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https://www.courtlistener.com/api/rest/v3/opinions/233283/ | 210 F.2d 1
100 U.S.P.Q. 294
BARKEIJ,v.LOCKHEED AIRCRAFT CORP.
No. 11484.
United States Court of Appeals, Ninth Circuit.
Feb. 4, 1954.Rehearing Denied March 12, 1954.Further Rehearing Denied, March 27, 1954.
Alan Franklin, Los Angeles, Cal., for appellant.
C. Blake Townsend, S. Mortimer Ward, Jr., New York City, Herbert A. Huebner, Los Angeles, Cal., for appellee.
Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.
DENMAN, Chief Judge.
1
This action is now before this court upon an appeal by the plaintiff below from the first final judgment herein, entered April 23, 1946, dismissing the complaint with prejudice at the conclusion of plaintiff's case. The action is for alleged infringement of two patents held by Barkeij, numbers 2,145,577 and 2,191,746. This judgment was accompanied by and based upon findings of fact and conclusions of law. The district court found that, on the admissions of plaintiff's witnesses, the accused engine models do not infringe either of the two patents; and that both patents in suit are invalid for uncertainty and indefiniteness in failing to comply with the requirements of what was then § 4888, R.S.1
2
Barkeij appealed from the above described judgment. Three remands were made by this court to the district court, each on accounts of disclaimers filed by Barkeij subsequent to the original judgment. On each of these remands the district court made additional findings of fact and conclusions of law and entered further judgments, or orders entered as judgments, not appealed from. All of these additional findings and conclusions reiterated and reaffirmed the invalidity of both patents.
3
Barkeij thereafter moved in this court 'to vacate and dismiss proceedings, etc. concerning disclaimers, etc. filed herein after trial and to proceed with appeal of this case as originally filed.' This motion was denied by an order of this court dated December 9, 1952. Accordingly, the case is now before the court on a full record embracing not only the proceedings up to the date of the original judgment of dismissal but also all subsequent proceedings pursuant to the three orders of remand made by this court.2
4
Barkeij first contends that the district court erred in dismissing the complaint with prejudice and ruling the patents invalid without first having heard defendant's witnesses. This contention is without merit, it is the duty of the court to dismiss a patent infringement suit whenever it affirmatively appears that the patent is invalid. Slawson v. Grand Street, etc. R.R. Co., 107 U.S. 649, 2 S.Ct. 663, 27 L.Ed. 576; Turner v. Goldstein, 10 Cir., 154 F.2d 338.
5
In its judgment of April 23, 1946, the district court held that the written descriptions in the patents were not '* * * in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most clearly connected, to make, construct, compound, and use the same * * *.'3 Any attack which Barkeij might make upon this holding has been foreclosed by admissions of his counsel. In argument upon Barkeij's motion to set aside the judgment after the first remand, counsel stated: 'These disclaimers have eliminated matters which did make these patents indefinite, I concede that.' Counsel also made statements regarding specific portions of the patents which he admitted were indefinite prior to the disclaimers. Hence, the sole question presented to us is whether the three disclaimers Barkeij filed concerning each patent removed this uncertainty and indefiniteness.
6
The patents, as amended by the disclaimers, contained phrases such as 'relatively small volume', 'substantially diametrically opposite', 'communicating substantially unrestrictedly', 'substantially closer than', etc. In view of Barkeij's expert witness' testimony that in constructing internal combustion engines 'a very little difference will make a great deal of difference in the operation,' we do not see how the uncertain and indefinite terms used in the patents can be said to 'clearly distinguish what is claimed from what went before in the art and clearly circumscribe what is foreclosed from future enterprise.' United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 236, 63 S.Ct. 165, 170, 87 L.Ed. 232; see also General Electric Co. v. Wabash Co., 304 U.S. 364, 369, 373, 58 S.Ct. 899, 82 L.Ed. 1402.
7
We hold that both patents in suit are invalid for vagueness and uncertainty. It is thus unnecessary for us to consider questions of novelty, invention, or infringement.
8
The judgment of the district court is affirmed.
1
35 U.S.C. former § 33, now 35 U.S.C.A. 111, 112
2
See Sessions v. Romadka, 145 U.S. 29, 12 S.Ct. 799, 36 L.Ed. 609; Dunbar v. Myers, 94 U.S. 187, 24 L.Ed. 34; Kalle & Co. v. Multazo Co., Inc., 6 Cir., 110 F.2d 814
3
R.S. § 4888 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3129151/ | MEMORANDUM OPINION
No. 04-10-00587-CR
Roy Vicente BOLADO,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CR-6309
Honorable Maria Teresa Herr, Judge Presiding
PER CURIAM
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: January 26, 2011
DISMISSED
Appellant has filed a motion to dismiss this appeal in compliance with Rule 42.2(a). See
TEX. R. APP. P. 42.2(a). The motion is granted and this appeal is dismissed. See id.
PER CURIAM
DO NOT PUBLISH | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1054494/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 18, 2006
STATE OF TENNESSEE v. TIMMY LEE HILL
Appeal from the Circuit Court for Marshall County
No. 16347 Lee Russell, Judge
No. M2005-01126-CCA-R3-CD - Filed May 17, 2006
A Marshall County Circuit Court jury found the defendant, Timmy Lee Hill, guilty of possession
with intent to sell one-half gram or more of cocaine, a Class B felony, possession with intent to
deliver one-half gram or more of cocaine, a Class B felony, and resisting arrest, a Class B
misdemeanor. The trial court merged the possession with intent to deliver conviction into the
possession with intent to sell conviction and imposed an eighteen-year sentence for the possession
conviction and a sixty-day sentence for the evading arrest conviction to be served consecutively as
a Range II, multiple offender in confinement. The defendant appeals, contending that the evidence
was insufficient to support his conviction for possession with intent to sell one-half gram or more
of cocaine. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JOSEPH M. TIPTON , J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN
EVERETT WILLIAMS, JJ., joined.
Fannie J. Harris, Nashville, Tennessee, for the appellant, Timmy Lee Hill.
Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
This case relates to the defendant’s possession of 4.4 grams of crack cocaine on May 27,
2004. Lewisburg Police Officer James Whitsett testified that on May 27, 2004, between 8:00 and
9:00 p.m., he was working with the Seventeenth Judicial District Drug Task Force in the First
Avenue area. He said that about ten to fifteen minutes after he began his surveillance of a drug
house, he saw two people meet outside the house, including Charlie Cross, a known drug dealer.
He said that he saw the defendant approach Mr. Cross and that they interacted for ten to fifteen
seconds. He said that he could not see what Mr. Cross and the defendant were doing with their
hands because their backs were towards him but that they were standing within “reaching distance”
of each other and were moving their arms. He said that the defendant then walked up First Avenue
and that Mr. Cross went around the corner of the house. He said the defendant was flipping
something in his hand, like he was counting money, drugs, or something else. He said that he was
very familiar with the way street transactions occurred and that he radioed the other agents to tell
them what he had seen.
On cross-examination, Officer Whitsett acknowledged that he had seen Mr. Cross and
watched the house on previous occasions and that this was the first time he had seen the defendant
there. He acknowledged he did not see the defendant and Mr. Cross exchange any money because
of the way they were standing. He acknowledged he did not see the defendant or anyone else
standing on the corner selling drugs that night.
Seventeenth Judicial District Drug Task Force Agent Shane George testified that on May 27,
2004, he and other members of the task force were in Lewisburg conducting drug investigations.
He said he, Assistant Director Tim Miller, and Special Agent Bill Osterman were riding in an
unmarked car but were wearing shirts which identified them as police officers. He said that they
drove around the area while Officer Whitsett watched a known drug house but that they
communicated with him by radio. He said Officer Whitsett radioed them and said he had seen a
black male approach the house and engage in what he believed was a drug transaction. He said one
and a half to two minutes passed from the time Officer Whitsett radioed to them and the time they
saw the defendant. He said they watched the defendant and saw him holding something in his hands,
like he was counting something.
Agent George testified that they drove to the shoulder of the road where the defendant was
walking and parked the car. He said Agent Miller said to the defendant, “Hey. Step over here. I
need to speak with you for just a moment.” He said drug dealers did sell drugs on the street where
they stopped. He said that the defendant took one and a half steps to the car and that he and Agent
Osterman began to get out of the car. He said the defendant realized Agent Miller was a police
officer and ran away “like he was trying out for a track and field.” He said that he and Agent
Osterman ran after the defendant while giving verbal commands to stop but that the defendant did
not slow down. He said he could see the defendant the entire time he was chasing him. He said that
when he was about three feet from the defendant, he saw the defendant reach into his right front
pants pocket, pull out an object, and throw it to the side. He said that he could not see what the
object was but that he did see the general area where the object hit the ground. He said the defendant
ran only five to six feet beyond where he threw the item before he was taken down.
Agent George testified that he held the defendant until other officers got there and that the
other officers attempted to place the defendant in handcuffs. He said the defendant resisted arrest
by keeping his hands underneath him. He said that he took Assistant Director Miller to the area
where the defendant threw the object and that they found a plastic bag containing twenty-four small
bags of what he suspected to be crack cocaine. He said that the defendant had $92 when he was
arrested and that they found the defendant’s cell phone along the path where the defendant had run.
-2-
On cross-examination, Agent George acknowledged that he never saw the defendant try to
sell drugs to anyone and did not see him try to pass the drugs to someone. He said he believed the
defendant was going to sell the drugs because they were packaged in a way consistent with selling.
He acknowledged that he did not find a scale on the defendant and that the small packages of cocaine
could be found on a person after he buys them.
On re-direct examination, Agent George testified that a drug dealer selling drugs on the street
usually did not have drug paraphernalia with him. He said 4.4 grams of crack cocaine is a substantial
amount of cocaine for the area and is considered “dealer weight.” He said that if a person were going
to buy 4.4 grams of crack cocaine, the person would not want to have it in individual bags because
he would only get 3.5 grams of crack cocaine and the rest of the weight would be plastic bags. He
said that if a person had twenty-four “$20 bags” of cocaine in his possession, it would be indicative
that the person was a drug dealer. He said that if a dealer bought 4.4 grams in one lump sum for
$200 and broke the cocaine into twenty-four “$20 bags,” then the dealer could make a $280 profit.
On re-cross examination, Agent George stated an “8-ball” is approximately 3.5 grams of cocaine and
is a substantial amount.
Seventeenth Judicial District Drug Task Force Assistant Director Timothy Miller testified
that on May 27, 2004, he participated in the investigation leading to the defendant’s arrest. He said
that he asked the defendant to approach the car and that the defendant took two or three steps toward
him. He said the defendant ran after seeing he was a police officer. He said the other officers began
yelling commands for the defendant to stop and identified themselves as police officers. He said that
once the defendant was caught, the officers struggled to get the defendant handcuffed. He said that
Agent George told him he had seen the defendant throw something out of his pocket and that they
looked around the area. He said he found a plastic bag with numerous small pieces of what appeared
to be crack cocaine. He said the plastic bag contained twenty-four smaller bags of cocaine and were
packaged for resale. He said that in the last five years, he had made hundreds, maybe even a
thousand, drug arrests and had never arrested a user with twenty-four “$20 bags” in his pocket. He
said he had arrested drug dealers with multiple packages of “$20 bags.”
On cross-examination, Assistant Director Miller testified that he knew Mr. Cross to be a user
and seller. He acknowledged he wrote in the complaint for this case that Mr. Cross was a drug
dealer, not a drug user.
Seventeenth Judicial District Drug Task Force Director Tim Lane testified that he was the
vault and evidence custodian for the task force. He testified to the chain of custody of the cocaine
entered as an exhibit. He said a rock of cocaine weighing 4.4 grams would be worth $225 on the
street and could be broken down for resale. He said that 4.4 grams was a large amount of cocaine
for the Seventeenth Judicial District and that most drug addicts attempted to purchase a “$10 or $20
rock.” He said the crack cocaine in this case could have sold for $480.
-3-
On cross-examination, Director Lane stated that a person could get approximately forty-four
“smokes” out of 4.4 grams of cocaine. He acknowledged a “$10 smoke” would be used up quickly.
He said a “$10 smoke” would give the user a high for about thirty minutes.
Tennessee Bureau of Investigation Agent Glenn Everett testified that he was a chemist in the
crime laboratory and that he had examined the substances contained in the twenty-four individual
bags entered as an exhibit. He said he tested the substances in the bags and found the substances in
each of the twenty-four bags to be cocaine. He said the total weight of the cocaine was 4.45 grams.
He said the average amount of cocaine in each bag was .18 grams.
Arlene Jones, the defendant’s mother, testified that the defendant had admitted he used drugs
and would not listen to her. On cross-examination, Ms. Jones acknowledged that the defendant did
not have a job or any income in May 2004, but stated that she would give him a couple of dollars.
She said she did not know where the defendant got the $92 he had when he was arrested, unless he
got it from his wife. She said the defendant did not sell drugs.
Sherleen Harris, the defendant’s sister, testified that she had seen her brother use cocaine and
that she had two other brothers who also used cocaine. She said that she would give the defendant
$20 when he asked for money and that one time the defendant took $20 out of her purse. On cross-
examination, Ms. Harris acknowledged that the defendant did not work and that she would be
shocked to learn her brother had $480 “worth of stuff.” She said that as much as he asked her for
money, she did not think he had $480. She acknowledged she would be very surprised if the
defendant had $92 because he did not have a job. She said the defendant’s wife always took care
of him and gave him whatever he wanted.
Charles Hill, the defendant’s brother, testified that he was living in the Marshall County Jail
because he violated his probation for possession of drug paraphernalia and public drunkenness. He
said he was arrested for having drug paraphernalia the same night the defendant was arrested. He
said that on May 27, 2004, he had been with the defendant and “Ty” Baugh smoking crack cocaine.
He said they smoked “quite a bit” of cocaine at a house on First Street. He said that he had never
seen the defendant selling drugs but that the defendant used drugs.
On cross-examination, Mr. Hill stated that on May 27, 2004, he was smoking crack cocaine
from about 4:00 p.m. until around 11:00 p.m. or midnight. He said he did not know how many times
he smoked that day. He said he went to the crack house many times without money. He said there
were between twelve to fourteen people at the house smoking crack cocaine. He acknowledged that
he was unemployed and that his brother did not have a job. He acknowledged the cocaine in the
twenty-four small bags was a lot of cocaine and that he had bought cocaine in similar bags, one at
a time. He acknowledged that the defendant was giving him small bags of cocaine and that the
defendant “delivered” it to him. He also acknowledged he did not give the defendant money for the
cocaine.
-4-
On re-direct examination, Mr. Hill testified that the most small bags of cocaine he ever used
at one time were between thirty and forty bags. He said the most money he spent on the small bags
of cocaine at one time was between $300 and $400.
Marcus Tyrone Baugh, the defendant’s friend, testified that he was currently incarcerated in
the Marshall County Jail for a possession of crack cocaine conviction. He said he was a cocaine
addict. He said that on May 27, 2004, he, the defendant, and Mr. Hill smoked a large amount of
crack cocaine.
On cross-examination, Mr. Baugh stated that the defendant told him he was going to buy an
“8-ball” from Mr. Cross. He acknowledged that the defendant had provided the crack cocaine they
were smoking but that they all paid for it. He said that he brought $40 with him for crack cocaine,
that Mr. Hill paid some money, that the defendant paid more than $40, and that they smoked over
$100 of “dope” that day. He then admitted that they spent around $400 on crack cocaine that day,
including what the defendant had purchased from Mr. Cross.
The defendant testified that he had been convicted of felony forgery, theft, and aggravated
assault. He said that on May 27, 2004, he had been in the First Avenue area. He said that he knew
his brother would be there and that he did not have any money. He said he smoked with his brother
and Mr. Baugh the cocaine they had, but they ran out of money. He said he went home because his
wife had called, and he took $150 dollars from his wife’s jewelry box. He said he also had $100
from doing “odds-and-end work.” He said he went to a house on First Avenue and sat on the porch
waiting to “score.” He said he met Mr. Cross and asked Mr. Cross how much money he wanted for
all the cocaine he had. He said that he told Mr. Cross he would give him $160 for it and that Mr.
Cross agreed to sell it for $160. He said he had used cocaine since 1985 and had never sold drugs.
He said he wanted to buy a large amount of drugs in order that he would not have to go out the rest
of the night. He said he was going home to check on his family and then was supposed to meet his
brother at another house. He said he was going to smoke the cocaine and was not going to sell it.
On cross-examination, the defendant acknowledged the twenty-four small bags of crack
cocaine was the cocaine he bought from Mr. Cross. He acknowledged he had possession of the crack
cocaine. He denied approaching the car with the drug task force agents in it. He said the officers
called him to the car and when he realized they were police officers, he ran. He then acknowledged
he took one or two steps towards the car. He denied struggling with the police officers when they
tried to handcuff him. He said that he, his brother, and Mr. Baugh “pitched in” for the cocaine and
that they were to meet at his brother’s friend’s house. He said that he had $100 from “odds-and-end
work” and $150 from his wife’s jewelry box and that he paid $160 to Mr. Cross for the cocaine. He
acknowledged he had $92 when he was arrested but could not explain where the money his brother
and Mr. Baugh “pitched in” had gone.
We first note that the defendant’s notice of appeal states that the docket number of the case
being appealed is 16347, which relates to the cocaine possession and resisting arrest convictions.
However, the issue presented for review involves only the sufficiency of the evidence of the cocaine
-5-
possession convictions. The issue does not relate to the defendant’s conviction for resisting arrest.
Therefore, we affirm the judgment for resisting arrest.
The defendant contends that the evidence was insufficient to prove the elements of intent to
deliver or sell cocaine. The defendant asserts he did not intend to deliver or sell the cocaine but
obtained it for personal use. The defendant asserts that by interpreting Tennessee Code Annotated
section 39-17-419 to allow an inference of intent to sell or deliver based on the amount of cocaine
possessed without any other circumstances relevant to the defendant’s mental state, the state’s
burden of proving the intent element is eliminated. The defendant asserts the defendant did not have
a “cutting agent,” the defendant did not have a large amount of cash, and there was not a large
amount of cocaine involved. The defendant asserts he presented four witnesses who testified he was
a drug addict. The defendant asserts testimonial evidence from police officers that 4.4 grams of
crack cocaine had a possible value of $225 to $400 is insufficient to prove intent beyond a
reasonable doubt.
The state asserts the evidence at the trial was sufficient to support the defendant’s convictions
for possession with intent to sell and possession with intent to deliver one-half gram or more of
cocaine. The state asserts the defendant admitted he possessed the cocaine. The state also asserts
the defendant’s intent to deliver the cocaine may be inferred from the amount of cocaine he
possessed, along with the other relevant facts. The state asserts the other relevant facts supporting
the inference that the defendant possessed crack cocaine with the intent to sell and deliver include:
(1) the cocaine was individually packaged and not a lump sum, (2) the defendant did not possess any
drug paraphernalia used to consume crack cocaine, (3) the defendant was arrested in a neighborhood
known for high drug traffic, and (4) the defendant had $92 in his possession at the time of his arrest.
The state contends the evidence established the defendant intended to deliver the cocaine he
possessed to his brother and Mr. Baugh.
Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence; rather, we presume that the jury has resolved all conflicts in the testimony and drawn
all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
It is a criminal offense for a person knowingly to “[p]ossess a controlled substance with
intent to manufacture, deliver or sell such controlled substance.” See T.C.A. § 39-17-417(a)(4). The
one element present in almost all criminal offenses which is most often proven by circumstantial
evidence is that relating to the culpable mental state. See Hall v. State, 490 S.W.2d 495, 496 (Tenn.
1973). Other than an accused stating his or her purpose, intent, or thinking at the relevant times, the
trier of fact is left to determine the mental state by making inferences drawn from the surrounding
circumstances found by it to exist. See, e.g., Poag v. State, 567 S.W.2d 775, 778 (Tenn. Crim. App.
-6-
1978). Tennessee Code Annotated section 39-17-419 states in part, “It may be inferred from the
amount of a controlled substance or substances possessed by an offender, along with other relevant
facts surrounding the arrest, that the controlled substance or substances were possessed with the
purpose of selling or otherwise dispensing.” With respect to this inference, our review is only to
consider whether “under the facts of the case, there is no rational way the trier [of fact] could make
the connection permitted by the inference” beyond a reasonable doubt. County Court of Ulster
County v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 2225 (1979). In other words, even though
circumstantial evidence is needed for one element, the standard for evidence sufficiency remains the
same.
In interpreting Tennessee Code Annotated section 39-17-419, this court has concluded that
the plain and ordinary language of the statute “permits the jury to draw an inference of intent to sell
or deliver when the amount of the controlled substance and other relevant facts surrounding the
arrest are considered together.” State v. John Fitzgerald Belew, W2004-01456-CCA-R3-CD,
Henderson County, slip op. at 6 (Tenn. Crim. App. Apr. 18, 2005). Many facts and circumstances
exist from which a jury may properly draw an inference that an accused intended to sell or deliver
controlled substances. See State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (manner of
packaging of drugs and absence of drug paraphernalia may support inference of possession with
intent to sell, rather than possession for personal use); State v. Matthews, 805 S.W.2d 776, 782
(Tenn. Crim. App. 1990) (finding it proper for a jury to consider “the amount and value of a
controlled substance . . . to infer an intention to distribute”). This court has also held that it is not
improper for an officer to testify as to the different traits of drug users and dealers. See State v.
William Aubrey Trotter, No. 01C01-9701-CR-00019, Davidson County, slip op. 7-8 (Tenn. Crim.
App. Feb. 24, 1998).
We do not necessarily reject out of hand the defendant’s contention that, standing alone, the
defendant’s possession of 4.4 grams of cocaine is insufficient to support an inference of an intent to
sell and deliver. See, e.g., Turner v. United States, 396 U.S. 398, 423, 90 S. Ct. 642, 656 (1970)
(stating that mere possession of 14.68 grams of a mixture containing cocaine and sugar is “consistent
with . . . possessing the cocaine not for sale but exclusively for his personal use”). However, in the
light most favorable to the state, the evidence shows that: (1) the cocaine was packaged in twenty-
four individual “$20 bags,” (2) Agent George testified drugs packaged in “$20 bags” were consistent
with reselling, (3) Agent George also testified 4.4 grams of crack cocaine was a substantial amount
of cocaine and was considered “dealer weight,” (4) Assistant Director Miller testified he had arrested
dealers, not users, who had multiple packages of “$20 bags,” (5) Director Lane testified 4.4 grams
was a large amount of cocaine for the Seventeenth Judicial District, and most addicts would attempt
to buy a “$10 or $20 rock,” (6) the defendant had $92 when he was arrested, (7) the defendant’s
sister testified she would be “very surprised” if the defendant had $92 because he was unemployed,
(8) the total value of the crack cocaine in this case was $480, and (9) the defendant had no drug
paraphernalia of the type used for the consumption of crack cocaine on his person.
We believe the evidence is sufficient to warrant the jury’s rejection of the defendant’s claim
that he possessed the cocaine for his own personal use. The jury chose to believe the testimony of
-7-
the state’s witnesses over that of the defendant, which is its prerogative. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). We conclude that the evidence was sufficient for a
rational juror to find beyond a reasonable doubt that the defendant possessed the cocaine with the
intent to sell and deliver it.
CONCLUSION
Based on the foregoing and the record as a whole, we affirm the judgments of the trial court.
___________________________________
JOSEPH M. TIPTON, JUDGE
-8- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154528/ | 963 A.2d 577 (2008)
GITTLER
v.
McCOOL.
No. 80 WDA 2008.
Superior Court of Pennsylvania.
September 19, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/748532/ | 129 F.3d 1267
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Karen N. GUICE, Plaintiff-Appellant,v.R.R. DONNELLEY & SONS, Defendant-Appellee.
No. 97-1026.
United States Court of Appeals, Seventh Circuit.
Submitted Oct. 22, 1997.*Decided Oct. 29, 1997.
1
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Hon. JOEL M. FLAUM, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
ORDER
HOLDERMAN
2
Karen N. Guice brought an action pursuant to Title VII, 42 U.S.C. § 2000e-2(a)(1), against her employer, R.R. Donnelley & Sons (Donnelley), alleging that she was terminated based on her race. The district court granted Donnelley's motion for summary judgment, concluding that it had offered a legitimate and nondiscriminatory reason for its discharge of Ms. Guice, which she had failed to prove was pretextual.
3
Ms. Guice, an African-American, was employed by Donnelley, a large publishing and printing company, from 1987 to 1992 as a programmer analyst in Willowbrook, Illinois. Four other white employees performed similar work at the same location.
4
In 1992, Donnelley lost a major customer and decided to close the Willowbrook office. At the time of this reduction, Donnelley only had two programmer positions available at another location. In order to determine which of the five programmers from Willowbrook would be offered a position at the other facility, Donnelley evaluated the workers under a "paired comparison" rating system to determine the best performers. Ms. Guice was ranked last and not offered a position. She was terminated on October 31, 1992. On appeal, she argues that Donnelley's stated legitimate reason for her discharge was a pretext for racial discrimination.
5
Donnelley did not dispute the existence of a prima facie case of discrimination and the district court assumed that this initial burden had been met. Donnelley articulated a legitimate and non-discriminatory reason for discharging Ms. Guice: the company was undergoing a workforce reduction because of loss of business and due to her low rating in the paired comparison evaluation, the two available positions were offered to higher rated employees, who accepted.
6
Ms. Guice argues that Donnelley's reason for her termination was pretextual because: there were insufficient guidelines for the paired comparison evaluation; only two of the raters had directly supervised her; one of the raters stated in his deposition that he was unaware of any previous use of the paired comparison process; subjective factors were used in the evaluation; employees with different job titles were compared; and, one of the raters had previously exhibited racial animosity towards her and his inclusion as one of the raters infected the entire process with racial bias.
7
Ms. Guice's arguments do not create a genuine issue of fact that Donnelley's legitimate reason for termination was pretextual. "It is important to remember that, when we consider whether an employer's justification for dismissing its employee is pretextual, the inquiry is not whether the reason for the firing was a correct business judgment but whether the decisionmakers honestly acted on that reason." Bahl, 115 F.3d at 1291.
8
The record establishes that the paired comparison process was an established evaluation tool that had been previously used by Donnelley and that any unfamiliarity by the raters would have been compensated for by their receipt of instructions and a manual on the process. Although only two of the raters had directly supervised Ms. Guice's work, the other four had familiarity with her work because they supervised personnel that relied on her work product. Further, the use of some subjective criteria in the evaluation does not support a finding of pretext because Ms. Guise failed to present any evidence that the subjectiveness was used as a cover-up for a decision that was really based on race. Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1164 (7th Cir.1994). Additionally, Ms. Guice's assertion that Donnelley exercised poor business judgment in creating comparison groups does not create an issue of fact over whether pretext was involved. Schultz v. General Elec. Capital Corp., 37 F.3d 329, 334(7th Cir.1994).
9
Lastly, Ms. Guice argues that the reason for her discharge was pretextual because one of the raters "had often displayed open and intense hostility towards [her] in the presence of others," and that two of the other raters were aware of that hostility. However, "all dislike is not based on race." Pilditch v. Board of Educ. of City of Chicago, 3 F.3d 1113, 1119 (7th Cir.1993); see Gilty v. Village of Oak Park, 919 F.2d 1247, 1252 (7th Cir.1990) (evidence that establishes nothing more than dislike does not demonstrate a race-based consideration). Ms. Guice's subjective belief that the rater's hostility was racially motivated does not create an issue of fact unless supported by some evidence other than her own conclusory belief. Mills v. First Fed. Say. & Loan Ass'n of Belvidere, 83 F.3d 833, 843 (7th Cir.1996). Ms. Guice, has not presented any evidence that the rater's hostility towards her was motivated by race. Additionally, she admits that none of the raters or any other supervisors ever made any racially biased comments towards her or anyone else. As Ms. Guice has failed to present any evidence to support her assertion that her discharge was motivated by race she has failed to establish that Donnelley's reason for her termination was pretextual.
10
AFFIRMED.
*
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed. R.App. P. 34(a); Cir. R. 34(f) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/228394/ | 193 F.2d 287
UNITED STATESv.CHABOT.UNITED STATESv.FLIEGEL.
Nos. 90-91.
Dockets 22152-22153.
United States Court of Appeals Second Circuit.
Argued November 9, 1951.
Decided December 19, 1951.
Myles J. Lane, New York City (Stanley D. Robinson and Robert Martin, New York City, of counsel), for appellee in the Southern District of New York.
M. J. Fein, New York City (Henry G. Singer, Brooklyn, N. Y., of counsel; Harry Silver, Brooklyn, N. Y., on the brief), for appellant, Chabot.
Frank J. Parker, Brooklyn, N. Y. (George W. Percy, Jr., Maurice Z. Bungard and Mariano Marrocco, Brooklyn, N. Y., of counsel), for appellee in the Eastern District of New York.
Henry G. Singer, Brooklyn, N. Y. (Harry Silver, Brooklyn, N. Y., on the brief), for appellant, Fliegel.
Before SWAN, Chief Judge, FRANK, Circuit Judge, and COXE, District Judge.
FRANK, Circuit Judge.
1
Chabot and Fliegel were each indicted for wilfully possessing gold bullion without licenses in violation of Executive Order 6260, as amended, 12 U.S.C.A. § 95a note, and 12 U.S.C.A. § 95a.1 Fliegel pleaded guilty, but Chabot stood trial. The government showed that customs agents had found 4300 ounces of gold bullion hidden in the body of Chabot's car which he was attempting to ship abroad. Chabot rested after the government's case, and the jury found him guilty.
2
1. Both appellants claim that Order 6260 and 12 U.S.C.A. § 95a, originating in 1933, were effectively repealed by the Gold Reserve Act of 1934, 31 U.S.C.A. §§ 442, 443.2 The alleged repeal, if any, must be by implication, for in no place in the 1934 Act is there any express suggestion that the earlier measures are replaced. It is true that both the 1933 and the 1934 measures regulate the possession of bullion. The 1933 Act gives the President emergency powers to regulate the hoarding of gold, and, pursuant to this Act, he forbade the possession of bullion without licenses. The 1934 Act authorized the Secretary of the Treasury to prescribe the conditions under which gold might be held — without limiting his power to times of war or national emergency. The 1933 Act and Order 6260 imposed criminal punishment upon wilful violators of the Order. The 1934 Act invoked only civil penalties for all violators — wilful or otherwise — of Treasury Regulations issued pursuant to it. The two measures clearly supplement one another, and the 1934 Act in no way suggests repeal of the earlier Act and Order. So the courts have held. Farber v. United States, 9 Cir., 114 F.2d 5, certiorari denied 311 U.S. 706, 61 S.Ct. 173, 85 L.Ed. 458; Ruffino v. United States, 9 Cir., 114 F.2d 696. See, also, United States v. Levy, 2 Cir., 137 F.2d 778.
3
2. Chabot argues that the government did not prove that he knew about the gold found in his car — i. e., that he did not knowingly violate the Order. His contention lacks merit. Customs agents testified that the gold was found in Chabot's car, shortly after he himself had delivered it to the freight agent for shipping, and that he admitted after arrest, "Oh, I knew that I was carrying the gold." This was sufficient proof of his knowledge to support the jury's verdict of guilt. The government was also required to prove, under the judge's charge, that Chabot owned the gold. Chabot, according to the agents' testimony, claimed upon arrest that he was delivering the car and its contents abroad for a mysterious "Carl."3 The jury, however, did not have to believe all of Chabot's story to the agents; they could properly conclude there was no "Carl," and could reasonably infer ownership of the gold from the circumstances of its discovery in Chabot's possession.
4
3. Chabot's final argument for reversal is that the agents conducted an unreasonable search of his car to find the gold which was hidden behind the fenders. We think not. The car had already been delivered, along with the keys, to the freight agent; it was parked alongside the pier when the customs men began to inspect it. The right of customs officials to inspect cargo being shipped abroad at a port of embarkation is apparent. See 19 U.S.C.A. § 1581; § 379.1(e) Export Control Regulations, 15 Fed.Reg. 2725;4 Landau v. United States Attorney for the Southern District, 2 Cir., 82 F.2d 285, 286, certiorari denied 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389; The Atlantic, 2 Cir., 68 F.2d 8. Here, the car was heavily weighted down in the rear without any apparent cause. The fenders, upon tapping, sounded peculiar. The car, in such obviously bad condition, was being shipped abroad. This seems to us sufficient cause to authorize a more thorough and even dismantling search of the car, for possible secret exports. See 22 U.S.C.A. § 401.5 Both 19 U.S.C.A. § 1581 and 22 U.S.C.A. § 401 seem to dispense with the necessity of a search warrant in such circumstances.
5
Affirmed.
Notes:
1
Fliegel was indicted for violating Treasury Regulations issued pursuant to Order 6260, as well as the Order itself. These regulations are unreported in the Federal Register. The indictment, however, charges facts, to which Fliegel pleaded guilty, that constitute a violation of Order 6260 supporting his conviction and sentence without regard to any supplementary Treasury Regulations issued pursuant to the Order. Mention of these regulations was mere surplusage in the indictment
2
Title 12, § 95a, U.S.C.A., reads in part as follows:
"95a. Embargo on bullion or coin; hoarding; requirement of disclosure; penalties; United States to include Philippine Islands. — (1) During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise —
"(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities, * * *.
"(3) * * * Whoever willfully violates any of the provisions of this section or of any license, order, rule or regulation issued thereunder, shall, upon conviction, be fined not more than $10,000, or, if a natural person, may be imprisoned for not more than ten years, or both; * * *."
Excerpt from Executive Order No. 6260, promulgated August 28, 1933, by virtue of Title 12, § 95a, as amended March 9, 1933:
"Sec. 5. Holding of gold coin, gold bullion, and gold certificates. — After 30 days from the date of this order no person shall hold in his possession or retain any interest, legal or equitable, in any gold coin, gold bullion, or gold certificates situated in the United States and owned by any person subject to the jurisdiction of the United States, except under license therefor issued pursuant to this Executive order; provided, however, that licenses shall not be required in order to hold in possession or retain an interest in gold coin, gold bullion, or gold certificates with respect to which a return need not be filed under section 3 hereof.
* * * * *
"Sec. 9. The Secretary of the Treasury is hereby authorized and empowered to issue such regulations as he may deem necessary to carry out the purposes of this order. * * *
"Sec. 10. Whoever willfully violates any provision of this Executive order or of any license, order, rule, or regulation issued or prescribed hereunder, shall, upon conviction, be fined not more than $10,000, or, if a natural person, may be imprisoned for not more than 10 years, or both; * * *."
The Gold Reserve Act of 1934, reads in part as follows:
"441. Gold Coin and Bullion Transferred to United States; Accounts; Custody. Upon the approval of this Act (Jan. 30, 1934) all right, title, and interest, and every claim of the Federal Reserve Board (Board of Governors of the Federal Reserve System), of every Federal Reserve bank, and of every Federal Reserve agent, in and to any and all gold coin and gold bullion shall pass to and are hereby vested in the United States; * * *.
"442. Same: Regulations respecting Acquisition, Holding, or Transportation of Gold: Exemption of outlying Possessions. The Secretary of the Treasury shall, by regulations issued hereunder, with the approval of the President, prescribe the conditions under which gold may be acquired and held, transported, melted or treated, imported, exported, or earmarked: (a) for industrial, professional, and artistic use; (b) by the Federal Reserve banks for the purpose of settling international balances; and, (c) for such other purposes as in his judgment are not inconsistent with the purpose of this Act (§§ 441, 442 of this title). Gold in any form may be acquired, transported, melted or treated, imported, exported, or earmarked or held in custody for foreign or domestic account (except on behalf of the United States) only to the extent permitted by, and subject to the conditions prescribed in, or pursuant to, such regulations. Such regulations may exempt from the provisions of this section, in whole or in part, gold situated in the Philippine Islands or other places beyond the limits of the continental United States. * * *
"443. Same: Violation of Regulations: Forfeiture. Any gold withheld, acquired, transported, melted or treated, imported, exported, or earmarked or held in custody, in violation of this Act (§§ 441, 442 of this title) or of any regulations issued hereunder, or licenses issued pursuant thereto, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law; and in addition any person failing to comply with the provisions of this Act (said sections) or of any such regulations or licenses, shall be subject to a penalty equal to twice the value of the gold in respect of which such failure occurred. (Jan. 30, 1934, c. 6, § 4, 48 Stat. 340.)
* * * * * * *
"446. Laws repealed. All Acts and parts of Acts inconsistent with any of the provisions of this Act (§§ 315b, 405b, 408a, 408b, 440 to 446, 733, 734, 752, 753, 754a, 754b, 767, 771, 821, 822a, 822b, 824 of this title and 12.213, 411 to 415, 417, 467) are hereby repealed. Jan. 30, 1934, c. 6, § 17, 48 Stat. 344."
3
In order to constitute a violation of Order 6260 the gold unauthorizedly possessed must be owned by a "person subject to the jurisdiction of the United States." It would seem that, even if the jury believed Chabot's reported story about "Carl," he would nevertheless be guilty, for the mysterious "Carl" was, according to Chabot, located within the United States. The trial judge, here, however, charged that the government must prove to the jury's satisfaction that Chabot was the owner. We will therefore review the evidence in that context only
4
19 U.S.C.A. § 1581, provides in pertinent part: "Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States * * * and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, * * *."
§ 379.1(e) of the Export Control Regulations, 15 Fed.Reg. 2725, May 9, 1950, provides in pertinent part: "Collectors of Customs and all other customs officials * * * are authorized to take appropriate action to assure observance of the provisions of parts 370-399 [of the Export Control Regulations] inclusive, * * * including but not limited to inspection of commodities and technical data, at any time prior to departure of the exporting carrier." (Emphasis supplied.)
5
Section 401 provides: "Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war,or other articles, in violation of law, or whenever there shall be known or probable cause to believe that any such arms or munitions of war, or other articles, are being or are intended to be exported, or shipped from, or taken out of the United States, in violation of law, the several collectors, comptrollers of customs, surveyors, inspectors of customs, and marshals, and deputy marshals of the United States, and every other person duly authorized for the purpose by the President, may sieze and detain * * * [such] articles or munitions of war". (Emphasis supplied.) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/7023681/ | JUSTICE BARRY delivered the opinion of the court: The City of Streator (the City), defendant, appeals from a permanent injunction entered by the circuit court of La Salle County which prevents the City from terminating certain medical and life insurance benefits provided to retired, qualified, nonunion employees and office holders of the City. Since at least 1970, the City of Streator provided to its nonunion employees and office holders the same fringe benefits as had been negotiated with the union representing all other City employees. Beginning in 1975, the collective bargaining agreement with the union provided for the City to pay premiums for life insurance benefits of $2,500 and for health insurance benefits for life for all employees who retire at or after age 55 with at least eight years of service. The City extended these same benefits to those nonunion employees who thereafter retired and who were qualified by age and length of service. Plaintiffs in this action were all nonunion employees and office holders who retired after 1975 and who otherwise qualified for the benefits. Plaintiffs were informed by department heads and other officials that the City would continue to pay health and life insurance premiums for the lifetime of those employees who qualified at retirement. Each year the City appropriated the necessary funds and paid the premiums for these benefits for plaintiffs until 1987, when the city council voted to require nonunion retirees to contribute the full cost of participating in the City’s group insurance plans. The seven plaintiffs filed a complaint for an injunction to prohibit the City from terminating the benefits previously received. There is no dispute that these plaintiffs retired between 1975 and 1987 and that all qualified by age and service for the benefits. It is also not disputed that the nonunion employees and office holders did not receive the same pay raises that union members received under their collective bargaining contracts. The trial court found that the City’s promise to pay medical and life insurance premiums for qualified retirees constituted part of the compensation for which plaintiffs worked. The court enjoined the City from terminating these benefits, and the City has perfected this appeal. The City contends that there is one determinative issue: Was the agreement to pay health insurance benefits for the life of qualified nonunion employees ultra vires and void because it amounted to a contract made or an expense incurred without a prior appropriation having been made for the contract or expense, in violation of section 8 — 1—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 8 — 1—7)? The City relies on the many cases which have held that a City is not bound by a contract which violates the provisions of section 8 — 1—7. E.g., Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 478 N.E.2d 1187 (two-year union contract executed prior to passage of appropriations was void); Mulligan v. Village of Bradley (1985), 131 Ill. App. 3d 513, 475 N.E.2d 1029 (three-year contract with village administrator with no appropriations for salary was void); Hogan v. City of Centralia (1979), 71 Ill. App. 3d 1004, 390 N.E.2d 595 (two-year contract for position of police chief with only one year’s salary previously budgeted and appropriated was void). The principle which controls the instant case is not the statutory provision asserted by defendant City, but rather is the doctrine of equitable estoppel: Where a contract is within the general power of a corporation but a portion of the contract exceeds the corporate powers and where the City receives a benefit, it is equitably estopped from refusing payment. The Illinois Supreme Court has stated: “[Municipal corporations, as well as private corporations and natural persons, are bound by principles of common honesty and fair dealing.” McGovern v. City of Chicago (1917), 281 Ill. 264, 284,118 N.E. 3. The case of McGovern v. City of Chicago, though more than 70 years old, is instructive of the principle. There the City of Chicago had awarded a 13-month contract to McGovern to make needed repairs to city streets, as directed by the superintendent of streets, and to be paid at a particular rate based on area and kind of repairs. The city council did not make an appropriation for the full amount, and at the conclusion of the contract term, the city refused to pay for some $117,394 of work performed on the ground that the contract was void for want of an appropriation and for extending beyond one fiscal year. The supreme court of Illinois ruled that the city had the power to contract to repair its streets, that McGovern had performed in good faith, and that the city was estopped to refuse payment on the ground that it had exercised its power improperly when it had received and accepted the benefit of the contract. Illinois courts do recognize that those contracts expressly prohibited by law are ultra vires and thus unenforceable. (E.g., De-Kam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550.) However, as we have previously held, a municipality has the power to enter into employment contracts with its employees, and the irregular exercise of that power does not entitle the city to accept its employees’ labor without giving them the full compensation promised. Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362, 404 N.E.2d 942. We also observe that rights to lifetime life and medical insurance benefits have, in effect, “vested” for those retired employees who are union members as well as for plaintiffs. To deny plaintiffs their vested rights while paying benefits to union members would be discriminatory and might raise a constitutional question concerning impairment of contract rights. The City also argues that any agreement with nonunion employees was void because there was no formal, recorded action by the city council, but rather some sort of “secret” action. Plainly it was a matter of public record that the city council appropriated the money to pay insurance benefits for these plaintiffs, after their retirement and until November of 1987. That was hardly “secret” action. Also, the union collective bargaining agreement expressly provided for such lifetime retirement benefits, and it was no “secret” that nonunion employees had been promised the same benefits as union employees. The record does not support the City’s contention, and the trial court’s finding that the City had agreed to provide nonunion employees with the same benefits as union employees was not contrary to the manifest weight of the evidence. Furthermore, the evidence is more than sufficient to establish that these lifetime benefits were a part of the compensation for the work performed by these plaintiffs. The 1987 ordinance of the city council purporting to change the benefits for retired persons will apply only to those nonunion employees retiring after the effective date of that ordinance. The City was properly held estopped to refuse to pay the agreed benefits to plaintiffs. The order of the circuit court of La Salle County is affirmed. Affirmed. HEIPLE and STOUDER, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7023682/ | JUSTICE LUND delivered the opinion of the court: On July 26, 1988, a jury sitting in the circuit court of Macon County found defendant Robert Shepard guilty of committing three acts of deceptive practices with a prior conviction in violation of section 17 — l(B)(d) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d)). He was subsequently sentenced to three concurrent three-year terms of imprisonment. He now appeals, alleging: (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied equal protection of the law; and (3) he was denied a fair trial due to the admission of evidence of other crimes. We disagree and affirm. On November 8, 1987, defendant delivered a personal check to the Fairview Plaza Kroger Store drawn on the First National Bank of Decatur (National) in the amount of $50 to pay for merchandise. On November 11, he delivered another check to that store drawn on the Mutual Home and Savings Association (Mutual) in the amount of $50 in exchange for currency. Also, on November 11, he delivered a $50 check drawn on Mutual to the North Water Street Kroger store in exchange for cash. In each case the check was presented twice to its respective financial institution and there were insufficient funds to pay for it. Defendant’s checking account records at Mutual for the periods ending October 22, November 22, and December 22 were introduced into evidence. These established that this account was active. Defendant began writing insufficient funds checks around November 2. By the end of that month he had a balance of of $2.23, with $84 of pending bad check charges. Seven checks were still outstanding, all presented for payment for which insufficient funds existed. For December, he ended with a balance of $9.13 and another pending $84 of charges. At least four new checks were bounced. It was explained by Mutual’s assistant manager that if defendant deposited a check which is subsequently dishonored by another institution it would still be reflected on the monthly statement. However, if a check was given them for collection it would not so appear. She remembers defendant showing her a check he had received from an accident, but she did not know if he had asked them to collect it. Defendant’s checking account records at National for the periods ending October 23, November 23, and December 23 were also submitted into evidence. These show a closing balance on October 23 of $9.51 overdrawn. The balance on November 23 was $32.51 overdrawn, with five overdrawn checks outstanding. His December balance was $5.51, with another overdrawn check outstanding. National’s cashier explained that a check given them for collection only would not appear on the account statements. On January 11, 1988, defendant was interviewed by police officer Michael Applegate. Defendant acknowledged he wrote the checks. He stated that he thought he had enough money in the accounts to cover the checks. He maintained he deposited an insurance check in the amount of $600 to $700 in one of them. However, he also stated he was robbing Peter to pay Paul. Finally, a certified copy of an earlier deceptive practice conviction in the Coles County circuit court was placed into evidence. Defendant, 64 years of age, explained he had both checking accounts for approximately one year. He also has a Kroger check-cashing card and has been cashing checks at various Kroger stores for five or six years. He identified a large number of checks written between July 10 and November 10, which were drawn on both institutions and were cashed at a Kroger’s and successfully cleared. He admitted writing and delivering the checks in question. He believed those checks would clear. He also denied any intent to defraud Kroger. He explained he had a hit-and-run car accident in September. The other driver agreed to pay through his insurance company. Defendant received two checks, which he gave to the banks for collection. Both were dishonored, and he never got his money from the insurance company. He took one check to the company in search of payment, and they simply took it and told him to get lost. At the time of the accident, defendant had a personal note at National for purchase of a 1981 Buick. The note was for a period of 24 months, with the last scheduled payment being April 1989. On November 6, 1989, he paid $1,137 to pay the note entirely. This was supported by the loan paperwork. He maintained that after the insurance checks were dishonored he tried to refinance this note, which was denied. On cross-examination, he was questioned extensively concerning the bank statements and the number of his checks which were not paid during that time. Defendant also stated that, irrespective of the insurance checks, he believed he had money in the accounts to cover the checks. On rebuttal he was impeached with three prior, separate forgery convictions. Defendant was found guilty on all charges. He now appeals. Defendant’s initial assertion is that he was not proved guilty beyond a reasonable doubt. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The relevant question is whether, if after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) Once a defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277. To sustain its burden in this case, the State must prove beyond a reasonable doubt that: (1) defendant issued or delivered the check in question; (2) defendant thereby obtained cash or goods from Kroger; (3) defendant knew at the time his account was insufficient to pay for said check; and (4) defendant acted with the intent to defraud. (Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d); People v. Cundiff (1973), 16 Ill. App. 3d 267, 305 N.E.2d 735.) Defendant maintains the State has failed to prove that he knew the checks would not be paid by the financial institutions and that he intended to defraud Kroger. The last sentence of section 17 — l(B)(d) provides: “Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered, or when such check or other order is presented for payment and dishonored on each of 2 occasions at least 7 days apart, is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud.” (Ill. Rev. Stat. 1987, ch. 38, par. 17 — l(B)(d).) One court has held these are permissible inferences which may be drawn only when the proven facts meet the standard set forth in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151. (People v. Bormet (1986), 142 Ill. App. 3d 422, 427, 491 N.E.2d 1281, 1284.) One of the requirements of Housby is that there exists evidence to corroborate the inference. Housby, 84 Ill. 2d at 424-25, 420 N.E. 2d at 154-55. In the present case, there are sufficient facts present to corroborate this inference and support the jury’s conclusion. First, these checks in question are not isolated bad checks but are part of a series of numerous bad checks passed during that time. Defendant made a statement to the police indicating he was robbing Peter to pay Paul, which could be viewed as establishing his knowledge of the lack of funds. Further, defendant’s explanation by way of his testimony is highly suspect. Defendant explained he was waiting for the proceeds of two insurance checks. At one time he indicated they were to be deposited, which is clearly false. Then he indicated they were given for collection. However, he was hazy about the time frame, indicating at one point these were given in October. He also could not remember the names of the insurance companies or what agency or person took his dishonored check and did not return it. He was even unclear as to total amounts of these checks. The jury could reasonably find defendant’s explanation false, which is also sufficient corroboration to support the finding of the inference. Housby, 84 Ill. 2d at 430-31, 420 N.E.2d at 158. Defendant insists that his testimony concerning his lack of intent and his prepayment of his installment note is sufficient evidence of his lack of knowledge and lack of intent to defraud. However, the jury is not required to accept a defendant’s testimony and his was severely impeached by his prior convictions. Further, this prepayment is only one piece of evidence and is not by itself conclusive of the question. In fact, this evidence could be construed as cutting the other way. Defendant never fully explained where this sum of money came from. While his testimony is unclear and he generally insisted the insurance checks were not honored, there is a statement in which defendant indicated at least one check was cashed and he used these proceeds to pay the note. Thus, the jury could have reasonably concluded that, if the insurance checks did exist, they were honored and defendant did receive the money. In either case, the evidence is sufficient to raise questions of fact concerning defendant’s intent to defraud and his knowledge that the checks would not clear. We cannot say that, after construing all the evidence in the light most favorable to the State, no rational trier of fact could find defendant guilty beyond a reasonable doubt. Defendant next contends the court erred by allowing admission of the monthly statements from Mutual and National since they show numerous other checks were not paid. He also complains of cross-examination concerning that point. He maintains this, in essence, established that he could have been charged with numerous other deceptive practice charges. He notes that evidence of other crimes is generally inadmissible as being too prejudicial. (People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288, 290.) He believes the fact he had other possible pending charges for the same conduct prejudiced the jury and denied him a fair trial. Defendant’s argument is without merit. Initially, we observe defendant invited the cross-examination concerning the other bad checks. Prior to defendant’s testimony, the State made a motion in limine to bar defendant from introducing into evidence and testifying about over 70 checks which he wrote and the institutions did cover. When the court denied the motion, it advised defendant this testimony would open the door to examination concerning a number of dishonored checks. Defendant acknowledged this and yet proceeded. It is axiomatic that an accused cannot complain of error acquiesced in or invited by him. People v. Riley (1964), 31 Ill. 2d 490, 496, 202 N.E.2d 531, 534; People v. Harris (1982), 104 Ill. App. 3d 833, 839, 433 N.E.2d 343, 347-48. Further, we find no error exists. While generally evidence of other crimes is inadmissible if relevant to merely establish the defendant’s propensity to commit a crime, it is admissible if it is relevant for any other purpose. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823-24.) Some such valid purposes are to prove modus operandi, intent, identity, motive, or absence of mistake. People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492-93. In the case at bar, the State was required to prove that at the time the checks were passed defendant knew they were not good and he acted with an intent to defraud and, in fact, it presented evidence on these points. Defendant denied any such knowledge or intent. The fact that during this time and subsequently defendant has issued a large number of bad checks and that his accounts have a low or negative balance is highly probative to his knowledge of the status of his accounts. It is similarly pertinent to the question whether the charged checks were dishonored due to a mistaken belief on his part or whether defendant intended to defraud the people to whom he issued these checks. Thus, it is clear this evidence is highly relevant, not only for impeachment purposes, but also to assist the trier of fact in establishing defendant’s state of mind at the time the checks were passed. Defendant’s final argument is that he was denied equal protection of the law. He observes that the court admitted into evidence his prior conviction of deceptive practices as an element of the offenses necessary to increase them from a misdemeanor to a felony. He notes that the legislature has (earlier) amended other sections in which misdemeanors are enhanced by previous convictions to felonies, by providing that the prior conviction is not an element of the offense and is not to be disclosed to the jury. (See Ill. Rev. Stat. 1987, ch. 38, pars. 16— 1(e)(2), 16A — 10(2), 16-5(c), ll-15(b), ll-14(b), 11- 17(b), ll-18(b), 11 — 19(b).) He maintains the fact he is not treated similarly denies him equal protection. The equal protection clause requires persons who are similarly situated be treated equally. (People v. Petro (1989), 179 Ill. App. 3d 1018, 1021, 535 N.E.2d 97, 99.) The clause comes into play only when the law lays an unequal hand on those who have committed intrinsically the same quality of offense and penalizes one and not the other. (People v. Bradley (1980), 79 Ill. 2d 410, 416, 403 N.E.2d 1029, 1031.) Those contesting the statute’s validity have the burden of showing its invalidity. Petro, 179 Ill. App. 3d at 1021, 535 N.E.2d at 99. Here we fail to see the prohibited dissimilar treatment which prejudices defendant. Defendant’s theory is that the fact his prior conviction is treated as an element of the offense and is presented to the trier of fact prejudices him because a jury is liable to convict him based on the prior conviction. He notes that in the other situations, the prior conviction is not made known to the trier of fact but is introduced at sentencing. However, defendant’s focus is misplaced. While the procedures imposed in each case are different, there is no dissimilar treatment of a constitutional nature. In each case, a defendant with a prior conviction can have a misdemeanor for conduct comparable to the prior enhanced to a felony. Thus, similarly situated defendants are treated similarly. Even if we were to consider the different procedures employed in proving the prior convictions, a different result would not be required. Here, the jury was strictly admonished by the court at the time it advised them of the prior conviction that this was to be considered solely for this one element and not to be considered for any propensity toward similar conduct by defendant or any other purpose. There was also a jury instruction indicating that the prior convictions were not to be considered as evidence of defendant’s guilt. This is sufficient to remove any possible improper taint from introduction of the prior conviction. Since the different procedures do not penalize this defendant over others charged under the other sections, there is no equal protection problem. Affirmed. SPITZ and McCULLOUGH, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/414774/ | 701 F.2d 169
U. S.v.Taylor
81-5299
UNITED STATES COURT OF APPEALS Fourth Circuit
1/6/83
1
D.Md.
AFFIRMED IN PART AND VACATED IN PART | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/215059/ | 641 F.3d 1141 (2011)
UNITED STATES of America, Plaintiff-Appellee,
v.
Israel LEAL-FELIX, Defendant-Appellant.
No. 09-50426.
United States Court of Appeals, Ninth Circuit.
April 19, 2011.
Bryan F. Boutwell, Special Assistant U.S., Office of the U.S. Attorney, Riverside, CA, Michael J. Raphael, Esquire, Assistant U.S., Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
Michael Tanaka, Deputy Federal Public Defender, Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant.
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. | 01-03-2023 | 04-19-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/751863/ | 137 F.3d 905
76 Fair Empl.Prac.Cas. (BNA) 505,72 Empl. Prac. Dec. P 45,235, 40 Fed.R.Serv.3d 66
Janelle RUTHERFORD, Daniel David, John Rajic, RichardDembie, James Hoban, James Imars, Steven Sakal, AndrewChristopher, Kevin Riley, Judith Torres, Norbert Kelssey,Deborah McClure, Deborah Evans, and Theodore Horak, Onbehalf of themselves and all other persons similarlysituated, Plaintiffs-Appellants,v.CITY OF CLEVELAND, Defendant-Appellee,The Shield Club, Intervenor/Defendant-Appellee.
No. 96-3967.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 24, 1997.Decided March 4, 1998.Rehearing and Suggestion for Rehearing En Banc Denied April 27, 1998.
Edward G. Kramer (argued and briefed), James M. Tighe (argued), Kramer & Niermann, Cleveland, OH, N. Stephen Nigolian, Cleveland, OH, for Janelle Rutherford.
Edward G. Kramer, Kramer & Niermann, Cleveland, OH, N. Stephen Nigolian, Cleveland, OH, for Plaintiffs-Appellants, except Janelle Rutherford.
Joseph John Jerse (argued), Corinne Katz Moore (briefed), City of Cleveland Law Department, Office of Director of Law, Cleveland, OH, Malcolm Douglas, Cleveland, OH, for City of Cleveland.
Before: MERRITT, WELLFORD, and MOORE, Circuit Judges.
OPINION
MOORE, Circuit Judge.
1
Plaintiffs-Appellants, two sub-classes composed of non-minority applicants for the position of police patrol officer in Cleveland, appeal the district court's order granting summary judgment in favor of Defendant-Appellee City of Cleveland ("City") and Defendant-Appellee The Shield Club ("Shield"). The appellants challenge the constitutionality of the consent decree under which the City made its hiring decisions. In granting summary judgment, the district court concluded that this court's decision in Rafferty v. City of Youngstown, 54 F.3d 278 (6th Cir.), cert. denied, 516 U.S. 931, 116 S.Ct. 338, 133 L.Ed.2d 236 (1995), and section 108 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(n)(1)(B)(ii), foreclosed appellants' constitutional challenge to the consent decree because their interests had been adequately represented by the parties to the litigation giving rise to the decree. For the reasons that follow, we reverse.
I. BACKGROUND
A. Facts
2
On November 11, 1977, the district court approved a consent decree between Shield, which represented African-American police officers, and the City in Shield Club v. City of Cleveland, Case Nos. C72-1088 and C77-346. J.A. at 278-285 (consent decree). That consent decree represented the culmination of five years of litigation between Shield, the City, and the Fraternal Order of Police ("FOP")1 in which Shield sued the City for racial discrimination adversely affecting the hiring and promoting of African-American police officers in the Cleveland Police Department ("CPD"). J.A. at 200 (Shield Club Complaint). The consent decree governed the hiring and promotion practices of the CPD. The FOP, which had vigorously contested the litigation and the creation of the consent decree, refused to sign onto it. J.A. at 220-277 (Hearing re Entry of Consent Decree).
3
Subsequently, on December 21, 1984, the district court amended the consent decree. J.A. at 416-423 ("Amended Consent Decree"). Initially, the City, the FOP, and the Cleveland Police Patrolmen's Association ("CPPA")2 vigorously contested any extension of the consent decree. J.A. at 378 (FOP's Br. in Opp.); 394 (CPPA's Br. in Opp.). However, they eventually participated with Shield in negotiating an amended consent decree. Appellee's Br. at 3-4. The amended consent decree only governed the hiring practices of the CPD. By its terms, the amended consent decree would expire either when 33% of the CPD were minority officers or on December 31, 1992, whichever occurred first. For any year that the City did not hire a minimum of seventy officers, the life of the decree would be extended by an additional year unless the City had already achieved the 33% level. There were two years in which the city did not hire seventy police officers; consequently, the decree was extended by two years. The district court terminated the decree on the FOP's unopposed motion on May 15, 1995, finding that the City had met the 33% threshold as of June 16, 1994. J.A. at 454-55.
B. Procedural History
4
Appellants are comprised of two sub-classes of non-minority applicants for the position of police patrol officer in Cleveland. Appellants' Br. at 9. Sub-class A is comprised of applicants who allege that as a result of the City's hiring pursuant to the consent decree, they were never considered for the position of patrol officer even though minority candidates who ranked lower than they did on the May 18, 1992 eligibility list were considered for that position. This sub-class is approximately seven hundred in number. Sub-class B is comprised of approximately three-hundred applicants who were considered for the position of patrol officer, but were rejected by the City based on qualifications that were allegedly not applied to minority applicants who were lower down on the May 18, 1992 eligibility list, but who were hired for the position. According to appellants, the City took this action pursuant to the consent decree. Id. at 9-10.
5
Appellants filed an initial complaint along with a Motion for a Temporary Restraining Order and for a Preliminary Injunction against the City, J.A. at 12, which motion the district court denied. J.A. at 124. Appellants then filed an Amended Complaint, J.A. at 32, that set forth five causes of action: (1) violations of 42 U.S.C. §§ 1981, 1983, and the Equal Protection Clause of the Fourteenth Amendment; (2) violations of § 1983 and the Due Process Clause of the Fourteenth Amendment to the Constitution; (3) violations of § 1985(3) and the Equal Protection and Due Process Clauses; (4) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; and (5) violation of Ohio's common law of fraud. J.A. at 58-60. In their amended complaint, appellants requested a preliminary and permanent injunction as well as declaratory relief, front and back pay, compensatory and punitive damages, and attorney's fees and costs.
6
The district court conditionally certified the appellants' two classes, J.A. at 152, and asked the parties to brief the impact on the case, if any, of this court's decision in Rafferty. J.A. at 169. Thereafter, Shield filed a motion to dismiss, and the City filed for summary judgment.3 J.A. at 170 (Shield's Motion to Dismiss); 457 (City's Motion for Summary Judgment). The district court granted summary judgment in favor of both Shield and the City.4 J.A. at 120 (Judgment Entry). Appellants then filed this timely appeal.
7
On appeal, appellants raise two issues. First, they contend that the district court erred in holding that this court's decision in Rafferty and § 108 of the 1991 Civil Rights Act foreclosed appellants' challenge to the constitutionality of the amended consent decree because their interests had been adequately represented by the FOP and the CPPA in the Shield litigation. Second, they assert that the district court erred in holding that appellants could not bring their claims as independent actions because all of the claims arose out of the consent decree. Appellants' Br. at 8.
II. JURISDICTION
8
The district court properly exercised jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201, and 42 U.S.C. § 2000e-5(f)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.
III. ANALYSIS
9
The district court held that both this court's decision in Rafferty and § 108 deprived the appellants of standing to maintain this action. The district court reached its conclusion by determining that appellants' interests were adequately represented by the FOP and the CPPA throughout the course of the Shield litigation, especially in the negotiations culminating in the amended consent decree entered in that litigation. J.A. at 116-18. We review de novo the district court's grant of summary judgment. United States v. Kasler Elec. Co., 123 F.3d 341, 343 (6th Cir.1997). We reverse the district court's determination because neither § 108 nor our decision in Rafferty deprives appellants of standing to maintain this action.
A. Civil Rights Act of 1991
10
Section 108 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(n)(1)(B) provides in pertinent part as follows:
11
A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws--...(ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.
12
The fundamental question is how to determine whether a party's interests were adequately represented by another. Guidance to answering that question is provided by the Report of the House Education and Labor Committee which states:
13
Subsection 703(m)(1)(B) sets a standard analogous to that of Rule 23 [of the Federal Rules of Civil Procedure], and permits preclusion of subsequent challenges to court decrees by persons whose interests "were adequately represented by another person who challenged such judgment or order prior to or after" entry. The term "adequately represented" is intended to have the meaning usually associated with the term under Rule 23.
14
H.R. REP. NO. 102-40(I), at 57, reprinted in 1991 U.S.C.C.A.N. 549, 595.
15
Rule 23(a) establishes four prerequisites to a class action: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. See FED.R.CIV.P. 23. In order to understand the nature of the adequate representation requirement, the Supreme Court's recent construction of Federal Rule of Civil Procedure 23(a)(4) offers assistance. "The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, ---- - ----, 117 S.Ct. 2231, 2250-51, 138 L.Ed.2d 689 (1997) (quotation omitted) (citations omitted). Accordingly, to satisfy the adequate representation requirements under Rule 23 and thereby under § 108, there must be an absence of a conflict of interest, and the presence of common interests and injury.
16
There are similarities in some of the concerns addressed by prerequisites 23(a)(2) (commonality), 23(a)(3) (typicality), and 23(a)(4) (representation). As the Supreme Court explained in General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982):
17
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.
18
Id. at 157 n. 13, 102 S.Ct. at 2370-71 n. 13. Cf. HERBERT NEWBERG & ALBA CONTE, NEWBURG ON CLASS ACTIONS § 3.22, at 3-126 (3d ed. 1992) ("[T]he two factors that are now predominately recognized as the basic guidelines for the Rule 23(a)(4) prerequisite are (1) absence of conflict and (2) assurance of vigorous prosecution."); CHARLES ALAN WRIGHT, ARTHUR R. MILLER, AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1768, at 326 (2d ed. 1986) ("It is axiomatic that a putative representative cannot adequately protect the class if his interests are antagonistic to or in conflict with the objectives of those he purports to represent."). For purposes of this case, the key determinants underlying the adequacy of representation relate to the issues of conflicts of interest, common interest, and common injury.
19
Here, there is no commonality of interest or injury between the prior parties (the FOP and the CPPA) and the appellants who are seeking to become patrol officers, because the members of the FOP and the CPPA are all current employees. Those people who are already employed suffered no injury related to the hiring procedures for subsequent hires compelled by the amended consent decree. The FOP and the CPPA earlier opposed the consent decree, at least in part, because it covered promotions--the issue directly affecting their members. Yet despite initial vigorous opposition to the extension of the consent decree, the two unions eventually agreed to the amended consent decree that just covered hiring, the issue not affecting their members (who already were employees), but only affecting applicants like the appellants.
20
These circumstances establish that far from there being a commonality of interest or injury, there is in fact a conflict of interest. The interest of the FOP and CPPA in securing promotion opportunities for their members is different from and poses a potential conflict with the interest asserted by appellants in securing hiring opportunities under the hiring process created by the amended consent decree. That potential conflict manifests itself in the decision by the FOP and CPPA to abandon their opposition to the amended consent decree covering the hiring process; it appears they did so in exchange for the amended consent decree not covering the promotion process. As a result, in abandoning an issue affecting applicants only, the FOP and CPPA concomitantly abandoned any purported representation of the interests of applicants.
21
In the absence of commonality and the presence of a conflict, the FOP and the CPPA did not meet the adequate representation requirements under Rule 23 and thereby failed to qualify as adequate representatives under § 108. See, e.g., General Tel. Co. of the Northwest v. EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 1706-07, 64 L.Ed.2d 319 (1980) ("In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes.").5
22
Congress has placed great emphasis on encouraging voluntary settlements, especially in the employment context. Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 517, 106 S.Ct. 3063, 3072-73, 92 L.Ed.2d 405 (1986). Section 108 strikes a balance between encouraging consent decrees and "ensuring that those affected by decrees have an adequate opportunity to protect their interests." Andrea Catania and Charles A. Sullivan, Judging Judgments: The 1991 Civil Rights Act and the Lingering Ghost of Martin v. Wilks, 57 BROOK. L. REV . 995, 1032 (1992). In striking this balance, Congress "endeavor[ed] to promote the finality of consent judgments by providing limited opportunity for challenges to their legitimacy." Marjorie A. Silver, Fairness and Finality: Third-Party Challenges to Employment Discrimination Consent Decrees After the 1991 Civil Rights Act, 62 FORDHAM L. REV. 321, 340-41 (1993).
23
One such limited opportunity allows a nonparty to challenge a consent decree where the nonparty's interests were not adequately represented. As the Supreme Court has explained, "it would violate the Due Process Clause of the Fourteenth Amendment to bind litigants to a judgment rendered in an earlier litigation to which they were not parties and in which they were not adequately represented." Richards v. Jefferson County, 517 U.S. 793, ----, 116 S.Ct. 1761, 1764, 135 L.Ed.2d 76 (1996) (citing Hansberry v. Lee, 311 U.S. 32, 37, 61 S.Ct. 115, 116, 85 L.Ed. 22 (1940)). Because the appellants were not adequately represented by either the FOP or the CPPA in the Shield litigation, § 108 and principles of due process require that we allow them to bring their action now.6
B. Rafferty
24
Although the district court rested its decision in part on an analysis of Rafferty v. City of Youngstown, 54 F.3d 278 (6th Cir.), cert. denied, 516 U.S. 931, 116 S.Ct. 338, 133 L.Ed.2d 236 (1995), we conclude that the factual context of Rafferty completely distinguishes that case from the case at bar. In Rafferty, a class composed of white police officers sued the City of Youngstown claiming unlawful racial discrimination in regard to the City's promotion procedures taken pursuant to a consent decree entered into by the City in the previous Williams v. Vukovich litigation. The district court in Rafferty granted summary judgment to the City holding that the plaintiffs lacked standing to challenge actions taken by the City pursuant to the consent decree. This court affirmed, holding that because the FOP, the exclusive bargaining representative of all police officers in Youngstown (including the plaintiffs), had intervened in the Williams litigation, the plaintiffs' interests had been adequately represented, and they were bound by the consent decree.
25
In contrast, as previously explained, in the instant case neither the FOP nor the CPPA adequately represented the interests of the appellants, who were not members of either organization. Accordingly, the facts in Rafferty distinguish it from the facts presented in this case, and that factual distinction requires us to reach a different conclusion here from the one reached by the Rafferty court.7
IV. CONCLUSION
26
For the foregoing reasons, the order of the district court granting summary judgment to the defendants-appellees is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.
1
The FOP intervened at the inception of the litigation as a party-defendant. See J.A. at 210 (Motion to Intervene)
2
CPPA intervened as a party-defendant for purposes of challenging any extension or modification of the original consent decree. J.A. at 292 (Motion to Intervene)
3
Shield intervened in the litigation as a party-defendant. J.A. at 134
4
The district court treated Shield's motion to dismiss as one for summary judgment because Shield had attached several exhibits to its motion
5
See John O. McGinnis, The Bar Against Challenges to Employment Discrimination Consent Decrees: A Public Choice Perspective, 54 LA. L. REV . 1507, 1511-12 (1994) (arguing that employment discrimination defendants have an incentive to shift the costs of settlement with plaintiffs to third parties, such as future applicants); Cynthia L. Fountaine, Due Process and The Impermissible Collateral Attack Rule in Employment Discrimination Cases: An Analysis of Section 108 of The Civil Rights Act of 1991, 58 U. PITT. L. REV . 435, 470 (1997) ("The employee seeks to protect opportunities for promotion and to avoid layoff, whereas the prospective employee ... is interested also in hiring practices. This difference in interests suggests that an employee's interests are not sufficiently similar to a prospective employee's interests to justify a conclusion that one can be represented by the other.") (citing General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982))
6
Appellants also assert that the district court erred in ruling that their claims did not arise independently of the consent decree. We need not reach this issue because we reverse the district court's ruling barring appellants' claims based on our analysis of § 108
7
Rafferty is also distinguishable because it was decided under the law that existed prior to the enactment of § 108 of the 1991 Civil Rights Act. Since the conduct at issue in Rafferty predated the enactment of § 108, the court in Rafferty explicitly declined to consider § 108. See 54 F.3d at 281 n. 2. See also id. at n. 3 (Rafferty court notes that its "holding is based on the court's analysis of Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) and applies only to cases arising prior to the passage of the Civil Rights Act of 1991, which overruled portions of Martin.") (emphasis added). The case at bar, on the other hand, concerns hiring decisions after the effective date of § 108 (November 21, 1991) and is therefore governed by that statute | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2102979/ | 138 N.J. 268 (1994)
649 A.2d 1283
PATZAU
v.
NEW JERSEY DEPARTMENT OF TRANSPORTATION
The Supreme Court of New Jersey.
October 6, 1994.
Petitions for Certification
Denied.
271 N.J. Super. 294 638 A.2d 866 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154530/ | 963 A.2d 471 (2008)
MOHNEY
v.
U.S. CREDIT LIFE INS. CO.;
IN RE U.S. CREDIT LIFE INS. CO.
No. 373 & 374 WAL (2008).
Supreme Court of Pennsylvania.
December 10, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2488240/ | 73 So.3d 821 (2011)
Marco T. GARIN, Petitioner,
v.
STATE of Florida, Respondent.
No. 5D11-2848.
District Court of Appeal of Florida, Fifth District.
October 21, 2011.
Marco T. Garin, Raiford, pro se.
Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
PER CURIAM.
The petition for belated appeal is granted. The untimely appeal currently pending in this Court in Case No. 5D11-2958 shall proceed as timely filed.
PETITION GRANTED.
PALMER, TORPY and COHEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/751891/ | 137 F.3d 1083
35 UCC Rep.Serv.2d 45
AKA DISTRIBUTING COMPANY, Plaintiff--Appellant,v.WHIRLPOOL CORPORATION, Defendant--Appellee.
No. 97-1412.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 23, 1997.Decided March 6, 1998.
Mary C. Ivory, St. Paul, MN, argued (Thomas J. Lyons and Thomas E. Boland, on the brief), for Plaintiff-Appellant.
Robert F. James, Great Falls, MT, argued (Keith A. Hanson, Andrew L. Frey, and Norman R. Williams II, on the brief), for Defendant-Appellee.
Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.
LOKEN, Circuit Judge.
1
AKA Distributing Company appeals the district court's1 grant of summary judgment dismissing breach of contract, fraud, constructive fraud, and negligent misrepresentation claims against Whirlpool Corporation. We conclude the contract claim is governed by the Uniform Commercial Code and time-barred, the fraud claim is barred by Minnesota's economic loss doctrine, and the constructive fraud and negligent misrepresentation claims are without merit. Accordingly, we affirm.
2
The facts relevant to the issues on appeal can be briefly stated. AKA's owner, Allen Allstadt, has been in the vacuum cleaner sales and service business since 1974. He formed AKA in 1979 for the wholesale distribution of floor care products. Whirlpool approached Allstadt in 1984 about distributing a new line of branded upright and canister vacuum cleaners. Allstadt examined the new products and suggested improvements to Whirlpool. AKA then signed a distributor contract in February 1985. The written contract prescribed a one-year term, but Whirlpool representatives assured Allstadt that the relationship would be a long one. In early 1986, with the contract about to expire, Allstadt met with John Geehring, Whirlpool's national sales manager. They agreed that the relationship would continue without a written contract under the terms of the 1985 contract. Geehring again assured Allstadt that the relationship would be a long-term one. Geehring repeated that assurance to Allstadt at a July 1986 distributors meeting, and David Allen, Whirlpool's Division Vice President, gave a similar assurance in the presence of all the distributors.
3
The new Whirlpool line was beset with product problems. Allstadt and other AKA employees forwarded many engineering suggestions to Whirlpool in an effort to improve the products and to meet AKA's contractual obligation to resolve customer complaints. Geehring agreed that AKA's suggestions substantially improved the products and in one instance prevented a recall. However, on January 6, 1988, Whirlpool gave notice it would terminate the floor care line and AKA's distributorship effective April 1, 1988, the same day that Whirlpool announced a major vacuum cleaner purchase commitment from Sears Roebuck and Company.
4
AKA commenced this action on December 28, 1993. In essence, AKA alleges that Whirlpool fraudulently told distributors they would be selling Whirlpool products for a long time, concealing its secret plan to manufacture private label cleaners for Sears. Whirlpool thereby lured AKA and others into signing distributor contracts for branded products so it could capture their engineering talents in developing a product line acceptable to Sears.
5
I. The Contract Claim.
6
The district court dismissed AKA's breach of contract claim as time-barred by the four-year statute of limitations in Article 2 of the Minnesota Uniform Commercial Code. See Minn.Stat. § 336.2-725. Article 2 applies to "transactions in goods." Minn.Stat. § 336.2-102. On appeal, AKA argues that Article 2 does not apply to its distributor contract with Whirlpool. That contract primarily involved the provision of services, AKA reasons, because of the engineering services it provided to improve Whirlpool products and the "enormous efforts" expended by AKA to remedy product defects and resolve customer complaints.
7
The distributor contract, as opposed to a particular order for vacuum cleaners, involved a mix of goods and services. Minnesota courts use the "predominant purpose" test to determine whether Article 2 applies to such a contract or transaction. See Vesta State Bank v. Independent State Bank, 518 N.W.2d 850, 854 (Minn.1994).
8
The test [for mixed contracts is] whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).
