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https://www.courtlistener.com/api/rest/v3/opinions/3446792/ | Reversing.
This is an appeal from a judgment of the Jefferson circuit court in a proceeding brought under the Declaratory Judgment Act (Civil Code of Practice, sec. 639a-1 et seq.). The Louisville Railway Company (hereinafter called the Railway Company), a corporation, has outstanding the following bonded indebtedness:
First Mortgage Bonds, dated July 1, 1890, due July 1, 1930 (extended to January 1, 1940) .........$1,700,000.00
Second Mortgage Bonds, dated March 1, 1900, due March 1, 1940 ......................................2,000.00.00
General Mortgage Bonds, dated February 1, 1910, due February 1, 1950 ............................4,035,000.00 -------------- $7,735,000.00 *Page 822
Under the indenture securing the first mortgage bonds, there was placed in lien all of the street railways in the amount of 128 miles of double and single track, "and also all of the street railway cars, wagons, and other vehicles, and all horses and mules, and all the tools, implement, and material, and all the forage and supplies owned by the said Louisville Railway Company, together with all the rights, privileges, andfranchises and immunities now owned or to be hereafter acquired
by the said Louisville Railway Company, together with all railway tracks, cars, equipment, supplies, materials to be hereafter acquired for use in the operation of the said railway, and all real estate in the said city of Louisville or county of Jefferson, owned or to be hereafter acquired by the said Railway Company, and all the stables, carhouses, shops and other structures owned or to be acquired by the said Railway Company."
The same property, in practically the same language, was put under a second lien to secure the second mortgage bonds. In 1903 the Railway Company organized a separate corporation known as the Louisville Interurban Railroad Company (hereinafter called the Interurban), in which it, the Railway Company, owned all of the capital stock with the exception of qualifying shares for the directors — all of the directors of the Interurban being likewise directors of the Railway Company. The capital stock of the Interurban was $4,000,000, divided into 40,000 shares of the par value of $100 each. In 1910, when the general mortgage bonds were issued, a third lien was placed on the property described in the indentures covering the first and second issues, and in addition the capital stock of the Interurban was expressly pledged to secure the payment of the general mortgage bonds.
The Interurban operated at a profit for many years, but with the advent of other means of transportation its earnings began to diminish, and it was deemed wise in 1931 to commence dropping certain of its lines which had become unprofitable, and finally its last line was discontinued in 1935, and it has entered into an era of liquidation and sale of all of its property and equipment. The assets remaining in the hands of the Interurban are:
Second Mortgage Bonds of the Railway Company, of the
Par Value of ...............................$ 171,000.00 *Page 823
General Mortgage Bonds of the Par Value of ...... 410,000.00 Cash ............................................ 285,250.80 Real Estate and other Assets .................. 1,067,346.31 ------------- Total ....................................$1,933,597.11
The general mortgage bonds of the railway company are not callable, and the problem is presented of what disposition should or can be made of the assets of the Interurban which will be to the interest of all concerned in the unforeseen situation which has presented itself.
In the petition filed by the Railway Company and the Interurban, the trustees under the first, second, and general mortgages, together with an individual bondholder of each class, were named as defendants, and a declaration of rights on the following points was asked as to whether or not:
"I. The Railway Company can properly cause the Interurban to transfer to the Railway Company [a] the Interurban's 171 Second Mortgage Bonds to be delivered by the Railway Company to the Second Mortgage Trustee and by the Second Mortgage Trustee cancelled and retired, and [b] the Interurban's Two Hundred Eighty-five Thousand Two Hundred Fifty Dollars and Eighty Cents [$285,250.80] in cash to be delivered by the Railway Company to the First Mortgage Trustee and used by the First Mortgage Trustee in calling and retiring First Mortgage Bonds.
"II. If the Interurban's Two Hundred Eighty-five Thousand Two Hundred Fifty Dollars and Eighty Cents [$285,250.80] in cash, upon the dissolution of the Interurban, must be and is transferred to the General Mortgage Trustee as additional security for the payment of General Mortgage Bonds, [a] the General Mortgage Trustee, with the consent of the Railway Company, may pay said Two Hundred Eighty-five Thousand Two Hundred Fifty Dollars and Eighty Cents [$285,250.80] cash to the First Mortgage Trustee on November 1, 1936, or May 1, 1937, with directions to call 285 First Mortgage Bonds and deliver them to the General Mortgage Trustee as outstanding First Mortgage Bonds of the Railway Company, [b] the First Mortgage Trustee may properly so call and deliver 285 First *Page 824
Mortgage Bonds to the General Mortgage Trustee, and [c] when so called and delivered said 285 First Mortgage Bonds will remain outstanding and entitled to share in the security of the First Mortgage as fully as any other First Mortgage Bonds.
"III. If upon the dissolution of the Interurban its Two Hundred Eighty-five Thousand Two Hundred Fifty Dollars and Eighty Cents [$285,250.80] in cash must be and is transferred to the General Mortgage Trustee, the General Mortgage Trustee may invest said $285,250.80 in any securities eligible for trust fund investments and including particularly First Mortgage Bonds, Second Mortgage Bonds, General Mortgage Bonds and hereafter issued notes of the Railway Company which are secured by a first lien on any equipment the Railway Company may hereafter purchase.
