credits to
Class X felons. Id., ch. 5, § 12(c)(2)-(3), 1985 Tenn. Pub. Acts 22, 25. Neither one of these acts
repealed the Class X classification. See Eddie DePriest v. State, No. W2003-02561-CCA-R3-HC,
2004 WL 1872897, at * 2 (Tenn. Crim. App., at Jackson, Aug. 20, 2004), perm. to appeal denied,
(Tenn. Dec. 20, 2004). Rather, the legislation merely required sentencing for Class X felonies to be
3
under the 1982 Act. Id. (citation omitted). The Class X designation of offenses was not repealed
until the enactment of the 1989 sentencing code, which became effective on November 1, 1989. See
Acts 1989, ch. 591, § 1. As the Petitioner was convicted and sentenced on March 6, 1989, nearly
eight months prior to the effective date of the 1989 Sentencing Act, the trial court correctly sentenced
the Petitioner under the 1982 law. The Petitioner’s claim as to the Class X classification does not
entitle him to habeas corpus relief.
Upon consideration of the record, the pleadings and the applicable law, this Court concludes
that the Petitioner has failed to establish that he is entitled to habeas corpus relief. He has neither
established that his effective life sentence has expired nor has he established that the trial court was
without jurisdiction or authority to enter the sentences imposed. The lower court properly
determined that the Petitioner had failed to establish his entitlement to habeas corpus relief. When
an opinion would have no precedential value, the Court of Criminal Appeals may affirm the
judgment or action of the trial court by memorandum opinion when the judgment is rendered or the
action taken in a proceeding without a jury and such judgment or action is not a determination of
guilt, and the evidence does not preponderate against the finding of the trial judge. See Tenn. R. Ct.
Crim. App. 20. We conclude that this case satisfies the criteria of Rule 20. Accordingly, it is
ordered that the State’s motion is granted. The judgment of the trial court is affirmed in accordance
with Rule 20, Rules of the Court of Criminal Appeals.
___________________________________
JOHN EVERETT WILLIAMS, JUDGE
4
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680 S.E.2d 271 (2009)
TURNER
v.
BEATTY.
No. COA08-1100.
Court of Appeals of North Carolina.
Filed June 16, 2009.
Certification Date July 6, 2009.
Case reported without published opinion. Affirmed.
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262 F.2d 659
UNITED STATES of America, Appellant,v.Harris LEVESON, Jr., Claimant of $16,833.00, Appellee.
No. 17103.
United States Court of Appeals Fifth Circuit.
January 30, 1959.
COPYRIGHT MATERIAL OMITTED David C. Clark, Jr. and O. B. Cline, Jr., Asst. U. S. Attys., James L. Guilmartin, U. S. Atty. for the Southern Dist. of Florida, Miami, Fla., for appellant.
Murray Goodman, Ben Cohen, Miami Beach, Fla., for appellee.
Before TUTTLE, JONES and BROWN, Circuit Judges.
TUTTLE, Circuit Judge.
1
This appeal presents the question whether the trial court erred in finding that the United States had failed to prove by a preponderance of the evidence that a sum of money seized on the premises of the appellee's betting establishment (which was admittedly operated in violation of the internal revenue laws) was property either intended for use in violating the internal revenue laws, or was being used in violating such laws at the time of its seizure, or had been used in violating them.1 We find that the court did err in making this finding, and we therefore decide that the court's conclusion that the money was not subject to forfeiture pursuant to Section 7302 of the Internal Revenue Code of 1954, 26 U.S.C. § 7302, is erroneous.
2
Claimant Leveson operated an illegal betting establishment in a room in the rear of a building which housed a cigar store in a front room. There is no evidence that he had any interest in the store or its operation. This gambling operation handled about $1,500 daily, a substantial amount, if not all of which, was strictly in the form of cash. An internal revenue agent, Albert W. Shellan, visited the place eleven times during a two-month period. He placed bets in the form of cash and received payment in cash when he won. On these occasions he dealt with Leveson, as well as others.
3
When internal revenue agents made the raid which resulted in the seizure of the $16,833 which is the subject of this action, Shellan was in the back room collecting the proceeds of a bet from Leveson or one of his confederates. He testified that someone in the front of the premises shouted something, whereupon Leveson and another person ran to a small room adjacent to the room in which the gambling operations transpired. In the smaller room there were some filing cabinets and a safe. Shellan testified that he was "not sure whether that safe was in my view, but I could hear tumblers clicking." Leveson and the person with him escaped, and when the members of the raiding party examined the safe, they found it was locked. When it was later opened, the safe yielded cash in the amount of $16,833.
4
Appellant contends, and we agree, that these facts establish a prima facie case for forfeiture of the money. Considering the nature of the betting establishment and its need for considerable amounts of cash, plus the conduct of claimant and the location of the safe, it is clear that the United States has made a prima facie showing that at least a portion of the money in the safe was at the time of the seizure intended for use in claimant Leveson's illegal gambling operations. Under these circumstances the claimant's failure to testify or to otherwise attempt to explain away the suspicious circumstances surrounding the money may be taken as further evidence of the money's guilt. See Williams v. United States, 5 Cir., 199 F.2d 921; Kent v. United States, 5 Cir., 157 F.2d 1, certiorari denied 329 U.S. 785, 67 S. Ct. 297, 91 L. Ed. 673. Moreover, by such failure to introduce evidence or testify, he failed to provide any basis upon which the court could segregate any of the money which was not intended for use in his betting operations.
5
The facts in this case have been clearly established by stipulations of the parties and by uncontradicted testimony. For this reason the trial court's finding that the money was not intended for illegal use is subject to review free of the restraint of the so-called "clearly erroneous rule." See Riedel v. Commissioner, 5 Cir., 261 F.2d 371; Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217, 219. However, even if we test the trial court's finding in this case by the "clearly erroneous rule" we conclude that it is unsupported by the record and cannot stand. Once the government made a prima facie case, it was entitled to prevail unless countervailing evidence was offered. None was offered. We find that the only conclusion which can reasonably be drawn from this record is that at the time of its seizure the money in claimant's safe was intended for use in violation of the internal revenue laws.
6
Claimant Leveson has presented an alternative ground for affirming the lower court's decision. He has cited several authorities2 for the proposition that property seized in raids on gambling establishments is only forfeitable if it is an integral part of the gambling operations and is not forfeitable if it has been removed from the operations and reduced to the gamblers' exclusive possession prior to the time of its seizure. Without passing upon the correctness of this statement of law or deciding if it could be applied in a case involving the statute authorizing seizure and forfeiture of "any property intended for use in violating the provisions of the internal revenue laws,"3 we hold that the property seized in this case had not been withdrawn from appellant's illegal betting operations and it was therefore subject to forfeiture to the United States.4
7
The judgment of the District Court is reversed and the case remanded for entry of judgment in favor of appellant.
Notes:
1
The applicable statute provides in part: "It shall be unlawful to have or possess any property intended for use in violating the provisions of the internal revenue laws, or regulations proscribed under such laws, or which has been so used, and no property rights shall exist in any such property." Internal Revenue Code of 1954, § 7302, 26 U.S.C. § 7302
2
Gilley v. Commonwealth, 312 Ky. 584, 585, 229 S.W.2d 60, 19 A.L.R. 2d 1224; Connelly v. Weber, 182 Pa.Super. 187, 126 A.2d 474; United States v. Jenello, 3 Cir., 102 F.2d 587; United States v. One Ford Station Wagon, etc., D.C., 24 F. Supp. 350; United States v. One Cigarette Machine, D.C., 1 F. Supp. 913; 24 Am.Jur. 1958 Supp. 50; 38 C.J.S. Gaming § 78, p. 136
3
Internal Revenue Code of 1954 § 7302, 26 U.S.C. § 7302
4
See United States v. One Thousand Five Hundred and Eight Dollars and Forty Cents, D.C.S.D.Ill., 158 F. Supp. 916
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2036
EMEKA EKE,
Plaintiff - Appellant,
v.
BANK OF AMERICA, NA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:09-cv-00488-RLW)
Submitted: December 10, 2010 Decided: December 23, 2010
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Emeka Eke, Appellant Pro Se. Michael E. Lacy, TROUTMAN SANDERS,
LLP, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Emeka Eke appeals the district court’s order granting
summary judgment to the Bank of America, NA and dismissing his
complaint. We have reviewed the record and the district court’s
opinion and find no reversible error. Accordingly, we affirm
for the reasons stated by the district court. Eke v. Bank of
America, NA, 3:09-cv-00488-RLW (E.D. Va. Aug. 6, 2010). 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
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 16, 2004 Session
CERTAIN UNDERWRITERS AT LLOYDS, LONDON v. TED M.
WINESTONE; J.B. MCDONALD & CO.; LEONARD E. FRANKLIN; and
GUARANTY NATIONAL INSURANCE COMPANY.
TED M. WINESTONE and J.B. MCDONALD & CO., V. REGIONS
MORTGAGE, INC., GEORGE HOLLEY INSURANCE AGENCY, INC. and
AL HOLLINGSWORTH
An Appeal from the Circuit Court for Shelby County
CT-006472-00 Karen R. Williams, Judge
No. W2003-03025-COA-R3-CV - Filed July 13, 2005
This is a casualty insurance case. A bank had a mortgage on residential property. The homeowner
stopped making payments on the mortgage, abandoned the property, and allowed the homeowner’s
insurance coverage on the property to lapse. The bank, in order to protect its interest in the property,
purchased insurance coverage on behalf of the homeowner. The bank later sold the mortgage to a
third party and cancelled the insurance coverage. The new mortgagee purchased insurance coverage
for the property. Shortly thereafter, the property burned, resulting in a total loss. The new
mortgagee’s insurance company filed the instant lawsuit, asking for a declaratory judgment that the
prior insurance policy was still effect at the time of the fire. The trial court held that the prior policy
was not in effect at the time of the fire. The new insurance company appealed, arguing that, in the
course of the purchase, the prior insurance coverage had transferred to the new mortgagee as assignee
of the prior mortgage holder, and that the bank’s cancellation of the prior insurance policy was
ineffective. We affirm, finding that the prior insurance coverage was not transferred to the new
mortgage holder and that the prior insurance policy was not in effect at the time of the fire.