9
Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir.1974). Applying this test, most courts have concluded that contracts for the distribution of goods are governed by Article 2. See Ralph's Distributing Co. v. AMF, Inc., 667 F.2d 670, 673 n. 6 (8th Cir.1981) (Iowa law); Kirby v. Chrysler Corp., 554 F.Supp. 743, 748-50 (D.Md.1982).2
10
We agree with the district court that the predominant purpose of AKA's "Associate Distributor Sales Agreement" with Whirlpool was the sale of goods. Whirlpool wanted to sell floor care products at wholesale to AKA, and AKA wanted to resell those products to retail customers. The sales agreement describes Whirlpool and AKA as "Vendor and Vendee." It provides terms for establishing price, filling orders, and shipments. The services AKA provided were incidental to selling vacuum cleaners, and there is no evidence Whirlpool paid AKA for services, other than payments for warranty repairs governed by a separate Floor-Care Service Agreement. Thus, Article 2 governs the contract, and AKA's breach of contract claim is time-barred by Article 2's four-year statute of limitations.
11
II. The Tort Claims.
12
The district court held that Minnesota's economic loss doctrine bars AKA's tort claims for fraud, constructive fraud, and negligent misrepresentation because AKA suffered only economic loss and therefore is limited to its contractual remedies under Article 2. AKA argues on appeal that the doctrine does not apply because AKA is not seeking to circumvent warranty remedies and in any event the doctrine does not bar fraud and misrepresentation claims.
13
In Superwood Corp. v. Siempelkamp Corp., 311 N.W.2d 159, 160-62 (Minn.1981), a products liability case, the Minnesota Supreme Court first held that "economic losses arising out of commercial transactions are [not] recoverable under negligence and strict products liability theories." Instead, plaintiffs in such cases are limited to their contract and warranty remedies under the U.C.C. Although the discussion in Superwood emphasized the need to ensure the integrity of the U.C.C.'s warranty remedies governing sales transactions, the Court later clarified that a "commercial transaction" for purposes of Superwood 's economic loss doctrine "is a transaction governed by Article 2 of the Uniform Commercial Code." McCarthy Well Co. v. St. Peter Creamery, Inc., 410 N.W.2d 312, 314 (Minn.1987). Thus, AKA's contention that the doctrine does not apply because AKA is not seeking to circumvent warranty remedies is without merit.3
14
Although Superwood involved tort claims of negligence and strict products liability, the court more broadly discussed whether "tort liability in commercial transactions" should be allowed. 311 N.W.2d at 162. This, plus extension of the doctrine in later cases to all contracts governed by Article 2, suggest that the Minnesota Supreme Court would extend the doctrine to other kinds of torts asserted by commercial claimants in cases where the policies underlying Superwood favor limiting remedies to those in the U.C.C. However, the Minnesota Supreme Court has not addressed whether the economic loss doctrine bars fraud and misrepresentation torts. Without such precedent, we must determine how that Court would likely apply the doctrine in this case. See Toney v. WCCO Television, Midwest Cable & Satellite, Inc., 85 F.3d 383, 389 (8th Cir.1996). The Minnesota Court of Appeals held fraud and misrepresentation claims barred in one unpublished decision. See ETM Graphics, Inc. v. City of St. Paul, 1992 WL 61394 (Minn.Ct.App. Mar.31, 1992). The District of Minnesota ruled similarly in a number of cases prior to its decision in this case. See In re Grain Land Coop Cases, 978 F.Supp. 1267 (D.Minn.1997); Upsher-Smith Labs. v. Mylan Labs., 944 F.Supp. 1411 (D.Minn.1996); Nelson Distributing, Inc. v. Stewart-Warner Corp., 808 F.Supp. 684 (D.Minn.1992); contra Northern States Power Co. v. International Tel. & Tel. Corp., 550 F.Supp. 108 (D.Minn.1982).
15
Though some of these cases broadly state that fraud and misrepresentation claims are barred, we do not think the issue can be answered categorically. As countless other cases illustrate and as § 2-721 of the U.C.C. confirms,4 the presence of a governing commercial contract neither preempts nor eliminates the need for all fraud claims to which the parties' dealings may give rise. See, e.g., R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 830-31 (8th Cir.1983) (applying Missouri law). A fraud claim independent of the contract is actionable, but it must be based upon a misrepresentation that was outside of or collateral to the contract, such as many claims of fraudulent inducement. That distinction has been drawn by courts applying traditional contract and tort remedy principles. See Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 19-20 (2d Cir.1996); Kee v. National Reserve Life Ins. Co., 918 F.2d 1538, 1543 (11th Cir.1990); OHM Remediation Services Corp. v. Hughes Environmental Systems, Inc., 952 F.Supp. 120, 122-23 (N.D.N.Y.1997). It has been borrowed (not always with attribution) by courts applying the economic loss doctrine to claims of fraud between parties to commercial transactions. See Raytheon Co. v. McGraw-Edison Co., 979 F.Supp. 858, 870-73 (E.D.Wis.1997); Allmand Assocs., Inc. v. Hercules Inc., 960 F.Supp. 1216, 1227-28 (E.D.Mich.1997); Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74, 76-78 (Fla.Dist.Ct.App.1997); Huron Tool and Engineering Co. v. Precision Consulting Services, Inc., 209 Mich.App. 365, 532 N.W.2d 541, 544-46 (1995). We think the Minnesota Supreme Court would resolve the legal issue in this case by holding that, in a suit between merchants, a fraud claim to recover economic losses must be independent of the Article 2 contract or it is precluded by the economic loss doctrine.
16
To apply this standard, we must examine the nature of AKA's fraud and misrepresentation claims. The fraud claim is that Whirlpool lied when it said AKA would be a distributor for a long time. But duration was a term of the contract, and breach of that term was the basis for AKA's time-barred contract claim.5 We agree with the district court that this claim is not independent of the contract and its performance, and therefore the economic loss doctrine limits AKA to its Article 2 remedies for breach of the contract's duration terms. Compare General Aviation, Inc. v. Cessna Aircraft Co., 13 F.3d 178, 183 (6th Cir.1993) (fraud claim that dealer was promised "long-term" relationship "simply rehashes the breach of contract claim"). On the other hand, AKA's constructive fraud and negligent misrepresentation claims were based upon Whirlpool's failure to disclose its plan to capture additional Sears private label business. That is the sort of collateral subject that can support an independent fraud-in-the-inducement claim. However, no affirmative misrepresentation is alleged, and Whirlpool had no duty to disclose to arms-length distributors its unrelated plans to market private label products.
17
We have carefully considered AKA's remaining contentions and conclude they are without merit. Accordingly, the judgment of the district court is affirmed.
1
The HONORABLE DAVID S. DOTY, United States District Judge for the District of Minnesota
2
For contrary authority, AKA relies on our decision in United Indus. Syndicate, Inc. v. Western Auto Supply Co., 686 F.2d 1312, 1315-16 (8th Cir.1982). But Missouri law governed that case, and Missouri rejects "the general view." Vigano v. Wylain, Inc., 633 F.2d 522, 525 n. 3 (8th Cir.1980)
3
The economic loss doctrine is now in part statutory. Acting in response to Hapka v. Paquin Farms, 458 N.W.2d 683 (Minn.1990), which narrowed a Superwood exception to the doctrine, the Minnesota Legislature enacted Minn.Stat. § 604.10. But that statute is limited to sales of goods, whereas we deal here with a different type of Article 2 contract. We see no indication that the statute was intended to replace or narrow the scope of the broader common law doctrine. See Lloyd F. Smith Co. v. Den-Tal-Ez, Inc., 491 N.W.2d 11, 17 & n. 7 (Minn.1992); Regents of the Univ. of Minn. v. Chief Indus., Inc., 106 F.3d 1409, 1411 (8th Cir.1997)
4
"Remedies for material misrepresentation or fraud include all remedies available under this article for nonfraudulent breach." Minn.Stat. § 336.2-721
5
AKA's time-barred theory was that Whirlpool breached the distributor contract by terminating without cause because the parties to a contract that is indefinite in duration may terminate at any time "unless otherwise agreed." Minn.Stat. § 336.2-309(2) | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/228402/ | 193 F.2d 321
CHOURNOSv.UNITED STATES.
No. 4306.
United States Court of Appeals Tenth Circuit.
December 20, 1951.
Rehearing Denied February 1, 1952.
Milton A. Oman, Salt Lake City, Utah (Milton V. Backman, Salt Lake City, Utah, on the brief), for appellant.
John C. Harrington, Washington, D. C. (Wm. Amory Underhill, Asst. Atty. Gen., Scott M. Matheson, U. S. Atty., Salt Lake City, Utah, and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee.
Before HUXMAN, MURRAH and PICKETT, Circuit Judges.
PICKETT, Circuit Judge.
1
The plaintiff, as owner of a large tract of unfenced grazing land in Utah, brought this action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), to recover damages resulting from the alleged improper administration of the Taylor Grazing Act, 43 U.S.C.A. § 315 et seq., on public lands contiguous to lands owned and controlled by plaintiff and within the limits of Utah Grazing District No. 1, otherwise known as Promontory Grazing District. This appeal is from a judgment in favor of the defendant.
2
The district, located in northwestern Utah, was created in April of 1935, and was divided into units for summer and winter grazing. Soon after its establishment in accordance with the Taylor Grazing Act and the Range Code, 43 C.F.R. 161, regular grazing permits to the full carrying capacity of the public lands were issued to the owners of base lands classified as dependent by use on such public lands. There were no public lands available for applicants in lower classifications. Within this district were lands owned by the Southern Pacific Land Company and referred to herein as railroad lands. The district and the company entered into a cooperative agreement whereby the unleased railroad lands would be administered by the district for grazing purposes as though they were public lands, with specified rentals or fees being paid to the company. The lessees of railroad lands were to retain the rights provided for in the Act and the Code to the same extent as any other owner or lessee.
3
The plaintiff had been engaged in the business of raising sheep for many years. His operations had been carried on 150 to 250 miles from the lands over which this dispute arose. He was a landowner and held regular grazing and exchange of use permits issued by the district within the area where his base lands were located. In 1947, plaintiff acquired by purchase the railroad lands in question, and obtained control of other lands in the same area by lease from the State of Utah. The total amount of the purchased and leased lands was in excess of 85,000 acres most of which was within the winter grazing area of the district. The railroad lands acquired by the plaintiff were the odd numbered sections while the public lands in the same vicinity were the even numbered sections, and this created a checkerboard pattern over the entire tract. This pattern was partially destroyed by lands granted to the State of Utah within each township which in this instance were leased by the plaintiff. There were approximately 230 sections within the exterior boundaries of the plaintiff's lands of which he owned or controlled approximately 62%.
4
Shortly after acquiring these lands, the plaintiff met with the Range Manager and most of the stockmen who owned or controlled lands within the area and who had theretofore through permits continuously used the railroad lands as well as the public lands. The plaintiff was advised that the problem created by his purchase could be solved only by entering into an exchange of use arrangement, or, if he did not care to use his land, by leasing it to the district under the Pierce Act, 43 U.S.C.A. § 315 m-1. The exchange of use arrangement was agreed upon. Thereafter, the plaintiff applied for exchange of use and crossing permits which were issued in the usual manner. These permits gave to the plaintiff the right to trail his sheep across public lands into the area and to graze them upon his own lands and the adjacent public lands to the extent of the forage produced upon his lands. In other words, his grazing privileges were limited to the feed equal to that which he produced upon his lands.
5
In September of 1948, the plaintiff again made application for crossing permits to trail his sheep from the summer range back into the area. He was advised by the Range Manager that he had not renewed his exchange of use permits and consequently was not entitled to trailing privileges. Plaintiff then filed an application for an exclusive grazing permit on the public lands within the boundaries of his own lands. He advised the Range Manager that he did not desire to surrender control of his lands and felt that such a requirement before granting a crossing permit was a violation of the law. He took the position that, under the Taylor Grazing Act and the Range Code, crossing and grazing permits should be promptly granted to him. He was later advised that upon recommendation of the Advisory Board the permits would not be issued. As provided for in the Range Code, an appeal was taken from this decision. Unsuccessful attempts were made to reach some sort of an agreement whereby the plaintiff could obtain benefit of the grazing produced upon his own lands. Plaintiff stated that he intended to use his own lands as he saw fit. He was then advised by the Range Manager that, without an exchange of use or crossing permit, it was not possible for him to trail his sheep into the area without being a trespasser. The plaintiff then brought his sheep into the area with the result that they grazed upon public lands. The Range Manager then instituted trespass proceedings against him. Numerous conferences followed and finally plaintiff stated that he desired to enter into an exchange of use agreement to avoid further trespass actions. The trespass cases were settled and the permits were issued. Shortly thereafter the plaintiff filed this action.
6
The essence of plaintiff's claim is that under the provisions of the Taylor Grazing Act he is, as a matter of law, entitled to grazing permits upon adjacent and contiguous lands and to crossing permits to move his sheep from one range to another; that the representative of the United States for the purpose of coercing plaintiff into surrendering control of his lands to the district refused to issue such permits; and that such refusal and coercion were unlawful and together constituted a tort within the meaning of the Federal Tort Claims Act.
7
Generally, the Federal Tort Claims Act permits recovery against the United States in the District Courts for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment to the same extent that recovery could be had against a private person, 28 U.S.C.A. § 1346(b). There are, however, certain exceptions to this section. Title 28 U.S.C.A. § 2680(a) provides that the provisions of Sec. 1346(b) shall not apply to "Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Under the provisions of the Taylor Grazing Act and the Range Code, it was the function of the Range Manager acting upon advice of the Advisory Council to allow or reject the applications for Grazing or Crossing Permits.
8
The purpose of the Taylor Grazing Act is to stabilize the livestock industry and to permit the use of the public range according to the needs and the qualifications of the livestock operators with base holdings. To carry out this purpose, the Act and the Range Code authorized by the Act contemplate that the officials, with the advice of an advisory board composed of permit holders within the district, shall exercise their judgment and discretion in granting permits, and in determining the extent to which lands within the district shall be grazed. A livestock owner does not have the right to take matters into his own hands and graze public lands without a permit. If there is dissatisfaction with the action of the officials in the granting of permits, or as to other decisions, the livestock owner's remedy is by appeal as provided for in the Act and the Code (43 C.F.R. 161.9). Oman v. United States, 10 Cir., 179 F.2d 738. It seems clear to us that the granting or rejection of the applications here was within the discretionary function of the range officials as contemplated by Sec. 2680 (a) of the Federal Tort Claims Act. Sickman v. United States, 7 Cir., 184 F.2d 616, certiorari denied 341 U.S. 939, 71 S.Ct. 999, 95 L.Ed. 1366; Coates v. United States, 8 Cir., 181 F.2d 816, 199 A.L.R.2d 840; Cromelin v. United States, 5 Cir., 177 F.2d 275, certiorari denied 339 U.S. 944, 70 S.Ct. 790, 94 L.Ed. 1359; Kendrick v. United States, D.C.N.D.Ala., 82 F.Supp. 430.
9
We do not agree that the refusal to grant the permits amounted to an unlawful coercion of the plaintiff which required him to execute an exchange of use agreement sufficient to sustain this action, but even if it did the case should not be reversed. On conflicting testimony, the trial court held that there was no such coercion and that the exchange use agreement was entered into voluntarily by the plaintiff. The same is true as to the claim that the Range Manager permitted the lands of the plaintiff to be overgrazed.
10
The plaintiff complains of the prejudicial conduct by the court during the trial of the case and at the pretrial conference, and also alleged error in receiving and excluding evidence. In view of our decision these alleged errors could not have changed the result.
11
Judgment is affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/78597/ | 598 F.3d 740 (2010)
UNITED STATES of America, Plaintiff-Appellee,
v.
Brian Scott CULVER, Defendant-Appellant.
No. 07-14708.
United States Court of Appeals, Eleventh Circuit.
March 2, 2010.
*744 Herbert W. Brewer, Jr., Herbie Brewer, P.C., Jasper, AL, for Culver.
Ramona C. Albin, Asst. U.S. Atty., Jeffrey M. Anderson, Birmingham, AL, for U.S.
Before DUBINA, Chief Judge, TJOFLAT, Circuit Judge, and BOWEN,[*] District Judge.
DUBINA, Chief Judge:
Brian Scott Culver appeals his convictions and sentences on five counts of production of child pornography under 18 U.S.C. § 2251(a). For the reasons that follow, we affirm.
I. FACTS
On the night of November 11, 2003, K.W., a thirteen year old girl, awoke to a shock on her upper back that made her feel like she was being electrocuted. K.W. turned around, and, to her surprise, saw her stepfather, Brian Scott Culver, in bed with her with a stethoscope around his neck. As K.W. left her room, she noticed that Culver was shoving the stethoscope and some other items under her bed. After venturing to the kitchen in a state of shock to get a glass of water, K.W. woke her mother, Sharon Brasuell,[1] and told her what had happened. K.W. and Brasuell confronted Culver, and when Culver denied that he had done anything wrong, K.W. and Brasuell looked under K.W.'s bed and found a stethoscope, a vaginal syringe containing K-Y Jelly and a white pill,[2] condoms, and various other items. Culver became angry and told Brasuell that he wanted a divorce. After packing a bag with clothing and some of the items that had been under K.W.'s bed, Culver departed from the family's Hoover, Alabama residence and headed for his lake house in Cullman County, Alabama.
Concerned by the evening's events, Brasuell called the Hoover police to report an incident of domestic violence. When the police arrived at the Hoover residence *745 early on the morning of November 12, Brasuell gave them permission to search the entire premises. The police found an Aleve bottle that contained alprazolam, commonly known as Xanax, and diazepam, commonly known as Valium; a Pamprin bottle that contained zolpidem, commonly known as Ambien; a stun gun box; and seven Polaroid photographs. Five of the photographs depict a nude female from the hips to the mid-thighs. The female's hands and vagina are clearly visible in these five photographs. The other two photographs depict a nude male from the waist down.
The police instructed Brasuell, K.W., and K.W.'s brother to continue to be on the lookout for suspicious items at the Hoover residence, and on November 13, Brasuell and K.W.'s brother found a Polaroid camera and a video camera. On November 14, the police returned to the residence and discovered an 8mm videotape. The tape contains two segments: the first segment lasts nearly 19 minutes, and the second lasts approximately one minute.[3] On the first segment of the tape, the female's hands and vagina are clearly visible, and the female's hands do not move at all. The tape depicts a male digitally manipulating the female's vagina and inserting a vaginal syringe into her vagina. At trial, Culver stipulated that his thumb appears on the tape.
II. PROCEDURAL HISTORY
The state of Alabama brought four charges against Culver: two counts of possession of child pornography, one count of distributing drugs to a minor, and one count of domestic violence for allegedly shocking K.W. with a stun gun. The jury in Culver's state trial convicted him of both counts of possession of child pornography, but acquitted him of the charges of drugging and shocking K.W.
In January 2007, a federal grand jury indicted Culver on two counts of producing child pornography in violation of 18 U.S.C. § 2251(a). In March, the grand jury returned a superseding indictment charging Culver with one count of producing child pornography on an 8mm videotape (Count One), and five counts of producing child pornography on Polaroid film (Counts Two through Six).
At trial, the government produced the 8mm videotape and the Polaroid photographs as well as pictures of K.W. and Sharon Brasuell that display the same areas of the body that are depicted on the tape and in the photographs. The jury also directly observed identifying marks on K.W.'s hands, K.W. and Brasuell testified that K.W. was the subject of the sexually explicit visual depictions on the tape and in the photographs. Based on their evaluation of all of the evidence presented at trial, the jury returned a verdict of guilty on Counts One, Two, Three, Four, and Six and a verdict of not guilty on Count Five.
Culver's presentence report ("PSI") assigned his crimes a base offense level of 27. The base level was enhanced two levels because the victim was between the ages of 12 and 16, two levels because the victim was Culver's stepdaughter, and two levels because the victim was under the influence of drugs and thus vulnerable to sexual exploitation, for a total offense level of 33. Based on this offense level and a criminal history category of II, Culver's advisory Guidelines sentence range was 151 to 188 months. However, because the statutory minimum on each count was 180 *746 months, see 18 U.S.C. § 2251(e), the lower end of the advisory Guidelines sentence range was automatically adjusted to 180 months. The PSI recommended an upward departure from the Guidelines range for extreme conduct on the basis of Culver's alleged use of a stun gun.
Upon consideration of the presentence report, the testimony of various character witnesses, and the purposes of sentencing stated in 18 U.S.C. § 3553(a), the district court sentenced Culver to the statutory maximum of 360 months on each count with the sentences on Counts One and Two running concurrently; the sentences on Counts Three, Four, and Six running concurrently; and the two sets of sentences running consecutively, for a total sentence of 720 months imprisonment.
III. DISCUSSION
Culver raises a number of issues in his appeal. He contests the constitutionality of the statute under which he was convicted, a number of evidentiary rulings made by the district court, one of the district court's instructions to the jury, and the sentence imposed by the district court.
A. Jurisdiction
The statutory provision at issue in this case was enacted as part of the Child Pornography Prevention Act of 1996 ("CPPA"), Pub.L. No. 104-208, § 121, 110 Stat. 3009-26 (codified as amended in scattered sections of 18 U.S.C. ch. 110). As relevant to Culver's appeal, the CPPA provides that:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct... shall be punished as provided under subsection (e) ... if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means ....
18 U.S.C. § 2251(a).
Culver contends that the district court did not have jurisdiction over the offense charged in Count One of the superseding indictment because § 2251(a) is unconstitutional as applied to his production of child pornography on an 8mm videotape. In addition, Culver maintains that his conduct did not meet the jurisdictional requirement of § 2251(a). We disagree with both of Culver's jurisdictional arguments.
In United States v. Maxwell, 446 F.3d 1210 (11th Cir.2006) ("Maxwell II"), we examined whether 18 U.S.C. § 2251A, another provision of the CPPA,[4] is constitutional under the Commerce Clause in light of the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). We explained that the task of courts faced with an as-applied Commerce Clause challenge is to determine "whether Congress could rationally conclude that the cumulative effect of the conduct by [the defendant] and his ilk would substantially affect interstate commercespecifically the interstate commerce Congress is seeking to eliminate." Maxwell II, 446 F.3d at 1218. Upon examination of the CPPA, we determined that "there is nothing irrational about Congress's conclusion, supported by its findings, that pornography begets pornography, regardless of its origin. Nor is it irrational for Congress to conclude that its inability to regulate the *747 intrastate incidence of child pornography would undermine its broader regulatory scheme designed to eliminate the market in its entirety ...." Id. We concluded that "it is within Congress's authority to regulate all intrastate possession of child pornography, not just that which has traveled in interstate commerce or has been produced using materials that have traveled in interstate commerce." Id. Culver's argument that § 2251(a) is unconstitutional as applied to his conduct is foreclosed by our conclusion in Maxwell II that Congress has broad authority to regulate both intrastate and interstate child pornography.
Congress has chosen to criminalize the production of child pornography "using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means." 18 U.S.C. § 2251(a). At trial, the government proved that the magnetic tape in the 8mm videotape at issue was manufactured in Japan and transported to Dothan, Alabama. However, because the magnetic tape at issue is a component of the finished 8mm videotape assembled in Alabama, Culver contends that the magnetic tape does not fall within the scope of the statutory term "materials." Culver's argument is inconsistent with the plain meaning of the statute, and it ignores the fact that he could not have made the visual depictions at issue without the magnetic tape. We conclude that the jurisdictional requirement of § 2251(a) was met in this case, and the district court had jurisdiction over the offense charged in Count One of the superseding indictment.
B. Evidentiary Rulings
Culver challenges a number of the evidentiary rulings made by the district court. After a thorough review of the record and having the benefit of oral argument, we conclude that all of Culver's evidentiary claims are without merit.
1. Drug and Stun Gun Evidence
Culver first asserts that the district court improperly admitted evidence under Federal Rule of Evidence 404(b) that he drugged and used a stun gun on K.W. on November 11, 2003. "We review the district court's admission of prior crimes or bad acts under [Rule] 404(b) for abuse of discretion." United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir.2005).
The government presented evidence that Culver drugged K.W. with Valium and Xanax and that he attempted to drug K.W. with Ambien. K.W. testified that Culver gave her two blue pills from an Aleve bottle on November 11. K.W. said that she took one of the pills and threw one of them away in the kitchen garbage can. The police found an Aleve bottle containing 13 Valium tablets and 24 Xanax tablets at the Hoover residence and recovered a Xanax tablet from the kitchen garbage can. K.W. tested positive for Valium, and although the Alabama Department of Forensic Sciences did not attempt to determine the specific quantity of Valium in K.W.'s blood, a departmental representative testified that test data suggested that K.W. had taken a single acute dose of Valium. Sharon Brasuell testified that she found a vaginal syringe containing K-Y Jelly and a white pill under K.W.'s bed and that she discharged the pill from the syringe and placed the pill in a Pamprin bottle containing identical white pills. The Pamprin bottle recovered by the police at the Hoover residence contained six Ambien tablets. In addition, the police found computer printouts detailing the effects of Valium and Ambien in Culver's Jeep.
The government also presented evidence that Culver shocked K.W. on her upper back with a stun gun. K.W. testified that *748 she awoke to a shocking sensation on her upper back late in the evening on November 11 and that Culver was in her bed when she awoke. When the police arrived on the scene, they took pictures of marks on K.W.'s upper back that appeared to have been made by a stun gun, and they found a stun gun box in the closet of Culver's bedroom.
Rule 404(b) provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
Fed.R.Evid. 404(b).
We have explained that Rule 404(b) "is one of inclusion which allows [other act] evidence unless it tends to prove only criminal propensity." United States v. Cohen, 888 F.2d 770, 776 (11th Cir.1989). "The list provided by the rule is not exhaustive and the range of relevancy outside the ban is almost infinite." Id. (internal quotation marks omitted). Evidence of prior bad acts must meet a three-part test for admissibility:
(1) the evidence must be relevant to an issue other than defendant's character;
(2) the probative value must not be substantially outweighed by its undue prejudice; [and]
(3) the government must offer sufficient proof so that the jury could find that defendant committed the act.
United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.2008) (quoting Ramirez, 426 F.3d at 1354).
The government did not offer the evidence that Culver drugged and shocked K.W. to establish that Culver's character made him more likely to commit the charged offense. To the contrary, the government submitted evidence that Culver had the knowledge and the means to render K.W. unconscious to explain to the jury why K.W. could not remember the filming of the tape and why the female depicted on the tape remained completely motionless. The drug and stun gun evidence was offered for a non-character-related purpose.
"In assessing the probative value of the extrinsic evidence, we evaluate the Government's incremental need for the evidence to prove guilt beyond a reasonable doubt, `the overall similarity of the extrinsic and the charged offenses and the closeness or remoteness in time of the charged to the extrinsic offense.'" Ellisor, 522 F.3d at 1268 (quoting United States v. Parr, 716 F.2d 796, 805 (11th Cir.1983)). Although several months elapsed between the filming of the child pornography and Culver's drugging and shocking of K.W., the government's incremental need for the drug and stun gun evidence to overcome any potential doubt generated by K.W.'s inability to remember the events in question and the overall similarity between the acts depicted on the tape and the events of November 11 render the drug and stun gun evidence highly probative. Furthermore, although the drug and stun gun evidence may have had a prejudicial effect, we cannot say that the evidence's potential for undue prejudice substantially outweighed the evidence's probative value.
With respect to the third prong of the Rule 404(b) admissibility test, Culver contends that the government did not offer proof sufficient for the jury to conclude that he drugged and shocked K.W. because he was acquitted of these acts in state court. Culver's state trial is irrelevant to the issue before us. In our view, the government presented sufficient evidence *749 in the federal trial for the jury to conclude that Culver drugged and shocked K.W, and the district court did not abuse its discretion in admitting this evidence.
2. K.W.'s Prior Sexual History
Federal Rule of Evidence 412(a) provides that, in general, in a "criminal proceeding involving alleged sexual misconduct," "[e]vidence offered to prove that any alleged victim engaged in other sexual behavior" is inadmissible. The rule also provides, as a narrow exception to this broad general principle, that evidence of a victim's prior sexual history is admissible when the exclusion of such evidence "would violate the constitutional rights of the defendant." Fed.R.Evid. 412(b)(1)(C). Culver contends that his case implicates the narrow exception to the general rule and that the district court erred by refusing to allow him to present evidence of K.W.'s sexual history. Culver claims that he should have been allowed to present such evidence to rebut evidence offered by the government that Culver was responsible for condoms and a broken abstinence card found in K.W.'s room. As with other rulings on the admissibility of evidence, we review a district court's application of Rule 412 for abuse of discretion.[5]See Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997).
"In determining the admissibility of a victim's other sexual behavior under Rule 412(b)(1)(C), we start with the premise that defendants have a constitutional right under the Fifth and Sixth Amendments to introduce evidence in their defense." United States v. Pumpkin Seed, 572 F.3d 552, 559 (8th Cir.2009). However, "the right to present relevant testimony is not without limitation." Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987). "[T]rial judges retain wide latitude ... to impose reasonable limits on [testimony] based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Limitations on a defendant's constitutional right to present evidence are permissible unless they are "arbitrary or disproportionate to the purposes they are designed to serve." Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 1747, 114 L.Ed.2d 205 (1991).
The district court's exclusion of evidence of K.W.'s prior sexual history was not arbitrary or disproportionate to the purposes that Rule 412 was designed to serve. The admission of such evidence would have confused the jury and harassed K.W., and the evidence is marginally relevant at best. The key issue in this case is the identity of the female on the tape and in the photographs. Whether Culver was the source of the condoms or the broken abstinence card found in K.W.'s room is not relevant to the issue of the identity of the female on the tape.[6]See United States v. Sarras, *750 575 F.3d 1191, 1213 (11th Cir.2009) (explaining that victim's other sexual conduct was irrelevant to issue of identification in child pornography production case under § 2251(a)). Furthermore, the district court allowed Culver to cross-examine K.W. on every issue concerning her prior sexual history that was potentially relevant to the charged conduct. The female depicted on the tape had a shaved pubic region, and on cross-examination, Culver was allowed to ask K.W. when and why she had shaved her pubic region in an effort to prove that K.W. is not the female depicted in the tape. At that time, K.W. revealed that she had shaved her pubic region to please her boyfriend. In addition, the district court allowed Culver to attempt to establish K.W.'s bias by allowing testimony that K.W. had gotten into trouble early in the morning on November 11 and that K.W. was extremely angry with Culver for his role in disciplining her. We agree with the district court that the jury did not need to hear the details of the conduct for which K.W. was disciplined in order for Culver to have a constitutionally sufficient opportunity to impeach K.W. Because the evidence Culver claims he needs to rebut is irrelevant, and the district court allowed Culver to cross-examine K.W. on every issue that had any potential relevance to his defense, we conclude that Culver has not shown that the district court's application of Rule 412 violated his constitutional rights.
The district court did not abuse its discretion by excluding evidence of K.W.'s prior sexual history, but assuming arguendo that the district court erred by excluding evidence of K.W.'s prior sexual history, we conclude that any such error was harmless because the evidence establishing Culver's guilt was overwhelming. See Fed. R.Crim.P. 52(a); United States v. Harriston, 329 F.3d 779, 789 (11th Cir.2003) (explaining that error is harmless "where there is overwhelming evidence of guilt.").
3. Request for Additional Photographs
Culver next contends that the district court abused its discretion by denying his request for additional photographs of K.W. and Sharon Brasuell. For Culver's state trial, the prosecution took two sets of photographs of K.W., one on November 12, 2003, and one on September 9, 2004. The state also took a set of photographs of Brasuell on September 9, 2004. Nonetheless, Culver asserts that he needed additional photographs of K.W. and Brasuell to present his defense because the available photographs do not adequately depict all of the relevant areas of the bodies of K.W. and Brasuell.
The second segment of the 8mm videotape displays the buttocks and the backs of the thighs of a female lying on her left side. The female depicted in this portion of the tape has a series of dark spots on the backs of her thighs. Culver claims that he needed additional photos of the backs of the thighs of K.W. and Brasuell to show that the female depicted in the second segment of the tape is not K.W. But the government did not try to prove that the second segment of the tape is illegal *751 child pornography.[7] Moreover, some of the photos taken of K.W. for the state trial clearly show that K.W. did not have dark spots on the backs of her thighs. Culver has not made any credible argument that the available photographs of K.W. and Brasuell do not adequately display the areas of the body that were visible on the female in the first segment of the tape.[8] The district court did not abuse its discretion by denying Culver's request for additional pictures.
4. Prior Felony Convictions
Culver argues that the district court erred by ruling that the government could present evidence of Culver's state court felony convictions for possession of child pornography to impeach Culver and any character witnesses that Culver might have presented. Because Culver did not testify, he may not raise a claim that the district court erroneously determined that his prior convictions could be used to impeach any testimony that he might have given. Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 464, 83 L.Ed.2d 443 (1984) ("[T]o raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify."). Similarly, because Culver did not call any character witnesses, we will not address his claim that the district court erroneously determined that his prior convictions could be used to impeach the testimony of any character witnesses that he might have called. See United States v. LeCroy, 441 F.3d 914, 928 (11th Cir.2006) ("The defendant could have called his witnesses, had them testify, and then objected at the proper time ....").
5. Cumulative Error
Culver contends that all of the alleged evidentiary errors made by the district court had an aggregate prejudicial effect that amounted to the denial of a fair trial. This contention is clearly without merit in light of our conclusion that the district court did not abuse its discretion in making any of the evidentiary rulings challenged by Culver. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004) (concluding that cumulative error doctrine is inapplicable where district court commits no individual errors).
C. Jury Instruction
Culver asserts that the district court erred by failing to give his requested jury instruction on circumstantial evidence. "We review a district court's refusal to give a requested jury instruction for abuse of discretion." United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir.2005). We will find an abuse of discretion where "`(1) the requested instruction was substantively correct, (2) the court's charge to the jury did not cover the gist of the instruction, and (3) the failure to give the instruction substantially impaired the defendant's ability to present an effective defense.'" Id. (quoting United States v. Roberts, 308 F.3d 1147, 1153 (11th Cir.2002)). Culver's requested instruction dealt with the topics of circumstantial evidence and reasonable *752 doubt, and the district court's instructions to the jury adequately covered both topics. Accordingly, we conclude that the district court did not abuse its discretion in rejecting Culver's requested instruction.
D. Sufficiency of the Evidence
Culver contends that the government did not present evidence sufficient to establish that he violated § 2251(a). We review a sufficiency of the evidence challenge de novo, considering the evidence in the light most favorable to the government and resolving all reasonable inferences and credibility determinations in favor of the jury's verdict. United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir.2007).
The key issue in this case is whether the female depicted on the tape and in the photographs was a minor, and Culver does not dispute that K.W. was a minor when the tape and photographs were produced. Sharon Brasuell and K.W. testified that K.W. is the female on the tape and in the photographs. Brasuell identified K.W. by her slender body, her long slender hands, the style and condition of her fingernail polish, and a distinctive red spot on her right hand. K.W. identified herself by her body shape, her shaved pubic region, the style and condition of her fingernail polish, and a distinctive red spot on her right hand. The jury also viewed pictures of K.W. taken for comparison purposes and directly observed K.W.'s hands in court.
In addition to the direct evidence identifying K.W. as the female on the tape and in the photographs, the government also presented substantial circumstantial evidence indicating that Culver produced illegal visual depictions of K.W. A unique set of blue sheets with snowflakes and polar bears is visible on the tape and in the photographs. Brasuell testified that she purchased these sheets for Culver for use in the master bedroom at his Cullman County lake house. K.W. testified that, at some point in early 2003, she had fallen asleep on the couch at the Cullman County lake house and woke up in the master bedroom. K.W. could not remember how she had gotten to the master bedroom and testified that she experienced a sensation of numbness in her pubic area when she awoke. As discussed above, the government presented convincing evidence that Culver knew how to render K.W. unconscious.
Viewing all of the evidence presented by the government in the light most favorable to the government and drawing all reasonable inferences in favor of the jury's verdict, we are convinced that the government presented evidence sufficient to support a finding of guilt beyond a reasonable doubt.
E. Sentencing
Culver argues that the sentence imposed by the district court violates the spirit of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the district court considered allegations that Culver drugged and shocked K.W.conduct with which the government did not charge Culver in an indictment, upon which the jury did not pass in its verdict, and of which a state court jury acquitted Culver. Culver contends that the district court's consideration of this acquitted conduct violates the Due Process Clause of the Fifth Amendment and the Double Jeopardy Clause of the Sixth Amendment. Culver's arguments are without merit.
It is well-settled that a sentencing court may consider conduct for which a defendant has been acquitted if the government proves the conduct in question by a preponderance of the evidence. United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir.2005); see also United States v. *753 Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997) (citing United States v. Watts, 519 U.S. 148, 153, 117 S.Ct. 633, 636, 136 L.Ed.2d 554 (1997); United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir.1996); United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991)). Booker merely requires that consideration of acquitted conduct does not result in "a sentence that exceeds what is authorized by the jury verdict." Duncan, 400 F.3d at 1304. The district court properly considered evidence that Culver drugged and shocked K.W.,[9] and the sentence imposed by the district court did not exceed the sentence authorized by the jury verdict.[10] Thus, we conclude that the sentence imposed by the district court did not violate Culver's constitutional rights.
Culver also argues that his sentence is substantively unreasonable. We disagree. We review the reasonableness of a sentence under "`a deferential abuse-of-discretion standard.'" United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 40, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)). To determine whether a sentence is substantively reasonable, we consider whether, under the totality of the circumstances, the sentence achieves the sentencing goals stated in 18 U.S.C. § 3553(a). Pugh, 515 F.3d at 1191; United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Based on our review of the record, we are convinced that the sentence imposed by the district court will achieve the sentencing goals stated in § 3553(a) and that the district court did not abuse its discretion in sentencing Culver.
IV. CONCLUSION
For the foregoing reasons, we affirm Culver's convictions and sentences.
AFFIRMED.
NOTES
[*] Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District of Georgia, sitting by designation.
[1] Sharon Brasuell and Brian Scott Culver were married when the events in question occurred, but they are now divorced. Sharon has remarried, and we refer to her by her present name in this opinion.
[2] Brasuell described the pill as white, but K.W. described the pill as brown. Brasuell testified that she dislodged the pill from the syringe and placed it in a Pamprin bottle that contained a number of white pills that were identical to the one in the syringe. The pills in the Pamprin bottle were later identified as zolpidem, commonly known as Ambien. Brasuell also testified that Culver admitted to preparing the syringe because he was bored.
[3] The government made no attempt to prove that the second segment of the tape is illegal child pornography.
[4] The reasoning of Maxwell II applies with equal force to § 2251(a). Indeed, we have previously upheld § 2251(a) against an as-applied Commerce Clause challenge. United States v. Smith, 459 F.3d 1276, 1284 (11th Cir.2006) ("Smith II").
[5] At trial, Culver did not raise the argument that he needed to present evidence of K.W.'s sexual history to rebut the government's evidence that the condoms were attributable to him. "A party not raising an argument below waives his right to raise it on appeal absent plain error." United States v. Sentovich, 677 F.2d 834, 837 (11th Cir.1982). However, because Culver did not waive his argument concerning the broken abstinence card, and our decision is not dependent on the applicable standard of review, we review both of Culver's Rule 412 arguments under the abuse of discretion standard.
[6] Although we conclude that the source of the condoms found under K.W.'s bed is irrelevant to the issue of identification, we note that the government presented strong evidence that Culver was the source of the condoms at issue. Sharon Brasuell testified that she saw the condoms under K.W.'s bed in a shaving kit that she recognized as Culver's, and K.W. testified that she saw the condoms in a clear box under the bed. Both Brasuell and K.W. testified that Culver collected a number of items from under K.W.'s bed and put them in his Jeep, and K.W. testified that she removed the clear box from the Jeep and hid it in the bushes. Upon discovering that some of the items had been removed from his Jeep, Culver told Brasuell, "that little bitch has got my stuff, I will kill her." (R. 135 at 668.)
[7] Culver argues that the government unfairly changed its position at trial in a manner that caused irreparable damage to his defense. At a pretrial hearing before a magistrate judge, the government indicated that the tape depicted only one female, but the government conceded at trial that K.W. could not identify herself in the second segment of the tape. The government's change in position merely reflected its candid assessment of what proof it could offer at trial based on the testimony that the government's witness would give.
[8] We note that pictures taken in 2007, approximately four years after the production of the tape, would have had little if any probative value in helping the jury to identify the female on the tape.
[9] Culver does not argue that the government did not meet its burden of proving the acquitted conduct by a preponderance of the evidence.
[10] The jury found Culver guilty of five counts of violating 18 U.S.C. § 2251(a). Each count carries a maximum sentence of 30 years. 18 U.S.C. § 2251(e). Culver's sentence did not exceed the statutory maximum on any single count. | 01-03-2023 | 04-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4224066/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH RAY HUNTER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia,
at Elkins. John Preston Bailey, District Judge. (2:05-cr-00049-JPB-JES-1)
Submitted: November 21, 2017 Decided: November 28, 2017
Before WYNN and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kenneth Ray Hunter, Appellant Pro Se. Stephen Donald Warner, Assistant United States
Attorney, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Ray Hunter appeals the district court’s order denying his motion for
reconsideration of the court’s prior order denying Hunter’s motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2) (2012), because Hunter was sentenced as a
career offender. We have reviewed the record and find no reversible error. See United
States v. May, 855 F.3d 271, 274 (4th Cir. 2017) (noting that prohibition on a district
court’s consideration of a motion to reconsider a § 3582 order is not jurisdictional and is
waived if not invoked by the government). Accordingly, we affirm the district court’s
order. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
2 | 01-03-2023 | 11-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2154600/ | 963 A.2d 560 (2008)
CICERO
v.
STEINBERG.
No. 198 WDA 2008.
Superior Court of Pennsylvania.
September 26, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1318045/ | 215 Ga. 314 (1959)
110 S.E.2d 370
ZUBER
v.
ZUBER.
20553.
Supreme Court of Georgia.
Submitted July 13, 1959.
Decided September 11, 1959.
*317 Marvin D. Pierce, Jr., for plaintiff in error.
C. O. Baker, contra.
MOBLEY, Justice.
The exception in this case is to the judgment of the Superior Court of Barrow County sustaining the general demurrer filed by the defendant, Mrs. Darline Wilson Zuber, to a petition brought by John D. Zuber, asking the court to declare invalid a judgment of that court of December 5, 1953, awarding permanent alimony to Mrs. Zuber in the sum of $65 per month, plus payments on a refrigerator and $100 per month for support of the son of the parties, and also asking to declare invalid a judgment of January 30, *315 1954, modifying the judgment of December 5, 1953, by reducing the amount for the son from $100 to $35 per month. Held:
1. The petition alleged that the judgment of December 5, 1953, was invalid because a divorce between the parties had been granted September 28, 1953, at which time the custody of the child was awarded to the mother, and the divorce decree contained this provision: "The court fixes alimony and support for the wife and children as follows: This matter is left open and jurisdiction is retained for the purpose of determining the same at a later date"; that, under the law as of that time, the judgment became final October 29, 1953, and could not thereafter be modified. This is neither the case of a modification of an award of permanent alimony, which was prohibited prior to the enactment of the 1955 act providing therefor (Ga. L. 1955, p. 630; Code, Ann., § 30-220), nor of an action instituted by the wife for permanent alimony after the divorce has become final. Rather, it is a case in which a jury trial was waived and in which the trial judge reserved the determination of permanent alimony until after the divorce itself had become final. It is firmly settled by decisions of this court that a wife cannot institute an action for alimony after having obtained a valid judgment of divorce from her husband. Joyner v. Joyner, 131 Ga. 217 (3) (62 S.E. 182, 18 L.R.A. (NS) 647, 127 Am. St. Rep. 220); Watson v. Watson, 168 Ga. 573 (1) (148 S.E. 386); Allen v. Baker, 188 Ga. 696 (2) (4 S.E.2d 642). Here, however, Mrs. Zuber instituted an action for permanent alimony before the divorce had become final; but the trial judge reserved a determination of the question of permanent alimony until after the divorce had become final. It was held in Boone v. Boone, 192 Ga. 579 (3) (15 S.E.2d 868), that, since the wife in that case had instituted her action for permanent alimony while the marital relation still existed, her husband's subsequent grant of a divorce would not serve to bar her right to alimony. "Jurisdiction of the subject-matter of a suit for permanent alimony depends on existence of the marital relation at the time the action is instituted." Durden v. Durden, 191 Ga. 404, 406 (2) (12 S.E.2d 305). "Alimony may be granted after a decree of divorce, if the right to have it subsequently determined is reserved therein, provided application therefor is made before the action has become stale." *316 27A C. J. S. 1024, § 231. This matter having been tried before the court without a jury, and the judge having, at the time the divorce was granted and custody awarded, reserved for future determination the question of alimony and support for the wife and child, he acted within his authority in entering the judgment of December 5, 1953, awarding alimony and properly sustained the general demurrer to this portion of the petition.
2. The petition further alleged that, on January 30, 1954, the trial court entered judgment modifying the judgment of December 5, 1953, by reducing the payments for support of the son from $100 to $35 per month, and prayed that this judgment be declared invalid. Prior to the enactment of the act approved March 9, 1955, as amended by the act approved February 26, 1957 (Ga. L. 1955, pp. 630-632; Ga. L. 1957, pp. 94-96; Code, Ann., §§ 30-220-30-225), and at the time the judgment of January 30, 1954, was entered, there could be no modification of an award of permanent alimony after the final divorce decree had been rendered, except in cases in which "(1) there was no jury trial as to permanent alimony and the question of permanent alimony was disposed of by agreement of the parties incorporated in the decree and made the judgment of the court; and (2) the power to change or modify the decree was reserved to the court by consent of the parties." Fricks v. Fricks, 215 Ga. 137, 138 (109 S.E.2d 596). See also Hardy v. Pennington, 187 Ga. 523 (1 S.E.2d 667); Banda v. Banda, 192 Ga. 5, 6 (1) (14 S.E.2d 479); Breen v. Breen, 208 Ga. 767 (1) (69 S.E.2d 572). Since it does not appear that the trial court retained jurisdiction under the conditions set forth above, the court was without jurisdiction to modify the award of alimony made December 5, 1953. "A judgment rendered by a court without jurisdiction is a mere nullity, and may be so held wherever and whenever and in whatever way it is sought to be used as a valid judgment." Towns v. Springer, 9 Ga. 130 (1). Accordingly, the court below erred in sustaining the general demurrer to that portion of the petition dealing with the judgment of January 30, 1954, which modified the original award of alimony.
Judgment affirmed in part and reversed in part. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/414799/ | 701 F.2d 171
*Millerv.Washington-St. Tammany Hosp.
82-3091
UNITED STATES COURT OF APPEALS Fifth Circuit
2/23/83
1
E.D.La.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a); 5th Cir. R. 18. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3039718/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1395
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Lonnie Ray Erickson, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 7, 2006
Filed: February 9, 2006
___________
Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Lonnie Ray Erickson appeals his conviction and sentence imposed by the
district court1--after United States v. Booker, 543 U.S. 220 (2005), under advisory
Guidelines--following Erickson’s guilty plea to maintaining a drug house. Erickson’s
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967); Erickson has filed a pro se supplemental brief; and the government has
moved to dismiss the appeal based on an appeal waiver.
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
We enforce the appeal waiver, because Erickson confirmed at the plea hearing
that his guilty plea was voluntary and knowing, the district court questioned Erickson
about the decision to enter the agreement and to waive his right to appeal the covered
issues, the arguments on appeal fall within the scope of the appeal waiver, and no
miscarriage of justice would result from enforcing the waiver. See United States v.
Andis, 333 F.3d 886, 889-91 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003).
Accordingly, we grant the government’s motion and dismiss this appeal. We
also grant defense counsel’s motion to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/436273/ | 735 F.2d 965
5 Soc.Sec.Rep.Ser. 308, Unempl.Ins.Rep. CCH 15,328Freeman TROUT, Plaintiff-Appellant,v.Margaret HECKLER, Secretary of Health and Human Services,Defendant-Appellee.
No. 83-5686.
United States Court of Appeals,Sixth Circuit.
Argued April 6, 1984.Decided May 21, 1984.
Lenny L. Croce (argued), Rural Legal Services of TN., Inc., Oak Ridge, Tenn., for plaintiff-appellant.
John W. Gill, Jr., U.S. Atty., J. Edgar Schmutzer, Asst. U.S. Atty. (argued), Knoxville, Tenn., for defendant-appellee.
Before EDWARDS and KENNEDY, Circuit Judges, and WEICK, Senior Circuit Judge.
PER CURIAM.
1
This social security disability claimant was found by the Administrative Law Judge to have an antisocial personality disorder, a history of depression "controlled," status post surgery for rectal prolapse,1 a history of ulcers and severe alcoholism. He apparently did not take into consideration appellant's 70 IQ. The ALJ concluded that Trout's combination of impairments is not sufficiently severe to prevent him from engaging in substantial gainful employment and the Appeals Council and the District Judge affirmed. We now reverse and remand for benefits.
2
Our examination of this record indicates to the panel majority that, excluding alcoholism from the combination of disabilities on which we rely for this judgment and including Trout's 70 IQ, his combination of disabilities is such as to prevent him from being able to perform substantial gainful employment. We do not ignore the seriousness of Trout's alcoholism and its impact on this record. We simply find it impossible to speculate as to whether his alcoholism is or is not subject to voluntary control by claimant since, in fact, the record supplies no guidance on this score. The combination of factual evidence found by the ALJ plus the undisputed fact that plaintiff has a 70 IQ renders him disabled from substantial gainful employment within the meaning of the Social Security Act. Allen v. Califano, 613 F.2d 139 (6th Cir.1980).
3
We remand for benefits.
4
CORNELIA G. KENNEDY, Circuit Judge, dissenting.
5
I find substantial evidence in the record to support the administrative decision and would affirm the District Court.
6
Trout's chronic alcoholism is the most significant of his conditions. Mr. Trout is now 48, and testified that he has abused alcohol for about eighteen years. He has spent much of this time since 1971 in the state penitentiary for a series of alcohol-related crimes such as drunk driving and burglary to support his drinking. While in prison he received psychological services and was treated with Elavil. He has also been treated at various times with Ativan, Cobalasine, Librium, and Valium. At his hearing he testified he had prescriptions for Antabuse, Tranxene, and Valium, but stated that he was not taking the medications because he cannot afford to buy them.
7
Trout was married in early September 1981, just after his most recent release from prison. He was then hospitalized for detoxification and treatment of impending delerium tremens (DT's) on September 25, 1981. The DT's did not materialize. He asked to be discharged on September 28, 1981, saying that he felt better. He was discharged on Ativan and was urged to join Alcoholics Anonymous and to present himself for treatment at a mental health center.
8
Trout was examined in December 1981 by Dr. Charles Dowdy at the request of the Disability Determinations Section. Dr. Dowdy stated: "As far as I could learn, [Trout] has made no genuine effort to control his drinking."
9
Sometime after January 12, 1982, Trout sought counseling for his drinking problem from Dr. Lance Laurence, a clinical psychologist. Trout had earlier gone to Dr. Laurence in September 1981 just before his hospitalization, but failed to appear later for follow-up appointments with a drug and alcohol coordinator and a medical doctor.1
10
Trout was hospitalized again from February 24, 1982 to April 15, 1982. At that time he was taking ten milligrams per day of Valium, and his treatment included gradual withdrawal from the drug. According to the treating physician, Dr. Alfred Bennett, Trout resisted the treatment. Dr. Bennett further wrote:
11
He was unwilling to stay until his regular discharge date. He had been requesting a regular discharge since entering his group therapy alleging that his alcohol problem is under control. He does not like being confined since he just got out of prison. * * * The subject refused to stay and was given an irregular discharge. He was discharged on a regular diet, ambulatory, competent, able to resume his prehospital employment status, on no medications.
12
Dr. Laurence, Mr. Trout's counselor, stated in July 1982 that though Trout's problems were of a long-standing nature requiring years of treatment, the situation was at that time somewhat better than it had been in the past.
13
Dr. Riley Senter, who examined Trout in November 1982 at the request of the Disability Determinations Section, found:
14
[H]is present education [through the eighth grade], IQ and continued abuse of alcohol would make him unfit for any regular job, sedentary or involving moderate to heavy amounts of labor. I strongly feel, therefore, that he needs extensive rehabilitation from alcohol abuse before employment could be attempted. I, therefore, feel that he is totally disabled from any and all occupations....
15
None of the physicians who have examined Trout have found any evidence of end organ damage as a result of his drinking.
16
According to Trout's testimony, his drinking is cyclic. He will remain sober for two or three weeks, and then drink heavily for five or six days. He testified that in the past he has stayed drunk for periods of up to three months. He stated that he is better when he is taking medication. He testified that he continues to attend counseling sessions.
17
It is clear that Mr. Trout has a serious drinking problem, which at this time precludes him from holding a job. Alcoholism, either alone or combined with other causes, can constitute a disability if it prevents a claimant from engaging in substantial gainful activity. Ferguson v. Schweiker, 641 F.2d 243 (5th Cir.1981). However, 20 C.F.R. Sec. 404.1530(a) provides that in order to receive benefits, a claimant must follow treatment prescribed by his physician if the treatment can restore the ability to work. The ALJ found that there is "no evidence of a serious effort on [Trout's] part to control his alcoholism and to comply with prescribed treatment."
18
Trout also bases his claim of disablement on his rectal prolapse, anti-social personality, and borderline retardation.
19
Trout had surgery for rectal prolapse in 1979. The medical records show that his postoperative course was uneventful, and that he was having normal stools without prolapse by the time he left the hospital AWOL. Dr. Senter's examination in November of 1982 found "absolutely no recurrence of [Trout's] rectal prolapse and good rectal support and healing." Trout testified that he cannot lift more than ten pounds or sit for more than 35 to 40 minutes due to his rectal condition.
20
With respect to Trout's anti-social personality behavior, the physicians and psychologists who have examined Trout have found him to have a sociopathic personality and anxiety neurosis, but none has diagnosed a psychotic disorder. The record shows that Trout has normal cognitive perception and is capable of understanding instructions and carrying out tasks under his own direction.
21
Dr. Dowdy administered a full scale IQ test in December 1981 which measured Trout's IQ at 70. Dr. Dowdy's evaluation was that Trout has "borderline mental retardation." An IQ of 69 in some cases meets a listed impairment if accompanied by another mental or physical impairment.2 Mr. Trout, however, has been gainfully employed in the past, and this undercuts his claim that he is disabled by virtue of his IQ.
22
Accordingly, I would affirm the District Court.
1
Rectal prolapse, our panel was informed, involved the surgical insertion of a mesh to prevent his lower bowel from being extended from his anus. It is undisputed that this device prevents his bending or stooping
1
Trout and his wife have also consulted with Dr. Laurence for family counseling
2
20 C.F.R. Part 404, Subpart P, Appendix 1, 12.05(C) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2247842/ | 97 F.Supp. 578 (1951)
HOWARD
v.
CAPITAL TRANSIT CO.
Civ. A. No. 3293-48.
United States District Court District of Columbia.
May 17, 1951.
James F. Reilly, Eugene B. Sullivan, Washington, D. C., for plaintiff.
George D. Horning, Jr., Washington, D. C., for defendant.
*579 PINE, Judge.
Edward T. Howard was run over by a bus operated by defendant, and died almost instantly, without regaining consciousness. Plaintiff, as administratrix of his estate, sued for damages, claiming his death was caused by wrongful act of defendant. Sec. 16-1201, D.C.Code 1940. The jury returned a verdict for plaintiff.
Defendant has moved for judgment n. o. v., or, in the alternative, for a new trial under Rule 50(b), Fed.Rules Civ.Proc. 28 U.S.C.A. In its combined motion it sets forth as grounds therefor the alleged insufficiency of the evidence to support the verdict and the improper admission of evidence.
In considering a motion for judgment n. o. v., the Court must construe the evidence most favorably to the plaintiff and give the plaintiff the full effect of every legitimate inference therefrom. If, upon the evidence so construed, reasonable men might differ, the motion should be denied. On the other hand, if no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted.[1]
The three essential elements of plaintiff's claim as submitted to the jury were: (1) that decedent was a paid passenger; (2) that defendant was negligent in that its driver started the bus before decedent had safely alighted from the rear door thereof; and (3) that such negligence proximately caused decedent's clothes or some portion of his body to be caught within the doors of the bus and decedent to be dragged or thrown under the bus.
Upon consideration of the testimony of the witness Gates in respect of what she saw before and after alighting from the bus, and the testimony of the witnesses in respect of decedent's clothing, the possession by him of a weekly pass purchased for use on defendant's buses, the time he left his place of employment and his activities immediately thereafter, the time he met his death, and the time required to travel by bus from the place of his employment to the place of death, I reach the conclusion that, under the standard above set forth, there is not such an insufficiency of evidence on any of the three elements of plaintiff's claim as would justify the granting of the motion for judgment n. o. v., and accordingly the same is denied.
During the trial there was admitted evidence of defendant's schedules of its buses on the night in question on routes from a point near decedent's place of employment to a point near his home, and evidence that decedent possessed the weekly pass. This evidence was admitted as circumstantial evidence having probative value respecting one of the issues, namely whether defendant was a passenger on the bus. In view of the fact that decedent's lips were sealed and there were no witnesses who could positively identify him as having been a passenger, this evidence was logically relevant and material, and I am aware of no exclusionary rule requiring its rejection. Assuming, arguendo, that this and other evidence had the effect of showing the habit or custom of deceased in using defendant's buses to return home from his place of employment, there is convincing authority for its admissibility for such purposes,[2] and I am of the opinion that it was not error to admit it, as claimed by defendant in its motion.
Finally, as I view the case in its entirety, the verdict is not so contrary to the clear *580 weight of the evidence as to justify a new trial. The only eyewitness to the accident itself was the witness Gates, who testified that she saw "a man caught in the door of the bus," as it started to move, and gave further elaboration thereon. On this point defendant places its reliance on the testimony that the doors were not shown to be in a state of disrepair, and claims that, absent such a condition, the accident could not have happened as alleged. In other words, defendant claims that the mechanical devices were infallible, assuming good repair. However, a demonstration of the operation of the doors of the bus during the trial, on motion of defendant over opposition by plaintiff, disclosed that certain parts of the rubber edges were less sensitive than others, that the rubber edges could be subjected to considerable lateral pressure before the mechanism was activated, and that when the air pressure was lowered as the result of continued use, the doors would not operate properly.
Accordingly the motion for new trial will likewise be denied.
Counsel will submit appropriate order.
NOTES
[1] Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 143 F.2d 142; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380.
[2] Barbour v. Moore, 10 App.D.C. 30, 53; Commercial Standard Insurance Co. v. Gordon's Transports, 6 Cir., 154 F.2d 390, 394; Security Mutual Life Insurance Co. v. Kleutsch, 8 Cir., 169 F. 104, 105; Chitwood v. U. S., 8 Cir., 153 F. 551, 552; 1 Wigmore, Evidence, Sec. 92, 93, note 1, 375 et seq. Thompson v. Bowie, 4 Wall. 463, 71 U.S. 463, 18 L. Ed. 423, Id., 6 D.C. 91, an earlier case, criticized in Wigmore, Evidence, Sec. 96, note 1, is distinguishable. Small v. Pennsylvania R. Co., 65 App.D.C. 112, 115, 80 F.2d 704, is likewise distinguishable in that it applies to the inadmissibility of prior acts on the issue of negligence. Compare District of Columbia v. Duryee, 29 App.D.C. 327, 330. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023683/ | PRESIDING JUSTICE HEIPLE delivered the opinion of the court: The defendant, Richard Kunce, was charged with failing to notify the coroner of a death subject to investigation. (Ill. Rev. Stat. 1987, ch. 31, par. 10.6.) The trial court subsequently granted his motion to dismiss the charge, finding that it was barred by the applicable statute of limitations. The State appeals. The record shows that on May 12, 1979, Carole Stevens’ husband died. Carole thereafter kept her husband’s body in a bedroom, apparently believing that despite numerous signs of death he was merely in a coma. In May of 1980, the defendant first visited Carole’s house and at that time saw her husband’s body. Between then and September of 1986, he visited on a number of occasions, often seeing the body. In September of 1986, the defendant moved into Carole’s house as a guest. The evidence was uncontradicted, however, that at no time did he exercise any control or custody over the body. In fact, he never even made any suggestions relating to it. On January 29, 1988, the police removed the body from the house. The trial court found that the 18-month statute of limitations had expired prior to the filing of the charge against the defendant. The State argues on appeal that the failure to report a death is a continuing offense for which the statute of limitations did not begin running until the State discovered the body. We note that the issue before this court is the correctness of the trial court's ruling, not of its reasoning. (People v. Tobe (1971), 49 Ill. 2d 538, 276 N.E.2d 294.) With that in mind, we find that we need not reach the question of whether the statute of limitations ran, because it is clear that the defendant was not within the class of persons subject to prosecution for failing to notify the coroner of a death subject to investigation. The statute under which the defendant was charged provides: “Every law enforcement official, funeral director, ambulance attendant, hospital director or administrator or person having custody of the body of a deceased person, where the death is one subject to investigation under Section 10 of this Act, and any physician in attendance upon such a decedent at the time of his death, shall notify the coroner promptly. Any such person failing to so notify the coroner promptly shall be guilty of a Class A misdemeanor, unless such person has reasonable cause to believe that the coroner had already been so notified.” Ill. Rev. Stat. 1987, ch. 31, par. 10.6. The unrebutted evidence showed that the defendant was not a law enforcement official, funeral director, ambulance attendant, hospital director or administrator, or physician attending the deceased. Further, all of the evidence showed that he did not have custody of the body. Under these circumstances, we find that the defendant was not legally obligated to report the death and therefore the trial court correctly dismissed the charge against him. The judgment of the circuit court of Knox County is affirmed. Affirmed. BARRY and SCOTT, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2543780/ | 51 So.3d 470 (2011)
RANGEL
v.
TORRES.
No. 3D10-2984.
District Court of Appeal of Florida, Third District.
January 7, 2011.
DECISION WITHOUT PUBLISHED OPINION
Prohibition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/414783/ | 701 F.2d 170
Westmorelandv.Columbia Broadcasting System, Inc.
82-2067
UNITED STATES COURT OF APPEALS Fourth Circuit
12/7/82
1
D.S.C.
DISMISSED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3091610/ | DISMISS; and Opinion Filed October 22, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00480-CV
CITY OF CELINA, Appellant
V.
LEWIS DICKERSON & DOROTHY STAMBAUGH, Appellee
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-02766-2010
MEMORANDUM OPINION
Before Justices O’Neill, Lang-Miers, and Evans
Opinion by Justice O’Neill
In this interlocutory appeal, the City of Celina appeals an order denying its plea to the
jurisdiction. In two issues, the City contends the trial court erred in denying the plea because
appellees Lewis Dickerson and Dorothy Stambaugh (landowners) did not plead a valid takings
claim. For the following reasons, we reverse the trial court’s order and dismiss this cause for
want of jurisdiction.
The City entered into an Interlocal Agreement with the Celina Independent School
District in which the City agreed to secure easements to allow the School District to construct a
sewer line to its new high school. The City and landowners subsequently entered into an
easement agreement in which landowners granted the City an easement to be used for sewer
purposes. As part of its consideration, the City agreed to provide landowners with a sewer
connection, and waive connection and impact fees. The agreement also provided several
provisions identified as “Further Consideration.” Amongst them was the provision, “Top soil
shall be excavated to a depth of one foot in the construction area, then removed before the sewer
installation commences, and then replaced, backfilled, and compacted after the sanitary sewer
main is installed.” According to landowners, the City breached this provision because after the
main line was installed, the original top soil was not replaced and other inferior soil was used
instead.
Landowners sued the City for inverse condemnation based on the City’s taking of the
easement. To support its claim, landowners alleged that although they had granted a voluntary
easement, as a “condition” to the grant of the easement, the City “stipulated” that it would return
the original top soil after the sewer line was installed. Landowners complained that the City’s
breach of this provision rendered the easement void and, therefore, the City’s occupation of the
easement and damage to its property constituted a taking.
The City filed a plea to the jurisdiction contending landowners failed to plead a valid
takings claim. In its plea, the City asserted landowners had no takings claim because they had
voluntarily granted the easement and their complaint regarding top soil was merely a complaint
for breach of contract. The trial court denied the City’s plea to the jurisdiction. The City
appeals.
Governmental immunity defeats a trial court’s subject matter jurisdiction and therefore is
properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 227 (Tex. 2004); Town of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex. App.—
Dallas 2008, no pet.). Governmental immunity does not however shield the government from
claims based on unconstitutional takings of property. Tex. Parks & Wildlife Dept. v. Sawyer
Trust, 354 S.W.3d 384, 390 (Tex. 2011). But in the absence of a properly pled takings claim, the
–2–
government retains immunity. Hearts Bluff Game Ranch v. State, 381 S.W.3d 468, 476 (Tex.
2012). Whether the government’s actions are sufficient to constitute a taking is a question of
law. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). In
reviewing a grant or denial of a plea to the jurisdiction, we determine whether the plaintiff's
pleadings, construed in favor of the plaintiff, allege sufficient facts affirmatively demonstrating
the court's jurisdiction to hear the case. Hearts Bluff Game Ranch, 381 S.W.3d at 476. If
evidence central to the jurisdictional issue is submitted, it should be considered in ruling on the
plea to the jurisdiction. Id. To establish a takings claim, the claimant must seek compensation
because the defendant intentionally performed actions that resulted in taking, damaging, or
destroying property for public use without the owner’s consent. Sawyer Trust, 354 S.W.3d at
390-91.
Landowners petition on its face shows they voluntarily granted the easement to the City.
Landowners nevertheless assert the City’s failure to perform a “condition subsequent” rendered
the easement void. They rely on the City’s alleged failure to replace the original top soil.
It is well-settled that conditions that have the effect of preventing title from vesting or
that work a forfeiture of title that has already vested are not favored. West v. Thomas, 441
S.W.2d 209, 211 (Tex. Civ. App.—Houston [1st Dist] 1969, no writ); see also Hearne v.
Bradshaw, 312 S.W.2d 948, 951 (Tex. 1958). Therefore, a promise or obligation of the grantee
will be construed as a covenant unless an intention to create a conditional estate is “clearly and
unequivocally revealed by the language of the instrument.” Hearne, 312 S.W.2d at 951; Sewell
v. Dallas Indep. Sch. Dist., 727 S.W.2d 586, 589 (Tex. App.—Dallas 1987, writ ref’d n.r.e.).
Here, landowners have wholly failed to direct this court to any language whatsoever in the
Easement Agreement establishing the top soil provision was intended to operate as a condition
subsequent instead of a covenant. Further, the cases landowners rely on for the proposition that
–3–
the top soil provision was a condition subsequent resulting in forfeiture of the easement are
readily distinguishable. See City of Dallas v. Etheredge, 152 Tex. 9, 253 S.W.2d 640, 642 (Tex.
1952) (conveyance expressly stated it was granted “upon . . . “conditions” and violation of the
provisions would “terminate” the grant at grantor’s option); City of Cibolo v. Koehler, No.04-11-
00209-CV, 2011 WL 5869683, *2 (Tex. App.—San Antonio 2011, no pet.) (easement agreement
expressly stated that if City violated provision, the agreement would be deemed “null and void”);
see also El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798, 799 (Tex. 2013)
(express language in deed provided conveyance was “subject to” restriction and grantor was
granted right to repurchase if restriction violated).
We have carefully reviewed the Easement Agreement. Having done so, there is no
language in the agreement indicating the top soil provision was a condition subsequent.
Specifically, there is no conditional language in the grant with respect to the top soil provision.
See Calce v. Dorado Exploration, Inc., 309 S.W.3d 719, 742 (Tex. App.—Dallas 2010, no pet.)
(terms such as “if,” “provided that,” “on condition that,” connote an intent for a condition). Nor
is there any language in the agreement that breach of the top soil provision would result in
termination or reversion of the easement or render the easement void. This is particularly
significant because the Easement Agreement did contain a reverter provision in the event the
easement was no longer used for sewer purposes. We conclude that the requirement that the City
return the top soil was not a condition subsequent. Because landowners’ takings claim was
premised on their assertion that breach of a condition subsequent voided the easement, the trial
court erred in denying the City’s plea to the jurisdiction.
–4–
We reverse the trial court’s order and dismiss this cause for want of jurisdiction.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
130480F.P05
–5–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF CELINA, Appellant On Appeal from the 429th Judicial District
Court, Collin County, Texas
No. 05-13-00480-CV V. Trial Court Cause No. 429-02766-2010.
Opinion delivered by Justice O’Neill.
LEWIS DICKERSON & DOROTHY Justices Lang-Miers and Evans participating.
STAMBAUGH, Appellees
In accordance with this Court’s opinion of this date, this cause is DISMISSED for want
of jurisdiction.
It is ORDERED that appellant CITY OF CELINA recover its costs of this appeal from
appellees LEWIS DICKERSON & DOROTHY STAMBAUGH.
Judgment entered this 22nd day of October, 2013.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
–6– | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1318074/ | 525 F.3d 648 (2008)
UNITED STATES of America, Appellee,
v.
Vincent Sharnee JOHNSON, Appellant.
No. 08-1779.
United States Court of Appeals, Eighth Circuit.
Submitted: April 10, 2008.
Filed: May 13, 2008.
Charles Daniel Hancock, Little Rock, AR, for appellant.
Linda B. Lipe, Asst. U.S. Attorney, Little Rock, AR, for appellee.
Before BENTON, ARNOLD, and SHEPHERD, Circuit Judges.
PER CURIAM.
The Appellant, Vincent Sharnee Johnson, appeals the district court's[1] denial of his motion that his appointed counsel be relieved and that substitute counsel be appointed. We dismiss the appeal for lack of jurisdiction.
Johnson was indicted on charges of armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) and using, carrying, and brandishing a handgun during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) and is awaiting trial. Johnson was found to be indigent, and the Federal Public Defender was originally appointed to represent him. Subsequently, the Federal Public Defender was permitted to withdraw, and a private attorney was substituted. On January 30, 2007, Johnson filed a motion asking that his appointed counsel be relieved and that substitute counsel be appointed. The motion was denied. Johnson filed a second *649 motion seeking substitution of counsel. The district court also denied this motion, and Johnson now appeals that dismissal.
Our jurisdiction is restricted to appeals from "final decisions of the district courts...." 28 U.S.C. § 1291. In order to be immediately appealable, a collateral order "must conclusively determine the disputed question; ... resolve an important issue completely separate from the merits of the action; ... [and] be effectively unreviewable on appeal from a final judgment." Flanagan v. United States, 465 U.S. 259, 265, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978)); Will v. Hallock, 546 U.S. 345, 349, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006) ("[T]he collateral order doctrine accommodates a small class of rulings, not concluding the litigation, but conclusively resolving claims of right separable from, and collateral to, rights asserted in the action," and which are "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." (internal citations and quotations omitted)). As the order denying substitution of appointed counsel is subject to reconsideration by the district court as the prosecution proceeds, and is effectively reviewable on appeal after final judgment, at least two of the three requirements for appealability are not satisfied. See United States v. Celani, 748 F.2d 363, 365 (7th Cir.1984) ("An order denying the appointment of counsel fails both the first and third prongs of the Coopers test."); but cf. Slaughter v. City of Maplewood, 731 F.2d 587, 588-89 (8th Cir.1984) (holding that an order denying appointment of counsel in a Civil Rights Act case is immediately appealable). Accordingly, an order denying the appointment or substitution of counsel in the criminal context is not immediately appealable.
In view of the foregoing, we dismiss this appeal for lack of jurisdiction.
NOTES
[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/414839/ | 701 F.2d 174
Andersonv.Secretary of Health & Human Services
80-1251
UNITED STATES COURT OF APPEALS Sixth Circuit
3/10/82
1
E.D.Mich.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/560767/ | 932 F.2d 961
Spiegel (Lawrence D.)v.Yeager (Faye), Rayner (Lydia); Rayner (Lydia)
NO. 90-5532
United States Court of Appeals,Third Circuit.
APR 08, 1991
1
Appeal From: D.N.J.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/590461/ | 974 F.2d 1332
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Enrique Alfonso GAYLE, a/k/a Kiki, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Lino H. HAYNES, a/k/a Loni Haynes, a/k/a Nino, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Roberto SPALDING, a/k/a Pepito, a/k/a Pops, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Cleveland MCLEAN, JR., a/k/a Junior, a/k/a June, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Franklyn Earl BANNERMAN, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Timothy Steven BOYD, a/k/a Tim, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Carol RICHARDSON, a/k/a Carol Ann Preston, a/k/a SharonThomas, a/k/a Lakeisha Perry, a/k/a LakeishaKnight, Defendant-Appellant.
Nos. 91-5788, 91-5796, 91-5797, 91-5798, 91-5799, 91-5800, 91-5801.
United States Court of Appeals,Fourth Circuit.
Argued: May 7, 1992Decided: September 2, 1992
Christopher P. Shema, TOLERTON & BROWN, P.C., Norfolk, Virginia; William B. Moffitt, MOFFITT, ZWERLING & KEMLER, P.C., Alexandria, Virginia, for Appellants.
Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Lisa B. Kemler, MOFFITT, ZWERLING & KEMLER, P.C., Alexandria, Virginia, for Appellant Spalding; James O. Broccoletti, ZOBY & BROCCOLETTI, Norfolk, Virginia, for Appellant Gayle; Rodolfo Cejas, II, Norfolk, Virginia, for Appellant Haynes; Robert LaPointe Bohannon, BOHANNON, BOHANNON & HANCOCK, Norfolk, Virginia, for Appellant McLean; W. Thurston Harville, Woodrow Lewis, Jr., COOK & MCCRACKEN, Norfolk, Virginia, for Appellants Boyd and Richardson.
Richard Cullen, United States Attorney, Norfolk, Virginia, for Appellee.
Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.
PER CURIAM:
OPINION
1
Enrique Alfonso Gayle, Lino H. Haynes, Roberto Spalding, Cleveland McLean, Jr., Franklyn Earl Bannerman, Timothy Steven Boyd, and Carol Richardson appeal their convictions of various offenses and their resulting sentences arising from a conspiracy to import cocaine from the Republic of Panama. Although Defendants raise a myriad of errors, they principally argue that the district court erred in limiting the scope of cross-examination of Government witness Sophia Tucker and in including amounts of cocaine charged in counts of which they were acquitted in calculating their base offense levels for sentencing. Additionally, Bannerman contends that the trial court erroneously refused to permit his attorney to withdraw from representation after an alleged conflict of interest developed between Bannerman and another client whom his attorney was representing on appeal during the same period.
2
We conclude that the district court did not abuse its discretion in limiting cross-examination of Tucker nor were Defendants deprived of their Sixth Amendment right of confrontation by this limitation. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about ... confusion of the issues ... or interrogation that is repetitive or only marginally relevant."). The proffer of crossexamination presented by the defense amply demonstrates the questionable relevance of and the potential for confusion engendered by the proposed questioning. See J.A. 3191 201. Moreover, any error committed by the trial court in limiting cross-examination of Tucker was harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 680-84. We also hold that neither Defendants' rights to due process of law nor their constitutional protection against double jeopardy, see U.S. Const. amend. V, was violated by the inclusion of amounts of cocaine from acquitted counts to calculate the amount of cocaine for which Defendants should be held accountable for sentencing purposes. Here, the district court made a specific finding based on the preponderance of the evidence concerning the quantity of cocaine for which each Defendant was responsible. See United States v. Romulus, 949 F.2d 713, 716-17 (4th Cir. 1991), cert. denied, 112 S. Ct. 1690 (1992); United States v. Morgan, 942 F.2d 243, 246 (4th Cir. 1991). Lastly, we find that the lower court did not err in declining to permit Bannerman's counsel to withdraw from representation because Bannerman failed to demonstrate the existence of an actual conflict adversely affecting counsel's representation of him. See Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980); United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991).