"IV. The General Mortgage Trusted may properly retire and cancel the 410 General Mortgage Bonds of the Interurban when transferred to the General Mortgage Trustee.
"V. The Railway Company may cause the Interurban to and the Interurban may, pursuant to the terms and provisions of the Railway Company's mortgages, convey its property and transfer its assets to the Railway Company so as to create under the terms of the First Mortgage, the Second Mortgage and the General Mortgage a first lien on said property and assets in favor of the General Mortgage Trustee as additional security for the payment of the General Mortgage Bonds in accordance with the terms of the General Mortgage.
"VI. The disposition of the Interurban's assets in accordance with the resolutions of the Railway Company and the Interurban which are hereinbefore set forth will comply fully with the terms of the Railway Company's mortgages which are hereinbefore set forth.
"VII. Prior to any default by the Railway Company in the payment of the principal or interest of the General Mortgage Bonds or the performance of any of its other obligations under the General Mortgage the General Mortgage Trustee may, when and as realized, pay over to the Railway *Page 825
Company the income from any property delivered to it as security for payment of the General Mortgage Bonds."
Since the points raised in the petition substantially cover the specific contentions advanced in the various answers, counterclaims, and cross-petitions, a consideration of these matters will be taken up in the order stated above without further reference to the particular contentions urged by the various defendants.
The case was submitted on the pleadings, and there is no disagreement as to the facts.
It is provided in the indenture securing the general mortgage bonds that "the Railway Company shall be entitled to receiveall dividends declared upon the stock of the Company and allearnings of said Company, and may for such purpose comminglethe earnings of the Interurban Company with its own earnings." The directors of the Interurban passed a resolution in 1925, which was spread at large on the minutes and has never been rescinded, to the effect that "the payment of net earnings of this Company to the Louisville Railway Company in advance of formal declaration of dividends is hereby approved, and such payments in the future, at the discretion of the officers, is duly authorized."
The capital of the Interurban became impaired in May, 1931, through the abandonment of the first of its Interurban lines which were discontinued.
Between January 1, 1922, and February 28, 1931, the Interurban had net earnings of $847,450.97, of which $389,282.28 was paid to the Railway Company in cash and the balance of $458,168.69 was entered on the Interurban's books as an indebtedness to the Railway Company on account of earnings of the Interurban which had not been paid to the Railway Company, and on the books of the Railway Company as a debt due to it from the Interurban.
At the end of each calendar year from 1925 to 1930, inclusive, the officers of the Interurban, in accordance with the above-quoted resolution, entered on the books of the Interurban as a debt to the Railway Company the amount by which the net earnings of the Interurban exceeded the cash dividend payment to the Railway Company during that year, and as of February 28, 1931, the *Page 826
books of the Interurban and the books of the Railway Company on that account showed an indebtedness from the Interurban to the Railway Company in the sum of $458,168.69, and no part of that sum has ever been paid. It will be observed that none of this $458,168.69 informally set up as a dividend account and debt from the Interurban to the Railway Company was created after the capital stock of the Interurban is shown to have become impaired. The Railway Company does not claim that it is entitled to any of the net earnings of the Interurban accruing after May, 1931. We are confronted, therefore, with the question whether or not the debit in the amount of $458,168.69 set up on the books of the Interurban by its officers pursuant to the resolution of 1925 was such a declaration of a dividend as may now be considered to create a debt from the Interurban to the Railway Company in that amount.
It is well settled that the declaration of a dividend creates a debt from the corporation to its stockholders which they may enforce as general creditors even in the event of the subsequent insolvency of the corporation. Winchester
Lexington Turnpike Co. v. Wickliffe's Adm'r, 100 Ky. 531,38 S.W. 866, 18 Ky. Law Rep. 964, 66 Am. St. Rep. 356; Thompson on Corporations (3d Ed.) sec. 5308; Fletcher, Cyclopedia Corporations (pp. 6065, 6066); Cook on Corporations (8th Ed.) vol. 2, sec. 541. If, therefore, the action of the officers of the Interurban in setting up the obligation to the Railway Company on their books was in fact the declaration of a dividend, it follows that a debtor-creditor relationship was created and that the Railway Company is correct in its contention in this particular. Where, as here, the stock of the corporation is closely held and its management is substantially in the hands of its stockholders, the authorities have frequently recognized and sustained the informal setting apart of corporate profits or the informal division of net earnings as the declaration of a dividend. In Breslin v. Fries-Breslin Co., 70 N.J. Law, 274, 58 A. 313, 318, a stockholder in a closely held corporation instituted an action to recover from the corporation certain sums which had been credited to his account on the books without a formal declaration of dividends. It was shown that the practice followed was for the bookkeeper to report the net profits of the corporation to the directors, and, with their knowledge and acquiescence, each stockholder's pro rata portion of the *Page 827
profits was then credited to him on the books of the company. In holding that this practice amounted to a declaration of dividends and that the amounts appearing on the books constituted an enforceable debt against the corporation, the Court of Errors and Appeals of New Jersey, speaking through Judge Pitney (later Mr. Justice Pitney of the Supreme Court of the United States), said:
"The whole question was submitted to the jury on the theory that, so long as the directors ascertained the profits, and set apart the portion thereof that was to be divided, all matters of form were immaterial, and the actual division of the declared dividends among the stockholders was a matter that could be settled by agreement among themselves, evidenced by their acquiescence in the course of procedure that was followed. These instructions were fully warranted by the evidence, and, in our opinion, they embody no error in law — at least, none detrimental to the interests of the defendant. * * * The proofs in the case show that at stated times the specific things necessary to warrant a declaration of dividends were done, and that a certain portion of the profits actually made were set apart for distribution among the stockholders. This is the essence of the declaration of a dividend, so far as it results in segregating a portion of the property of the company for the use of the stockholders. Thenceforward the corporation, as such, has no property interest in the moneys thus set apart."