Tenn. R. App. P. 3 Appeal as of Right; the Judgment of the Circuit Court is Affirmed
HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.
Allan B. Thorp, Memphis, for plaintiff/appellant, Certain Underwriters at Lloyds, London.
Eugene G. Douglass, Bartlett, and Alvin A. Gordon, Memphis, for defendant/counter-plaintiff and
third party plaintiff/appellee Ted M. Winestone and J.B. McDonald & Co.
Michael B. Neal, Memphis, for appellee Guaranty National Insurance Company.
OPINION
In July 1993, Leonard Franklin (“Franklin”) purchased a house and lot located in Memphis,
Tennessee. In the course of the purchase, Franklin executed a deed of trust and a promissory note in
the amount of $400,000 to Regions Mortgage, Inc. (“Regions Mortgage”), located in Birmingham,
Alabama. The deed of trust required Franklin to maintain casualty insurance to protect against fire
loss to the property. Franklin purchased a policy with State Auto Insurance Company.
During the summer of 1999, Franklin became delinquent on his mortgage payments. In
December 1999, Regions Mortgage inspected the property and learned that it was vacant and not
listed for sale. After contacting State Auto Insurance Company, Regions Mortgage learned that
Franklin’s policy had been cancelled on September 22, 1999.
At that time, Regions Mortgage had a master policy issued by Guaranty National Insurance
Corporation (“Guaranty National”) that provided “forced place” insurance to Regions Mortgage on
behalf of Region Mortgage’s customers who could not or did not properly insure property for which
Regions Mortgage was mortgagee.1 Cason Financial, Inc. (“Cason”) was the insurance agent for the
Guaranty National policy, and it was administered by Overby-Seawell Company (“Overby-Seawell”).
On February 8, 2000, Guaranty National issued a certificate of coverage regarding the Franklin
property. On the “Declarations” page, Franklin was listed as the insured mortgagor and Regions
Mortgage, Inc., Its Successors and/or Assigns was listed as the insured mortgagee. The coverage was
issued for one year and was made retroactively effective from September 22, 1999, the date that
Franklin’s coverage through State Auto Insurance Company lapsed. Regions Mortgage paid a full
year premium on this policy of $3,696.95. Under the terms of the policy, Regions Mortgage had the
right to cancel coverage retroactively. The policy stated:
The first Named Insured shown in the Declarations may cancel this
policy by mailing or delivering to us advance written notice of
cancellation. You may also cancel coverage on any Mortgagor’s
Certificate of Insurance which has been issued by notifying us of the
desired effective date of cancellation, but not prior to the effective date
of mortgagor provided insurance which meets the requirements of your
1
“Forced place” insurance is a policy purchased by a mortgagee (i.e. Regions Mortgage) on behalf of a
mortgagor (i.e. Franklin) when the mortgagor’s policy lapses for whatever reason. This term is sometimes shown as
“force placed” or “forced-place.” W e used the term “forced place” because it appeared to be the most prevalent.
-2-
loan agreement, and no more than 60 days prior to the date of
notification to us, without approval of the company. (emphasis added)
Additionally, the Declarations page stated “this coverage is not transferable without written
permission by endorsement hereon by [Guaranty National].”
By January 2000, Regions Mortgage determined that Franklin would not cure the default
status of his mortgage. Regions Mortgage referred the matter to Stanley Weir (“Weir”) of Regions
Financial Corp. (“Regions Financial”) to determine the appropriate action, which could include
foreclosure. Regions Financial determined that Regions Mortgage should simply sell the mortgage
and the deed securing it. As a result, Regions Mortgage began negotiating to sell the mortgage to J.B.
McDonald & Co. (“McDonald”), a corporation fully owned by Ted Winestone (“Winestone”). The
deed of trust was to be assigned to McDonald, who would in turn assign the mortgage and deed of
trust to Winestone.
On March 21, 2000, in anticipation of purchasing the mortgage on the Franklin property,
Winestone wrote checks to George Holley Insurance Company (“Holley Insurance”) for the purpose
of obtaining a casualty insurance policy on the Franklin property. Winestone alleged that he
requested a mortgagee’s policy from Holley Insurance. Holley Insurance purchased insurance on
Winestone’s behalf from Certain Underwriters at Lloyd’s, London (“Lloyd’s”). The Lloyd’s policy
had an “other insurance provision” that allowed Lloyd’s to offset any losses against certain other
insurance coverage. The provision read:
If there is other insurance covering the same loss or damage, other than described in
No. 1 above, we will pay only for the amount of covered loss or damage in excess of
the amount due from that other insurance, whether you can collect on it or not. But
we will not pay more than the applicable limit of coverage.
The new Lloyd’s insurance policy was to become effective on March 21, 2000.
The closing on the sale of the mortgage from Regions Mortgage to McDonald (owned by
Winestone) was scheduled for March 17, 2000. Immediately prior to the closing, Weir, with Regions
Financial, sent Winestone a letter dated March 17, 2000, that stated: “As we discussed, once we have
received recordation confirmation of the Assignment, we will cancel the forced place insurance
coverage on the property. As I am sure you are aware, the insurance only covers Regions [Mortgage]
for any loss that may occur.”
The closing on the transfer of the mortgage from Regions Mortgage to McDonald and
Winestone took place on March 17, 2000. At that time, the balance owed to Regions Mortgage was
approximately $390,000. Winestone paid Regions Mortgage $345,000 in exchange for the mortgage
and the deed of trust.
-3-
After the closing, on March 20, 2000, Regions Mortgage directed its accounting department
to write off the balance owed on the Franklin property. Consequently, the Franklin account was noted
on the books of Regions Mortgage as “paid-off.”
Thereafter, in March 2000, Regions Mortgage, by electronic transmission, contacted the
administrator of the Guaranty National policy, Overby-Seawell, requesting cancellation of the policy
covering the Franklin property. The transmission included the notation, “WAIVE-paid-off.” It was
entered on Overby-Seawell’s system on 3/28/00, to be retroactively effective on 3/22/00. Overby-
Seawell viewed this electronic transmission, with the “WAIVE-paid-off” notation, as notice to cancel
the insurance coverage on the Franklin property. However, for reasons not clear in the record, the
Guaranty National policy was not actually cancelled at that time. In the meantime, in late March 2000,
Winestone began foreclosure proceedings on the Franklin property.
On April 1, 2000, the Franklin property was totally destroyed by fire. Several days later,
Winestone received a copy of the insurance policy from Lloyd’s and discovered that the policy that
had been issued was an owner’s policy rather than a mortgagee’s policy. On April 6, 2000,
Winestone gave notice to Lloyd’s that the Franklin property had burned. On April 18, 2000,
Winestone foreclosed on the property; Winestone and his wife purchased the property at the
foreclosure sale.
On May 15, 2000, Overby-Seawall, administrator for the Guaranty National policy, received
an additional notification of cancellation on the Franklin policy from Regions Mortgage. This
notification from Regions Mortgage, a cancellation log sheet, requested a retroactive cancellation
date for the Guaranty National policy of 3/22/2000. The coverage under the Guaranty National
insurance policy was then finally cancelled on the Overby-Seawall system on May 15, 2000, and the
cancellation was made retroactively effective as of March 22, 2000. Based on a cancellation date of
March 22, 2000, Overby-Seawall calculated the amount of unused premium to be $1,854.65. This
amount was refunded to Regions Mortgage, which applied it to Franklin’s outstanding balance. Thus,
Regions Mortgage’s forced place insurance coverage with Guaranty National terminated with an
effective date shortly after Regions Mortgage sold its interest in the property. Franklin was not
notified of the cancellation of the Guaranty National policy.
On November 3, 2000, Lloyd’s filed a Complaint for Declaratory Judgment (“Complaint”)
naming Winestone, McDonald, Franklin, and Guaranty National as defendants. The lawsuit asked
the trial court to determine Lloyd’s duties and responsibilities under the policy. In the complaint,
Lloyd’s asserted that the casualty insurance policy issued by Guaranty National was in full force and
effect at the time the Franklin property burned, making the “other insurance” provision of the Lloyd’s
policy applicable.
In December 2000, in its answer to the complaint, Guaranty National asserted that its policy
did not cover the loss of the Franklin property because Regions Mortgage cancelled the policy on
March 22, 2000, before the loss on the Franklin property occurred. Guaranty National also asserted
that it was not liable under the policy because, at the time of the loss, its insured, Regions Mortgage,
-4-
no longer had an insurable interest in that property. Later, after the parties engaged in discovery,
Guaranty National filed a motion for summary judgment, asserting that the dispute in this case was
between Lloyd’s and Winestone regarding the loss of the Franklin property and that Guaranty
National was not involved. Guaranty National maintained that no party had made a claim against it
and no party had a right to make a claim against it. As a result, Guaranty National sought to be
dismissed from the action.