3
Defendants' remaining allegations of error are patently meritless, and, accordingly, we affirm.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1054521/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 10, 2006
STATE OF TENNESSEE v. CRYSTAL ANTONETTE DELANEY
Appeal from the Circuit Court for Fayette County
No. 5626 J. Weber McCraw, Judge
No. W2005-01459-CCA-R3-CD - Filed May 5, 2006
Pursuant to an open plea agreement, as provided by Tenn. R. Crim. P. 11(e)(1)(B), the Appellant,
Crystal Antonette Delaney, aka Crystal Ward, pled guilty to identity theft, a Class D felony, and theft
of property, a Class C felony. Following the guilty plea hearing, the Fayette County Circuit Court
sentenced Delaney, as a Range III persistent offender, to ten years for the identify theft and twelve
years for the theft of property. The court further ordered that the two sentences were to be served
concurrently to each other but consecutively to an effective twelve-year sentence imposed in a
separate Lauderdale County case. On appeal, Delaney contends that the trial court failed to properly
consider and follow the sentencing guidelines and raises the following issues for our review: (1)
whether the sentences imposed are excessive; and (2) whether the court erred in ordering that the
sentences be served consecutively to her Lauderdale County sentence. Because the trial court failed
to conduct a sentencing hearing as contemplated by our sentencing statutes, the record contains no
findings of fact with regard to sentencing enhancement factors or the trial court’s reasons for
imposing consecutive sentences. As such, we are unable to conduct a de novo review of the
sentences imposed and, accordingly, remand the case to the Fayette County Circuit Court for a
sentencing hearing and for written findings of fact and imposition of sentences in accordance with
statutory law.
Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded
DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ., joined.
Shana McCoy Johnson, Senior Assistant Public Defender, Somerville, Tennessee, for the Appellant,
Crystal Antonette Delaney.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Terry D. Dycus, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
Procedural History
On May 5, 2005, the Appellant was charged by Criminal Information with one count of
identify theft and one count of theft of property greater than $10,000 but less than $60,000. On June
1, 2005, the Appellant entered an open guilty plea to the charged offenses, leaving all sentencing
determinations for the trial court. At the guilty plea hearing, the State gave the following recitation
of the facts of the case:
. . . [O]n November 24, 2004, [the Appellant] went to Jim Keras Chevrolet
dealership there in Fayette County and in an attempt to purchase a 2005 Pontiac G6
that was valued at over $31,000.00 filled out a GM credit report and was very
successful in having that go through. All of the information on the report was
accurate except for the social security number which came back to a black male, but
the social security number was what GM Credit used to authorize the release of the
vehicle.
....
Count Two is the theft over $10,000 of the vehicle. After executing the
security agreement she was allowed to leave with the vehicle and kept it for some
time until it was later found after she had been apprehended. I believe this incident
occurred on November 24, 2004 and I believe the vehicle was not recovered until
March 22, 2005.
Following the acceptance of the guilty pleas, the trial court promptly sentenced the Appellant,
as a Range III persistent offender, to concurrent sentences of ten years for identity theft and to twelve
years for theft of property. The court further ordered that the sentences were to be served
consecutively to sentences previously imposed in case numbers 7714 and 7715 in Lauderdale
County. This appeal followed.
Analysis
On appeal, the Appellant challenges the imposition of her sentences by the Fayette County
Circuit Court. Specifically, she asserts that the trial court failed to make specific findings that would
indicate the court properly considered and followed the sentencing guidelines and requirements. She
further argues that the record does not support either the length of the sentences or the imposition
of consecutive sentencing.
Tennessee Code Annotated section 40-35-203(a) (2003) provides in pertinent part that:
-2-
“[u]pon a verdict or plea of guilty, the court shall set and conduct a sentencing
hearing . . . . Evidence may, but need not, be presented by both the defendant and the
district attorney general on any matter relevant to the issue of sentencing. The
sentencing hearing may occur immediately after guilt is determined . . . .”
In reaching its sentencing decision, the court is to consider: (a) the evidence, if any, received at trial
and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments
as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
any statutory mitigating or enhancement factors; (f) any statement that the Appellant made on his
own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. T.C.A. §§ 40-
35-102, -103, -210 (2003); State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The court is required
to place on the record, either orally or in writing, what enhancement or mitigating factors it found,
if any, as well as findings of fact as required by section 40-35-209. T.C.A. § 40-35-210(e).
Moreover, when ordering consecutive sentencing, the court is required to consider section 40-35-115
and Tenn. R. Crim. P. 32(c). Rule 32(c)(1) provides, “If the court orders that the sentences be served
consecutively or concurrently, the order shall specifically recite the reasons for such ruling and such
judgment is reviewable on appeal.”
When an accused challenges the length, range, or manner of service of a sentence, 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. T.C.A. § 40-35-401(d) (2003); Ashby, 823 S.W.2d at 169.
However, this presumption is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” Ashby, 823
S.W.2d at 169. Furthermore, we emphasize that facts relevant to sentencing must be established
by a preponderance of the evidence and not beyond a reasonable doubt. State v. Winfield, 23 S.W.3d
279, 283 (Tenn. 2000).
In this case, the Appellant clearly entered into an open plea agreement as provided by Tenn.
R. Crim. P. 11(e)(1)(B), whereby all sentencing decisions were to be determined by the trial court.
Immediately following entry of the pleas of guilty, the prosecutor advised the trial court that the State
was requesting that the Appellant be sentenced as a Range III persistent offender, for both sentences,
that the Appellant pay restitution of $540.00, that the State was not opposing concurrent sentences
for the two instant convictions, and that the State had no recommendation regarding consecutive
sentencing.1 Defense counsel made no objections to the lack of proof regarding any of the
sentencing issues submitted, other than requesting that all sentences, including any outstanding
sentences, run concurrently.
Apparently, based upon the State’s recommendations, the trial court, after inquiring if there
was “[A]nything further with regard to sentencing,” pronounced:
1
The prosecutor announced that a presentence report was filed; however, the trial judge remarked, “I don’t
believe I have one,” before imposing the challenged sentences.
-3-
On Count One, you will be sentenced to ten years at 45 percent with the
Department of Corrections: on Count Two, it will be 12 years at 45 percent, also with
the Department of Corrections. The Court will allow these two to be concurrent with
each other; however, I don’t see why this should run concurrent with the prior
convictions. Be $540.00 restitution to Jim Keras, plus costs.
Clearly, the trial court failed to address any sentencing considerations, particularly its reason
for enhancing both sentence lengths beyond the statutory minimum and its basis for imposing
consecutive sentences under the provisions of Tennessee Code Annotated section 40-35-115. As
noted, the record of a sentencing hearing “shall include specific findings of fact upon which
application of the sentencing principles was based.” T.C.A. § 40-35-209(c) (2003). Under the 1989
Sentencing Act, it is incumbent upon the trial court to specify which enhancement factors apply to
each sentence, and a failure to do so will often result in a remand. State v. James E. Winston, No.
01C01-9302-CR-00069 (Tenn. Crim. App. at Nashville, July 28, 1994). The purpose of recording
the court’s reasoning is to guarantee the preparation of a proper record for appellate review. State
v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).
The lack of evidence and the absence of findings serve to preclude our statutorily mandated
de novo review of the sentences imposed, as there is nothing before us to review. De novo review
of a sentence contemplates an independent examination in the same manner and of the same facts
in which the matter was originally heard. See BLACK’S LAW DICTIONARY 435 (6th ed. 1990). The
reviewing court essentially rehears the evidence and redecides the case. It is the responsibility of the
trial court, who is in the best position to observe the defendant’s demeanor and candor, to make all
initial sentencing determinations. Accordingly, remand is necessary in this case.
CONCLUSION
Based upon the foregoing, the sentences imposed by the Fayette County Circuit Court are
vacated, and the case is remanded for a sentencing hearing and for entry of written findings of fact
consistent with this opinion.
___________________________________
DAVID G. HAYES, JUDGE
-4- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3039720/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3348
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Joshua Lee Philpott, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 13, 2006
Filed: February 9, 2006
___________
Before SMITH and HANSEN, Circuit Judges, and BOGUE,1 District Judge.
___________
PER CURIAM.
Joshua Lee Philpott (Philpott) entered a conditional guilty plea to a charge of
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2).
The district court2 sentenced Philpott to 37 months’ imprisonment and 3 years’
supervised release. Philpott appeals, arguing the district court erred in denying his
motion to suppress evidence seized when Philpott was arrested.
1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
2
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
Officers obtained a state search warrant authorizing a search for marijuana and
methamphetamine at an apartment in Fort Smith, Arkansas. The affidavit in support
of the search warrant application stated the officers received information from a
reliable confidential informant that Philpott and others were present in the apartment.
The affidavit stated that the confidential informant had provided reliable information
in the past that had resulted in one felony arrest and two misdemeanor arrests. The
affidavit stated the confidential informant provided information against his own penal
interest, and that the confidential informant was familiar with drugs through his
personal use. The affidavit also stated the confidential informant had seen six to ten
pounds of marijuana in the apartment and four ounces of methamphetamine in
Philpott’s possession. An officer surveilling the apartment saw Philpott arrive at and
go into the apartment, then leave the apartment carrying a backpack. Officers then
executed the warrant, seizing three duffel bags with marijuana residue from the
apartment. Officers also found three documents bearing Philpott’s name in Philpott’s
worn clothing on a bedroom floor.
During the search, Philpott returned to the apartment complex. An officer went
down to the parking lot and directed Philpott to place his hands on the steering wheel
of his vehicle. Philpott refused to comply. The officer then directed Philpott to exit
the vehicle. When Philpott began to exit, the officer saw the butt of a handgun under
Philpott’s thigh. Philpott was taken to the ground and handcuffed. A search of
Philpott uncovered a small amount of ecstacy. A search of the vehicle revealed
another gun in the front seat.
After he was indicted, Philpott moved to suppress the evidence seized, arguing
the officers lacked probable cause to arrest him. The magistrate judge3 recommended
the district court deny Philpott’s motion, finding the officers had probable cause to
3
The Honorable Beverly Stites Jones, United States Magistrate Judge for the
Western District of Arkansas.
-2-
arrest Philpott. The district court adopted the magistrate judge’s report and
recommendation in its entirety and denied Philpott’s motion to suppress.
On appeal, Philpott argues the district court erred in denying his motion to
suppress, claiming the officers lacked probable cause to arrest him. “We will affirm
a district court’s order denying a defendant’s motion to suppress unless the decision
is unsupported by substantial evidence, is based on an erroneous view of the
applicable law, or in light of the entire record, we are left with a firm and definite
conviction that a mistake has been made.” United States v. Hines, 387 F.3d 690, 694
(8th Cir. 2004) (internal citations and quotations omitted). “We review the district
court’s factual findings for clear error and review de novo the ultimate question of
whether there was a Fourth Amendment violation.” Id. “Probable cause to conduct
a warrantless arrest exists when at the moment of arrest police have knowledge of
facts and circumstances grounded in reasonably trustworthy information sufficient to
warrant a belief by a prudent person that an offense has been or is being committed
by the person to be arrested.” United States v. Hartje, 251 F.3d 771, 775 (8th Cir.
2001). This reasonably trustworthy information may be provided by a confidential
informant, if that confidential informant has a history of supplying reliable
information. United States v. Lucca, 377 F.3d 927, 933 (8th Cir. 2004). Viewing the
totality of the circumstances, we hold that the officers had probable cause to arrest
Philpott, based on the information uncovered during the search of the apartment and
Philpott’s actions in and around the apartment. Accordingly, we affirm.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4227817/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 12 2017, 9:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Diana C. Bauer Patrick J. Murphy
Bauer Legal LLC State Farm Litigation Counsel
Fort Wayne, Indiana Indianapolis, Indiana
David L. Farnbauch
Sweeney Law Firm
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Spaulding, December 12, 2017
Appellant-Plaintiff, Court of Appeals Case No.
02A03-1707-CT-1623
v. Appeal from the Allen Superior
Court
Joseph Cook, The Honorable Nancy Eshcoff
Appellee-Defendant. Boyer, Judge
Trial Court Cause No.
02D01-1311-CT-519
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 1 of 22
Statement of the Case
[1] Following an automobile accident, Joseph Spaulding sued Joseph Cook, and,
prior to trial, Cook stipulated that he was 100% at fault for causing the accident.
At the conclusion of a trial on damages, the jury awarded Spaulding no
damages. Spaulding filed a motion to correct error in which he alleged, in
essence, that the verdict was inconsistent with the evidence and inadequate as a
matter of law. The trial court denied that motion. Spaulding appeals and
claims that the trial court abused its discretion when it denied his motion to
correct error. We affirm.
Facts and Procedural History
[2] On June 8, 2012, Spaulding was driving approximately thirty miles per hour
westbound on Independence Drive in Fort Wayne. As Spaulding entered the
intersection with Centennial Drive he had the right-of-way, as there was no stop
sign or traffic signal for traffic on Independence Drive. Cook was driving a full-
size van on Centennial Drive, stopped at a stop sign, did not see Spaulding’s car
approaching the intersection, and proceeded into the intersection with
Independence Drive. Despite last-second evasive maneuvers by both drivers,
Cook’s van collided with Spaulding’s car. Cook later described the force of the
collision as “mild” or “moderate.” Plaintiff’s Ex. 31 at 31; Tr. at 49.
Spaulding’s car sustained damage to the front fender and front part of the
driver’s-side door, and the rearview mirror was broken. Other than the front
right bumper coming loose on one side, Cook’s van sustained no damage.
Spaulding was wearing his seatbelt and no part of his body hit anything in the
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 2 of 22
car as a result of the collision. Spaulding did not have any obvious injuries and
did not seek medical attention that day.
[3] The next morning, Spaulding felt pain in his left shoulder when he tried to
reach into his back pants pocket. Accordingly, that afternoon Spaulding went
to the emergency room at Lutheran Hospital. Dr. Mary Wilger examined
Spaulding’s left shoulder and ordered X-rays, which “show[ed] nothing
acutely.” Plaintiff’s Ex. 1 at 2. Dr. Wilger noted that Spaulding had
“tenderness to palpation along the lateral aspect of the [left] shoulder” and
“limited external rotation and very limited adduction” in the left shoulder. Id.
at 1. Dr. Wilger gave Spaulding range of motion exercises to do at home and
prescribed Vicodin for pain. Dr. Wilger instructed Spaulding to follow up with
his family doctor in three to five days.
[4] A few days later, on June 12, Spaulding saw his family doctor, Dr. Naren Patel.
Dr. Patel examined Spaulding and noted that, while he had full range of motion
in his left shoulder, “he was having pain doing the shoulder movements” during
the examination. Plaintiff’s Ex. 32 at 10. Dr. Patel also noted that Spaulding
had tenderness of the left trapezius muscle and in the left shoulder area. Dr.
Patel injected cortisone into Spaulding’s left shoulder area, prescribed Percocet
and a muscle relaxer, and ordered physical therapy.
[5] Spaulding attended eleven physical therapy appointments between June 14 and
July 23, and he followed up with Dr. Patel on June 26 and July 11. During the
July 11 visit, Dr. Patel suspected that Spaulding had sustained a rotator cuff
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 3 of 22
injury, and he referred Spaulding to Dr. John Pritchard, an orthopedic surgeon.
Spaulding made an appointment to see Dr. Pritchard on August 3.
[6] In the meantime, on his way to a physical therapy appointment on July 27,
Spaulding was in another car accident. The brakes on Spaulding’s truck were
not working properly, and he rear-ended a stopped vehicle. Spaulding was
traveling approximately five or ten miles per hour at the time of the collision.
He did not sustain any injury, and he did not seek medical treatment.
[7] When Spaulding returned to physical therapy on July 31, he reported that he
did not have “any pain” at that time and that he was “doing better.” Plaintiff’s
Ex. 4 at 1. And during physical therapy on August 2, Spaulding reported that
he did not have “any pain” at that time and that he “th[ought] things [were]
working because he [was] having less pain overall with all activity, including
reaching behind his back.” Plaintiff’s Ex. 5 at 1.
[8] On August 3, Spaulding saw Dr. Pritchard. Spaulding described the June 8
accident and stated that, since that accident, he had “experienced frequent left
arm pain” but had improved with physical therapy. Plaintiff’s Ex. 6 at 1.
Spaulding described his pain as intermittent and said it was a six on a scale of
one to ten. Spaulding did not tell Dr. Pritchard that he had been in another car
accident on July 27. Dr. Pritchard suspected “some degree of rotator cuff
pathology” and injected Spaulding’s left shoulder with cortisone. Id. at 2. Dr.
Pritchard instructed Spaulding to continue with physical therapy and to follow
up with him in six weeks.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 4 of 22
[9] On September 5, Spaulding returned to see Dr. Pritchard and reported
“increased weakness and more discomfort” in his left shoulder. Plaintiff’s Ex.
35 at 9. Accordingly, Dr. Pritchard ordered an MRI of Spaulding’s left
shoulder which revealed a “significant rotator cuff tear,” a possible biceps
tendon tear, and “moderate acromioclavicular joint arthrosis.” Id. at 10. Dr.
Pritchard surgically repaired the rotator cuff and biceps tendon injury on
September 27.
[10] On November 21, 2013, Spaulding filed a complaint against Cook alleging that
Cook’s negligence caused his injuries. Cook filed an answer. On July 14, 2014,
Spaulding filed an amended complaint and alleged that Cook had caused him
to suffer “permanent injury to his left shoulder and left bicep area that required
surgical intervention.” Appellant’s App. Vol. 3 at 14. Prior to trial, the parties
stipulated that Cook was “100% at fault[.]” Id. at 19. But Cook denied
responsibility for any damages allegedly incurred by Spaulding.
[11] At a jury trial on damages, Spaulding testified, and he presented the deposition
testimony of his physicians, Dr. Patel and Dr. Pritchard. Dr. Patel testified that
Spaulding’s left shoulder injuries were caused by the June 8 accident. On cross-
examination, Cook asked Dr. Patel about a history of injuries to Spaulding’s
right shoulder, which had led to surgery for a significant rotator cuff injury in
that shoulder.
[12] In his deposition testimony, Dr. Pritchard testified in relevant part as follows:
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 5 of 22
Q: All right. Now, Dr. Pritchard, while we’re on this list here of
the procedures that you performed back on September 27th,
which of these surgical procedures, in your opinion, were related
to or caused by the trauma of the motor vehicle accident?
A: Well, of these procedures, the actual acromioclavicular
[(“AC”)] joint arthritis, which means a hypertrophy of the joint,
that we saw on X-ray, those findings were probably pre-existing
the injury. I mean, it’s almost a form of arthritis. So, it certainly
didn’t occur just in a couple months. Unfortunately, any trauma
or injury to the shoulder can exacerbate it, so although the actual
arthritis of the AC joint was pre-existing, you know, its
subsequent removal still, I feel, has bearing on the injury, as does
the rotator cuff and as does the biceps tendon, both which more
than likely occurred at the time of injury.
Q: All right. Can a patient, particularly one who’s, first of all, is
it unusual for a seventy-six year old patient to have some degree
of arthritis in an AC joint? Is that an unusual finding?
A: Not particularly.
Q: Okay. Can a patient have arthritis that shows up on an X-ray
if you take an X-ray or an imaging study of the AC joint? Can a
person have arthritis that shows up on an X-ray and be
asymptomatic?
A: Absolutely.
Q: Okay. And “asymptomatic” means that they don’t have
any—
A: No pain.
Q: — stiffness or pain or whatever?
A: Correct.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 6 of 22
Q: All right. And can trauma like the trauma that this
gentleman had in this motor vehicle accident, can that cause
arthritis in the AC joint to become symptomatic and painful?
A: Yes, it can.
Q: All right. And in your opinion, is that what happened in this
case?
A: From the best of my records, again, this is the first time that
I’m aware that he complained of pain of the shoulder subsequent
to the accident. I had treated him for other things, but, again, to
the best of my recollection, he had never had problems with the
left shoulder before he had the accident. He tried various
therapies, medications, and I would say that it is a result of the
accident.
***
Q: . . . Do you believe that his trip to the emergency room the
day after this collision, that that trip to the emergency room was
necessitated by the trauma of the motor vehicle accident?
A: I do.
Q: Okay. And how about the visits to Dr. Patel after he went to
the emergency room, leading up to the referral to you
complaining of left shoulder pain? Do you believe those visits to
his family physician were necessitated by the trauma of the
wreck?
***
A: It seems to me that after, you know, a patient of this age was
injured in a situation that he went to the emergency room,
followed up with his family physician, you know, had some
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 7 of 22
treatment and then ultimately sent to me is consistent with him
having had the injury.
Q: All right. And how about the same question. Dr. Pritchard,
with regard to the physical therapy that he had at ONE prior to
the time that you saw him? Do you believe that therapy was
necessitated by the trauma of the collision?
A: Yes, I would say so.
Q: All right. And how about your charges for office visits and
also the surgery that he had on September 27th? Do you believe
those charges were related to the trauma of the motor vehicle
collision?
***
A: Yes, I would say they are.
Q: All right. And how about the physical therapy treatments,
Dr. Pritchard, that you ordered after Mr. Spaulding underwent
surgery on September 27th? Do you believe those physical
therapy charges are necessitated by the trauma of the motor
vehicle collision?
A: Yes, I do.
Q: How about the MRI that he underwent on September 5,
2012? Do you believe that was necessitated by the trauma of the
motor vehicle collision?
A: Yes, I do.
Plaintiff’s Ex. 35 at 15-27. On cross-examination, Cook asked Dr. Pritchard
whether he had reviewed Dr. Patel’s office notes, and Dr. Pritchard stated that
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 8 of 22
he had not done so. Cook confirmed that Spaulding had told Dr. Pritchard that
he had been in a t-bone type accident at a speed of approximately twenty-five to
thirty miles per hour and had not hit anything inside of his car. Cook
confirmed that Spaulding had not informed Dr. Pritchard about Spaulding’s
July 27 accident during the August 3 office visit. Cook also asked Dr. Pritchard
to describe Spaulding’s history of rotator cuff injury in his right shoulder.
[13] In addition, this colloquy ensued:
Q: . . . So, I understand the idea clearly of someone having
conditions that may or may not have symptoms associated with
them and you’ve been asked, I know, about the symptoms
associated with the conditions that led to the surgery, but,
just so I’m clear, of any of the conditions that are being identified
on MRI or in the surgery, which of those do you believe were
actually caused by a trauma from a car accident versus they
already existed and were just made symptomatic by it?
A: Well, the acromioclavicular joint arthrosis, by definition, is
the description of the clavicle. It’s not, it doesn’t say it’s painful.
It doesn’t say it’s not painful, so I think that clearly pre-dated the
accident. In terms of acute, you know, tendon type issues, the
biceps tendon and the rotator cuff I feel were the specific acute
issues associated with the accident.
Q: Okay. So you believe the rotator cuff was torn in the
accident?
A: To the best of my knowledge, yes.
Q: And you believe the biceps tendon was torn in the accident?
A: Yes.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 9 of 22
Q: In part, based upon the history that’s provided to you?
A: Correct.
Q: Okay. Is there anything specific about the MRI or in your
surgical findings that would allow you to date the onset or
occurrence of those conditions themselves?
A: No.
Q: All right. Is there some way you can describe for the jury
what the mechanics are that causes a rotator cuff to tear in the
way of this one?
A: Well, actually, a rotator cuff can tear in a number of different
ways. A vigorous eccentric contraction, you know, if someone is
holding on very firmly, even to a steering wheel, and doesn’t
strike any particular object externally, with tensing of the
muscles, that could potentially cause a rotator cuff to tear.
Falling down a stairs, grabbing something can cause a rotator
cuff to tear. So, anything that is more load than the rotator cuff
can tolerate can cause a tear.
Q: Okay. So, obviously, one of those examples involved being
inside of a car, so that’s naturally of more interest to me than the
others. So, what is it again, and I’m just trying to, I guess, push
you a little further with the mechanics of it. Grabbing the
steering wheel, you’re saying you don’t have to hit anything
inside the car. Is it —
A: Yes, tensing, a vigorous, you know, acute muscle
contraction, which, you know, certainly could occur by holding
on to a steering wheel, you know, could cause a muscle to see
more load than it can accept and cause a tear.
Q: Okay. So the biceps tear, the cuff tear, based on the history,
you believe were caused by the accident?
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 10 of 22
A: Correct.
Q: Everything else you believe pre-existed it and either did or
didn’t produce symptoms that he didn’t have before?
A: Much like someone falling on an arthritic knee joint. You
know, when you bang up a, you know, any joint with X-ray
evidence of arthritis, oftentimes it will become more symptomatic
for a period of time.
Id. at 42-45.
[14] At the conclusion of the trial, the jury awarded Spaulding no damages.
Spaulding filed a motion to correct error under Trial Rule 59(A)(2) and stated
in part as follows:
1. That the jury’s verdict of “zero” dollars and “zero” cents is to
[sic] contrary to the evidence, clearly erroneous, and contrary to
Indiana law in that:
a. The evidence is uncontroverted that Plaintiff sustained a left
shoulder “strain” injury and left trapezius “strain” injury as a
result of the June 8, 2012[,] motor vehicle collision;
b. The evidence is uncontroverted that Plaintiff experienced pain
and was prescribed narcotic pain medication (Percocet) and
received a cortisone injection into his left shoulder to treat his
inflammation/pain on June 12, 2012, just 4 days after the subject
motor vehicle collision.
c. The evidence is uncontroverted that between June 9, 2012[,]
and July 23, 2012[,] Plaintiff incurred expenses for medical and
therapy services (Lutheran Hospital, Emergency Medicine of
Indiana, Summit Radiology, Dr. Patel and Orthopaedics
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 11 of 22
Northeast) totaling $4,818.50 (after Medicare write-offs/write-
downs the accepted amount was $2,650.52).
d. The evidence is uncontroverted that the medical care and
services Plaintiff received from Lutheran Hospital, Emergency
Medicine of Indiana, Summit Radiology, Dr. Patel and
Orthopaedics Northeast between June 9, 2012 and July 23,
2012[,] was treatment necessitated by the trauma of the June 8,
2012[,] motor vehicle collision.
e. The evidence is uncontroverted that the Plaintiff had no
history of any preexisting left shoulder injury or left shoulder
pain/symptoms prior to the subject June 8, 2012[,] motor vehicle
collision.
f. No medical evidence was presented at trial to rebut the
testimony of Dr. Naren Patel that the Plaintiff’s left shoulder
“strain” and left trapezius “strain” injuries he diagnosed on June
12, 2012[,] (just 4 day[s] post-collision) were caused by the
trauma of the June 8, 2012[,] motor vehicle collision;
g. The Defendant presented no evidence other than the
testimony of Joseph Cook.
h. In order for the jury to have reached the result that Plaintiff is
entitled to “zero” dollars and “zero” cents, the jury would have
had to disregard, entirely, the opinion of Dr. Naren Patel that
Plaintiff’s left shoulder “strain” and left trapezius “strain” injuries
he diagnosed on June 12, 2012[,] (just 4 day[s] post-collision)
were caused by the trauma of the June 8, 2012[,] motor vehicle
collision;
i. In order for the jury to have reached the result that Plaintiff is
entitled to “zero” dollars and “zero” cents, the jury would have
had to disregard, entirely, the Lutheran Hospital emergency
room record [Exh. 1 in the parties “Joint Exhibit Book”]
authored by Dr. Mary Wilger, diagnosing Plaintiff as having an
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 12 of 22
“injury of left upper arm” just one day after the June 8, 2012[,]
motor vehicle collision.
j. There was no cross examination or impeachment of Dr. Naren
Patel’s testimony undermining his opinion that Plaintiff’s left
shoulder “strain” and left trapezius “strain” injuries he diagnosed
on June 12, 2012[,] (just 4 day[s] post-collision) were caused by
the trauma of the June 8, 2012[,] motor vehicle collision;
k. The jury’s verdict of “zero” dollars and “zero” cents is, in
effect, a determination or decision that Plaintiff did not sustain a
left shoulder “strain” or a left trapezius “strain” injury or any
other type of injury as a result of the June 8, 2012[,] motor
vehicle collision. The jury’s decision or determination that
Plaintiff did not sustain any injury whatsoever in the June 8,
2012[,] motor vehicle collision is contrary to the evidence, clearly
erroneous, and contrary to law.
l. The jury’s verdict of “zero” dollars and “zero” cents is, in
effect, a determination or a decision that Plaintiff did not
experience any physical pain whatsoever as a result of the
injuries he sustained in the June 8, 2012[,] motor vehicle
collision. The jury’s decision or determination that Plaintiff did
not experience any physical pain whatsoever as a result of the
June 8, 2012[,] motor vehicle collision is contrary to the
evidence, clearly erroneous, and contrary to law.
m. The jury’s verdict of “zero” dollars and “zero” cents is, in
effect, a determination or a decision that the medical care and
services Plaintiff received from Lutheran Hospital, Emergency
Medicine of Indiana, Summit Radiology, Dr. Patel and
Orthopaedics Northeast between June 9, 2012[,] and July 23,
2012[,] is completely and totally unrelated to the June 8, 2012[,]
motor vehicle collision. That determination or decision by the
jury is contrary to the evidence, clearly erroneous, and contrary
to law.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 13 of 22
Id. at 24-27.
[15] The trial court denied that motion following a hearing. In its order, the trial
court stated in relevant part as follows:
At trial Cook presented evidence that cast doubt upon the
asserted severity of the impact, and that tended to undermine
Spaulding’s claim as to the speed of the accident. Testimony was
further given which showed that Spaulding did not immediately
report his injuries after the accident and did not immediately seek
medical care. These facts may have undermined Spaulding’s
credibility with the Jury. Additionally, the treating surgeon
testified in deposition that he was not aware that Spaulding had
been in an additional accident prior to Spaulding’s appointment,
a fact relevant to diagnosis. This fact had the potential to affect
the Jury’s assessment of Spaulding’s claims, as well as the Jury’s
appraisal of the validity of the expert’s opinions.
The evidence presented at trial also established that the MRI
revealed not only a torn rotator cuff, but also “moderate
acromioclavicular osteoarthrosis with ganglion cyst formation.”
The treating surgeon indicated that the clavicle was “markedly
arthritic,” and stated in his deposition, that in addition to the
rotator cuff repair, he removed about 7 to 8 millimeters of bone
to correct the arthrosis related problems. The surgeon stated that
the arthritic changes, including the ganglion cyst developed prior
to the accident, and that the ganglion cyst in particular was a sign
of a “more chronic, degenerative process.” Given this evidence,
the Jury could have concluded that Spaulding’s issues were
attributable to chronic, degenerative processes, and not due to the
accident. Finally, as definitive diagnosis of the muscle tear did
not occur until after the second accident had already occurred,
the Jury could have concluded that Spaulding had not proven,
more likely than not, that these injuries occurred in the first
Accident.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 14 of 22
CONCLUSION
The Court concludes that the Jury’s verdict of zero dollars was
within the bounds of the evidence, and that there is no “clear
indicat[ion] that the jury was motivated by prejudice, passion,
partiality, corruption or that it considered an improper element.”
The Court, therefore, DENIES Plaintiff Joseph Spaulding’s
Motion to Correct Error.
Appellant’s App. Vol. 2 at 18-19. This appeal ensued.
Discussion and Decision
[16] Spaulding appeals from the trial court’s denial of his motion to correct error.
We review the grant or denial of a Trial Rule 59 motion to correct error under
an abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885
N.E.2d 1265, 1270 (Ind. 2008). On appeal, we will not find an abuse of
discretion unless the trial court’s decision is clearly against the logic and effect
of the facts and circumstances before it or is contrary to law. Miller v. Moore,
696 N.E.2d 888, 889 (Ind. Ct. App. 1998).
[17] Spaulding claims that the jury verdict is inadequate as a matter of law because
the zero damages award is contrary to the evidence. As this court has observed,
[a] jury determination of damages is entitled to great deference
when challenged on appeal. Sears Roebuck and Co. v. Manuilov,
742 N.E.2d 453, 462 (Ind. 2001). The applicable standard of
review has been summarized as follows:
Damages are particularly a jury determination.
Appellate courts will not substitute their idea of a
proper damage award for that of the jury. Instead,
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 15 of 22
the court will look only to the evidence and
inferences therefrom which support the jury’s verdict.
We will not deem a verdict to be the result of
improper considerations unless it cannot be explained
on any other reasonable ground. Thus, if there is any
evidence in the record which supports the amount of the
award, even if it is variable or conflicting, the award will
not be disturbed.
Id. (quoting Prange v. Martin, 629 N.E.2d 915, 922 (Ind. Ct. App.
1994) (internal citations omitted)[, trans. denied]). In addition,
[our] Supreme Court has noted the following:
Our inability to actually look into the minds of the
jurors is, to a large extent, the reason behind the rule
that we will not reverse if the award falls within the
bounds of the evidence. We cannot invade the
province of the jury to decide the facts and cannot
reverse unless the verdict is clearly erroneous.
Id. (quoting Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711,
713 (1971)).
Flores v. Gutierrez, 951 N.E.2d 632, 636 (Ind. Ct. App. 2011) (emphasis added),
trans. denied.
[18] Still, it is well settled that “Indiana subscribes to the general principle of tort law
that all damages directly attributable to the wrong done are recoverable.”
Russell v. Neumann-Steadman, 759 N.E.2d 234, 237 (Ind. Ct. App. 2001). A
plaintiff has the burden to prove by a preponderance of the evidence that the
medical expenses that he incurred were a proximate result of the defendant’s
negligence. See Matovich v. Rodgers, 784 N.E.2d 954, 958 (Ind. Ct. App. 2003).
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 16 of 22
Once that burden is met, “the law allows an injured plaintiff to recover the
reasonable cost of necessary medical expenses.” Russell, 759 N.E.2d at 237.
The jury is not bound to award a plaintiff the exact amount of his medical
expenses, but it may determine what amount is reasonable in light of the
evidence.1 See Dee v. Becker, 636 N.E.2d 176, 181 (Ind. Ct. App. 1994).
[19] Here, Spaulding contends that there is no evidence to support the jury’s verdict.
In particular, Spaulding points out that both Dr. Patel and Dr. Pritchard
testified that his left shoulder injuries were caused by the June 8 accident. And
Spaulding asserts that, because “[c]ausation is a complicated medical question
that requires the testimony of expert medical witnesses[,]” and Cook did not
present contrary medical witness testimony, the jury was required to believe Dr.
Patel and Dr. Pritchard and award damages for Spaulding’s injuries. Reply Br.
at 5. We cannot agree.
[20] In Walker v. Cuppett, 808 N.E.2d 85, 95 (Ind. 2004), our Supreme Court stated,
[d]octors and other expert witnesses are not oracles whose
opinions, once stated, cannot be questioned or refuted by other
evidence, even if that evidence does not come in the form of
another expert’s testimony. It is clear, for example, that a jury
may reject unanimous medical expert testimony that a criminal
defendant was legally insane at the time he or she committed a
crime where there is evidence that tends to undermine such testimony.
1
The actual amount charged to the plaintiff or the amount actually paid by him may tend to prove the
reasonable and fair value of the services rendered to him but are not conclusive on the issue. Chemco Transp.,
Inc. v. Conn, 506 N.E.2d 1111, 1115 (Ind. Ct. App. 1987) (quoting Herrick v. Sayler, 160 F. Supp. 25, 29 (N.D.
Ind. 1958)), rev’d on other grounds, 527 N.E.2d 179 (Ind. 1988).
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 17 of 22
See Cate v. State, 644 N.E.2d 546, 547-48 (Ind. 1994) (holding jury
was free to reject unanimous opinion of five psychiatrists that
defendant was legally insane where psychiatrists’ assertions were
not uncontroverted by other evidence). The law in Indiana is
that “[e]xpert opinion regarding causation may be admissible and
yet in conjunction with other evidence may be either sufficient or
insufficient to support a verdict.” Strong v. State, 538 N.E.2d 924,
930 (Ind. 1989). “[A]s is virtually the unanimous rule in this
nation’s jurisdictions, the jury is free either to accept or reject the
opinion of the expert witness; the finder of fact may supplant its
own conclusion for that of the expert.” Id. at 931 (quoting
Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d 722, 729
(Ind. 1982)). This rule would seem to have little meaning if . . . a
defendant cannot challenge or cast doubt upon the opinion of a
plaintiff’s expert that the plaintiff was injured by the defendant
with evidence that the plaintiff suffers from a pain-producing disease or
mechanism, unrelated to the defendant’s negligence, in the precise area of
the body where the plaintiff claims to suffer ongoing pain.
(Emphases added). And in Flores, this court stated as follows:
It is true that “[t]he testimony of a trained physician who has
examined and treated a patient concerning matters purely within
the medical realm cannot be controverted by lay opinion or by
judicial speculation or inference.” Beaman v. Hedrick, 146 Ind.
App. 404, 407, 255 N.E.2d 828, 830 (1970) (reversing trial court
determination of paternity when expert medical witness’s
testimony was that paternity was improbable but not impossible).
“However, on medical matters which are within the common
experience, observation, or knowledge of laymen, no expert testimony is
required to permit a conclusion on causation.” Willis v. Westerfield,
839 N.E.2d 1179, 1188 (Ind. 2006) (internal quotation omitted).
951 N.E.2d at 636-37 (emphasis added).
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 18 of 22
[21] Thus, here, we must determine whether there is any evidence to undermine the
medical expert testimony that Cook proximately caused Spaulding’s injuries.
And we must determine whether the proximate cause of Spaulding’s injuries
concerns “matters purely within the medical realm” or whether it is “within the
common experience, observation, or knowledge of laymen.” Id.
[22] We agree with Cook that our opinion in Flores is on all fours with the instant
case. In Flores, the plaintiff alleged that he had neck and back pain caused by
the defendant’s negligence in rear-ending his vehicle in 2007. But the plaintiff
had a history of pre-existing conditions preceding the accident with the
defendant, and the plaintiff’s credibility was called into doubt. In particular:
Flores had multiple back problems, including a history of back
and neck pain, much of it pre-existing what was from all
appearances a relatively minor accident. An MRI report
specifically attributed his muscle spasm condition to these pre-
existing conditions, not to the accident as Dr. Jones did. Flores
did not seek medical attention for his injury from his diagnosing
physician during an almost two-year gap between his initial visits
and the instant diagnosis. In addition, he sustained a fall during
this time period which he did not divulge to Dr. Jones and which
Dr. Jones did not consider when reaching his diagnosis. As Dr.
Jones testified, such a fall would have been relevant to the
diagnosis.
Flores, 951 N.E.2d at 637. The jury awarded Flores zero damages, and we held
that, “[t]he simple facts that Flores had multiple pre-existing back problems
with multiple causes and that Dr. Jones’s diagnosis was attributable to an
incomplete record and a patient with credibility problems places it outside the
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 19 of 22
‘purely medical realm’ requiring expert testimony to controvert it.” Id. Thus,
we affirmed the jury’s verdict.
[23] Here, the undisputed evidence shows that, at the time of the June 8 accident,
Spaulding had pre-existing conditions in his left shoulder, namely, arthritis and
a ganglion cyst. Dr. Pritchard explained that the MRI of Spaulding’s left
shoulder showed moderate and chronic degenerative arthritis and a ganglion
cyst that pre-dated the June 8 accident, and he testified that a cyst is the result
of “two rough surfaces” rubbing together “[a]s an irritation” and producing
fluid. Plaintiff’s Ex. 35 at 39. In addition, Spaulding did not seek medical
attention until the day after the accident, which was, according to Cook’s
testimony, not “very serious[.]” Plaintiff’s Ex. 31 at 30. Indeed, there was no
damage to Cook’s van other than the rusted-out bumper coming loose, and the
damage to Spaulding’s car was minor. Moreover, Spaulding was not forthright
with Dr. Pritchard in that, during his initial appointment with Dr. Pritchard on
August 3, 2012, Spaulding told him about the June 8 accident but did not tell
him about the July 27 accident. And Dr. Pritchard testified that his opinion on
causation was “based upon the history that[ was] provided” to him. Plaintiff’s
Ex. 35 at 43.
[24] We also note that Spaulding testified that he had been involved in
approximately three other vehicular accidents prior to the June 8, 2012,
accident with Cook. On one occasion, Spaulding was driving on I-69 when a
tire blew out on his vehicle, which “tore up the fender and the door” of his car.
Defendant’s Ex. F at 29. That evidence of prior accidents, combined with Dr.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 20 of 22
Pritchard’s testimony that a rotator cuff tear can occur just by “holding on very
firmly” to a steering wheel, could have led the jury to reasonably infer that
Spaulding had injured his left shoulder prior to the June 8 accident. Plaintiff’s
Ex. 35 at 43.
[25] Finally, Dr. Pritchard testified that, “to the best of [his] knowledge,”
Spaulding’s rotator cuff tear “more than likely occurred” as a result of the June
8 accident. Id. at 15, 42-43. But Dr. Pritchard could not establish the date of
onset of Spaulding’s injuries by diagnostic tests or during surgery. The jury was
entitled to weigh the evidence and determine the credibility of Dr. Pritchard’s
opinion “based on the evidence presented and the degree of certitude with
which the opinion [was] cast.” Glenn v. Bd. of Comm’rs, Harrison Cty., Ind., 552
N.E.2d 485, 487 (Ind. Ct. App. 1990). Because the nature of Spaulding’s
injuries was mostly subjective and Dr. Pritchard could not state with absolute
certainty that the accident had caused them, the jury, in its discretion, could
have disregarded Dr. Pritchard’s conclusions on causation.
[26] We hold that, in light of Spaulding’s pre-existing conditions in his left shoulder,
his failure to inform Dr. Pritchard of the July 27 accident during the
consultation one week after that accident, the degree of certitude underlying Dr.
Pritchard’s opinion, and the relatively minor impact in the June 8 accident, the
issue of causation is “outside the ‘purely medical realm’ requiring expert
testimony to controvert it.” Flores, 951 N.E.2d at 637; see also Conklin v.
Demastus, 574 N.E.2d 935, 940 (Ind. Ct. App. 1991) (affirming jury verdict for
defendant, despite his concession of negligence, in light of plaintiff’s medical
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 21 of 22
history, plaintiff’s credibility issues, minor damage to cars, and no injuries
reported at the scene). Thus, the jury’s determination that Spaulding was
entitled to zero damages arising out of his accident with Cook is not outside the
bounds of the evidence. Id. The trial court did not abuse its discretion when it
denied Spaulding’s motion to correct error.
[27] Affirmed.
Mathias, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CT-1623 | December 12, 2017 Page 22 of 22 | 01-03-2023 | 12-12-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2482692/ | 944 N.E.2d 932 (2007)
374 Ill. App.3d 1143
PEOPLE
v.
HARI.
No. 4-06-1031.
Appellate Court of Illinois, Fourth District.
August 28, 2007.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543771/ | 53 So.3d 1035 (2011)
HUNT
v.
STATE.
No. 2D09-5197.
District Court of Appeal of Florida, Second District.
January 26, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4227833/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1222
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kent Leroy Sorenson
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: October 20, 2017
Filed: December 12, 2017
[Unpublished]
____________
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
____________
PER CURIAM.
Kent Sorenson is a former Iowa state senator who accepted payments in
exchange for political endorsements. The payments came from committees affiliated
with two 2012 presidential candidates. Sorenson knew that at least one committee did
not report the payments to the Federal Election Commission (“FEC”), and when asked
about the payments during a sworn deposition, he denied them. Based on this
conduct, Sorenson pleaded guilty to two crimes: (1) willfully causing false
expenditure reports to the FEC in violation of 52 U.S.C. § 30104(a)(1) and (b)(5)(A),
52 U.S.C. § 30109(d)(1)(A)(i), and 18 U.S.C. § 21; and (2) falsifying records in
contemplation of or relation to a federal investigation intending to obstruct justice in
violation of 18 U.S.C. § 1519. At sentencing, the district court2 calculated a
sentencing guidelines range of 24 to 30 months, departed downward, and sentenced
Sorenson to 15 months’ imprisonment. He now appeals that sentence on three
grounds.
Sorenson’s first two arguments relate to the district court’s application of a
sentencing enhancement that increases a defendant’s offense level based on the “value
of the illegal transactions.” See United States Sentencing Guidelines § 2C1.8(b)(1).
Because Sorenson received $132,915.47 from the committees, the district court
applied an eight-level increase under § 2C1.8(b)(1). According to Sorenson, the
district court should have given him credit for the work he performed for one of the
presidential campaigns and either (a) applied § 2C1.8(b)(1) using a lower value
(which would have resulted in a lower guidelines range) or (b) used the same value
but varied downward.
Neither contention succeeds. Even assuming the district court miscalculated
the guidelines range with its eight-level increase, the error was harmless. The district
court considered all of the 18 U.S.C. § 3553(a) sentencing factors, offered a lengthy
explanation for the sentence based on those factors, and noted that “even if the
Guidelines calculation were adjusted according to Defendant’s argument . . . , the
1
At the time of the plea agreement, the provisions from Title 52 of the United
States Code were located in Title 2.
2
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
-2-
Court’s ultimate conclusion of the appropriate sentence in this case would not change.
Application of the factors described in 18 U.S.C. § 3553(a) compel the same result
regardless.” This explanation rendered any guidelines calculation error harmless. See
United States v. Dace, 842 F.3d 1067, 1069-70 (8th Cir. 2016) (per curiam) (“[W]hen
a district court’s detailed explanation for the sentence imposed makes clear that the
judge based the sentence he or she selected on factors independent of the Guidelines,
the error may be harmless.” (internal quotation marks omitted)).
For Sorenson’s contention that the district court should have varied downward
based on his campaign work, we again look to the district court’s consideration of the
§ 3553(a) sentencing factors and ask whether its refusal to grant a downward variance
amounted to an abuse of discretion. See United States v. Hammond, 698 F.3d 679,
681 (8th Cir. 2012) (per curiam). Over many pages in the sentencing transcript, the
district court noted, among other things, the seriousness of political corruption and the
need to deter it in the future. It declined to vary downward based on the purported
value of Sorenson’s campaign work, but Sorenson cites no case indicating that it
needed to do so. The district court concluded that his work neither diminished the
harm from his actions nor warranted a lower sentence. That conclusion was not an
abuse of discretion. See Hammond, 698 F.3d at 681.
Sorenson’s final argument is that the district court abused its discretion by
considering an improper factor. See United States v. Mees, 640 F.3d 849, 856 (8th
Cir. 2011). In particular, he argues that the district court erred by considering his
officeholder status at sentencing. The district court did so to explain why it viewed
the offense so seriously. “When a corrupt office holder receives too lenient of a
sentence,” the court wrote, “the public understandably loses confidence in the integrity
of its system of government.” Sorenson claims that this reasoning runs afoul of the
general prohibition on considering a defendant’s socioeconomic status when imposing
a sentence. See id. Even Sorenson’s primary authority for this proposition, however,
expressly allows such consideration when a defendant, as here, “abuses his position
-3-
by using it to facilitate the offense.” See United States v. Chandler, 732 F.3d 434, 439
(5th Cir. 2013). Our circuit has allowed the same. See, e.g., United States v.
Goldman, 447 F.3d 1094, 1096 (8th Cir. 2006). Based on this precedent and the facts
of Sorenson’s case, the district court did not abuse its discretion in considering his
officeholder status when imposing the sentence.
For the foregoing reasons, we affirm the district court’s sentence.
______________________________
-4- | 01-03-2023 | 12-12-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2154573/ | 963 A.2d 567 (2008)
COM.
v.
HICKS.
No. 1985 EDA 2007.
Superior Court of Pennsylvania.
September 18, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154579/ | 963 A.2d 845 (2009)
197 N.J. 475
STATE
v.
CRUZ.
Supreme Court of New Jersey.
January 20, 2009.
Petition for certification. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543772/ | 53 So.3d 237 (2011)
NAVA
v.
STATE.
No. 5D10-3581.
District Court of Appeal of Florida, Fifth District.
January 10, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2776873/ | Order entered February 4, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00655-CV
DAVID C. MEYER, Appellant/Cross-Appellee
V.
KAREN MOORE MEYER, Appellee/Cross-Appellant
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-08-05419
ORDER
Before the Court is appellant/cross-appellee David Meyer’s January 30, 2015, unopposed
motion for extension of time to file his brief. We GRANT the motion and ORDER
appellant/cross-appellee to file his brief no later than March 13, 2015.
/s/ CRAIG STODDART
JUSTICE | 01-03-2023 | 02-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2103030/ | 107 Ill. App. 3d 992 (1982)
438 N.E.2d 471
NATIONAL BOULEVARD BANK OF CHICAGO, Trustee, et al., Plaintiffs-Appellants,
v.
CITIZENS UTILITIES CO. OF ILLINOIS, Defendant-Appellee.
No. 81-1607.
Illinois Appellate Court First District (4th Division).
Opinion filed June 3, 1982.
Rehearing denied August 5, 1982.
*993 Edward G. Finnegan, Ltd., of Chicago, for appellants.
Daniel J. Kucera and Christine Hehmeyer Rosso, both of Chapman and Cutler, of Chicago, for appellee.
Judgment reversed.
JUSTICE ROMITI delivered the opinion of the court:
Plaintiffs initially objected to being charged sewage rates by the *994 defendant and went before the Illinois Commerce Commission. That body determined that its decision depended on the ownership of certain sewer mains; an issue it had no jurisdiction to decide. Accordingly, this declaratory judgment action was filed in the Chancery Division because plaintiffs also sought equitable relief. The trial court held that the conduct of the parties and certain documents acknowledging defendant's ownership of mains used by it established defendant's ownership of the mains in question. We hold that the trial court erred in holding (1) that the mains embedded in plaintiffs' property were personal property; (2) that plaintiffs' predecessor's conduct gave rise to an estoppel and (3) that the evidence shows ownership in defendant. Accordingly, we reverse and enter judgment for plaintiffs.
The pleadings, documentary evidence and testimony disclose that the property in question, Gladstone Glen Apartments, is a multiple-unit complex consisting of 466 units. While now part of the village of Prospect Heights, the area originally was part of unincorporated Cook County. It lies on the east side of Wolf Road and the north side of Willow Road. It runs approximately 1975 feet along Wolf and 625.7 feet along Willow. In 1965 the property line along Wolf Road extended to the center of that road. In 1963 the Metropolitan Sanitary District of Greater Chicago (MSD) was given an easement for its interceptor sewer within the property line east of the center of Wolf Road. The easement agreement provided that the grantor and its successors and assigns should have the right, at any time after the completion of that portion of the intercepting sewer located on the property, to connect its own sewers with the intercepting sewer.
In 1965 the developer-owner, Oakview Builders, started to build on the property. The project was constructed in three phases, the first 144 units being completed and occupied in 1965 and 1966; the remaining 322 apartments were completed at a later date. Collecting sewers connecting the various buildings were built by Oakview's contractor on Oakview's property. They ran, by gravitational pull, into a 23-foot-long, 12-inch-wide sewer main which connected directly into the MSD interceptor sewer. The 23-foot connecting sewer main ran from the edge of Wolf Road to the MSD interceptor sewer. In 1965 this was all on Oakview's property. MSD granted the connection permit on July 8, 1965. The permit provided that it was not transferable without the written permission of the MSD. It was stipulated by the parties that the only sewer mains used in collecting Gladstone Glen's sewage are the 2,600 feet of collecting sewers located within plaintiffs' present property line and the 23-foot sewer connection, all of which were built and paid for by Oakview, and the MSD interceptor sewer. Unless either the 2,600 feet of collecting sewers or the 23-foot sewer connection built at Oakview's direction belong to defendant, *995 no part of the system used is defendant's. In other words, no connections were made into any part of defendant's already existing sewerage system. No sewer main belonging to defendant was ever extended to Gladstone Glen.
Defendant, Citizens Utilities Company of Illinois, is a public utility engaged in furnishing water and sewer service in certain areas of Cook, Du Page and Will Counties, Illinois. On January 25, 1965, Oakview Builders sent a formal request to defendant for water and sanitary sewer service for parcels 1 and 3 of the property. On July 30, 1965, the Illinois Commerce Commission entered an order and certificate of convenience and necessity allowing defendant to render such service finding that there was no other service available in the area to meet the need. As already noted, three weeks before MSD had granted Oakview permission to hook up to its interceptor main.
Besides the 23-foot sewer main which was built in 1965 and the other sewer mains, Oakview also extended defendant's water main 2,085 feet to its own property. Beginning on January 1, 1966, Oakview filed applications for service for the nine buildings of the first development, a total of 144 units, as each was completed and ready for occupancy. The applications, on forms prepared by defendant, read as follows:
"NO. MOV 1600
SERVICE APPLICATION AND AGREEMENT
The undersigned applicant requests that CITIZENS UTILITIES COMPANY OF ILLINOIS hereinafter referred to as the `Company' provide water and sanitary sewer service requirements at the premises described below, and agrees to accept and pay for service in accordance with the Company's rates, rules, regulations and conditions of service from time to time on file with the Illinois Commerce Commission.
* * *
The applicant agrees to install, if not already installed, and to maintain at his own expense in good condition all service lines in the premises described below and that the Company owns and shall maintain at the Company's expense all mains and other facilities used in rendering service to the applicant, including any meter located in the premises described below. The Company shall have free access to said meter at all reasonable times. If the meter is not read during any billing period, the Company shall render and the applicant agrees to pay an estimated bill for said billing period."
No applications for service to the rest of the buildings, if there were any, were introduced into evidence.
On July 15, 1966, an interoffice memo was sent by I. Jacobson stating *996 they had to have improvement orders, easements, as-built engineering drawings, lien waivers and invoices showing the costs of all of the construction involved on the property, including the connecting mains. The easement was to confirm that the facilities within the subdivision were defendant's. Exhibit A attached to the easement was to cover the entire tract. Both the easement and Exhibit A were to be recorded. In fact they were not.
The easement was not signed until December 8, 1966, over one year after the sewer connection was finished and the sewer put in operation. Relevant portions of the "Grant of Perpetual Right and Easement" read as follows:
"In consideration of Ten Dollars ($10.00) and other good and valuable consideration, receipt of which is hereby acknowledged, WOLF PALATINE GARDENS, AS AGENT FOR EXCHANGE NATIONAL BANK, TRUST U/T No. 18621, a partnership (hereinafter called `Grantor') duly authorized to transact business in the State of Illinois, being the owner of that certain tract of real estate to be subdivided and known as of this date as Lamplighter Apartments, shown on and legally described on Exhibit A attached hereto and made a part hereof, hereby grants to Citizens Utilities Company of Illinois, an Illinois corporation (hereinafter called `Utility'), its successors and assigns, a perpetual right and easement in, upon, along and under the parcels of real estate designated or to be designated, within the tract of real estate shown by said Exhibit A, as `streets', `roads', `boulevards', `lanes', `drives', and other public places, and also in, upon, along and under those parcels of real estate designated or to be designated therein as utility or drainage easements, to install, construct, operate, maintain, repair and renew water mains, pipes, gates, valves, hydrants, sewage collection lines, manholes, lampholes, effluent lines and all other appurtenances or facilities which may be used by Utility in furnishing water service and sewage collection, treatment and disposal service in the tract of real estate shown on and described by said Exhibit A, or in any adjacent or other territory, including, without being limited to, the right to enter upon said parcels of real estate designated or to be designated as aforesaid, to make openings therein, to excavate beneath the surface thereof for the purpose of installing, constructing, operating, maintaining, repairing or renewing any facilities of Utility, and to carry on its business as a public utility by means of the facilities located in, upon, along or under such streets, roads, boulevards, lanes, drives, public places, utility and drainage easements; provided, however, that any excavation or other work by Utility shall be completed in a reasonable time, and after completion Utility shall restore the surface of *997 the area opened to substantially as good condition as it was in before such opening.
* * *
Grantor, for itself and for its successors or assigns to any or all parcels of real estate within the tract of real estate shown by said Exhibit A, hereby acknowledges that ownership of, control of, and title to all water mains, pipes, gates, valves, hydrants, sewage collection lines, manholes, lampholes, effluent lines and all other appurtenances or facilities which may be used by Utility in furnishing water service and sewage collection, treatment and disposal service in the tract of real estate shown on and described by said Exhibit A is vested solely in Utility, free and clear of all encumbrances or claims including claims for payment by Grantor, its successors or assigns or parties claiming under Grantor, its successors or assigns."
Exhibit A attached to and referred to in the easement contains no legal description. It shows the west boundary line, Wolf Road, and the easement along it. While Willow Road is shown on the drawing, the length of the property along Willow is not shown. The northern boundary of the property is not shown at all and the eastern boundary is not designated. The drawing merely shows a 15-foot easement along Wolf and a 100-foot temporary easement. These appear to be identical easements given in 1963 to the MSD.
Also on December 8, 1966, a lien waiver was given by Oakview as contractor to defendant for and in consideration of $48,607.86. Certain other lien waivers naming Oakview Builders, Inc., as employer and signed by Oakview and others working on the site were also signed early in 1967 and turned over to defendant as a condition to Oakview's receiving a refund. Likewise invoices for building water and sewer mains for phase I of the project were turned over to defendant. They were paid, however, by Oakview, not defendant. An improvement order covering the project was prepared on December 9, 1966, over one year after the sewer facilities were constructed and placed in service. And on February 24, 1967, a journal entry for the month of December 1966 was prepared, transferring the cost of water and sewer mains, in the amount of $60,945, from "Construction Work in Progress" to various accounts, primarily "Customers Advances for Construction." In fact the total cost of all of the water and sewer mains now claimed by defendant was over $120,000. "Construction Work in Progress" accounts are to include the total of the balance of work orders in the process of construction but not ready for service on the date of the balance sheet. It appears the balance sheet was dated 1966, after the sewer mains were put in operation.
As already noted, the applications for service requested both sewer *998 and water service. It is undisputed that both were paid for until 1975 when plaintiffs purchased the property.
On March 26, 1968, defendant sought permission from the Illinois Commerce Commission to require every customer taking water from defendant to take and pay for sewer service also. The Commission found that it had been the company's policy to provide both water and sanitary sewer service to all customers where it was authorized to do so and both services were available, and had projected its expenses and established its staff on the basis it would provide both services. The Commission, however, held that the proposal was contrary to public policy.
In 1970 Oakview was finally paid $21,331.60 by defendant. The receipt prepared by defendant and signed by Oakview stated it was "payment in full for refunds due on main extension agreement providing for the extension of water and sewer mains to the property." However as already noted in fact only defendant's water main was extended to the property; no sewer main of defendant was extended to the property.
Early in 1975 plaintiffs acquired title to Gladstone Glen. The title policy issued in connection with the purchase does not indicate either the holding of an easement by defendant or its ownership of any of the sewer mains. (Apparently by this time no part of Wolf Road was part of the property, Wolf being now a dedicated expressway.) Defendant asked plaintiffs to sign an agreement for services for the sewers. Plaintiffs refused. When payment for sewage service was withheld, defendant terminated the water service. In order to obtain water service, the bills for sewerage service were then paid under protest. In October 1975, plaintiffs filed a complaint with the Illinois Commerce Commission challenging defendant's right to assess sewage charges against plaintiffs' property. At the hearing before the Commission, Walter S. Larson testified. He was defendant's general manager and had been with the company for the previous 14 years. He testified that defendant only owned sewer mains in the easements or right-of-way and not on the on-site portion of the property; that they had easements and/or rights-of-way along Wolf Road. In answer to questioning by the hearing examiner he testified specifically that its sewer mains ran only and exclusively on Wolf Road. The Commission stated in its order that the parties agreed that any and all water and sewer facilities contained within plaintiffs' complex area were owned by plaintiffs and the contention was who owned the 12-inch main. The Commission found that defendant's claim before it was based in part on an alleged oral main extension agreement with the only documentary evidence pertaining thereto being the receipt of January 1970. The Commission further found that defendant's tariffs on file with the Commission on or before the date of the receipt did not contain any main extension *999 agreement. The Commission also referred to the evidence of a lack of any maintenance or inspection of the main by defendant. The Commission held that the issues before it were dependent on a determination of ownership and the adjudication of rights under the "Grant of Perpetual Right and Easement" which was beyond the jurisdiction of the Commission. Plaintiffs thereupon filed this action in chancery seeking a declaration as to ownership and other equitable relief.
At trial Vincent Bolger, one of the beneficial owners of the property, testified as to the nature of the apartment complex and the events occurring in 1975, which have already been set forth. He testified that about three months after the complex was purchased, it was necessary for them to spend $943.34 to buy a sewer rodder to maintain the sewers. He had no knowledge whether Gladstone Glen had ever rodded the sewers. He also did not know if Gladstone Glen had ever requested defendant to rod the sewers.
Irving Lefkovitz was one of the partners of Oakview Builders. He testified that they acquired the property in 1964. At that time it was county farm land. They went to the county for building permits and to MSD for sewer permits. The Building Department of Cook County would not allow them building permits until they had a source of water for service to the property. Accordingly in January 1965 they applied to defendant for water service. While Lefkovitz testified that they knew at that time sewer service was going to be provided by a MSD tie-in, he acknowledged that the letter of January 25, 1965, requested both water and sewer service.
They received the permit from MSD in July and the actual connection was made three or four months later. Sewage was flowing through the mains by January 1, 1966. Occupancy of the first phase of the apartment complex probably began either late in 1965 or early in 1966.
When they approached defendant for water service, defendant's water mains terminated at Willow and Lee over 2,000 feet away. They constructed a 2,100-foot main to connect defendant's water main to the property. It cost between $20,000 and $25,000 for this extension and they had an agreement that they would be repaid that cost. They had no agreement with respect to extending defendant's sanitary sewer lines or mains, and there was no extension of existing sanitary sewers belonging to defendant to the property.
Lefkovitz testified that they never needed sanitary sewer service from defendant. When they made applications beginning on January 1, 1966, for water and sewer service, the sewer was already connected and sewage was flowing through the mains. They had no need at that point for sanitary sewer service from defendant but they did need water service. *1000 The application forms were drawn up by defendant. Likewise Lefkovitz testified that on December 8, 1966, the date of the "Grant of Perpetual Right and Easement," they had no need of sanitary sewer service from defendant; the MSD interceptor sewer was being utilized.
Plaintiffs' last witness was James Muldowney, a professional engineer. He testified that the Exhibit A attached to the "Grant of Perpetual Right and Easement" appeared to be the same attached to the grant of easement to the Metropolitan Sanitary District. He also testified that defendant had not filed any inspection reports on the sewers in question although such are required by law.
Defendant's only witness at trial was Charles Weiss, an assistant vice president and assistant secretary of defendant. Weiss did not become an employee until 1968 so he had no personal knowledge of any transactions in 1965 and 1966. Extensive testimony over plaintiffs' objection as to what the parties did in those years being based not on his personal knowledge but on conclusions drawn from documents in evidence was not competent or probative.
Weiss also testified that he participated in the calculation of the 1970 refund in the amount of $21,331.60. The amount of the refund was computed by taking 2 1/2 times the first year's revenues from the customer for water and sewer service. These revenues came from the 144 units originally built, not from the units built later. He testified that the forms for application for water and sewer service were company forms. He stated that the company has a separate form for water service only; however, he did not testify as to whether the company in 1966 had a separate form for requesting water service only.
Weiss also testified that defendant had recently entered into an agreement with MSD to perform physical and other tests of its system and perform any recommended rehabilitation work. The system in question would be part of the agreement.
On cross-examination, Weiss admitted that defendant was not a permittee to the connection with MSD. He stated that even though MSD had given Oakview permission to hook on, there was in 1965 still not an adequate source of sewer service to meet the needs of the property because MSD generally does not provide direct service, but he admitted that the correct practice is to name defendant as a co-permittee. When asked if there were any records showing entry on the premises for purposes of repairs, he said he had seen one record which indicated an examination of sewer facilities in 1976, after proceedings were filed before the Commission. He could name no other occurrence. He also admitted that to his knowledge defendant had not made any reports to MSD with respect to the maintenance of the sewer. He also admitted that no easements in favor of the company were recorded with the Cook County recorder of deeds.
*1001 I
The trial court's finding for the defendant appears, from its opinion, to be based on three premises:
A. the sewer mains are personal property;
B. defendant's predecessor would be estopped to challenge defendant's title to sewer lines which it had heretofore by both overt action and passive acquiescence allowed Citizens to rely on for a lengthy period of time and plaintiffs as grantees of title take subject to whatever limitations bound their grantor;
C. while there is no document entitled "Bill of Sale" the sum of the evidence equates to such a definitive transfer.
We cannot agree on any of the premises.
1 The trial court in holding that the sewer mains are personal property relied on the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 544), and Shelbyville Water Co. v. People ex rel. Craddick (1892), 140 Ill. 545, 30 N.E. 676. We do not believe either to be applicable. The Revenue Act merely provides that for the limited purpose of the assessment of personal property taxes, a utility's mains are to be regarded as personal property. Clearly such statute does not otherwise affect their status. Likewise, the court in Shelbyville, persuaded by the current revenue statute, held that for purposes of taxation a utility's mains and wires which were directly connected to the utility's engines and boilers were personal property for the purpose of taxation since the engines and boilers which otherwise were part of the realty were, under the Revenue Act of 1939, personal property. (Johnson v. Roberts (1882), 102 Ill. 655.) The question here is not whether the mains can be assessed for personal property taxes; furthermore they are not directly connected with the defendant's engines and boilers.
Fixtures are by definition real property because they are incorporated in or attached to the realty. (White Way Electric Sign & Maintenance Co. v. Chicago Title & Trust Co. (1938), 368 Ill. 482, 14 N.E.2d 839.) Chattels become real estate when annexed to the freehold under such circumstances that it appears clearly from an inspection of the property itself, taking into consideration the character of the annexation, the nature and adaptation of the articles annexed to the uses and purposes of the freehold at the time of the annexation, and the relation of the annexing person to the freehold in question, that a permanent annexation to the freehold was intended. (Galena Iron Works Co. v. McDonald (1911), 160 Ill. App. 211; 19 Ill. L. & Prac. Fixtures § 2 (1956).) That water and sewer mains are normally considered real property is shown by the fact they are subject to the imposition of mechanics' liens (Berry v. Blackard Construction Co. (1973), 13 Ill. App. 3d 768, 300 N.E.2d 627), although such may be imposed only on realty. Dual Temp Installations, Inc. v. Chicago Title & Trust Co. (1976), 41 Ill. App. 3d 415, 354 N.E.2d 131, appeal *1002 denied (1976), 64 Ill. 2d 595; Miller v. Reed (1973), 13 Ill. App. 3d 1074, 302 N.E.2d 131; Wanzer v. Smorgas-Brickan Developers, Inc. (1970), 130 Ill. App. 2d 378, 264 N.E.2d 435; Ill. Rev. Stat. 1979, ch. 82, par. 1.
2 All of the sewer mains here are clearly annexed to, indeed buried in, the plaintiffs' property and were installed for the use of the freehold. Under such circumstances, there is a presumption that they are real property and the burden is on the person claiming they are personal property to show that they were not intended to be permanently annexed to the freehold but only to be personal property. Merchants Loan & Trust Co. v. Merchants Safe Deposit Co. (1912), 167 Ill. App. 315.
3 There is no evidence that the developer did not intend the mains to be a part of the property; to the contrary, the mains were constructed for the permanent use of the residents of the development. When annexations are made by the owner they are presumed to be made with the design of their permanent enjoyment with the realty. (Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, 310 N.E.2d 667.) Furthermore, the evidence discloses that defendant recognized the mains to be real property since the memo of July 15, 1966, instructed that lien waivers were to be obtained and that the easement which "confirms that the facilities within the subdivision are ours" was to be recorded. The evidence in the record, however, indicates that despite the instructions it was not recorded and defendant at no time has contended that it was.
4 Whether the mains are real or personal property is relevant since in general title to real estate cannot be transferred by parol but can only be transferred by a writing (Skinner v. Francisco (1949), 404 Ill. 356, 88 N.E.2d 867; Weegens v. Karels (1940), 374 Ill. 273, 29 N.E.2d 248), sufficiently describing the property. (Chicago & Alton R.R. Co. v. Langer (1919), 288 Ill. 16, 123 N.E. 61.) The service application and agreements obviously are insufficient since the sole words of description "all mains and other facilities used in rendering service" do not adequately and unambiguously describe the property. It is unclear what mains are referred to, those used to service the 144 units or others as well nor is it clear what are service lines belonging to applicant as opposed to mains. The "Grant of Perpetual Right of Easement" likewise suffers from ambiguity since it refers to all sewerage collection lines and effluent lines which may be used by the utility and does not define which ones are used by the utility. Furthermore it contains no legal description of the premises, and exhibit A referred to in the easement and attached to it merely shows the Wolf Road property line. Finally it was not recorded although a transfer of real property is ineffective against a purchaser without notice absent recording. (Ill. Rev. Stat. 1973, ch. 30, par. 29; Thorpe v. Helmer (1916), 275 Ill. 86, 113 N.E. 954; Kovacevic v. City of Chicago (1977), 47 Ill. App. 3d 674, *1003 365 N.E.2d 104; Kahn v. Deerpark Investment Co. (1969), 115 Ill. App. 2d 121, 253 N.E.2d 121.) No notice has been shown in this case.
II
5 But even if we were to hold that the mains were personal property, or that because the suit was in chancery, no proof of a written conveyance was required (see Ross v. Ross (1950), 406 Ill. 598, 94 N.E.2d 885 (dictum)), we still find that there is no evidence ownership in the mains is in the defendant. The trial court held that the plaintiffs' predecessor in title was estopped to challenge defendant's title and plaintiffs as purchasers had no greater rights. Before an estoppel can be found, there must be reliance resulting in prejudice to the party claiming estoppel. (Ladd Construction Co. v. Insurance Co. of North America (1979), 73 Ill. App. 3d 43, 391 N.E.2d 568; Gasbarra v. St. James Hospital (1980), 85 Ill. App. 3d 32, 406 N.E.2d 544, appeal denied (1980), 81 Ill. 2d 590; Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 368 N.E.2d 702.) There is no evidence that defendant has suffered any injury here. It has not incurred any expense in relation to the lines or changed its position believing that it was owner thereof. To the contrary, while performing no service on the line it has benefitted by collecting revenues monthly for sewer service.
III
Defendant, relying on Weiss' testimony, argues in its brief that defendant had Oakview Builders build the sewer mains as its contractor. As already noted, Weiss only joined defendant in 1968 and since he had no personal knowledge of what occurred in 1965 and 1966 could not properly testify as to what occurred in those years.
We are aware that Oakview Builders in 1966 did sign one lien waiver. Despite this lien waiver, the overwhelming evidence discloses that defendant was not the initial owner and indeed had little actual knowledge of the construction. Since defendant did not own the mains in question and did not even have an easement in question until 1966, to the extent it ever acquired an easement, it could not, in 1965, have hired a contractor to build mains on someone else's property. Oakview, not defendant, paid for both work and supplies. Defendant did not pay for any part of the work at the time and in 1970 paid only a fraction of the total cost.
The defendant's records disclose that, far from ordering Oakview as contractor to construct the mains, it did not know how much had been done or how much the work had actually cost. It recorded $60,945 as construction costs on its books of account and on its improvement order. The waiver of lien from Oakview dated December 8, 1966, showed a total cost of $48,670.86. But the total cost of construction of all the mains defendant now claims it always owned was $125,000.
*1004 6 It is also clear that the defendant's records were not made during the normal course of construction. Construction of the sewer main was completed before the end of 1965, but the defendant's so-called improvement order is dated one year later despite Weiss' testimony that the company issued the order when the contractor was retained. Under the circumstances neither the improvement order, made not during the regular course of construction but at some later time, nor the books of account also made after construction was completed have probative value in this case as to the intent and understanding of the parties. Indeed it is doubtful whether they even came within the scope of Supreme Court Rule 236 (73 Ill.2d R. 236), which allows the consideration of business records as evidence, since they were not made at the time of the event or within a reasonable time thereafter.
Furthermore, the trial court by implication found that defendant was not the original owner of the mains since it held that "the sum of the evidence equates to such a definitive transfer."
7 The trial court found such transfer based on documentation, conduct, and long-standing acquiescence. As this court has already held, Oakview's conduct and long-standing acquiescence were insufficient to give rise to an estoppel since there was no prejudice to the defendant. We further hold that the documentation in evidence is insufficient to transfer either the on-site mains or the 23-foot sewer main to the defendant. The on-site sewer mains are not even referred to in the "Grant of Perpetual Right and Easement." That document granted an easement only to the "parcels of real estate designated or to be designated, within, along or under the parcels of real estate shown by said Exhibit A," as "streets," "roads," and similar terms plus the area designated as a utility or drainage easement, that is the easement along Wolf Road. The property allegedly transferred in paragraph 3 is only that in the real estate shown on and described by Exhibit A. The only description on Exhibit A is the length of the property along Wolf Road. The depth of the property is not described. Indeed any other construction of the document would mean that defendant owned mains it could not maintain since it has no easement on the property through which they run. The applications for service also do not support defendant's contention that a transfer of the on-site mains was made. Those applications state "the applicant agrees to install and maintain at its own expense all service lines in the premises * * * and the company owns and shall maintain at the company's expense all mains * * *." Obviously the applicant owns the service lines. But it is not clear from the service applications whether the on-site mains are "service lines on the premises" or "mains." Absent clarification, this ambiguity would have to be construed against defendant as drafter of the document. (Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351; Crest Builders, Inc. v. *1005 Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 393 N.E.2d 107; Quest v. Robertson (1979), 71 Ill. App. 3d 678, 388 N.E.2d 1335, appeal denied (1979), 79 Ill. 2d 617.) It is however clarified by Larson's testimony before the Illinois Commerce Commission that the defendant's sewer mains run only and exclusively on Wolf Road; they did not claim any on-site mains.
The documents were also insufficient to transfer the 23-foot sewer main, even if it should be considered personal rather than real property. The easement only transferred sewer collection lines and effluent lines which may be used by the utility in sewerage collection treatment and disposal service. Likewise the service applications only acknowledge that the company owned and should maintain mains used in rendering service. There was, however, no evidence that the company had rendered any sewerage service and thus had used the mains for that purpose. To the contrary it was admitted that the company had not performed any maintenance work on the mains. Defendant has not filed the inspection reports required by law. The mains are not hooked up to any lines of defendant; they are hooked into the MSD's line. The permit to build and attach the main was issued to Oakview Builders, not to defendant, and was not transferable without written permission of the MSD. Lefkovitz testified that they never needed sanitary sewer service from defendant and it is apparent from the record that while defendant collected sewer charges for 10 years, it in fact rendered no service. Rendering no service, it did not use the mains and thus under the limitation in the alleged transfer agreements, the sewer mains do not belong to defendant.
We are aware that in 1970 the refund was based on revenues from both the water and sewer mains, and the receipt drawn up by defendant and signed by Oakview reflected that. But the undisputed testimony of Lefkovitz was that the agreement was that they would be repaid the cost of extending the water main and there was no agreement as to extending sewer lines. Defendant's conduct in 1970, while it may be relevant, cannot alter the effect of an agreement made in 1966.
Before the Illinois Commerce Commission defendant contended that there was an oral conveyance of the main. However, the trial court, as already noted, made its finding of transfer based on documentation, conduct and long-standing acquiescence. It did not find any oral conveyance and there was no competent evidence of any oral conveyance.
8 Defendant contends on appeal that we are bound by the trial court's findings and may not disturb them unless they are manifestly without support. But that rule is not applicable in this case where with minor exceptions the only competent and probative evidence is documentary. Where the evidence is documentary, the appellate court is not bound by the trial court's findings of fact but can examine the evidence and reach an *1006 independent conclusion. (Wolverine Insurance Co. v. Jockish (1980), 83 Ill. App. 3d 411, 403 N.E.2d 1290; Carlson v. Carlson (1979), 74 Ill. App. 3d 673, 393 N.E.2d 643; Barraia v. Donoghue (1977), 49 Ill. App. 3d 280, 364 N.E.2d 952.) In any event the appellate court may always reverse where, as here, the judgment or findings of the trial court are unsupported by the evidence. Jack Frost Sales, Inc. v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 933, 433 N.E.2d 951.