Obviously, only a creditor of the corporation could reasonably be injured by, or complain of, this informal procedure. See, also, M. Groh's Sons v. Groh, 80 A.D. 85,80 N.Y. S. 438; Spencer v. Lowe, 198 P. 961 (C.C.A. 8); Barnes v. Spencer Barnes Co., 162 Mich. 509, 127 N.W. 752, 139 Am. St. Rep. 587; Fletcher Cyclopedia Corporations, secs. 3672, 3673; Cook on Corporation (8th Ed.) sec. 534, p. 1843; Thompson on Corporations (3d Ed.) sec. 5269. It is admitted in the case before us that there are no creditors of the Interurban other than the Railway Company. Certainly, the trustee under the general mortgage indenture and the bondholders which it represents cannot object in view of the provision quoted above under which the general mortgage *Page 828
bondholders expressly waived any right to receive dividends or earnings of the Interurban prior to a default in the payment of the general mortgage bonds. There has been no default. It follows that the contention of the Railway Company is sound in so far as it asks for the transfer to it of the cash and second mortgage bonds free of the lien of the general mortgage.
Our conclusion in this regard is fortified by the fact that the resolution providing for the transfer explicitly limits the rights of the Railway Company in dealing with the funds to canceling the second mortgage bonds and to paying over the cash received to the trustee under the first mortgage indenture for the purpose of calling and retiring first mortgage bonds. The necessary effect of this step is to increase the security back of the general mortgage bonds. Since no one can be hurt by the transaction and the persons vitally interested are benefited, through the increased security thus placed back of their bonds, it is difficult to see wherein any valid objection can be made to the procedure contemplated. It may be noted that the total bonded indebtedness of the Railway Company is but $7,735,000, while it is admitted in the record that a fair valuation of the properties securing these bonds is in excess of $16,000,000.
What we have said in regard to the first question submitted by the plaintiffs below renders it unnecessary for us to consider the propositions submitted under II and III, supra, other than will be necessary in considering certain portions of the judgment as applied to cash which may be received in the future from other sources than the specific sums here involved.
The next point necessary for our consideration is whether or not the general mortgage trustee may properly cancel and retire the 410 general mortgage bonds of the Interurban when transferred to it under the resolution of the directors referred to above. No objection is raised by any of the parties to the procedure suggested in this connection, and we have found no provision in the general mortgage indenture which would prohibit the arrangement suggested. On the contrary, it is expressly provided in the indenture that the proceeds from the sale of any of the railway property secured by the mortgage, no longer necessary for the operation of the railway, may be used in the purchase of *Page 829
general mortgage bonds which, when so purchased, shall be forthwith canceled and delivered to the general mortgage trustee. Certainly, in view of this express provision, the procedure suggested as to these bonds is substantially, if not strictly, in compliance with the mortgage.
The next question presented concerns the right of the Railway Company and of the Interurban to transfer its remaining physical assets — all of the property remaining in its hands — to the Railway Company subject to a first lien held by the trustee under the general mortgage indenture so as to remain a primary security for the general mortgage bonds ahead of the first and second mortgage bonds. In this connection, it is contended on behalf of the trustees and holders of first and second mortgage bonds that the indentures securing those issues constituted a first and second lien, respectively, on the stock or assets of the Interurban. A reading of the first and second bond indentures, the relevant portion of which is quoted above, indicates very clearly that the after-acquired property thereby placed in lien must be limited under the rule of "ejusdem generis" to the specific kinds of property there mentioned, and that there is nothing in either mortgage which might be considered as placing in lien the after-acquired stock of the Interurban. We are further confident of our conclusion in this regard because of the fact that for over twenty years no question has been made, either by the trustees or bondholders under the first and second mortgage bond issues, of the validity of the pledge of the stock of the Interurban as security for the payment of the general bonds. No other objection to the proposed transfer of the physical assets from the Interurban to the Railway Company is urged, and it is expressly provided in the general mortgage indenture that "the Railway Company shall likewise have the power to convey any part or all of the property of the Interurban Company to the Railway Company, but shall, when doing this, provide by proper deed of further assurance for the inclusion of such property in the scope of this indenture."