In response to Lloyd’s lawsuit, Winestone and McDonald filed a third-party complaint against
Regions Mortgage, alleging, inter alia, that if Regions Mortgage failed to cancel its forced place
insurance coverage, thereby enabling Lloyd’s to invoke the “other insurance” clause in the Lloyd’s
policy, then Regions Mortgage was liable to Winestone for negligence. The third-party complaint
also included a claim against Holley Insurance, asserting that if the Lloyd’s policy was held invalid
because it was an owner’s policy rather than an mortgagee’s policy as requested by Winestone, then
Holley Insurance was liable for negligence for not procuring the proper type of insurance. The
response by Winestone and McDonald included a counterclaim as well, asking the trial court to find
that the Lloyd’s policy provided coverage for the loss incurred at the Franklin property.2
On January 17, 2003, Lloyd’s filed a motion for partial summary judgment against Guaranty
National, asserting that Guaranty National’s policy was never effectively cancelled. Lloyd’s asked
the court to declare that Guaranty National’s casualty insurance policy was in full force and effect on
April 1, 2000, the date of the fire loss on the Franklin property. On July 8, 2003, Lloyd’s moved to
amend its complaint, seeking to clarify that it had a claim against Guaranty National. Lloyd’s asserted
that it was entitled to contribution or indemnification from Guaranty National as a result of the
Guaranty National policy. Lloyd’s also sought partial summary judgment based on Winestone’s
purchase of the property at foreclosure, asserting that, by personally purchasing the Franklin property
at foreclosure, Winestone partially extinguished the outstanding debt remaining on the promissory
note, thus reducing any amount owed by Lloyd’s to Winestone as mortgagee.
In September 2003, Guaranty National filed a motion to dismiss and for summary judgment,
asserting that Lloyd’s was time-barred. In the motion, Guaranty National stated that any claim against
it arising from the fire loss on the Franklin property should have been filed within two years of the
loss, as required by its policy. As a result, Guaranty National asserted that the Lloyd’s claim was
barred by the time limit in its policy. In addition, Guaranty National reiterated its argument that
Regions Mortgage had no insurable interest in the property at the time of the loss and thus Guaranty
National was not responsible for the loss. Guaranty National also argued that Lloyd’s “other
insurance” provision was not applicable. Guaranty National noted that, if an insurer seeks to offset
its losses through an “other insurance” provision, the other insurance must cover the “same loss” or
“same damage.” In this case, Guaranty National maintained, the “same loss” would refer to a loss
suffered by Winestone and insured by Lloyd’s. Guaranty National then argued that claims for
indemnification through the “other insurance” clause should be limited to policies owned by
2
The appellate record does not include a response from Franklin.
-5-
Winestone. Guaranty National noted that Winestone was not an insured under the Guaranty National
policy and thus the Guaranty National policy was not “other insurance” under the provisions of the
Lloyd’s policy.
The trial court allowed Lloyd’s to amend its complaint to assert a claim against Guaranty
National. It went on, however, to grant Guaranty National’s motion for summary judgment and
motion to dismiss. The trial court found:
1.) that as of April 1, 2000 Regions Mortgage had no insurable interest in the Leonard
Franklin property, 2.) that the insurance afforded with respect to the property of
Leonard Franklin by Guaranty National was not in effect as of April 1, 2000, 3.) that
Guaranty National provided no insurance with respect to the loss allegedly suffered
by Ted Winestone on April 1, 2000 and 4.) that the interests insured by the [Lloyd’s]
policy were different from the interest insured by the Guaranty National policy and
therefore the Guaranty National policy would afford no insurance coverage to Ted
Winestone and 5.) the Guaranty National policy is not “other insurance” within the
meaning of the “other insurance” clause of the [Lloyd’s] policy.
Based on these findings, the trial court denied Lloyd’s request for a declaration that the Guaranty
National policy was in effect as of the date of the fire loss, and granted Guaranty National’s motion
for summary judgment and to dismiss. Pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure, the judgment entered in favor of Guaranty National and Franklin was made final. The
trial court noted that the action remained pending as to all other claims. From this order, Lloyd’s now
appeals.
On appeal, Lloyd’s argues that the trial court erred in granting summary judgment to Guaranty
National because Winestone had been assigned the Guaranty National policy and because the policy
had never been effectively cancelled. Lloyd’s also asserts that the amended complaint was not barred
by the two year limitation period noted in the Guaranty National policy because the second complaint
did not allege new facts; rather, it alleged a more specific prayer for relief.
A motion for summary judgment should be granted only when the movant demonstrates that
there are no genuine issues of material fact and that the moving party is entitled to judgment as a
matter of law. Tenn. R. Civ. P. 56.04. Summary judgment is appropriate only when the facts and the
legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms,
900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption
of correctness regarding a trial court’s grant of summary judgment. Bain v. Wells, 936 S.W.2d 618,
622 (Tenn. 1997). Therefore, our review of the trial court’s grant of summary judgment is de novo
on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
On appeal, Lloyd’s first argues that Winestone was an assignee of Regions Mortgage and was
therefore covered by the Guaranty National policy. Lloyd’s notes that the Declarations page in the
Guaranty National policy named the mortgage holder (Regions Mortgage) and its assigns as the
-6-
insured. Lloyd’s then asserts that Winestone is such an assignee under the terms of the Guaranty
National policy. However, the Declarations page of the Guaranty National Policy clearly states that
coverage is not transferrable without written permission. An insurance company may refuse to honor
an assignment made without its permission. Hobbs v. Memphis Ins. Co., 33 Tenn. 444 (1853);
Quarles v. Clayton, 10 S.W. 505, 507 (Tenn. 1889); Mutual Protection Fire Ins. Co. v. Hamilton
& Gorham, 37 Tenn. 269 (1857). The record contains no indication that Guaranty National agreed
to the assignment of its policy to either McDonald or Winestone. This argument must be rejected.
Lloyd’s also argues that Guaranty could not retroactively cancel its coverage through an
internal computer entry and without written notice. Lloyd then cites a portion of the Guaranty
policy that states:
Cancellation:
b. We may cancel this policy or any Mortgagor’s Certificate of Insurance by
mailing or delivering to the first Named Insured written notice of cancellation at
least:
(1) 10 days before the effective date of cancellation if we cancel for nonpayment of
premium; or
(2) 30 days before the effective date of cancellation if we cancel for any other reason
c. Other Termination Provision
(1) We will also mail or deliver to any mortgage holder, pledgee or other person
shown in this policy to have an interest in any loss which may occur under this policy
or any Mortgagor’s Certificate of Insurance, at their last mailing address known to
us, written notice of cancellation, prior to the effective date of cancellation. Our
notice will be the same as that mailed or delivered to the first Named Insured.
(emphasis in original.)
Lloyd’s then cites Jefferson Ins. Co. v. Curle, 771 S.W.2d 424, 425-26 (Tenn. Ct. App. 1989) for
the proposition that, for cancellation of an insurance policy to be effective, Tennessee courts require
an insurer to strictly comply with its own cancellation policy. Based on this theory, Lloyd’s asserts
that Guaranty National’s failure to follow the notice provisions in the cancellation policy shown
above resulted in the Guaranty National policy remaining in effect. The principle noted in Jefferson,
however, is inapplicable. Certainly, when cancellation of insurance coverage is instigated by the
insurer, strict compliance with the notice requirements is necessary to allow the insured to obtain
other coverage. Id. at 426. However, in the instant case, as in Jefferson, cancellation of the policy
was sought by the insured, Regions Mortgage; notice to Regions Mortgage would not be necessary
for effective cancellation. Lloyd’s, of course, was not a named insured, nor was it an assignee under
the policy, as noted above. As such, it was not entitled to any notice pursuant to the policy provisions
cited above.
Moreover, the policy language cited above clearly permits Regions Mortgage to cancel the
policy retroactively, so long as the notification to Guaranty National was within 60 days of the
-7-
requested cancellation date. Whether Regions Mortgage’s cancellation was made on 3/28/2000, by
electronic transmission, or by the written cancellation on 5/15/2000, the cancellation was still within
the 60-day time limit to retroactively cancel the policy effective 3/22/2000. Under all of these
circumstances, we find no error in the trial court’s conclusion that the Guaranty National policy on
the Franklin property was not in effect on the date of the fire loss, 4/1/2000.
Lloyd’s final argument on appeal is that the trial court erred in granting Guaranty National’s
motion to dismiss the amended complaint, which more clearly asserted their request for contribution
or indemnification. However, our holding above that Winestone and/or McDonald were not valid
assignees of the policy and that the policy was effectively cancelled before the fire loss occurred,
pretermits Lloyd’s final argument, since a specific request for contribution and indemnification would
not affect the outcome of this appeal.
The decision of the trial court is affirmed. Costs of this appeal are taxed to the appellant,
Certain Underwriters at Lloyd’s, London, and its surety, for which execution may issue, if necessary.
__________________________________
HOLLY M. KIRBY, JUDGE
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Reversed and Remanded and Memorandum Opinion filed September 20, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00002-CR
THE STATE OF TEXAS, Appellant
V.
EDDIE GREGORIO CORTEZ, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1728282
MEMORANDUM OPINION
The State of Texas appeals from the trial court’s dismissal of driving-while-
intoxicated charges against appellee Eddie Gregorio Cortez. See Tex. Code Crim. Proc.
art. 44.01(a)(1). Appellee filed a motion to dismiss the information against him, claiming
that his equal protection rights had been violated. Because we conclude that no violation
of appellee’s constitutional rights has been established and no statutory or common law
basis for dismissal is alleged, we reverse the trial court’s order of dismissal and remand
for further proceedings.