Since whether the sewer mains are considered real or personal property it is clear from the evidence that they were originally owned by Oakview and there is no evidence in the record to show they were transferred to defendant, the judgment of the trial court is reversed and judgment entered for plaintiffs.
Reversed; judgment entered for plaintiffs.
JOHNSON, P.J., and LINN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2525098/ | 17 N.Y.3d 953 (2011)
959 N.E.2d 1028
936 N.Y.S.2d 79
PEOPLE
v.
JACKSON.
Not in source.
Court of Appeals of New York.
November 18, 2011.
Application in criminal case for leave to appeal denied. (Read, J.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054685/ | IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 4, 2004 Session
OUTFITTERS SATELLITE, INC., AND EARTHTRAK VEHICLE
TRACKING SYSTEMS, INC., v. CIMA, INC., et al.
Direct Appeal from the Chancery Court for Davidson County
No. 02-795-II Hon. Carol McCoy, Chancellor
No. M2003-02074-COA-R3-CV - February 8, 2005
This case involves a dispute over the enforcement of non-compete and confidentiality agreements
in an employment contract. A company selling satellite telephone and GPS equipment filed suit in
the Chancery Court for Davidson County seeking to enforce a non-compete agreement against a
former employee who was allegedly interfering with its business relations with customers and
suppliers. Following a bench trial, the Trial Court determined that the employee had breached the
agreements and enjoined the employee from competing with his former employer for one year in
North America. The employee has appealed, asserting that the non-compete agreement is
unenforceable or, in the alternative, that its geographic coverage is too broad. We have determined
that the non-compete agreement is enforceable but that its geographic coverage should be limited
to the United States rather than to North America.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed, as
Modified.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which WILLIAM C. KOCH ,
JR., P.J. MS, and WILLIAM BRYAN CAIN , J., joined.
Henry Clay Barry, Lebanon, Tennessee, for Appellant.
David I. Komisar, Nashville, Tennessee, for Appellees.
OPINION
Plaintiffs, Outfitter Satellite, Inc. and EarthTRAK Vehicle Tracking Systems, Inc.,
brought this action against defendants CIMA, Inc. and its owner, Newell Smith, alleging that Smith,
a former employee of Outfitter, had interfered with Outfitter’s relationships with its customers and
entered into contractual discussions with Outfitter’s software developer, in violation of a non-
compete agreement signed by Smith with Outfitter. Plaintiffs sought a restraining order and
injunction prohibiting defendants from competing with plaintiffs and also sought attorney’s fees.
The Complaint was accompanied by several affidavits, and a copy of the Non-
Compete Agreement. The Trial Court, upon hearing the Application for a “Temporary Injunction”,
enjoined the defendants “from competing with plaintiff in the sales and service of satellite phone and
global vehicle satellite tracking equipment, including satellite subscription service, and from directly
or indirectly interfering, or contacting the customers, suppliers, dealers, vendors, and consultants .
. . “.
Subsequently, defendants filed a Motion to Dismiss, and asserted that CIMA, Inc.,
had been dissolved and requested that party be dismissed. The Court, responding to the Motion,
dismissed CIMA, Inc., as a defendant, and then held a trial on July 3, 2003. The Court noted that
Smith had moved to Venezuela during the pendency of the case, but the Court ordered the trial to
go forward, as Smith’s counsel appeared on defendant’s behalf. The evidence at trial established that
Smith’s employment agreement with Outfitter contains a non-compete clause which provides that
Smith will not be involved with any business which competes with Outfitter for twelve months
following the termination of his employment there, and will not interfere with any business
relationship of Outfitter for eighteen months. The non-compete clause recognizes that “there are no
geographical bounds to company sales via the internet and world wide web and other computer
systems, and thus, the prohibition likewise has not geographical limitation”. Likewise, the
Independent Contractor Consulting & Support Agreement between Outfitter and CIMA/Smith
contains a substantially similar non-compete clause, but the term is for three years.
At the conclusion of the evidentiary hearing, the Court found that the Contract
between CIMA/Smith and Outfitter contained a non-compete with a three year term and no
geographical boundaries. The Court found that there was also a confidentiality provision in the
Contract, and that the Contract retrieved from Smith’s computer between CIMA and Miletus
provided that CIMA would represent Miletus for GPS engineering services, web interface
development, and would assist with business development, sales, training, marketing, etc. The Court
held that Smith breached his agreement with Outfitter by entering into this agreement with Miletus
and interfering with its relationship with Outfitter. The Court found that Outfitter provided Smith
with training and education relating to the GPS business, and that Smith claimed to have gained
Outfitter a contract with Aguar for 500 Vistar units, as reflected by his invoice letter to Outfitter, and
that in May 2002, Smith was still using the product that Outfitter purchased from Miletus. The
Court found that Outfitter was entitled to a permanent injunction against Smith, to keep him from
-2-
competing with Outfitter, but refused to make it global in nature. The Court said that James T.
McKinley, President of Outfitter, had requested an injunction covering North America, which the
Court Ordered.
In the Final Order, the Court enjoined Smith from competing with Outfitter in North
America for one year, from July 3, 2003, and awarded Outfitter $15,680.50 in attorney’s fees. This
appeal followed.
We review the Trial Court’s finding of facts de novo accompanied by a presumption
of correctness, unless the evidence preponderates against the findings, but review questions of law
de novo with no presumption of correctness of the Trial Court’s ruling. Tenn. R. App. P. 13(d).
As this Court has previously explained:
Covenants not to compete, because they are in restraint of trade, are disfavored in
Tennessee. As such, they are construed strictly in favor of the employee. However,
when the restrictions are reasonable under some circumstances, these covenants are
enforceable. The factors that are relevant in determining whether a covenant not to
compete is reasonable include "the consideration supporting the agreements; the
threatened danger to the employer in the absence of such an agreement; the
economic hardship imposed on the employee by such a covenant; and whether or not
such a covenant should be inimical to public interest."
***
In Allright Auto Parks, our Supreme Court held that "the time and territorial limits
involved must be no greater than is necessary to protect the business interests of the
employer." However, while numerous cases could be cited where covenants have
been declared unreasonable because of their excessive territorial limits; these
provide little direction since the question of reasonableness must be decided on an
ad hoc basis. "As is stated by Professor Williston in his learned treatise on contracts,
the ultimate question in each case should be 'what is necessary for the protection of
the promissee's rights and is not injurious to the public.' " (quoting Williston on
Contracts, Vol. 5, s 1643, pp. 4606, 4608).
Baker v. Hooper, 50 S.W.3d 463, 469 (Tenn. Ct. App. 2001)(citations omitted).
Our Supreme Court has recognized that such covenants are enforceable “if they are
reasonable under the particular circumstances.” Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471, 472
(Tenn. 1984). The reasonableness of the restriction must be measured as of the time of the
agreement. Allright Auto Parks, Inc. v. Berry, 409 S.W.2d 361 (Tenn. 1966). A determination of
reasonableness includes consideration of both a time and geographical component, as well as a
requirement that the restraint must not exceed “what is needed to protect the employer’s legitimate
-3-
interests”. Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28 (Tenn. 1984); Selox, Inc. v.
Ford, 675 S.W.2d 474, 475 (Tenn. 1984).
The Supreme Court has also recognized that the employer's legitimate interests do
not include a restraint on "ordinary" competition. Hasty. It is reasonable, however, for an employer
to restrict a former employee’s contact with the employer’s customers where “customers tend to
associate the employer's business with the employee.” Id. at 473.
In this case, the agreement between Smith and Outfitter was made at a time when
Smith had already been working for Outfitter for a few months, and had already established himself
as a good salesman, according to McKinley. McKinley also stated that Smith took leads provided
by Outfitter and pursued them, becoming the “point man” for Outfitter’s customers and for some of
its vendors as well. Smith traveled for the company demonstrating its products, even traveling with
the military to Turkey and other locations. Outfitter clearly had a legitimate interest in restricting
Smith’s contacts with its customers and vendors on the event of his departure from the company,
because the proof established that these sources would likely have associated Outfitter’s business
primarily with Smith.
There is no question that there was consideration for the agreement, since Smith was
employed with and paid by Outfitter to promote its products, and was provided with leads, product
information, etc. Outfitter’s vulnerability was real, as demonstrated by the loss of business from its
customer in Venezuela and the loss of its relationship with Miletus after Smith left the company.
Enforcement of this non-compete agreement is also in the public interest, as it protects businesses
from being damaged by unfair competition. Thus, as the Trial Court properly held, the non-compete
agreement should be enforced under these circumstances.
A further question is whether the geographical boundary imposed was reasonable.
The Court ordered that the restraint would be for a period of one year from the time of judgment, and
would include the continent of North America.1 McKinley testified, however, that although his
business was somewhat global, he was only asking the court to enforce the non-compete agreement
within the US, where his business was primarily located. His testimony:
Q. Would you state to the Court your desire -- why you desire to have this
temporary injunction made permanent to the term of the contract period?
A. Yes. I am still engaged in marketing and selling vehicle tracking systems,
although not with the previous set of companies. And I would wish that the
noncompete and non-use provisions of the contract with CIMA and Nick
1
Smith takes no issue with the time limit placed on the non-compete. He takes issue with
the Court’s finding that his counsel “admitted that the defendant had no objection to the issuance of
the non-compete injunction as it applies to the North American continent.” Smith asserts that this
concession does not appear in the transcript, and we agree.
-4-
Smith be upheld by this Court so that it would protect me from Nick Smith
actually operating from within the United States where I am trying to do
primarily my business.
Notwithstanding McKinley’s testimony, the Court, in limiting the non-compete agreement to North
America rather than the US stated: “McKinley, on the witness stand, requested that the injunction
apply to North America”. Accordingly, the Trial Court’s Judgment will be modified to reflect the
geographical boundary as the United States, rather than North America. Otherwise, the Court’s
Judgment is reasonable and the proof supports the Trial Court’s factual determinations. Tenn. R.
App. P. 13(d).
Smith also argues the Trial Court erred in restricting him from doing business with
Outfitter’s vendors. The non-compete agreement that Smith voluntarily signed, however, clearly
states that Smith would not “interfere, or intervene or damage in any way the relationship of
[Outfitter] with its customers, employees, owners, directors, officers, affiliates, dealers, consultants,
vendors, or any other related or similar party” and further that those parties would not be contacted
at all, except in the promotion of Outfitter’s business. The legitimate interest that Outfitter had in
drafting the agreement in this manner was borne out by the fact that Smith later contacted Outfitter’s
software developer, Miletus, and the relationship between Outfitter and Miletus had ultimately been
damaged such that Outfitter was no longer able to use the software which it had paid to develop, and
which its customers depended on in the use of their equipment purchased from Outfitter. This type
of potential damage was obviously the reason that Outfitter asked Smith to sign the agreement, and
Smith agreed to those terms. The terms are reasonable and proper to protect Outfitter’s business
relationships with its vendors. McKinley testified that those relationships were important to the
business because the software was expensive and time-consuming to develop, and thus those vendors
could not be easily replaced. Smith has advanced no valid reason that this agreement should not be
enforced as to Outfitter’s vendors as well as its customers.
Finally, Smith argues the Court erred in relying on the unsigned agreement between
Smith/CIMA and Miletus (which was retrieved from the computer Smith used) as a basis for finding
that Smith’s activities should be enjoined. The Court did note the existence of the draft agreement
in its findings, but did not find that it was entered or executed, as Smith claims. In her comments
from the bench, the Judge stated that Smith breached his agreement with Outfitters by “entering into
this agreement with Outfitter’s business relationship established with Miletus.” This was only one
of many reasons the Court found Smith to be in breach, however, and was not actually reflected as
such in the Court’s written judgment. As we have often observed, courts speak through their
minutes, and not oral pronouncements. See, Sparkle Laundry & Cleaners v. Kelton, 595 S.W.2d 88
(Tenn. Ct. App.1979).
Other proof regarding the relationship with Miletus was that Smith had contacted
Miletus after his relationship with Outfitter went sour, and Smith was accessing the Miletus software
3 months after his departure from Outfitter. Ultimately, the relationship between Outfitter and
Miletus broke down, which caused irreparable harm to Outfitter. This draft agreement was only one
-5-
of many factors that the Court had before it in determining that Smith was in breach, and the fact that
it was unexecuted does not negate its value as circumstantial evidence to be considered along with
the other proof. Moreover, Smith has not challenged the Trial Court’s finding that he was in breach
of the contract, he has only taken issue with enforcement of the non-compete clause. We find this
issue to be without merit.
The Trial Court’s Judgment is affirmed, as modified herein, and the cost of the appeal
is assessed to the defendant, Newell Smith.
_________________________
HERSCHEL PICKENS FRANKS, P.J.
-6- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/6321/ | UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2521
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN SAMUEL GONZALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
( April 15, 1994 )
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:
BACKGROUND
On January 24, 1993, Houston Police Department Officer Corley
observed Juan Gonzales and co-defendant Salvador Infante get out of
a cab at the bus terminal. Officer Corley noticed that the pair
visually scanned the area but did not speak to one another.
Gonzales retrieved a blue hardside suitcase from the back of the
cab and carried on his shoulder a gray bag; Infante carried a black
canvas suitcase and a backpack. As Infante was heading to the
ticket line, he turned and motioned for Gonzales to continue to the
back toward the seating area. Corley then observed Gonzales
standing against a wall in the seating area staring and rapidly
scanning the waiting area as he clutched the shoulder bag tightly.
Sergeant Ellis and DEA Agent Roach accompanied Corley, but remained
a short distance away as he approached and questioned Gonzales.
Corley walked up to Gonzales, got out his identification, showed it
to him, said he was a police officer, and asked if could talk to
him for a minute; Gonzales immediately dropped the shoulder bag to
the ground and Corley noticed that it sounded very solid unlike
clothing. As Corley asked Gonzales about his travel plans,
Gonzales became more and more nervous. Then Corley asked him if
the bags were his; Gonzales responded that neither bag was his and
that he had never seen them before. Considering the bags
abandoned, Corley searched the bags and found eight kilos of
cocaine in the shoulder bag. Gonzales was arrested; shortly
thereafter, a trained dog alerted to Infante's suitcase; Infante
also disclaimed ownership, but was in possession of the claim check
for the suitcase. The officers found nine kilos of cocaine in the
suitcase.
On February 24, 1993, Gonzales pleaded not guilty at his
arraignment. On March 15th, he filed a motion to suppress the
cocaine seized as the product of a tainted search. In a letter
dated March 22, 1993, counsel for Gonzales asked the Government to
allow Gonzales to make a conditional guilty plea in order that he
might preserve his eligibility for a three-level adjustment under
§ 3E1.1 and his ability to appeal an adverse ruling on the
suppression motion. The Government declined the offer. At the
2
beginning of the trial, the parties agreed to carry the suppression
hearing with a bench trial. The Government called Officer Corley,
Officer Ellis, and Agent Roach as witnesses; Gonzales testified for
the defense. After all of the testimony, the district court denied
the motion to suppress and found the defendant guilty on both
counts. In accordance with § 2D1.1, the probation officer
determined the base offense level to be 34 (at least 15 kilograms
but less than 50 kilograms of cocaine), based on the laboratory
results showing a total of 29.2 kilograms of cocaine seized from
both bags. A two-level adjustment was made for acceptance of
responsibility. Applying a total offense level of 32 to a criminal
history category of III yielded a guideline imprisonment range of
151 to 188 months. At the sentencing hearing, the defendant's
objection to the denial of the additional point for acceptance of
responsibility notwithstanding, the district court adopted the PSR
recommendations and sentenced Gonzales to 168 months on each count
to run concurrently. OPINION
Gonzales argues that the district court erred in refusing to
grant an additional one-level reduction for acceptance of
responsibility pursuant to § 3E1.1(b)(2). This Court reviews a
district court's finding on acceptance of responsibility for clear
error but under a standard of review even more deferential than a
pure "clearly erroneous" standard. United States v. Tello, 9 F.3d
3
1119, 1122 (5th Cir. 1993) (internal citations and quotation
omitted). Appellate review of sentences imposed under the
guidelines is limited to a determination whether the sentence was
imposed in violation of law, as a result of an incorrect
application of the sentencing guidelines, or was outside of the
applicable guideline range and was unreasonable. United States v.
Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, 114. S.Ct. 395
(1993). Application of the guidelines is a question of law subject
to de novo review. Id.
Section 3E1.1(b) established a tripartite test to determine
entitlement to the additional one-level decrease for acceptance of
responsibility. United States v. Mills, 9 F.3d 1132, 1136 (5th
Cir. 1993). The sentencing court is directed to grant the
additional one-level decrease in the defendant's offense level if
(i) the defendant qualifies for the two-level decrease under §
3E1.1(a) for acceptance of responsibility; (ii) the defendant's
offense level is 16 or higher before the two-level reduction under
§ 3E1.1(a); and (iii) the defendant timely "`assisted authorities'"
by taking "one--but not necessarily both--of two `steps': either
(a) `timely' furnishing information to the prosecution about the
defendant's own involvement in the offense (subsection (b)(1)); or
(b) `timely' notifying the authorities that the defendant will
enter a guilty plea (subsection (b)(2))." United States v. Tello,
9 F.3d at 1124-25. To satisfy the third element of the test1, the
defendant's notification to the Government and the district court
1
Section 3E1.1(b)(1) is not at issue in this case.
4
must be made sufficiently early so that the Government can avoid
preparing for trial and the court is able to manage its calendar
efficiently without taking the defendant's trial into
consideration. Id. at 1125-26; § 3E1.1(b)(2). If the defendant
satisfies all three prongs of the test, the district court is
"without any sentencing discretion whatsoever" to deny the
additional one-level decrease. Mills, 9 F.3d at 1139.
Because Gonzales received the basic two-level downward
adjustment under § 3E1.1(a) and because his offense level prior to
such adjustment was 34, the first two prongs of the test were
satisfied. With respect to the third prong, the district court
considered, but overruled without comment, Gonzales' argument that
the conditional plea offered by his counsel's letter of March 22nd
evinced an intent to notify timely the Government and the court
that he intended to plead guilty. Although Gonzales might have
saved the court some time by agreeing to proceed with a bench
trial, it is undisputed that (i) Gonzales did not at any time enter
an actual guilty plea, and (ii) the suppression hearing was in
effect the substantive equivalent of a full trial, which required
full preparation by the Government and allocation of the court's
resources. See United States v. Morillo, 8 F.3d 864, 872 (1st Cir.
1993) (conditional offer to plead does not meet standard of §
3E1.1(b)(2), because until the contingency is removed, the
prosecution must still prepare for trial and the court must still
reserve calendar time). Accordingly, the district court did not
5
clearly err in refusing to treat the conditional offer to plead or
the acquiescence to a bench trial as a notification within the
purview of § 3E1.1(b)(2).
AFFIRMED.
wjl\opin\93-2521.opn
hrd 6 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2543782/ | 53 So.3d 1034 (2011)
DARBY
v.
STATE.
No. 2D10-710.
District Court of Appeal of Florida, Second District.
January 26, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023685/ | JUSTICE CAMPBELL delivered the opinion of the court: Plaintiff, Francis M. Ganz, appeals from the trial court’s order dismissing his amended complaint for declaratory judgment filed against James B. Zagel, Director, State of Illinois, Department of State Police (the Department). Plaintiff, a former probationary State Police trooper, had sought a declaration that he had a property right to a change of field training officers (FTOs), a procedure set forth in the Department’s Field Training Manual, and a declaration that his resignation from the Department should be rescinded. For the following reasons, the judgment of the trial court is affirmed. The record indicates that on December 15, 1985, the Department hired plaintiff as a probationary State Police trooper. On April 4, 1986, after 16 weeks at the Springfield State Police Academy, plaintiff graduated and was assigned to field training. During field training, plaintiff initially received favorable ratings from three State Police troopers. He was then assigned to field training officer Eileen Daley. As a result of a personality conflict with FTO Daley, on May 31, 1986, plaintiff submitted a written request to Master/Sergeant Hall asking for a reassignment to a different FTO. The request was denied. Consequently, on June 5, 1986, plaintiff resigned from the Department. On July 14, 1986, plaintiff requested that his resignation be rescinded. The Department refused his request on October 31,1986. On March 30, 1987, plaintiff filed his complaint for declaratory judgment, requesting that: (1) the court declare that, pursuant to the Department’s Field Training Manual, plaintiff had a property right to request a change in FTO’s; (2) plaintiff’s resignation be rescinded on the ground that it was coercive and involuntary as the result of the denial of his property right to change FTOs; (3) plaintiff be reinstated to the probationary rank of a State Police trooper; and (4) the Department pay the plaintiff reasonable attorney fees and court costs. The trial court granted the Department’s motion to dismiss for failure to state a cause of action without prejudice and, on October 9, 1987, plaintiff filed his amended complaint for declaratory judgment. In his amended complaint, plaintiff added allegations that: (1) the Department’s custom and practice to grant FTO changes had been verbally stated to him by Master/Sergeant Hall at one of the academy sessions; (2) the custom and practice had been implemented for five probationary officers; (3) the custom and practice together with the field training program’s principal goal impose an obligation upon the Department; and (4) based upon the manual provisions and the custom and practice, plaintiff had a property right to such a change. The Department moved to dismiss plaintiff’s amended complaint on the ground that he had no property right to request and to be granted a change in FTOs. The trial court granted the Department’s motion, stating: “It is this Court’s opinion that the provisions of the manual requiring a supervisor’s discretion do not create a property right in this regard, nor has plaintiff effectively pleaded a case for a long standing custom and practice within the Department. He names five officers, presumably part of his class, who were granted changes of their F.TO.’s, their field training officers. This is not sufficient to create a property right in the Plaintiff. It is well established case law that a probationary police officer has no property right in his employment and I cite Sullivan v. Bd. of Police Commissioners, 103 Ill. App. 3d 167. Accordingly this Court finds such an officer has no property right to challenge this Department’s refusal to rescind his resignation. The duties of a police officer are demanding and this Court cannot presuppose upon the Department’s discretion in determining how best to test the mettle of a probationary officer.” Plaintiff’s timely appeal followed. The sole issue on appeal is whether the Department’s Field Training Manual created a property right in plaintiff which entitled him to a change in FTOs. Plaintiff argues that the policy set forth on pages 22 and 23 of the Department’s Field Training Manual (FTO Change Policy) plus the Department’s custom and practice in implementing that policy created a property right entitling him to a change in FTOs. The FTO Change Policy provided: “The FTO Supervisor must monitor the overall training and evaluation of probationary troopers to ensure that the Field Training Officer maintains objectivity throughout his/her contact with the probationary trooper. If a personality conflict or a loss of objectivity is observed, the FTO Supervisor shall immediately counsel the FTO. If necessary, the FTO Supervisor should make appropriate changes in assignment, rotating the probationary trooper to another Field Training Officer. The decision to rotate the probationary trooper to another FTO must be fully documented and both parties informed of the reasons for the decision in order to minimize misunderstanding and possible ill feelings.” Initially, plaintiff relies on Begg v. Moffitt (N.D. Ill. 1983), 555 F. Supp. 1344, for the definition of “property right.” In Begg, plaintiff, a police officer, alleged, inter alia, that he had been denied the opportunity to engage in part-time off-duty employment and had been denied pay increases in violation of the fourteenth amendment. Defendant moved to dismiss. In holding that plaintiff had alleged a constitutionally protected property right, the Begg court found that: (1) plaintiff had alleged a long-standing custom and practice of permitting outside employment; and (2) mandatory language of the contract between plaintiff’s union and the city provided for pay increases based on longevity, unless there was cause for denying the increase. Plaintiff’s reliance on Begg is misplaced for several reasons. First, plaintiff relies on part of the Begg court’s definition of property interest and conveniently overlooks that part of the definition which does not support his position. Specifically, plaintiff focuses on the Begg court’s statement that if mutually explicit understandings exist that support a person’s claim of entitlement to a benefit, that person’s interest in the benefit is a property interest for due process reasons. Thus, plaintiff argues that because the FTO Change Policy was a mutually explicit understanding, he has a property interest. However, plaintiff overlooks the Begg court’s further analysis that the standard for determining whether a property interest exists is one of cause, and in order to assert a property interest, plaintiff must establish that he cannot lose the benefit except for cause. In Begg, the contract between plaintiff’s union and the city met this standard by creating a legitimate expectation in the benefit with mandatory language such as “will” and “shall” and indicating that this benefit could not be denied except for cause. In the present case, unlike in Begg, the FTO Change Policy contains both mandatory and discretionary language. The first two sentences and the last sentence are mandatory: “The FTO Supervisor must monitor the overall training and evaluation of probationary troopers to ensure that the Field Training Officer maintains objectivity throughout his/her contact with the probationary trooper. If a personality conflict or a loss of objectivity is observed, the FTO Supervisor shall immediately counsel the FTO. *** The decision to rotate the probationary trooper to another FTO must be fully documented and both parties informed of the reasons for the decision in order to minimize misunderstanding and possible ill feelings.” Plaintiff does not allege that the Department violated any of the mandatory statements, i.e., plaintiff did not allege that the supervisor had failed to monitor the training or that the supervisor had failed to counsel the FTO in the event of a personality conflict. With respect to the last mandatory sentence of the FTO Change Policy, because the decision to rotate FTO’s was never made, that sentence is irrelevant to this case. By contrast, the sentence in the FTO Change Policy which is pivotal to plaintiff’s argument uses discretionary language: “If necessary, the FTO supervisor should make appropriate changes in assignment, rotating the probationary trooper to another Field Training Officer.” On its face, the FTO Change Policy indicates that the decision to change the FTO is discretionary with the supervisor. Therefore, no legitimate expectation of the benefit exists because the benefit can be denied in the absence of cause. Begg is further distinguishable on the ground that plaintiff in the present case has not sufficiently alleged a “long standing practice” of changing FTOs whenever a personality conflict exists. Plaintiff alleges that FTOs were changed for five of his fellow probationary officers and that the custom and practice had been verbally stated to him by his Master/Sergeant during one of the academy sessions. However, plaintiff’s allegations are insufficient to show long-standing custom and practice for two reasons. First, the time period between the start of FTO training for plaintiff’s academy class and plaintiff’s resignation from the Department was less than two months. Thus, the FTO changes relied upon by plaintiff to establish long-standing custom and practice occurred during a two-month period at the maximum. Second, plaintiff fails to indicate how many FTO change requests had been made during the time the five were granted. The fact that five FTO changes had been granted would not establish custom and practice if numerous such requests had been denied. Plaintiff further argues that his request had not been “given any consideration ***, resulting in a forced resignation.” However, the record belies this argument. Paragraph 12 of plaintiff’s amended complaint states that State Trooper James Vandenbergh supported his request for a change. In addition, the last paragraph of the memo dated May 31, 1986, written to Master/Sergeant Hall from plaintiff thanked Hall “for being the only officer of the State Police to take the time to listen to my side of the situation and show genuine concern.” Finally, plaintiff’s resignation stated that he was resigning to “seek *** other employment” and that the resignation was executed “freely and voluntarily.” Plaintiff farther argues that, pursuant to Duldulao v. St. Mary of Nazareth Hospital Center (1985), 136 Ill. App. 3d 763, 483 N.E.2d 956, modified on other grounds (1987), 115 Ill. 2d 482, 505 N.E.2d 314 (1987), the Department’s manual created a property right in the FTO Change Policy. Duldulao is distinguishable from the present case on the ground that, in Duldulao, defendant had failed to follow mandatory procedures for discharge set forth in the employee handbook. In the present case, the relevant sentence in the FTO Change Policy is discretionary, not mandatory. Thus, even if the Department’s training manual was binding upon the Department, the decision to change the FTO is still discretionary with the FTO super-visor. Finally, plaintiff attempts to distinguish Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636, the case relied upon by the trial court in reaching its decision. Plaintiff claims that Sullivan has no application to the present case because it contradicted by his analysis of other cases that have established property rights based upon custom and practice. In light of the fact that plaintiff has failed to establish custom and practice, we find his distinction unpersuasive. In Sullivan, plaintiff, a probationary police officer in the Village of Lisle, was discharged following a psychological examination. Plaintiff sought a declaration that his discharge was the result of the examination which, contrary to the relevant provisions of the Illinois Municipal Code, was not practical in character and did not fairly test his abilities. The Sullivan court held that nothing in the statute created a vested right to a certain type of exam and that the language merely established a procedure, which plaintiff had standing to assert had not been followed. However, plaintiff had not made such an assertion. Similarly, in the present case, the FTO Change Policy creates a procedure to change FTO’s in the event of a personality conflict. The FTO Change Policy mandates that the FTO supervisor monitor the training and counsel the FTO in the event of personality conflict, but it does not mandate that FTOs be changed. As stated, plaintiff did not allege that the mandated procedures had not been followed. Our determination that the Field Training Manual did not create a property right in plaintiff which entitled him to a change in FTOs obviates the need to address the Department’s alternative argument that plaintiff divested himself of any property right when he resigned from the Department. For the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed. Affirmed. MANNING, P.J., and O’CONNOR, J., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2154604/ | 963 A.2d 568 (2008)
COM.
v.
LEICHLITER.
No. 1273 WDA 2007.
Superior Court of Pennsylvania.
September 10, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/24883/ | UNITED STATES COURT OF APPEALS
For the Fifth Circuit
_______________________________________
No. 00-31153
SUMMARY CALENDAR
_______________________________________
SHAWN LEMAIRE, Individually and as tutor on behalf of
Lemaire; MISTY T. LEMAIRE
Plaintiffs–Appellants
v.
DANOS & CUROLE MARINE CONTRACTORS INC; ET AL
Defendants
DANOS & CUROLE MARINE CONTRACTORS INC; CHARLES PHILLIPS
Defendants–Appellees.
______________________________________________________
On Appeal from the United States District Court
for the Western District of Louisiana
(98-CV-51)
______________________________________________________
July 10, 2001
Before REYNALDO G. GARZA, DAVIS, and DENNIS, Circuit Judges.
PER CURIAM:1
This dispute arises out of an accident that occurred on a
production platform owned by Texaco, Inc. (“Texaco”) off the
coast of Louisiana2. Shawn Lemaire was disassembling a valve
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
2
It is undisputed that the accident occurred more than three
miles off the coast of Louisiana on the outer-continental shelf.
-1-
when the top of the valve blew off and struck Lemaire in the
head. Lemaire asserts he suffered a skull fracture, two
lacerations, a severed nerve, severe headaches, dizziness, and
nerve problems. Lemaire brought suit against another man who was
working on the platform, Charles Phillips, & Phillip’s employer
Danos & Curole Marine Contractors under the Outer Continental
Lands Shelf Act, 43 U.S.C. § 1331, et seq. Phillips moved for
summary judgment on the ground that he and Lemaire are co-
employees, and, therefore, he is immune from suit by a co-
employee under the Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. § 901, et seq. Danos & Curole Marine Contractors
moved for summary judgment on the ground that both Phillips and
Lemaire were Texaco’s borrowed employees, and, therefore, any
negligence on the part of Phillips cannot be imputed to Danos &
Curole Marine Contractors.
The district court granted the defendants’ motions for
summary judgment. Having read and considered the record and
arguments of counsel, we AFFIRM the decision of the district
court based on its memorandum opinion which is attached hereto as
Appendix A.
-2-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE/OPELOUSAS DIVISION
SHAWN LEMAIRE, ET AL CIVIL ACTION NUMBER: 98-0051
VERSUS JUDGE DOHERTY
DANOS & CUROLE MARINE MAGISTRATE JUDGE METHVIN
MEMORANDUM RULING
Before this Court is a Motion for Summary Judgment [doc.
#37] filed on behalf of defendants, Danos & Curole Marine
Contractors, Inc. (“D&C”) and Charles Phillips (“Phillips”).
Defendants’ Motion for Summary Judgment is based upon their
contention there is no genuine issue of material fact as to
whether Shawn LeMaire (“LeMaire”) and Phillips are the borrowed
employees of Texaco, Inc. ("Texaco") and therefore, co-employees
as defined by the Longshore & Harbor Workers' Compensation Act,
33 U.S.C. § 901, et seq. ("LHWCA").
In summary, defendants, D&C and Phillips, assert that, as a
matter of law, LeMaire and Phillips are the borrowed employees of
Texaco and that LeMaire is barred from any recovery against his
co-employee, Phillips. Defendants further assert plaintiff’s
claims against defendants, D&C and Phillips, pursuant to the
Outer Continental Lands Shelf Act, 43 U.S.C. § 1331, et seq.
(“OCLSA”) and the LHWCA should be dismissed on the basis that
LeMaire and Phillips are borrowed employees of Texaco and thus,
co-employees under the LHWCA. Pursuant to the LHWCA, Phillips
and Phillips’ nominal employer, D&C, would be immune from tort
liability as any negligence on Phillips' part would be imputed to
Texaco as Phillips' borrowing employer, and not to D&C, Phillips'
nominal employer.
In opposing this motion, plaintiff asserts those sections of
the LHWCA granting immunity from tort liability to co-employees
should not apply. Rather, the OCSLA, 43 U.S.C. § 1333, requires
that state law be applied regarding third party negligence or
immunity and damages. Plaintiff also asserts there are genuine
issues of material fact as to whether LeMaire and Phillips were
“borrowed employees” of Texaco. Plaintiff further asserts
genuine issues of material fact exist as to whether LeMaire was a
“co-employee” of D&C’s employee, Phillips, within the meaning of
the LHWCA, 33 U.S.C. § 901, et seq.
To rule on defendants' motion, the Court must determine
whether LeMaire and/or Phillips were the borrowed employees of
Texaco as a matter of law, and thus, co-employees of Texaco as
defined by the LHWCA.
Background
On or about December 14, 1996, Shawn LeMaire, plaintiff, was
employed by Steen Production Services, Inc. ("Steen") as a C
Operator. Plaintiff was working at a job site owned by Texaco,
Inc. ("Texaco") in the Gulf of Mexico on a fixed platform located
at West Cameron Block 643-B. LeMaire dep. pgs. 37, 74. It is
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undisputed that the platform is located more than three miles off
the coast of Louisiana on the outer continental shelf.
Prior to his alleged accident, LeMaire had worked
continuously in the Texaco 643 field for approximately three
months. LeMaire dep. p. 37. On the day plaintiff was allegedly
injured, LeMaire was assisting defendant Charles Phillips
("Phillips"). Phillips was an employee of defendant, Danos &
Curole Marine Contractors, Inc. ("D&C"). Phillips usually worked
the opposite shift of LeMaire. However, on this particular
shift, Phillips stayed on the platform for additional days
because another person was off. LeMaire depo. p. 94; Ardoin &
Flice depo., pps. 28-30. Prior to LeMaire's alleged accident,
Phillips had worked continuously in the Texaco 643 field for one
year. Phillips dep. pgs. 10, 41; Solar, a representative of
Steen, dep. p. 35.
On the day of the alleged accident, Phillips was removing
the last bolt from a Series 357 Control Valve when he became
tired. Plaintiff began to help Phillips remove the bolt when the
valve blew off and struck plaintiff in the head and knocked him
backwards on to the grating causing him to injure his head, neck
and back. Plaintiff asserts that as a direct result of this
accident, he sustained injuries including a skull fracture, two
lacerations requiring stitches, a severed nerve, severe
headaches, dizziness and nervous problems.
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It is undisputed that at the time of LeMaire's alleged
accident, both D&C and Steen were under contract with Texaco to
provide employees to operate Texaco platforms offshore and work
as directed by Texaco employees. LeMaire dep. p. 37; Solar dep.
p. 12. While on the Texaco project, LeMaire and Phillips
normally worked schedules of seven days on and seven days off.
Phillips dep. p. 37; LeMaire dep. p. 38. Texaco provided their
sleeping quarters, their meals and their transportation to and
from the job. Phillips dep. p. 36; LeMaire dep. pgs. 44-45, 55-
56, 64. Phillips' immediate supervisor was Texaco Lead Operator,
Kenneth Domingue. Phillips dep. pgs. 39-40. However, because
Phillips had agreed to work over his seven day shift on the date
of the accident, he and LeMaire were both supervised by Texaco
Lead Operator, Richard Remo Ardoin. Id.; Ardoin & Flice dep.
pgs. 24, 67-69.
Texaco employees gave LeMaire and Phillips instructions
regarding where to work and what to do. Phillips dep. p. 41;
LeMaire dep. p. 73; Ardoin & Flice dep. pgs. 55-56. Both LeMaire
and Phillips performed the work of Texaco and the evidence
provided this Court establishes the two men consented to the work
situation. Solar dep. p. 34; Ardoin & Flice dep. p. 59. Texaco
supervisors provided direct orders to and had control over
LeMaire and Phillips concerning their work duties. Phillips dep.
p. 39; LeMaire dep. p. 73; Ardoin & Flice dep. p. 55. No D&C or
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Steen supervisors were sent out to any of the Texaco jobs.
Phillips dep. p. 39.
LeMaire and Phillips performed Texaco's work. Ardoin &
Flice dep. pgs. 56, 62, 69. Texaco could not terminate LeMaire
or Phillips' employment with their nominal employers; however, if
Texaco was not satisfied with the work that Phillips or LeMaire
was doing, a Texaco supervisor could have either man discharged
from his position on the Texaco platform by simply calling the
offices of their “nominal” employers and mentioning that their
services were no longer needed. Phillips dep. p. 42; LeMaire
dep. p. 65; Ardoin & Flice dep. pgs. 59-62.
Law and Discussion
Pursuant to the OCSLA, 43 U.S.C. § 1331, et seq., the LHWCA,
33 U.S.C. § 901, et seq. is the law applicable to provide an
injured offshore worker compensation benefits. As the LHWCA
applies, it preempts “the application of the idiosyncrasies of
the Louisiana Workers’ Compensation scheme.” Perron v. Bell
Maintenance and Fabricators, Inc., 970 F.2d 1409, 1411 (5th Cir.
l992). However, outside of the Workers’ Compensation arena, the
OCSLA makes the tort law of the adjacent state surrogate federal
law and thus applicable to any tort-based cause of action for
those offshore injuries. See 43 U.S.C. § 1381, et seq. In other
words, were the plaintiff to have a remedy in tort against a non-
employer and thus, outside the LHWCA, this Court would apply the
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substantive tort law of Louisiana. However, should this
plaintiff not have a tort remedy available against defendants D&C
and Phillips for the reasons urged by D&C and Phillips, LeMaire
would be limited to LHWCA benefits as the LHWCA is the workers’
compensation scheme applicable to an offshore worker, such as the
plaintiff, who sustains a work related injury on the Outer
Continental Shelf.
D&C and Phillips argue LeMaire and Phillips are both
borrowed employees of Texaco and thus, LeMaire cannot sue his co-
employee. "The question of borrowed-employee status is a
question of law for the district court to determine." Billizon
v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir.), reh'g denied, 3
F.3d 441 (1993). However, "in some cases, factual disputes must
be resolved before the district court can make its legal
determination." Id. The Fifth Circuit has set out the following
nine (9) factors which must be considered in determining borrowed
employee status:
1. Who had control over the employee and the work he was
performing, beyond mere suggestion of details or cooperation?
2. Whose work was being performed?
3. Was there an agreement, understanding, or meeting of
the minds between the original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship
with the employee?
6. Who furnished tools and place for performance?
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7. Was the new employment over a considerable length of
time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?
Id. (citing Brown v. Union Oil Co. of California, 984 F.2d 674,
676 (5th Cir. 1993)). The Fifth Circuit "has held many times
that no single factor is determinative." Id. at 106.3
In addition to considering the above factors, this Court
reviews defendant's Motion for Summary Judgment under the
standard set out in Rule 56 of the Federal Rules of Civil
Procedure. Rule 56 provides that summary judgment shall be
rendered when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. No
genuine issue of fact exists if the record, taken as a whole,
could not lead a rational trier of fact to find for the non-
moving party. Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The plaintiff must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986). Plaintiff must make a showing
sufficient to establish the existence of an element essential to
his case, and on which he will bear the burden of proof at trial.
3
However, the court has also stated that the first factor is the "central issue" of
borrowed employee status, Melancon v. Amoco Production Co., 834 F.2d 1238, 1245 (5th Cir.)
amended, 841 F.2d 572 (1988). In other cases, the Fifth Circuit has stressed the importance of
the fourth, fifth, sixth, and seventh factors of borrowed employee status. See Id., n. 12.
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Fields v. Hallsville Independent School District, 906 F.2d 1017
(5th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-323 (1986)). In Anderson, the Supreme Court held that the
"inquiry involved in a ruling on a motion for summary judgment
... necessarily implicates the substantive evidentiary standard
of proof that would apply to trial on the merits." The judge
must decide:
[W]hether a fair-minded jury could return a verdict for
the plaintiff on the evidence presented. The mere
existence of a scintilla of evidence in support of a
plaintiff's position will be insufficient; there must
be evidence on which the jury could reasonably find for
the plaintiff. The judge's inquiry, therefore,
unavoidably asks whether reasonable jurors could find
by a preponderance of the evidence that the plaintiff
is entitled to a verdict....
Anderson, 477 U.S. at 252.
A. Was Plaintiff the Borrowed Employee of Texaco?
1. Who had control over plaintiff and the work he was
performing, beyond mere suggestion of details or cooperation?
Regardless of the presence or absence of Texaco employees on
the Texaco platform 643-B at the actual time of the alleged
accident, the evidence provided the Court is undisputed LeMaire
was instructed by Texaco's employees. Of the four or five months
of his employment with Steen, LeMaire spent the three months
prior to his alleged accident reporting directly to Texaco's
platform. During his work for Texaco, LeMaire filled out a daily
log of his work hours in order to be paid for the job he was
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performing for Texaco. LeMaire dep. p. 70. The only contact
LeMaire had with Steen was to report his hours and receive his
paycheck. Accordingly, this Court finds that as to factor one
(1), Texaco had control over LeMaire and the work he was
performing.
2. Whose work was being performed?
Plaintiff controverts defendants' statement that "[b]oth
LeMaire and Phillips were doing work only for Texaco while on the
Texaco jobs," on the grounds that both LeMaire and Phillips were
doing work for their respective employers, Steen and D&C, which
involved work for Texaco under contract. However, plaintiff's
assertion embodies the nature of the "borrowed employee." The
evidence provided this Court establishes no question exists that
the work performed by LeMaire and Phillips was Texaco's work.
LeMaire dep. p. 73; Ardoin & Flice dep. pgs. 56, 62, 69.
Accordingly, this Court finds that LeMaire was performing
Texaco's work.
3. Was there an agreement, understanding, or meeting of
the minds between the original and borrowing employer?
Plaintiff asserts in his Statement of Material Facts, page
3, that the contract between Texaco and Steen provided that Steen
was an independent contractor and that its employees were not
subject to Texaco's control. However, a contract provision such
as the one described above does not bar a borrowed employee's
status. Brown, 984 F.2d at 677; Melancon, 834 F.2d at 1245. The
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parties' actions in carrying out the contract can provide an
implied modification or waiver of such an express provision. Id.
As defendants assert, no written agreement is even required.
Billizon, 993 F.2d at 105-106.
In Billizon, the only disputed issue before the Court was
whether the existence of a contract provision "purporting to
prohibit borrowed-employee status [made] the district court's
summary judgment inappropriate." 993 F.2d at 106. The Court
held that even assuming factor three weighed in favor of the
plaintiff's position, the remainder of the summary judgment
record established that the plaintiff was Conoco's borrowed
employee. Id.
In that case, the service contract governing the
relationship between Conoco and the plaintiff's nominal employer,
D&C, provided that the employees of D&C were not the employees of
Conoco. However, the Court stated that it is "the reality of the
work site and the [parties'] actions" in carrying out a contract
that established for the Court that the two employers had the
contrary "'understanding or meeting of the minds'". Id.
Despite the contrary provisions in the contract between
Steen and Texaco, the facts and testimony provided this Court
indicate that Texaco controlled the work performed by LeMaire.
Donald Solar, a representative of Steen, LeMaire's direct
employer, stated in his deposition that, "We had a contract with
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Texaco to furnish personnel, but the detail job description that
was Texaco." Solar dep. p. 34. Solar also testified that Texaco
had exclusive day to day supervision over LeMaire when he was on
the Texaco job. Solar dep. p. 36.
In this case, like Billizon, only the third factor could
possibly support plaintiff's contention that he was not a
borrowed employee of Texaco. However, the Fifth Circuit has
repeatedly stated that "no single factor is determinative."
Billizon, 993 F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834
F.2d at 1245. Therefore, the Court must further examine the
remaining factors to determine LeMaire's status as Texaco's
borrowed employee.
4. Did the employee acquiesce in the new work situation?
The Court in Capps v. N.L. Baroid-NL Industries, Inc., 784
F.2d 615, 617 (5th Cir.) cert denied, 479 U.S. 838, 107 S. Ct. 141
(1986) states:
The fourth factor asks whether the employee acquiesced in
the new work situation. Since Capps worked for a company
that loaned temporary employees, Capps knew Davis would send
him into new work situations. Thus, going into new work
situations was Capps' work situation. When he went to work
for Davis, he acquiesced to the fact that Davis would
constantly send him into new work situations.
The facts of this case and the deposition testimony provided the
Court establish that LeMaire acquiesced in the work situation.
LeMaire worked for three months for Texaco under the conditions
previously mentioned which included eating and sleeping on
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Texaco's fixed platform. The Fifth Circuit has stated that
working for "one month is a sufficient amount of time for [the
employee] to appreciate the new work condition." Brown, 984 F.2d
at 678.
In Solar's deposition, he stated, as Steen's representative,
that LeMaire never protested to Solar regarding LeMaire's work
situation with Texaco through Steen. Solar dep. p. 34. Further,
Richard Ardoin, LeMaire's and Phillips' supervisor and Texaco's
Lead Operator on the date of plaintiff's alleged accident, stated
in his deposition that he never heard LeMaire protest doing
Texaco's work when LeMaire was sent out to Texaco's platform.
Ardoin & Flice dep. p. 59.
Accordingly, the Court finds pursuant to factor four (4) that
LeMaire did acquiesce in his working situation as an employee of
Steen and the borrowed employee of Texaco.
5. Did the original employer terminate his relationship
with the employee?
Under this factor, the Fifth Circuit has stated:
We do not believe that this factor requires a lending
employer to completely sever his relationship with the
employee. Such a requirement would effectively eliminate
the borrowed employee doctrine as there could never be two
employers. The emphasis when considering this factor should
focus on the lending employer's relationship with the
employee while the borrowing occurs.
Capps, 784 F.2d at 617-618. As previously stated, during his
employment with Steen, LeMaire worked under Texaco's supervision
and control.
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LeMaire stated in his deposition that the only supervision
on Texaco's platform was provided by either Texaco employees or
higher contract employees who were also working for Texaco.
LeMaire dep. p. 73. LeMaire's contact with Steen was limited to
reporting his hours to Steen. LeMaire had a copy of his time
sheet delivered to Steen so he could receive his paycheck for the
work he performed for Texaco. LeMaire dep. p. 70; Ardoin & Flice
dep. p. 62; Solar dep. p. 36. Ardoin stated in his deposition
that when the contract workers were on Texaco's platform, Texaco
had control over those workers. Ardoin & Flice dep. p. 55.
Ardoin also stated that even if he, or another Texaco employee,
was not actually on the Texaco platform in the presence of the
contract employees, Ardoin was still in charge of those
employees. Ardoin & Flice dep. p. 32. Robert Flice, a
representative of Texaco, stated in his deposition that Texaco
could send contract employees, like LeMaire and Phillips,
wherever Texaco wanted those employees to work. Ardoin & Flice
dep. p. 58.
Accordingly, the Court finds that Steen exercised no control
over plaintiff and placed no restrictions on Texaco with respect
to plaintiff's employment conditions. Capps, 784 F.2d 618.
Therefore, this Court finds that factor five (5) weighs in favor
of borrowed employee status.
6. Who furnished the tools and place for performance?
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Plaintiff's deposition establishes that "the tools and
equipment and platforms all belonged to Texaco". LeMaire dep. p.
73-4. Steen's representative also establishes in his deposition
that Texaco provided the tools with which LeMaire worked while
doing Texaco work. Solar dep. p. 35. It is undisputed that
Texaco provided the sleeping quarters in which LeMaire slept, the
meals that he ate, as well as LeMaire's transportation to and
from the job site while LeMaire worked for Texaco.
Accordingly, after reviewing the facts of this case, this
Court finds that factor six (6) weighs in favor of a finding of
borrowed employee status.
7. Was the new employment over a considerable length of
time?
The arrangement between LeMaire, Steen and Texaco existed
for approximately three months prior to plaintiff's alleged
accident. In Capps, the Fifth Circuit noted that "[w]here the
length of employment is considerable, this factor supports a
finding that the employee is a borrowed employee; however, the
converse is not true." 784 F.2d at 618. In that case, Capps'
injury occurred on the first day and the Fifth Circuit concluded
that this seventh factor was neutral. Id. In Billizon, the
Fifth Circuit found factor seven to be neutral when the plaintiff
had worked for Conoco for more than three months. 993 F.2d 106.
Similarly, because plaintiff only worked under Texaco's
supervision for three months in the instant case, this Court
-16-
finds that factor seven (7) is neutral.
8. Who had the right to discharge plaintiff?
No evidence was provided this Court indicating that Texaco
had the right to terminate LeMaire's employment with Steen.
However, in LeMaire's and Solar's depositions, they both
testified Texaco had the right to terminate LeMaire's work
relationship with Texaco. LeMaire dep. p. 65; Solar dep. p. 35.
The Fifth Circuit has stated that "[t]his arrangement is
sufficient to support a finding of borrowed servant status".
Brown, 984 F.2d at 679 (citing Melancon, 834 F.2d at 1246; Capps,
784 F.2d at 618). Accordingly, this Court finds that factor
eight (8) weighs in favor of a finding of borrowed employee
status.
9. Who had the obligation to pay the employee?
LeMaire's deposition establishes that Steen paid him,
however he only reported his hours to Steen based on the time he
spent working for Texaco. LeMaire dep. pgs. 48,70; Ardoin &
Flice dep. p. 66. In Billizon, Capps, and Melancon, the Fifth
Circuit found that this procedure supported borrowed employee
status. Therefore, this Court finds that factor nine (9) weighs
in favor of borrowed employee status. Billizon, 993 F.2d 105-
106; Melancon, 834 F.2d 1246; Capps, 784 F.2d 618.
Factors 1,2,4,5,6,8 and 9 support LeMaire's borrowed-
employee status. Although this Court finds factor seven is
-17-
neutral, the Fifth Circuit, in Billizon, has stated "the
neutrality of factor [seven] is insufficient to render the
district court's summary judgment inappropriate". 993 F.2d at
106. In that case, as stated above, the Court also found that
despite the question that existed regarding the third factor,
summary judgment was appropriate when the remaining factors
clearly pointed to borrowed-employee status. Id. This Court
finds, consistent with the Billizon Court, that even assuming
factor three weighs in favor of LeMaire's position, the remaining
factors support, and the evidence provided this Court
establishes, that LeMaire was Texaco's borrowed employee.
B. Was Defendant Phillips the Borrowed Employee of Texaco?
1. Who had control over Phillips and the work he was
performing, beyond mere suggestion of details or cooperation?
The deposition testimony of Phillips establishes that Texaco
employees gave all orders to Phillips. Phillips dep. p. 38-40.
Phillips was instructed by Texaco's employees. It is undisputed
that the foreman, a Texaco employee, decided where Phillips would
work on his seven day shift. Phillips dep. p. 38. Kenneth
Domingue, Texaco's lead operator, was Phillips' supervisor.
Phillips dep. p. 39.
Like LeMaire, during Phillips' work for Texaco, Phillips
filled out a weekly time book of his work hours in order to be
paid for the job he was performing for Texaco. Phillips dep.
-18-
pgs. 43-44. The only contact Phillips had with D&C was to report
his hours and receive his paycheck. Accordingly, this Court
finds that as to factor one (1), Texaco had control over Phillips
and the work he was performing.
2. Whose work was being performed?
Phillips' deposition testimony establishes that Phillips was
doing Texaco's work while he was working on Texaco's platform.
Phillips dep. p. 41. Accordingly, this Court finds that Phillips
was performing Texaco's work.
3. Was there an agreement, understanding, or meeting of
the minds between the original and borrowing employer?
Again, as to the contract between D&C and Texaco, plaintiff
asserts in his Statement of Material Facts, page 3, that the
contract between Texaco and D&C provided that D&C was an
independent contractor and that its employees were not subject to
Texaco's control. Likewise, this Court adopts the same analysis
as was used in reference to LeMaire and the contract between
Steen and Texaco.
Despite the contrary provision in the contract between D&C
and Texaco, the facts and deposition testimony provided the Court
indicate that Texaco controlled the work performed by Phillips.
In this case, like Billizon, only the third factor could possibly
support plaintiff's contention that Phillips was not a borrowed
employee of Texaco. However, the Fifth Circuit has repeatedly
stated that "no single factor is determinative." Billizon, 993
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F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834 F.2d at 1245.
Therefore, the Court must further examine the remaining factors
to determine Phillips' status as Texaco's borrowed employee.
4. Did the employee acquiesce in the new work situation?
The facts of this case dictate that Phillips acquiesced to
the work situation. Phillips worked for one year for Texaco
prior to the alleged accident. Phillips continued to work for
Texaco for a year and a half after the accident under the
conditions previously mentioned which included eating and
sleeping in Texaco's field. Accordingly, the Court finds
pursuant to factor four (4) that Phillips did acquiesce to his
working situation as an employee of D&C and the borrowed employee
of Texaco.
5. Did the original employer terminate his relationship
with the employee?
As previously stated, during his two and a half years of
employment with D&C, Phillips worked under Texaco's supervision
and control. Phillips' contact with D&C was limited to reporting
his hours so he could receive his paycheck. Phillips dep. pgs.
43-44; Ardoin & Flice dep. p. 66. Accordingly, the Court finds
that D&C exercised no control over Phillips and placed no
restrictions on Texaco with respect to Phillips' employment
conditions. Capps, 784 F.2d 618. Therefore, this Court finds
that factor five (5) weighs in favor of borrowed employee status.
6. Who furnished the tools and place for performance?
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Phillips' deposition establishes that Texaco furnished the
tools he used to perform his work for Texaco. Phillips dep. p.
43. It is undisputed that Texaco provided the sleeping quarters
in which Phillips slept, the meals that he ate, as well as
Phillips' transportation to and from the job site while Phillips
worked for Texaco. Further, all of Phillips' regular duties were
handled on the Texaco platforms where he was the lead operator.
LeMaire dep. pgs. 66-7. Accordingly, after reviewing the facts
of this case, this Court finds that factor six (6) weighs in
favor of a finding of borrowed employee status.
7. Was the new employment over a considerable length of
time?
The arrangement between Phillips, D&C and Texaco existed for
approximately a year prior to plaintiff's alleged accident and
Phillips continued to work as a Texaco "contract hand" for almost
a year and a half thereafter. Phillips dep. pgs. 41-2.
Considering the facts and the duration of Phillips' employment
with Texaco through D&C, this Court finds that factor seven (7)
weighs in favor of a finding of borrowed employee status.
8. Who had the right to discharge Phillips?
In Phillips' deposition, he testified that after almost two
and a half years of work for Texaco through D&C, the field
foreman, a Texaco employee, called D&C and told them that Texaco
no longer needed Phillips. Phillips' deposition establishes that
Texaco discharged Phillips from the Texaco work. Phillips was
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aware that Texaco could discharge him. Phillips dep. p. 42.
Accordingly, this Court determines that Texaco, and not D&C, had
the right to discharge Phillips from his work for Texaco.
Therefore, this Court finds that factor eight (8) weighs in favor
of a finding of borrowed employee status.
9. Who had the obligation to pay the employee?
Phillips' deposition establishes that D&C paid him, however
he only reported his hours to D&C based on the time he spent
working for Texaco. Phillips dep. p. 43. In Billizon, Capps,
and Melancon, the Fifth Circuit found that this procedure
supported borrowed employee status. Therefore, this Court finds
that factor nine (9) weighs in favor of borrowed employee status.
Billizon, 993 F.2d 105-106; Melancon, 834 F.2d 1246; Capps, 784
F.2d 618.
All factors, except factor three, support the borrowed-
employee status of Phillips. Once again, this Court relies on
the Fifth Circuit's statement in Billizon that despite the
question that existed regarding the third factor, summary
judgment was appropriate when the remaining factors clearly
pointed to borrowed-employee status. 993 F.2d at 106.
Therefore, even assuming factor three weighs in favor of
LeMaire's position, the remaining factors support, and the
evidence provided this Court establishes, that Phillips was
Texaco's borrowed employee.
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This Court now has two issues remaining to determine: 1)
whether LeMaire and Phillips, each found by this Court,
individually, to be borrowed employees of Texaco, were persons
"in the same employ" as defined by the LHWCA at the time of
LeMaire's alleged accident, and therefore, immune from tort suit
against one another; and 2) if LeMaire and Phillips were co-
employees of Texaco, then whether LeMaire's respondeat superior
action against Phillips' nominal employer, D&C, is also barred
under the LHWCA, §933(i). The Fifth Circuit addressed both of
these issues in Perron v. Bell Maintenance and Fabricators, Inc.,
970 F.2d 1409 (5th Cir. 1992). Therefore, this Court will
examine LeMaire's actions against D&C and Phillips in light of
the Fifth Circuit's findings in Perron.
C. Perron v. Bell Maintenance and Fabricators, Inc.,
970 F.2d 1409 (5th Cir. 1992).
The primary issue before the Fifth Circuit in Perron was
whether the bar under the LHWCA, §933(i), for suits against a co-
employee likewise applied to the respondeat superior action
before that court filed by the plaintiff against his co-
employee's employer. 970 F.2d at 1410. The Fifth Circuit
affirmed the district court's granting of summary judgment in
favor of the employer. Id.
In Perron, the Court examined a fact scenario similar to
that before this Court. In that case, the plaintiff worked for
D&C nominally and was injured while working on a Gulf Oil
-23-
production platform when he slipped and fell because of oil left
on the platform by Michael Lee, a direct employee of Bell
Maintenance. The plaintiff filed suit against Gulf Oil ("Gulf")
and Bell Maintenance ("Bell"). Gulf was dismissed on summary
judgment based on the district court's determination and the
Fifth Circuit's affirmation of the plaintiff's status as Gulf's
borrowed employee.
Bell Maintenance subsequently filed a motion for summary
judgment. The Fifth Circuit affirmed the district court's
dismissal of Bell and stated that "[i]n sum, Perron and Lee were
co-workers in every meaningful sense of the term. And because
they were borrowed servants/co-employees of the same employer
(Gulf), a fortiori, they were 'persons in the same employ' under
§933(i)." Id. at 1412.
In Perron, the plaintiff contended that §933(i) immunized
only the employer of the injured employee. Id. at 1411. The
Fifth Circuit corrected this assumption and stated that, "Section
933(i) does not protect employers; it protects negligent co-
employees." Id. at 1412. The Court then clarified the borrowed
employment issue now before this Court. The Court stated:
A borrowed servant becomes the employee of the borrowing
employer, and "is to be dealt with as the servant of the
[borrowing employer] and not of the [nominal employer]."
In Ruiz v. Shell Oil Co., our court adopted the borrowed
servant rule for the LHWCA. And borrowed servant status
is a question of law.
Id. at 1412 (citations omitted). This Court has already
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determined that both LeMaire and Phillips were the borrowed
employees of Texaco. Following the reasoning of the Fifth
Circuit in Perron and based on the findings of this Court,
LeMaire and Phillips were "persons in the same employ" under
§933(i). Therefore, this Court finds they were co-employees of
Texaco at the time of plaintiff's alleged accident. As LeMaire
and Phillips were co-employees it follows, under Perron, that
Phillips should be dealt with as the servant of Texaco, and not
of D&C. Id.
After determining the employment status of the plaintiff and
Lee in relation to each other and the borrowing employer, Gulf
Oil, the Fifth Circuit then explained the next step in the
analysis. The Court stated the issue as follows:
Given that [the plaintiff] is barred by §933(i) from
bringing an action against Lee, at issue is whether
[the plaintiff] can bring this respondeat superior
action against Bell, Lee's nominal employer. Consistent
with the LHWCA's comprehensive scheme, [the plaintiff]
is barred from doing so.
Id. Adhering to the Court's reasoning in Perron, this Court must
next address the issue of whether LeMaire can bring a respondeat
superior action against D&C, Phillips' nominal employer. The
Fifth Circuit has stated that bringing such an action against a
co-employee's nominal employer would not be consistent with the
LHWCA's comprehensive scheme. Id. Thus, the Fifth Circuit
states, the plaintiff is barred from bringing this respondeat
superior action. Id. Accordingly, this Court finds that to
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allow LeMaire to bring a respondeat superior action against D&C,
Phillips' nominal employer, would not be consistent with the
LHWCA's comprehensive scheme. Therefore, plaintiff is barred
from bringing this respondeat superior action against D&C.
Finally, in Perron, the plaintiff contended Louisiana tort
law governed his suit against Lee's nominal employer, defendant
Bell, under the OCSLA. The Fifth Circuit addressed the
plaintiff's OCSLA argument and held that "[s]ection 933(i)
provides that LHWCA payments 'shall be the exclusive remedy to an
employee when he is injured ... by the negligence or wrong of any
other person or person in the same employ.' State law is
therefore, preempted by §933(i) in this instance." Id. at 1413-
14.
In the case sub judice, plaintiff contends that the OCSLA
requires state law regarding third party negligence, immunity and
damages to apply to plaintiff's action against D&C. However,
this Court finds that Perron dictates otherwise. The Court in
Perron found Louisiana law regarding third party negligence and
immunity to be inconsistent with §933(i) as it applied to the
plaintiff's action against his co-employee's nominal employer.
Id. Therefore, this Court finds Louisiana law regarding third
party negligence and immunity to be preempted here as well.
Defendants assert, and this Court agrees, that the facts
before this Court are "on all fours" with Perron. Thus, §933(i)
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applies and precludes the application of any Louisiana tort law
principles to plaintiff's action against Phillips and plaintiff's
respondeat superior action against Phillips' nominal employer,
D&C.
Conclusion
Based on the facts provided this Court regarding the
borrowed servant status of LeMaire and Phillips and pursuant to
the application of the nine Ruiz factors as discussed above, this
Court finds that both LeMaire and Phillips were borrowed servants
of Texaco. As both LeMaire and Phillips were borrowed employees
of Texaco, under §933(i) and Perron, it necessarily follows that
LeMaire and Phillips were "persons in the same employ," and
therefore, co-employees.
Considering that both LeMaire and Phillips are co-employees/
borrowed servants of Texaco, Phillips and D&C, Phillips' nominal
employer, should be dismissed as a matter of law. Under the
LHWCA, LeMaire is barred from bringing any action against
Phillips as he is LeMaire's co-employee. D&C, as Phillips'
nominal employer, is not vicariously liable to LeMaire for the
alleged negligence of Phillips. Rather, Phillips is to be dealt
with as the servant of Texaco. This Court must apply the LHWCA
consistently. Accordingly, the Court finds that §933(i)
precludes the application of the inconsistent Louisiana tort law
principles under which LeMaire seeks recovery.
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Thus, this Court has determined that factors 1, 2, 4, 5, 6,
8 and 9 favor a finding of borrowed employee status as to LeMaire
and that all factors, except 3, favor a finding of borrowed
employee status as to Phillips. In accordance with the Fifth
Circuit's ruling in Billizon, this Court finds that despite the
uncertainty of the facts relating to factor three, the remaining
factors support, and the evidence provided this Court
establishes, that LeMaire and Phillips were borrowed employees of
Texaco. Under §933(i) and Perron, this Court also finds that
LeMaire and Phillips were co-employees in the same employ within
the meaning of §933(i) of the LHWCA. As a co-employee, LeMaire
cannot maintain a tort action against Phillips. As D&C is
Phillips' nominal employer and, under Perron, is not vicariously
liable for Phillips' alleged negligence, LeMaire cannot maintain
a tort action against D&C. Accordingly, this Court GRANTS the
Motion for Summary Judgment [doc. #37] filed on behalf of
defendants, Danos & Curole Marine Contractors, Inc. and Charles
Phillips dismissing the complaint of Shawn LeMaire against D&C
and Phillips.
THUS DONE AND SIGNED this day of ,
l999.
REBECCA F. DOHERTY
UNITED STATES DISTRICT JUDGE
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-29-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE/OPELOUSAS DIVISION
SHAWN LEMAIRE, ET AL CIVIL ACTION NUMBER: 98-0051
VERSUS JUDGE DOHERTY
DANOS & CUROLE MARINE MAGISTRATE JUDGE METHVIN
CONTRACTORS, INC., ET AL
O R D E R
Considering the foregoing Memorandum Ruling;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion
for Summary Judgment [doc. #37] filed on behalf of defendants,
Danos & Curole Marine Contractors, Inc. and Charles Phillips
dismissing plaintiff Shawn LeMaire's complaints against Danos &
Curole Marine Contractors, Inc. and Charles Phillips is hereby
GRANTED.
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APPENDIX “A”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE/OPELOUSAS DIVISION
SHAWN LEMAIRE, ET AL CIVIL ACTION NUMBER: 98-0051
VERSUS JUDGE DOHERTY
DANOS & CUROLE MARINE MAGISTRATE JUDGE METHVIN
MEMORANDUM RULING
Before this Court is a Motion for Summary Judgment [doc.
#37] filed on behalf of defendants, Danos & Curole Marine
Contractors, Inc. (“D&C”) and Charles Phillips (“Phillips”).
Defendants’ Motion for Summary Judgment is based upon their
contention there is no genuine issue of material fact as to
whether Shawn LeMaire (“LeMaire”) and Phillips are the borrowed
employees of Texaco, Inc. ("Texaco") and therefore, co-employees
as defined by the Longshore & Harbor Workers' Compensation Act,
33 U.S.C. § 901, et seq. ("LHWCA").
In summary, defendants, D&C and Phillips, assert that, as a
matter of law, LeMaire and Phillips are the borrowed employees of
Texaco and that LeMaire is barred from any recovery against his
co-employee, Phillips. Defendants further assert plaintiff’s
claims against defendants, D&C and Phillips, pursuant to the
Outer Continental Lands Shelf Act, 43 U.S.C. § 1331, et seq.
(“OCLSA”) and the LHWCA should be dismissed on the basis that
LeMaire and Phillips are borrowed employees of Texaco and thus,
co-employees under the LHWCA. Pursuant to the LHWCA, Phillips
and Phillips’ nominal employer, D&C, would be immune from tort
liability as any negligence on Phillips' part would be imputed to
Texaco as Phillips' borrowing employer, and not to D&C, Phillips'
nominal employer.
In opposing this motion, plaintiff asserts those sections of
the LHWCA granting immunity from tort liability to co-employees
should not apply. Rather, the OCSLA, 43 U.S.C. § 1333, requires
that state law be applied regarding third party negligence or
immunity and damages. Plaintiff also asserts there are genuine
issues of material fact as to whether LeMaire and Phillips were
“borrowed employees” of Texaco. Plaintiff further asserts
genuine issues of material fact exist as to whether LeMaire was a
“co-employee” of D&C’s employee, Phillips, within the meaning of
the LHWCA, 33 U.S.C. § 901, et seq.
To rule on defendants' motion, the Court must determine
whether LeMaire and/or Phillips were the borrowed employees of
Texaco as a matter of law, and thus, co-employees of Texaco as
defined by the LHWCA.
Background
On or about December 14, 1996, Shawn LeMaire, plaintiff, was
employed by Steen Production Services, Inc. ("Steen") as a C
Operator. Plaintiff was working at a job site owned by Texaco,
Inc. ("Texaco") in the Gulf of Mexico on a fixed platform located
at West Cameron Block 643-B. LeMaire dep. pgs. 37, 74. It is
undisputed that the platform is located more than three miles off
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the coast of Louisiana on the outer continental shelf.
Prior to his alleged accident, LeMaire had worked
continuously in the Texaco 643 field for approximately three
months. LeMaire dep. p. 37. On the day plaintiff was allegedly
injured, LeMaire was assisting defendant Charles Phillips
("Phillips"). Phillips was an employee of defendant, Danos &
Curole Marine Contractors, Inc. ("D&C"). Phillips usually worked
the opposite shift of LeMaire. However, on this particular
shift, Phillips stayed on the platform for additional days
because another person was off. LeMaire depo. p. 94; Ardoin &
Flice depo., pps. 28-30. Prior to LeMaire's alleged accident,
Phillips had worked continuously in the Texaco 643 field for one
year. Phillips dep. pgs. 10, 41; Solar, a representative of
Steen, dep. p. 35.
On the day of the alleged accident, Phillips was removing
the last bolt from a Series 357 Control Valve when he became
tired. Plaintiff began to help Phillips remove the bolt when the
valve blew off and struck plaintiff in the head and knocked him
backwards on to the grating causing him to injure his head, neck
and back. Plaintiff asserts that as a direct result of this
accident, he sustained injuries including a skull fracture, two
lacerations requiring stitches, a severed nerve, severe
headaches, dizziness and nervous problems.
It is undisputed that at the time of LeMaire's alleged
accident, both D&C and Steen were under contract with Texaco to
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provide employees to operate Texaco platforms offshore and work
as directed by Texaco employees. LeMaire dep. p. 37; Solar dep.
p. 12. While on the Texaco project, LeMaire and Phillips
normally worked schedules of seven days on and seven days off.
Phillips dep. p. 37; LeMaire dep. p. 38. Texaco provided their
sleeping quarters, their meals and their transportation to and
from the job. Phillips dep. p. 36; LeMaire dep. pgs. 44-45, 55-
56, 64. Phillips' immediate supervisor was Texaco Lead Operator,
Kenneth Domingue. Phillips dep. pgs. 39-40. However, because
Phillips had agreed to work over his seven day shift on the date
of the accident, he and LeMaire were both supervised by Texaco
Lead Operator, Richard Remo Ardoin. Id.; Ardoin & Flice dep.
pgs. 24, 67-69.
Texaco employees gave LeMaire and Phillips instructions
regarding where to work and what to do. Phillips dep. p. 41;
LeMaire dep. p. 73; Ardoin & Flice dep. pgs. 55-56. Both LeMaire
and Phillips performed the work of Texaco and the evidence
provided this Court establishes the two men consented to the work
situation. Solar dep. p. 34; Ardoin & Flice dep. p. 59. Texaco
supervisors provided direct orders to and had control over
LeMaire and Phillips concerning their work duties. Phillips dep.
p. 39; LeMaire dep. p. 73; Ardoin & Flice dep. p. 55. No D&C or
Steen supervisors were sent out to any of the Texaco jobs.
Phillips dep. p. 39.
LeMaire and Phillips performed Texaco's work. Ardoin &
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Flice dep. pgs. 56, 62, 69. Texaco could not terminate LeMaire
or Phillips' employment with their nominal employers; however, if
Texaco was not satisfied with the work that Phillips or LeMaire
was doing, a Texaco supervisor could have either man discharged
from his position on the Texaco platform by simply calling the
offices of their “nominal” employers and mentioning that their
services were no longer needed. Phillips dep. p. 42; LeMaire
dep. p. 65; Ardoin & Flice dep. pgs. 59-62.
Law and Discussion
Pursuant to the OCSLA, 43 U.S.C. § 1331, et seq., the LHWCA,
33 U.S.C. § 901, et seq. is the law applicable to provide an
injured offshore worker compensation benefits. As the LHWCA
applies, it preempts “the application of the idiosyncrasies of
the Louisiana Workers’ Compensation scheme.” Perron v. Bell
Maintenance and Fabricators, Inc., 970 F.2d 1409, 1411 (5th Cir.
l992). However, outside of the Workers’ Compensation arena, the
OCSLA makes the tort law of the adjacent state surrogate federal
law and thus applicable to any tort-based cause of action for
those offshore injuries. See 43 U.S.C. § 1381, et seq. In other
words, were the plaintiff to have a remedy in tort against a non-
employer and thus, outside the LHWCA, this Court would apply the
substantive tort law of Louisiana. However, should this
plaintiff not have a tort remedy available against defendants D&C
and Phillips for the reasons urged by D&C and Phillips, LeMaire
would be limited to LHWCA benefits as the LHWCA is the workers’
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compensation scheme applicable to an offshore worker, such as the
plaintiff, who sustains a work related injury on the Outer
Continental Shelf.
D&C and Phillips argue LeMaire and Phillips are both
borrowed employees of Texaco and thus, LeMaire cannot sue his co-
employee. "The question of borrowed-employee status is a
question of law for the district court to determine." Billizon
v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir.), reh'g denied, 3
F.3d 441 (1993). However, "in some cases, factual disputes must
be resolved before the district court can make its legal
determination." Id. The Fifth Circuit has set out the following
nine (9) factors which must be considered in determining borrowed
employee status:
1. Who had control over the employee and the work he was
performing, beyond mere suggestion of details or cooperation?
2. Whose work was being performed?
3. Was there an agreement, understanding, or meeting of
the minds between the original and the borrowing employer?
4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship
with the employee?
6. Who furnished tools and place for performance?
7. Was the new employment over a considerable length of
time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?
Id. (citing Brown v. Union Oil Co. of California, 984 F.2d 674,
-36-
676 (5th Cir. 1993)). The Fifth Circuit "has held many times
that no single factor is determinative." Id. at 106.4
In addition to considering the above factors, this Court
reviews defendant's Motion for Summary Judgment under the
standard set out in Rule 56 of the Federal Rules of Civil
Procedure. Rule 56 provides that summary judgment shall be
rendered when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. No
genuine issue of fact exists if the record, taken as a whole,
could not lead a rational trier of fact to find for the non-
moving party. Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The plaintiff must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986). Plaintiff must make a showing
sufficient to establish the existence of an element essential to
his case, and on which he will bear the burden of proof at trial.
Fields v. Hallsville Independent School District, 906 F.2d 1017
(5th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-323 (1986)). In Anderson, the Supreme Court held that the
"inquiry involved in a ruling on a motion for summary judgment
... necessarily implicates the substantive evidentiary standard
4
However, the court has also stated that the first factor is the "central issue" of
borrowed employee status, Melancon v. Amoco Production Co., 834 F.2d 1238, 1245 (5th Cir.)
amended, 841 F.2d 572 (1988). In other cases, the Fifth Circuit has stressed the importance of
the fourth, fifth, sixth, and seventh factors of borrowed employee status. See Id., n. 12.
-37-
of proof that would apply to trial on the merits." The judge
must decide:
[W]hether a fair-minded jury could return a verdict for
the plaintiff on the evidence presented. The mere
existence of a scintilla of evidence in support of a
plaintiff's position will be insufficient; there must
be evidence on which the jury could reasonably find for
the plaintiff. The judge's inquiry, therefore,
unavoidably asks whether reasonable jurors could find
by a preponderance of the evidence that the plaintiff
is entitled to a verdict....
Anderson, 477 U.S. at 252.
A. Was Plaintiff the Borrowed Employee of Texaco?
1. Who had control over plaintiff and the work he was
performing, beyond mere suggestion of details or cooperation?
Regardless of the presence or absence of Texaco employees on
the Texaco platform 643-B at the actual time of the alleged
accident, the evidence provided the Court is undisputed LeMaire
was instructed by Texaco's employees. Of the four or five months
of his employment with Steen, LeMaire spent the three months
prior to his alleged accident reporting directly to Texaco's
platform. During his work for Texaco, LeMaire filled out a daily
log of his work hours in order to be paid for the job he was
performing for Texaco. LeMaire dep. p. 70. The only contact
LeMaire had with Steen was to report his hours and receive his
paycheck. Accordingly, this Court finds that as to factor one
(1), Texaco had control over LeMaire and the work he was
performing.