What we have said in response to the previous questions disposes of the proposition presented under VI, supra. We find nothing in the procedure which it is proposed to follow which can in any way be said to conflict with the mortgages. *Page 830
Finally, we are asked to consider what rights or what duties may rest on the general mortgage trustee in the disposal or investment of any funds which may in the future come into its hands. Clearly, what we have said in connection with the other questions presented demonstrates that there will be no income accruing to the general mortgage trustee from the property of the Interurban except, possibly, from the real estate conveyed direct to the Railway Company by it. The trial court, in considering this question, held that the general mortgage trustee might turn over any funds in its hands to the trustee under the first mortgage indenture with the direction that such funds be used in calling first mortgage bonds, and further that the first mortgage trustee could then be required to turn over such bonds to the general mortgage trustee withoutcancellation, to be held by it as a sort of sinking fund for the general mortgage bonds. Aside from the inherent inequity of such an arrangement, so far as first mortgage bondholders are concerned, it is expressly provided in the indenture giving the right to the trustee to call first mortgage bonds that any funds received by such trustee shall be used in "calling for payment" a portion of the outstanding first mortgage bonds. It is likewise provided that a sinking fund shall be established "for the purpose of paying and retiring" said bonds and that "in calling bonds for redemption" the trustee shall follow certain prescribed rules. Similarly, it is indorsed on each of the outstanding first mortgage bonds that "this bond may be called for payment and retired by the Louisville Railway Company on any interest-paying date in accordance with the terms and provisions of said supplemental mortgage." In Jones on Corporate Bonds and Mortgages (3d Ed.) sec. 326a, it is said:
"Under an agreement for the making of a sinking fund and the retirement of certain bonds drawn by lot, the terms of the agreement must be strictly followed or the right to retire bonds will be lost. Each bond has an equity represented by the chance that it may not be drawn by lot for redemption until it becomes payable. As bonds may draw a high rate of interest, that equity is valuable, and each bondholder has a right to insist that his bond shall not be redeemed except in strict accordance with the contract contained in the mortgage. *Page 831
Whatever the mortgagor has done outside of the contract, by way of paying or acquiring bonds cannot be considered as done under the contract or in any way credited upon the sinking fund clause. That clause cannot be enforced upon any basis less favorable to the outstanding bondholders than if the contract had been performed instead of violated."
Reading all of these various provisions together, it cannot be doubted that, even if the general mortgage trustee should see fit to pay over funds in its hands to the first mortgage trustee for the purpose of calling bonds, the power of the first mortgage trustee is strictly limited by the terms of the indenture, as well as by the terms of the indorsement on the bonds themselves, to a calling for the purpose of retirement, and that such trustee is without power under the terms of the trust to keep called bonds alive. It has been held in various cases where a trustee or corporation is given the power topurchase outstanding bonds that in such a situation it is unnecessary that the bonds be canceled when they reach the hands of the trustee. Such in fact was the decision of this court in the case of Fidelity Columbia Trust Co. v. Louisville Railway Co., 258 Ky. 817, 81 S.W.2d 896. In the case cited, the question presented was not one of calling by the trustee, but purchase of the bonds by the Railway Company. These are very different propositions, and the case is not therefore in point in the instant situation. The terms of the indenture and the indorsement on the bonds themselves are so clear that we have no hesitancy in concluding that it was not intended to give the trustee power to keep alive bonds which it had called under the provisions of the indenture. It follows that the decision of the trial court was to this extent erroneous.
The judgment is reversed, with directions to enter a judgment in conformity with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2890276/ | NO. 07-03-0395-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 16, 2004
______________________________
DERRICK T. PAYTON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 98-427618; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Derrick T. Payton appeals a judgment entered on August 14, 2003, revoking his
community supervision and sentencing him to ten years in the Texas Department of
Criminal Justice, Institutional Division. Appellant was convicted in 1998, pursuant to a plea
bargain, of the offense of delivery of a controlled substance. He was sentenced to ten
years confinement in the Texas Department of Criminal Justice, Institutional Division,
probated for ten years under terms and conditions of community supervision. He was
ordered to pay restitution in the sum of $820, court costs and fees.
The State filed an application to revoke appellant’s community supervision in
December 2000, alleging he had tested positive for marijuana in September 1999, and in
February and April of 2000, and alleging he failed to report, failed to attend a drug
offender’s program, and failed to pay restitution, court costs and fees. An agreed motion to
modify the terms and conditions of his community supervision was filed by the parties and
on May 30, 2002, the court entered an order in accordance with that motion. Additional
conditions were imposed and appellant was sentenced to 100 days in the Lubbock County
Jail. Upon release he was to be placed on electronic monitoring supervision.
On October 24th, 2002, a second application to revoke appellant’s community
supervision was filed, alleging that he had committed the offense of evading arrest. This
application was amended on April 1, 2003, and again on April 10, 2003. The second
amended application alleged he had violated the terms and conditions of his community
supervision because he failed to pay court costs, fees and restitution, failed to abstain from
the use or possession of alcoholic beverages and drugs, failed to follow the conditions of
electronic monitoring supervision, and evaded arrest.