On December 27, 2010, appellee Eddie Gregorio Cortez was charged by
information with the misdemeanor offense of driving while intoxicated (“DWI”). As a
first-time offender, appellee was eligible to participate in the Harris County District
Attorney’s Office (the “HCDAO”) pre-trial diversion program, DIVERT.1 The DIVERT
program postpones prosecution for first offender class B misdemeanor DWI cases, such
as appellee’s. To participate in the program, the defendant must, among other things,
execute a waiver of trial by jury, enter a plea of guilty, and agree to punishment.
Importantly, a defendant’s entry into this program requires judicial approval. A finding of
guilt is deferred pending the successful completion of the conditions of the program, and
the defendant’s case is reset. Should the defendant successfully complete the program,
the charges against him or her are dismissed at the reset hearing. In the event of a
violation of the program, the defendant is found guilty and the agreed-upon sentence is
imposed.
Appellee’s case was randomly assigned to Harris County Criminal Court at Law
No. 2, Judge William Harmon presiding. The record reflects that HCDAO offered
appellee entry into the DIVERT program. Our record further establishes that Judge
Harmon has stated in open court that, in his opinion, the DIVERT program violates the
statutory prohibition on permitting DWI offenders to participate in deferred
adjudication.2 At numerous hearings involving defendants seeking entry into the
DIVERT program, Judge Harmon repeatedly stated his opinion that this program runs
afoul of legislative authority. Judge Harmon has refused to approve entry into the
DIVERT program to any eligible first-time DWI offenders. During these hearings, he has
communicated clearly to the HCDAO that he will continue to refuse entry into this
program. The record reflects that the fourteen other Harris County Criminal Courts at
Law have permitted defendants to participate in the DIVERT program.
1
DIVERT is an acronym for “Direct Intervention using Voluntary Education, Restitution, and
Treatment.” It is a pretrial diversion program offered by the Harris County District Attorney’s Office
rather than pursuant to a statutory scheme.
2
See Tex. Code Crim. Proc. art. 42.12, § 5(d)(1)(A) (prohibiting deferred adjudication for the
offense of DWI).
2
Appellee filed a motion to dismiss the charges against him based on an alleged
equal protection violation. The only basis for dismissal is an alleged constitutional
violation involving a denial of appellee’s right to equal protection; no common law or
statutory basis for dismissal is asserted. Judge Harmon heard appellee’s motion to
dismiss on December 13, 2011, at the same time that he heard motions to dismiss
alleging the same grounds filed by eight other defendants. During this hearing, Judge
Harmon admitted the reporter’s records from hearings on September 22, 2010, October
15, 2010, and October 28, 2011 involving various defendants eligible for the DIVERT
program. At the conclusion of the hearing on the motions to dismiss, Judge Harmon
dismissed the charges against appellee and the other eight defendants.
In its appeal, the State raises a single issue asserting that the trial court erred in
granting appellee’s motion to dismiss because no equal rights violation, or any other
violation requiring dismissal, has occurred. Our review of the record reveals three equal
protection arguments considered by the trial court in dismissing the charges against
appellee: (1) a claim of selective prosecution; (2) an alleged equal protection violation
based on appellee’s assignment to Harris County Criminal Court at Law No. 2 because
Judge Harmon refuses to approve any DIVERT agreements; and (3) an alleged equal
protection violation because appellee was not placed into a traditional pretrial diversion
program, and other first-time DWI offenders had been, during the time period that
charges against appellee were pending.
The principle of equal protection guarantees that all similarly situated persons
should be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985); see also Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998). A
violation of the Equal Protection Clause may occur when the government discriminates
against the members of a class of individuals who have historically suffered
discrimination, i.e., a “suspect” class, or when the government impairs the members of a
class from exercising a fundamental right. Casarez v. State, 913 S.W.2d 468, 473 (Tex.
Crim. App. 1994). Generally, to establish an equal protection claim when a fundamental
3
right or suspect class is not at issue, a party must prove that he or she was treated
differently than other similarly situated parties without a rational basis. See Canady v.
State, 11 S.W.3d 205, 215 (Tex. Crim. App. 2000).
Today, this court has considered arguments identical to those raised by the State in
this appeal in its appeal from the dismissal of another defendant’s DWI case in Harris
County Criminal Court at Law No. 2. See State v. Dinur, ___ S.W.3d ___, No. 14-12-
00406-CR (Tex. App.—Houston [14th Dist.] Sept. 20, 2012, no pet. h.). As in this case,
the dismissal was based on equal protection grounds because the defendant was not
permitted to participate in the DIVERT program. Id. After reviewing the records from the
same hearings that are part of the record in this case and the relevant authorities, we held
that no equal protection violation had been established. Id. Because no other basis for
dismissal was alleged, we reversed the dismissal order and remanded the cause to the trial
court. Id.
For the reasons set forth in Dinur, we conclude that no violation of appellee’s right
to equal protection under the law was established. Because there was no constitutional
violation, and no statutory or common law basis for dismissal was alleged, the trial court
abused its discretion in dismissing the charging instrument without the consent of the
State. See State v. Mungia, 119 S.W.3d 814, 817 (Tex. Crim. App. 2003) (holding that a
court may dismiss a case without the prosecutor’s consent only if authorized by statute,
common law, or constitution).
We sustain the State’s sole issue on appeal. Accordingly, we reverse the trial
court’s dismissal order signed December 13, 2011, and remand this cause to the trial
court for proceedings consistent with this opinion.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
4
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72 So.3d 758 (2011)
ANDERSON
v.
STATE.
No. 3D11-1103.
District Court of Appeal of Florida, Third District.
June 22, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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71 So.3d 261 (2011)
In re Susan Huey LAFAYE.
No. 2011-B-1553.
Supreme Court of Louisiana.
September 23, 2011.
ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent received a check payable to a former tenant, but withheld the check without notifying him and used the check to gain an advantage in her civil suit against him. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,
IT IS ORDERED that the Petition for Consent Discipline be accepted and that Susan Huey Lafaye, Louisiana Bar Roll number 15005, be publicly reprimanded.
IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[*] Chief Justice Kimball not participating in the opinion.
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262 F.2d 662
Randolph Dale PEARCE, Appellant,v.UNITED STATES of America, Appellee.
No. 15969.
United States Court of Appeals Ninth Circuit.
Dec. 19, 1958.
James F. Thacher, San Francisco, Cal., for appellant.
Robert H. Schnacke, U.S. Atty., Donald B. Constine, Richard H. Foster, Asst. U.S. Atty., San Francisco, Cal., for appellee.
Before STEPHENS, Chief Judge, and POPE and HAMLEY, Circuit Judges.
POPE, Circuit Judge.
1
Appellant was indicted in the District of Oregon for violation of the Dyer Act, Title 18 U.S.C. 2314. He was accused of having caused a falsely made and forged check to be transported in interstate commerce. He was arrested in the Northern District of California and brought before the District Court for that district for a hearing under Criminal Rule 20, 18 U.S.C. The court appointed counsel to represent him; he waived right to trial in Oregon and elected to proceed under Rule 20 and to plead guilty to both counts of the indictment.
2
Appellant's counsel noticed a motion for an order allowing inspection of the presentence investigation report of the probation service. After the plea of guilty was entered, argument proceeded in support of this motion. During colloquy between the court and counsel for appellant the court remarked: 'I don't know whether you have had a chance to talk to the Probation Officer as to the details of the report,' and counsel replied: 'I have, your Honor, and at length, but I still have a motion before the court asking that I be given-- be allowed to inspect the probation report as a matter of law.' The motion was denied. The denial of that motion is the basis for this appeal.
3
The point sought to be raised may be better understood after a reference to what transpired at the time of sentence. Upon inquiry as to whether counsel was ready 'to proceed with judgment' in the case, counsel answered that he was and stated 'I think that certainly the probation officer and the defendant have given me considerable knowledge * * * and all of us informally are able to get a grasp of this case.' He then related the information he had from the defendant tending to show previous nervous and mental breakdowns, occasions when defendant was confined in mental institutions, and his discharge from military service, as 'a schizophrenic, paranoid type, which manifested itself by compulsive acts of stealing.' After further colloquy the following occurred: 'The Court: Well, let me say this, Mr. Thacher. Now I think that this young man is in need of treatment more than punishment as such. But whatever his situation is, he can't be allowed to be at large in society. Now, he is young enough, he is 21, that I can declare him to be a youth offender and give him an indeterminate sentence and let the Attorney General use the best we have in our federal institutions for youthful people to try to get him psychiatrically oriented. Now I don't know that that can be done, but at least we can try. And the sentence will be indeterminate, it won't be for a fixed period of time, and then if he has the capacity why, he can become adjusted. If he doesn't we are just going to have to keep him out of society as long as we can so he won't cause any more damage by this indiscriminate check writing.
4
'Mr. Thacher: I understand and appreciate that and have discussed it with the defendant. I think he understands it. The only question in my mind is, under the Youth Offenders' Act, whether you at this time, proceeding under, I think it is--
5
'The Court: 5010.
6
'Mr. Thacher: Yes, under 5010(b) wish to and feel that you have enough medical information before you to make the commitment, or whether the Court could avail itself of the provisions of 5010(e) and have the man thoroughly examined by an agency or-- I have forgotten the other statutory word.'