2. Whose work was being performed?
-38-
Plaintiff controverts defendants' statement that "[b]oth
LeMaire and Phillips were doing work only for Texaco while on the
Texaco jobs," on the grounds that both LeMaire and Phillips were
doing work for their respective employers, Steen and D&C, which
involved work for Texaco under contract. However, plaintiff's
assertion embodies the nature of the "borrowed employee." The
evidence provided this Court establishes no question exists that
the work performed by LeMaire and Phillips was Texaco's work.
LeMaire dep. p. 73; Ardoin & Flice dep. pgs. 56, 62, 69.
Accordingly, this Court finds that LeMaire was performing
Texaco's work.
3. Was there an agreement, understanding, or meeting of
the minds between the original and borrowing employer?
Plaintiff asserts in his Statement of Material Facts, page
3, that the contract between Texaco and Steen provided that Steen
was an independent contractor and that its employees were not
subject to Texaco's control. However, a contract provision such
as the one described above does not bar a borrowed employee's
status. Brown, 984 F.2d at 677; Melancon, 834 F.2d at 1245. The
parties' actions in carrying out the contract can provide an
implied modification or waiver of such an express provision. Id.
As defendants assert, no written agreement is even required.
Billizon, 993 F.2d at 105-106.
In Billizon, the only disputed issue before the Court was
whether the existence of a contract provision "purporting to
-39-
prohibit borrowed-employee status [made] the district court's
summary judgment inappropriate." 993 F.2d at 106. The Court
held that even assuming factor three weighed in favor of the
plaintiff's position, the remainder of the summary judgment
record established that the plaintiff was Conoco's borrowed
employee. Id.
In that case, the service contract governing the
relationship between Conoco and the plaintiff's nominal employer,
D&C, provided that the employees of D&C were not the employees of
Conoco. However, the Court stated that it is "the reality of the
work site and the [parties'] actions" in carrying out a contract
that established for the Court that the two employers had the
contrary "'understanding or meeting of the minds'". Id.
Despite the contrary provisions in the contract between
Steen and Texaco, the facts and testimony provided this Court
indicate that Texaco controlled the work performed by LeMaire.
Donald Solar, a representative of Steen, LeMaire's direct
employer, stated in his deposition that, "We had a contract with
Texaco to furnish personnel, but the detail job description that
was Texaco." Solar dep. p. 34. Solar also testified that Texaco
had exclusive day to day supervision over LeMaire when he was on
the Texaco job. Solar dep. p. 36.
In this case, like Billizon, only the third factor could
possibly support plaintiff's contention that he was not a
borrowed employee of Texaco. However, the Fifth Circuit has
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repeatedly stated that "no single factor is determinative."
Billizon, 993 F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834
F.2d at 1245. Therefore, the Court must further examine the
remaining factors to determine LeMaire's status as Texaco's
borrowed employee.
4. Did the employee acquiesce in the new work situation?
The Court in Capps v. N.L. Baroid-NL Industries, Inc., 784
F.2d 615, 617 (5th Cir.) cert denied, 479 U.S. 838, 107 S. Ct. 141
(1986) states:
The fourth factor asks whether the employee acquiesced in
the new work situation. Since Capps worked for a company
that loaned temporary employees, Capps knew Davis would send
him into new work situations. Thus, going into new work
situations was Capps' work situation. When he went to work
for Davis, he acquiesced to the fact that Davis would
constantly send him into new work situations.
The facts of this case and the deposition testimony provided the
Court establish that LeMaire acquiesced in the work situation.
LeMaire worked for three months for Texaco under the conditions
previously mentioned which included eating and sleeping on
Texaco's fixed platform. The Fifth Circuit has stated that
working for "one month is a sufficient amount of time for [the
employee] to appreciate the new work condition." Brown, 984 F.2d
at 678.
In Solar's deposition, he stated, as Steen's representative,
that LeMaire never protested to Solar regarding LeMaire's work
situation with Texaco through Steen. Solar dep. p. 34. Further,
Richard Ardoin, LeMaire's and Phillips' supervisor and Texaco's
-41-
Lead Operator on the date of plaintiff's alleged accident, stated
in his deposition that he never heard LeMaire protest doing
Texaco's work when LeMaire was sent out to Texaco's platform.
Ardoin & Flice dep. p. 59.
Accordingly, the Court finds pursuant to factor four (4) that
LeMaire did acquiesce in his working situation as an employee of
Steen and the borrowed employee of Texaco.
5. Did the original employer terminate his relationship
with the employee?
Under this factor, the Fifth Circuit has stated:
We do not believe that this factor requires a lending
employer to completely sever his relationship with the
employee. Such a requirement would effectively eliminate
the borrowed employee doctrine as there could never be two
employers. The emphasis when considering this factor should
focus on the lending employer's relationship with the
employee while the borrowing occurs.
Capps, 784 F.2d at 617-618. As previously stated, during his
employment with Steen, LeMaire worked under Texaco's supervision
and control.
LeMaire stated in his deposition that the only supervision
on Texaco's platform was provided by either Texaco employees or
higher contract employees who were also working for Texaco.
LeMaire dep. p. 73. LeMaire's contact with Steen was limited to
reporting his hours to Steen. LeMaire had a copy of his time
sheet delivered to Steen so he could receive his paycheck for the
work he performed for Texaco. LeMaire dep. p. 70; Ardoin & Flice
dep. p. 62; Solar dep. p. 36. Ardoin stated in his deposition
-42-
that when the contract workers were on Texaco's platform, Texaco
had control over those workers. Ardoin & Flice dep. p. 55.
Ardoin also stated that even if he, or another Texaco employee,
was not actually on the Texaco platform in the presence of the
contract employees, Ardoin was still in charge of those
employees. Ardoin & Flice dep. p. 32. Robert Flice, a
representative of Texaco, stated in his deposition that Texaco
could send contract employees, like LeMaire and Phillips,
wherever Texaco wanted those employees to work. Ardoin & Flice
dep. p. 58.
Accordingly, the Court finds that Steen exercised no control
over plaintiff and placed no restrictions on Texaco with respect
to plaintiff's employment conditions. Capps, 784 F.2d 618.
Therefore, this Court finds that factor five (5) weighs in favor
of borrowed employee status.
6. Who furnished the tools and place for performance?
Plaintiff's deposition establishes that "the tools and
equipment and platforms all belonged to Texaco". LeMaire dep. p.
73-4. Steen's representative also establishes in his deposition
that Texaco provided the tools with which LeMaire worked while
doing Texaco work. Solar dep. p. 35. It is undisputed that
Texaco provided the sleeping quarters in which LeMaire slept, the
meals that he ate, as well as LeMaire's transportation to and
from the job site while LeMaire worked for Texaco.
Accordingly, after reviewing the facts of this case, this
-43-
Court finds that factor six (6) weighs in favor of a finding of
borrowed employee status.
7. Was the new employment over a considerable length of
time?
The arrangement between LeMaire, Steen and Texaco existed
for approximately three months prior to plaintiff's alleged
accident. In Capps, the Fifth Circuit noted that "[w]here the
length of employment is considerable, this factor supports a
finding that the employee is a borrowed employee; however, the
converse is not true." 784 F.2d at 618. In that case, Capps'
injury occurred on the first day and the Fifth Circuit concluded
that this seventh factor was neutral. Id. In Billizon, the
Fifth Circuit found factor seven to be neutral when the plaintiff
had worked for Conoco for more than three months. 993 F.2d 106.
Similarly, because plaintiff only worked under Texaco's
supervision for three months in the instant case, this Court
finds that factor seven (7) is neutral.
8. Who had the right to discharge plaintiff?
No evidence was provided this Court indicating that Texaco
had the right to terminate LeMaire's employment with Steen.
However, in LeMaire's and Solar's depositions, they both
testified Texaco had the right to terminate LeMaire's work
relationship with Texaco. LeMaire dep. p. 65; Solar dep. p. 35.
The Fifth Circuit has stated that "[t]his arrangement is
sufficient to support a finding of borrowed servant status".
-44-
Brown, 984 F.2d at 679 (citing Melancon, 834 F.2d at 1246; Capps,
784 F.2d at 618). Accordingly, this Court finds that factor
eight (8) weighs in favor of a finding of borrowed employee
status.
9. Who had the obligation to pay the employee?
LeMaire's deposition establishes that Steen paid him,
however he only reported his hours to Steen based on the time he
spent working for Texaco. LeMaire dep. pgs. 48,70; Ardoin &
Flice dep. p. 66. In Billizon, Capps, and Melancon, the Fifth
Circuit found that this procedure supported borrowed employee
status. Therefore, this Court finds that factor nine (9) weighs
in favor of borrowed employee status. Billizon, 993 F.2d 105-
106; Melancon, 834 F.2d 1246; Capps, 784 F.2d 618.
Factors 1,2,4,5,6,8 and 9 support LeMaire's borrowed-
employee status. Although this Court finds factor seven is
neutral, the Fifth Circuit, in Billizon, has stated "the
neutrality of factor [seven] is insufficient to render the
district court's summary judgment inappropriate". 993 F.2d at
106. In that case, as stated above, the Court also found that
despite the question that existed regarding the third factor,
summary judgment was appropriate when the remaining factors
clearly pointed to borrowed-employee status. Id. This Court
finds, consistent with the Billizon Court, that even assuming
factor three weighs in favor of LeMaire's position, the remaining
factors support, and the evidence provided this Court
-45-
establishes, that LeMaire was Texaco's borrowed employee.
B. Was Defendant Phillips the Borrowed Employee of Texaco?
1. Who had control over Phillips and the work he was
performing, beyond mere suggestion of details or cooperation?
The deposition testimony of Phillips establishes that Texaco
employees gave all orders to Phillips. Phillips dep. p. 38-40.
Phillips was instructed by Texaco's employees. It is undisputed
that the foreman, a Texaco employee, decided where Phillips would
work on his seven day shift. Phillips dep. p. 38. Kenneth
Domingue, Texaco's lead operator, was Phillips' supervisor.
Phillips dep. p. 39.
Like LeMaire, during Phillips' work for Texaco, Phillips
filled out a weekly time book of his work hours in order to be
paid for the job he was performing for Texaco. Phillips dep.
pgs. 43-44. The only contact Phillips had with D&C was to report
his hours and receive his paycheck. Accordingly, this Court
finds that as to factor one (1), Texaco had control over Phillips
and the work he was performing.
2. Whose work was being performed?
Phillips' deposition testimony establishes that Phillips was
doing Texaco's work while he was working on Texaco's platform.
Phillips dep. p. 41. Accordingly, this Court finds that Phillips
was performing Texaco's work.
3. Was there an agreement, understanding, or meeting of
the minds between the original and borrowing employer?
-46-
Again, as to the contract between D&C and Texaco, plaintiff
asserts in his Statement of Material Facts, page 3, that the
contract between Texaco and D&C provided that D&C was an
independent contractor and that its employees were not subject to
Texaco's control. Likewise, this Court adopts the same analysis
as was used in reference to LeMaire and the contract between
Steen and Texaco.
Despite the contrary provision in the contract between D&C
and Texaco, the facts and deposition testimony provided the Court
indicate that Texaco controlled the work performed by Phillips.
In this case, like Billizon, only the third factor could possibly
support plaintiff's contention that Phillips was not a borrowed
employee of Texaco. However, the Fifth Circuit has repeatedly
stated that "no single factor is determinative." Billizon, 993
F.2d at 106; Brown, 984 F.2d at 676; Melancon, 834 F.2d at 1245.
Therefore, the Court must further examine the remaining factors
to determine Phillips' status as Texaco's borrowed employee.
4. Did the employee acquiesce in the new work situation?
The facts of this case dictate that Phillips acquiesced to
the work situation. Phillips worked for one year for Texaco
prior to the alleged accident. Phillips continued to work for
Texaco for a year and a half after the accident under the
conditions previously mentioned which included eating and
sleeping in Texaco's field. Accordingly, the Court finds
pursuant to factor four (4) that Phillips did acquiesce to his
-47-
working situation as an employee of D&C and the borrowed employee
of Texaco.
5. Did the original employer terminate his relationship
with the employee?
As previously stated, during his two and a half years of
employment with D&C, Phillips worked under Texaco's supervision
and control. Phillips' contact with D&C was limited to reporting
his hours so he could receive his paycheck. Phillips dep. pgs.
43-44; Ardoin & Flice dep. p. 66. Accordingly, the Court finds
that D&C exercised no control over Phillips and placed no
restrictions on Texaco with respect to Phillips' employment
conditions. Capps, 784 F.2d 618. Therefore, this Court finds
that factor five (5) weighs in favor of borrowed employee status.
6. Who furnished the tools and place for performance?
Phillips' deposition establishes that Texaco furnished the
tools he used to perform his work for Texaco. Phillips dep. p.
43. It is undisputed that Texaco provided the sleeping quarters
in which Phillips slept, the meals that he ate, as well as
Phillips' transportation to and from the job site while Phillips
worked for Texaco. Further, all of Phillips' regular duties were
handled on the Texaco platforms where he was the lead operator.
LeMaire dep. pgs. 66-7. Accordingly, after reviewing the facts
of this case, this Court finds that factor six (6) weighs in
favor of a finding of borrowed employee status.
7. Was the new employment over a considerable length of
time?
-48-
The arrangement between Phillips, D&C and Texaco existed for
approximately a year prior to plaintiff's alleged accident and
Phillips continued to work as a Texaco "contract hand" for almost
a year and a half thereafter. Phillips dep. pgs. 41-2.
Considering the facts and the duration of Phillips' employment
with Texaco through D&C, this Court finds that factor seven (7)
weighs in favor of a finding of borrowed employee status.
8. Who had the right to discharge Phillips?
In Phillips' deposition, he testified that after almost two
and a half years of work for Texaco through D&C, the field
foreman, a Texaco employee, called D&C and told them that Texaco
no longer needed Phillips. Phillips' deposition establishes that
Texaco discharged Phillips from the Texaco work. Phillips was
aware that Texaco could discharge him. Phillips dep. p. 42.
Accordingly, this Court determines that Texaco, and not D&C, had
the right to discharge Phillips from his work for Texaco.
Therefore, this Court finds that factor eight (8) weighs in favor
of a finding of borrowed employee status.
9. Who had the obligation to pay the employee?
Phillips' deposition establishes that D&C paid him, however
he only reported his hours to D&C based on the time he spent
working for Texaco. Phillips dep. p. 43. In Billizon, Capps,
and Melancon, the Fifth Circuit found that this procedure
supported borrowed employee status. Therefore, this Court finds
that factor nine (9) weighs in favor of borrowed employee status.
-49-
Billizon, 993 F.2d 105-106; Melancon, 834 F.2d 1246; Capps, 784
F.2d 618.
All factors, except factor three, support the borrowed-
employee status of Phillips. Once again, this Court relies on
the Fifth Circuit's statement in Billizon that despite the
question that existed regarding the third factor, summary
judgment was appropriate when the remaining factors clearly
pointed to borrowed-employee status. 993 F.2d at 106.
Therefore, even assuming factor three weighs in favor of
LeMaire's position, the remaining factors support, and the
evidence provided this Court establishes, that Phillips was
Texaco's borrowed employee.
This Court now has two issues remaining to determine: 1)
whether LeMaire and Phillips, each found by this Court,
individually, to be borrowed employees of Texaco, were persons
"in the same employ" as defined by the LHWCA at the time of
LeMaire's alleged accident, and therefore, immune from tort suit
against one another; and 2) if LeMaire and Phillips were co-
employees of Texaco, then whether LeMaire's respondeat superior
action against Phillips' nominal employer, D&C, is also barred
under the LHWCA, §933(i). The Fifth Circuit addressed both of
these issues in Perron v. Bell Maintenance and Fabricators, Inc.,
970 F.2d 1409 (5th Cir. 1992). Therefore, this Court will
examine LeMaire's actions against D&C and Phillips in light of
the Fifth Circuit's findings in Perron.
-50-
C. Perron v. Bell Maintenance and Fabricators, Inc.,
970 F.2d 1409 (5th Cir. 1992).
The primary issue before the Fifth Circuit in Perron was
whether the bar under the LHWCA, §933(i), for suits against a co-
employee likewise applied to the respondeat superior action
before that court filed by the plaintiff against his co-
employee's employer. 970 F.2d at 1410. The Fifth Circuit
affirmed the district court's granting of summary judgment in
favor of the employer. Id.
In Perron, the Court examined a fact scenario similar to
that before this Court. In that case, the plaintiff worked for
D&C nominally and was injured while working on a Gulf Oil
production platform when he slipped and fell because of oil left
on the platform by Michael Lee, a direct employee of Bell
Maintenance. The plaintiff filed suit against Gulf Oil ("Gulf")
and Bell Maintenance ("Bell"). Gulf was dismissed on summary
judgment based on the district court's determination and the
Fifth Circuit's affirmation of the plaintiff's status as Gulf's
borrowed employee.
Bell Maintenance subsequently filed a motion for summary
judgment. The Fifth Circuit affirmed the district court's
dismissal of Bell and stated that "[i]n sum, Perron and Lee were
co-workers in every meaningful sense of the term. And because
they were borrowed servants/co-employees of the same employer
(Gulf), a fortiori, they were 'persons in the same employ' under
-51-
§933(i)." Id. at 1412.
In Perron, the plaintiff contended that §933(i) immunized
only the employer of the injured employee. Id. at 1411. The
Fifth Circuit corrected this assumption and stated that, "Section
933(i) does not protect employers; it protects negligent co-
employees." Id. at 1412. The Court then clarified the borrowed
employment issue now before this Court. The Court stated:
A borrowed servant becomes the employee of the borrowing
employer, and "is to be dealt with as the servant of the
[borrowing employer] and not of the [nominal employer]."
In Ruiz v. Shell Oil Co., our court adopted the borrowed
servant rule for the LHWCA. And borrowed servant status
is a question of law.
Id. at 1412 (citations omitted). This Court has already
determined that both LeMaire and Phillips were the borrowed
employees of Texaco. Following the reasoning of the Fifth
Circuit in Perron and based on the findings of this Court,
LeMaire and Phillips were "persons in the same employ" under
§933(i). Therefore, this Court finds they were co-employees of
Texaco at the time of plaintiff's alleged accident. As LeMaire
and Phillips were co-employees it follows, under Perron, that
Phillips should be dealt with as the servant of Texaco, and not
of D&C. Id.
After determining the employment status of the plaintiff and
Lee in relation to each other and the borrowing employer, Gulf
Oil, the Fifth Circuit then explained the next step in the
analysis. The Court stated the issue as follows:
Given that [the plaintiff] is barred by §933(i) from
-52-
bringing an action against Lee, at issue is whether
[the plaintiff] can bring this respondeat superior
action against Bell, Lee's nominal employer. Consistent
with the LHWCA's comprehensive scheme, [the plaintiff]
is barred from doing so.
Id. Adhering to the Court's reasoning in Perron, this Court must
next address the issue of whether LeMaire can bring a respondeat
superior action against D&C, Phillips' nominal employer. The
Fifth Circuit has stated that bringing such an action against a
co-employee's nominal employer would not be consistent with the
LHWCA's comprehensive scheme. Id. Thus, the Fifth Circuit
states, the plaintiff is barred from bringing this respondeat
superior action. Id. Accordingly, this Court finds that to
allow LeMaire to bring a respondeat superior action against D&C,
Phillips' nominal employer, would not be consistent with the
LHWCA's comprehensive scheme. Therefore, plaintiff is barred
from bringing this respondeat superior action against D&C.
Finally, in Perron, the plaintiff contended Louisiana tort
law governed his suit against Lee's nominal employer, defendant
Bell, under the OCSLA. The Fifth Circuit addressed the
plaintiff's OCSLA argument and held that "[s]ection 933(i)
provides that LHWCA payments 'shall be the exclusive remedy to an
employee when he is injured ... by the negligence or wrong of any
other person or person in the same employ.' State law is
therefore, preempted by §933(i) in this instance." Id. at 1413-
14.
In the case sub judice, plaintiff contends that the OCSLA
-53-
requires state law regarding third party negligence, immunity and
damages to apply to plaintiff's action against D&C. However,
this Court finds that Perron dictates otherwise. The Court in
Perron found Louisiana law regarding third party negligence and
immunity to be inconsistent with §933(i) as it applied to the
plaintiff's action against his co-employee's nominal employer.
Id. Therefore, this Court finds Louisiana law regarding third
party negligence and immunity to be preempted here as well.
Defendants assert, and this Court agrees, that the facts
before this Court are "on all fours" with Perron. Thus, §933(i)
applies and precludes the application of any Louisiana tort law
principles to plaintiff's action against Phillips and plaintiff's
respondeat superior action against Phillips' nominal employer,
D&C.
Conclusion
Based on the facts provided this Court regarding the
borrowed servant status of LeMaire and Phillips and pursuant to
the application of the nine Ruiz factors as discussed above, this
Court finds that both LeMaire and Phillips were borrowed servants
of Texaco. As both LeMaire and Phillips were borrowed employees
of Texaco, under §933(i) and Perron, it necessarily follows that
LeMaire and Phillips were "persons in the same employ," and
therefore, co-employees.
Considering that both LeMaire and Phillips are co-employees/
borrowed servants of Texaco, Phillips and D&C, Phillips' nominal
-54-
employer, should be dismissed as a matter of law. Under the
LHWCA, LeMaire is barred from bringing any action against
Phillips as he is LeMaire's co-employee. D&C, as Phillips'
nominal employer, is not vicariously liable to LeMaire for the
alleged negligence of Phillips. Rather, Phillips is to be dealt
with as the servant of Texaco. This Court must apply the LHWCA
consistently. Accordingly, the Court finds that §933(i)
precludes the application of the inconsistent Louisiana tort law
principles under which LeMaire seeks recovery.
Thus, this Court has determined that factors 1, 2, 4, 5, 6,
8 and 9 favor a finding of borrowed employee status as to LeMaire
and that all factors, except 3, favor a finding of borrowed
employee status as to Phillips. In accordance with the Fifth
Circuit's ruling in Billizon, this Court finds that despite the
uncertainty of the facts relating to factor three, the remaining
factors support, and the evidence provided this Court
establishes, that LeMaire and Phillips were borrowed employees of
Texaco. Under §933(i) and Perron, this Court also finds that
LeMaire and Phillips were co-employees in the same employ within
the meaning of §933(i) of the LHWCA. As a co-employee, LeMaire
cannot maintain a tort action against Phillips. As D&C is
Phillips' nominal employer and, under Perron, is not vicariously
liable for Phillips' alleged negligence, LeMaire cannot maintain
a tort action against D&C. Accordingly, this Court GRANTS the
Motion for Summary Judgment [doc. #37] filed on behalf of
-55-
defendants, Danos & Curole Marine Contractors, Inc. and Charles
Phillips dismissing the complaint of Shawn LeMaire against D&C
and Phillips.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE/OPELOUSAS DIVISION
SHAWN LEMAIRE, ET AL CIVIL ACTION NUMBER: 98-0051
VERSUS JUDGE DOHERTY
DANOS & CUROLE MARINE MAGISTRATE JUDGE METHVIN
CONTRACTORS, INC., ET AL
O R D E R
Considering the foregoing Memorandum Ruling;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion
for Summary Judgment [doc. #37] filed on behalf of defendants,
Danos & Curole Marine Contractors, Inc. and Charles Phillips
dismissing plaintiff Shawn LeMaire's complaints against Danos &
Curole Marine Contractors, Inc. and Charles Phillips is hereby
GRANTED.
-56- | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1345206/ | 73 S.E.2d 419 (1952)
194 Va. 419
COLONIAL INV. CO., Inc.
v.
CHERRYDALE CEMENT BLOCK CO., Inc.
Supreme Court of Appeals of Virginia.
December 1, 1952.
*420 Adams, Porter & Radigan and Thomas G. Mays, Jr., Arlington, for appellant.
Oren R. Lewis and Frank L. Ball, Arlington, and McCandlish & Prichard, Fairfax, for appellees.
Before HUDGINS, C. J., and EGGLESTON, SPRATLEY, BUCHANAN, MILLER, SMITH and WHITTLE, JJ.
HUDGINS, Chief Justice.
The Cherrydale Cement Block Company, Inc., and others instituted separate attachment proceedings in equity against Richard Gianpa and Katie M. Gianpa, and the Alinon Construction Company.
The bills alleged that (1) Richard and Katie M. Gianpa were nonresidents and were justly indebted to each complainant in a stated sum; (2) the Alinon Construction Company was a domestic corporation, dominated and controlled by the Gianpas, who owned all of its stock; (3) by deed dated March 4, and recorded March 5, 1948, the Gianpas, without consideration, and with intent to hinder, delay and defraud complainants and other creditors, conveyed to the Alinon Construction Company eleven lots, including Lots Nos. 25, 26, 27 and 28, in Birch Subdivision, Falls Church Magisterial District, Fairfax county, Virginia.
On September 30, 1948, an order was entered consolidating the different cases and rendering judgment on each attachment in the amount proven. The case was referred to Harry L. Carrico, a commissioner in chancery, who was directed to take an account of the liens binding the real estate, together with their dignities and priorities.
On January 2, 1948, the Gianpas executed three deeds of trust, one conveying Lot No. 25 to James B. Evans and Nathan Levin, trustees, to secure a note for $6,750; one conveying Lot No. 27 to the same trustees, to secure a note for $6500; one conveying Lot No. 28 to the same trustees, to secure a note for $6,750, and on January 22, 1948, the same grantors conveyed Lot No. 26 to Nathan Levin and Nathaniel J. Taube, trustees, to secure two notes aggregating $8,500, one for $6500 and the other for $2,000. The five notes were payable nine months after date, with interest at 5%, to the Colonial Investment Company.
The Alinon Construction Company, hereinafter designated "Alinon," by deed dated April 12, 1948, recorded May 19, 1948, conveyed the same four lots to Nathan Levin and James B. Evans, trustees, to secure a note for $15,000, payable six months after date, with interest at 5%, to E. E. Matthews.
The trustees and beneficiaries named in the five deeds of trust were not made parties to the original bills or petitions for attachments. While the case was pending before the commissioner, the trustees in the four deeds of trust executed by the Gianpas, advertised Lots Nos. 25, 27 and 28 for sale on October 29, 1948, and Lot No. 26 on November 12, 1948. The trial court, on complaint of the Cherrydale Cement Block Company, enjoined the trustees from making the sale. Thereafter the trustees and the beneficiaries filed a joint answer to the bill.
The Colonial Investment Company, hereinafter sometimes referred to as "appellant," contends that it, in good faith, loaned to the Gianpas $28,500, evidenced by the five notes, and secured by the separate *421 deeds of trust hereinbefore mentioned, for the construction of a house upon each of the four lots. In the spring of 1948, it ascertained that the $28,500 was insufficient to complete the four houses. It thereupon agreed to lend the Gianpas an additional sum of $15,000 for this purpose. When appellant ascertained from an examination of the records that the Gianpas had conveyed the lots to Alinon, it required Alinon to execute a deed of trust on the four lots to secure the note for $15,000, payable to E. E. Matthews, agent and employee of appellant.
Pursuant to its agreement with the Gianpas, and relying upon the security of the four deeds of trust, executed by them, and the deed of trust executed by Alinon, appellant advanced to the Gianpas and Alinon the sum of $43,197.63, all of which had been expended for labor and material used in the construction of the four houses. This sum did not include interest on the principal obligations or certain other charges and expenses aggregating $7,382.01, claimed by appellant to be secured by the covenants in the deeds of trust.
On January 5, 1949, the cause came on again to be heard upon the issues raised by the various pleadings filed by the parties, at which time appellant moved the court to rescind paragraph 9 of its decree entered on September 30, 1948, which declared: "Alinon Construction Company, Inc. is not a bona fide corporation, duly organized under the laws of the State of Virginia, and that all of the real property heretofore conveyed to the said corporation by the Defendants, Richard Gianpa and Katie M. Gianpa, his wife, * * * (by deed bearing date March 4, 1948) is in truth and fact the real property of the Defendants, Richard Gianpa and Katie M. Gianpa, and subject and liable to all judgments and attachments properly proved against the same."
This motion was overruled by the court, and "all matters and issues raised in the" pleadings were referred to Harry L. Carrico, commissioner in chancery.
The court should have rescinded so much of its former decree as affected the rights of the beneficiaries named in the deeds of trust (1) because at the time the decree was entered the beneficiaries and trustees in the deeds of trust were not parties to the cause; and (2) because the court held that Alinon was not a bona fide corporation. The legality of corporate existence cannot be attacked collaterally or in any manner other than by direct proceedings instituted by the Attorney General in the name of the Commonwealth. Code of 1950, § 13-66; Pixley v. Roanoke Navigation Co., 75 Va. 320; Dismal Swamp R. Co. v. John L. Roper Co., 114 Va. 537, 77 S.E. 598; Elliott's Knob Iron, Etc., Co. v. State Corp. Comm., 123 Va. 63, 96 S.E. 353; United Dentists v. Commonwealth, 162 Va. 347, 173 S.E. 508; Light v. City of Danville, 168 Va. 181, 190 S.E. 276; 13 Am.Jur., Corp., secs. 61, 62, p. 206.
The refusal of the court to so modify its decree misled the commissioner. He stated in his report that he construed the decree to mean that the court was of opinion that the deed of trust on the four lots to secure the $15,000 note was null and void as to creditors of the Gianpas. This was an adjudication that the deed of trust held by appellant was null and void before any evidence was introduced on the subject.
Ordinarily, this error of the trial court would require a reversal of the final decree. However, the evidence in the cause, fairly construed, proves that the Gianpas conveyed the property to Alinon with intent to hinder, delay and defraud their creditors, and that appellant had notice of such fraudulent intent.
The trial court overruled all exceptions to, and confirmed, the commissioner's report, and decreed that the four deeds of trust securing the notes aggregating $28,500, with interest at 5%, constituted first liens on Lots Nos. 25, 26, 27 and 28. It refused to allow interest from the date of the notes, but did allow it from the dates on which the different sums aggregating $28,500 had been disbursed. It also decreed that the payment of the twelve items aggregating $7,382.01 was not secured by the four deeds of trust, as claimed by appellant; and the deed of trust executed by Alinon, conveying the four lots to secure the $15,000 note, was not valid as to creditors of the Gianpas.
*422 The first assignment of error is based upon that part of the final decree which, in effect, holds that the deed of trust executed by Alinon to secure E. E. Matthews, the sum of $15,000 was null and void as to attaching creditors.
The real issues raised by this assignment, and relied upon in the oral argument and briefs, are: (1) whether the Gianpas conveyed the lots to Alinon with intent to hinder, delay or defraud their creditors; and (2) if so, whether appellant had notice of such fraudulent intent.
It is well settled that when fraud is relied upon to set aside a conveyance it must be expressly charged and must be proven by evidence that is clear, cogent and convincing.
In the instant case, the bills expressly allege that "the said defendants, Richard Gianpa and Katie M. Gianpa made the said conveyance, (to Alinon) in anticipation that this and other judgments would be recovered against them, to hinder, delay or defraud your complainant and other creditors and to preclude them from realizing anything from the aforesaid property."
It is conceded that there was no consideration for the deed from the Gianpas conveying the eleven lots to Alinon. Code of 1950, § 55-81, provides that "Every * * * conveyance * * * which is not upon consideration deemed valuable in law * * * shall be void as to creditors whose debts shall have been contracted at the time it was made, but shall not, on that account merely, be void as to creditors whose debts shall have been contracted or as to purchasers who shall have purchased after it was made".
Code, § 55-80, provides that every conveyance made with intent to hinder, delay or defraud creditors, shall be void, not only as to existing creditors, but as to purchasers for value with notice of such fraudulent intent.
The evidence proving fraudulent intent on the part of the grantors in the deed to Alinon emanates from the Gianpas themselves, who testified that Richard Gianpa was president and Katie M. Gianpa was secretary of the corporation, which they owned and controlled, and that the transfer was made without consideration. Mrs. Gianpa testified that she and her husband conveyed the property to Alinon to avoid payment of a $60,000 claim asserted in an action instituted, or threatened to be instituted, against them for damages for personal injuries to a child, alleged to have resulted from their negligence. She said this was an unjust claim and "we wanted to protect ourselves."
In Bruce v. Dean, 149 Va. 39, 140 S.E. 277, it was held that a deed made with intent to defraud a recovery by a third person of damages in an action of tort, before trial and judgment, was fraudulent and void to the same extent as a conveyance made to hinder, delay and defraud existing creditors.
The evidence shows that appellant had notice of the fraudulent intent of the Gianpas. Nathan Levin was the president and a member of the executive committee of the Colonial Investment Company. In his dealings with the Gianpas and Alinon, he was the Colonial Investment Company. When the Gianpas executed the deed of trust for the corporation, securing the note for $15,000, Mrs. Gianpa told Nathan Levin that she and her husband had conveyed the property to Alinon to avoid payment of a claim asserted against them for personal injuries to a child. Shortly after executing this deed of trust, she and her husband, as officers of Alinon, and on demand of Nathan Levin, conveyed the four lots in question to Simon and Ruth Wagman, son-in-law and daughter of Nathan Levin. This conveyance was made in consideration of an agreement, not made a part of the deed, but set forth in a letter dated June 23, 1948,[1] providing that Nathan Levin should *423 have a one-half interest in Lot No. 26, and appellant should have the exclusive right to sell the four lots, and out of the proceeds of sale, pay to the Gianpas, or Alinon, the surplus over and above the commissions on the sale, necessary expenditures to complete the houses, and the debt secured by the deed of trust.
Mrs. Gianpa, in her cross-examination with reference to this conveyance, said: "All I know is that he (Nathan Levin) was supposed to take our deed to our property. He had done that before. He had lots of our buildings in his people's names. They were our houses but still in some of his client's names or for people that worked for him." She also testified that she was assured by Levin that the deed "was for our protection. * * * It was to protect us against creditors or anybody else." When Richard Gianpa heard that the property had been advertised for sale under the deeds of trust, he told Levin that all of their interest had been conveyed to the Wagmans and that a foreclosure was not necessary, to which Levin replied: "I will foreclose and wipe out your creditors at fifty cents on the dollar." He also testified that he was advised by Levin not to pay any of his creditors and not to go to court.
Nathan Levin testified that before he made the $15,000 loan he knew that the Gianpas had conveyed the property to Alinon to avoid payment of a claim for $60,000 asserted against them. He also knew that the Gianpas owned the controlling interest in Alinon and regarded them as one and the same. His explanation of why he caused Alinon to convey the property to his son-in-law and daughter, was: "We took the deed for our protection; any good business man would have done that * *. We had $43,500.00 in the property at that time. We figured the best thing for us to do was to get the title in us where we could control the real estate. We wanted to be able to * * * get our sales commissions because then he couldn't run to someone else and sell the houses. The houses had to be sold by the Colonial Investment Company."
The evidence conclusively proves that (1) Nathan Levin knew that the Gianpas owned and controlled Alinon; (2) they executed the deed conveying the property in question to Alinon, without consideration, and with intent to hinder, delay and defraud their creditors; (3) notwithstanding notice of this fraudulent intent, he obtained a deed of trust from the corporation to secure E. E. Matthews the payment of the sum of $15,000, and shortly thereafter required the corporation to convey, without consideration, all of its real estate to his daughter and son-in-law, by deed absolute on its face, but upon a secret trust for *424 his own benefit and for the benefit of the Gianpas and Alinon. Appellant used the names of Matthews and the Wagmans as straw men, and as a part of a fraudulent scheme to prevent the creditors of the Gianpas from subjecting the property to the payment of their debts.
The second assignment of error is based upon the refusal of the trial court to hold that the twelve items,[2] aggregating $7,382.01, were secured claims under the four deeds of trust on the four lots.
Appellant contends that payment of some of these items was secured by covenants in the deeds of trust, and others by the provisions of Code, § 55-59. The statute provides: "Every deed of trust to secure debts * * * except so far as may be therein otherwise provided, shall be construed to impose and confer upon the parties thereto" certain enumerated obligations. These provisions of the statute are controlling when the deeds of trust do not otherwise provide. The deeds of trust were not made a part of the record, and, therefore, we cannot determine whether the claims were secured under the provisions of the statute or covenants in the deeds of trust. The commissioner examined the deed books in the clerk's office where the deeds of trust were recorded, and held that the items were not secured claims either under the covenants of the deeds of trust or under the provisions of the statute. There is no evidence before this court tending to show that the ruling of the trial court, affirming this part of the commissioner's report, is incorrect.
Appellant's third and fourth assignments of error are based upon the action of the court in rendering two judgments against the Gianpas, one for $514 in favor of Sidney R. Johnston, and the other for $1300 in favor of J. H. and O. V. Carper. The only ground upon which objection is made to the entry of these judgments is that William T. Finley, "an attorney not of record" for the Gianpas, acknowledged service of process in the Johnston case, and consented to the entry of the judgment in the Carper case. The record refutes this contention. It clearly shows that on February 8, 1949, William T. Finley accepted notice to take depositions as attorney for Richard Gianpa and Katie M. Gianpa. As such attorney, he appeared before the commissioner and examined, and cross-examined, witnesses in behalf of his clients. No objection was made, or exception taken, to the entry of these judgments in the trial court. Even if there had been, the objection should have been overruled, because the record clearly shows that the Gianpas made a general appearance in person and by William T. Finley, their attorney.
We find no reversible error in any of the rulings of the trial court, and affirm the decree.
Affirmed.
NOTES
[1] "Alinon Construction Company,
Inc.
Falls Church, Va.
June 23, 1948
Gentlemen:
In connection with the deed dated June 17th, 1948 from Alinon Construction Company, Incorporated to Simon Wagman and Ruth M. Wagman, it is understood that title to Lots 25, 26, 27, 28, 45 is held in trust for the benefit of the Alinon Construction Company, Incorporated only to the extent of any equity that may remain in the property aforementioned above the mortgages placed through the Colonial Investment Company. It being expressly understood that any costs or charges necessary to be expended in the completion of the aforementioned houses shall be a lien in favor of the Colonial Investment Company or its assigns, if it elects to advance funds for said purpose.
It is understood and agreed that Nathan Levin has a one-half interest in Lot 26 over and above the actual costs of construction and upon the sale, after paying off the amounts advanced to erect the dwelling on the said lot 26, the proceeds of sale after expenses and costs of every nature and description that may be incurred, shall be divided between the said Nathan Levin and the Alinon Construction Company, Incorporated.
With reference to Lot 45, it is understood and agreed that Simon Wagman and Ruth M. Wagman, their heirs or assigns, shall have the right to advance such sums of money, not in excess of $500.00, to place the property in a saleable condition and for the purpose of arranging new financing of the mortgages on the said property.
It is further understood and agreed that the Colonial Investment Company shall have the exclusive sale of the aforementioned real estate for a period of sixty (60) days after completion on lots 25, 26, 27 and 28; it being understood, however, that as to lot 45, the Alinon Construction Company reserves the right to sell said house itself without the intervention of a broker.
It is understood that all payments due under the mortgages of record are the liability and obligation of the said Alinon Construction Company and it agrees to pay the mortgages of record in accordance with their tenor.
Very truly yours,
Colonial Investment Company
By Nathan Levin
Nathan Levin, President."
[2] "Insurance $151.10
Check to Starleaf & Sanden (drawn but not delivered) 206.00
Accrued interest (as of 11/5/48) 2,100.00
Commission on loans 2,159.80
Trustees Notices of sale 44.96
Attorneys fee 500.00
One-half Trustees Commission 712.25
1948 taxes 12.44
Certain `guaranteed accounts'
National Brick Co. 292.00
Miller Building Co. 720.00
Sodding and Planting 75.00
Alexandria Iron Works 408.40
_________
$7,382.01 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/227537/ | 190 F.2d 365
WHITE,v.UNITED STATES.
No. 11345.
United States Court of Appeals Sixth Circuit.
June 4, 1951.
Thomas Conners, Cincinnati, Ohio, for appellant.
Edward T. Kane, Vincent Fordell, Detroit, Mich., for appellee.
Before HICKS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
PER CURIAM.
1
This appeal was heard on the record, briefs and arguments of counsel for respective parties;
2
And it appearing that appellant, being represented by counsel appointed by the Court, withdrew a plea of not guilty during the progress of his trial in the District Court and entered a plea of guilty to Counts 3 and 4 of the indictment, and was thereafter sentenced in September 1948;
3
And that on January 11, 1951 he filed his present Petition for Writ of Habeas Corpus which is insufficient as such a proceeding for the reason that it is filed in the District in which he was sentenced instead of in the District of his incarceration, Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898; and also because it raises only factual issues concerning his guilt, which facts were known to him at the time of his trial, Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982;
4
It is ordered that the Proceeding be treated as a motion to withdraw the plea of guilty, and, being so considered, the judgment of the District Court dismissing the Proceeding is affirmed. Rule 32(d), Rules of Criminal Procedure, 18 U.S.C.A.; Smith v. United States, 6 Cir., 180 F.2d 851. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/748531/ | 129 F.3d 1267
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Joseph CARSON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 97-2187.
United States Court of Appeals, Seventh Circuit.
Submitted Oct. 23, 1997.*Decided Nov. 3, 1997.
Appeal from the United States District Court for the Southern District of Illinois, No. 96-395-WLB; William L. Beatty, Judge.
Before ENGEL, Circuit Judge,** EASTERBROOK, and KANNE, Circuit Judges.
Order
1
Joseph Carson's convictions were affirmed on direct appeal four years ago. United SLates v. Carson, 9 F.3d 576 (7th Cir.1993). Two years after that, we affirmed an order denying Carson and his co-defendants a new trial, on their motion under Fed.R.Crim.P. 33. United States v. Flaugher, No. 95-1084 et al. (7th Cir. Aug. 2, 1995) (unpublished order). Trying his luck a third time, Carson filed a petition under 28 U.S.C. § 2255, contending that the jury instructions concerning his firearms conviction under 18 U.S.C. § 924(c) defined "use" in a way disapproved by Bailey v. United States, 116 S.Ct. 501 (1995). That they did, but the district court concluded that on correct instructions the jury would have been bound to conclude that Carson "carried" a firearm during and in relation to his drug crimes. The district court denied the petition and also declined to issue a certificate of appealability. Later a judge of this court issued such a certificate. A month after the certificate was issued, Young v. United States, No. 97-1518 (7th Cir. Aug. 21, 1997), slip op. 8-11, held that claims based on Bailey do not satisfy the statutory criteria for certificates of appealability. Young also concluded, however, that an improperly issued certificate of appealability is not a jurisdictional shortcoming. As the United States has not asked us to vacate the certificate of appealability, we do not tarry over the subject.
2
Before turning to the merits, we must mention the possibility that Carson's Rule 33 motion should be treated as an initial collateral attack for purposes of the successive-petition standards introduced by the Antiterrorism and Effective Death Penalty Act. We have yet to decide whether post-judgment motions not formally under § 2255 count as initial petitions. It is not necessary to do so in this case--though for completeness we add that if the current proceeding is best understood as a successive collateral attack, we deny permission to commence it for the reason stated in Nunez v. United States, 96 F.3d 990 (7th Cir.1996).
3
Carson participated in a drug transaction and was arrested as the transaction closed. Agents found a loaded .357 Magnum revolver under the driver's seat of Carson's vehicle. This is the only evidence that Carson "used" or "carried" the gun. Evidence of a gun's presence in a moving vehicle suffices to show carrying. See Young and the cases it cites. The jury had no basis on which to conclude that Carson "used" the gun but did not "carry" it, or the reverse. Indeed, his defense had nothing to do with either term. It was that the gun was available for self-protection from risks unrelated to drug transactions. The defense, in other words, was that the gun was not carried (or used) "during and in relation to" the drug crime. That element of § 924(c) was utterly unaffected by Bailey. See Davis v. United States, 417 U.S. 333 (1974); Broadway v. United States, 104 F.3d 911, 902-04 (7th Cir.1997). An argument that the evidence is insufficient to show the necessary "relation" could have been raised on direct appeal but was not, and is hence forfeited. A collateral attack is not a belated appeal. Moreover, such an argument is unavailing; the evidence permitted the jury to infer a "relation" between the gun and the drug transaction. The district court correctly held that collateral relief is unwarranted.
AFFIRMED
*
This successive appeal was assigned to the original panel under Operating Procedure 6(b). After an examination of the briefs and record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)
**
Of the Sixth Circuit, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1054525/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 16, 2005 Session
RANDY E. RICE, PERSONAL REPRESENTATIVE OF THE ESTATE OF
JAMES NEIL RICE v. ANDREW JOHNSON BANK, ET AL.
Appeal from the Circuit Court for Greene County
No. 03CV737 John K. Wilson, Judge
No. E2004-01469-COA-R3-CV - FILED MARCH 29, 2005
James Neil Rice (“Mr. Rice”) applied to Mountain Life Insurance Company (“Mountain Life”) for
a credit life insurance policy to cover the principal amount of a loan made to him by Andrew
Johnson Bank (“the Bank”). When Mr. Rice died, Randy E. Rice, Personal Representative of the
Estate of James Neil Rice (“Plaintiff”), made demand upon Mountain Life and the Bank to tender
the policy proceeds to satisfy the loan. When Mountain Life and the Bank refused this demand,
Plaintiff filed suit. Both Mountain Life and the Bank filed motions for summary judgment. The
Trial Court granted the motions for summary judgment holding, inter alia, that no contract of
insurance existed because Mr. Rice’s application never was approved or accepted by Mountain Life
and, therefore, no insurance policy was issued to Mr. Rice. Plaintiff appeals the grant of summary
judgment. We vacate and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated;
Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.
Bryan B. Martin and Thomas C. McKee, Johnson City, Tennessee, for the Appellant, Randy E. Rice,
as personal representative of the Estate of James Neil Rice.
Thomas L. Kilday, Greeneville, Tennessee, for the Appellee, Andrew Johnson Bank.
Lewis S. Howard, Jr. and Heather Gunn Anderson, Knoxville, Tennessee, for the Appellee,
Mountain Life Insurance Company.
OPINION
Background
On October 15, 2001, Mr. Rice obtained a loan from the Bank. At that time, Mr. Rice
completed an application for Group Creditor-Debtor Insurance (“the Application”) to insure the
principal amount of the loan. The Application stated, in pertinent part:
I understand that this Application is subject to approval. If it is approved, the
Application will become a part of the certificate to which it is attached.
Upon acceptance of the insurance and within 30 days of the incurred indebtedness,
the Insurer shall cause a certificate of insurance to be delivered to you. If the
insurance is not approved, any premium paid will be refunded. However, if a valid
claim arises before action has been taken, insurance will not be denied for lack of
insurability.
Mr. Rice paid the premium to obtain the insurance. The Bank submitted the application to Mountain
Life and retained a portion of the premium paid by Mr. Rice pursuant to its agreement with Mountain
Life.
The Bank received a letter from Mountain Life dated February 14, 2002, which
acknowledged receipt of Mr. Rice’s application and stated that “before coverage on the applicant can
be accepted, the underwriting department will need to review his medical records. This will cause
a delay in the processing of this application.”
By letter dated March 1, 2002, Mountain Life advised the Bank that it could not
“accept coverage on the application sent for [Mr. Rice]...” as it had determined that Mr. Rice was
not eligible due to his medical history. Mountain Life enclosed its portion of the premium along
with the letter and requested that the Bank apply it and the Bank’s portion of the premium back to
the loan. Mountain Life’s letter also requested the Bank to notify Mr. Rice and to forward an
enclosed copy of the letter to Mr. Rice. A notation at the end of the letter states: “CC: James N. Rice
. . . .”
An employee of the Bank, Debbie Shelton, placed a telephone call to Mr. Rice on
March 6, 2002, and left a message on Mr. Rice’s answering machine requesting a return call. Mr.
Rice did not return the call.
Mr. Rice died in August of 2002. Plaintiff in his capacity as personal representative
of the Estate of James Neil Rice made a formal demand to Mountain Life and the Bank requesting
tender of the proceeds of the policy to satisfy Mr. Rice’s loan. Both Mountain Life and the Bank
refused this demand. Plaintiff then sued Mountain Life and the Bank claiming, among other things,
-2-
that Mountain Life and the Bank breached their contract of insurance with Mr. Rice by wrongfully
rejecting coverage, that Mr. Rice never was given notice of cancellation and that the premium he
paid was not fully refunded, that Mr. Rice never was informed that his insurance was not in effect,
and that Mountain Life and the Bank should be estopped from denying that coverage was in place.
Plaintiff’s complaint also included, among other things, a claim that Mountain Life and the Bank
violated the Tennessee Consumer Protection Act.
Both Mountain Life and the Bank filed motions for summary judgment claiming, in
part, that there never was a contract of insurance between Mountain Life and Mr. Rice. Plaintiff
served requests for admissions upon both Mountain Life and the Bank. In its response to Plaintiff’s
request for admissions, Mountain Life admitted it did not provide any actual notice to Mr. Rice that
it would not accept coverage of Mr. Rice’s loan. However, when Mountain Life was asked to admit
that it “did not send a copy of the letter from Mountain Life Insurance Company dated March 1,
2002, to James Neil Rice . . . that indicated that Mountain Life Insurance Company would not accept
coverage of James Neil Rice’s October 15, 2001, loan”, Mountain Life denied this assertion. In its
response to Plaintiff’s request for admissions, the Bank admitted it did not provide written notice
to Mr. Rice that Mountain Life had denied coverage of the loan, but stated it assumed that Mountain
Life had given Mr. Rice notice pursuant to their previously established custom and practice. The
Bank also admitted it did not forward to Mr. Rice a copy of Mountain Life’s March 1, 2002 letter
denying coverage.
Both Mountain Life and the Bank filed affidavits in support of their motions for
summary judgment. Debbie Shelton, a loan processor for the Bank, filed an affidavit stating, among
other things:
Upon receiving from the insurance company the premium refund check of $1,152.45
this amount was immediately credited to Mr. Rice’s account. Thereafter, and after
it came to our attention that this credited amount represented only 60% of the total
premium amount, the balance of the premium amount of $768.30 was also credited
to Mr. Rice’s account together with interest that had accrued on the account from the
time of receiving notice of the insurance company’s rejection of the application until
the credit was applied.
The Trial Court entered an order on May 10, 2004, granting summary judgment to
both Mountain Life and the Bank holding “inter alia, the application for credit life insurance of
James Neil Rice was never approved or accepted by Mountain Life Insurance Company, no
certificate of insurance was delivered to him and no policy of insurance at any time issued . . . .”
Plaintiff appeals to this Court.
-3-
Discussion
While Plaintiff raises several issues on appeal, the dispositive issue is whether the
Trial Court erred in granting summary judgment.
In Blair v. West Town Mall, our Supreme Court recently reiterated the standards
applicable when appellate courts are reviewing a motion for summary judgment. Blair v. West Town
Mall, 130 S.W.3d 761 (Tenn. 2004). In Blair, the Court stated:
The standards governing an appellate court’s review of a motion for summary
judgment are well settled. Since our inquiry involves purely a question of law, no
presumption of correctness attaches to the lower court’s judgment, and our task is
confined to reviewing the record to determine whether the requirements of Tennessee
Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc., Inc., 15
S.W.3d 83, 88 (Tenn. 2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);
Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).
Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is
appropriate where: 1) there is no genuine issue with regard to the material facts
relevant to the claim or defense contained in the motion, and 2) the moving party is
entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d
at 88.
***
When the party seeking summary judgment makes a properly
supported motion, the burden shifts to the nonmoving party to set
forth specific facts establishing the existence of disputed, material
facts which must be resolved by the trier of fact.
To properly support its motion, the moving party must either
affirmatively negate an essential element of the non-moving party’s
claim or conclusively establish an affirmative defense. If the moving
party fails to negate a claimed basis for the suit, the non-moving
party’s burden to produce evidence establishing the existence of a
genuine issue for trial is not triggered and the motion for summary
judgment must fail. If the moving party successfully negates a
claimed basis for the action, the non-moving party may not simply
rest upon the pleadings, but must offer proof to establish the existence
of the essential elements of the claim.
Blair, 130 S.W.3d at 763, 767 (quoting Staples, 15 S.W. 3d at 88-89 (citations omitted)).
-4-
Our Supreme Court has also provided instruction regarding assessing the evidence
when dealing with a motion for summary judgment stating:
The standards governing the assessment of evidence in the summary
judgment context are also well established. Courts must view the evidence in the
light most favorable to the nonmoving party and must also draw all reasonable
inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at
426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment
only when both the facts and the inferences to be drawn from the facts permit a
reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d
150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
Tenn. Code Ann. § 56-7-909 provides, in pertinent part:
If a debtor has paid a premium or an identifiable charge for credit life insurance to
the creditor and such insurance is declined by the insurer or otherwise does not
become effective, the insurer or creditor shall immediately give written notice to such
debtor and shall promptly arrange for refund or credit to the debtor of any premium
or identifiable charge paid by the debtor for such insurance plus interest and fees
charged thereon.
Tenn. Code Ann. § 56-7-909 (a) (2000).
Under Tenn. Code Ann. § 56-7-909 (a), either Mountain Life, or the Bank, was
required to immediately give written notice to Mr. Rice that the insurance had been declined and to
promptly arrange for a refund or credit to Mr. Rice of the premium paid and any applicable interest
or fees. The Application completed by Mr. Rice provides, in pertinent part, that “if a valid claim
arises before action has been taken, insurance will not be denied for lack of insurability.” Thus, in
order for Mountain Life and the Bank to prevail at the summary judgment stage, it was incumbent
upon them to show they had taken action and given Mr. Rice written notice of the denial of coverage
before his death. Otherwise, under the terms of the Application itself, coverage could not be denied
for lack of insurability.
A thorough review of the record reveals that a genuine issue of material fact exists
as to whether Mountain Life or the Bank ever provided Mr. Rice with written notice of the denial
of insurance. Mountain Life argues that its refusal to admit that it “did not send a copy of the letter
from Mountain Life Insurance Company dated March 1, 2002, to James Neil Rice . . . that indicated
that Mountain Life Insurance Company would not accept coverage of James Neil Rice’s October 15,
2001, loan” means that it did send such a letter. However, an unsworn denial is not the same as an
affirmative statement that Mountain Life did send such a letter to Mr. Rice regarding the denial of
coverage. We believe a fair reading of Mountain Life’s refusal to admit that it “did not send a copy
-5-
of the letter. . . to James Neil Rice. . .” to be only that it takes the position that it did so by enclosing
a copy of that letter with the original to the Bank with instructions to the Bank to send the copy of
the letter on to Mr. Rice. Such a denial, under the facts of this case, is not equivalent to an
affirmative statement that written notice was sent by Mountain Life to Mr. Rice. Mountain Life has
made no such affirmative statement that it did send the required written notice directly to Mr. Rice,
and the Bank affirmatively stated that it did not provide Mr. Rice with written notice and did not
forward a copy of Mountain Life’s letter to Mr. Rice.
Viewing the evidence in the light most favorable to Plaintiff, the nonmoving party,
and drawing all reasonable inferences in Plaintiff’s favor, as we must, we find there is a genuine
issue at this summary judgment stage with regard to the material fact of whether Mountain Life or
the Bank provided Mr. Rice with written notice of the denial of coverage before the claim arose upon
his death. This being so, the defendants neither negated an essential element of Plaintiff’s claim nor
conclusively established an affirmative defense. Therefore, summary judgment was not proper, and
we vacate the summary judgment in its entirety.
Conclusion
The judgment of the Trial Court is vacated, and this cause is remanded to the Trial
Court for such further proceedings as are necessary consistent with this Opinion and for collection
of the costs below. The costs on appeal are assessed equally against the Appellees, Andrew Johnson
Bank and Mountain Life Insurance Company.
___________________________________
D. MICHAEL SWINEY, JUDGE
-6- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/560762/ | 932 F.2d 961
U.S.v.Berkery (John C.)
NO. 90-1972
United States Court of Appeals,Third Circuit.
APR 09, 1991
Appeal From: E.D.Pa.,
Shapiro, J.
1
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1345308/ | 487 S.E.2d 692 (1997)
226 Ga. App. 875
BULLOCK
v.
JEON.
No. A97A0042.
Court of Appeals of Georgia.
June 18, 1997.
*693 Ted H. Reed, Marietta, for appellant.
Drew, Eckl & Farnham, Stevan A. Miller, Julianne Swilley, Atlanta, for appellee.
*694 BEASLEY, Judge.
Robert Bullock and Yeong Jeon own competing liquor stores located near each other in Marietta, Georgia. In October 1994, Bullock had one of his employees enter and check the prices at Jeon's store, in response to which Jeon later that same day went to Bullock's store and confronted Bullock as to the purpose for this price-checking. Bullock responded that Jeon was free to check prices at Bullock's store.
Bullock deposed that Jeon, who speaks English poorly, then called Bullock "a s__o_ b_____," an "a__ h___," and "crazy" in front of Bullock's customers, employees, and distributors. Bullock asked Jeon to leave, but Jeon refused. Bullock threatened to call police, went to the phone, picked up the receiver, and started dialing 911. Jeon then exited the store and stated as he approached the door, "you m____-f____, you m____- f____." The entire incident lasted between two and five minutes.
Bullock admitted at his deposition that (a) Jeon was free to enter Bullock's store, (b) Jeon did not cause any physical damage to Bullock's store or the merchandise therein, (c) Jeon did not threaten or attempt violently to injure Bullock, (d) Jeon never touched or attempted to touch Bullock, and (e) Bullock has not lost any customers or suppliers nor experienced any other financial loss as a result of the incident.
Bullock sued Jeon in four counts: trespass, slander, tortious interference with business relations, and assault. Following discovery, Jeon moved for summary judgment and Bullock moved for sanctions for the failure of Jeon and his counsel to cooperate at his deposition to such a degree that it constituted a failure to make discovery. The court, in a detailed order of explanation, granted summary judgment and declined to consider the motion for sanctions, apparently finding it moot. Bullock's appeal yields reversal on the trespass count only.
1. Bullock claims that Jeon's failure to leave the store premises immediately upon being asked to leave gives rise to a cause of action for trespass (Count 1). OCGA § 51-9-1 provides that "every act of another which unlawfully interferes" with the right of enjoyment of private property "is a tort for which an action shall lie." OCGA § 16-7-21 defines unlawful trespass in part as when a person "knowingly and without authority ... [r]emains upon the land or premises of another person ... after receiving notice from the owner ... to depart."
Evidence that a defendant refused to leave a store after he was asked to leave is sufficient to sustain a conviction for criminal trespass under OCGA § 16-7-21(b)(3). Johnson v. State, 172 Ga.App. 333, 334(2), 323 S.E.2d 255 (1984); Amason v. Kroger Co., 204 Ga.App. 695, 697, 420 S.E.2d 314 (1992). See Nash v. State, 222 Ga.App. 766, 767(2), 476 S.E.2d 69 (1996) ("Evidence that [defendant] remained at the residence after being notified by [one in authority] to depart was sufficient to support his conviction for criminal trespass"); Rembert v. Arthur Schneider Sales, 208 Ga.App. 903, 905, 432 S.E.2d 809 (1993) ("Once [defendant] refused to leave after being told to go by the owner, she became a criminal trespasser"). In Reid v. State, 224 Ga.App. 524, 525(1), 481 S.E.2d 259 (1997), a security guard of a hospital "testified he told [defendant] to leave the room ... but he refused. This alone was sufficient evidence of criminal trespass." But "[e]ven a trespasser, where he is rightfully ordered to leave a building by one having the premises in charge, is entitled to be allowed such a period of time as is necessary to enable him to make his exit from the room or building he is ordered to vacate. The amount of time reasonably necessary to enable such a trespasser to effect his departure may be varied by circumstances, and is a question of fact for determination by the jury." Hollis v. State, 13 Ga.App. 307, 308(3), 79 S.E. 85 (1913). See Reid v. State, supra at 525, 481 S.E.2d 259 ("The statute requires that a person advised to leave must do so within a reasonable time in the circumstances, which is a question for the factfinder").
The evidence in favor of Bullock is that Bullock asked Jeon to leave the store premises three or four times, and Jeon expressly refused to do so. Jeon remained on the premises for upwards of four and a half *695 minutes after being asked to leave and after he had announced that he would not. Only after Bullock threatened to call the police did Jeon leave. The jury must decide whether Jeon left within a reasonable time. The trial court erred in granting summary judgment on Count 1.
2. Bullock claims that Jeon committed slander per se by addressing Bullock with the words identified earlier and "crazy" (Count 2). Arguing that these terms impute that Bullock committed a crime punishable by law (i.e., necrophilia, fornication, and incest), Bullock claims such amounts to slander per se, thus negating the OCGA § 51-5-4 requirement of showing special damages.
Disparaging terms are slanderous per se only if the terms convey "the impression that the crime in question is being charged, [and also are] couched in such language as might reasonably be expected to convey that meaning to any one who happened to hear the utterance." Anderson v. Fussell, 75 Ga.App. 866, 869, 44 S.E.2d 694 (1947). If a statement's meaning is not ambiguous and can reasonably have but one interpretation, the question is one of law for the court. Morrison v. Hayes, 176 Ga.App. 128, 335 S.E.2d 596 (1985). Absent a sexual connotation, disparaging words allegedly imputing a sexual crime will not constitute slander per se. Meyer v. Ledford, 170 Ga.App. 245(1), 316 S.E.2d 804 (1984); Brooks v. Stone, 170 Ga.App. 457, 317 S.E.2d 277 (1984).
The words Jeon used do not impute a violation of any criminal law by Bullock. See, e.g., Connell v. Houser, 189 Ga.App. 158(4), 375 S.E.2d 136 (1988). While no Georgia appellate court has determined whether the term "m____-f____" amounts to slander per se, it generally communicates an obscenity reflecting the speaker's agitated and angry state of mind. It is a degrading insult, but it has not been interpreted as an actual accusation that the object of the remark has committed an illegal sexual act. See Duckworth v. State, 223 Ga.App. 250(1), 477 S.E.2d 336 (1996); Carter v. State, 222 Ga.App. 397(1), 474 S.E.2d 228 (1996); Bolden v. State, 148 Ga.App. 315(4), 251 S.E.2d 165 (1978); see also Smith v. State, 266 Ga. 827, 828 n. 2, 470 S.E.2d 674 (1996).
Other jurisdictions are in accord. Holding that "fat, f____ing, disgusting bitch" did not amount to slander, a Massachusetts court reasoned: "The word "f___ing" as it is all too commonly used in modern parlance, is a word of emphasis meaning nothing more ... than `wretched,' `rotten,' or `accursed'.... It has no sexual connotation at all." Travers v. Shane, 1995 WL 809549 (Mass.Super., July 10, 1995). The Supreme Court of Virginia similarly concluded that "calling a person a `m____ f____' ... [does not] convey the false impression that someone committed incest." Crawford v. United Steelworkers, AFL-CIO, 230 Va. 217, 335 S.E.2d 828, 839 (1985).
No reasonable person exposed to Jeon's invective, uttered as a parting shot after he had been ordered off the premises and immediately following an argument unrelated to sex, could have concluded that Jeon was accusing Bullock of having sexual intercourse with his own mother. Any reasonable hearer would have concluded that Jeon was expressing disgust for Bullock, albeit in a particularly obnoxious fashion. "`The mere cursing of another (not amounting to slander) is not a violation of a legal right or duty capable of enforcement by process of law.... The defendant owes the plaintiff the formal obligation not to curse [him], but this is too delicate and subtle an obligation to be enforced in the rude way of getting money compensation for a violation of this mere moral obligation.' [Cit.]" Miller v. Friedman's Jewelers, 107 Ga.App. 841, 843, 131 S.E.2d 663 (1963). See Tuggle v. Wilson, 248 Ga. 335, 337, 282 S.E.2d 110 (1981) ("In Georgia, there is no tort of obscenity"); Bekele v. Ryals, 177 Ga.App. 445, 446, 339 S.E.2d 655 (1986) ("Georgia law does not recognize `name-calling' as a tort").
Although not slander per se, Jeon's statements could be characterized as derogatory name-calling, but then special damages would have to be shown. OCGA § 51-5-4; Connell v. Houser, 189 Ga. App. 158(4), 375 S.E.2d 136 (1988). Bullock has admitted that he suffered no special damages.
*696 3. An essential element of Bullock's claim of tortious interference with business relations (Count 3) is a showing of financial injury resulting from the alleged interference. Jenkins v. General Hosp. of Humana, Inc., 196 Ga.App. 150, 151, 395 S.E.2d 396 (1990). Bullock admitted the absence of any such injury.
4. Bullock's assault claim (Count 4) fails because "an assault occurs when `all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another.' [Cit.]" Hallford v. Kelley, 184 Ga.App. 90, 92, 360 S.E.2d 644 (1987). A reasonable person in the circumstances presented would not have apprehended violent injury. Id. at 92-93, 360 S.E.2d 644. Bullock admitted at his deposition that Jeon did not threaten or attempt violently to injure him and that Jeon never touched or attempted to touch him.
5. Bullock enumerates as error the court's decision not to rule on his motion for sanctions. He cites no authority for the proposition that either it was not moot or he was entitled to any of the sanctions sought. In his motion, he requested that defendant's answer be stricken and plaintiff be awarded a default judgment or, alternatively, that the expenses of the deposition, including attorney fees, be assessed against defendant. He based the motion on OCGA § 9-11-37(d)(1). Bullock's argument on appeal consists only of two rhetorical questions.
Defendant did not fail to appear for, or submit to, deposition but instead objected to some of the questions. OCGA § 9-11-37(d)(1), allowing immediate sanctions for failure to appear, thus does not apply. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 437(2), 254 S.E.2d 825 (1979); General Motors Corp. v. Conkle, 226 Ga.App. 34, 39-40, 486 S.E.2d 180 (1997); Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 589(3), 452 S.E.2d 159 (1994). Moreover, a denial of the motion (if it had been construed to be a motion to compel) would have been proper in view of Bullock's failure to file a certificate of a good faith attempt to resolve the discovery dispute as required by USCR 6.4 (B).
Judgment affirmed in part and reversed in part.
HAROLD R. BANKE, Senior Appellate Judge, concurs.
McMURRAY, P.J., concurs in judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154614/ | 963 A.2d 771 (2008)
HERNDON
v.
FARISHIAN.
No. 06-AA-1169.
District of Columbia Court of Appeals.
December 22, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/740307/ | 112 F.3d 1171
U.S.v.Ogunbayo*
NO. 95-8490
United States Court of Appeals,Eleventh Circuit.
Apr 01, 1997
Appeal From: N.D.Ga. ,No.94003591CR1
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2509959/ | 720 S.E.2d 28 (2011)
STATE
v.
WIEBE.
No. COA11-341.
Court of Appeals of North Carolina.
Filed December 6, 2011.
Case Reported Without Published Opinion
No Error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2509964/ | 724 S.E.2d 914 (2012)
STATE
v.
Sylvester Eugene HARDING, III.
No. 402P11-2.
Supreme Court of North Carolina.
April 12, 2012,
LeAnn Martin, Assistant Attorney General, for State of North Carolina.
*915 Sylvester Eugene Harding, Lumberton, for Harding, Sylvester Eugene.
William West, Jr., District Attorney, for State of North Carolina.
The following order has been entered on the motion filed on the 10th of February 2012 by Defendant for Appropriate Relief:
"Motion Dismissed by order of the Court in conference, this the 12th of April 2012." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054511/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 28, 2004
GWYNNE T. BARTON, ET AL. v. ROY J. GILLELAND, ET AL.
Appeal from the Chancery Court for Knox County
No. 149678-1 Daryl R. Fansler, Chancellor
No. E2004-01369-COA-R3-CV - FILED MARCH 30, 2005
The limited partners (“the plaintiffs”) of Henry Manor, Ltd., a Tennessee limited partnership (“the
Partnership”), brought this declaratory judgment action against (1) Roy J. Gilleland and J. Cleve
Smith, the Partnership’s former administrative general partners, and (2) the trust created by the
Partnership’s former, and now-deceased, managing general partner, Glen R. Claiborne. The
plaintiffs seek relief related to the Partnership’s property, as well as an accounting and an order for
distribution of proceeds. In 1992, Claiborne and his wife formed the G & P Claiborne Trust (“the
Trust”)1, to which they transferred, among other assets, Claiborne’s beneficial interest in the
Partnership. Claiborne died in 1997. The apartment complex owned by the Partnership, which was
its primary asset, was sold in 2000. Subsequently, Gilleland and Smith sought a percentage of the
proceeds from the sale pursuant to the terms of the partnership agreement. The plaintiffs aver,
among other things, (1) that Gilleland and Smith are not entitled to any of the proceeds from the
2000 sale, as they resigned from the partnership in 1982, and (2) that the Partnership was dissolved
in 1992 when Claiborne transferred his interest to the Trust. The parties filed competing motions
for summary judgment. The trial court held that Gilleland and Smith are entitled to share in the
proceeds of the 2000 sale; that the Partnership did not dissolve until the death of Claiborne in 1997;
and that the plaintiffs are not required to pay capital contributions that came due in 1983 and 1984.
We agree with the trial court that Gilleland and Smith are entitled to share in the sale proceeds under
the terms of the original partnership agreement. We further agree with the trial court that the Trust’s
claim against the plaintiffs for unpaid capital contributions is barred by the applicable statute of
limitations. Although we disagree with the trial court’s judgment that Claiborne did not violate the
partnership agreement by transferring a part of his interest in the Partnership to the Trust in 1992,
we hold that the transfer, while a violation of the agreement, does not constitute an event of
dissolution. We affirm the trial court’s judgment that the Partnership did not dissolve until 1997.
1
Stanley C. Roy, one of the named defendants in this action, is the trustee for the Trust. W e will refer to the
G & P Claiborne Trust and Roy collectively as “the Trust” in discussing issues raised by them. W hen discussing issues
related solely to Roy, we will refer to him by name.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
SHARON G. LEE, JJ., joined.
Dudley W. Taylor, Knoxville, Tennessee, for the appellants, Gywnne T. Barton, W. Coleman Bryan,
Pat N. Fultz, Charles E. Jenkins, Howard F. Johnston, Dr. Lawrence Kennedy, Jr., Paul Ledbetter,
S. A. Mars, III, Irene S. Nevels, Ralph V. Norman, Jr., Cary T. Rodgers, Kenneth F. Scarbro, Lillian
Scarbro, W.F. Scarbro, Lane T. Shipley, Edgar H. Tenent, III, and Teresa S. Zohn.
Clark H. Tidwell, Nashville, Tennessee, for the appellees, Roy J. Gilleland and J. Cleve Smith.
David L. Buuck, Knoxville, Tennessee, for the appellees, G & P Claiborne Trust and Stanley C. Roy,
Trustee.
OPINION
I.
The Partnership was initially formed by agreement dated September 28, 1978. Its purpose
was to acquire, develop and manage a rent-subsidized apartment complex in Hamblen County to be
known as Henry Manor Apartments (“the Property”). The funds for acquiring and developing the
Property were provided by proceeds from the sale of a separate housing development and capital
contributions from the plaintiffs. The limited partners consisted of those who originally subscribed
for a limited partnership interest or subsequently acquired such an interest.
On February 26, 1979, the original partnership agreement was “restated” through a document
entitled the “First Amendment to Limited Partnership Agreement and Certificate of Limited
Partnership of Henry Manor, Ltd.” (“the Restated Agreement”). The Restated Agreement contains
provisions relative to organization, contributions, management, and withdrawal or transfer of a
partnership interest. It provides that Claiborne would be the managing general partner, and that
Gilleland and Smith would serve as the administrative general partners for the first three years the
Property was available for occupancy. The agreement also amended the allocation of initial capital
contributions such that Claiborne held 0.98%, Gilleland and Smith each held 0.1%, and Donald L.
Jackson2, the trustee for the plaintiffs – limited partners – held 99%. As compensation for their
services, Gilleland and Smith were entitled to a “[l]iquidation or refinancing fee” in “20% of the net
proceeds from any sale or refinancing of the project, less the balance of his capital account as
increased by 8% simple interest from the date of the receipt of the 100% Occupancy Permit and final
2
Donald L. Jackson, a named defendant in this action, filed a motion to dismiss on M arch 9, 2001. The
disposition of that motion, however, is unclear. No brief was filed on his behalf, and he is not referenced in any of the
parties’ briefs.
-2-
HUD closing.” Smith was to receive two-ninths of this fee, while Gilleland was to receive seven-
ninths. Claiborne, as managing general partner, was entitled to “20% of the proceeds from any
refinancing or sale of all or part of the project proceeds or condemnation awards.” The agreement
also limited Claiborne by precluding him from “sell[ing] or transfer[ing] all or any part of his
interest” without the written consent of limited partners holding over 50% interest in the Partnership.
On the same date that the Restated Agreement was executed, Claiborne, Smith, Gilleland,
Jackson and Roy V. Hopkins3 executed a separate agreement (“the Companion Agreement”), which
set forth the “rights, duties and obligations concerning their Partnership interests and compensation
for past and future services.” Claiborne, Smith and Gilleland executed a third document entitled
“Mutual Indemnity Agreement.”
In 1982, a new agreement (“the 1982 Agreement”) entitled “Supplemental and Amended
Agreement as between the remaining parties to the February 26, 1979 Agreement” was entered into
by Claiborne, Smith, Gilleland, and Jackson. The 1982 Agreement provides that the Companion
Agreement “incorrectly defines certain of the rights, duties and obligations” of the parties. The 1982
agreement further provides that Gilleland and Smith would resign as administrative general partners
in exchange for the partners releasing them from all claims. It also provides that the Partnership
would pay Gilleland and Smith $83,000 in satisfaction of the service fees due them under the
applicable provision of the Companion Agreement. The 1982 Agreement stemmed from Gilleland
mis-characterizing some of the payments he received, as a result of which the Partnership incurred
additional assessments of federal income tax and interest.
On March 8, 1983, the Partnership brought suit against Gilleland and Smith in which it
sought, among other things, a reformation of paragraph one of the 1982 agreement. The subject
paragraph one provides that
[t]he parties agree that all monies heretofore paid and the monies
referred to in the following paragraph 2 paid contemporaneously with
the execution of this instrument to Smith and Gilleland by Henry
Manor have been and are in exchange for the reduction of the
respective interests of Smith and Gilleland in the Partnership and not
otherwise, but in no way does this instrument diminish the present
and remaining interests of Smith and Gilleland in the Partnership.
In particular, the Partnership averred that paragraph one contained a benefit for Gilleland and Smith
not intended by the partners. Following a bench trial, the trial court found in favor of the
Partnership, holding that Gilleland breached his duty by reporting monies as capital gains instead
of ordinary income, which breach jeopardized the tax advantages otherwise accruing to the
Partnership. The trial court ordered that paragraph one of the 1982 Agreement be “struck from said
3
By the Companion Agreement, Roy V. Hopkins relinquished his 10% interest in the Partnership in
consideration of $10.00, the receipt and legal sufficiency of which he acknowledged.
-3-
Agreement and held for naught.” Subsequently, the parties entered in a settlement on December 14,
1989, by the terms of which Gilleland, “in consideration of the premises and the payment of
[$88,500],” was released from further claims and the case was dismissed. Gilleland and Smith were
thereafter not involved in the Partnership.