A hearing was held on the second amended application on July 9, 2003. The second
amended application alleged violations occurring from April of 1999 up to the date of the
hearing. The court, however, considered only violations that occurred subsequent to the
-2-
May 2002 modification order.1 The conditions of community supervision appellant was
alleged to have violated during this time period were:
a) Commit no offense against the laws of this or any other State or the
United States;
b) Avoid injurious or vicious habits; and
c) Maintain total abstinence from the use or possession of
alcoholic beverages and any narcotics or dangerous drugs not
prescribed by a physician . . .
At the conclusion of the hearing, the court found appellant had violated the terms of his
community supervision in that:
A. On or about the 23rd day of October 2002, appellant committed the
offense of evading arrest, and
B. Appellant tested positive for marijuana on October 21, 2002 and
signed a confession on October 28, 2002 admitting to smoking
marijuana and drinking two beers on October 8, 2002.
The court revoked appellant’s community supervision and sentenced him to ten years
confinement in the TDCJ.
1
The second motion to revoke alleged some of the violations that were previously
alleged in the State’s first motion to revoke. Due process mandates a new determination
that a probationer has breached the conditions of probation after he has been returned to
probation (or that there is newly discovered evidence of a previous violation which was not
known at the time of the first revocation hearing). See Matheson v. State, 694 S.W.2d 661,
662 (Tex.App.–Fort Worth 1985, pet. granted) judgment reformed, 719 S.W.2d 204
(Tex.Crim.App. 1986). The appellate record reflects, however, that here the revocation of
probation was based only on violations that occurred subsequent to the May 2002
modification order. See Jenkins v. State, 641 S.W.2d 917, 918 (Tex.Crim.App. 1982).
-3-
Appellant presents the following two issues for our review, both challenging the trial
court’s finding that appellant committed the violation of evading arrest: 1) whether appellant
had knowledge that he was being detained by an officer, and 2) whether appellant was held
for a lawful detention.
The issue on appeal from an order revoking community supervision is whether the
trial court abused its discretion. See Jackson v. State, 915 S.W.2d 104, 106 (Tex. App.--
San Antonio 1996, no pet.). In a probation revocation proceeding, the State must show by
a preponderance of the evidence that the probationer has violated at least one condition
of probation as alleged in the revocation petition. Cobb v. State, 851 S.W.2d 871, 873
(Tex.Crim.App. 1993). If the State fails to meet that requirement, the trial court abuses its
discretion in revoking probation. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App.
1984).
When more than one violation of probationary conditions is found by the trial court,
the order revoking probation will be upheld if the evidence supports any of the violations
found by the court. See Alexander v. State, 879 S.W.2d 338, 340 (Tex. App.--Houston [14th
Dist.] 1994, pet. ref'd), cert. denied, 514 U.S. 1127, 115 S. Ct. 1999, 131 L. Ed. 2d 1000
(1995) (citing Hendley v. State, 783 S.W.2d 750, 752 (Tex.App.--Houston [1st Dist.] 1990,
no pet.)).
In a revocation proceeding, the trial court is the sole trier of fact and, as such,
determines the credibility of witnesses and the weight to be given their testimony. Moore v.
-4-
State, 11 S.W.3d 495, 498 (Tex.App.–Houston [14th Dist.] 2000, no pet.). In determining
whether the evidence is sufficient to sustain a probation revocation, we view the evidence
in a light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421
(Tex.Crim.App. 1979); Torres v. State, 103 S.W.3d 623, 625 (Tex.App.–San Antonio 2003,
no pet.).
Appellant’s brief focuses on one of the two violations found by the trial court, the
offense of evading arrest, arguing that appellant did not have knowledge he was being
detained and that appellant was not held under a lawful detention.2 While the State’s initial
application to revoke probation was based solely upon the offense of evading arrest, the
State later amended the application alleging additional violations. It is not necessary for us
to discuss either of appellant’s issues because he has failed to address the other violations
found by the court which provided sufficient grounds for revocation of appellant’s community
supervision. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980).
The trial court found that appellant violated the conditions of his community
supervision by failing to maintain total abstinence from narcotics and alcohol. The trial court
heard testimony that appellant had tested positive for marijuana on October 21, 2002, and
confessed on October 28, 2002, to consuming alcohol and smoking marijuana on October
2
At the hearing, Kerri Sawyer, appellant’s probation officer, testified that even though
appellant had tested positive for marijuana on October 21, 2002, she would not have filed
a violation report had it not been for the allegation that appellant had evaded arrest.
Appellant argues that because this violation caused the State to file the motion to revoke,
if appellant did not commit the violation of evading arrest, there would be no basis to
revoke his community supervision. Appellant cites no authority supporting this argument,
and we find it to be without merit.
-5-
8, 2002. At the hearing, appellant admitted that the allegations of drug and alcohol use were
true. As a part of the modification of the terms of his community supervision, in May of
2002, appellant was sentenced to 100 days of “shock time” in the county jail. Appellant
testified that immediately upon being released from the jail facility, he violated his terms of
community supervision by smoking marijuana. That testimony and the evidence appellant
had used alcohol and marijuana in October of 2002 was sufficient for the court to find
appellant committed new violations of the terms of his community supervision after the April
2002 modification order, by using drugs and alcohol.