7
There then followed a lengthy discussion between court and counsel as to the appropriate order to be made under the Youth Corrections Act and thereupon the court stated: 'Do you have anything further to say before judgment is pronounced?' To which counsel replied: 'No, I would withdraw any suggestion I made and restrict my plea to the Court that he be sentenced in terms of 5010(b) * * *.' He expressed the hope that the Attorney General would see to it that the man received medical treatment. Thereupon the court announced that it would declare defendant to be an offender under the Youth Corrections Act and that defendant be treated under subdivision 5010(b), Title 18 U.S.C. Formal judgment was entered accordingly.
8
Appellant argues here that he had a constitutional right to the effective representation of counsel under the Sixth Amendment and that the denial of an opportunity to inspect the probation report furnished pursuant to Criminal Rule 32(c) was in effect a denial of an opportunity to have adequate representation at the time of the imposition of the sentence. Appellant relies upon Smith v. United States, 5 Cir., 223 F.2d 750. He urges that he had as much right to look at this report as Jencks had to see the reports in issue in Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103, and that the denial is presumptively prejudicial to him for the same reasons which were expressed in that case.
9
He also relies upon the cases holding that a prospective draftee for military service is entitled to know the contents of certain reports. See Gonzales v. United States, 348 U.S. 407, 75 S. Ct. 409, 99 L. Ed. 467, and Simmons v. United States, 348 U.S. 397, 75 S. Ct. 397, 99 L. Ed. 453.
10
Appellant seeks to distinguish Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337, on the ground that as a federal prisoner he is entitled to representation of counsel under the Sixth Amendment. He says that Amendment had no application to Williams who was defendant in a State prosecution. However, Williams was convicted of a capital offense, and under his rights to due process, he also was entitled to adequate representation of counsel.
11
We doubt if the Williams case is distinguishable. But, in any event, the record in this case does not require us to resolve the question whether under ordinary circumstances a person found guilty and about to be sentenced is entitled to call for an inspection of the probation report. Where the trial judge is relying upon that report in reaching a decision as to whether he should impose the minimum, the maximum or some other sentence, upon the prisoner, something may be said in support of the claim of counsel that he should have an opportunity to examine that report for the purpose of meeting possible adverse statements contained therein likely to affect the term of the sentence. But this is not that case.
12
Here counsel for the prisoner fully agreed with the court's suggestion that the appellant should be committed to the custody of the Attorney General under the provisions of 5010(b) of the Youth Corrections Act. It would appear to be plain that the contents of the probation officer's report could have no bearing upon the action of the trial judge. In short, counsel for appellant received exactly what he asked for, and we think that under these circumstances the appellant is not in a position to complain about the denial of his motion for an inspection.
13
The judgment is affirmed.
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262 F.2d 665
Edgar Allan GALLEGOS and Gloria Gallegos, also known as AnaGloria Sasso Valdivieso, Appellants,v.Richard C. HOY, as District Director for the Los AngelesDistrict, Immigration and Naturalization Service,United States Department of Justice, Appellee.
No. 15744.
United States Court of Appeals Ninth Circuit.
Dec. 29, 1958.
David O. Marcus, Los Angeles, Cal., for appellants.
Laughlin E. Waters, U.S. Atty., Richard A. Lavine, Mary G. Creutz, Asst. U.S. Attys., Los Angeles, Cal., for appellee.
Before POPE, CHAMBERS and HAMLEY, Circuit Judges.
CHAMBERS, Circuit Judge.
1
The alien appellants, husband and wife, are under orders of deportation. The husband is a citizen of Nicaragua and the wife a citizen of El Salvador. Both Legally entered the United States for permanent manent residence, he in 1945 and she in 1951.
2
The events which have brought the appellants to the gate of deportation revolve around an alien girl Hilda Medrano-Represa from El Salvador. Hilda came out of El Salvador to Tijuana, Mexico, early in 1954, with Mr. and Mrs. Gallegos coincident with the return of the couple to the United States after a visit in El Salvador. Hilda was to work as a domestic for the couple at Los Angeles. For several weeks Hilda waited in Tijuana while an attempt was being made in her behalf to secure her legal admission into the United States. Eventually, in April, Hilda crossed into the United States avoiding immigration officers and procedures. The reason may have been impatience with immigration procedures or it may have been that the Gallegos could no longer find a place in Tijuana for the girl to stay. While at various times, under oath, the appellants and Hilda have varied their accounts of Hilda's crossing, there is ample evidence that within five years after their last entry (from Tijuana) Mr. and Mrs. Gallegos did encourage, induce, assist, abet or aid an alien (Hilda) to enter the United States in violation of law. See 8 U.S.C.A. 1251(a)(13).
3
The only serious question is whether it was done for 'gain' as required by the statute. At no time after coming into the United States where she has been working for appellants has Hilda received over $20.00 or $25.00 per month plus her room and board. This domestic service at home to look after the couple's small child and take care of the house has enabled Mrs. Gallegos to get outside employment.
4
Upon review the district court upheld the deportation orders and we affirm.
5
Evidence was received that the going wage for comparable work in the Los Angeles area at times pertinent was about $100.00 per month plus room and board. In fact one could almost take judicial notice that the going rate was more than the amount paid.
6
No doubt Congress, in putting into the statute the prerequisite of gain, did not mean to apply the peppercorn standard of contract consideration, but we are satisfied the requirement is met if the gain is real, moneywise. Here it was.
7
While just bringing in an alien illegally is not enough to ground the deportation that the record does not show reasonable, criminal offense. When we have it clear enough that the bringing in was not done for either love, charity or kindness, but for tangible substantial financial advantage, we hold the condition has been met. Perhaps in another case the gain might be only that the person brought in showed promise of being a more reliable employee for the same price than could be found in the domestic market.
8
One can be cynical about the rusult here if one only thinks of the deportation as occasioned by the failure to pay the going wage. (Here, though, there was quite a disparity.) But the respondents are being deported here for illegally bringing Hilda into the United States with the additional element of gain.
9
We find no merit in the contentions that the record does not show reasonablE substantial and probative evidence supporting the administrative decisions on the issues before. And the evidence to which appellants take exception, we believe to have been properly admitted.
10
The judgment of the district court is affirmed.
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 35,052
5 MICHAEL STEPHEN KEATON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
8 Karen L. Parsons, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 M. Anne Kelly, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender
15 Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 SUTIN, Judge.
1 {1} Defendant Michael Keaton appealed as a self-represented litigant from the
2 district court’s order denying his motion to reconsider the sentence. [3 RP 523] This
3 Court’s second calendar notice proposed to reverse and remand to the district court
4 for an evidentiary hearing on certain issues outlined therein. [CN 7] The State filed
5 a “Notice of Non-Filing a Memorandum in Opposition.” [Ct. App. File, top document]
6 The State agrees with this Court’s determination that the conclusive presumption of
7 ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105
8 N.M. 231, 731 P.2d 374, does not apply in this context. [MIO 2] However, due to the
9 unique circumstances of this case, the State does not oppose remand to the district
10 court for consideration of the issues identified in this Court’s second calendar notice.
11 [Id.]
12 {2} For these reasons and those stated in this Court’s second calendar notice, we
13 reverse and remand to the district court.
14 {3} IT IS SO ORDERED.
15 __________________________________
16 JONATHAN B. SUTIN, Judge
17 WE CONCUR:
18 _______________________________
2
1 LINDA M. VANZI, Chief Judge
2 _______________________________
3 J. MILES HANISEE, Judge
3
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61 So.3d 1117 (2011)
LENTZ
v.
STATE.
No. 1D10-2773.
District Court of Appeal of Florida, First District.
May 24, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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696 F.2d 982
Gadsonv.McCord
82-1134
UNITED STATES COURT OF APPEALS Third Circuit
10/8/82
1
E.D.Pa.
AFFIRMED
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545 F.3d 1359 (2008)
NET MONEYIN, INC., Plaintiff-Appellant,
v.
VERISIGN, INC., Defendant-Appellee, and
Eprocessing Network, Defendant-Appellee, and
Bankcard Center, Inc., WebTranz, ValidPay.com, Inc., OrderButton.Net, Inc., SecurePay.Com, Inc., Globill.com LLC, IB Holding Company, Ltd., E-Commerce Exchange LLC, ITransact.com InfoSpace, Inc., Citibank, and Electronic Payment Processing, Inc., Defendants.
No. 2007-1565.
United States Court of Appeals, Federal Circuit.
October 20, 2008.
*1362 William A. Birdwell, Davis Wright Tremaine LLP, of Portland, OR, argued for plaintiff-appellant. With him on the brief was Timothy R. Volpert. Of counsel on the brief was Allen Field, Law Office of Allen Field, of Portland, OR.
J. Michael Jakes, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for defendants-appellees. With him on the brief for Verisign, Inc., were Thomas W. Winland and Scott A. Herbst, of Palo Alto, CA.
Corby R. Vowell, Goldstein, Faucett & Prebeg, LLP, of Houston, TX, for defendant-appellee EProcessing Network.
Before LINN, CLEVENGER, and MOORE, Circuit Judges.
LINN, Circuit Judge.
Net MoneyIN, Inc. ("NMI") appeals from a final judgment of the United States District Court for the District of Arizona, which held the asserted claims of U.S. Patents No. 5,822,737 ("the '737 patent") and No. 5,963,917 ("the '917 patent") invalid. NMI also appeals from the district court's denial of its motion for leave to amend its complaint to assert a claim for inducement of infringement. Because the district court correctly found claims 1, 13, and 14 of the '737 patent and claim 1 of the '917 patent, which contain limitations in means-plus-function format, invalid under 35 U.S.C. § 112 ¶ 2 as lacking corresponding structure, we affirm that portion of the judgment. Because the district court did not abuse its discretion in denying NMI's motion to amend, we also affirm that ruling. Because the district court applied an incorrect standard of law in finding claim 23 of the '737 patent invalid as anticipated under 35 U.S.C. § 102(a), however, we reverse the grant of summary judgment of anticipation. Thus, we affirm-in-part, reverse-in-part, and remand for proceedings consistent with this opinion.