Claiborne continued to serve as the managing general partner. By instrument dated January
1, 1992, Claiborne and his wife created the G & P Claiborne Trust (“the Trust”). Stanely C. Roy was
designated as trustee. Claiborne was a contingent lifetime beneficiary of the Trust. The Trust
instrument transferred several of Claiborne’s assets to the Trust, including Claiborne’s interest in the
Partnership. The Trust instrument, however, contains a caveat which provides that “[i]f any
partnership interest cannot be transferred to this Trust by reason of partnership contract, law, or
otherwise, then the Grantor does hereby assign any proceeds, income, residuary or otherwise to the
end that this Trust shall be the beneficial owner.” As previously noted, the Restated Agreement
provides that Claiborne, as the managing general partner, could not sell or transfer “all or any part
of his interest” in the Partnership, except with the written consent of limited partners having a total
interest in capital in excess of 50% of the total. No such consent was ever obtained.
Following the execution of the Trust, Claiborne continued acting as managing general
partner. On September 19, 1994, a certificate of limited partnership filed with the Secretary of State
and in the Register’s Office for Hamblen County was signed by Claiborne as the general partner.
Claiborne died on December 18, 1997. Following Claiborne’s death, Roy, as trustee,
undertook certain actions regarding the Partnership, including the negotiation of the sale of the
Property. He also filed tax returns for the Partnership. The plaintiffs executed documents that
authorized Roy to sign all sale documents. The Property was sold on November 15, 2000. As of
November 14, 2002, the proceeds from the sale were held in escrow by Roy and Dudley W. Taylor,
the attorney for the plaintiffs. Financial statements of the Partnership indicate that Claiborne and/or
his successors were due $47,887 for unpaid capital contributions, and that the plaintiffs had failed
to pay capital contributions in 1983 and 1984.
The plaintiffs filed the present complaint for declaratory judgment against Gilleland, Smith,
the Trust, Roy and Jackson, in which they averred, among other things, as follows: (1) that the
Partnership dissolved in 1992 following Claiborne’s transfer of his interest in the Partnership to the
Trust; (2) that as a result of that act of dissolution, the plaintiffs and the Trust thereafter owned the
Property as tenants-in-common; (3) that Gilleland and Smith are not entitled to any percentage of
the net proceeds from the sale of the Property; (4) that neither Roy nor the Trust is entitled to
proceeds from the sale of the Property; (5) that the plaintiffs are not indebted to the Partnership; (6)
that to the extent that Roy and/or the Trust charged management fees to the Partnership following
its dissolution, those fees were inappropriately charged and should be repaid; and (7) that attorney’s
fees incurred in the sale and for the bringing of this suit should be paid from proceeds of the sale and
other funds under Roy’s control.
-4-
In their amended answer, Gilleland and Smith contended that the 1982 Agreement did not
change their entitlement under the Restated Agreement and the Companion Agreement. They also
raised the following affirmative defenses: (1) that they had a contractual right to receive fees which
they relinquished for a percentage of the net proceeds of the sale; (2) that they never relinquished
their interest in the Partnership and were entitled to the percentage share of the sale; (3) that the
plaintiffs are estopped from denying Gilleland and Smith’s right to a percentage of the net proceeds
since the plaintiffs filed tax returns as partners, consistent with the Partnership accountings, which
reflected such entitlements; (4) that since the plaintiffs argue that the Partnership was dissolved in
1992, they are barred under the doctrine of laches from denying Gilleland and Smith their
entitlement; and (5) that, similarly, they are barred from denying Gilleland and Smith their
entitlement under the doctrine of waiver.
By an amended answer filed March 9, 2001, the Trust raised the affirmative defenses of
waiver, estoppel and laches. In addition, they brought a counterclaim in which they alleged (1) that
each individual limited partner is obligated to the Partnership in the amount of $6,800; (2) that the
managing general partner is entitled to the amount of $47,887 pursuant to the compensation scheme
in the Restated Agreement; and (3) that the Trust is also entitled to 20% of the net proceeds of the
sale.
The plaintiffs moved for partial summary judgment; each of the defendants responded by
filing a motion for summary judgment. At the urging of the trial court, which found there to be little
dispute relative to the facts, the parties filed a joint stipulation of facts. However, as the parties were
unable to agree on certain stipulations proffered by the plaintiffs, the parties took the deposition of
Roy to be tendered as proof. In any event, all of the parties now treat the facts as undisputed;
following their lead, we will do the same since we do not perceive any dispute as to the material
facts.
After receiving oral argument on the competing motions, the trial court filed its memorandum
opinion. In its opinion, the trial court held (1) that Gilleland and Smith were collectively entitled
to 20% of the net proceeds from the sale of the Property; (2) that the Partnership was not dissolved
in 1992 when Claiborne transferred his interest in the Partnership to the Trust; and (3) that the
plaintiffs were not obligated to make capital contributions for the years 1983 and 1984, as any claim
for those contributions was barred by the applicable statute of limitations.
Both sides moved to amend the findings and conclusions of the trial court, which motions
were first heard on December 16, 2003. At that hearing, the trial court affirmed its earlier decision,
although it also held that the Partnership dissolved in 1997 when Claiborne passed away and no
-5-
substitute or successor general partner was appointed. Following the receipt of argument on March
14, 2004, on a variety of motions4, the trial court filed its final judgment on May 17, 2004, in which
it held: (1) that Gilleland and Smith were collectively entitled to 20% of the net proceeds from the
sale of the Property; (2) that the transfer of Claiborne’s interest to the Trust was limited to the
assignment of his beneficial interest, and therefore did not prompt the Partnership’s dissolution by
operation of law; (3) that the Trust is entitled to 20% of the net proceeds from the sale; (4) that the
failure to appoint a substitute or successor general partner following Claiborne’s death in 1997 led
to the dissolution of the Partnership; (5) that the plaintiffs are not obligated to make capital
contributions for the years 1983 and 1984, as such claims are barred by the statute of limitations; (6)
that the amount of $47,887 on the Partnership books as a debt owing to Claiborne and the Trust is
not charged to the plaintiffs’ share of liquidating distribution since that debt was only to be paid from
capital contributions; and (7) that the Trust’s motion to implead the State of Tennessee and the
accounting firm of Coulter & Justus should be denied. From this order, the plaintiffs appeal.
II.
The plaintiffs take the following positions on appeal: (1) that Gilleland and Smith are not
entitled to receive any of the proceeds from the sale of the Property; (2) that the Partnership
dissolved in 1992 when Claiborne transferred an interest in the Partnership to the Trust; (3) that
following the dissolution of the Partnership, the plaintiffs and the Trust held the Property as tenants
in common; (4) that the Trust was not entitled to a percentage of the proceeds from the sale; and (5)
that no management fees should have been charged to the Partnership following Claiborne’s transfer
of his interest, or, alternatively, following his death.5
In addition to countering the plaintiffs’ arguments, the Trust challenges the trial court’s
judgment by taking the following positions: (1) that the Trust’s claim to unpaid capital contributions
is not barred by the statute of limitations; (2) that the Trust is entitled to the $47,887 owing on the
Partnership books; and (3) that it is entitled to attorney’s fees.
III.
As this case involves a grant of summary judgment, we must decide anew “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Since a motion for summary judgment
presents a pure question of law, our review is de novo with no presumption of correctness as to the
4
The Trust filed a motion to join, as third-party defendants, the State of Tennessee and the accounting firm of
Coulter & Justus, P.C. This motion was denied. As it is not argued that the trial court erred in denying this motion, we
will not address it here.
5
The plaintiffs also raise allegations that Claiborne breached his fiduciary duty to the Partnership. However,
as this issue was not raised below, it cannot be raised for the first time on appeal. See Tam co Supply v. Pollard, 37
S.W .3d 905, 909 (Tenn. Ct. App. 2000).
-6-
trial court’s judgment. Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44-45 (Tenn. Ct. App.
1993).
Since this is fundamentally a contract action, we must adhere to the cardinal rule in contract
interpretation – that a court must seek to “ascertain the intent of the parties.” Pitt v. Tyree Org. Ltd.,
90 S.W.3d 244, 252 (Tenn. Ct. App. 2002). Initially, a court must determine whether the contract
is ambiguous. Planters Gin Co. v. Fed’l Compress & Warehouse Co., Inc., 78 S.W.3d 885, 890
(Tenn. 2002). If the contract is plain and unambiguous, its meaning is a question of law and it is
incumbent upon the court to interpret it as written according to its plain terms. Bradson Mercantile,
Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999). A contract’s language must be taken
in its plain, ordinary, and popular sense, and the words expressing the parties’ intention must be
given their “usual, natural, and ordinary meaning.” Id. (citations omitted). However, if a contract
is deemed ambiguous, the court must apply established rules of construction to gauge the parties’
intent. Planters Gin Co., 78 S.W.3d at 890. Different interpretations of a contract do not render it
ambiguous. Cookeville Gynecology & Obstetrics, P.C. v. Southeastern Data Systems, Inc., 884
S.W.2d 458, 462 (Tenn. Ct. App. 1994). However, if it is “of uncertain meaning and may fairly be
understood in more ways than one,” it is ambiguous. Farmers-Peoples Bank v. Clemmer, 519
S.W.2d 801, 805 (Tenn. 1975). As further guidance in gauging intent, the law provides that a court
may consider the acts and declarations of the parties, for “[i]f the conduct of the parties subsequent
to a manifestation of intention indicates that all of the parties placed a particular interpretation upon
it, that meaning is adopted if a reasonable person could attach it to the manifestation.” Hamblen Co.
v. City of Morristown, 656 S.W.2d 331, 335 (Tenn. 1983)(quoting Restatement (First) of Contracts,
§ 235 (1932)).
In the context of a limited partnership, the written contract of the parties controls, as “[t]he
duties and obligations of partners arising from an actual partnership relation . . . are regulated by the
express contract as far as they are touched thereby.” Young v. Cooper, 203 S.W.2d 376, 385 (Tenn.
Ct. App. 1947)(quoting 40 Am.Jur. 140 Partnership, § 20). However, “[w]here the express contract
does not cover situations or questions which arise, they are determined under the Uniform
Partnership Law which is in force in this state.” Id.
IV.
In light of the foregoing principles, we direct our attention to the plaintiffs’ first contention,
i.e., that Gilleland and Smith are not entitled to share in the net proceeds from the sale of the
Property. The plaintiffs contend that the trial court erred in awarding 20% of the net proceeds to
Gilleland and Smith who, following their resignation in 1982, no longer provided any services to the
Partnership.
The Companion Agreement establishes the following with respect to Gilleland and Smith’s
compensation:
-7-
2. Under the terms of the bond indenture, Morristown Housing
Development Corporation is issuing first-lien revenue bonds in the
amount of [$1,390,000]. Under the terms thereof, the Partnership is
entitled to the sum of $47,800 for general requirements and builder’s
overhead, and the sum of $122,033 for builder and sponsor risk and
profit to which Smith would be entitled to two-ninths and Gilleland
to seven-ninths, or the total of these sums when the funds are
available. In consideration of relinquishing their respective interests
in the original Limited Partnership Agreement from twenty percent
(20%) and seventy percent (70%) respectively to .01 per cent [sic]
each, the Partnership agrees to credit Smith’s capital account in the
amount of $37,740.66 and Gilleland’s capital account in the amount
of $132,092.34, and agrees to pay each these amounts, plus interest
at the rate of eight percent (8%) per annum from the first proceeds of
any sale or refinancing of the project. Provided, however, payment
of such capital and interest shall not exceed twenty percent (20%) of
the total net proceeds from any such sale or refinancing. The
Partnership agrees to sell or refinance the property on or before one
year after the bonds become callable at par on December 1, 1999.
3. It is acknowledged by the parties and the Partnership that Smith
and Gilleland have expended great amounts of time and considerable
expense in organizing the Partnership; Gilleland having begun work
on the project in 1975 and Smith having begun work on the project
in 1977. In recognition of these past services rendered . . . it is agreed
that the Partnership shall pay Smith and Gilleland the sum of $25,000
each. The Partnership and parties hereto also acknowledge that Smith
and Gilleland have and will render valuable service to the Partnership
relating to the construction of the apartment project, and it is hereby
agreed that each shall be paid the sum of $25,000 as development
fees. The combined fees as set forth in this section shall be paid as
follows: $40,000 upon the admission of new Limited Partners to the
Partnership in accordance with the subscription Agreement . . . or on
September 1, 1979, whichever first occurs; $14,000 upon completion
of the construction and acceptance thereof by the Partnership as
approved by HUD, which is expected to be in June, 1980; $14,000
one year thereafter; $27,000 two years thereafter; and $5,000 three
years thereafter.
(Emphasis added). Subsequently, in 1982, the parties amended the Companion Agreement by the
1982 Agreement, which provides, in relevant part, as follows:
-8-
1. The parties agree that all monies heretofore paid and the monies
referred to in the following paragraph 2 paid contemporaneously with
the execution of this instrument to Smith and Gilleland by Henry
Manor have been and are in exchange for the reduction of the
respective interests of Smith and Gilleland in the Partnership and not
otherwise, but in no way does this instrument diminish the present
and remaining interests of Smith and Gilleland in the Partnership.
2. Henry Manor shall pay to Smith and Gilleland the sum of
[$83,000] in full and complete satisfaction of any obligation to make
further payments as referred to in paragraph 3 of the [Companion
Agreement] and to this extent Smith and Gilleland do hereby release,
remise and discharge Henry Manor, Claiborne and Jackson from the
same.
In the judgment rendered in the 1983 suit against Gilleland and Smith, the court struck paragraph
one of the 1982 Agreement. However, the other provisions remained in full force and effect. In light
of the language contained in these agreements, the trial court in the instant case held
it is clear that Paragraph 3 of [the 1979 Agreement] addresses
payment for services and Paragraph 2 creates a distinct obligation
which is not addressed in [the 1982 Agreement] since the paragraph
that arguably addressed extinguishment of that obligation was
stricken. . . .Without the language in Paragraph 1, [the 1982
Agreement] only purports to satisfy the partnership’s obligation for
payment of the $100,000 to Gilliland [sic] and Smith for services.
***
The original [1982 Agreement], prior to Paragraph 1 being struck by
order of the court, indicated an intent to preserve the “present and
remaining interest” of Smith and Gilliland [sic]. Therefore, nothing
in [the 1982 Agreement] could be construed as an attempt by the
partnership to remove Smith and Gilliland [sic] as general partners in
accordance with the partnership agreement or pursuant to Tenn. Code
Ann. § 61-2-402.
In short, it would appear that there are no documents indicating that
Smith and Gilliland [sic] have withdrawn from the partnership as
general partners or that the partnership somehow has satisfied the
obligations existing under the [Restated Agreement] or the
Companion Agreement . . . for the payment of the twenty percent
(20%) of the net proceeds of the sale of the [Property]. Accordingly,
-9-
the Court finds that they are entitled to the said twenty percent (20%)
according to their respective interests.
The plaintiffs proffer several arguments as to why the trial court erred in its judgment. First,
they refer us to the Revised Uniform Limited Partnership Act (“RULPA”), codified in Tenn. Code
Ann. § 61-2-101, et seq. (2002). The plaintiffs contend that under Tenn. Code Ann. § 61-2-602
(2002), a general partner may withdraw at any time following written notice to the other partners.
Subsequent to that withdrawal, that partner is
entitled to receive any distribution to which he is entitled under the
partnership agreement and, if not otherwise provided in the
partnership agreement, he is entitled to receive, within a reasonable
time after withdrawal, the fair value of his interest in the limited
partnership as of the date of withdrawal based upon his right to share
in distributions from the limited partnership.
Tenn. Code Ann. § 61-2-604 (2002). The plaintiffs contend that the 1982 Agreement contains no
provisions relative to the distribution to administrative general partners following their withdrawal.
Consequently, according to the plaintiffs, Gilleland and Smith should be furnished the fair value of
their interest in the Partnership. As the plaintiffs characterize the $83,000 paid to Gilleland and
Smith under paragraph two of the 1982 Agreement as the fair value of their respective interests,
according to the plaintiffs’ theory, they are not entitled to anything more.
We do not find the plaintiffs’ argument to be persuasive, and hold that Gilleland and Smith
are collectively entitled to 20% of the net proceeds from the sale. The 1982 Agreement provided for
payments to be furnished to Gilleland and Smith in consideration for various service fees to which
they were entitled under paragraph three of the Companion Agreement. The 1982 Agreement did
not, however, purport to amend or alter other amounts to which Gilleland and Smith were entitled.
The plaintiffs attempt to characterize Gilleland and Smith as creditors, which would only
entitle them to a distribution of what was available at the time of their resignation. See Tenn. Code
Ann. § 61-2-606 (2002)6. However, we agree with Gilleland and Smith that even if they were
creditors, they did not become so until after the sale of the Property. Gilleland and Smith have a
contractual right under the Restated and Companion Agreements that has not been amended and is
not contingent upon their continued involvement with the Partnership. In fact, the Companion
Agreement only contemplates that they remain involved for the first three years during which the
Property would be available for occupancy by tenants. Their service obligation was not to extend
beyond this point. The Companion Agreement further provides, however, that the Partnership was
not due to sell the Property until one year after the bonds became callable in December, 1999. The
6
Tenn. Code Ann. § 61-2-606 provides, in relevant part, that “[u]nless otherwise provided in the partnership
agreement, at the time a partner becomes entitled to receive a distribution, he has the status of, and is entitled to all
remedies available to, a creditor of the limited partnership with respect to the distribution.”
-10-
lapse in time does not remove their entitlement, but rather is contemplated by the Companion
Agreement.
The plaintiffs also argue that the “capital accounts” referred to in paragraph two of the
Companion Agreement are “fictional” because those accounts do not comport with any legally
accepted definition of the capital of a partnership. However, the language of the agreement controls.
See Young, 203 S.W.2d at 385. The plaintiffs accepted the Companion Agreement through their
trustee, Donald Jackson.7
V.
We now direct our discussion to the issues pertaining to the Trust. The plaintiffs’ second
issue concerns Claiborne’s transfer of his interest to the Trust by instrument dated January 1, 1992.
The Restated Agreement provides that
[t]he Managing General Partner may not sell or transfer all or any part
of his interest in the Partnership, except with the written consent of
Limited Partners having a total interest in capital in excess of fifty
(50%) per cent of the total interest in capital of all Limited Partners.
Claiborne never obtained any written consent to transfer his interest. Consequently, the plaintiffs
argue that he effectively withdrew from the Partnership by transferring his interest.
A general partner may assign his interest in whole or in part without dissolving the
partnership, “[u]nless otherwise provided in the partnership agreement.” Tenn. Code Ann. § 61-2-
702(a) (2002). It is obvious that the language of the Restated Agreement limited Claiborne’s right
to transfer his interest. However, the trial court relied on a “caveat” contained in the Trust
instrument to hold that Claiborne did not, in fact, transfer his interest in violation of the Restated
Agreement. The Trust instrument provides as follows:
THE FOLLOWING ASSETS, along with the valuation of each, are
hereby transferred to this Trust:
***
Glen Claiborne’s interest in the following General or Limited
Partnerships:
7
The plaintiffs proffer that during the pendency of the 1983 suit, which stemmed from Gilleland playing a role
in putting at risk the tax benefits to which the investors were promised, Gilleland’s attorney wrote a letter making certain
statements relative to Gilleland relinquishing his interest in the Partnership. This letter, however, was never admitted
into evidence and was excluded from the joint stipulation of facts. Consequently, the contents of this letter are not
properly before us and have no bearing on our holding.
-11-
***
(c) Henry Manor, Ltd., Morristown, Tennessee; Value $80,000.
If any partnership interest cannot be transferred to this Trust by
reason of partnership contract, law, or otherwise, then the Grantor
does hereby assign any proceeds, income, residuary or otherwise to
the end that this Trust shall be the beneficial owner.
(Emphasis added). The trial court held that the language of the Restated Agreement “triggers the
caveat in the trust agreement resulting in only an assignment of Claiborne’s beneficial interest at the
time of the execution of the trust agreement.” In its final judgment, the trial court held that the
Partnership dissolved in 1997 upon the death of Claiborne, as no substitute or successor general
partner was appointed.
We disagree with the trial court’s holding that the transfer in the Trust instrument is not in
violation of the Restated Agreement. The Trust instrument states that all of Claiborne’s interest is
transferred to the Trust. Yet, as a default, i.e. in the case of a transfer in violation of a partnership
contract – as is clearly the case here – the Trust instrument purports to “assign any proceeds,
income, residuary or otherwise to the end that this Trust shall be the beneficial owner.” We hold that
the language of the Restated Agreement prohibiting a transfer of “all or any part of his interest in
the Partnership,” being expansive in nature, prohibits the default transfer of the “proceeds, income,
residuary or otherwise,” i.e., the beneficial interest in the Partnership. (Emphasis added). The
RULPA defines “Partnership interest” as “a partner’s share of the profits and losses of a limited
partnership and the right to receive distribution of partnership assets.” Tenn. Code Ann. § 61-2-
101(12) (2002). When the default provision of the Trust was triggered, Claiborne transferred a “part
of his interest” and hence violated the Restated Agreement. We must now examine whether this
transfer caused a dissolution of the Partnership. In its opinion, the trial court noted that “[t]he
Restated Agreement does not make assignment an event of dissolution and Claiborne would have
ceased to be a partner under § 61-2-70[2](a)(4) only in the event that all of his partnership interest
was assigned.” We focus on the Restated Agreement to determine if Claiborne’s default transfer
constitutes an “event of dissolution.”
The Restated Agreement sets forth the following provisions relative to the dissolution of the
Partnership:
If the Managing General Partner becomes incapacitated, withdraws,
or becomes bankrupt, the Partnership shall dissolve. The Partnership
shall thereafter conduct only activities necessary to wind up its
affairs, unless within ninety (90) days after one of the listed events all
the Partners elect in writing to continue the Partnership. If an election
to continue the Partnership is made, then
(a) A successor Managing General Partner shall be selected. . . .
-12-
The Restated Agreement prohibits the transfer of Claiborne’s interest, in whole or in part, yet it is
silent as to the effect of such a transfer if made without proper consent. Significantly, the agreement
does not expressly state that an assignment constitutes a withdrawal such that the dissolution process
is triggered.
Where a partnership operates under a written contract, “the duties and obligations of partners
. . . are regulated by the express contract as far as they are touched thereby.” Young, 203 S.W.2d
at 385. However, where the partnership agreement fails to cover questions which arise, as in the
instant case, those answers are determined under the relevant statutory scheme. Id. Since the
Restated Agreement fails to address the effect of the general partner transferring, without consent,
his interest, or a part thereof, we must turn to the statutory provisions for an answer.
Tenn. Code Ann. § 61-2-702(a) (2002), which concerns the assignment of Partnership
interests, provides as follows:
(a) Unless otherwise provided in the partnership agreement:
(1) A partnership interest is assignable in whole or in part;
(2) An assignment of a partnership interest does not dissolve a
limited partnership or entitle the assignee to become or to exercise
any rights or powers of a partner;
(3) An assignment entitles the assignee to receive, to the extent
assigned, only the distribution to which the assignor would be
entitled; and
(4) A partner ceases to be a partner and to have the power to exercise
any rights or powers of a partner upon assignment of all of his
partnership interest.
(Emphasis added). As previously noted by us, the Restated Agreement expressly provides that
Claiborne may not transfer all or part of his interest in the Partnership without the consent of at least
50% of the Partnership interests. It is silent as to the effect of that transfer. The applicable statute,
Tenn. Code Ann. § 61-2-702(a)(2), however, clearly states that, unless otherwise provided, an
assignment of a partnership interest does not dissolve a partnership. As there is no language in the
Restated Agreement that provides otherwise, we find that the assignment, while in breach of the
Restated Agreement, did not result in the Partnership’s dissolution.
The plaintiffs argue that the transfer is an event of dissolution since Claiborne withdrew as
managing general partner by transferring his interest. It is true that when a general partner transfers
all of his partnership interest, he ceases to be a partner and to have the rights of a partner. See Tenn.
Code Ann. § 61-2-702(a)(4). However, we do not find that Claiborne transferred all of his
partnership interest to the Trust. Rather, he transferred “any proceeds, income, residuary or
otherwise to the end that this Trust shall be the beneficial owner.” Since there is nothing in the
Restated Agreement that equates transferring a part of his interest with withdrawal, the plaintiffs’
argument must fail. We also note that there is clear evidence of Claiborne’s continued involvement
-13-
in the Partnership. For example, the Certificate of Limited Partnership filed in 1994 is signed by
Claiborne in his capacity as the managing general partner.
Tenn. Code Ann. § 61-2-702(a)(2) states that an assignment of a partnership interest does
not dissolve a partnership. As there is no language in the Restated Agreement that provides
otherwise, we find that the assignment, while in breach of the Restated Agreement, did not result in
the Partnership’s dissolution. Although our reasoning differs from that of the trial court, we are at
liberty to affirm the lower court’s judgment even if we rely upon different reasoning to do so. See
Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986).
Although not dispositive, we find further support for our conclusion in the parties’ conduct
following Claiborne’s partial transfer of his interest. In interpreting a contract, it is appropriate, as
a rule of practical construction, to consider the interpretation of a contract as evidenced by the
parties’ conduct and declarations. See Hamblen Co., 656 S.W.2d at 335. Following the conveyance
to the Trust, the Partnership continued to exist. Roy and Claiborne’s wife both signed the
Partnership tax returns. Following Claiborne’s death, none of the plaintiffs moved to appoint a
successor managing general partner under the procedures set forth in the Restated Agreement. Roy
communicated directly with the plaintiffs in 1999, representing himself as the managing general
partner of the Partnership, and the plaintiffs signed consent agreements to permit Roy to handle the
sale of the Property. It is clear that, even after the transfer to the Trust, the parties treated Claiborne
as a member of the Partnership.
VI.
In their third issue, the plaintiffs argue that once the Partnership dissolved and no successor
general partner was designated, the Property was thereafter held by the plaintiffs and the Trust as
tenants-in-common. In support of this contention, the plaintiffs cite two decisions of this court in
which, following a judicial dissolution, we adjudged that the partners held the partnership property
as tenants in common. See W & F Land Co. v. Cherokee Place, No. 03A01-9511-CH-00395, 1996
WL 718468, at *9 (Tenn. Ct. App. E.S., filed December 13, 1996); Koksal v. Hurt, 1987 WL 17991,
at 7 (Tenn. Ct. App. E.S., filed October 7, 1987).
The instant case, however, does not involve a judicial dissolution. As the trial court noted
from the bench during the March 15, 2004, hearing, the Partnership is in the “winding up stage with
nobody . . . legally charged with winding up.” Therefore, as provided by the Restated Agreement,
[i]n the event of a voluntary dissolution or the death, incapacity,
withdrawal, or bankruptcy of the Managing General Partner which is
not followed by the exercise of the election of the Partners to continue
the Partnership pursuant to [the Restated Agreement], the Partnership
shall immediately commence to wind up its affairs. The Partners
shall continue to share profits and losses during liquidation in the
same proportions as before dissolution.
-14-
(Emphasis added). This court has held that “[u]ntil termination of the partnership the interests of
the partners in partnership assets, profits, liabilities and losses do not change, even though they exist
at or occur after dissolution.” Shepherd v. Griffin, 776 S.W.2d 119, 122 (Tenn. Ct. App. 1989).
We therefore hold that the rights of the partners have not been altered by the dissolution of the
Partnership in 1997.
VII.
The plaintiffs argue that the Trust is not entitled to 20% of the proceeds from the sale of the
Property under the Restated Agreement. As support for this argument, they raise several arguments
as to the fairness of permitting the Trust, while the Partnership was functioning without a managing
general partner, to accumulate investor service fees in addition to this percentage of the sale.
Additionally, they argue that where a partner has not performed obligations imposed by the
partnership agreement, he cannot enforce any rights accruing to him, citing Marble Co. v. Ripley,
77 U.S. 339, 357-58 (1870). However, we find that the Trust’s entitlement to this amount is
contractual and, in the absence of any grounds for denying the Trust that entitlement, we decline to
accept the plaintiffs’ argument on this point.
VIII.
Lastly, the plaintiffs contend that they should be permitted to recoup management fees, or,
investor service fees, paid beyond the dissolution of the Partnership.8 Paragraph 6.2 of the Restated
Agreement provides that the managing general partner is entitled to the following compensation:
(a) Financial consulting and legal fees and expense reimbursement
$151,000.00, payable from capital contributions from Limited
Partners in the amounts and on the dates as set forth in the
subscription agreements as follows: $22,800; $49,200; $35,400;
$6,200 and $37,900.
(b) Investor Service Fee $6,000 annually for the first five years
beginning in June of 1980 and 5% of the gross annual rentals
thereafter, payable only out of positive cash flow of the Partnership.
(c) Liquidation or refinancing fee: 20% of the proceeds from any
refinancing or sale of all or part of the project proceeds or
condemnation awards.
The plaintiffs contend that the “Investor Service Fee” continued to be paid in substantial amounts
following Claiborne’s death. However, so the argument goes, they should not have been paid
8
The plaintiffs originally proffered that these payments should not have been made after 1992 since, as they
argued, the Partnership dissolved at that time. Following the dissolution, so their argument goes, there was no managing
general partner. However, as we have determined that the Partnership did not, in fact, dissolve in 1992, we will only
address this issue as it pertains to payments following the Partnership’s dissolution in 1997 after Claiborne’s death.
-15-
following the dissolution of the Partnership as the fee was only paid out “of positive cash flow of
the Partnership.” If the Partnership no longer existed, there could no longer be any positive cash
flow from which these fees could be paid.
The plaintiffs do not question Claiborne’s right to receive these fees prior to the dissolution
of the Partnership. Therefore, the question becomes whether Roy, as the Trustee, was entitled to
receive these amounts following Claiborne’s death if he was not appointed successor general partner.
In a hearing on motions to amend the findings and conclusions, the trial court phrased the
issue as “whether the trust was entitled to continue to receive payments subsequent to Mr.
Claiborne’s death and whether the plaintiffs may recover those payments.” The trial court stated the
following:
The compensation for the managing general partner, Mr. Claiborne,
consisted of three areas; first, the financial consulting and legal fees
and expense reimbursement; the second was the investor service fees
which were to be paid annually; and third, the liquidation refinancing
fee consisting of 20 percent of the proceeds from any refinancing or
sale of all or part of the project proceeds or any condemnation
awards. These fees were not in the nature of distributions of property.
They were instead agreed-upon amounts of compensation to be paid
from identifiable sources of revenue.
[Tenn. Code Ann. §] 61-2-705 provides that in a case of a deceased
partner the partners’ executor . . . or other legal representative may
exercise all of the partners’ rights for the purpose of settling his estate
or administering his property. Section 8.1 of this agreement provides
that in the event of a voluntary dissolution or the death or incapacity,
withdrawal or bankruptcy of the managing general partner, the partner
shall continue to share profits or losses during a liquidation in the
same proportions as before dissolution.
***
. . . the court feels that these fees were, in effect, returns on his
investment and payments for the risk he assumed as a general partner.
Accordingly, the court finds that these contractual obligations
survived the death of Mr. Claiborne and that the payments were
appropriately made to the trust as . . . his beneficial interest at that
time.
We agree with the trial court that the Trust was entitled to receive these fees following Claiborne’s
death. It is a contractual right, and the plaintiffs have not cited any authority that would suggest this
right does not survive Claiborne’s death through the “winding up” process.
-16-
The plaintiffs further argue that these fees were not earned because neither Claiborne nor Roy
ever performed any management services. An apartment management company handled the leasing
and collecting of rents, and the auditing, accounting, and preparation of tax returns was performed
by an independent accounting firm. These companies were paid from rental revenues realized from
the Property. However, the receipt of the subject fees was not made contingent upon these services
being actually performed by the named individuals. Claiborne, and later Roy, were responsible for
seeing that the various services were performed and there is no proof showing the services were not
performed by the named individuals or others retained by them. This issue is found adverse to the
plaintiffs.
IX.
We now direct our attention to those issues raised by the Trust. First, the Trust challenges
the trial court’s judgment that the plaintiffs were not required to pay unpaid capital contributions
from 1983 and 1984, which totaled $81,600. In rendering its opinion, the trial court cited Tenn.
Code Ann. § 61-2-502 (2002), which provides, in relevant part, as follows:
(a) Except as provided in the partnership agreement, a partner is
obligated to the limited partnership to perform any promise to
contribute cash or property or to perform services, even if he is unable
to perform because of death, disability or any other reason. If a
partner does not make the required contribution of property or
services, he is obligated at the option of the limited partnership to
contribute cash equal to that portion of the agreed value (as stated in
the records of the limited partnership) of the contribution that has not
been made. The foregoing option shall be in addition to, and not in
lieu of, any other rights, including the right to specific performance,
that the limited partnership may have against such partner under the
partnership agreement or applicable law.
***
(c) A partnership agreement may provide that the interest of any
partner who fails to make any contribution that he is obligated to
make shall be subject to specified penalties for, or specified
consequences of, such failure. Such penalty or consequence may take
the form of:
(1) Reducing or eliminating the defaulting partner's proportionate
interest in the limited partnership;
(2) Subordinating his partnership interest to that of nondefaulting partners;
-17-
(3) A forced sale of his partnership interest;
(4) Forfeiture of his partnership interest;
(5) The lending by other partners of the amount necessary to meet his
commitment;
(6) A fixing of the value of his partnership interest by appraisal or by
formula and redemption or sale of his partnership interest at such
value; or
(7) Other penalty or consequence.
The trial court held that since the Restated Agreement was silent as to penalties or consequences for
failure to make contractual contributions,
[t]he question then turns to whether the partnership is barred from
now pursuing any action against the partners to collect on the
defaulted contributions. Plaintiffs urge that the statute of limitations
has expired. [Section] 502 provides the partnership with certain
options under paragraph (a) and provides for certain penalties and
consequences under paragraph (c). Otherwise, it would appear that
the partnership’s remedies are limited to specific performance or
“applicable law”.
Clearly, plaintiffs defaulted on any obligation to make contributions
no later than 1984. The partnership’s right to seek specific
performance or other remedies available to it under applicable law
accrued at that time. Plaintiffs’ argument that the statute of
limitations bars any action at this time is well taken.
The Trust argues that the trial court’s application of the six-year statute of limitations, codified in
Tenn. Code Ann. § 28-3-109 (2000), was in error. Instead, they contend that the plaintiffs were
obligated to make the payments under Tenn. Code Ann. § 61-2-502, and that the only defense to
non-payment is compromise by all the partners. Further, the financial statements furnished to the
plaintiffs indicated that these amounts were outstanding and, consequently, remained an asset of the
Partnership. The Trust argues that the plaintiffs’ representations to regulatory authorities had the
effect of ratifying that this amount was due and owing to the Partnership.
We find, however, that there is no reason why the six-year statute of limitations should not
apply to the case before us. The statute of limitations on “actions for contracts not otherwise
expressly provided for” is six years. Tenn. Code Ann. § 28-3-109(a)(3). In a breach of contract
action, the statute commences to run as of the date of the breach or when one party announces its
intention not to perform. Greene v. THGC, Inc., 915 S.W.2d 809, 810 (Tenn. Ct. App. 1995). As
-18-
the plaintiffs neglected to pay these amounts in 1983 and 1984, the managing general partner had
notice that the contributions were not furnished at the time they were due. Consequently, there is
no reason why the applicable statute of limitations should not apply.
X.
The Trust also argues that it is entitled to fees totaling $47,887, which amount was carried
on the Partnership books as debt owing to Claiborne and the Trust. As discussed herein, the
managing general partner was entitled to “[f]inancial consulting and legal fees and expense
reimbursement [sic] $151,000.00, payable from capital contributions from Limited Partners.”
From the bench, the trial court stated that
[s]ince these payments to Mr. Claiborne . . . were restricted to funds
from capital contributions, then it follows that there are no capital
contributions from which to pay Mr. Claiborne this anticipated
compensation. And even though the partnership carried it as a debt,
there is no source from which to satisfy that debt, because these
payments were restricted to the capital contributions which [sic] not
made and cannot now be collected.
As we have held that the plaintiffs are not required to pay the capital contributions owing from 1983
and 1984, we decline to award to the Trust these fees, the source of which would be those capital
contributions.
XI.
Lastly, the Trust challenges the trial court’s judgment that since this action was essentially
between the partners, each party should pay its own attorney’s fees. The Trust contends that the
plaintiffs acquiesced in Roy’s actions of signing federal income tax returns as general partner and
executing the sale. The Trust contends that this activity on the part of the plaintiffs is inconsistent
with its attack on the Partnership’s existence by alluding to events in 1992. If the Trust failed to
defend against this attack, so the argument goes, it would have negated the warranties made by Roy
that this was a partnership and resulted in filings with HUD and the IRS being false. Consequently,
the Trust contends it had no choice but to defend this action.
The American Rule, which provides that litigants must pay their own attorney’s fees unless
there is a statute or contractual provision providing otherwise, is followed in Tennessee. State v.
Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). “The allowance of
attorney’s fees is largely in the discretion of the trial court, and the appellate court will not interfere
except upon a clear showing of abuse of that discretion.” Aaron v. Aaron, 909 S.W.2d 408, 411
(Tenn. 1995). We do not find that the trial court erred in declining to award attorney’s fees to the
Trust.
-19-
XII.
The judgment of the trial court is affirmed and this matter is remanded to the trial court for
enforcement of its judgment and collection of costs assessed below, all pursuant to applicable law.
Costs on appeal are taxed against the appellants.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
-20- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/78621/ | FILED
NOT FOR PUBLICATION APR 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PROPERTY I.D. CORPORATION, a No. 09-55364
California corporation and CARLOS
SIDERMAN, an individual, D.C. No. 2:08-cv-00696-CAS-E
Plaintiffs-counter-defendants
- Appellants, MEMORANDUM *
v.
GREENWICH INSURANCE
COMPANY, a Delaware Corporation,
Defendant-counter-claimant -
Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted April 9, 2010
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and WHALEY, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
Property I.D. Corporation and Carlos Siderman (the “PID parties”) appeal
the district court’s decision granting summary judgment in favor of Greenwich
Insurance Company. The PID parties challenge the district court’s holding that
Greenwich did not owe a duty to defend and indemnify the NDA Action. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review a district court’s grant of summary judgment de novo. HS Servs.,
Inc. v. Nationwide Mut. Ins. Co., 109 F.3d 642, 644 (9th Cir. 1997). “The meaning
and interpretation of an insurance contract is a question of law reviewed de novo.”
Id. “The insurer bears the burden of bringing itself within a policy’s exclusionary
clauses” and exclusions are “strictly construed.” Id. at 644–45.
Pursuant to the prior and/or pending litigation exclusion in the Greenwich
policy the PID parties were not entitled to defense and indemnity of the NDA
Action. See ML Direct, Inc. v. TIG Specialty Ins. Co., 93 Cal. Rptr. 2d 846, 853
(Cal. Ct. App. 2000). The Employment Cross-Complaint was a civil proceeding
filed before the Greenwich policy period began. The NDA Action and the
Employment Cross-Complaint both arose directly out of Sergio Siderman’s
departure from Property I.D. Corporation and his decision to form an independent
company, and Carlos Siderman’s alleged efforts to undermine this competition.
Although the NDA Action contains some allegations that are not found in the
2
Employment Cross Complaint, the NDA action was “based upon,” “ar[o]s[e] out
of,” and “directly or indirectly result[ed] from” the ongoing dispute at issue in the
Employment Cross-Complaint. Thus, the NDA Action fell within the prior and/or
pending litigation exclusion and was not covered by the policy.
The PID parties argue that the prior and/or pending litigation exclusion is
ambiguous because it could conceivably be given an expansive interpretation.
However, exclusion of coverage for the NDA Action is consistent with any
reasonable construction of the exclusion, and “[w]e will not adopt a strained or
absurd interpretation to create an ambiguity where none exists.” ML Direct, 93
Cal. Rptr. 2d at 850.
Because we hold that the PID parties were not entitled to coverage in the
NDA Action due to the prior and/or pending litigation exclusion, we decline to
reach Greenwich’s other grounds for denying coverage.
AFFIRMED.
3 | 01-03-2023 | 04-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3079885/ | Fourth Court of Appeals
San Antonio, Texas
May 12, 2015
No. 04-15-00063-CV
IN THE INTEREST OF Z.R.M., child,
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 13-11-22140-CV
The Honorable Cathy Morris, Judge Presiding
ORDER
The Appellant-Mother’s Motion for Extension of Time to File Brief is GRANTED. The
appellant’s brief is due on May 15, 2015.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 12th day of May, 2015.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1345463/ | 449 P.2d 642 (1969)
EVEREADY FREIGHT SERVICE, INC., Plaintiff in Error,
v.
The PUBLIC UTILITIES COMMISSION of the State of Colorado, and Denver-Climax Truck Line, Inc., Defendants in Error.
No. 23347.
Supreme Court of Colorado, En Banc.
January 13, 1969.
As Modified on Denial of Rehearing February 10, 1969.
Jones, Meiklejohn, Kehl & Lyons, Alvin J. Meiklejohn, Jr., T. Peter Craven, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Robert Lee Kessler, Asst. Atty. Gen., Denver, for defendant in error, The Public Utilities Commission.
John P. Thompson, Denver, for defendant in error, Denver-Climax Truck Line, Inc.
DAY, Justice.
The plaintiff in error, Eveready Freight Service, Inc., was the plaintiff in the district court and will be referred to as Eveready. *643 Defendant in error Public Utilities Commission will be referred to as the Commission, and defendant in error Denver-Climax Truck Line, Inc., will be referred to as Denver-Climax.
This writ of error is to a district court judgment affirming the Commission's refusal to grant Eveready permission to haul sodium silicate for American Metals Climax from their mine at Climax, Colorado, to the company's operation at the Urad Mine site near Empire, Colorado.
Eveready is a common carrier with only authority for call and demand service insofar as what is involved here. As such it filed a tariff application with the Commission, stating a rate for the transportation of sodium silicate from Climax to the Urad Mine. This application was granted on July 10, 1967, to become effective July 26, 1967. However, on July 19th Denver-Climax, a common carrier operating from Climax to Denver with off-route to the Urad Mine, filed a protest with the Commission. After the hearing the Commission denied authority to Eveready on the grounds that Eveready's Certificate of Public Convenience and Necessity contained a restriction which prohibited the proposed operation. The district court affirmed the Commission decision. We reverse.
Eveready's Certificate of Public Convenience and Necessity provides in relevant part that Eveready may not "directly compete with scheduled operations of presently established line haul carriers" within the defined area it is authorized to serve. The prohibition in Eveready's Certificate thus would apply only if at the time of the tariff application the carrier seeking to invoke its protection is both an established line haul carrier and is conducting scheduled operations to the Urad Mine.
The Commission finding that Denver-Climax is a "scheduled line haul common carrier" is not the same as a finding that Denver-Climax is conducting "scheduled operations" within the meaning of the Eveready's Certificate. In attempting to equate the two as one and the same the Commission erred.
In so holding we are not unmindful that this court will not overturn the Commission's decision on a disputed factual question. Southeast Colorado Power Association v. Public Utilities Commission, Colo., 428 P.2d 939; Public Utilities Commission of Colorado v. Watson, 138 Colo. 108, 330 P.2d 138; Parrish v. Public Utilities Commission, 134 Colo. 192, 301 P.2d 343. However, it is significant that the record is devoid of evidence of or a finding that Denver-Climax is in fact "conducting scheduled operations" to the Urad Mine site. That Denver-Climax is a "scheduled line haul common carrier" is not disputed. Denver-Climax does conduct scheduled operations from Climax to Denver and return trips. A review of the record, however, indicates that contrariwise Denver-Climax is not conducting scheduled operations to the Urad Mine. The pertinent evidence on this issue is the testimony elicited on cross-examination from a Mrs. Eshe, the general manager of Denver-Climax. We quote from the record:
"Q. Now, Mrs. Eshe, you don't purport to tell this Commission that you operate a schedule daily on schedule at a fixed time with a fixed departure from Climax and a fixed arrival time at Urad and a fixed departure from Urad directly to Climax, that you operate that daily?
A. No, sir, I don't purport.
Q. As a matter of fact, when you operate that truck from Climax to Urad is only if, as, and when there might be some freight?
A. Yes, sir.
* * * * * *
Q. In the same sense that you actually operate a schedule between Denver and Climax you do not conduct that type of operation between Climax and Urad?
A. No, sir. As Mr. Brown said, we only had to do it on request at that time because there was that little freight going from Climax to Urad.
*644 * * * * * *
Q. Then to come back to the question that I asked you, as of now you do not consider that you are providing scheduled service?
A. No, sir.
Q. Between Climax and Urad?
A. We are not."
It seems clear to us that any definition of "scheduled operations" must entail the concept of service on a regular time schedule previously announced as to time of departure and arrival between definitely established points regardless of whether there are passengers or freight to be carried. See Tidewater Express Lines, Inc. v. United States, D.C., 278 F. Supp. 561; Thompson v. Fidelity and Casualty Co., 16 Ill.App.2d 159, 148 N.E.2d 9, cert. denied, 358 U.S. 837, 79 S. Ct. 62, 3 L. Ed. 2d 74; McBride v. Prudential Insurance Co., 147 Ohio St. 461, 72 N.E.2d 98. It is because a scheduled carrier must operate its equipmentwhether fully loaded or notthat distinguishes it from the common carrier offering only call and demand service; and the risks and burdens entailed in such "scheduled operation" are what entitles the former carrier to protection. In the instant case, we hold that it is not enough to obtain the protection afforded by the Commission that the carrier arrive and depart at the times and only on days that services are required.
We conclude that Denver-Climax does not conduct "scheduled operations" to the Urad Mine site, and that the prohibition in Eveready's Certificate is not applicable in these circumstances.
The judgment is reversed and the cause remanded to the district court with directions that the Commission decision be set aside.
McWILLIAMS, J., dissents.
HODGES, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154622/ | 963 A.2d 112 (2009)
112 Conn.App. 903
Charles GIANETTI
v.
GREATER BRIDGEPORT INDIVIDUAL PRACTICE ASSOCIATION et al.
Charles Gianetti
v.
Physicians Health Services, Inc., et al.
No. 27815.
Appellate Court of Connecticut.
Argued January 15, 2009.
Decided February 3, 2009.
HARPER, LAVINE and PELLEGRINO, Js.
PER CURIAM.
Plaintiff's consolidated appeal from the Superior Court in the judicial district of Waterbury, Eveleigh, J.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154644/ | 963 A.2d 564 (2008)
COM.
v.
EICHER.
No. 1899 WDA 2007.
Superior Court of Pennsylvania.
September 3, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023686/ | PRESIDING JUSTICE BUCKLEY delivered the opinion of the court: The Board of Managers of Old Willow Falls Condominium Association (the association) filed an eight-count complaint against several defendants to recover unpaid condominium assessments, damages for breach of fiduciary duty to the association during its condominium conversion, and other related causes of action. The instant appeal involves only defendant Glenview State Bank (GSB) and its dismissal from the association’s complaint, alleging a breach of duty under the Condominium Property Act (the Act) (Ill. Rev. Stat. 1987, ch. 30, par. 301 et seq.) to pay unpaid assessments on certain condominium units as a “co-developer.” The circuit court granted GSB’s motion to dismiss the association’s original count I of its complaint pursuant to the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), but granted the association leave to amend count I as to GSB. The “First-Amended Count I”1 was filed, and, in response, GSB filed a motion to dismiss pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The circuit court subsequently dismissed GSB from count I of the association’s complaint under section 2 — 619 of the Code. Pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), the circuit court found no just reason for delaying enforcement or appeal of the order as to GSB’s dismissal from count I, and the association filed a timely appeal. The issue presented for our review is whether the circuit court erred in dismissing GSB, a secured lender, from count I of the association’s complaint. For the reasons set forth below, we reverse GSB’s dismissal. Defendants Alex Pinsky, Zal Horn and Saul Azar are shareholders of New Prospect Development Corporation (NPDC) and doing business as Old Willow Falls Partnership. NPDC is identified as the developer of the conversion project of rental apartments into condominium units, which is at issue in this appeal. The condominium units were created on August 18, 1979, pursuant to a condominium declaration2 (the Declaration). To finance the project, GSB made a certain loan to NPDC for the purpose of paying an existing first mortgage and for construction and rehabilitation of the units. The loan is secured by the assignment of the beneficial interest of First National Bank and Trust of Evanston, as trustee under trust No. R — 1540, dated July 30, 1979, and of various trust deeds in which Azar, Horn and Pinsky are the named beneficiaries. From the time the Declaration was recorded on August 18, 1979, until the independent condominium unit owners began to manage the association’s affairs on November 9, 1982, Azar, Horn and Pinsky served as officers and directors of the association. On March 4, 1982, Azar filed for bankruptcy. Subsequently, Azar, Horn and Pinsky entered into an agreement dated March 25, 1982, to resolve various financial disputes while the condominium project continued in operation.3 As to GSB, the parties to the agreement agreed to execute Certain documents so that GSB could disburse funds for payment of a first mortgage and for construction and rehabilitation of the condominium project, without Azar’s, Horn’s or Pinsky’s countersignatures. Regarding the project’s management during its conversion stage, the agreement set forth that funds collected from rental or contract sales of condominium units or from other sources shall be deposited in an account held at GSB and disbursed upon the signature of any two of the following: Pinsky or Horn, Azar or the condominium association manager, Camille Imbrie. In the event that the parties disagreed as to the disbursement of funds or as to any issue involving the project’s management, the agreement gave GSB the discretion to make disbursements or management decisions without approval or consent of Pinsky, Horn, Azar or Imbrie. Additionally, the agreement provided that GSB was exculpated from any liability with respect to its actions in relation to the agreement. Attached to the association’s complaint in the circuit court was an affidavit submitted by Imbrie which disclosed the following: She was employed on the recommendation of personnel at GSB. Two accounts existed at GSB for the project: one account in the association’s name and the other account, which was considered the “converter” account, in the name of NPDC. Imbrie also stated that GSB refused to disburse funds from either of the accounts without the signature of one of its officers. In November 1982, the independent condominium unit owners began managing the affairs of the association. Upon learning that the developer had failed to pay assessments to the association for the period prior to the sale of each condominium unit, the association demanded payment of such sums. Both GSB and the developer refused to pay the unpaid assessments for units remaining unsold, as well as assessments due for sold units prior to their sale. At a hearing on GSB’s section 2 — 615 motion to dismiss, the circuit court noted that the motion should have been brought under section 2 — 619 of the Code because of GSB’s reliance on “affirmative matter,” the Condominium Property Act’s (the Act’s) (Ill. Rev. Stat. 1987, ch. 30, par. 309(a)) provisions that the “developer” is liable for these assessments. In support of its motion, GSB submitted the affidavit of Samuel Pincich, a GSB bank officer, stating that: (1) Imbrie was not an employee of GSB; (2) no officer of GSB acted as an officer or director of the association; and (3) neither GSB nor any of its agents acted as a developer of Old Willow Falls Condominium Association. Despite GSB’s failure to bring the motion under section 2 — 619, which expressly permits “affirmative matter” to be offered as evidence (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)), the court found the failure not to be “fatal.” It then dismissed GSB from count I of the association’s complaint, finding that GSB was not obligated for the unpaid assessments because it was not a “developer” under the provisions of the Act. On appeal, we initially address the association’s argument that the circuit court committed reversible procedural error in deciding GSB’s section 2 — 615 motion to dismiss under section 2 — 619. Even though GSB’s motion would have been more properly brought pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), designating a motion under a different paragraph of the Code is not fatal. (See Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253, 433 N.E.2d 1350, 1355; Weber v. Weber (1979), 77 Ill. App. 3d 383, 385, 396 N.E.2d 43, 45.) The association next argues that even if the circuit court properly considered GSB’s section 2 — 615 motion “as if it had been raised under section 2 — 619,” error resulted because the circuit court precluded it from submitting counteraffidavits to the motion. We agree with the association and believe that justice demands that this cause be remanded to the circuit court so that the association is provided an opportunity to submit counteraffidavits to GSB’s motion to dismiss. GSB filed its motion to dismiss pursuant to section 2 — 615 of the code, yet argued affirmative matter in an attempt to defeat the allegations contained n the association’s complaint. To support its motion, GSB submitted the Pincich affidavit. In response to GSB’s section 2— 615 motion to dismiss, the association argued that GSB had improperly asserted affirmative matter and an affidavit to defeat the allegations contained in the association’s complaint. The association’s motion further provided: “The Association does not waive, but expressly reserves its objections to the substantive and procedural defects of GSB’s motion. In particular, the Association reserves the right to pose counteraffidavits, if and when GSB presents a motion attacking the Association’s claims against GSB under a procedure where affidavits other than those appended to the complaint as exhibits may be considered.” After considering all pertinent pleadings to GSB’s motion to dismiss, the circuit court determined that the motion to dismiss would be more properly addressed “as if had been raised under section 2— 619.” Thereafter, the circuit court dismissed GSB from count I of the association’s complaint and found no just reason for delaying enforcement or appeal of the order. Although we hold that it was proper for the circuit court to consider GSB’s section 2 — 615 motion to dismiss under section 2 — 619, we believe that the circuit court erred in not affording the association an opportunity to submit counteraffidavits to controvert the affirmative matter and the Pincich affidavit which had been previously included in GSB’s section 2 — 615 motion to dismiss and presumably considered by the circuit court in reaching its decision. As set forth above, the association expressly reserved the right to submit counter-affidavits to GSB’s motion to dismiss. We therefore remand this case to the circuit court to provide the association the opportunity to submit counteraffidavits to GSB’s motion to dismiss. In light of the above, we need not address the remaining issues presented on appeal. Reversed and remanded. CAMPBELL and O’CONNOR, JJ., concur. All references to the “First-Amended Count I” of the association’s complaint will be referred to as “count I.” “Declaration” is defined by the Condominium Property Act as follows: “(a) ‘Declaration’ means the instrument by which the property is submitted to the provisions of this Act, ***.” 111. Rev. Stat. 1987, ch. 30, par. 302(a). The agreement between these parties was approved by the United States District Bankruptcy Court for the Northern District of Illinois. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7023687/ | PRESIDING JUSTICE LaPORTA delivered the opinion of the court: Plaintiff, Angela Bennetto, applied for medicaid benefits and was denied. The denial was affirmed after an administrative review, and she appealed to the trial court, which also affirmed. We reverse and remand for further proceedings in accordance with this opinion. Three issues were raised on appeal: whether the Illinois Department of Public Aid (IDEA) breached a duty to assist the plaintiff in obtaining benefits by securing necessary verifications to support her application; whether plaintiff should have been granted benefits because she is a person permanently residing under color of law; and whether the copy of the automobile title and the Immigration and Naturalization Service (INS) receipt were timely mailed by plaintiff, and whether receipt of them should be inferred. Plaintiff was born in Mexico and moved to the United States in 1971. In 1975, she married Gordon Bennetto, a United States citizen. They have four children. On April 15, 1987, plaintiff’s husband and a hospital caseworker filed for medicaid benefits on plaintiff's behalf, submitting copies of numerous documents with the application, including birth certificates for plaintiff, her husband, and three of their children; social security cards for plaintiff and three of their children; plaintiff and husband’s marriage certificate; and other documents. A letter (Form 267) was sent to plaintiff, directing her to contact a caseworker at the IDEA by or on May 1, 1987. Plaintiff contacted the caseworker, who informed her that IDPA needed a copy of their automobile title and documentation from the INS as to plaintiff’s status. A second Form 267 was sent to plaintiff repeating this information. Plaintiff testified that she mailed copies of the automobile title and a receipt from INS to the caseworker; the caseworker testified that these had not been received. In a follow-up call approximately two to three weeks later, the caseworker informed plaintiff that the documents had not arrived, and she and her husband testified at the administrative review hearing that they decided to hand deliver the next copies. Plaintiff and her husband also attempted to contact INS to determine the status of plaintiff’s application for permanent residence. Someone at INS told them that plaintiff’s file was lost and they would have to refile the application for her permanent residency status. Plaintiff and her husband did not send the necessary verifications to IDPA by May 14, 1987, the date specified in the caseworker’s second Form 267, and plaintiff’s application for medicaid was denied on June 18, 1987. However, plaintiff and her husband testified without contradiction that they met with the caseworker in late June and were not informed at that time that the application had been denied nor that they had the right to request a reconsideration of the application. On July 1,1987, plaintiff appealed the denial of benefits. Plaintiff and her husband continued to attempt to obtain information regarding plaintiff’s residency status from INS. On July 3, 1987, plaintiff and her husband went to the local INS office to attempt to obtain the necessary documentation of her status but found the office closed. Upon leaving the area they sustained injuries in a motorcycle accident, which delayed their attempts to obtain the necessary documents of plaintiff’s citizenship status. At an administrative review hearing, plaintiff proffered copies of the car title and INS receipt. After the hearing, the hearing officer made a finding of fact that plaintiff had in fact not mailed the verifications to IDPA and affirmed the denial of benefits. Plaintiff appealed to the circuit court, and after a hearing, the trial judge affirmed the decision of the administrative review officer. Plaintiff appealed to this court. In reviewing an administrative decision, the trial court may not entertain “new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency” and “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) The court may only review the agency’s findings to determine whether they are supported by the manifest weight of the evidence (Cohen v. Department of Insurance (1988), 173 Ill. App. 3d 363, 369, 527 N.E.2d 581, 586), and the fact that the evidence is conflicting (Hofmeister v. Department of Registration & Education ex rel. Galvin (1978), 62 Ill. App. 3d 777, 781, 379 N.E.2d 383, 386), or even that the evidence supports the opposite view (Sheehen v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 287, 509 N.E.2d 467, 476), does not alone authorize reversal. If the evidence sustains the agency’s decision, that decision must be upheld. Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 194, 524 N.E.2d 1172, 1175. Plaintiff argues that IDPA failed to adequately assist her in applying for benefits, first by not assisting her in obtaining needed supporting information, and secondly, by not informing her of alternative and equally acceptable proofs. IDPA responded that it was incumbent upon plaintiff to provide verification of her family’s assets, and to either provide or request assistance in obtaining proof of her alien status; because plaintiff did neither, IDPA was required to deny her application for medicaid benefits. The Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 1 — 1 et seq.) directs IDPA employees to act courteously (Ill. Rev. Stat. 1987, ch. 23, par. 11 — 2) and provides that IDPA employes may assist applicants “in securing evidence in support of their eligibility” (Ill. Rev. Stat. 1987, ch. 23, par. 11 — 4). The Illinois Administrative Code section discussing “Client Cooperation” for medical assistance benefits states that when third-party information is required, and the applicant is unable to obtain this information, “upon the applicant’s request the Department will assist in securing evidence to support the client’s eligibility for assistance.” (89 Ill. Adm. Code §120.308(d)(3) (Supp. 1988).) The Illinois Department of Public Aid Manual, cited by plaintiff, states that if the applicant cannot provide verification, “staff with the consent of the applicant will assist in obtaining such information.” IDPA Manual, PO — 315(2). The case primarily relied upon by plaintiff concerns an applicant who neither spoke nor read English, and although her application did not specify this limitation, it did give her landlord’s name, address, and telephone number for an emergency contact. (Siemion v. Department of Public Aid (1988), 168 Ill. App. 3d 187, 188-89, 522 N.E.2d 627, 628-29.) Her application was denied within the 45-day processing period. (Siemion, 168 Ill. App. 3d at 195, 522 N.E.2d at 633.) The appellate court affirmed the trial court’s finding that IDPA failed to adequately assist the applicant in processing her application because it did not contact her landlord when it could not contact the applicant. (Siemion, 168 Ill. App. 3d at 195, 522 N.E.2d at 633.) The appellate court was critical of IDPA for its swiftness in denying the application (Siemion, 168 Ill. App. 3d at 195, 522 N.E.2d at 633), especially because a telephone call to the applicant herself was inconclusive because of the language barrier (Siemion, 168 Ill. App. 3d at 191, 522 N.E.2d at 629-30). In the case at bar, plaintiff’s application was received on April 15, 1987, and denied on June 18, 1987, some 64 days later. Plaintiff and her husband understand the English language, corroborated not only by their testimony at the administrative review hearing but by the fact that they did attempt to comply with IDPA’s requests for documentation and the fact that plaintiff had a telephone interview with the IDPA caseworker on May 1, 1987. Plaintiff also relies upon the administrative review and hearing officer’s decision in In re Appeal of Noreen Knight (IDPA, Dec. 22, 1987), No. 87 — 11609—AMI. In that case, the hearing officer found that Knight’s husband informed IDPA that the requested documents could not be provided because they were in rooms from which the Knights had been evicted, and found the “department did not suggest alternative means of securing the items or other acceptable forms of verification.” (Knight, slip op. at 2.) The hearing officer reversed ID-PA’s rejection of Knight’s application. IDPA argues that it breached no duty to plaintiff because it is not required to take the initiative, but only to assist the applicant if requested to do so, and that plaintiff neither requested any assistance nor indicated that she was having any difficulty in obtaining the required verifications. Unlike Knight, there is no indication here that plaintiff or her husband either informed the caseworker that they were having difficulty in obtaining the required verifications or asked IDPA for assistance in obtaining the verifications. The caseworker did testify that plaintiff brought in the INS receipt after plaintiffs application had been denied. She did not testify that she refused the receipt nor otherwise indicate to plaintiff at that time that the application had been denied. Plaintiff and her husband testified that they were told only that the receipt was inadequate proof of status, and that they should obtain “some kind of letter” from INS to support plaintiff’s claim of residency. There is no indication that the caseworker gave them any other information as to the type of proof required or in any way offered to aid them in obtaining the proof. While the caseworker may have acted within the letter of the statute and regulations, she certainly did not act within their spirit. It is obvious from the record that plaintiff and her husband were trying to obtain the necessary proofs and were unsuccessful. At a minimum, the caseworker should have undertaken to assist them with specific information as to what proofs would be acceptable to IDPA to establish plaintiff’s residency status in support of her application for benefits. Plaintiff contends that because she is residing in the United States under color of law, she should have been granted medical assistance benefits. Plaintiff argues that she has resided in the United States continuously since 1971; that she is married to a United States citizen and has four children who are United States citizens; that she has a social security number and had previously received food stamps; and that her husband had filed an “immediate relative” petition (Form 1-130) for her to gain permanent residency, for proof of which she offered a copy of the receipt from INS indicating that the fee for filing this form had been paid. Among the persons eligible for medicaid benefits are “[a]liens lawfully admitted for permanent residence or permanently residing in the United States under color of law.” (42 C.F.R. §435.402 (1988).) The Medicare and Medicaid Guide (the Guide) defines persons residing in the United States under color of law as aliens who “are the immediate relatives of an American citizen or a lawful permanent resident and have had filed on their behalf a Form 1-130 petition for issuance of an immigration visa.” (Medicaid and Medicare Guide §3212.4(f)(l).) However, the Guide clearly states that as proof of status the alien should have a Form 1-94 and/or an 1-210 Letter. (Medicare and Medicaid Guide §3212.4(f)(3).) Plaintiff apparently has been unable to produce such documentation. She could offer no documentation other than the receipt indicating that a Form 1-130 had been filed, but the receipt gave no indication on its face either by or for whom the form was filed nor did it indicate plaintiff’s current status with INS. This document alone does not fulfill the requirements of the Illinois Department of Public Aid nor by itself does it satisfy the Federal documentary requirements to qualify for medicaid benefits. In a case with facts very similar to those of the case at bar, the Second Circuit held that a woman who had moved to the United States as a child, married a United States citizen, and subsequently bore six children who are United States citizens qualified as a person residing in the United States under color of law. (Holley v. Lavine (2d Cir. 1977), 553 F.2d 845.) The determinative factor, the court found, was a “formal letter” by INS to “a responsible official of the New York State Department of Social Services that ‘deportation proceedings have not been instituted...for humanitarian reasons’ and the ‘Service does not contemplate enforcing her departure from the United States at this time.’ ” (Holley, 553 F.2d at 849.) This is distinguishable from the facts of our case because the plaintiff here has no official document from INS except for the receipt. (See also Zurmati v. McMahon (1986), 180 Cal. App. 3d 164, 225 Cal. Rptr. 374 (petitioner had a letter from INS which indicated that her request for political asylum was being considered, permitting her to remain in the United States in the interim and authorizing employment; the court held this insufficient to establish status as a person residing in the United States under color of law, because it did not comport with any of the six categories of such status, which the court found involve “an affirmative ‘admission’ or ‘grant,’ by a competent official authority, of a specific status.” (180 Cal. App. 3d at 175, 225 Cal. Rptr. at 380)).) Plaintiff was required to offer affirmative proof of her status, and the IDEA found she had failed to do so. We must consider whether her failure to document her status was sufficient reason to deny her medicaid benefits. An examination of the Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 1 — 1 et seq.) discloses that IDEA employees are required to act courteously and with respect in dealing with applicants who seek public aid benefits and to “perform duties in such manner as to secure for every applicant and recipient the aid and services to which the person may be entitled.” (Ill. Rev. Stat. 1987, ch. 23, par. 11—2.) Clearly, the spirit of the law is that IDEA personnel should render whatever assistance is necessary to a qualified applicant so that benefits available to that person are not withheld or denied because of the applicant’s confusion or misunderstanding of documentation required to qualify, or of the time limitations within which the filings must occur, or of any other deficiencies in the application process. It is contrary to the spirit of the Illinois Public Aid Code that an application be summarily rejected for the applicant’s failure to file supporting documents if no attempt is made by IDEA to assist the applicant in obtaining the requisite proofs of alien status if and when the applicant has difficulty in accomplishing such compliance on her own. Here the plaintiff attempted to comply when the caseworker advised her that, in addition to the substantial documentation filed with the application, she was required to file a copy of the car title to verify her family’s assets and to submit some proof of her status from INS. Plaintiff testified that she mailed copies of both the car title and the receipt verifying the application for permanent residence filed with INS on her behalf. The caseworker testified that she did not receive them, but she did not testify that she made any attempt to advise plaintiff that these documents had not been received prior to the denial of medicaid benefits nor did she testify that she made any attempt to contact INS directly to verify plaintiff’s status either before or after the denial of benefits. The record discloses the substantial efforts of the plaintiff to comply with IDPA’s requirements. Plaintiff testified that she was advised by INS that the file on her application for permanent residence had been lost and that she was advised by them to reapply. Plaintiff produced the receipt she had to verify that her application for permanent residence had been filed in 1983, which was the only documentary proof she had. Plaintiff filed her application for medicaid benefits with IDPA on April 15, 1987. Five months prior to her application, on November 6, 1986, the Immigration Reform and Control Act (the Act) (Pub. Act 99 — 603) was passed. The Act at section 203 changed the requirements to establish residence under color of law. Prior to the Act, an applicant qualified for this status if she had resided in the United States continuously from June 30, 1948, to the date of application. Section 203 changed the requirement to continuous residence in the United States from January 1,1972, to the date of application. Unless a statute specifies otherwise it becomes effective as of its date of passage. (Lapeyre v. United States (1873), 84 U.S. (17 Wall.) 191, 21 L. Ed. 606; Matthews v. Zane (1822), 20 U.S. (7 Wheat.) 164, 5 L. Ed. 425; United States v. Cirrincione (N.D. Ill. 1985), 600 F. Supp. 1436, 1438, aff'd (1985), 780 F.2d 620; General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 379, 469 N.E.2d 1067, 1076-77.) The applicable Federal regulation (8 C.F.R. §249.2(a) (1989)) detailing what constitutes sufficient proof of residence was published in the Federal register on March 3, 1987 (52 Fed. Reg. 6322 (1987)), 43 days before plaintiff filed her application. Even though the Federal change was in effect on the date of plaintiffs application, the relevant portion of the Illinois Administrative Code was not changed until May 17, 1988, over one year later. (89 Ill. Adm. Code §120.310 (Supp. 1988).) Clearly IDPA did not process plaintiff’s application under the amended Federal guidelines. An agency’s delay in implementing a Federal statute will not be permitted to defeat the intent of that statute. Because the Federal regulations on eligibility for medicaid benefits state that “[a]liens *** permanently residing in the United States under color of law” are eligible for benefits, and because plaintiff’s application for benefits indicates that she moved to Illinois in 1971, she should have been offered the opportunity to prove her continued residence in the United States from January 1,1972, under the amended Federal guidelines. Plaintiff produced a copy of the car title and the receipt from INS showing that an application for permanent residence had been filed on her behalf. Both were rejected by the hearing officer as not timely filed. We find IDPA’s processing of plaintiff’s application for medicaid benefits was a summary disposition and as such was unnecessarily harsh and contrary to the spirit of the Illinois Public Aid Code. Plaintiff was not offered the expertise or assistance of the caseworker in the gathering of supporting documentation necessary to complete her application even though the statute requires it. For these reasons, we reverse and remand with directions to IDPA that plaintiffs application for medicaid benefits be reinstated for further processing, that IDPA assist plaintiff in documenting her status as a person residing in the United States under color of law since January 1, 1972, and in assembling any other proofs required to process her applications for medicaid benefits to its conclusion. Reversed and remanded. McNAMARA and EGAN, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/24862/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20324
TRANSCONTINENTAL INSURANCE COMPANY,
Plaintiff-Appellee,
versus
PORT METAL PROCESSING, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-2470)
July 12, 2001
Before HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges, and DOWD*,
District Judge.
PER CURIAM:**
We affirm for essentially the reasons stated by Judge Werlein.
AFFIRMED.
*
District Judge of the Northern District of Ohio, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2155069/ | 963 A.2d 469 (2009)
COM.
v.
RICHARDSON.
No. 620 MAL (2008).
Supreme Court of Pennsylvania.
January 12, 2009.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441334/ | 19 N.Y.3d 876 (2012)
969 N.E.2d 1165
947 N.Y.S.2d 50
2012 NY Slip Op 75130
DANIEL SCHICK et al., Respondents,
v.
200 BLYDENBURGH, LLC, et al., Appellants.
Motion No: 2012-380.
Court of Appeals of New York.
Submitted April 9, 2012.
Decided June 5, 2012.
Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441340/ | 18 N.Y.3d 809 (2012)
967 N.E.2d 705
944 N.Y.S.2d 480
2012 NY Slip Op 68589
MATTER OF ANASTACIA L., (VITO L.JENNIFER R.).
Motion No: 2012-96
Court of Appeals of New York.
Decided March 29, 2012.
Motion for leave to appeal denied.[*]
NOTES
[*] Motion for poor person relief dismissed as academic or denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/500452/ | 837 F.2d 1086
Swindenv.Graham
NO. 87-7317
United States Court of Appeals,Second Circuit.
NOV 02, 1987
1
Appeal From: S.D.N.Y.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/560774/ | 932 F.2d 961
Swift (James)v.Petsock (George), McDaniel (Donna Jo), Freeman (Robert M.)
NO. 90-3679
United States Court of Appeals,Third Circuit.
APR 08, 1991
1
Appeal From: W.D.Pa.
2
APPEAL DISMISSED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/227948/ | 191 F.2d 921
51-2 USTC P 9478
LURDING,v.UNITED STATES.
No. 11330.
United States Court of Appeals Sixth Circuit.
Oct. 16, 1951.
Russell Smith and James U. Smith, Jr., Louisville, Ky., for appellant.
David C. Walls and Charles F. Wood, Louisville, Ky., for appellee.
Before HICKS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
PER CURIAM.
1
This appeal of Joseph L. Lurding, for the second time convicted by jury verdict of wilfully and knowingly attempting to defeat and evade a large part of his income taxes for the calendar years 1943 through 1946 in violation of section 145(b), Title 26, U.S.C.A., has been heard on the record and on the oral arguments and briefs of the respective attorneys for appellant and the United States;
2
And it appearing from the record that there was abundant substantial evidence upon which appellant could be properly convicted of the offense charged against him; and that the trial court committed no reversible error upon retrial of the case, but followed faithfully the directions of this court in Lurding v. United States, 6 Cir., 179 F.2d 419, and delivered a carefully prepared and correct written charge to the jury;
3
The judgment of conviction and sentence entered in the district court upon the verdict of the jury is ordered to be affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1676716/ | (2008)
SIESTA VILLAGE MARKET, LLC, Joseph L. Chess and Terry Fowler, Plaintiffs,
v.
Jennifer GRANHOLM, Michael Cox, Defendants.
Civil Action No. 06-CV-13041.
United States District Court, E.D. Michigan, Southern Division.
September 30, 2008.
MEMORANDUM OPINION AND ORDER RE: PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DEFENDANTS' JOINT MOTION FOR SUMMARY JUDGMENT, MOTION TO STRIKE SUPPLEMENTAL BRIEF, and DEFENDANTS' JOINT MOTION FOR RECONSIDERATION
DENISE PAGE HOOD, District Judge.
I. BACKGROUND
This matter is before the Court on both Plaintiffs Siesta Village Market, L.L.C., Joseph Chess and Terry Fowler's Motion for Summary Judgment and the Joint Motion for Summary Judgment filed by Defendant Jennifer Granholm, Michael Cox, Chairperson Nida Samona (the "State") and Intervening Defendants Michigan Beer and Wine Wholesalers Association. Both sides filed a series of responses and replies to the Summary Judgment Motions. A hearing on the matter was held on September 28, 2007. On October 12, 2007, 2007 WL 2984127, the Court entered an Order denying Defendants' Motion to Dismiss filed September 7 and October 2, 2006. On October 21, 2007, Defendants filed a Motion for Reconsideration of the Court's October 12, 2007 Order.
II. FACTS
Plaintiff Siesta Village Market, LLC ("Siesta Village") is a Florida-based retailer of alcoholic beverages. Plaintiffs Joseph L. Chess and Terry Fowler are both Michigan residents who claim they have not been able to obtain their choice of wine from Michigan retailers, either because the retailer has run out of a particular type of wine or does not carry the particular brand. (Plaintiffs' Mot. for Summary Judgment at 8, 9.) Plaintiffs claim that Michigan laws prohibiting out-of-state retailers from shipping directly to Michigan consumers, unless they maintain a location in the state and become part of Michigan's three-tier system for distributing wine, violates the Commerce Clause and goes against the Supreme Court's recent decision regarding some of the same Michigan laws in Granholm v. Heald, 544 U.S. 460, 125 S. Ct. 1885, 161 L. Ed. 2d 796 (2005).
Michigan has a three-tier system for regulating the sale of wine. The first tier is made up of wineries that are the producers and suppliers of wine. (Defendants' Mot. for Summary Judgment at 11.) Both in-state and out-of-state wineries sell their products only to licensed in-state wholesalers. M.C.L.A. §§ 436.1305, 436.1403. Michigan wholesalers sell these alcoholic beverages to Michigan retailers who in turn sell to consumers through means including direct shipment. M.C.L.A. §§ 436.1113(7), 436.1607(1), 436.1111(5), 436.1203(2)-(4). An exception in the three-tier system allows in-state wineries to ship directly to consumers, sidestepping the three-tier system. M.C.L.A. § 436.1113(9). In Heald, the Supreme Court held that it was discriminatory for the State to only allow in-state wineries the option to ship directly to consumers and mandated that out-of-state wineries must also be allowed to ship directly to consumers, and sidestep the three-tier system. Heald, 544 U.S. at 493, 125 S. Ct. 1885.
While Heald addressed the first level of alcohol distributors, the current case deals with the third tier in the system-the retailers. Michigan retailers can sell to consumers for off-premises consumption once they are licensed as a "specially designated merchant" or "SDM." M.C.L.A. § 436.1537(1)(d). This license also allows Michigan retailers to ship wine directly to consumers. M.C.L.A. § 436.1111(7). Out-of-state retailers have the option of obtaining an SDM license, but only if they open a location in Michigan and become part of the three-tier system, obtaining their wine only from licensed Michigan wholesalers. M.C.L.A. §§ 436.1203, 436.1901. Essentially, this means that maintaining a physical presence in Michigan is the only way for out-of-state retailers to gain direct access to Michigan consumers. Plaintiffs claim that this differential treatment violates the Commerce Clause. (Plaintiffs' Mot. for Summary Judgment at 5.)