Appellant’s two issues fail to address these violations. Because one violation of the
terms and conditions of community supervision provides sufficient grounds to revoke
appellant’s community supervision, we find the court did not abuse its discretion by revoking
appellant’s community supervision and imposing the original sentence of ten years
imprisonment. The order of the trial court is affirmed.
James T. Campbell
Justice
Do not publish.
-6- | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2973067/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0905n.06
Filed: November 17, 2005
No. 04-1998
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CENTURY INDEMNITY CO., et al., )
) ON APPEAL FROM THE
Plaintiffs-Appellees, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
AERO-MOTIVE CO., et al., ) OPINION
)
Defendants-Appellants. )
BEFORE: DAUGHTREY and COLE, Circuit Judges; HEYBURN, Chief District Judge*
PER CURIUM. Appellees, Century Indemnity Company, Continental Insurance Company,
and One Beacon Insurance Company, filed this action in the district court seeking a declaration that
they are not obligated to Aero-Motive Manufacturing Company (“Aero I”) or Aero-Motive
Company (“Aero II”) under their insurance policies, and a declaration that they are not bound by
a consent judgment in which Aero I and Aero II are parties. Appellants in this case are William
Becker, Roger Becker, and Aero I, and have assumed the defense of Aero II.
The Beckers, sole shareholders of Aero I, sold Aero I and its facility to a company which
later became Aero II. In 1991, Aero II discovered environmental contamination at the facility that
had occurred during the Beckers’ stewardship of Aero I. This declaratory judgment action follows
*
The Honorable John G. Heyburn II, Chief United States District Judge for the Western
District of Kentucky, sitting by designation.
No. 04-1998
Century Indem. Aero-Motive Co.
an earlier case in which Aero II sued the Beckers for damages relating to this contamination and in
which they entered into a consent decree.
Appellants appeal the district court’s orders: 1) that the insurers did not have a duty to
defend the lawsuits; 2) that the consent judgment was not entered into in good faith and was not
reasonable; 3) that the Beckers were not relieved of their contractual duty to cooperate; 4) that Aero
II’s motion to stay the declaratory judgment action was denied; 5) that the Beckers’ breach of their
duty to cooperate relieved the insurers of their contractual obligations to Aero II; 6) that defense
costs were allocable; 7) that One Beacon’s and Continental’s duty to defend arose when the policies
were tendered to them; 8) that Aero II was not entitled to coverage as an assignee of Aero I’s
policies and was not entitled to coverage under the “operation of law” theory; 9) that Continental
and One Beacon were only liable for limited defense costs; 10) that Aero II was not entitled to past
defense costs from One Beacon; 11) that penalty interest under M.C.L. § 500.2006 was not proper;
and 12) granting summary judgment to Continental that its policy limits from July 1, 1966 to August
11, 1967, was $25,000.
I.
This Court generally reviews a district court’s interpretation of a consent decree de novo, and
the underlying findings of fact for clear error. Sault Ste. Marie Tribe of Chippewa Indians v. Engler,
146 F.3d 367, 371 (6th Cir. 1998) (citing Huguley v. General Motors Corp., 67 F.3d 129, 132 (6th
Cir. 1995)). Here, we review the interpretation of a consent judgment by the district court that
crafted the judgment. When a district court authors the consent judgment, it is given greater
-2-
No. 04-1998
Century Indem. Aero-Motive Co.
deference when it is parsing its own work. Id. Therefore, our standard of review is more properly
referred to as “deferential de novo.” Id. As this Court has noted:
[A]t first blush, giving substantial deference to the district court’s interpretation of the
[consent] decree appears to be inconsistent with de novo review. Yet, in Brown v. Neeb, 644
F.2d 551, 558 n.12 (6th Cir. 1981), we explained that the district court’s reading of the
decree was merely an additional tool for contract interpretation.
Huguley, 52 F.3d at 1369-70. “[F]ew persons are in a better position to understand the meaning of
a consent decree than the district judge who oversaw and approved it.” Brown, 644 F.2d at 558 n.12.
We review a district court’s ruling on a motion to stay a declaratory judgment action for
abuse of discretion. AmSouth Bank v. Dale, 386 F.3d 763, 784 (6th Cir. 2004) (citing Wilton v.
Seven Falls Co., 515 U.S. 277, 289–90 (1995)).
We review a district court’s grant of summary judgment de novo. Cincinnati Inc. Co. v. Zen
Design Group, LTD, 329 F.3d 546, 551-52 (6th Cir. 2003). However, when a district court finds
that questions of fact preclude summary judgment, we review the district court’s denial of summary
judgment for abuse of discretion. Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445,
1472 (6th Cir. 1988).
II.
After a careful review of the record, applicable law, and the parties’ briefs, we conclude that
the district court exhaustively analyzed and considered all the issues before it, and correctly applied
the complex legal principles to the facts before it. Given this thorough analysis and consideration
by the district court, reflected in multiple orders and opinions, no useful purpose would be served
-3-
No. 04-1998
Century Indem. Aero-Motive Co.
by our recitation of principles and conclusions handled so comprehensively by the district court.