I. BACKGROUND
This case involves systems for processing credit card transactions over the Internet and for addressing security concerns not present in direct retail transactions. In the early days of Internet commerce, merchants recognized that one key to the *1363 success of Internet sales would be the ability to provide customers with assurances of security in the processing of financial transactions over the Internet using credit cards, bank accounts, and other means of electronic payment. Responding to that need, the industry investigated encryption techniques and architectures to protect sensitive data. One such effort is reflected in a 1995 working document entitled "Internet Keyed Payments Protocol" ("the iKP reference"), published by the Internet Engineering Task Force and IBM. That document sets forth standards on "how payments may be accomplished efficiently, reliably[,] and securely." J.A. at 1375. The iKP reference explains that its goal was "to enable Internet-based secure electronic payments while utilizing the existing financial infrastructure for payment authorization and clearance. The intent is to avoid completely, or at least minimize, changes to the existing financial infrastructure outside the Internet." Id. To that end, the iKP reference suggests two standard models, or protocols.[1]
In the first protocol, (1) the customer selects one or more items to purchase from the merchant's website; (2) the customer sends credit card information to the merchant; (3) the merchant sends the credit card information and amount of the purchase to the merchant's bank; (4) the merchant's bank seeks authorization for the purchase from the issuing bank over the existing banking network; and (5) the merchant's bank notifies the merchant (but not the customer) of transaction approval. See id. at 1381 (flow diagram); Appellant's Br. at 7.
In the second protocol, (1) the customer selects one or more items to purchase on the merchant's website; (2) the customer sends an authorization request, along with its credit card information and the amount of the purchase, to the merchant's bank; (3) the merchant's bank seeks authorization from the issuing bank over the existing banking network; (4) the merchant's bank notifies the customer of transaction approval; and (5) the customer sends the authorization response to the merchant. See J.A. at 1342, 1394; Appellant's Br. at 8-9.
Unsatisfied with the early approaches taken by others, Mark Ogram, an inventor and patent attorney, set out to create a new payment model to remedy what he perceived as two deficiencies in the prior art protocols: "the fact that the customer had to send confidential information over the Internet to an unknown merchant; and the fact that credit card issuers imposed onerous financial requirements on merchants." Appellant's Br. at 10. Ogram's idea was to add a fifth entity, a "payment processing" or "financial processing" entity, to supplement the conventional model with four entities: the customer, merchant, merchant's bank, and issuing bank. According to Ogram, the new financial processing entity would: "(1) receive credit card account information and an amount to be charged from the customer when the customer placed the order; (2) seek authorization from the card issuer over the existing banking network; and (3) notify both the customer and the merchant of authorization." Id.
On February 5, 1996, Ogram filed a patent application directed to a payment model utilizing a financial processing entity. He formed NMI shortly thereafter to *1364 implement the model as a business for processing credit card transactions over the Internet. Ogram's patent application resulted in the '737 and '917 patents, both of which are assigned to NMI. Claim 1 of the '737 patent is illustrative of the invention claimed:
1. A financial transaction system comprising:
a) a first bank computer containing financial data therein, said financial data including customer account numbers and available credit data, said first bank computer including means for generating an authorization indicia in response to queries containing a customer account number and amount;
b) a merchant computer containing promotional data;
c) a customer computer being linked with said merchant computer and receiving said promotional data; and,
d) a financial processing computer remote from said merchant computer and having means for:
1) receiving customer account data and amount data from said customer computer,
2) querying said first bank computer with said customer account data and said amount data,
3) receiving an authorization indicia from said first bank computer,
4) communicating a self-generated transaction indicia to said customer computer, and,
5) communicating the self-generated transaction indicia to said merchant computer.
According to their abstracts, the '737 and '917 patents relate to "[a]n automated payment system particularly suited for purchases over a distributed computer network such as the Internet."
In 2001, NMI filed suit for infringement of the '737 and '917 patents against a number of parties alleged to compete in the Internet credit card processing field, including VeriSign, Inc. and eProcessing Network (collectively, "VeriSign"). Following a claim construction hearing, the district court construed a number of terms in dispute. Net MoneyIN, Inc. v. VeriSign, Inc., No. 01-CV-441, 2005 WL 5960650 (D.Ariz. Oct. 19, 2005) ("Claim Construction Decision"). As part of its construction of the claim terms, the district court invalidated claims 1, 13, and 14 of the '737 patent and claim 1 of the '917 patent, which contain limitations in means-plus-function format, as lacking corresponding structure and thus indefinite under 35 U.S.C. § 112 ¶ 2.
Following construction of the claims, the district court entertained two motions for summary judgment that are relevant to this appeal. First, VeriSign moved for summary judgment that it did not induce infringement of NMI's patents. In response to that motion, NMI moved for leave to amend its complaint to add a claim for inducement of infringement. The district court granted VeriSign's motion for summary judgment and denied NMI's motion for leave to amend. Net MoneyIN, Inc. v. VeriSign, Inc., No. 01-CV-441 (D. Ariz. June 8, 2006) ("Amendment Decision"). Second, VeriSign moved for summary judgment of invalidity, arguing that the iKP reference anticipated claim 23 of the '737 patent under 35 U.S.C. § 102(a). The district court granted VeriSign's motion. Net MoneyIN, Inc. v. VeriSign, Inc., No. 01-CV-441 (D.Ariz. July 13, 2007) ("Summary Judgment Decision"). The district court then entered final judgment in favor of VeriSign.
NMI timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
*1365 II. DISCUSSION
A. Standard of Review
Claim construction is a question of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed.Cir. 1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), over which we exercise plenary review. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed.Cir.1998) (en banc). Indefiniteness under 35 U.S.C. § 112 ¶ 2 is also a question of law subject to plenary review. SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1338 (Fed.Cir.2005).
We review a grant of summary judgment de novo, reapplying the standard that the district court employed. Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301 (Fed.Cir.1999). Drawing all reasonable inferences in favor of the nonmovant, "[s]ummary judgment is appropriate only when `there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.'" Id. (quoting Fed.R.Civ.P. 56(c)).
The denial of a motion to amend is a procedural question not unique to patent law and thus is reviewed under the law of the regional circuit. Kalman v. Berlyn Corp., 914 F.2d 1473, 1480 (Fed. Cir.1990). In the Ninth Circuit, the denial of a motion to amend is reviewed for abuse of discretion. Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725 (9th Cir.2000).
B. Analysis
1. Indefiniteness
The district court concluded that claims 1, 13, and 14 of the '737 patent and claim 1 of the '917 patent were indefinite under 35 U.S.C. § 112 ¶ 2, and thus invalid. Because each of these patents raises different issues, we address them separately.
a. the '737 patent
Claim 1 of the '737 patent recites a financial transaction system comprising, among other things, "a first bank computer containing financial data therein, said financial data including customer account numbers and available credit data, said first bank computer including means for generating an authorization indicia in response to queries containing a customer account number and amount" (emphasis added).[2] The district court construed the generating means element in claim 1 as a means-plus-function element. The parties agreed that the function of the claimed means was "generating an authorization indicia in response to queries containing a customer account number and amount." The district court found, however, that the specification failed to disclose any corresponding structure to perform the claimed function. Accordingly, it deemed the claim invalid under 35 U.S.C. § 112 ¶ 2.
NMI argues that the generating means element is not a means-plus-function element under 35 U.S.C. § 112 ¶ 6 "because the claim itself discloses sufficient structure which performs the function of `generating an authorization indicia in response to queries containing a customer account number and amount.'" Appellant's Br. at 21 (emphasis omitted). Alternatively, NMI contends that if the generating means claim element is properly construed as a means-plus-function element, then the specification recites sufficient structure to make the claim definite. VeriSign counters that the district court correctly concluded both that the claim does not recite sufficient structure to rebut the means-plus-function presumption and that the specification contains insufficient structure to perform the claimed function.
*1366 Section 112, paragraph 6, of title 35 provides that:
An element of a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
A claim element that contains the word "means" and recites a function is presumed to be drafted in means-plus-function format under 35 U.S.C. § 112 ¶ 6. Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360, 1364 (Fed.Cir.2000). The presumption is rebutted, however, "if the claim itself recites sufficient structure to perform the claimed function." Id.; see also Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427-28 (Fed.Cir.1997) ("[W]here a claim recites a function, but then goes on to elaborate sufficient structure, material, or acts within the claim itself to perform entirely the recited function, the claim is not in means-plus-function format.").
We first address NMI's contention that the presumption triggered by the presence of the word "means" in claim 1 is rebutted by the recitation of sufficient structure for performing entirely the recited function of "generating an authorization indicia." NMI contends that the language, "first bank computer containing financial data therein, said financial data including customer account numbers and available credit data, said first bank computer ... generating an authorization indicia in response to queries containing a customer account number and amount," is sufficient structure to rebut the means-plus-function presumption. NMI argues that an ordinary artisan would understand the "bank computer" "to be a commonly known structure for generating authorization indicia in response to queries containing a custom account number and amount." Appellant's Br. at 21, 22. VeriSign responds that the claim does not recite sufficient structure to rebut the presumption "because of the wide variety of types and classes of computers in existence, each being configurable in a variety of different ways using many different programming languages." Appellees' Br. at 28 (internal quotation marks and citations omitted).