The State argues in its Motion for Summary Judgment that the three-tier system is legitimate under Heald and allowing out-of-state retailers to sidestep the three-tier system and ship directly to Michigan consumers would interfere with the state's interest in regulating the sale of alcohol under the Twenty First Amendment of the United States Constitution. (Defendants' Mot. for Summary Judgment at 1.) The State asserts that the three-tier system allows it to more effectively oversee the sale of alcohol by making certain, among other things, that all taxes are collected and accounted for, underage drinking laws are complied with, and labeling laws are enforced. (Defendants' Mot. for Summary Judgment at 5, 6.) The State also claims that the current system of wine distribution allows it to conduct random on-site inspections of wholesalers to ensure that the wine they are selling to retailers complies with laws before it hits the market and is available to Michigan consumers. Id.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, summary judgment is to be entered if the moving party demonstrates that there is no genuine issue as to any material fact. This means that the evidence is such that a reasonable jury could find only for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party has "the burden of showing the absence of a genuine issue as to any material fact." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); see also Lenz v. Erdmann Corp., 773 F.2d 62 (6th Cir. 1985). To avoid a summary judgment motion, the nonmoving party must show some evidence of a disputed fact. Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (citations omitted). The non-moving party fails to show a genuine issue of material fact if it cannot establish the existence of an element essential to that party's case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In other words, the non-movant "must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact." Mathieu v. Chun, 828 F. Supp. 495, 497 (E.D.Mich. 1993) (citations omitted). In resolving a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party. See Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir.1986); Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319 (6th Cir.1983).
IV. APPLICABLE LAW & ANALYSIS
A. The Twenty First Amendment
The Commerce Clause "encompasses an implicit or `dormant' limitation on the authority of the States to enact legislation affecting interstate commerce." Healy v. The Beer Institute Inc., 491 U.S. 324, 326 n. 1, 109 S. Ct. 2491, 105 L. Ed. 2d 275 (1989) (citations omitted). Defendants claim that the Twenty First Amendment protects their right to enact legislation regulating alcohol that comes into the State. (Defendants' Mot. for Summary Judgment at 23.) The portion of the Twenty First Amendment that Defendants rely on states that "the transportation or importation into any State ... for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U.S. Const. Amend. XXI, § 2. The Supreme Court has held that this section of the Twenty First Amendment does not give states "the authority to pass non-uniform laws in order to discriminate against out-of-state goods." Heald, 544 U.S. at 484-85, 125 S. Ct. 1885. In fact, a state's authority under the Amendment does not abrogate Congress' Commerce Clause power and liquor regulations cannot escape Commerce Clause scrutiny. Id. at 487, 125 S. Ct. 1885.
Based on this analysis, the State's argument that the Twenty First Amendment gives it the authority to regulate alcohol coming into the state and that the three-tier system it has designed for regulatory purposes is appropriate is flawed. While the Heald court did state that the three-tier system was an appropriate use of state power, it did not approve of a system that discriminates against out-of-state interests. The Supreme Court made clear in Heald that a state's power under the Twenty First Amendment is not above the Commerce Clause nondiscrimination requirement. In the present case, in-state retailers gain the privilege of shipping directly to Michigan consumers simply upon obtaining an SDM license. Out-of-state retailers, on the other hand, only have access to Michigan consumers if they open a location in Michigan, become part of the three-tier system, and obtain an SDM license. State regulations such as this are not authorized by the Twenty First Amendment if the regulations create an extra burden on out-of-state wine retailers because the Commerce Clause is implicated. Defendant's Twenty First Amendment argument, alone, without an analysis of whether the Commerce Clause is implicated, has been rejected by the Supreme Court in Heald.
B. Commerce Clause
Since the Twenty First Amendment alone does not necessarily protect the State's actions here, a dormant Commerce Clause analysis is necessary to determine the nature and validity of the statutes in question. Under a dormant Commerce Clause analysis, state laws violate the Commerce Clause if they mandate "differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." Oregon Waste Systems, Inc. v. Department of Environmental Quality of Oregon, 511 U.S. 93, 99, 114 S. Ct. 1345, 128 L. Ed. 2d 13 (1994). Differential treatment has been struck down as violative of the Commerce Clause in instances where it creates a higher overhead cost for doing business in a particular state for out-of-state businesses than for in-state businesses, Heald, 544 U.S. at 460, 125 S. Ct. 1885, or imposes a tax on out-of-state alcohol producers that in-state producers have the option of avoiding. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S. Ct. 3049, 82 L. Ed. 2d 200 (1984). The Supreme Court also views with "particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere." Pike v. Bruce Church, Inc., 397 U.S. 137, 145, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970). Statutes that require an entity to maintain residency in the home state "in order to compete on equal terms" with in-state businesses violate the Commerce Clause. Heald, 544 U.S. at 475, 125 S. Ct. 1885 (quoting Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 72, 83 S. Ct. 1201, 10 L. Ed. 2d 202 (1963)).
Plaintiffs have shown that Michigan's ban on direct shipments of wine from out-of-state retailers to consumers discriminates against out-of-state interests. Michigan retailers have the option of obtaining an SDM license that allows them to sell and ship wine directly to consumers, benefitting their business by allowing them access to more customers. The only way for an out-of-state retailer to obtain such a license and ship directly to consumers in Michigan is to maintain a location in the state. This requirement is burdensome on out-of-state retailers because there are many costs associated with opening a new location in Michigan that may not be viable for retailers like Siesta Village. As noted in Heald, the expense of establishing a bricks-and-mortar operation in one state, let alone in all 50 states, is prohibitive. 544 U.S. at 474-75, 125 S. Ct. 1885. Instate retailers, on the other hand, have open access to the Michigan market at no additional cost. Under a Commerce Clause analysis, the added burden of opening a new location in Michigan is differential and discriminatory treatment of out-of-state interests.
The State points out in its Motion for Summary Judgment that hundreds of out-of-state retailers have complied with the SDM licensing requirements and opened a location in Michigan in order to gain access to Michigan consumers through direct shipment. (Defendants' Mot. for Summary Judgment at 33.) The New York statute that the Heald court considered involved a similar issue where New York allowed out-of-state wineries to sell directly to New York consumers if they maintained a location in the state. The State argues that the New York statute's requirement that out-of-state wineries establish a New York location was struck down in Heald because it was clearly burdensome as evidenced by the fact that not one out-of-state winery had availed itself of the option to open an in-state location and sell directly to New York consumers. Id. The State argues that, in the present case, there is no burden on out-of-state retailers because many of them have chosen to open a Michigan location and do business with Michigan consumers. Id.
The Defendants' argument has no bearing on the fact that out-of-state retailers will still face a great obstacle in gaining access to Michigan consumers if they must first establish a location in the State. The fact that it may be harder for wineries than for retailers to open a new location, as Defendants suggest in their Summary Judgment Motion, is irrelevant because what is required to prove that a statute is discriminatory is that a burden is created on out-of-state interests. That burden exists on out-of-state retailers here, even if the burden may be less than that imposed upon out-of-state wineries when they are required to open a location in a state in order to do business in that particular state.
C. Legitimate Local Purpose
Even though the Michigan statutes are discriminatory, states have a chance to save such statutes from invalidation by proving that the law serves a legitimate local purpose and that the purpose cannot be adequately served by reasonable nondiscriminatory means. Maine v. Taylor, 477 U.S. 131, 140-143, 106 S. Ct. 2440, 91 L. Ed. 2d 110 (1986); New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 278, 108 S. Ct. 1803, 100 L. Ed. 2d 302 (1988). The state has the burden of proving through "concrete record evidence" that nondiscriminatory means are unworkable, Heald, 544 U.S. at 493, 125 S. Ct. 1885, and the burden of making a clear showing that the discrimination is justified, C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 393, 114 S. Ct. 1677, 128 L. Ed. 2d 399 (1994) (emphasis added). State regulations that discriminate against interstate commerce should not be upheld on "mere speculation" that the discrimination is warranted. Heald, 544 U.S. at 492, 125 S. Ct. 1885.
In Maine v. Taylor, the Supreme Court upheld a discriminatory provision banning importation of live baitfish into the state because the defense was able to prove through expert testimony that the imported baitfish introduced parasites into the Maine baitfish population that otherwise did not exist in the state. Taylor, 477 U.S. at 141-42, 106 S. Ct. 2440. Maine also made a clear showing that alternatives to an outright ban were impossible. Experts testified that inspection of the fish for parasites would require destroying the fish; statistical sampling and inspection techniques for other fish had not yet been developed for baitfish; and that the "small size of baitfish and the large quantities in which they are shipped made inspection for comingled species a `physical impossibility.'" Id. On the other hand, in Heald, the Supreme Court ruled against discriminatory statutes in Michigan and New York because the states "provide[d] little concrete evidence for the sweeping assertion that they cannot police direct shipment by out of-state-wineries." Heald, 544 U.S. at 492, 125 S. Ct. 1885.
Heald was a case in which Michigan and New York defended statutes that allowed in-state wineries to ship directly to consumers but did not allow out-of-state wineries to do the same. The Heald Court found that the statutes were discriminatory in nature because they made it more expensive for out-of-state wineries to do business in either state. Id. at 474-75, 125 S. Ct. 1885. Michigan's statute required out-of-state wineries to go through wholesalers and retailers in order to sell to Michigan consumers, thus increasing their overhead costs. Id. New York's statute required out-of-state wineries to establish an office in the state in order to sell to New York consumers, also increasing the cost of doing business in the state. Id. The Supreme Court was not persuaded that this discrimination against out-of-state wineries served legitimate local purposes like tax collection and preventing the sale of alcohol to minors because the states were unable to prove that these purposes could not be satisfied through nondiscriminatory means or that they were even legitimate purposes at all. Id. at 492, 125 S. Ct. 1885. The Supreme Court opined that direct shipments from out-of-state wineries could be policed by requiring a simple license or by using technology to conduct checks on out-of-state wineries. Id.
In the present case, the State does not meet its burden of showing, through "clear record evidence," that alternatives to an outright ban on wine shipments from out-of-state retailers are unworkable. The State does not suggest any alternatives for regulating wine from out-of-state retailers nor make any showing that such an alternative is unworkable. The State also entertains no discussion about how it regulates wine shipped directly from out-of-state wineries and why the same procedures would be unworkable in regulating shipments from out-of-state retailers. The State puts forth most of the same "sweeping assertions" that were rejected in Heald as its justification for discriminating against out-of-state retailers. The State offers three main arguments for why its statute rightfully mandates out-of-state retailers to establish a Michigan location:
1) Out-of-state retailers will side-step Michigan's three-tier system, thereby avoiding the "funnel" of Michigan wholesalers that the State uses to regulate things like taxes and labeling laws for in-state retailers. Out-of-state retailers will obtain wine from non-Michigan wholesalers and the State will not be able to stop tax evasion or enforce labeling laws.
2) The State cannot physically inspect, conduct string operations, or randomly visit out-of-state retailers who do not have a Michigan location and this will make underage drinking laws, general Michigan laws, and anti-tied-house vertical integration laws unenforceable.
3) The State relies on 44 Liquor Control Commission officers and local law enforcement agencies to regulate wine in the state and these officers cannot regulate the hundreds of thousands of nation-wide retailers that may be interested in shipping to Michigan.
(Defendants' Mot. for Summary Judgment at 5, 6, 18). While these justifications may show that the discriminatory statutes in question "serve a legitimate local purpose," they do not prove that alternatives to an outright ban on shipments from out-of-state retailers are unworkable.
The State's first justification for discriminating against out-of-state retailers focuses on the benefits of Michigan wholesalersthe second tier in the three-tier system. The State claims that requiring all Michigan retailers to purchase wine only from Michigan wholesalers makes it easier to enforce tax laws and wine labeling laws because the State is constantly checking on Michigan wholesalers to make sure they are complying with state law. Out-of-state retailers like Siesta Village purchase their wine from non-Michigan retailers. Consequently, when they sell it to Michigan consumers, the State will not be able to regulate these sales because they will not go through the important "funnel" of Michigan wholesalers. The State claims that having all retailers who sell in Michigan go through the wholesalers "funnel" is essential because it allows the State to "cross check records between each of the three tiers to ensure that all taxes are being paid by the parties responsible for that tax (i.e., supplies pay excise tax and retailers collect and remit the sales tax.)" Id. at 13. This is critical to preventing tax evasion, according to the State. The State makes no showing as to why this objective cannot be satisfied through nondiscriminatory means or how it manages to deter out-of-state wineries, who do not go through the "funnel" of Michigan wholesalers, from evading taxes when they ship directly to Michigan consumers.
The State raised the same concern of tax evasion in Heald and the Supreme Court rejected it stating that imposing licensing requirements that include self-reporting and regular submission of sales reports was sufficient to meet the State's objectives of preventing tax evasion. Heald, 544 U.S. at 491-92, 125 S. Ct. 1885. The Supreme Court also pointed out that various states use this approach of self-reporting when dealing with interstate shipments and do not report problems with tax collection and that licensing and self-reporting are the methods sanctioned by the National Conference of State Legislatures in their Model Direct Shipping Bill. Id. The State offers no counter-argument as to why these methods would not work to prevent out-of-state retailers from evading taxes.
The State's similar concerns that they will not be able to enforce labeling laws if retailers who purchase their wine from non-Michigan wholesalers sell to Michigan consumers fails because the State does not show that an alternative to regulating labeling laws is unworkable. A discriminatory law cannot be upheld simply because the State speculates that it may have trouble regulating wine from out-of-state retailers without setting forth concrete proof that this will be the case.
The State also expresses concern that allowing out-of-state retailers to ship directly to Michigan consumers, when they obtain their wine from wholesalers other than Michigan's, will hurt the State's economy. "Since it is [Michigan] wine and beer suppliers (not retailers) who are responsible for paying excise taxes under Michigan law, Michigan would lose the excise taxes for all wines (and beer) sold by out-of-state retailers to Michigan residents" because they would have purchased their supply from a non-Michigan wholesaler or producer. (Defendants' Mot. for Summary Judgment at 20.)
This argument is flawed because it essentially asks the Court to uphold a discriminatory statute for protectionist purposesthe exact reason the dormant Commerce Clause prohibits such statutes. See Philadelphia v. New Jersey, 437 U.S. 617, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978). The State claims that it collected $51,000,000 in tax revenue from Michigan suppliers and producers in fiscal year 2005-2006 and it would lose this valuable source of revenue if out-of-state retailers entered the picture. (Defendants' Mot. for Summary Judgment at 20.) "Shielding instate industries from out-of-state competition is almost never a legitimate local purpose, and state laws that amount to `simple economic protectionism' consequently have been subject to a `virtually per se rule of invalidity.'" Taylor, 477 U.S. at 148, 106 S. Ct. 2440. (citations omitted). The State claims that tax revenue would be lost if out-of-state retailers were allowed to ship directly to consumers fails because it is not a legitimate reason to uphold a discriminatory statute under well-established Commerce Clause law.
In summary, the State's argument emphasizing the importance of requiring all retailers selling in Michigan to purchase their wine from Michigan wholesalers fails on the tax-evasion and labeling law grounds because no alternative is discussed or proved to be unworkable and on the tax-collection argument because it advances pure protectionism.
The second argument the State sets forth in an attempt to save its statute from invalidation focuses on the importance of having a location in the state of Michigan for regulatory purposes. The State argues that if out-of-state retailers are allowed to ship directly to Michigan consumers without maintaining an in-state location, the State will not be able to show up unannounced to the retailer's locations and check for compliance with underage drinking laws or anti-tied-house vertical integration laws. The State expresses special concern for the fact that out-of-state retailers may sell to underage drinkers and the State will not be able to effectively stop them from doing so because they cannot conduct sting operations. (Defendants' Mot. for Summary Judgment at 19). There is no explanation offered as to why the same requirement of having an adult signature when ordering wine cannot be imposed on out-of-state retailers. There is also no explanation offered as to how Michigan regulates the labeling and packaging of wine shipped directly from out-of-state wineries that may appeal to underage drinkers and why that method would not be effective in regulating wine shipped directly from out-of-state retailers like Siesta Village.
Lastly, the State focuses on the fact that allowing out-of-state retailers to ship to Michigan consumers without requiring them to establish a location in the state will open the door to thousands of retailers who to want to sell to Michigan consumers and the State will not be able to regulate the retailers with the current number of Commission inspectors it currently retains. (Defendants' Mot. for Summary Judgment at 18.) It also puts forth the argument that it will not be able to rely on other states' local law enforcement to help regulate the sale of alcohol the way it is able to in Michigan. Id. While again the State makes a legitimate point here that it needs to regulate sales of wine coming into its borders, it does not clearly describe why an increased number of retailers selling to Michigan cannot be regulated by alternative means. If the State explained why alternatives to an outright ban on out-of-state shipments were unworkable or entertained a discussion about their experience regulating out-of-state wineries and why those same methods would not work for out-of-state retailers, they may have been able to meet their burden in showing that non-discriminatory alternatives are unworkable. The State only speculates that it will not be able to regulate these out-of-state retailers without showing clear proof as to why other means of regulating them are unworkable. The State makes the same "sweeping assertions" here as it made in Heald for why it would not be able to regulate out-of-state wineries and those justifications were struck down by the Supreme Court.
This is the second time the State of Michigan has had a chance to defend some of the same statutes that discriminate against out-of-state interests. The State lost the first time at the Supreme Court level because they offered no proof that non-discriminatory alternatives were unworkable and discriminatory measures were necessary to meet a legitimate local purpose. The Supreme Court even suggested some alternatives the State might try before deciding that it would not be able to regulate out-of-state wineries, stating:
Michigan and New York offer a handful of other rationales, such as facilitating orderly market conditions, protecting public health and safety, and ensuring regulatory accountability. These objectives can also be achieved through the alternative of an evenhanded licensing requirement. FTC Report 40-41.[1] Finally, it should be noted that improvements in technology have eased the burden of monitoring out-of-state wineries. Background checks can be done electronically. Financial records and sales data can be mailed, faxed, or submitted via e-mail.
In summary, the States provide little concrete evidence for the sweeping assertion that they cannot police direct shipments by out-of-state wineries. Our Commerce Clause cases demand more than mere speculation to support discrimination against out-of-state goods. The "burden is on the State to show that `the discrimination is demonstrably justified,'" Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 344, 112 S. Ct. 2009, 119 L. Ed. 2d 121 (1992) (emphasis in original). The Court has upheld state regulations that discriminate against interstate commerce only after finding, based on concrete record evidence, that a State's nondiscriminatory alternatives will prove unworkable. See, e.g., Maine v. Taylor, 477 U.S. 131, 141-144, 106 S. Ct. 2440, 91 L. Ed. 2d 110 (1986). Michigan and New York have not satisfied this exacting standard. Heald, 544 U.S. at 492-93, 125 S. Ct. 1885. In a similar action brought by Siesta Village and others in Texas, the court held that the Texas Code banning out-of-state wine retailers from selling or shipping wine to Texas consumers violated the Commerce Clause. See Siesta Village Market, LLC v. Perry, 530 F. Supp. 2d 848 (N.D.Tex.2008). The State does not put forth any new argument as to why non-discriminatory alternatives will not work in regulating out-of-state shipments. The State fails to meet the standard for validating the statute.
V. MOTION FOR RECONSIDERATION
Defendants seek reconsideration of the Court's October 12, 2007 Order denying Defendants' Motion to Dismiss. For the reasons set forth above, the Court denies Defendants' motion for reconsideration.
VI. CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff Siesta Village's Motion for Summary Judgment is [Dkt. # 38, filed July 30, 2007] is GRANTED.
IT IS FURTHER ORDERED that Defendants Governor Jennifer Granholm and Michigan Wine & Beer Wholesalers Association's Motion for Summary Judgment [Dkt. #39, filed July 31, 2007] is DENIED.
IT IS FURTHER ORDERED that Plaintiff Siesta Village's Motion to Strike Supplemental Brief [Dkt. #49, filed Oct. 2, 2007] submitted by Defendants is DENIED.
IT IS FURTHER ORDERED that Defendants Governor Jennifer Granholm and Michigan Wine & Beer Wholesalers Association's Motion for Reconsideration [Dkt. #53, filed Oct. 26, 2007] regarding this Court's Order Denying Defendant's Motion to Dismiss is DENIED.
IT IS FURTHER DECLARED that the statutes and regulations prohibiting out-of-state retailers from selling, delivering and shipping wine through interstate commerce directly to Michigan consumers is unconstitutional under the Commerce Clause.
IT IS FURTHER ORDERED that the State of Michigan and its officials are enjoined from prohibiting out-of-state wine retailers from selling, delivering and shipping wine through interstate commerce direct to consumers. The State of Michigan and its officials are enjoined from enforcing any provisions under M.C.L.A. §§ 436.1201(1), 436.1203, 436.1901 and 436.1537 which prohibits out-of-state wine retailers from selling, delivering and shipping wine through interstate commerce directly to consumers in Michigan. The State of Michigan may continue to collect any tax due on the sale of the wine and may continue to require licenses and permits for direct interstate sales and deliveries, so long as these provisions do not discriminate against out-of-state wine retailers.
NOTES
[1] FTC Report, Possible Anticompetitive Barriers to E-Commerce: Wine (2003) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/500485/ | 837 F.2d 1088
Williamsv.Lynaugh*
NO. 87-6131
United States Court of Appeals,Fifth Circuit.
JAN 07, 1988
1
Appeal From: S.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/64581/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 9, 2009
No. 07-50721
Summary Calendar Charles R. Fulbruge III
Clerk
DANIEL LEE HARRIS
Plaintiff-Appellant
v.
DIRECTOR BRAD LIVINGSTON, Administrative Officer Texas Department of
Criminal Justice
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-764
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Daniel Harris, federal prisoner # 34040-177, filed the instant 42 U.S.C.
§ 1983 suit to seek redress for alleged improprieties concerning the calculation
of his time served in a state facility. Harris contended that he had been held in
custody for 41 days too long due to a time-calculation error and that he brought
this error to the attention of officials who refused to correct it. Harris
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-50721
subsequently sought leave to file an amended complaint to add two new
defendants to his suit.
The district court determined that Harris’s claim was barred by Eleventh
Amendment immunity and Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The
district court concomitantly determined that Harris’s motion to amend was
futile. The district court dismissed Harris’s suit as frivolous and denied his
motion to amend. Harris now appeals that judgment. We review both the
dismissal of Harris’s suit as frivolous and the denial of his motion to amend for
an abuse of discretion. Lowrey v. Texas A&M University System, 117 F.3d 242,
245 (5th Cir. 1997); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Harris argues that the district court should have granted his motion to
amend because it was timely filed and because he raised valid claims against the
two individuals whom he wished to add as defendants. Harris also argues that
the defendants are not entitled to qualified immunity because they should have
known that they were violating his rights by keeping him incarcerated beyond
his proper release date.
Harris does not address the issues whether the district court erred by
concluding that his claim was barred by Eleventh Amendment immunity and
Heck, nor does he analyze the propriety of the district court’s corresponding
determination that his motion to amend was futile because his claim was barred
by Heck and Eleventh Amendment immunity. Harris has thus abandoned these
issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Harris has failed to show that the district court erred by dismissing his
suit as frivolous and denying his motion to amend. Consequently, the judgment
of the district court is AFFIRMED.
2 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2504981/ | 717 S.E.2d 738 (2011)
STATE
v.
George Junior HAYDEN.
No. 237P11-1.
Supreme Court of North Carolina.
October 6, 2011.
Amy Kunstling Irene, Assistant Attorney General, for State of North Carolina.
Marilyn G. Ozer, Chapel Hill, for Hayden, George Junior.
Ernie Lee, District Attorney, for State of North Carolina.
The following order has been entered on the motion filed on the 14th of June 2011 by State of NC for Temporary Stay:
"Motion Dissolved by order of the Court in conference, this the 6th of October 2011." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/897683/ | 2005 ND 149
Heart River Partners, a partnership, and Dave D. Mees and James W. Allen, partners, Plaintiffs and Appellants
v.
Darrell S. Goetzfried and Karen A. Goetzfried, Defendants and Appellees
No. 20050003
Supreme Court of North Dakota.
Filed August 22, 2005
Thomas D. Kelsch, Kelsch, Kelsch, Ruff & Kranda, P.O. Box 1266, Mandan, N.D. 58554-7266, for plaintiffs and appellants.
Charles "Casey" L. Chapman, Chapman and Chapman, P.C., P.O. Box 1258, Bismarck, N.D. 58502-1258, for defendants and appellees.
Opinion of the Court by Sandstrom, Justice.
Sandstrom, Justice.
[¶1] Heart River Partners and its partners, David D. Mees and James W. Allen, (collectively referred to as the "Partnership") appealed from a summary judgment dismissing their lawsuit against Darrell and Karen Goetzfried for reformation of a warranty deed and for damages. We affirm.
I
[¶2] In March 2002, Mees approached the Goetzfrieds on behalf of the Partnership to purchase commercial property consisting of seven lots and three storage buildings in Mandan. The property is bordered by 4th Street and 5th Street and was subject to two separate special assessments for completed improvements on those streets. In March 2002, the costs for the improvements on 5th Street had been assessed and certified with a balance due of about $8,000, but the costs for the improvements on 4th Street had not been certified. A special assessment of $46,599.18 for the 4th Street improvements was certified in the fall of 2002.
[¶3] According to Darrell Goetzfried, he told Mees about both special assessments at a March 2002 meeting, and the Goetzfrieds agreed to pay the balance of the assessment for 5th Street but not the uncertified assessment for 4th Street. According to Mees, he did not recall being told about the uncertified assessment for the improvements on 4th Street. In his deposition, Mees testified:
Q. Okay. During that conversation Darrell Goetzfried told you that there had been work done on Fourth Street, did he not?
A. No.
Q. He didn't mention anything about Fourth Street?
A. No.
Q. Didn't mention anything about construction?
A. No.
Q. Nothing about sewers?
A. No.
Q. Wasn't mentioned at all?
A. No.
Q. Did you ask anything about improvements that had been done?
A. The only thing that was talked about was some specials for some water and sewer that had been put in on Fifth Street.
Q. Okay. So tell me, if you could, what was said about Fifth Street.
A. Water and sewer, that there was some specials on that.
Q. Okay. Was there any other conversation about that?
A. That he wouldI'm not sure if it was that day. He said he would pay for the specials that were there.
Q. Okay. That he'd pay for the specials that were there, and those were his words?
A. Basically.
Q. Okay. That's what I'm asking. You're not saying those were his exact words. You're kind of paraphrasing?
A. Right.
Q. And, to your knowledge, he was talking at that time about Fifth Street?
A. Right.
Q. Did you actually walk over to Fifth Street to look at it?
A. No.
Q. Did he just mention Fifth Street by name?
A. I believe not. He just looked that directionwe were looking that direction and he pointed to that direction. I knew it was Fifth Street.
Q. Okay. That's what I was getting to. So at some point in this conversation he points over in the direction of Fifth Street and talks about the specials; is that correct?
A. Right.
Q. And he said that he would pick up those specials?
A. Right.
Q. Okay. Was there any other talk about special assessments?
A. No.
Q. In fact, up until the date of closing, Mr. Mees, other than this one conversation that you just related to me, was there any discussion at all about special assessments?
A. There possibly could have been maybe something, you know, about him picking up them specials, but other than that, no.
Q. Okay. What I'm askingunderstand this as you hear thisI'm asking for you to recall for me, can you recall any other conversation? You said maybe there might have been. Can you remember any?
A. No.
Q. So what you actually remember is the one conversation?
A. Right.
Q. And that would have been either, what, the first or second time that you met at the property?
A. Right.
Q. And that's when Mr. Goetzfried pointed over towards Fifth Street and said he'd pick up the specials?
A. Right.
Q. And is it fair that other than that conversation, you can't actually tell me about any other conversation prior to closing in which special assessments were even discussed?
A. Right.
In a subsequent affidavit, Mees stated the Goetzfrieds agreed to pay for all the special assessments against the property and did not specify that the agreement to pay was limited to the special assessment for the 5th Street improvements or to the special assessment that had been certified.
[¶4] Before the closing, the Goetzfrieds provided Mees with a copy of the annual tax statement for the property, which showed the certified special assessment for the improvements on 5th Street. On April 10, 2002, the parties executed an offer to purchase the property for $465,000. The offer to purchase said the property was "free and clear of all encumbrances," and it did not refer to either special assessment or indicate who would pay for special assessments. On May 1, 2002, the parties executed a warranty deed for the property, which stated the property was "free from all encumbrances, except installments of special assessments or assessments for special improvements which have not been certified to the County Auditor for collection." The Goetzfrieds' "seller's affidavit" stated there were "no unrecorded contracts for sale, liens, encumbrances or easements which affect the marketability of title to said property." Although the parties' closing statement prorated the 2002 installment for the special assessment for the improvements on 5th Street, Darrell Goetzfried thereafter paid the balance for that assessment. In the fall of 2002, the Auditor certified a special assessment of $46,599.18 for the improvements on 4th Street.
[¶5] The Partnership subsequently sued the Goetzfrieds, seeking reformation of the deed to require the Goetzfrieds to pay all the special assessments for the property, and $45,599.18, plus interest, for the special assessment for the improvements on 4th Street. The Goetzfrieds admitted they agreed to pay the special assessment for 5th Street, but denied they had agreed to pay all the certified and uncertified special assessments for the property.
[¶6] The trial court granted the Goetzfrieds' motion for summary judgment, concluding the warranty deed unambiguously required the Partnership to pay the special assessment for the improvements on 4th Street. The court concluded there was no evidence of a mutual mistake by the parties, nor were the Goetzfrieds aware the Partnership was under a mistaken impression about the assessments. The court decided the Goetzfrieds did not commit constructive fraud, because there was no special relationship between the Goetzfrieds and the Partnership that placed an affirmative duty of disclosure on the Goetzfrieds. The court decided the Goetzfrieds had no affirmative duty to the Partnership to disclose the uncertified special assessment for the improvements on 4th Street. The court also decided the Goetzfrieds did not commit actual fraud when they signed a disclosure statement indicating there were no unrecorded liens or unsatisfied encumbrances against the property, because the pending special assessment for the improvements on 4th Street was not at that time an encumbrance on the property under N.D.C.C. § 42-24-03.
[¶7] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
II
[¶8] In State v. North Dakota State University, 2005 ND 75, ¶ 8, 694 N.W.2d 225 (quoting Zuger v. State, 2004 ND 16, ¶¶ 7-8, 673 N.W.2d 615 (citations omitted)), we explained our standard of review for summary judgment:
Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. "Whether summary judgment was properly granted is 'a question of law which we review de novo on the entire record.'" On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim.
[¶9] Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive evidentiary standard of proof when ruling on a motion for summary judgment. Swenson v. Raumin, 1998 ND 150, ¶ 9, 583 N.W.2d 102; Estate of Stanton, 472 N.W.2d 741, 743 (N.D. 1991). In considering the substantive standard of proof, the court must consider whether the trier of fact "could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not." Stanton, at 743 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)).
III
A
[¶10] The Partnership argues there are genuine issues of material fact regarding its claim for reformation of the warranty deed. The Partnership argues the warranty deed does not reflect the parties' intent, because of fraud or mistake, and the trial court erred in granting summary judgment on the reformation claim.
[¶11] "The construction of a written contract to determine its legal effect is generally a question of law." Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 779 (N.D. 1996). A court interprets a written contract to give effect to the mutual intention of the parties as it existed at the time of contracting. N.D.C.C. § 9-07-03; Pear, at 779. The parties' intentions must be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Pear, at 779. In the absence of an ambiguity, a written contract supersedes any prior oral agreement or negotiations between the parties. N.D.C.C. § 9-06-07; Pear, at 779.
[¶12] Parol evidence is admissible, however, in an action to reform a written contract on the grounds of fraud or mutual mistake to establish the alleged fraud or mistake and to correct the instrument to conform to the agreement or intention of the parties. Ell v. Ell, 295 N.W.2d 143, 149 (N.D. 1980). This Court has said, "Reformation is an '[e]quitable remedy used to reframe written contracts to reflect accurately [the] real agreement between contracting parties.'" Biteler's Tower Serv., Inc. v. Guderian, 466 N.W.2d 141, 143 (N.D. 1991) (quoting Black's Law Dictionary 1152 (5th ed. 1979)). Section 32-04-17, N.D.C.C., provides for the equitable remedy of reformation of a written contract:
When, through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention so far as it can be done without prejudice to rights acquired by third persons in good faith and for value.
[¶13] In considering reformation claims under similar statutes that were derived from the same common source as N.D.C.C. § 32-04-17, other courts have recognized the purpose of reformation is to correct a written contract to effectuate the common intention of the parties, which was incorrectly reduced to writing. Lemoge Elec. v. County of San Mateo, 297 P.2d 638, 640 (Cal. 1956); Bailard v. Marden, 227 P.2d 10, 13 (Cal. 1951); Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 152 (S.D. 1986). See 66 Am. Jur. 2d Reformation of Instruments § 1 (2001) ("Reformation is based on the premise that the parties had reached an agreement concerning the instrument, but while reducing their agreement to written form, and as a result of mutual mistake or fraud, some provision or language was omitted from, inserted, or incorrectly stated in the instrument intended to be the expression of the actual agreement of the parties."). In Bailard, at 13 (citations omitted), the California Supreme Court explained:
To obtain the benefit of this statute, it is necessary that the parties shall have had a complete mutual understanding of all the essential terms of their bargain; if no agreement was reached, there would be no standard to which the writing could be reformed.
Otherwise stated, "[I]nasmuch as the relief sought in reforming a written instrument is to make it conform to the real agreement or intention of the parties, a definite intention or agreement on which the minds of the parties had met must have pre-existed the instrument in question." Our statute adopts the principle of law in terms of a single intention which is entertained by both of the parties." Courts of equity have no power to make new contracts for the parties, . . . [N]or can they reform an instrument according to the terms in which one of the parties understood it, unless it appears that the other party also had the same understanding." If this were not the rule, the purpose of reformation would be thwarted.
[¶14] This Court has said a party who seeks reformation has the burden to prove by clear and convincing evidence that a written agreement does not fully or truly state the agreement the parties intended to make. Ell, 295 N.W.2d at 150. Parol evidence of an alleged mutual mistake must be clear, satisfactory, specific, and convincing, and a court of equity will not grant reformation upon a mere preponderance of evidence, but only upon certainty of error. Id. Any evidence that tends to show the true intention of the parties, whether it be evidence of conduct or declarations of the parties extrinsic to the contract or documentary evidence, is admissible. Id. at 149. See N.D.C.C. § 32-04-19. In an action for reformation, a presumption arises from the terms of a written instrument that it correctly expresses the parties' true agreement and intent. Ell, at 150. "Courts will not make a new contract through reformation of a written instrument in a manner never considered or intended by the parties." Id.
[¶15] The Partnership argues there are issues of material fact about mistake which support its claim for reformation. Ordinarily, whether there has been a mistake sufficient to support a reformation claim is a question of fact. See City of Fargo v. D.T.L. Props., Inc., 1997 ND 109, ¶ 16, 564 N.W.2d 274. In Mau v. Schwan, 460 N.W.2d 131, 134-36 (N.D. 1990), this Court discussed mistake in the context of a reformation action. This Court cited the definition of mistake in N.D.C.C. § 9-03-13 and said a mutual mistake that will justify reformation requires that, at the time of the execution of the agreement, both parties intended to say something different from what was said in the document. Mau, at 135 (citing Meyer v. McCormick, Inc., 445 N.W.2d 21, 24 (N.D. 1989)). See Anderson v. Selby, 2005 ND 126, ¶¶ 12-13. See also 66 Am. Jur. 2d Reformation of Instruments at § 21 (mistake cannot be mutual if the minds of the parties did not meet in a common intent, and for a mutual mistake to justify the reformation of an agreement, it must be shown that at the time of the execution of the agreement, both parties intended to say something different from what was said in the instrument).
[¶16] In Lemoge Elec., 297 P.2d at 640-41 (citations omitted), the California Supreme Court explained:
Reformation may be had for a mutual mistake or for the mistake of one party which the other knew or suspected, but in either situation the purpose of the remedy is to make the written contract truly express the intention of the parties. Where the failure of the written contract to express the intention of the parties is due to the inadvertence of both of them, the mistake is mutual and the contract may be revised on the application of the party aggrieved. When only one party to the contract is mistaken as to its provisions and his mistake is known or suspected by the other, the contract may be reformed to express a single intention entertained by both parties. Although a court of equity may revise a written instrument to make it conform to the real agreement, it has no power to make a new contract for the parties, whether the mistake be mutual or unilateral.
[¶17] The parties have contrary views about whether they agreed the Goetzfrieds would pay the special assessments for the improvements for 4th Street. According to the Goetzfrieds, Darrell Goetzfried told Mees about both special assessments at the March 2002 meeting, and the Goetzfrieds agreed to pay only for the improvements for 5th Street. According to Mees, however, he did not recall hearing anything about the assessment for 4th Street at that meeting, and, in a subsequent affidavit, Mees claimed the Goetzfrieds agreed to pay for all the special assessments against the property without any limitation for only the improvements on 5th Street, or for only the specials that had been certified at that time. Federal courts have held that a party may not use a subsequent affidavit to impeach or controvert, without explanation, prior sworn testimony. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996). See 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3rd § 2726 (1998). More important, however, the conflicting factual versions of the parties' negotiations indicate there may be a dispute about the terms of the parties' oral agreement, but that dispute is not a material fact for purposes of the reformation claim because there was no common intention entertained by both parties. The warranty deed unambiguously stated the property was "free from all encumbrances, except installments of special assessments or assessments for special improvements which had not been certified to the County Auditor for collection." The written deed conformed to the Goetzfrieds' version of the facts and does not support a claim that both parties intended to say something different from what was said in the deed.
[¶18] Moreover, the Partnership does not claim the Goetzfrieds knew about the Partnership's alleged mistake or misunderstanding, and there is no evidence the Goetzfrieds "knew or suspected" a mistake by the Partnership "at the time" the deed was executed. See Anderson, 2005 ND 126, ¶¶ 14-15; Mau, 460 N.W.2d at 135; Buskohl, 398 N.W.2d at 153. In Anderson, at ¶ 14, the sellers sought reformation of a warranty deed, claiming the deed mistakenly did not include a reservation of a flowage easement and the buyer knew about or suspected the mistake. In Anderson, at ¶ 15, there was evidence the buyer instructed his real estate agent not to say anything about the flowage easement during the closing, and the purchase price for the land was consistent with the market price for the land with a flowage easement. There was also evidence the buyer told the sellers there "was a mistake, which [the buyer] understood." Id. We reversed a summary judgment dismissal of the sellers' reformation claim, concluding the evidence supported an inference there was a mistake that the buyer at the time knew or suspected. Id. In this case, the Partnership has not cited any evidence to support an inference the Goetzfrieds knew or suspected a mistake by the Partnership at the time the deed was executed. We conclude the trial court did not err in granting the Goetzfrieds summary judgment on the Partnership's claim for reformation based upon mistake.
B
[¶19] The Partnership also argues reformation is appropriate because of fraud. A party alleging fraud has the burden of proving each element by clear and convincing evidence. First Union Nat'l Bank v. RPB 2, LLC, 2004 ND 29, ¶ 22, 674 N.W.2d 1; Luallin v. Koehler, 2002 ND 80, ¶ 26, 644 N.W.2d 591; Smith v. Land O'Lakes, Inc., 1998 ND 219, ¶ 12, 587 N.W.2d 173. Fraud is ordinarily treated as a question of fact. Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555.
[¶20] The Partnership argues the Goetzfrieds were guilty of actual fraud under N.D.C.C. § 9-03-08 for making an affirmative fraudulent representation or for suppressing a known fact. The Partnership relies upon evidence the Goetzfrieds provided the Partnership with tax statements showing only the certified assessments for the property and upon the Goetzfrieds' affirmation at closing that there were no other unrecorded liens or encumbrances on the property. The Partnership also argues the Goetzfrieds suppressed known facts. The Partnership claims the Goetzfrieds' affirmative representations and suppression of facts induced it to enter into the contract.
[¶21] This Court has said that although fraud may be a ground for reformation of a written instrument, fraud perpetrated to induce a party to enter into the agreement is a ground for rescission, but is not a ground for reformation. Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 495 (N.D. 1996); Striegel v. Dakota Hills, Inc., 365 N.W.2d 491, 496 (N.D. 1985). See Vermilyea v. BDL Enters., Inc., 462 N.W.2d 885, 887-88 (S.D. 1990). See generally Dan B. Dobbs, The Law of Remedies § 9.5 (1973); 2 Dan B. Dobbs, The Law of Remedies § 9.5 (2d ed. 1993); John D. Calamari & Joseph M. Perillo, The Law of Contracts § 9-35 (3d ed. 1987); 27 Richard A. Lord, Williston on Contracts § 69:55 (4th ed. 2003); 66 Am. Jur. 2d Reformation of Instruments at § 23.
[¶22] In Sehn, 553 N.W.2d at 495, a defendant's counterclaim alleged he was fraudulently induced to enter into an agreement to terminate a business relationship. The defendant claimed the agreement allocated $100,000 to him for a covenant not to compete when the parties' intended allocation of that amount of money was for the corporation's physical assets. Id. This Court recognized fraud perpetrated to induce another to enter into a contract is not a ground for reformation of the agreement, but is a ground for rescission of the agreement. Id. In Sehn, at 495, the defendant affirmed the contract and did not seek rescission. This Court said the written agreement explicitly allocated $100,000 for the covenant not to compete and $140,000 for stock that comprised the physical assets of the corporation and held parol evidence was not admissible to vary or contradict the explicit terms of the agreement. Id.
[¶23] In Striegel, 365 N.W.2d at 492, the plaintiffs sold campground property to the defendant by contract for deed, and plaintiffs sued to foreclose and cancel the contract for deed, alleging the defendant failed to make required monthly payments. The defendant counterclaimed, asserting fraud and material misrepresentations by the plaintiffs regarding the capacity of the campground to provide adequate income for the payments. Id. The defendant sought to "modify" the contract for deed to make payments consistent with the capacity of the campground to provide adequate income. Id. at 492, 496. This Court treated the defendant's request to "modify" as a claim for reformation. Id. at 496. This Court recognized that although fraud is a ground for reformation of a written instrument, fraud perpetrated to induce a party to enter into the agreement itself is not a ground for reformation, but is a ground for rescission. Id. This Court said there were no allegations the parties agreed the payments under the contract for deed would be dependant on the capacity of the campground to provide adequate income and held the defendant's allegations related to fraud in the inducement rather than fraud in the execution of the agreement. Id. This Court held reformation did not apply to the defendant's claim as a matter of law. Id.
[¶24] Fraud may be a ground for reformation of a written contract when a party is misled or deceived into signing a written contract that differs from the parties' prior oral agreement. See Dobbs, The Law of Remedies at § 9.5; Calamari & Perillo, The Law of Contracts at § 9-35; 27 Lord, Williston on Contracts at § 69:54; 66 Am. Jur. 2d Reformation of Instruments at § 23.
[¶25] The Partnership does not claim the parties reached an agreement, but by fraudulent misrepresentations failed to write the agreement down to truly reflect their contract. The Partnership's allegations, however, relate to fraudulent representations during negotiations and not fraudulent representations as to the contents of the written agreement. The Partnership's claims about the terms of the agreement are inconsistent with the plain language of the warranty deed that the property was "free from all encumbrances, except installments of special assessments or assessments for special improvements which have not been certified to the County Auditor for collection." We conclude reformation based on actual fraud does not apply to the Partnership's claims.
[¶26] The Partnership also claims the Goetzfrieds had a duty to inform Mees about the uncertified special assessments, and their failure constitutes constructive fraud under N.D.C.C. § 9-03-09. In Bourgois v. Montana-Dakota Utils. Co., 466 N.W.2d 813, 819 (N.D. 1991), this Court discussed constructive fraud in the context of a commercial transaction. This Court said constructive fraud arises from the breach of a duty that is owed ordinarily because of a fiduciary, confidential, or other special relationship between the parties. Id. In Bourgois, at 819, this Court said constructive fraud warrants rescission of the sale of a home as an exception to the rule of caveat emptor, but declined to extend that rule to commercial transactions, and said a fiduciary or confidential or other special relationship does not ordinarily exist when business persons deal with each other at arm's length.
[¶27] This was a commercial transaction with the parties dealing at arm's length, and the existence of a tax assessment district is a matter of public record. See N.D.C.C. ch. 40-22. Moreover, the Partnership approached the Goetzfrieds about the property, and the Partnership, or its agents, prepared the documents for the sale of the property. We decline to extend the rule of constructive fraud to the Partnership's claims for reformation in this commercial transaction, and we conclude the Goetzfrieds did not have an affirmative duty to disclose the existence of the tax assessment district to Mees so that their failure to do so can constitute constructive fraud. We conclude the trial court did not err in granting summary judgment on the Partnership's claim for reformation based on actual or constructive fraud.
IV
[¶28] We affirm the summary judgment.
[¶29] Dale V. Sandstrom
Carol Ronning Kapsner
Mary Muehlen Maring
Daniel J. Crothers
Gerald W. VandeWalle, C.J. | 01-03-2023 | 06-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023688/ | JUSTICE McCULLOUGH delivered the opinion of the court: Claimant appeals from an order of the Industrial Commission (Commission) which denied benefits, finding claimant failed to prove a causal connection between her condition of ill-being and the accident she suffered. On appeal, she contends the original award of benefits by the arbitrator should be reinstated because the Commission lost jurisdiction to modify the award because it failed to render its decision within the deadline set by statute. Additionally, claimant contends the Commission’s determination she failed to establish a causal connection between her condition of ill-being and the industrial accident was against the manifest weight of the evidence. We affirm. Claimant was a 39-year-old sales representative for respondent, a commercial color laboratory, which produced artwork for ad agencies and businesses. Her job consisted of making calls on existing and prospective customers in the downtown Chicago area. Because of proximity, she would normally walk to each destination on the 20 such calls made during a normal workday. On February 21, 1986, while walking west on Waeker Drive at approximately 10 or 11 a.m., claimant testified she “tripped over a place in the pavement or ice.” At the time she was carrying a briefcase, a satchel purse, and a 14- by 11-inch mounted art print. Although she stumbled, claimant did not drop anything and did not fall. She was unaffected by the stumble and went on her way to keep her appointments. Toward the end of the day at approximately 3 p.m. while waiting for an appointment, she testified, her lower back began to hurt. Because the pain increased she decided not to keep her appointment and took a taxi back to the office. The next day she went to the Northwestern Hospital emergency room. X rays of her back were taken, and she was prescribed a light painkiller and bed rest. She returned to work the following Tuesday for a half day. Her back pain had fully subsided, and she worked full time until the following Wednesday. On that day, she testified that while walking to an appointment she began experiencing trouble walking and noticed pain in her right leg. Her doctor advised her to quit work for the day. She went to the orthopedic unit at Northwestern hospital the next day, March 6, 1986. After certain tests and a physical exam were administered, she was told to go home. She remained in bed for 11 days. Claimant returned to work at the end of March but worked only four hours a day. She stated she had no back pain at that time but because of bed rest was weak and tired. She slowly returned to roughly full-time duties by the end of April, when she began experiencing problems with her back again. A doctor told her to cut back her hours. Claimant continued working until August 6, 1986, when she again experienced pain in her back. An exercise routine and painkillers were prescribed. Although she testified she never worked a full 40-hour week after February 21, 1986, claimant continued to work approximately six hours a day through the winter of 1986 until her employment was terminated on April 15, 1987. After she lost her job, claimant looked for work but did not accept any job offers. She was bedridden from June 24 to July 8, 1987. She was enrolled in a “back school” at Northwestern and received physical therapy once a week. At the time of arbitration, she had completed the course but had not yet been evaluated by the physical therapist. She testified she continues to suffer from back stiffness and pain which radiates into the buttocks and legs. Other than a minor injury to her neck and cervical spine following a 1981 automobile accident, claimant adamantly maintained she suffered no low back pain or other back injury prior to February 21, 1986. On cross-examination, claimant stated she was not sure what caused her to trip on February 21, although it could have been a break in the sidewalk or ice which had formed in a crack. She also stated she did not remember if she told emergency room personnel she had suffered an accident the previous day. The emergency room records from Northwestern were shown to claimant. They indicate she told hospital personnel she had sharp back pain for the previous three days and general back pain for the last three months. When asked about this discrepancy, claimant denied a history of prior back pain, stating the records from the emergency room were probably a mistake. No medical testimony was presented on behalf of claimant except for the records of Dr. Shybut, her treating physician. In July 1987 he diagnosed a herniation of the L5-S1 disc. Also included in those records was the emergency room report in which the history claimant gave revealed she reported sharp back pains for three days prior to her visit to the emergency room and general low back pain for the previous three months. The report also notes the fact claimant stumbled on the previous day. Also included in the record was a form she filled out prior to her examination by Dr. Shybut on March 6, 1986. In response to a question as to whether her condition arose from ,an accident or injury, claimant circled the answer “No.” Respondent presented a letter from Dr. Clohisy, who examined claimant at respondent’s request. Clohisy conducted only a general physical examination of claimant and did not review her CAT scan or X rays. In Clohisy’s opinion, there was no connection between claimant’s condition of ill-being and her accident. Based on the results of his tests, he observed the severity of her complaints was out of proportion to any objective findings. In contrast, Dr. Shybut was of the opinion there was a relationship between claimant’s low back condition and the accident, based solely on the verbal patient history claimant gave him of no prior back pain or injury prior to February 21, 1986. The arbitrator awarded temporary total disability benefits. On review, the Commission reversed the arbitrator. Although claimant’s un-rebutted testimony established she suffered an accident arising out of and in the course of her employment on February 21, 1986, the Commission concluded claimant failed to establish a causal connection between her condition and that accident. In reaching its decision, the Commission relied on the emergency room report which showed a prior history of significant back pain and the medical questionnaire claimant answered before her first visit to Dr. Shybut on which she indicated no accident precipitated the condition. On review, the trial court affirmed the Commission. Initially, claimant contends the Commission was without jurisdiction to modify the arbitrator’s opinion because it did not render its decision within the applicable time limit. Claimant filed a petition for emergency hearing under section 19(b — 1) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)). That section provides in pertinent part: “The Commission shall adopt rules, regulations and procedures whereby the final decision of the Commission is filed not later than 90 days from the date the petition for review is filed but in no event later than 180 days from the date the petition for an emergency hearing is filed with the Industrial Commission.” Sections 7020.80(4)(C) and (4)(D) of the Illinois Administrative Code provide: “(C) *** Immediately after the Petition for Review has been filed it will be assigned to a Commissioner who will promptly schedule the case for oral argument before a panel of three Commissioners as provided by Section 19(e) of the Act at a time no less than 25 days nor more than 60 days after the filing of the Petition for Review. (D) The Commission shall file its decision no more than 90 days after the filing of the Petition for Review, and not later than 180 days from the filing of the Petition under Section 19(b — 1), whichever is sooner.” 50 Ill. Adm. Code §§7020.804(C), 4(D), at 1436 (Supp. 1986). The chronology present in this case is as follows: October 14, 1987: section 19(b — 1) petition filed. November 6 and 9,1987: arbitration hearing conducted. January 12, 1988: petition for review filed by respondent. March 16,1988: oral argument held. March 18, 1988: predecision memorandum of Commission filed. March 24, 1988: request for full written decision filed by claimant. April 26, 1988: final decision of the Industrial Commission entered. Under the applicable authority, the Commission’s decision was due to be filed no later than April 11, 1988. In its brief before this court, the Commission concedes that the written decision, filed on April 26, 1988, was entered 15 days beyond the time frame established by either the statute or the rule. The Commission notes, however, the pre-decision was issued within the time limit. The issue is whether the time frame is mandatory, and therefore “jurisdictional,” or directory. If mandatory, then the Commission lost jurisdiction by failing to file the final decision within the applicable limit. If the deadline is directory only, the failure to adhere to the time limit does not deprive the Commission of jurisdiction. No cases have been called to our attention which discuss this issue in the context of the Commission. An examination of the existing precedent, however, leads to the conclusion the time frames are directory only and, therefore, the Commission did not lose jurisdiction to modify the arbitrator’s award. Initially, we note, a substantial argument can be made the Commission did not violate its rule because it issued its predecision within the established time limit. Had claimant not made a request for a full written decision, the predecision would have become final 15 days after filing on April 2, 1987, well within the April 11 deadline. Claimant nevertheless argues she is entitled under the Act to a full written decision, and because she filed that request some 18 days before the April 11 deadline, she argues the Commission could delay indefinitely the filing of a full written decision and, theoretically, the decision would never become final. While, as an abstract proposition that may be true, the Commission points out that had claimant prevailed before the Commission, she would have been entitled to additional interest from respondent for any period of delay occasioned by the filing of a tardy written decision. Moreover, claimant always has the remedy of mandamus to force the Commission to act. Shawgo v. Illinois Department of Children & Family Services (1989), 182 Ill. App. 3d 485, 538 N.E.2d 234. Assuming, without deciding, the decision of the Commission is untimely, the weight of authority supports the Commission’s position the time limits are directory. As the court noted in Shawgo, there is case law to the effect an administrative agency occasionally loses jurisdiction at a preliminary stage of proceedings because of administrative delay, and this loss of jurisdiction creates a result favorable to a party adverse to the agency. (See McReynolds v. Civil Service Comm’n (1974), 18 Ill. App. 3d 1062, 311 N.E.2d 308; Jackson v. Civil Service Comm’n (1976), 41 Ill. App. 3d 87, 353 N.E.2d 331.) In those cited cases, the agency did not grant a hearing within the statutorily set period after a request was made by an employee whose employment had been terminated. In those cases, the court observed, the party obtaining the benefit was a party respondent to the proceedings and gained the benefit because the agency no longer had the power to impose a burden such as discharge from civil service employment upon the employee. Proceedings before the Commission present an entirely different situation. In the first instance, the Commission is not an adverse party to the litigation. Its role is to adjudicate the rights and liabilities of the real parties to the case, the employer and the employee. Were the respective positions of the parties reversed and it had been an adverse decision of the arbitrator which claimant was appealing, if the Commission failed to abide by the time limit and lost jurisdiction to act, it would have prevented claimant from receiving any relief to which she was arguably entitled had the Commission decided to reverse the arbitrator. Claimant has presented no authority suggesting an arbitrator’s award must be reinstated simply because the Commission fails to abide by a deadline. An analogous situation was presented in Shawgo, in which plaintiff appealed to the Department of Children and Family Services to expunge a finding he was a suspect in a child neglect or abuse case. The agency failed to provide him a hearing as required by the act. Noting that one of the policies of the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1987, ch. 23, par. 2054) was to protect subjects from the detrimental effect of inaccurate reports, the appellate court concluded the legislature did not intend the deadlines to be mandatory because to do so would deprive wrongly charged individuals of the opportunity to expunge inaccurate records through mere dilatory conduct of the agency. By the same token another policy of the act was to protect children in this State. If mere agency inaction would require automatic expungement of department records, that policy would be frustrated. In Shawgo, the court concluded: “The only cases called to our attention where a petitioner before an administrative agency has been held to be entitled to affirmative relief by the agency because of its failure to proceed with dispatch involve statutes which expressly provide for the granting of the relief upon the failure of the agency to act. For instance, section 40(a)(2) of the Environmental Protection Act states that a failure of the Environmental Protection Agency to act within a stated time on an application for a permit for a facility subject to pollution control operates as a granting of the permit. [Citations.] We see no indication here of a legislative intent that a ‘subject’ is to be entitled to expungement upon any failure to act by DCFS.” Shawgo, 182 Ill. App. 3d at 489, 538 N.E.2d at 236. The same concerns voiced in Shawgo are present here. Neither the statute nor the rule provides for any affirmative relief upon the failure of the Commission to act within the specified time frames. Second, given the substantial caseload of the Commission, any ruling that the deadlines are mandatory could well deprive both employers and employees of the right to Commission review of decisions of the arbitrators through mere inaction, however legitimate or inadvertent. Finally, there is no evidence present on this record which suggests the Commission’s actions were intended to be dilatory or that claimant suffered any injury due to the 15-day delay in filing the Commission’s written decision. We conclude the Commission did not lose jurisdiction to act. Claimant next contends the Commission’s determination she failed to establish a causal connection between her condition of ill-being and the accident is against the manifest weight of the evidence. We disagree. Although claimant testified she stumbled on the sidewalk, she suffered no apparent manifestation of injury. Although she reported stumbling to emergency room personnel, she also submitted a history of significant back pain for the three days just prior to her visit to the emergency room and general low back pain for the last three months. This was directly opposed to her testimony at arbitration that she suffered no back pain of any sort prior to the day she stumbled on the sidewalk. This coupled with her negative response to a question asking whether an accident caused her condition, completed five days after the stumble, led the Commission to conclude her condition of ill-being arose from a source independent of the “accident.” It is the responsibility of the Commission to determine whether a causal relationship exists between claimant’s back problems and the accident. (Steiner v. Industrial Comm’n (1984), 101 Ill. 2d 257, 461 N.E.2d 1363.) In making that determination, it is within the province of the Commission to judge credibility, resolve conflicting medical testimony and draw reasonable inferences from the evidence. (Lambert v. Industrial Comm’n (1980), 79 Ill. 2d 243, 402 N.E.2d 617.) That a court might have drawn different inferences from the evidence is not relevant since a reviewing court will not disregard or reject permissible inferences from the evidence. (Steiner, 101 Ill. 2d 257, 461 N.E.2d 1363.) Based on the conflicting evidence presented by claimant, the Commission’s decision the claimant’s accident was not causally related to her back condition is not contrary to the manifest weight. Accordingly, its decision denying temporary total disability benefits and medical bills was proper. Finally, respondent contends claimant failed to establish an accident occurred. However, respondent did not file a cross-appeal raising as an issue that adverse finding. Accordingly, the issue is not properly before us. Ruff v. Industrial Comm’n (1986), 149 Ill. App. 3d 73, 500 N.E.2d 553. For the foregoing reasons, the judgment of the Cook County circuit court is affirmed. Affirmed. BARRY, P.J., and McNAMARA, WOODWARD, and LEWIS, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7023689/ | JUSTICE MURRAY delivered the opinion of the court: After a joint bench trial, defendants Jody Crose and Abel Garza were convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 561k, par. 1401(a)(2)), and each sentenced to six years’ imprisonment. (Crose’s and Garza’s cases were severed from that of a third defendant, Carl Tatman, who had been convicted of narcotic trafficking in Georgia.) Both defendants seek a reversal of their convictions. For the reasons set forth below, we affirm. Pursuant to the State’s witnesses at trial, two agents of the Vermilion County Metropolitan Enforcement Group (MEG), Patty Cava-lenes and Kathy Shappaugh, met Carl Tatman in Urbana, Illinois, on June 19, 1985, for the purpose of going to a Chicago suburb to buy four ounces of cocaine. Tatman and another man named Steve Cov-erell got into the agents’ undercover van, and they drove to their ultimate destination, Casey’s Tavern in Sauk Village, Illinois. While in Casey’s parking lot, Tatman pointed to an individual later identified as defendant Crose, who was apparently standing nearby, and stated that he was “the source.” Thereafter, Tatman left the van, walked over to Crose, talked with him, and then brought him to the van and introduced him to the agents. Tatman stated to the agents that only one of them could go with him and Crose to buy the cocaine. Everyone then went into the tavern. Tatman and Crose left to make a telephone call from a pay phone. When they returned, Tatman told the agents that his source did not yet have the cocaine, but that they should take the source their money because he would have the cocaine in a half hour. Tatman, Crose and the agents then drove to defendant Abel Garza’s home, the directions to which were supplied by Crose. Tatman, Crose and Agent Cavalenes entered the house; Agent Shappaugh remained in the van. In Garza’s kitchen, Cavalenes gave $8,400 to Tatman, who showed it to Garza and then returned it to her. Tatman, Crose and Cavalenes then left Garza’s house, and the agents and defendants drove back to Casey’s Tavern. During the trip, Crose asked Cavalenes how long it would take her to sell the cocaine she was buying. Cavalenes stated it would take about one week. One half hour after they arrived at Casey’s, Crose received a telephone call and thereafter related that “the source” had the cocaine. Tatman, Crose and the two agents returned to Garza’s home; Agent Shappaugh again remained in the van while the others entered the house. The parties met with Garza in his kitchen. He stated that he only had two ounces of cocaine and that the agents would have to wait for the other two ounces. Tatman asked Garza to get the two ounces he had, whereupon Garza left the room and returned with a plastic bag containing white powder. Garza handed the bag to Tat-man, and Tatman handed it to Cavalenes. After Tatman stated he wanted to sample the contents, Cavalenes reached into her handbag and activated an alert signal to surveillance units in the area. Tat-man and Garza were placed under arrest in the kitchen, while Crose, who had been standing in the doorway of the back door of the house, was yanked out of the house by another agent and arrested. Agent Cavalenes conducted a field test on the white powder given to her, initialed and dated the bag, and gave it to another MEG agent. The white powder was later determined to be cocaine. A grinder, glass mirror, and a gun missing its barrel were later discovered by the police in Garza’s home. At trial, Agent Cavalenes also specifically testified that she could not recall if Garza stated the cocaine was going to specific individuals or not; she wrote in her report that Garza said he would sell to Crose and Tatman, who would then sell to her; she never talked to Garza about the price; and she did not hand Garza any money. David Zarbock, a State police officer, corroborated Cavalenes’ version of the events leading up to defendants’ arrests. He also testified that the day after the arrests, he delivered the plastic bag containing the white powder to Lynn Pora at the State Police Forensic Laboratory in Maywood, Illinois. Pora subsequently testified, over the objection of defendants challenging her qualifications to testify as an expert, that the white powder contained synthetic cocaine and weighed 54.1 grams. Defendant Crose testified that he was outside of Garza’s kitchen when he was arrested, he had never been arrested before, he knew that Cavalenes “was there that night to purchase cocaine,” he had given the agents directions to Garza’s house, he had received a telephone call from Garza at Casey’s Tavern and related to Tatman that the cocaine was ready, he did not see Cavalenes show her money to Garza, he did not see anything delivered to Cavalenes, and he was not going to receive any benefit from his participation in the alleged transaction. On cross-examination, when the prosecutor “informed” Crose that his “job that night was to hookup Agent Cavalenes and Tatman with Abel Garza,” he replied, “Yes, sir”; he was Tatman’s “connect.” Upon the prosecutor’s further statement to Crose that “You were the intermediary party whose job it was to facilitate the sale of cocaine,” Crose answered in the affirmative. Crose also testified that Tatman had requested that he check to see if he could locate some cocaine for him, that he did not know exactly where to go, but he knew “where to look,” and that Tatman called him repeatedly and “kept pestering” him. Defendant Garza testified that he did not hand Cavalenes a “slipper” containing white powder, but that he handed it to Tatman and that he never saw Cavalenes touch it. On cross-examination, he admitted Tatman, Crose and Cavalenes were at his home to get cocaine, but he denied that he was to sell cocaine to Cavalenes or that she showed him any money. Garza also stated that money was never discussed; he got the cocaine from his supplier; he mixed the cocaine with another substance that he had; when Tatman, Crose and Cava-lenes came to his house the second time he got the cocaine from his bedroom; and that Cavalenes was in his kitchen when he handed the cocaine to Tatman. The trial court subsequently found both defendants guilty of delivery of a controlled substance and sentenced them each to six years’ imprisonment. These consolidated appeals followed. I Defendant Crose argues on appeal that the trial court’s denial of his motion to produce an informant deprived him of his constitutional rights to confront witnesses against him and to prepare his defense, he was denied effective assistance of counsel, and the trial court erred in allowing the State’s “chemist” to testify as an expert. Crose’s first argument, that the trial court improperly denied his motion to produce an informant is based on the following facts. On the day of trial, before hearing testimony, the trial court asked the State to clarify the role of an individual named Jacqueline Grant, whose name had apparently surfaced on reports of an uncharged transaction involving Grant and Tatman. The State subsequently disclosed that Grant was a citizen working for the MEG. Defense counsel informed the court that Grant’s name was surfacing for the first time and that information concerning her role in the drug transaction resulting in Crose’s arrest would be important to an entrapment defense. The court responded that it would allow defense counsel great latitude to make inquiries on cross-examination. Defense counsel argued, however, that the court’s approach would not adequately address the problem and pointed out that an uninformed cross-examination could open up areas the defense might not knowingly have chosen to explore. Accordingly, defense counsel objected to commencement of the trial and moved that the court order the State to produce the newly revealed informant. The court denied the motion, stating that it was not sure that Grant had “any real materiality or relevance in the case.” The court did, however, invite defense counsel to renew the motion later on in the case once the facts and any potential relevance Grant might have in the case became more clear. Crose’s counsel never renewed the motion. It is well settled that strong public policy reasons favoring nondisclosure of an informant must be balanced against a defendant’s need for disclosure in order to prepare his defense (People v. Stoica (1987), 163 Ill. App. 3d 660) or where disclosure is essential to a fair determination of a cause (Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623). Whatever the circumstances, however, a defendant has the burden of showing a need for disclosure. People v. Stoica (1987), 163 Ill. App. 3d 660. In the instant case, Crose relies on a number of cases in support of his argument that the trial court should have required the State to produce Grant (see People v. Raess (1986), 146 Ill. App. 3d 384; People v. Coleman (1984), 124 Ill. App. 3d 597; People v. Castro (1973), 10 Ill. App. 3d 1078; Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623). Those cases are distinguishable, however, because they, unlike the situation before us, involved informants who played an active role in the criminal occurrence by either participating in or witnessing the crime. For example, in Raess, an unnamed informant approached the defendant, initiated conversations about narcotics and persistently appealed by telephone and in person that the defendant procure cocaine from him and his partner. The Raess court determined that disclosure of the informant was necessary because he had over a period spanning three weeks “played a prominent, if not pivotal, role in laying the groundwork for the offense and, possibly, in inducing defendant to commit it.” (Raess, 146 Ill. App. 3d at 392.) In Coleman, the informant tipped the police that the defendant was selling drugs and also witnessed the defendant’s activities forming the basis for the drug-related charges. The informant, therefore, was the only witness who could corroborate or rebut the State’s evidence of the defendant’s possession of the drugs. In Castro, the defendant alleged and the police admitted that the informant was present at the time and place of a drug transaction. In Roviaro, the informant sought to be produced was the purchaser of the narcotics from the defendant. In the instant case, the record discloses no evidence that Grant ever knew or spoke to Crose, and Grant simply was not a participant in or a witness to the crime with which Crose was charged. We also find without merit Crose’s “entrapment defense” argument. He contends that he could not determine Grant’s precise relevance to a possible entrapment defense without the opportunity to interview her and, moreover, that he was entitled to decide, and not the government, whether to call Grant or to interview her in preparation for trial. In support thereof, Crose relies on People v. Coleman (1984), 124 Ill. App. 3d 597. In Coleman, the State refused to disclose the identity of an informant who had acted in a dual role as a tipster and material witness of the defendant’s alleged drug activities. The State suggested that the court conduct an in camera interview of him to determine whether his testimony would be helpful to the defense. The trial court ruled, and this court affirmed, that to grant the State’s request “would infringe on the duty of defense counsel to decide on the strategy most advantageous to his client and to make tactical decisions accordingly.” 124 Ill. App. 3d at 601. We first observe in the instant case, however, that, as discussed above, Grant was not involved in the crime with which defendant was charged and she was neither a tipster nor witness as admittedly the informant was in Coleman. We also note that in order to raise the defense of entrapment, a defendant must present “some” evidence thereon, before the burden shifts to the State to prove, in addition to the elements of the offense, the absence of entrapment beyond a reasonable doubt. (People v. Raess (1986), 146 Ill. App. 3d 384.) Here, defense counsel presented no specific reasons as to why the trial court should order Grant’s production; he merely alleged that “it [she] would have something to do with the entrapment defense” and he inquired whether Grant had a criminal record. In addition, defense counsel made no claim that Grant did anything to induce Crose to commit the offense with which he was charged. In other words, defense counsel offered only speculation for the court’s consideration, which clearly was insufficient “evidence” requiring the production of Grant. (See People v. Thornton (1984), 125 Ill. App. 3d 316 (notwithstanding the fact that an informant participated in the first of three drug transactions between the defendant and a police officer, the defendant’s argument that the informant might possess knowledge relevant to a defense of entrapment concerning the third transaction with which the defendant was charged and at which the informant was not present was speculation and insufficient to require production of the informant).) In summary, defendant failed to present any scintilla of evidence to rebut the State’s explanation to the court that Grant was not involved in the drug transaction for which defendant was charged. Accordingly, we hold that the trial court properly denied defendant’s motion for production of Grant. Crose next argues that he was denied effective assistance of counsel because his attorney allegedly failed to advise him concerning his decision to testify and admitted his guilt in arguing to the court that he “assisted” Tatman in the delivery of the cocaine. The State asserts that Crose’s counsel’s strategy was competent under the circumstances; he focused on attacking the chain of custody of the alleged cocaine and on minimizing Crose’s role in the transaction. In order to show ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced him (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052), such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengable. 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Here, Crose first argues that no conceivable strategy supported his counsel’s decision to put him on the stand, especially for purposes of merely minimizing his culpability, where the State’s case against him was based on an accountability theory. In so doing, Crose asserts that his counsel demonstrated a complete ignorance of the principle of accountability. We find this contention without merit. The evidence presented by the State alone overwhelmingly implicated Crose in the transaction, i.e., Agent Cavalenes’ testimony, which was corroborated by Agent Shappaugh and Officer Zardock. Under these circumstances we therefore cannot say that Crose’s counsel’s advice to him to take the stand does not qualify as a strategic decision, albeit to minimize his culpability. We further disagree with Crose’s contention that “only two defenses made sense that [he] did not lend assistance at all, or that any help he rendered was not for the purpose of facilitating the offense,” since the State merely showed that he played a part in the events leading up to the delivery and not that he assisted in the commission of the offense with a conscious objective or purpose to facilitate the offense. Based on the facts, this contention is also completely without merit. In other words, Crose is claiming that he did what he did without any conscious/intentional objective to facilitate the delivery of cocaine from Garza to Tatman or the agents; he did not intentionally or consciously intend to meet with Tatman for the purpose of taking him and the agents to Garza in order for them to purchase cocaine. Based on the record before us, there could be no other explanation for Crose’s conduct; it is completely ludicrous to suggest that Crose merely happened to meet Tatman in the parking lot and that he directed the agents and Tatman to Garza’s home for any other purpose, especially since he testified he had knowledge that the parties involved wanted to purchase some cocaine. For the foregoing reasons, we also find Crose’s argument without merit that his counsel prejudiced him by arguing his assistance in the transaction in order to minimize his culpability. The only strategy available to defense counsel under the circumstances, besides challenging the chain of custody of the cocaine, was to so argue. Specifically, the statements complained of in support of his argument were that his counsel, in closing, argued that he “was just there in order to assist Tatman. *** He assisted Tatman in getting over there to Garza’s”; that he merely made an introduction and gave directions to Garza’s but never touched any money or cocaine; that he was not in the room when the alleged delivery took place; and that he was not to receive any benefit from the alleged transaction. Crose contends that these “points” were irrelevant if he in fact intentionally assisted in a delivery of cocaine and thus counsel ignored the principle of accountability. We disagree; these points do not unequivocally admit of anything contrary to what Crose himself testified to concerning his involvement. See People v. Chandler (1989), 129 Ill. 2d 233. We also find the circumstances here distinguishable from People v. Hattery (1985), 109 Ill. 2d 449, upon which Crose relies. In Hattery, defense counsel in his opening statement told the jury that “ ‘[a]t the end of your deliberations, you will find [the defendant] guilty of murder.’ ” (109 Ill. 2d at 458.) The Hattery court reversed the defendant’s conviction, holding that the statement was an unequivocal concession of the defendant’s guilt and that counsel failed to advance any theory of defense. Here, Crose’s counsel’s strategy was to attack the chain of custody of the cocaine in the case presented by the State. Once Crose’s case was presented and the evidence against him was overwhelmingly established, counsel attempted to minimize his role. While this tactic is concedely debatable (see People v. Hinton (1987), 163 Ill. App. 3d 227), we cannot say that it rose to the level of an unequivocal admission of his guilt. Similarly, unlike Hattery, defense counsel here, by attacking the chain of custody of the cocaine, subjected the prosecution’s case to a meaningful adversarial testing (see People v. Chandler (1989), 129 Ill. 2d 233). Thus, defense counsel presented more than a mitigating theory in defense of Crose. We further observe, assuming arguendo that counsel conceded Crose’s guilt, that “Hattery did not hold that it is per se ineffectiveness of counsel whenever an attorney concedes his client’s guilt to offenses and the record fails to show the client’s consent, if there is overwhelming evidence of that guilt” (People v. Chandler (1989), 129 Ill. 2d 233, 246, citing People v. Johnson (1989), 128 Ill. 2d 253). “[I]f a concession of guilt is made, ineffectiveness may be established; however, the defendant faces a high burden before he can forsake the two-part Strickland, test.” (129 Ill. 2d at 246.) The Strickland test requires that a defendant not only must show that his counsel’s performance was deficient and that the deficient performance prejudiced him, but also that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) Based on the record before us, we cannot say that the trial court would have reached a different verdict, absent the alleged unprofessional errors of Crose’s counsel. Finally, we observe that defense counsel’s last words to the court, after arguing that the State’s chain of custody of the cocaine was deficient and there was insufficient evidence to support Crose’s conviction, were: “We respectfully request the court to find Jody Crose not guilty of the charges made against him.” Clearly, defense counsel was not conceding defendant’s guilt. Crose’s last argument that the trial court erred in allowing the State’s “chemist” to testify as an expert will be discussed below, since Crose has adopted Garza’s argument regarding this issue. II Defendant Garza argues on appeal that he was denied effective assistance of counsel because his counsel failed to seek a severance of his case from that of Crose based on the claim that their defenses were antagonistic, the trial court erred in admitting the hearsay testimony of Agent Cavalenes as a coconspirator exception to the hearsay rule, and the court erred in allowing the State’s “chemist” to testify as an expert witness. With respect to Garza’s first argument, we observe that, generally, jointly indicted defendants should be tried jointly unless their defenses are inconsistent, antagonistic or general principles of fairness require otherwise. (People v. Bean (1985), 109 Ill. 2d 80.) A defendant who does not wish to be jointly tried may file a motion for severance (Ill. Rev. Stat. 1985, ch. 38, par. 114—8) and, where the motion is based on a claim of antagonistic defenses between himself and a codefendant, the defendant seeking the severance must make a specific showing of antagonism, including a detailed recitation of what his defense would be; mere apprehension of prejudice is not enough. People v. Bean (1985), 109 Ill. 2d 80. In the instant case, we do not find any antagonism between Garza’s and Crose’s defenses or that, as Garza also appears to argue, their defenses were inconsistent requiring a severance, based on his assertion that his testimony conflicted drastically with the testimony given by Crose. Specifically, as Garza points out in his appellate brief, Crose’s defense was that he “did not receive any benefit by the transaction. Mr. Garza’s counsel argued that the evidence did not show a delivery to Cavalenes, that she only had it for a moment before Tatman got it back. Mr. Garza never testified that he had an agreement to deliver anything to Cavalenes.” Garza states that these defenses conflict in a material way in that he did not deliver anything to Cavalenes, yet Crose “pointed a finger at him” by testifying that he was Garza’s “connect.” Our review of the record, however, reveals that Crose did not testify that he saw Garza hand the cocaine to Agent Cavalenes. In fact, Crose testified that he did not observe Garza deliver any substances to the agent because he was outside of the kitchen when the alleged delivery occurred. Moreover, although Crose testified that he was the “connect” and intermediary between Tatman and the agents, such an admission is not the equivalent of a statement that he actually saw Garza deliver the cocaine to Cava-lenes or that he was to sell her anything. Since we find that Garza’s and Crose’s defenses were not antagonistic or inconsistent, a severance motion by Garza would have been a futile act and the motion disallowed (see People v. Zambetta (1985), 132 Ill. App. 3d 740). Accordingly, Garza’s contention of ineffective assistance of counsel is without merit. We also reject Garza’s argument that the trial court erred in allowing the hearsay testimony of Agent Cavalenes based on the co-conspirator exception to the hearsay rule. The statement at issue was made to investigating officers by a woman named Kathy, whom the agents met at an address where they were supposed to meet Tat-man prior to their actual meeting with him. Kathy stated that she had just received a telephone call from Tatman and that he would be back shortly. Upon objection by both defendants’ counsel, the State contended that the statement was not offered for the truth of the matter asserted, and the court recognized that the statement would account only for the investigators’ future actions or conversations. We agree with the trial court’s ruling. It is well settled that statements which would be hearsay if offered for the truth of the matter asserted therein may be admissible if offered for the limited purpose of explaining why the police conducted their investigation as they did. (People v. Sanchez (1987), 163 Ill. App. 3d 186.) We further observe that Garza’s contention that the statement was offered to show a large conspiracy and to inflame the trier of fact thereby is also without merit. As the State points out, although the trial court discussed the coconspirator hearsay exception, it did so before hearing the testimony and before the prosecutor specifically stated that it was not being offered for the truth of the matter asserted. Moreover, assuming admission of the statement had been error, the statement simply had no bearing whatsoever on the outcome of Garza’s case; there is no reasonable possibility that the verdict would have been different had the hearsay been excluded. See People v. Clark (1987), 160 Ill. App. 3d 877. Garza’s final argument, as well as Crose’s, concerns the testimony of the State’s forensic scientist or, as referred to by defendants, the State’s “chemist,” Lynn Pora. Both defendants contend that the trial court erred in finding her qualified to testify as an expert witness. The record discloses that Pora is employed by the Illinois Department of State Police, Bureau of Forensic Service and Identification. She worked as a scientist for five years. She has a bachelor’s of arts degree in biology with a minor degree in chemistry. Upon her hiring she participated in a one-year intensive training program with the department. She is a member of two professional societies and has attended various seminars. She has presented two papers at the Midwest Association of Science meetings, and the State police laboratory in which she works is certified and accredited by the American Society of Lab Directors. She had analyzed controlled substances several thousand times and had specifically tested for cocaine about 2,500 times prior to 1985. Defendants’ objections to Pora’s qualifications appear to be based simply on the fact that the one-year training program she took in 1982 and 1983 was not at a lab certified by the Illinois Department of Public Health and that she could not remember the number of credits or the amount of chemistry courses she took to obtain her bachelor’s degree. Accordingly, defendants contend that the trial court abused its discretion in allowing Pora to testify as an expert. In support thereof, they cite two cases which simply are inapplicable to the situation before us. In those cases the courts allowed individuals to testify as experts in areas outside of their profession and where they lacked sufficient training and experience. (See People v. Fiorita (1930), 339 Ill. 78; People v. Owens (1987), 155 Ill. App. 3d 990.) Here, Pora had worked in the field as a forensic scientist for five years and had additional education and training as discussed above. This matter was within the trial court’s discretion as to whether her education, training and employment qualified her as an expert, which our statute defines as a person “who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense.” (107 Ill. 2d R. 220(a)(1).) We see no reason to disturb the trial court’s determination that Pora’s qualifications comport with the statutory definition of an expert. In light of the foregoing, we affirm the convictions of both defendants. Affirmed. COCCIA, P.J., and LORENZ, J., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2154680/ | GREGORY DENSTON, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.