We thus AFFIRM the district court’s judgments on the basis of its well-reasoned opinions.
-4- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3420075/ | An indictment consisting of two counts, the first charging larceny and the second receiving stolen property was returned in the criminal court of Cook county against Wilma Harjes, Max Levy, Ernest Levy, Dave Blumenfeld and Sadie Weingarten. Wilma Harjes pleaded guilty and with respect to Sadie Weingarten anolle prosequi was entered. The remaining defendants were jointly tried, and, so far as Max Levy is concerned, the jury found him guilty of larceny and fixed the value of the property stolen at $85,000. Motions for a new trial and in arrest of judgment, made in Max Levy's behalf, were overruled, judgment and sentence to the penitentiary followed, and he prosecutes this writ of error for a review of the record.
Lawrence F. Stern and Helen Stern, his wife, on August 31, 1931, resided in the village of Glencoe, in Cook county. During the afternoon of that day they were absent from their home and it was left in charge of their servants. About six o'clock, shortly after their return, Wilma Harjes, Mrs. Stern's personal maid, reported to Mr. Stern that certain silks in his wife's dressing room had been disarranged. Mr. and Mrs. Stern immediately searched the room and discovered that a pearl necklace, three diamond bracelets, a diamond wrist watch, a diamond pin, a diamond wedding ring, a sapphire guard ring, a ruby and diamond ring and a locket and chain were missing. The value of the necklace was $85,000 and of the other jewels, *Page 112
together, $15,650. Wilma Harjes had been Mrs. Stern's personal maid for fifteen months and during the last three months of that period, the former had gained the acquaintance and was often seen in the company of Ernest Levy, an entertainer at a place of amusement in Chicago. The loss of the jewels was promptly reported to the police department of the village and investigations by the police followed. In these investigations, primary attention was given to the acts and conduct of Wilma Harjes and Ernest Levy. About two weeks after the disappearance of the jewels, Miss Harjes severed her employment by Mrs. Stern, asserting as her reason for doing so, that she was continually harassed by police officers.
Wilma Harjes confessed her guilt and implicated the persons indicted with her in the theft of the jewels. She was the principal witness for the prosecution. She first met the plaintiff in error in the lobby of the Hotel Sherman, in Chicago, about three or four weeks prior to August 31, 1931, when he produced a diamond ring and asked her to pawn it for $300. She succeeded in pledging the ring for only two-thirds of that sum. She again met Ernest Levy and the plaintiff in error, who are brothers, on the evening of August 30, 1931, at the Hotel Metropole, in Chicago. The plaintiff in error had theretofore proposed a plan for the theft of the jewels and to assure her understanding of the part she was to take in its consummation, Ernest Levy reviewed it with her. The three persons remained at the hotel about two hours, after which Ernest Levy drove his brother to the latter's home and Miss Harjes to an interurban railway station where she boarded a train bound for Glencoe. Carrying out the plan agreed upon, Ernest Levy, at three o'clock in the afternoon of the next day, inquired of Miss Harjes by telephone whether conditions at the home of Mr. and Mrs. Stern were favorable to the taking of the jewels and the answer was in the affirmative. Forty-five minutes later, Miss Harjes collected the jewels and wrapped *Page 113
them in a handkerchief. She then took a flower basket to the garden, pretended to pick some flowers, and proceeded to the servants' entrance to the grounds. At this entrance, she delivered the jewels concealed in the handkerchief to a man who was later identified as Dave Blumenfeld. The man departed, Miss Harjes returned to the house and took to Mrs. Stern's dressing room some silks which had been washed and ironed earlier in the day. The silks were placed in disorder and confusion so that their appearance might lead to inquiry and investigation.
Shortly after the jewels were taken, Miss Harjes successively met Ernest Levy at a theater in Chicago, at the Hotel Metropole, and at Lake Marie near Antioch, in Lake county. At Lake Marie she told Ernest Levy, in the presence of the plaintiff in error and Dave Blumenfeld, that she had informed one Mr. VanBuren, a representative of the company which had insured the jewels, of the larceny and the persons implicated in it; that she had promised him to return the jewels within a specified time, and that, if not permitted to do so, she would make a complete confession of the crime. The plaintiff in error answered that if she listened to other persons she certainly would be arrested, prosecuted and convicted. Sadie Weingarten, a sister of Ernest Levy's wife, was also present at Lake Marie. The plaintiff in error, his brother Ernest, Blumenfeld, Sadie Weingarten and Miss Harjes returned to Chicago together. On this trip the plaintiff in error told Miss Harjes that if she would listen to him, trouble would be avoided and each of them would be satisfied with the money he or she received. He further related that seven years before he had participated in the robbery of the Palmer House with impunity and that "surely he could get away with this robbery also." The party, except the plaintiff in error, proceeded from Chicago, to Gary, Indiana. After making inquiries, Ernest Levy rented a small apartment in that city for himself and Miss Harjes. They registered as Mr. and Mrs. *Page 114
Loeb and lived there three and one-half weeks as husband and wife.