We agree with VeriSign that the recitation in claim 1 of the "bank computer" is not sufficient to rebut the means-plus-function presumption. The bank computer is not linked in the claim as the "means" for generating an authorization indicia. Rather, the bank computer is recited as "including" those means. NMI's argument that the first bank computer constitutes sufficient structure would require the first bank computer to include a first bank computer, which is both redundant and illogical. Because the claimed generating means is a subset of the bank computer, there must be a recitation of structure that is a component of the bank computer to rebut the presumption. The claim contains no such recitation. As a result, the district court correctly concluded that the presumption of means-plus-function treatment had not been overcome.
Having concluded that the generating means recited in claim 1 is drafted in means-plus-function format, we turn to whether the specification includes a disclosure of structure sufficient to accomplish the recited function. NMI argues that "the specification does disclose a `bank computer' and this Court's precedents do not require a description of the `internal structure' of the `bank computer.'" Appellant's Br. at 27 (emphasis omitted); see also id. at 31 ("Here, claim 1(a) itself states that the `bank computer' contains `financial data' including `customer account numbers and available credit data.' A person *1367 skilled in the art would know that such a computer would be programmed to compare account data and amount data to those data structures and generate an authorization indicia if credit were available."). VeriSign counters that the district court correctly determined that the '737 patent specification fails to disclose the "structure corresponding to what, in the claimed first bank computer, performs the claimed generating function." Appellees' Br. at 51 (internal quotation marks omitted).
A patent applicant who employs means-plus-function language "must set forth in the specification an adequate disclosure showing what is meant by that language. If an applicant fails to set forth an adequate disclosure, the applicant has in effect failed to particularly point out and distinctly claim the invention as required by the second paragraph of section 112." In re Donaldson Co., 16 F.3d 1189, 1195 (Fed.Cir.1994) (en banc). To avoid purely functional claiming in cases involving computer-implemented inventions, we have "consistently required that the structure disclosed in the specification be more than simply a general purpose computer or microprocessor." Aristocrat Techs. Austl. Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1333 (Fed.Cir.2008). "Because general purpose computers can be programmed to perform very different tasks in very different ways, simply disclosing a computer as the structure designated to perform a particular function does not limit the scope of the claim to `the corresponding structure, material, or acts' that perform the function, as required by section 112 paragraph 6." Id. "Thus, in a means-plus-function claim `in which the disclosed structure is a computer, or microprocessor, programmed to carry out an algorithm, the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithm.'" Id. (quoting WMS Gaming, Inc. v. Int'l Game Tech., 184 F.3d 1339, 1349 (Fed.Cir.1999)). Consequently, a means-plus-function claim element for which the only disclosed structure is a general purpose computer is invalid if the specification fails to disclose an algorithm for performing the claimed function. See id. at 1337-38.
There is no dispute in this case that the specification fails to disclose an algorithm by which a general purpose bank computer "generat[es] an authorization indicia."[3] As a result, the district court correctly concluded that claims 1, 13, and 14 are indefinite under 35 U.S.C. § 112 ¶ 2. We therefore affirm that part of the judgment.
b. the '917 patent
Claim 1 of the '917 patent recites a financial transaction system comprising, among other things, "a financial processing computer ... having automatic means responsive to [the] order for ... receiving customer account data and amount data from [the] customer computer and [the] merchant computer." The parties do not dispute the district court's construction of this claim element as a means-plus-function element. The parties do dispute, however, the nature of the function. The district court construed the function as "the financial processing computer receives both the customer account data and amount data from both the customer computer and the merchant computer." Claim Construction Decision at 11. NMI argues that the district court's construction *1368 of the function is erroneous. According to NMI, the ordinary meaning of the claim language requires that the function be construed more broadly: "[I]n response to an order, the financial processing computer: (1) receives customer account data from the customer computer, the merchant computer, or both; and (2) it also receives amount data from the customer computer, the merchant computer, or both." Appellant's Br. at 46-47. VeriSign counters that the district court correctly construed the function according to the ordinary meaning of the claim language.
The language of the function at issue was construed by the district court as specifying that both the amount data and the account data must come from both the customer computer and the merchant computer. That construction comports with and is fully supported by the language of the claim itself. NMI argues that the function is subject to a different construction, which would permit the amount data and the account data to come from the merchant computer, the customer computer, or both. The problem with NMI's proffered construction, however, is that it is different from, and broader in scope than, the construction it asserted in the district court. See J.A. at 1046 (arguing to the district court that "the meaning of this element is: `the financial processing computer receives the customer account data from the customer computer and the amount data from the merchant computer via the customer computer'"). This is not merely a new argument in support of a previously presented construction, but instead is a new and more expansive construction, which may not properly be asserted on appeal. See Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1347 (Fed.Cir.2001). Because NMI's new construction is not proper on appeal, and because we see no basis on which to overturn the district court's construction, that construction is affirmed.
NMI concedes that under the district court's construction, no structure is disclosed in the specification to perform the claimed function. Appellant's Br. at 46. As a result, the claim is indefinite under 35 U.S.C. § 112 ¶ 2. See Donaldson, 16 F.3d at 1195. Consequently, we affirm the district court's determination that claim 1 of the '917 patent is invalid.
2. Anticipation
Claim 23 of the '737 patent recites an Internet payment system comprising five "links":
a) a first link between a customer computer and a vending computer for communicating promotional information from said vending computer to said customer computer;
2) a second link, initiated by said customer computer, between said customer computer and a payment processing computer, remote from said vending computer, for communicating credit card information and amount from said customer computer to said payment processing computer;
3) a third link, initiated by said payment processing computer with a credit card server computer for communicating said credit card information and said amount from said payment processing computer to said credit card server computer, and for communicating, in response, an authorization indicia from said credit card server computer to said payment processing computer; []
d) a fourth link between said payment processing computer and said customer computer for communicating a transactional indicia[;]
*1369 * * *
[e)] a fifth link between the payment processing computer and said vending computer for communicating said transactional indicia.
The district court, after finding all five of these links in the iKP reference, albeit in two separate disclosed examples, concluded that claim 23 was anticipated under 35 U.S.C. § 102(a) and therefore invalid. Specifically, the district court concluded:
All of the limitations of claim 23 can be found within the iKP reference. A simple combination would produce the system described in claim 23 of the '737 patent. That no specific example within iKP contains all five links does not preclude a finding of anticipation.
Summary Judgment Decision at 3. NMI contends that the district court's combination of two disclosed examples in order to find all elements of the claim was erroneous.[4] VeriSign responds that the district court did not improperly rearrange the links in the iKP reference, but rather "merely relied on various express teachings from a single document that together completely disclose the five claimed links." Appellees' Br. at 61. Under VeriSign's theory, this was sufficient to establish anticipation, because all that is required is "that the four corners of a single, prior art document describe every element of the claimed invention." Id. at 61-62 (quoting Xerox Corp. v. 3Com Corp., 458 F.3d 1310, 1322 (Fed.Cir.2006)). We disagree with VeriSign, and take this opportunity to clarify what a reference must show in order to anticipate a claimed invention.
Section 102(a) provides that an issued patent is invalid if "the invention [therein] was ... described in a printed publication ... before the invention thereof by the applicant." Section 102 embodies the concept of noveltyif a device or process has been previously invented (and disclosed to the public), then it is not new, and therefore the claimed invention is "anticipated" by the prior invention. As we have stated numerous times (language on which VeriSign relies), in order to demonstrate anticipation, the proponent must show "that the four corners of a single, prior art document describe every element of the claimed invention." Xerox, 458 F.3d at 1322 (quoting Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1282 (Fed.Cir.2000)). This statement embodies the requirement in section 102 that the anticipating invention be "described in a printed publication," and is, of course, unimpeachable. But it does not tell the whole story. Because the hallmark of anticipation is prior invention, the prior art referencein order to anticipate under 35 U.S.C. § 102must not only disclose all elements of the claim within the four corners of the document, but must also disclose those elements "arranged as in the claim." Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed.Cir.1983).[5]
*1370 The meaning of the expression "arranged as in the claim" is readily understood in relation to claims drawn to things such as ingredients mixed in some claimed order. In such instances, a reference that discloses all of the claimed ingredients, but not in the order claimed, would not anticipate, because the reference would be missing any disclosure of the limitations of the claimed invention "arranged as in the claim." But the "arranged as in the claim" requirement is not limited to such a narrow set of "order of limitations" claims. Rather, our precedent informs that the "arranged as in the claim" requirement applies to all claims and refers to the need for an anticipatory reference to show all of the limitations of the claims arranged or combined in the same way as recited in the claims, not merely in a particular order. The test is thus more accurately understood to mean "arranged or combined in the same way as in the claim."
For example, in Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d 1452 (Fed.Cir.1984), we reviewed a district court's determination that a patent directed to a hydraulic scrap shearing machine was anticipated by a prior patent directed to a method for shearing spent nuclear fuel bundles. Because the district court had "treated the claims as mere catalogs of separate parts, in disregard of the part-to-part relationships set forth in the claims and that give the claims their meaning," we reversed. Id. at 1459. Although the prior art reference could be said to contain all of the elements of the claimed invention, it did not anticipate under 35 U.S.C. § 102 because it "disclose[d] an entirely different device, composed of parts distinct from those of the claimed invention, and operating in a different way to process different material differently." Id. at 1458. The reference thus was deficient because it did not disclose the elements of the claimed invention "arranged as in the claim" as required by 35 U.S.C. § 102. Id.