No. 484, 2008.
Supreme Court of Delaware.
January 7, 2009.
ORDER
JACK B. JACOBS, Justice.
This 7th day of January 2009, it appears to the Court that, on December 8, 2008, the appellant filed a motion to dismiss his own appeal. The State did not file a response to the motion within the required ten-day period; therefore, dismissal of this action is deemed to be unopposed.
NOW, THEREFORE, IT IS HEREBY ORDERED, pursuant to Supreme Court Rule 3(b)(2)(b), that the within appeal is DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154720/ | 963 A.2d 469 (2008)
COM.
v.
MITCHELL.[2]
No. 598 MAL (2008).
Supreme Court of Pennsylvania.
December 12, 2008.
Disposition of petition for allowance of appeal. Denied.
NOTES
[2] Justice TODD did not participate in the consideration or decision of this matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/540477/ | 902 F.2d 28Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Robert Clifton JOHNSON, Jr., Plaintiff-Appellant,v.Michael KAPLAN, Defendant-Appellee.
No. 89-7854.
United States Court of Appeals, Fourth Circuit.
Submitted Dec. 28, 1989.Decided April 18, 1990.Rehearing Denied May 17, 1990.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Edward S. Northrop, Senior District Judge. (C/A No. 89-2819-N)
Robert Clifton Johnson, Jr., appellant pro se.
D.Md.
AFFIRMED.
Before DONALD RUSSELL, WIDENER and PHILLIPS, Circuit Judges.
PER CURIAM:
1
Robert Clifton Johnson, Jr., appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court and on the additional ground that the defendant did not act under color of state law. Johnson v. Kaplan, C/A No. 89-2819-N (D.Md. Oct. 20, 1989). 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 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1290755/ | 208 Ga. 298 (1951)
66 S.E.2d 709
LEGGITT et al.
v.
ALLEN et al.
17523.
Supreme Court of Georgia.
Submitted July 9, 1951.
Decided September 10, 1951.
Davis & Friedin, for plaintiffs in error.
Leon F. Beddingfield, contra.
DUCKWORTH, Chief Justice.
The object of the Constitution (Code, Ann., § 2-3704; Ga. L. 1945, p. 43) in conferring jurisdiction in specified classes of cases upon the Supreme Court is to require that all decisions in cases that involve the subjects there covered be made by the Supreme Court. But with equal clarity the Constitution (Code, Ann., § 2-3708; Ga. L. 1945, p. 44) directs that in all cases where such subjects are not involved the Court of Appeals must make the decision. Therefore the Supreme Court has no jurisdiction in partitioning proceedings brought under Code §§ 85-1504, 85-1511, where none of the subjects over which it is given jurisdiction by the Constitution is involved. Anderson v. Anderson, 151 Ga. 518 (107 S.E. 334); Werner v. Werner, 196 Ga. 1 (25 S.E. 2d, 676, 146 A.L.R. 1263). The instant case is a statutory partitioning proceeding, but the demurrer to the application, which was overruled, contained a ground challenging the constitutionality of Code § 85-1511 upon the ground that it denied the right to a jury trial, and the judgment on the demurrer is duly excepted to in the bill of exceptions. This makes a case involving the constitutionality of a State law, and is clearly within a class in which the Constitution confers jurisdiction upon the Supreme Court. But the briefs of the plaintiffs in error, filed in the Court of Appeals in January, abandon the constitutional question and make the argument that the identical Code section (Code, § 85-1511) that was assailed by the demurrer confers the right of trial by jury, thus accepting the judgment of the trial court on the constitutional question. This constitutes abandonment of the only question in the case that would give the Supreme Court jurisdiction. The *299 Court of Appeals transferred the case to this court on May 18, 1951, at a time when there was nothing in the case that gives the Supreme Court jurisdiction. Thereupon counsel for the plaintiffs in error filed a written motion in this court to transfer the case back to the Court of Appeals because there was nothing in the case to give the Supreme Court jurisdiction.
By their actions the plaintiffs in error have irrevocably acquiesced in the judgment of the trial court on the constitutional question, and they will not be allowed to review that judgment nor to question its correctness in any court. Consequently, it is and was, while the case was in the Court of Appeals, legally impossible for the constitutional question to re-enter it. It then and now stands, and must remain, as a case involving no question which the Supreme Court has jurisdiction to review. Every exception now in the case is clearly reviewable by the Court of Appeals.
Where a case involves equity or constitutional questions or other features that come within the jurisdiction of the Supreme Court, but all such features are abandoned or otherwise eliminated in the trial court before the judgment of that court on review of that judgment the Court of Appeals has exclusive jurisdiction. Blount v. Metropolitan Life Ins. Co., 192 Ga. 325 (15 S.E. 2d, 413); Gilbert Hotel No. 22 v. Black, 192 Ga. 641 (16 S.E. 2d, 435); Martin v. Home Owners Loan Corp., 198 Ga. 288 (31 S.E. 2d, 407).
For precisely the same reason that such eliminations before judgment in the trial court give to the Court of Appeals jurisdiction to review, the elimination by abandonment in he Court of Appeals before that court transferred the case to the Supreme Court, gave exclusive jurisdiction to the Court of Appeals and left a case involving nothing which the Supreme Court has jurisdiction to review. The Constitution (Code, Ann. § 2-3704; Ga. L. 1945, p. 43) directs the Supreme Court and the Court of Appeals to transfer, each to the other, any case brought to either court which does not belong to the class of cases of which it has jurisdiction. Upon reaching the Court of Appeals this case could have been transferred, since the exceptions contained matter within the jurisdiction of the Supreme Court; but when the plaintiffs in error abandoned, as they had a right to do, the constitutional *300 question while the case was in that court, it was not one of which the Supreme Court had jurisdiction when that court transferred it to the Supreme Court. This provision of the Constitution requiring transfer of cases is not concerned with what might at some time have been in the case, but it is concerned solely about the case as it stands when judgment is to be rendered. Here the constitutional question is completely and finally eliminated and no decision concerning that question can be made. In this respect this case differs from those cases where the question within the jurisdiction of the Supreme Court is without merit or need not be decided since a decision of the case can be reached without deciding the constitutional question. See Burke v. State, 205 Ga. 520 (54 S.E. 2d, 348).
We are confronted, however, with the decision in McKinney v. State, 186 Ga. 886 (1) (199 S.E. 115), which was concurred in by only four Justices, where it was held that abandonment in the Supreme Court of the constitutional question did not deprive the Supreme Court of jurisdiction. The decision states no reasons for the ruling nor does it cite any authority therefor. It seems to us that the majority overlooked the basic purpose of the Constitution in fixing jurisdiction. That purpose, as stated above, is to require that all rulings upon subjects which the Constitution has placed in the jurisdiction of the Supreme Court must be made by that court, and that in all other cases where such subjects are not involved the decisions must be made by the Court of Appeals. We therefore think that the majority ruling is unsound and, for that reason, disapprove it and hold that in the instant case, which is in substance the same as the case there dealt with, the elimination of the constitutional question deprives the Supreme Court of jurisdiction, and the case must be sent back to the Court of Appeals.
Transferred to the Court of Appeals. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1009541/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7790
In Re: MARTELL WHITAKER,
Petitioner.
On Petition for Writ of Mandamus. (CA-01-3207-B-1)
Submitted: January 9, 2003 Decided: January 24, 2003
Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Martell Whitaker, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Martell Whitaker petitions for a writ of mandamus, alleging
the district court has unduly delayed acting on his 28 U.S.C.
§ 2255 (2000) motion. He seeks an order from this court directing
the district court to act. We find there has been no undue delay
in the district court. Accordingly, we deny the mandamus petition.
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.
PETITION DENIED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2543784/ | 51 So.3d 609 (2011)
Marion E. WATTS, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D10-6482.
District Court of Appeal of Florida, First District.
January 10, 2011.
Marion E. Watts, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
PER CURIAM.
The petition alleging ineffective assistance of appellate counsel is denied on the merits.
DAVIS, HAWKES, and WETHERELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1404825/ | 83 S.W.3d 87 (2002)
UNION HILL HOMES ASSOCIATION, INC., Appellant,
v.
RET DEVELOPMENT CORPORATION, Respondent.
No. WD 60091.
Missouri Court of Appeals, Western District.
August 27, 2002.
*88 Russell C. Ashley, Kansas City, MO, for appellant.
Cindy Reams Martin, Lee's Summit, MO, for respondent.
Before ELLIS, P.J., and EDWIN H. SMITH and HOWARD, JJ.
EDWIN H. SMITH, Judge.
This case arises out of a dispute between Union Hill Homes Association, the appellant, and RET Development Corporation, the respondent, relating to the construction by the respondent of single-family residences on three lots: 2978 Grand (owned by the respondent), 2913 Walnut, and 2911 Walnut, located in the Union Hill subdivision of Kansas City, Missouri. On September 17, 1998, the appellant's board of directors passed a resolution approving site plans submitted by the respondent for the construction of the three residences. However, the board's approval was subject to the condition that plans for landscaping, grading, sprinkler systems, etc., as well as samples of exterior building materials to be used, would have to be submitted to and approved by the appellant's Architecture Review Committee. In an apparent attempt to ensure the respondent's compliance with the requirements of the resolution, the resolution further provided that the respondent would give the appellant a *89 lien on each of the three lots. The resolution also included a provision that any ensuing disputes between the parties would be arbitrated pursuant to the rules of the American Arbitration Association.
On August 18, 1999, the appellant filed an application in the Circuit Court of Jackson County for a temporary restraining order (TRO), Case Number 99-CV-216360, to prohibit the respondent from further construction activities on the Union Hill properties. In support of its application, the appellant alleged that the respondent was engaging in landscaping, grading, and exterior building activities on the three subject properties without having first submitted the plans and samples pertaining to such activities for approval by the Architecture Review Committee, as required by the board resolution of September 17, 1998. On August 25, 1999, the respondent filed a motion asking the court to dismiss the appellant's application for TRO and compel arbitration of the appellant's claims pursuant to the arbitration provision in the September 17, 1998, resolution. The record does not indicate that the motion was ever ruled upon.
On August 27, 1999, the trial court took up and heard the appellant's application for TRO. After a recess in the hearing, the parties advised the court that they had reached a written settlement agreement, denominated "Agreement for Restrictive Covenant (2978 Grand)" (the Agreement). However, the parties requested that the court retain jurisdiction of the case pending the effectuation of the Agreement. The court agreed to retain the case on its docket until October 15, 1999, at which time the case was to be dismissed, unless otherwise requested by one or both of the parties.
The Agreement provided that, although the respondent had agreed to sell the real property at 2978 Grand to Mike and Pamela Whitman, the respondent would not convey title until the respondent had submitted plans on all three lots to the appellant for review and approval as required by the September 17, 1998, resolution; the improvements on all three lots were completed in accordance with the approved plans; and the respondent had repaired or paid for any damages resulting from its construction activities on the three lots. The Agreement also provided that, upon the respondent's compliance with these requirements, the appellant would execute a certificate of completion that such construction and repairs had been completed in accordance with the plans. The Agreement further provided that the parties, prior to instituting a court proceeding, would attempt to resolve any dispute regarding the appellant's issuance of the certificate of compliance through non-binding mediation.
On October 12, 1999, three days before the deadline established by the trial court for dismissing the pending case unless otherwise requested by one or both of the parties, the appellant filed a motion to retain the case on the docket, alleging that, although some progress had been made toward effectuating the Agreement, there continued to be conflict between the parties concerning the respondent's construction activities that "may require prompt referral to this Court for guidance or determination." The record does not indicate that the appellant's motion was ever ruled upon, but in any event, the record indicates that the case was not dismissed on October 15,1999.
In November of 1999, as a result of the mediation provision in the Agreement, the parties engaged in four days of mediation that resulted in a "Memorandum of Agreement" (the Memorandum) that was signed by the appellant on November 11, 1999, and by the respondent on November 12, *90 1999. The Memorandum provided that the respondent would complete grading, irrigation, and landscaping requirements; as well as complete trim, column, and deck work; replace a driveway; and finish work on a circle drive light, a circle drive retaining wall, and a sidewalk entry. The Memorandum further provided that, if such work was completed as required, the appellant would then issue a certificate of compliance releasing its restrictive covenant on 2978 Grand.
On January 19, 2000, the respondent filed a motion with the trial court to enforce the Memorandum. The respondent alleged, in its motion, that the appellant had failed to perform its obligations under the Memorandum by refusing to issue the certificate of compliance that would release its restrictive covenant on 2978 Grand. The respondent further alleged that the appellant's failure to issue the certificate of compliance and release the restrictive covenant prevented it from closing with the Whitmans on the residence.
On January 21, 2000, the trial court held an evidentiary hearing on the respondent's motion to enforce the Memorandum. On that same date, the trial court entered its judgment ordering the parties to fully perform under that agreement, finding that the Memorandum was a valid and binding contract on the parties.
On February 4, 2000, the respondent filed a motion to hold the appellant in contempt, alleging that the respondent had performed all acts required by the Memorandum, but that the appellant still refused to issue the certificate of compliance. The motion further alleged that, because the certificate had not been issued, the respondent could not close on the residence at 2978 Grand, and as a result, the respondent was incurring damages in the amount of $42.51 per day in interest on a construction loan, as well as attorney's fees and expenses.
On June 5, 2000, the trial court took up and heard the respondent's motion for contempt, and entered a judgment on June 23, 2000, finding that the respondent had substantially complied with the January 21, 2000, judgment of the court and the Memorandum, but that the appellant had knowingly and voluntarily failed to comply therewith by failing to issue the certificate of compliance on 2978 Grand, by failing to release the lien thereon and by continuously refusing to comply with the judgment enforcing the Memorandum, and that such conduct was intentional and constituted contempt of court. To purge itself of contempt, the trial court ordered that:
[W]ithin ten days of the date of this Order UHHA shall complete the following:
1. UHHA pay RET $4,756.53, the interest incurred by RET on the construction loans on the property at 2978 Grand,
2. UHAA [sic] pay RET $3609.76, for all costs and expenses incurred as part of this cause,
3. UHHA release the restrictive covenant on 2978 Grand Avenue, Jackson County, Missouri,
4. UHHA issue the Certificate of Compliance on 2978 Grand,
5. UHHA release the lien on the property at 2978 Grand, for any unpaid UHHA monthly dues owed by Michael and Paula Whitman,
6. UHHA immediately instruct all UHHA service providers to reinstate all services to the property at 2978 Grand.
On August 2, 2000, the appellant appealed to this court from the June 23, 2000, judgment of contempt. The appeal, WD 58870, was dismissed on August 31, 2000, on the *91 basis that the judgment appealed from was neither final nor otherwise appealable.
On September 12, 2000, the respondent filed an application for a writ of garnishment to collect on the June 23, 2000, judgment of contempt. On September 25, 2000, a writ of garnishment was issued for the amounts awarded in the contempt judgment, plus costs, for a total of $8,510.29. On October 5, 2000, the appellant filed a motion to quash the writ. The respondent filed its suggestions in opposition to the appellant's motion on or around October 18, 2000. In its suggestions, the respondent argued that the court should impose a per diem fine against the appellant for its continued failure to comply with previous court orders. On November 21, 2000, the trial court overruled the appellant's motion to quash the writ, and imposed a $150 per diem fine against the appellant, finding that:
a. UHHA has failed and refused to pay RET $4,756.53, the interest incurred by RET on the construction loans on the property at 2978 Grand,
b. UHAA [sic] has failed and refused to pay RET $3609.76, for all costs and expenses incurred as part of this cause,
c. UHHA has failed and refused to release the restrictive covenant on 2978 Grand ...
d. UHHA has failed and refused to issue the Certificate of Compliance on 2978 Grand, and
e. UHHA has failed and refused to release the lien on the property at 2978 Grand, for any unpaid UHHA monthly dues owed by Michael and Paula Whitman, which are being assessed to RET.
The court further ordered that the $150 per diem fine would continue until the appellant had (1) released the restrictive covenant on 2978 Grand, (2) issued the certificate of compliance on 2978 Grand, and (3) released the lien on the property at 2978 Grand.
On December 1, 2000, the appellant appealed to this court from the June 23, 2000, judgment of contempt, the November 21, 2000, order imposing a $150 per diem fine, and the November 21, 2000, order overruling the motion to quash garnishment. The appeal, WD 59328, was dismissed on January 5, 2001, on the ground that it was taken from a judgment that was neither final nor otherwise appealable.
Following the payout of the garnished funds as to the June 23, 2000, judgment of contempt, there remained three acts for the appellant to purge itself of contempt: (1) release the restrictive covenant on 2978 Grand, (2) issue the certificate of compliance on 2978 Grand, and (3) release the lien on the property at 2978 Grand. Those acts were performed by the appellant on May 18, 2001.
On May 24, 2001, the respondent sought a writ of garnishment in the amount of $26,700 to collect the $150 per diem fine which had accrued from November 21, 2000, through May 18, 2001, the date of purgation. The writ was issued on June 6, 2001.
This appeal followed, in which the appellant raises six claims for relief, each of which relates to the propriety of the contempt orders of the trial court. In that regard, the respondent contends that we lack jurisdiction to hear the appeal because the appellant purged itself of contempt on May 18, 2001, thereby rendering the case moot and unappealable. We agree.[1]
*92 Appellate Jurisdiction
Before addressing an appeal on the merits, this court has a duty to sua sponte determine its jurisdiction. Cook v. Jones, 887 S.W.2d 740, 741 (Mo.App.1994). In this case, we conclude that the case is moot and unappealable, as the appellant has performed the acts required by the trial court to purge itself of contempt.
Civil contempt is a remedial action, coercive in nature, the purpose of which is to enforce a remedy ordered in a previous adjudication of the parties' claims. McCubbin v. Taylor, 5 S.W.3d 202, 210 (Mo.App.1999). Because the purpose of a civil contempt order is to induce the compliance with a prior judgment, the contemnor always has the power to terminate the coercive sanctions imposed by complying with the judgment of the court. Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976). Accordingly, a party found in contempt has two options. First, the contemnor may comply with the court's order, thereby purging himself of contempt. Wrob v. Watlow Elec. Mfg. Co., 878 S.W.2d 63, 65 (Mo.App.1994). If the contemnor chooses this option, the case becomes moot and unappealable. Id. Second, the contemnor may appeal the judgment of contempt. Id. However, the judgment of civil contempt does not become a final judgment for the purposes of appeal until that judgment is enforced by actual incarceration or imposition of a per diem fine. Crenshaw v. Refuse Serv., Inc., 908 S.W.2d 845, 846 (Mo.App.1995). When a per diem fine is ordered as the method to coerce the compliance of a party found in civil contempt, the judgment of contempt is deemed enforced when the party asking for contempt enforces the fine by executing thereon. 21 W., Inc. v. Meadowgreen Trails, Inc., 913 S.W.2d 858, 883 (Mo.App. 1995); City of Pagedale v. Taylor, 790 S.W.2d 516, 518 (Mo.App.1990).
Applying the foregoing principles to our case, the trial court's June 23, 2000, judgment of contempt did not become a final judgment for the purposes of appeal until the per diem fine imposed to coerce compliance with that order was enforced by execution, which occurred on June 6, 2001. 21 W., Inc., 913 S.W.2d at 883; City of Pagedale, 790 S.W.2d at 518. Thus, the judgment remained interlocutory until May 18, 2001, when, by performing the acts which the trial court identified in its November 21, 2000, judgment as the only remaining acts required to purge itself of contempt, the appellant rendered the June 23, 2000, judgment of contempt moot and unappealable. Wrob, 878 S.W.2d at 65.
The appellant concedes, in its brief, that it performed the acts which the trial court identified in its November 21, 2000, judgment as the only acts required to purge itself of contempt. Nevertheless, the appellant argues that these acts of purgation did not render its appeal moot because the acts were involuntary, insofar as they were coerced by the garnishment of funds subsequent to the July 23, 2000, judgment of contempt and the November 21, 2000, imposition of the per diem fine. In support of this contention, the appellant cites Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 638 (Mo.App.1998) which held that the payment of a judgment in a case adjudicating the question of a corporation's exemption from taxation was involuntary when made after execution or writ of garnishment, because it was presumed to have been made as a result of legal coercion, and thus did not render an appeal of that judgment moot. However, Boley is distinguishable from the instant case in that Boley did not involve a payment made to *93 purge oneself of civil contempt, and the rationale for the rule articulated therein does not apply to judgments of civil contempt, as such a judgment is coercive by its very nature. McCubbin, 5 S.W.3d at 210.
Conclusion
The appeal is dismissed for lack of appellate jurisdiction.
ELLIS, P.J., and HOWARD, J., concur.
NOTES
[1] The appellant has also filed a motion, which we have taken with the case, to join additional parties or, in the alternative, strike the respondent's brief. In light of our disposition of the appeal, that motion is now moot. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/740319/ | 112 F.3d 1171
U.S.v.Rubio-Rojas*
NO. 95-5573
United States Court of Appeals,Eleventh Circuit.
Apr 01, 1997
Appeal From: S.D.Fla. ,No.9500545CRLCN
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/415486/ | 702 F.2d 333
B.V. BUREAU WIJSMULLER, Plaintiff-Appellant-Cross-Appellee,v.The UNITED STATES of America, Defendant-Appellee-Cross-Appellant.
Nos. 69, 133, Dockets 82-6050, 82-6090.
United States Court of Appeals,Second Circuit.
Argued Sept. 2, 1982.Decided March 2, 1983.
Richard M. Ziccardi, New York City (Gordon W. Paulsen and Curtis E. Pew, Haight, Gardner, Poor & Havens, New York City, of counsel), for plaintiff-appellant-cross-appellee.
Janis G. Schulmeisters, New York City (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., and John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, of counsel), for defendant-appellee-cross-appellant.
Before LUMBARD, CARDAMONE and WINTER, Circuit Judges.
CARDAMONE, Circuit Judge:
The law of salvage is a concept with roots deeply embedded in antiquity. We are called upon to apply this old and venerable law to a case involving modern shipping. On this appeal we review the propriety of a $500,000 award for salvage services to which the United States District Court for the Southern District of New York (Goettel, J.) added $135,000 as an "equitable uplift." Our reasons for affirming follow.
FACTS
1
In August 1977 the M.V. PIONEER COMMANDER, a vessel privately owned by United States Lines, Inc., set sail from Bremerhaven, West Germany for Bayonne, New Jersey. Aboard the vessel were 757 tons of military cargo owned by the defendant United States of America. The value of this cargo and the ship's bunkers was fixed by the district court at $6,480,925.
2
On August 13, 1977 the ship ran aground on a rocky ledge off the northern coast of Scotland. Although two of the ship's bottom plates were cracked, its watertight integrity was unimpaired. Attempts to extricate itself under its own power and with local help were unavailing. Realizing the gravity of the situation, the captain radioed a request for professional salvage assistance; the plaintiff, B.V. Bureau Wijsmuller (Wijsmuller) a professional salvor from the Netherlands, responded. Upon receipt of the call, Wijsmuller immediately dispatched its tug TYPHOON to the scene.
3
Radio contact was established between the TYPHOON and the grounded ship. The master of the PIONEER COMMANDER asked for a lightering craft in order to discharge the ship's bunkers. This message, together with a request that a salvage officer be flown in, was passed on to Wijsmuller's main office by the master of the TYPHOON.
4
Three hours later the tug arrived at the scene. Before salvage operations began Captain Scott, master of the PIONEER COMMANDER, entered into an agreement with Wijsmuller under which Wijsmuller would use its best efforts to salve the vessel. The contract--"Lloyd's Standard Form of Salvage Agreement--No Cure-No Pay"--provided that if successful in its efforts to refloat the casualty, Wijsmuller would be paid a salvage award in an amount to be later determined; if unsuccessful, Wijsmuller would receive no payment. Additionally, the contract contained an "equitable uplift" provision intended to protect the salvor from the effects of currency fluctuations and inflation.
5
Salvage operations commenced the same day. Using the tug's small boat, soundings were taken all around the PIONEER COMMANDER. Various specifications, particularly the ship's departure drafts, were provided by Captain Scott. Unfortunately, because these drafts were taken when the ship was in brackish water, they were inaccurate for seawater.
6
The following day divers surveyed the situation underwater. The vessel's bow and stern hung over deep water so that the TYPHOON could navigate up to and alongside her. Later that day a salvage officer, Captain Hopman, flew in from Holland to take command of the salvage operation. Upon boarding the stranded vessel, Captain Hopman observed the considerable effect of the strong tidal currents. Moreover, the spring tide which intensified those currents was to peak in only four days, on August 18. Unpredictable weather capable of sudden deterioration greatly concerned Captain Hopman. He suggested that the vessel be ballasted down so that she would hold her present position. As a further precaution he decided to lay out beaching gear from the stern of the PIONEER COMMANDER. In this way she could swing freely and avoid a rock formation on her starboard side, if she came afloat.
7
Further calculations indicated that the vessel was held fast about three feet below her mean average draft and that she would have to be lightened to achieve flotation. On the 15th a sounding survey was carried out aft of the ship in order to establish the best route by which she could be refloated. An unsuccessful attempt was made by the TYPHOON to pull the vessel off the strand. The beaching gear was rigged using the PIONEER COMMANDER's spare anchor which was moved to her stern and then taken on board the salvage tug. This work was not completed until August 17.
8
Because of the possibility of an oil spill, the tanker MARE SILENTIUM, which had been chartered for the purpose of emptying the PIONEER COMMANDER's bunkers, came alongside the casualty on the afternoon of August 17. During a nighttime pumping operation, the MARE SILENTIUM's bridge and forecastle were damaged when powerful waves, induced by the ever-increasing current caused her to roll against the PIONEER COMMANDER. The pumping operation was soon discontinued as the sea grew steadily rougher. In disengaging from the stranded vessel, the tanker sustained further damage by again rolling into the PIONEER COMMANDER.
9
On August 18 the spring tide peaked. Shocks were felt running through the vessel and a slight change in her heading occurred. These vibrations continued until the tide ebbed. Owing to the heavy damage sustained the previous day, the master of the MARE SILENTIUM agreed to resume defueling only after Wijsmuller promised to indemnify her owners for any damage not covered by insurance. Because the mooring ropes and bunker hose parted, defueling could not begin, and again the TYPHOON had to tow the tanker to safety.
10
A decision had been made previously to attempt refloatation on August 19. To this end deballasting had begun on the 16th. The deballasting process was painfully slow because the fuel which was being removed to lighten the ship was unheated and, therefore, viscous. Only 310 tons of fuel had been removed when weather conditions halted the defueling operation.
11
At 0150 hours on August 20 a substantial vibration shook the PIONEER COMMANDER, altering her heading 20 degrees to starboard. When this occurred the PIONEER COMMANDER was ballasted down, but the TYPHOON was not secured to her and the beaching gear was not tensioned. As the change in the heading became more pronounced, Captain Scott had Captain Hopman awakened. The beaching gear was immediately tensioned and the TYPHOON came alongside the PIONEER COMMANDER. A line was passed and pulling commenced at 0235 hours. The beaching gear was engaged in conjunction with the PIONEER COMMANDER's capstan, and the vessel's engines were started simultaneously. Just short of an hour later the PIONEER COMMANDER floated free. The fast release hook of the beaching gear supplied by Wijsmuller jammed; the line had to be cut and the anchor was lost. The main engines of the casualty, which had been running full astern, were immediately stopped. The TYPHOON then towed the PIONEER COMMANDER into deep water and escorted it to Scapa Flow.
12
On August 23, again escorted by the TYPHOON, the PIONEER COMMANDER sailed for Newcastle, England. During the passage the TYPHOON, which accompanied the vessel at the request of United States Line, Inc., provided no further assistance. On August 24 the salvage services were completed upon the issuance of a Certificate of Delivery.
13
Pursuant to the salvage agreement entered into between Wijsmuller and the master of the PIONEER COMMANDER, an arbitration was held in London. A salvage award was made against the United States Lines as owner of the vessel and against the United States as owner of the cargo and bunkers. Invoking the doctrine of sovereign immunity, the United States refused to participate in that arbitration and has since refused to pay its share of the arbitrator's award.
14
The district court found that the refloatation of the vessel on August 20--although a surprise to the salvage officer--occurred because of its reballasting on August 18 and 19 which adjusted its trim aft. With the vessel weighted heavily aft, the swift current and large swells at night's high tide apparently caused it to pivot and move astern. The trial court found that Wijsmuller's services had been rendered in a professional manner and that the salvage plan would have been effective had the difficulties recited in removing the bunkers not been encountered. It also found that the laying out of the beaching gear and the tug's assistance when the vessel came alive were important to safe removal from the strand.
15
In making its findings the district court placed the value of Wijsmuller's salvage services at $500,000. It added an "equitable uplift" factor of 27 percent to the award for a total of $635,000, together with four percent interest. In making this addition to the award, the trial court cited its broad discretion in fixing salvage awards and the delay incurred by Wijsmuller in recovering this award from the United States. Both parties appeal, contesting the amount of the award. Wijsmuller claims that the court below erred by improperly applying the relevant salvage criteria and by refusing to reopen the trial in order to admit new evidence. The United States argues that the imposition of the "equitable uplift" exceeded the district court's authority.
DISCUSSION
16
* Unknown to the common law, the law of salvage occupies a unique position in the Anglo-American legal system. In Mason v. The Ship Blaireau, 6 U.S. (2 Cranch) 240, 2 L.Ed. 266 (1804), Chief Justice Marshall commented that when property on land exposed to grave peril is saved by a volunteer, no remuneration is given. "Let precisely the same service, at precisely the same hazard, [b]e rendered at sea, and a very ample reward will be bestowed in the courts of justice." Id. at 266. See Wright v. The Felix, 62 F. 620, 621 (E.D.Pa.1894).
17
The history of salvage law dates back to the earliest civilizations. Although Phoenicia, Carthage and Athens were distinguished for their navigation and commerce, none of them founded an authoritative digest of maritime law. Rhodes, the cradle of nautical jurisprudence, was sovereign of the seas about 900 years before the Christian era and it was the Rhodians who formulated the first maritime code. The Romans who conquered Rhodes preserved these laws. Emperor Augustus first sanctioned the use of Rhodian laws to decide maritime cases in Rome. The Romans added the notion of rewarding a volunteer who preserved or improved the property of another, even though such act was without the owner's knowledge or consent. This concept was carried under the title "Rhodian Code" into the marine law of various European countries. Anglo-American jurisprudence adopted this equitable doctrine from the Romans, providing for a reward to the salvor volunteer for his efforts based on the circumstances of the case, and proportionate to the dangers involved. The Felix, 62 F. at 621-622; The "Calypso", 166 Eng.Rep. 221, 224 (1828); see 3A M. Norris, Benedict on Admiralty Secs. 5-11 (6th ed. 1980) (Benedict ); 3 Kent's Commentaries 1-5 (12th ed. 1873).
18
The law of salvage originated to preserve property and promote commerce.1 See Seven Coal Barges, 21 F.Cas. 1096, 1097 (C.C.D.Ind.1870) (No. 12,677) ("The very object of the law of salvage is to promote commerce and trade, and the general interests of the country, by preventing the destruction of property ...."); Palaez, Salvage--A New Look at an Old Concept, 7 J.Mar.L. & Com. 505 (1976). These remain its most compelling goals. In order to accomplish these purposes courts of admiralty do not view salvage awards therefore "merely as pay, on the principal of a quantum meruit, or as a remuneration pro opere et labore, but as a reward given for perilous services, voluntarily rendered, and as an inducement to seamen and others to embark in such undertakings to save life and property." The Blackwall, 77 U.S. (10 Wall.) 1, 14, 19 L.Ed. 870 (1870); see Benedict, supra, Sec. 235. For these reasons courts sitting in admiralty are liberal in fixing awards. The Felix, 62 F. at 622.
II
19
Salvage, simply stated, is the "service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger either present or to be reasonably apprehended."2 McConnochie v. Kerr, 9 F. 50, 53 (S.D.N.Y.1881), modified sub nom. McConnochin v. Kerr, 15 F. 545 (C.C.S.D.N.Y.1883); see The Neshaminy, 228 F. 285, 288 (3d Cir.1915); Phelan v. Minges, 170 F.Supp. 826, 828 (D.Mass.1959). To determine that a salvage service (as distinct, for example, from a towing service) was performed, a court must find three specific elements: marine peril; service voluntarily rendered, not required by duty or contract; and success in whole or in part, with the services rendered having contributed to such success. The "Sabine", 101 U.S. 384, 25 L.Ed. 982 (1880); see Elrod v. Luckenbach S.S. Co., 62 F.Supp. 935, 936 (S.D.N.Y.1945).
20
Peril necessary to give rise to a claim for salvage must be present and impending, although it need not be immediate or absolute. "A situation of actual apprehension, though not of actual danger, is sufficient." The Plymouth Rock, 9 F. 413, 416 (S.D.N.Y.1881); see The Saragossa, 21 F.Cas. 425 (S.D.N.Y.1867) (Nos. 12,334 & 12,335). "[R]easonable apprehension of injury or destruction if the services are not rendered" is the standard by which peril is adjudged to be present. Phelan, 170 F.Supp. at 828; see Benedict, supra, Secs. 63, 65. Absent danger, any services rendered a vessel cannot properly be called salvage and a person rendering such unnecessary service is not styled a salvor but "an opportunist or an officious intermeddler," Phelan, 170 F.Supp. at 828.
21
A vessel stranded upon rocks clearly has a reasonable apprehension of injury. In The Santa Rosa, 295 F. 350 (E.D.S.C.1924), the distressed vessel ran aground off the coast of South Carolina. Although there was no immediate danger, the ship was exposed to "all the possibilities, if not probabilities," of peril faced by a grounded vessel. Id. at 354. In The M.B. Stetson, 16 F.Cas. 1272, 1274 (D.Mass.1866) (No. 9,363), the court stated, "[s]peaking generally, it may be said, that the mere fact that a vessel is aground is enough to show that she is in a situation to have a salvage service rendered her." See The Athenian, 3 F. 248, 250 (E.D.Mich.1877); The James T. Abbott, 13 F.Cas. 340 (D.Mass.1864) (No. 7,202); cf. La Rue v. United Fruit Co., 181 F.2d 895 (4th Cir.1950) (service rendered to a vessel grounded in soft mud is not salvage).
22
The second element is voluntary service. Voluntary service, the sine qua non of marine salvage, is rendered in the absence of a legal duty or obligation. See The Clarita and The Clara, 90 U.S. (23 Wall.) 1, 16-17, 23 L.Ed. 146, 150 (1875); Elrod, 62 F.Supp. at 936. Whatever motive impels the true volunteer, be it monetary gain, humanitarian purposes or merely error, it will not detract from the status accorded him by law. Benedict, supra, Sec. 68 at 6-2. Thus professional salvors--who perform their services for monetary gain--may claim salvage awards. The Camanche, 75 U.S. (8 Wall.) 448, 19 L.Ed. 397 (1869).
23
The final component is success in whole or in part with the service rendered by the salvor having contributed to the ultimate success. Lack of success precludes the granting of a salvage award.3 The Blackwall, 77 U.S. at 12; see The Felix, 62 F. at 622; Benedict, supra, Sec. 88. The underlying rationale for this rule is that the purpose of engaging in a salvage operation is to render a beneficial service to the owner or vessel. When no benefit is conferred, the salvor is precluded from obtaining a reward. The Enos Soule, 95 F. 483, 484-85 (S.D.N.Y.1899).
24
Wijsmuller clearly performed a salvage service. As a voluntary--although professional--salvor, Wijsmuller professionally conducted the salvage operation and ultimately succeeded in extricating the PIONEER COMMANDER from its peril. A vessel stranded upon a rocky ledge is at the mercy of the wind and the water. The PIONEER COMMANDER and her salvor were confronted with a heaving sea, an onrushing spring tide, and the likelihood in this North Sea location that the weather might suddenly worsen. If and when this occurred large swells would boil into a raging sea and the stricken ship might possibly be lost. A potential loss of the military cargo aboard the ship was not insignificant and the discharge of the ship's bunkers into the ocean could have had severe ecological consequences to a nearby bird sanctuary. The request of United Kingdom environmental authorities that remedial action be taken to prevent such an oil spill surely should have been a matter of concern to the defendant, United States, as owner of the oil aboard the stricken ship. Unquestionably, in this case there was marine peril.
III
25
There remains the propriety of the award to Wijsmuller in the amount of $500,000 for the salvage services it rendered. The Blackwall factors are those traditionally considered by a court when it makes a salvage award. 77 U.S. at 13-14. A leading commentator has rearranged them in descending order of importance as follows: (1) degree of danger from which the property was rescued; (2) value of the property saved; (3) risk incurred in saving the property from the impending peril; (4) promptitude and skill displayed; (5) value of the property employed by the salvors and the danger to which it was exposed; and (6) labor expended in rendering the salvage service. Benedict, supra, Sec. 237. We adopt this view.
26
Other rules, which provide a broad framework within which to apply the Blackwall factors, guide a court in fashioning a salvage award. First, the peculiar circumstances of each case must be considered. The "intelligent guess" which an admiralty court must make, The Rescue v. The George B. Roberts, 64 F. 139, 140 (E.D.Pa.1894), can seldom be guided by dependable precedent since salvage cases are rarely alike, Benedict, supra, Sec. 239. Also, it has generally been agreed that fixed percentages of value and comparisons to percentages from previous awards should play no role in the salvage award. See The High Cliff, 271 F. 202, 203 (2d Cir.1921) (fixed percentage); The Steam-Ship Samana v. The Erin, 36 F. 712, 714 (E.D.N.Y.1888)4 (comparison of percentages); see generally G. Gilmore & C. Black, Jr., The Law of Admiralty Sec. 8-10 (2d ed. 1975). Instead, the equitable method of fixing a just award is to consider all of the Blackwall factors. Finally, a professional salvor is entitled to a more liberal award than a chance salvor. The Lamington, 86 F. 675, 684 (2d Cir.1898); Fred Devine v. United Transportation Co., 1957 A.M.C. 175, 181 (W.D.Wash.1956). This view results from the realization that professional salvors possess unique skills and must maintain expensive equipment particularly suited for dangerous work. See Merritt & Chapman Derrick & Wrecking Co. v. United States (The El Sol), 1927 A.M.C. 708, 710 (Ct.Cl.1927).
27
Turning to the award made in the present case, the most significant factor is the degree of danger from which the property was rescued. Here the vessel was clearly in a position of peril. Fortunately, the weather was good during the time of the salvage operation and for several more days. The "peril which can be properly considered in determining a salvage award is not to be estimated in the light of subsequent or contingent events, but of the facts which surround the salvage service at the time that it is rendered," Benedict, supra, Sec. 249 (footnote omitted); see The Neshaminy, 228 F. at 289; The Felix, 62 F. at 621.
28
As for the value of the property salved only the value of the cargo and bunkers is involved in this litigation. While only a rough approximation of value is necessary to make a salvage award, Rand v. Lockwood, 16 F.2d 757, 759-60 (4th Cir.1927), the trial court went further and calculated the value of the ship's cargo and bunkers at precisely $6,480,925.
29
The third element--the "risk or danger to which salvors are exposed [--] should be considered in the light of the hazards which are normally encountered by men who go to sea. It is risks out of the ordinary for men of that calling which are recognized and liberally rewarded in salvage cases." Benedict, supra, Sec. 264 at 21-15 (footnote omitted). The district court's observation that there did not appear to be any danger to the lives of the salvors or their property is supported by the record and was properly considered. See The Bretanier, 267 F. 178, 179 (4th Cir.1920).
30
The salvor's promptitude and skill are next considered. Salvors who show zeal and energy in their work will be rewarded with an enhanced recompense; salvors who do not, run the risk of a diminished award. The proficiency required to be exhibited by a salvor is that of ordinary skill in the pursuit of a salvage undertaking. Extraordinary skill and careful preparation may cause the court to enhance the award. The court below concluded that plaintiff was entitled to a liberal award "but not as great as that to which it would have been entitled had the vessel been refloated pursuant to the salvage plan." According to Wijsmuller this is an erroneous statement. The district court concluded that plaintiff was entitled to a liberal award 'but not as great as that to which it would have been entitled had the vessel been refloated according to plan.' Wijsmuller argues that the successful salvage operation ordinarily requires some good luck and that the district court's statement erroneously implies that an award may be reduced simply because the salvor has benefited from good fortune. We disagree with Wijsmuller's interpretation of the court's conclusion. In light of all the other findings, we believe that the district court was here referring to the fact that had Wijsmuller been required to refloat the M.V. PIONEER COMMANDER according to plan, it would have had to carry out the risky and costly task of unloading the oil on the stranded vessel on to the Mare Silentium. Previous attempts to unload the oil in the rough sea had caused considerable damage to the Mare Silentium. Had Wijsmuller incurred this cost and engaged in this risky activity, it would have been entitled to an even more generous award, in accordance with the third, fourth and sixth factors in the Blackwall analysis, enumerated above. Given this understanding of the district court's conclusion the statement that Wijsmuller was entitled to less because it did not complete the salvage plan is entirely reasonable.
31
The value of the salving property did not appear to play a significant role in the district court's award. We note that while the TYPHOON is an extraordinarily powerful tug and obviously a valuable piece of property, it was not exposed to great danger during the salvage operation. The final element, time and labor expended by the salvor, were found by the district court to be approximately $100,000.
32
In fixing its award the trial court appropriately considered the broad guidelines. Wijsmuller's status as a professional salvor was noted, the award was not improperly made on a fixed percentage basis and the court's "intelligent guess" appears fair.
IV
33
After reviewing the Blackwall factors the trial court awarded $500,000. Applying an "equitable uplift" factor of 27 percent, the court then raised the total award to $635,000. In its cross-appeal the government claims that this "equitable uplift" was erroneous and argues that 46 U.S.C. Sec. 743 (1976) is the sole remedy for the effect of inflation. Section 743 provides that a decree may include "interest at a rate of 4 percentum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based." Wijsmuller concedes, as it must, that the United States was not bound by the Lloyd's Standard Form of Salvage Agreement between Wijsmuller and the owner of the vessel because the government was not a party to it. Because the government was not subject to the "equitable uplift" provision of the Lloyd's agreement, the government contends that the court exceeded its authority by taking into consideration the effects of inflation.
34
We hold that it was proper to apply an "equitable uplift" factor to Wijsmuller's award taking inflation as a factor into account. Because the Suits of Admiralty Act provides for prejudgment interest computed at the paltry rate of 4 percent, 46 U.S.C. Sec. 746, parties seeking an admiralty award from the United States have less protection against inflation than parties seeking an award from a private party, compare United States v. Isthmian Steamship Co., 359 U.S. 314, 79 S.Ct. 857, 3 L.Ed.2d 845 (1959) with Independent Bulk Transfer v. Vessel "Morania Abaco", 676 F.2d 23 (2d Cir.1982).
35
Plainly, we have no power to invent remedies to relieve private parties from the burdens imposed by the doctrine of sovereign immunity. Unless specifically authorized by statute, Wijsmuller has no right to an award from the United States, even if its services saved American taxpayers money. The United States has absolute power to dictate the sole conditions under which Wijsmuller may bring suit against it. It has done so in the Suits of Admiralty Act, 46 U.S.C. Sec. 741-752. Nonetheless, that Act does contemplate application of the general principles of admiralty law in cases involving the United States where no contrary rule is specified. While authority is sparse, courts have in the past taken inflation into account in determining a salvage award involving private parties, Waterman S.S. Corp. v. Dean, 171 F.2d 408 (4th Cir.1948) cert. denied, 337 U.S. 924, 69 S.Ct. 1171, 93 L.Ed. 1732 (1949), and their action has been favorably viewed by distinguished commentators, Gilmore and Black, The Law of Admiralty 564. We conclude therefore that the District Court's use of the Consumer Price Index in determining the amount of the award an appropriate exercise of its discretion.
V
36
Plaintiff's remaining contention warrants little discussion. Wijsmuller argues that the district court should have received into evidence what it claims is an admission by a party opponent. Whether the statement can be so categorized is irrelevant since it appears from the district court's memorandum that the trial had been concluded and plaintiff's motion to admit the evidence was in reality merely one to reopen pursuant to Federal Rule of Civil Procedure 59(a)(2).5 Such a motion is addressed to the sound discretion of the district court. Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 331-32, 91 S.Ct. 795, 802-03, 28 L.Ed.2d 77 (1970); 6A J. Moore, Moore's Federal Practice p 59.04, at 59-31 (2d ed. 1979). Finding the statement to be a "generalized opinion having no direct bearing on this case," the district court correctly refused to grant the motion.
37
Generally an appellate court will not reverse a salvage award unless the district court yielded to an erroneous principle, plainly misapprehended the facts, The Joseph F. Clinton, 250 F. 977, 979 (2d Cir.1918), or granted an award that was clearly inadequate or unreasonably excessive. The High Cliff, 271 F. at 203. Finding no such errors in the award, the judgment of $635,000 for salvage services rendered by plaintiff Wijsmuller to defendant United States must be affirmed.
1
While the wish to protect human life may have played a role in the historical development of salvage law, it was not the prime motivating factor. The Brussels Convention of 1910, which conformed international law to that generally applicable in the United States, G. Gilmore & C. Black, Jr., The Law of Admiralty, Sec. 8-1, at 534 (2d ed. 1975) expressly provided that no remuneration was due from people whose lives were saved. Two years later the United States enacted the Salvage Act which rewarded salvors who saved human life. See 46 U.S.C. Sec. 729 (1976). See generally Note, What the Boat Owner Should Know About Salvage Law, 37 Temple L.Q. 506, 508 (1964)
2
For other definitions see The "Sabine", 101 U.S. 384, 25 L.Ed. 982 (1880); The Clarita and The Clara, 90 U.S. (23 Wall.) 1, 23 L.Ed. 146, 150 (1875); The Blackwall, 77 U.S. (10 Wall.) 1, 19 L.Ed. 870 (1870); The Catalina, 105 F. 633 (5th Cir.1900); Squires v. The Ionian Leader, 100 F.Supp. 829 (D.N.J.1951)
3
With a recent exception for the salvage of tankers, Clause 1(a) of the "Lloyd's Standard Form of Salvage Agreement" embodies the concept of no cure-no pay
4
"[N]o fixed rule for determining the amount of salvage awards can be based on a comparison of percentages. Where the value is large, the percentage may for that reason be less. Where the value saved is small, the percentage must be higher, in order to give adequate reward." The Steam-Ship Samana v. The Erin, 36 F. 712, 714 (E.D.N.Y.1888)
5
With exceptions not here relevant, the Federal Rules of Civil Procedure apply to suits in admiralty. In re Northern Transatlantic Carriers Corp., 423 F.2d 139, 140 (1st Cir.1970); Craig v. United States, 413 F.2d 854, 856 n. 2 (9th Cir.1969); see Fed.R.Civ.P. 81(a)(1) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/415183/ | 701 F.2d 221
226 U.S.App.D.C. 210
Carneyv.U. S.
82-1279
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT
1/6/83
1
D.C.D.C.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2154738/ | 963 A.2d 564 (2008)
COM.
v.
DECKER.
No. 268 WDA 2008.
Superior Court of Pennsylvania.
September 8, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/800722/ | FILED
NOT FOR PUBLICATION MAY 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DOLATAO SALDANA ZAMBRANO, No. 11-55693
Petitioner - Appellee, D.C. No. 5:06-cv-00696-PSG-
MLG
v.
K. PROSPER, Warden, MEMORANDUM *
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted May 10, 2012
Pasadena, California
Before: PREGERSON, GRABER, and BERZON, Circuit Judges.
Respondent Warden K. Prosper appeals from the district court’s grant of a
conditional writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to Petitioner
Dolatao Saldana Zambrano. On de novo review, Stanley v. Schriro, 598 F.3d 612,
617 (9th Cir. 2010), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Because this petition was filed after April 24, 1996, the Antiterrorism and
Effective Death Penalty Act (AEDPA) of 1996 governs our review. AEDPA
imposes a "highly deferential" standard of review and "demands that state-court
decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19,
24 (2002) (per curiam). Under AEDPA, we may not grant federal habeas relief
unless (as relevant here) the state court’s decision involved an unreasonable
application of federal law as clearly established in holdings of the Supreme Court.
Harrington v. Richter, 131 S. Ct. 770, 785 (2011).1
The parties, and we, agree that the key Supreme Court precedent is Darden
v. Wainwright, 477 U.S. 168 (1986). There, the Supreme Court set out the
standard for deciding when prosecutorial misconduct, such as an improper closing
argument, constitutes a due process violation.
The facts here are highly unusual. Petitioner testified that he did not sell a
small amount of cocaine as charged. Two undercover police officers testified to
observing Petitioner pass a white rock-like substance to a woman who, in turn,
handed it to one of the officers. The only real issue for the jury was the credibility
of the officers versus the credibility of Petitioner. At least some evidence called
1
The relevant facts are undisputed, and Petitioner does not argue that the
state court’s decision was directly contrary to clearly established federal law.
2
the officers’ testimony into question; for example, one of them testified that the
woman spoke to Petitioner in English to arrange the transaction, but Petitioner does
not speak English.
On cross-examination, the prosecutor asked Petitioner repeatedly whether
the officers were lying. In addition, she asked him this question: "So what you
want this jury to believe is that Officer Dorsey and Corporal Escarpe are going to
risk their jobs and come in here and lie to them?" (Emphasis added.) The trial
court overruled Petitioner’s objection to that question. Later, the prosecutor called
one of the officers as a rebuttal witness. The rebuttal revolved entirely around how
long the officers had been in law enforcement and whether they would be fired if
they were to lie. Then, in her rebuttal closing argument, the prosecutor emphasized
that testimony, for example:
Corporal Escarpe told you he wasn’t lying. He has been an
officer for 16 years. If you think that those officers are going to come
in here and risk their careers over $20.00 of rock cocaine, then you
left your common sense outside the doors when you walked in here.
Because why would the officers do that? They would be fired. You
have 16 years of experience, and you are going to blow your career on
$20.00 of rock cocaine.
That line of questioning, and the argument that followed, invited the jury to
decide the case on an improper ground: personal sympathy for the police officers
who might lose their jobs if they were found to have lied. The Supreme Court has
3
emphasized that the effect of such behavior must be evaluated in the context of the
trial as a whole to determine whether the misconduct was so significant as to
render the trial fundamentally unfair. Greer v. Miller, 483 U.S. 756, 765–66
(1987). Examining the factors considered by the Court in Darden, 477 U.S. at 179,
182–83, every reasonable jurist would conclude that Petitioner’s due process rights
were violated. The misconduct was pervasive; the prosecutor purposefully elicited
inadmissible testimony;2 the trial court provided no curative instruction or
limitation and to the contrary, by overruling Petitioner’s objection, signaled to the
jury that the line of questioning was appropriate; the misconduct was not invited in
any way; defense counsel had no opportunity to respond to the prosecutor’s
improper argument because it occurred during rebuttal; and the only evidence of
Petitioner’s guilt was the officers’ testimony, so there could be no conviction
unless their testimony was believed—and the inadmissible material concerning
their job status was directed precisely at bolstering the officers’ credibility so that
their testimony would be believed.
We next turn to the issue of harm. On habeas review, constitutional errors
of the "trial type," including prosecutorial misconduct, warrant relief only if they
2
The California Court of Appeal characterized the testimony as irrelevant,
speculative, and inflammatory.
4
"had substantial and injurious effect or influence in determining the jury’s verdict."
Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993) (internal quotation marks
omitted). This analysis overlaps substantially with the factors that Darden requires
us to consider. Viewed through both lenses, the due process violation was highly
likely to have affected the verdict substantially. Every reasonable jurist would at
least have a grave doubt, O’Neal v. McAninch, 513 U.S. 432, 438 (1995), about
whether the misconduct substantially and injuriously influenced the verdict. The
only evidence linking Petitioner to the sale of cocaine was the testimony of the two
officers, and the believability of their version of events was the only important
contested issue at trial. Accordingly, the prosecutor’s misconduct was not
harmless.
AFFIRMED.
5 | 01-03-2023 | 05-22-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1030985/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7194
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY G. CRAIG, a/k/a Boot,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:02-cr-01358-HMH-8; 6:09-cv-70067-HMH)
Submitted: December 15, 2009 Decided: December 17, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Timothy G. Craig, Appellant Pro Se. Regan Alexandra Pendleton,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy G. Craig seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp.
2009) motion. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2006). A certificate of appealability will
not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Craig has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3022117/ | Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-26-2006
USA v. Clark
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2201
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2201
UNITED STATES OF AMERICA
v.
ANTOINE CLARK,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. 04-cr-00168
District Judge: The Honorable Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
March 30, 2006
Before: McKEE, BARRY and VAN ANTWERPEN, Circuit Judges
(Opinion Filed: April 26, 2006)
OPINION
BARRY, Circuit Judge
Appellant Antoine Clark appeals the sentence imposed on his plea of guilty
pursuant to a plea agreement. We will dismiss the appeal for lack of jurisdiction.
I.
Pittsburgh Housing Authority police officers arrested Clark on May 5, 2004. He
was charged with aggravated assault, resisting arrest, recklessly endangering another
person, violation of the Uniform Firearms Act, and possession with intent to deliver.1 He
was later charged in federal court with possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g) and 924(a)(2).
Clark’s counsel and an Assistant United States Attorney (“AUSA”) met to discuss
a plea agreement. Subsequently, counsel sent a letter dated December 20, 2004 to the
AUSA, which provided in pertinent part:
We met previously and discussed the applicable sentencing guidelines. At
that time, you indicated that you may forgo seeking a 2 point enhancement
for Recklessness During Flight (USSG 3C1.2.) You did not indicated [sic]
that the Government would seek any other enhancements. Accordingly,
kindly set forth whether the Government does intend to seek an
enhancement for Recklessness.
(SA15.) Counsel received no reply.
On January 27, 2005, Clark pled guilty. The plea agreement made no mention of
any promise by the government not to seek one or more sentencing enhancements. It did,
however, include a clause whereby Clark waived his right to appeal unless one of two
exceptions, neither applicable here, was met. Thereafter, a presentence investigation
report (“PSR”) was prepared. The PSR included a four-level increase to Clark’s base
1
The possession with intent to deliver charge was later reduced to simple possession, a
misdemeanor.
2
offense level pursuant to U.S.S.G. § 2K2.1(b)(5) because he used or possessed a firearm
in connection with another felony.2 His total offense level, after the appropriate reduction
for acceptance of responsibility, was 25; his criminal history category was VI; and his
guideline imprisonment range was 110 to 137 months, which, because of a statutory
maximum of 10 years, became 110 to 120 months.
Clark objected to the four-level increase, relying on the negotiations between
counsel and the A.U.S.A. prior to entering into the plea agreement.3 The District Court
was not persuaded, and sentenced him to 110 months in prison followed by three years of
supervised release. He appeals.
II.
Clark argues that counsel’s letter of December 20, 2004 precluded the government
from seeking the four-level increase under §2K2.1(b)(5). The government argues, in
response, that the appeal must be dismissed because Clark waived his right to appeal. We
agree with the government.
The pertinent part of the plea agreement provides that Clark waived
“the right to take a direct appeal from his conviction or sentence under 28
2
Clark pointed the loaded weapon at the police when they attempted to arrest him.
3
On appeal, “[Clark] does not challenge the factual basis of the plea or whether the
underlying conduct was sufficient to support the Government seeking a four level
increase pursuant to [U.S.S.G. §] 2K2.1(b)(5).” (Appellant’s Br. at 9.) Moreover,
Clark’s counsel “stipulates that he did not specifically discuss the applicability of [§]
2K2.1(b)(5) and that it was not discussed on or off the record on January 27, 2005.” (Id.
at 10.)
3
U.S.C. §1291 or 18 U.S.C. §3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, Antoine
Clarke [sic] may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set
forth in the United States Code, or (2) the sentence
unreasonably exceeds the guideline range determined by the
Court under the Sentencing Guidelines, Antoine Clarke [sic]
may take a direct appeal from the sentence.”
(SA2.) A waiver of appeal, the validity of which is subject to de novo review, will be
enforced provided it was “entered into knowingly and voluntarily, unless [it] work[s] a
miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 558, 560 (3d Cir. 2001).
Clark does not seriously contend that his waiver of appeal was unknowing or
involuntary, and, at the change of plea hearing, he agreed that the government’s summary
of the plea agreement was accurate. Moreover, no miscarriage of justice will result from
enforcing the waiver. There is nothing in the record that suggests that the government
agreed not to seek the § 2K2.1(b)(5) enhancement, and the lack of a response to counsel’s
letter did not establish the existence of a promise.4 Moreover, the plea agreement itself
contains no mention of any such promise, and, at the change of plea hearing, Clark
confirmed that no promises other than those memorialized in the plea agreement had been
made to him. In any event, even if there had been a promise, it was not breached by the
government given that no enhancement was sought by it.
4
Indeed, counsel’s description of his conversations with the AUSA confirm that no
“hard and fast plea offer” was in place as of the date of the letter. (A47) They “were
continuing to discuss the matters.” (Id.)
4
Clark also argues that he received ineffective assistance of counsel, which can, in
certain circumstances, serve as the basis for setting aside a valid plea. United States v.
Broce, 488 U.S. 563, 574 (1989); United States v. Thornton, 327 F.3d 268, 271 (3d Cir.
2003). However, we have a “strong preference for reviewing allegations of ineffective
assistance of counsel in collateral proceedings under 28 U.S.C. § 2255 rather than on
direct appeal.” United States v. Sandini, 888 F.2d 300, 312 (3d Cir. 1989). Clark
contends that his counsel’s objection to the four-level increase at the sentencing hearing
“was, essentially, an oral motion pursuant to 28 U.S.C. [§] 2255 and is therefore [] before
the Court for appellate review.” (Appellant’s Br. at 17)
Again, however, his waiver stands in the way, because he waived not just a direct
appeal but “waive[d] the right to file a motion to vacate sentence, under 28 U.S.C. §2255
. . . .” (SA2). Clark does not claim that the waiver itself was the product of
ineffectiveness, but only that counsel failed to ensure that the plea agreement included the
government’s promise not to seek additional enhancements. Even if we were to reach the
ineffectiveness claim and were to assume that counsel’s “acts or omissions were outside
the wide range of professionally competent assistance,” see Strickland v. Washington, 466
U.S. 668, 690 (1984), the government, as already discussed, made no such promise and
never sought an enhancement. Therefore, Clark cannot establish prejudice. See id. at 692
(“[A]ny deficiencies in counsel’s performance must be prejudicial to the defense in order
to constitute ineffective assistance under the Constitution.”).
5
III.
For the foregoing reasons, the appeal will be dismissed for lack of jurisdiction.
6 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3079891/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00434-CR
_________________
DAVID LYNN LILES, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 11-12595
________________________________________________________________________
MEMORANDUM OPINION
On September 4, 2012, the trial court sentenced David Lynn Liles on a conviction
for theft. Liles filed a notice of appeal on September 19, 2012. The trial court entered a
certification of the defendant’s right to appeal in which the court certified that this is a
plea-bargain case and the defendant has no right of appeal. See Tex. R. App. P.
25.2(a)(2). The district clerk has provided the trial court’s certification to the Court of
Appeals. On September 19, 2012, we notified the parties that we would dismiss the
appeal unless the appellant established grounds for continuing the appeal. The appellant
1
filed a response, but failed to establish that the trial court’s certification should be
amended. Because the record does not contain a certification that shows the defendant
has the right to appeal, we must dismiss the appeal. See Tex. R. App. P. 25.2(d).
Accordingly, we dismiss the appeal.
APPEAL DISMISSED.
___________________________
HOLLIS HORTON
Justice
Opinion Delivered October 17, 2012
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2776881/ | Order entered February 4, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01065-CR
ARTHUR FRANKLIN MILLER, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-81265-2013
ORDER
Before the Court are two motions filed by appellant on January 29, 2015.
The Court GRANTS Appellant’s Motion to Permit Current Counsel to Withdraw on
Appeal and Substitute New Counsel on Appeal. We DIRECT the Clerk to remove Lori
Ordiway as appellant’s attorney of record, and to substitute H. Jay Ethington, Cody L. Skipper,
and Mark H. Nancarrow as attorneys of record for appellant.
The Court DENIES Appellant’s Motion for Court to Reconsider Setting Appeal for
Submission Without Oral Argument. The appeal will be submitted without oral argument on
March 31, 2015, to a panel consisting of Justice Lang, Justice Stoddart, and Justice Schenck, per
the Clerk’s Notice of January 15, 2015 in this cause. See TEX. R. APP. P. 39.8.
/s/ DOUGLAS S. LANG
PRESIDING JUSTICE | 01-03-2023 | 02-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/25055/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10711
BENNY NICHOLS; MARK NICHOLS; NICHOLS FARMS,
a partnership,
Plaintiffs-Appellants,
versus
SCOTT HESLEP; JACK HESLEP, Attorney-in-Fact for Helen
Cunningham and Alice Cunningham,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas, Lubbock Division
(5:99-CV-88-C)
August 14, 2001
Before JOLLY, DEMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiffs appeal the district court’s dismissal with prejudice of their unjust enrichment claim
following a jury verdict in favor of plaintiffs. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The relationship between the parties in this appeal began when Jack Heslep (collectively with
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Scott Heslep, “the Hesleps”), as attorney-in-fact for Helen Cunningham and Alice Cunningham,
leased fo r grazing purposes only four sections of land located in Gaines County, Texas, to Benny
Nichols, Mark Nichols, and Nichols Farm, a Partnership (collectively, “the Nichols” or “the
plaintiffs”). The original lease was for a period of two years beginning January 1, 1984, and ending
on December 31, 1985. The lease provided that it would be automatically extended for consecutive
one-year terms unless the parties terminated it earlier in writing. The consideration for the lease was
payment by the Nichols of $1,280 a year. However, instead of paying rent, the Nichols could build,
repair, and maintain all necessary fences enclosing the premises, and the lessors would not be
responsible for the payment of any of their expenses in excess of $1,280 per year without their
express written consent.
On April 6, 1988, the parties entered into a second agreement with respect to the same land,
again for grazing purposes only. The lease was for a five-year term beginning on January 1, 1988,
and ending on December 31, 1992. It would be extended for consecutive five-year terms unless
either party notified the other party in writing of the desire to terminate the lease at least 90 days
before the expiration of the term of the lease. The rent was $1,500 per year, or in lieu of rent, the
Nichols could build, repair, and maintain the fences or make other improvements to the property.
The dispute between the parties arose from a meeting held in January 1998. After the
meeting, the Nichols began constructing necessary improvements to cultivate the leased land. They
broke up 240 acres of the leased premises for cultivation and installed water wells and an irrigation
system, built roads, and installed power lines. The Nichols contended that cultivation of the leased
premises for one year was presumed to have been agreed upon, while the Hesleps contended that
nothing was agreed upon at the meeting and that the feasibility of cultivating the leased premises was
2
discussed in general terms only. There was no written agreement between the parties for the
cultivation of the land, and there was no consideration for the alleged modification of the second
lease.
In March 1999, the Hesleps filed suit against the Nichols. The district court’s jurisdiction was
based on diversity of citizenship. See 28 U.S.C. § 1332. The Hesleps alleged that the Nichols
breached their lease agreement by installing improvements on the premises without their consent, by
farming the premises in violation of the agreement, and by overgrazing the premises. The Hesleps
further alleged that the Nichols were negligent, and they sought a declaratory judgment that the
improvements were the Hesleps’ property. The Nichols counterclaimed for damages based on
promissory estoppel, breach of contract, fraud, negligent misrepresentation, quantum meruit, and
unjust enrichment. Subsequently, in May 2000, the Hesleps moved voluntarily to dismiss their causes
of action, and the district court granted their motion. The court real igned the parties so that the
Nichols were the plaintiffs and the Hesleps were the defendants.
After t he Nichols presented their evidence, the district court granted in part the Hesleps’
motion for judgment as a matter of law. The only remaining issue, unjust enrichment, was submitted
to the jury. The jury returned a verdict for the plaintiffs on the issue of unjust enrichment and
awarded damages in the amount of $109,000. However, the Hesleps filed a motion for judgment as
a matter of law and requested that the district court set aside the jury’s verdict. The district court
granted the Hesleps’ motion and denied the Nichols’ motion to enter judgment. The district court
ordered that the plaintiffs take nothing.
The Nichols then moved the district court to make findings of fact and conclusions of law
pursuant to Fed. R. Civ. P. 52(a). Their motion stated in part,
3
At the conclusion of Plaintiff’s evidence, the court announced that the j ury verdict
would be considered as advisory only for the stated reason that the remaining issue
being submitted to the jury was based on an equitable cause of action. A motion for
judgment as a matter of law is proper only to matters tried by a jury and not those in
which the trial court acts as the fact finder. Thus, a motion for judgment as a matter
of law in a non-jury or advisory jury trial is actually a motion for judgment on partial
findings. The district court must support its judgment with findings of fact and
conclusions of law as required by FED. R. CIV. P. 52(a).
(citations omitted).
The district court made the findings of fact and conclusions of law requested by the Nichols.
The court determined that the Nichols’ unjust enrichment claim fails as a matter of law because there
was no evidence that the Hesleps obtained a benefit through fraud, duress, or undue advantage and
because the subject matter of the dispute was governed by an express contract, the April 6, 1988,
lease agreement. The district court dismissed the Nichols’ claims, including the unjust enrichment
claim, with prejudice. The Nichols now appeal.
On appeal, the Nichols argue that the district court erred in considering the jury’s verdict in
favor of them on their claim of unjust enrichment as advisory only and that there was sufficient
evidence to support the jury’s finding of unjust enrichment.
DISCUSSION
I. Effect of the Jury’s Verdict
Fed. R. Civ. P. 39(c) governs the use of advisory juries. Rule 39(c) provides:
In all actions not triable of right by a jury the court upon motion or of its own
initiative may try any issue with an advisory jury or . . . the court, with the consent of
both parties, may order a trial with a jury whose verdict has the same effect as if the
trial by jury had been a matter of right.
However, “once litigants have consented--either expressly or implicitly--to a nonadvisory jury, the
court must provide them advance notice if it intends to regard the verdict as advisory.” Alcatel
4
U.S.A., Inc. v. DGI Techs., Inc., 166 F.3d 772, 795-96 (5th Cir. 1999). Fed. R. Civ. P. 39(c) does
not require express consent by both sides to a non-advisory jury. Id. at 795 n.101. “If one party
demands a jury, the other does not object, and the court orders a jury trial, this will be regarded as
trial by consent.” Id.
Because the Hesleps demanded a jury trial in their original complaint and the Nichols did not
object, we find that the parties consented to a jury trial even though the Hesleps ultimately voluntarily
dismissed their claims. However, we also conclude that the Nichols’ claim for unjust enrichment was
an equitable one and not triable of right by a jury. See Borst v. Chevron Corp., 36 F.3d 1308,1323
(5th Cir. 1994); Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 927 (Tex. App.-- Fort Worth
1994, writ denied) (“An action for unjust enrichment is based on the equitable principle that a person
receiving benefits which were unjust for him to ret ain ought to make restitution. . . . Recovery is
based on fundamental principles of justice or equity and good conscience which give rise to an
implied or quasi-contract to repay.”).
Moreover, we are convinced that the district court gave the parti es advance notice, as is
required under Alcatel, that the jury’s verdict would be advisory only. Though they now assert that
the district court did not give them notice of its intent to regard the jury’s verdict as advisory only,
the Nichols’ motion for the district court to make findings of fact and conclusions of law clearly
demonstrates that the court provided such notice. The motion stated: “At the conclusion of
Plaintiff’s evidence, the court announced that the jury verdict would be considered as advisory only
for the stated reason that the remaining issue being submitted to the jury was based on an equitable
cause of action.” Accordingly, we find no error in the district court’s decision to consider the jury’s
verdict as advisory only.
5
II. The District Court’s Findings of Fact and Conclusions of Law
Because the jury’s verdict was non-binding, we review the district court’s findings of fact for
clear error and its conclusions of law de novo. See FED. R. CIV. P. 52(a); Am. River Trans Co. v.
Kavo Kaliakra SS, 148 F.3d 446, 449 (5th Cir. 1998). We find no error under this standard of
review. Moreover, even assuming that the jury verdict was binding, we would find no error under
the less deferential standard of review for grants of Fed. R. Civ. P. 50 motions. See Murray v. Red
Kap Indus., Inc., 124 F.3d 695, 697 (5th Cir. 1997) (“A motion for judgment as a matter of law is
appropriate if, after considering the evidence presented and viewing all reasonable inferences in the
light most favorable to the nonmovant, the fact s and inferences point so strongly in favor of the
movant that a rational jury could not arrive at a contrary verdict.”).
In Texas, where a person has “obtained a benefit from another by fraud, duress, or the taking
of an undue advantage,” he may recover based on a theory of unjust enrichment. Heldenfels Bros.
v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). However, unjust enrichment is not an
appropriate remedy “merely because it might appear expedient or generally fair that some recompense
be afforded an unfortunate loss to the claimant, or because benefits to the person sought to be
charged amount to a windfall.” Id. at 42 (internal quotations omitted); Acad. Corp. v. Interior
Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 741 (Tex. App.--Houston [14th Dist.] 2000, reh’g
overruled). Furthermore, recovery for unjust enrichment is impermissible where the “same subject
is covered by an express contract.” Acad. Corp., 21 S.W.3d at 741 (internal quotations omitted).
The district court found that the Nichols’ unjust enrichment claim fails as a matter of law
because there was no evidence that the Hesleps obtained a benefit through fraud, duress, or undue
advantage and because the subject matter of the dispute was governed by an express contract, the
6
April 6, 1988, lease agreement. We find that district court’s findings of fact are not clearly erroneous
and that its conclusions of law are in accord with Texas precedent. The Nichols cultivated and added
improvements to the Hesleps’ land because of their mistaken belief that the parties had an agreement,
not because of fraud, duress, or undue advantage. Also, the April 6, 1988, contract clearly provided
that the land would be used for grazing purposes only. The existing contract between the parties was
controlling and dictates that there be no recovery for the Nichols for unjust enrichment or any other
theory under which they might have sought restitution.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s dismissal with prejudice of the
Nichols’ unjust enrichment claim.
AFFIRMED.
7 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/25075/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20616
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDY ALBERTO RAMIREZ-MENESES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-105-1
--------------------
August 22, 2001
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Fredy Alberto Ramirez-Meneses appeals his sentence following
his guilty-plea conviction for aiding and abetting the
importation of heroin and aiding and abetting the possession of
heroin with intent to distribute, in violation of 21 U.S.C.
§§ 952(a) and 841(a)(1) and 18 U.S.C. § 2. Ramirez argues that
the district court erred in denying him a two-level reduction in
his sentence pursuant to U.S.S.G. § 2D1.1(b)(6).
Section 2D1.1(b)(6) of the Sentencing Guidelines provides:
“If the defendant meets the criteria set forth in subdivisions
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-20616
-2-
(1)-(5) of § 5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases) and the offense level
determined above is level 26 or greater, decrease by 2 levels.”
Because Ramirez was the party seeking an adjustment in the
sentence, he had the burden of proving the facts to support the
adjustment. United States v. Flanagan, 80 F.3d 143, 146 (5th
Cir. 1996).
Ramirez failed to meet his burden of proving his entitlement
to an adjustment under U.S.S.G. § 2D1.1(b)(6). By recanting his
admission that he previously smuggled heroin into the United
States using the same method, Ramirez called into question his
truthfulness. See U.S.S.G. § 5C1.2(5); United States v. Edwards,
65 F.3d 430, 433 (5th Cir. 1995). The Presentence Report (PSR)
and the Government’s response to Ramirez’s objections to the PSR
further supported denial of the adjustment. The district court’s
decision that Ramirez did not qualify for a two-level reduction
under U.S.S.G. § 2D1.1(b)(6) was not clearly erroneous, as it was
plausible in the light of the record read as a whole. See United
States v. Torres, 114 F.3d 520, 527 (5th Cir. 1997). Although
the district court did not articulate specific reasons for
denying the adjustment, the district court adopted the factual
findings and guideline applications contained in the PSR, except
for the drug-quantity determination, as stated in its judgment.
This was sufficient for Fed. R. Crim. P. 32 purposes. United
States v. Mora, 994 F.2d 1129, 1141 (5th Cir. 1993).
Accordingly, the district court’s judgment is
AFFIRMED. | 01-03-2023 | 04-25-2010 |
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