In Ecolochem, Inc. v. Southern California Edison Co., 227 F.3d 1361 (Fed.Cir. 2000), we reviewed a district court's decision that a prior art reference directed to "Saving Energy by Catalytic Reduction of Oxygen in Feedwater" anticipated a claim reciting the use of hydrazine with a mixed resin bed to deoxygenate water. In finding that the reference anticipated the claim, the district court considered a figure and accompanying text, which taught the use of hydrogen with a mixed bed to deoxygenate water, in conjunction with a separate passage discussing deoxygenating water with, among other things, hydrazine. Id. at 1369. We reversed. After determining that the relevant figure and accompanying text described only the use of hydrogen to deoxygenate water, we concluded that the reference could not anticipate the claimed invention because there was no link between that figure and the general discussion of hydrazine as a deoxygenating agent. Id. In other words, we concluded that although the reference taught all elements of the claim, it did not contain a discussion suggesting or linking hydrazine with the mixed bed in the figure, and thus did not show the invention arranged as in the claim.
Recently, in Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323 (Fed.Cir. 2008), we reversed a district court's denial of a motion for judgment as a matter of law because the jury could not have reasonably concluded that the prior art reference relating to the Videotex architecture did not anticipate the claimed invention directed to systems and methods for scheduling transmission of database tiers on demand at varying repetition rates. Although the anticipation issue dealt largely with the interpretation of the prior art reference, id. at 1335-37, we reemphasized *1371 the importance of the requirement that the reference describe not only the elements of the claimed invention, but also that it describe those elements "arranged as in the claim":
To anticipate a claim, a single prior art reference must expressly or inherently disclose each claim limitation. ... But disclosure of each element is not quite enoughthis court has long held that "[a]nticipation requires the presence in a single prior art disclosure of all elements of a claimed invention arranged as in the claim."
Id. at 1334 (quoting Connell, 722 F.2d at 1548). In all of these cases, the prior art reference had to show the claimed invention arranged or combined in the same way as recited in the claim in order to anticipate. We thus hold that unless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102.
Here, the iKP reference discloses two separate protocols for processing an Internet credit card transaction. Neither of these protocols contains all five links arranged or combined in the same way as claimed in the '737 patent. Thus, although the iKP reference might anticipate a claim directed to either of the two protocols disclosed, it cannot anticipate the system of claim 23. The district court was wrong to conclude otherwise.
The district court was also wrong to combine parts of the separate protocols shown in the iKP reference in concluding that claim 23 was anticipated. Granted, there may be only slight differences between the protocols disclosed in the iKP reference and the system of claim 23. But differences between the prior art reference and a claimed invention, however slight, invoke the question of obviousness, not anticipation. See 35 U.S.C. § 103(a) ("A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." (emphasis added)); see also In re Arkley, 59 C.C.P.A. 804, 455 F.2d 586, 587 (1972) ("[R]ejections under 35 U.S.C. § 102 are proper only when the claimed subject matter is identically disclosed or described in the prior art." (emphasis and internal quotation marks omitted)). Thus, it is not enough that the prior art reference discloses part of the claimed invention, which an ordinary artisan might supplement to make the whole, or that it includes multiple, distinct teachings that the artisan might somehow combine to achieve the claimed invention. See Arkley, 455 F.2d at 587 ("[T]he [prior art] reference must clearly and unequivocally disclose the claimed [invention] or direct those skilled in the art to the [invention] without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.").
Because the parties do not contend that the iKP reference discloses all of the limitations recited in claim 1 arranged or combined in the same way as in the claim, and because it was error for the district court to find anticipation by combining different parts of the separate protocols in the iKP reference simply because they were found within the four corners of the document, we reverse the district court's grant of summary judgment of invalidity.
*1372 3. Motion to Amend
During the course of this litigation, NMI filed a Second Amended Complaint in which it clarified that it was asserting, among other things, a claim for inducement of infringement under 35 U.S.C. § 271(b). In a Third Amended Complaint filed in August 2003, however, NMI abandoned its claim for inducement of infringement, stating that it had "elected not to assert a cause of action for inducement." In answering NMI's Third Amended Complaint, although some of the defendants reasserted counterclaims for declaratory judgment of noninfringement by inducement, VeriSign did not. J.A. at 1251.
In May 2005, VeriSign moved for partial summary judgment on inducement of infringement. In response, NMI moved, pursuant to Federal Rule of Civil Procedure 15(b), for leave to file a Fourth Amended Complaint to add a claim for inducement of infringement. According to NMI, VeriSign had consented to litigate the issue by moving for summary judgment on that basis. The district court granted VeriSign's motion for partial summary judgment and denied NMI's motion to amend.
NMI argues that the district court abused its discretion by denying the motion to amend. According to NMI, the district court had no discretion to deny amendment under Rule 15(b) because VeriSign consented to litigate the issue. VeriSign argues that, while it did seek partial summary judgment on the issue of inducement, it did so on the ground of waiver, not on the merits. Thus, according to VeriSign, it was within the district court's discretion to deny amendment.
A district court generally enjoys broad discretion when assessing the propriety of a motion to amend. See Chappel, 232 F.3d at 725. It does not enjoy such discretion, however, and amendment is mandatory, when an issue is tried with the express or implied consent of the parties. See Fed.R.Civ.P. 15(b) ("When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings."); cf. Wallin v. Fuller, 476 F.2d 1204, 1210 (5th Cir.1973) ("Amendment is thus not merely discretionary but mandatory in such a case.").
Thus, the first issue we must address is whether VeriSign consented, either expressly or impliedly, to litigate inducement. We agree with the district court that it did not. VeriSign's motion for partial summary judgment stated, in pertinent part,
NMI's failure to assert any claim of contributory infringement under Section 271(c) in its Third Amended Complaint, its express disavowal in that pleading of any claim of inducement under Section 271(b), its failure to disclose any indirect infringement theories or supporting evidence in its Supplemental Disclosure to VeriSign, and its failure to disclose any evidence that would establish indirect infringement, including its failure to identify any alleged direct infringer or any acts by VeriSign alleged to constitute contributory infringement, compels entry of partial summary judgment in favor of VeriSign.
J.A. at 7330. This is not an attempt by VeriSign to litigate induced infringement on the merits. Given NMI's repeated amendment of its complaint, including its history of dropping inducement claims only to later add them, as well as VeriSign's understanding that NMI planned to resurrect the claim at trial, it is apparent that VeriSign's motion was made to foreclose NMI's ability to later raise inducement (again). Notably, this is precisely how the district court construed NMI's motion:
Plaintiff uses the argument that by filing [a] motion for summary judgment on *1373 this issue, the Defendants are consenting to its litigation. This is not the case. Defendants are merely attempting to formally discharge this theory as a claim (as has already been indicated by Plaintiffs counsel) so that the case can be focused on the theory of direct infringement.
Amendment Decision at 7. Thus, the district court was not without discretion to deny the requested amendment.
The question thus becomes whether the district court's denial of the motion was an abuse of that discretion. In denying the motion, the district court observed that NMI was requesting leave "to amend [its] Complaint for a fourth time in order to allege a claim (inducement of infringement) which [it] ha[s] expressly disavowed, twenty months after the deadline to amend pleadings and four months after the close of discovery." Id. at 6-7. It also observed that granting NMI's motion would result in "extreme delay," id. at 10, and severe prejudice to VeriSign, id. at 11. Under these circumstances, we cannot find that the district court's denial was an abuse of discretion. See Chappel, 232 F.3d at 725-26 ("A district court acts within its discretion to deny leave to amend when amendment would be futile, when it would cause undue prejudice to the defendant, or when it is sought in bad faith.").
III. CONCLUSION
For the foregoing reasons, we AFFIRM-IN-PART, REVERSE-IN-PART, and REMAND for proceedings consistent with this opinion.
COSTS
No costs.
NOTES
[1] As illustrated by our colloquy with counsel at oral argument, it is not clear whether the payment models disclosed in the iKP reference are mutually exclusive. Viewing the facts in the light most favorable to NMI, however, as we must do at this stage in the proceedings, the reference is properly construed to show two mutually exclusive payment models.
[2] NMI does not make arguments with respect to claims 13 or 14, which contain language similar to that in claim 1. We view this as a concession that these claims rise or fall with claim 1.
[3] At oral argument, counsel for NMI conceded that "[t]here is nothing in the written description that expressly states what is going on inside that bank computer." Oral Arg. at 20:10-20:15, available at http:// oralarguments.cafc.uscourts.gov/mp3/XXXX-XXXX.mp3.
[4] Because it is on this ground that we decide this issue, we do not reach NMI's alternative grounds for reversing the district court's anticipation conclusion.
[5] VeriSign points to language in Glaxo Group Ltd. v. Apotex, Inc., 376 F.3d 1339, 1348 (Fed. Cir.2004), on which the district court relied, which states: "Apotex is of course correct that anticipation requires that all limitations of the claimed invention are described in a single reference, rather than a single example in the reference." This does not say what VeriSign wishes it did, nor could it. This language, when read in context, stands for the unremarkable proposition that courts are not constrained to proceed example-by-example when reviewing an allegedly anticipating prior art reference. Rather, the court must, while looking at the reference as a whole, conclude whether or not that reference discloses all elements of the claimed invention arranged as in the claim.
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01-03-2023
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03-13-2011
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https://www.courtlistener.com/api/rest/v3/opinions/565406/
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940 F.2d 649
U.S.v.Nichols
NO. 91-1041
United States Court of Appeals,Second Circuit.
JUN 14, 1991
1
Appeal From: E.D.N.Y.
2
AFFIRMED.
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01-03-2023
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08-23-2011
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