On several occasions during the period of their residence in Gary, Ernest Levy and Wilma Harjes discussed the question of the disposition of the stolen jewels with Blumenfeld, Sadie Weingarten and the plaintiff in error. At one of these conferences, the date of which does not appear, the plaintiff in error stated that, in all probability, he would effect a sale of all the jewels not later than the succeeding Monday and, in that event, Miss Harjes, to avoid arrest, could depart immedately for Germany. On that Monday, the same question was again discussed and the plaintiff in error remarked that the jewels could be sold in New York City and that he and Blumenfeld should go there by airplane for that purpose. The trip was made and upon their return the following Saturday, Blumenfeld reported that they had received $9100 as the proceeds of the sale of the pearl necklace and two of the other jewels. Out of the proceeds, Miss Harjes received $2200 and Ernest Levy about $1200, and the plaintiff in error and Blumenfeld retained approximately $1800 and $1600 as their respective shares. A small sum was appropriated to defray the living expenses of Ernest Levy and Miss Harjes at Gary. Other disbursements were made; and the questions whether Sadie Weingarten and the person who drove the automobile to the home of Mr. and Mrs. Stern when the theft was committed, should participate in the distribution, were considered. The plaintiff in error insisted that neither should share in the proceeds of the theft. Ernest Levy asked what disposition would be made of the remaining jewels which had been pawned in Chicago. The plaintiff in error answered that he would redeem and sell them and that the proceeds would be divided in a few days.
Subsequently, on November 3, 1931, Wilma Harjes went to Chicago to obtain possession of certain wearing apparel which she had left in a convent in September. Her *Page 115
demand for the return of the clothing had been refused, and she sought the assistance of an attorney to recover her property. As she left the building in which the latter's office was located, she was arrested and taken to the office of the State's attorney of Cook county. She was there interrogated concerning the theft of Mrs. Stern's jewels. From this office she was driven back to Gary accompanied by Leo Carr and Algot G. Goranson, two police officers and William Knowles, a Pinkerton detective. When they arrived at the building in which she resided, they met Ernest Levy. He was arrested and taken to the police station in Gary. Officers Carr and Goranson and Wilma Harjes then entered her apartment. In making a search of the premises the officers found $2100 in money between sheets of paper in a suitcase. The money consisted of three bills, one of the denomination of one hundred and two of one thousand dollars.
While the officers were in the apartment, Blumenfeld telephoned Miss Harjes from Chicago that he had sold the remaining jewels for $1500 and that he, the plaintiff in error and Sadie Weingarten would reach Gary in two hours. They arrived about 9:30 P. M. The officers in the meantime had secreted themselves in a clothes closet. Upon entering the apartment, the plaintiff in error asked the whereabouts of his brother Ernest and Miss Harjes answered that he had gone for a ride but would return shortly. Officer Carr was acquainted with the plaintiff in error and recognized his voice. Miss Harjes, obeying the instruction of the officers, addressed her callers in a loud voice stating that the plan proposed by the plaintiff in error for the commission of the crime had not proved to be a good one; that she would not have become involved in it if an earlier suggestion that Mrs. Stern's jewels be forcibly taken had been followed; that she had consulted a lawyer who advised her that she would be unable to secure a passport; that the police were looking for her and that it appeared she would *Page 116
be sent to jail. Blumenfeld cautioned her not to speak so loudly and the plaintiff in error spoke to her in German which the police officers did not understand. At this point the officers emerged from the closet and arrested Blumenfeld, Sadie Weingarten and the plaintiff in error. These three persons, as well as Miss Harjes and Ernest Levy, signed waivers of extradition and returned to Chicago with the police officers. Each of the three men taken into custody denied any participation in the theft of Mrs. Stern's jewels. The plaintiff in error, however, admitted that shortly before he had gone to New York by airplane. Two diamond bracelets and a diamond wedding ring valued respectively at $3800, $1250, and $275 and a gold wedding ring were recovered by VanBuren, the insurance adjuster, and returned to Mrs. Stern before Christmas.
The plaintiff in error not only denied that he was concerned in the commission of the crime, but he also insisted that he received no share of the proceeds derived from the sale of the jewels. He admitted that he had gone to Gary with Blumenfeld and Sadie Weingarten; that he had visited his brother Ernest and Miss Harjes in that city several times, but he asserted that the purpose of his visits was to induce his brother to return to his wife and children in Chicago. He denied acquaintance with Miss Harjes before he met her in Gary, and he testified that, while he went to New York with Blumenfeld, the trip was made in the course of his business to sell imported French novelties and not to dispose of stolen jewels.
Blumenfeld testified that the purpose of the visits to Gary, made by himself, Sadie Weingarten and the plaintiff in error, was to induce Ernest Levy to return to his wife. He admitted that he accompanied the plaintiff in error to New York, but declared that his sole object in making the trip was to visit his sister who resided in that city. The pertinent testimony of Ernest Levy is that, while he was living with Wilma Harjes in the apartment at Gary, the plaintiff *Page 117
in error telephoned him that he should return immediately to his wife and children in Chicago, and that when he told Miss Harjes that he was going back to his family, she objected and threatened to confer with VanBuren, the insurance adjuster. One witness testified that the general reputation of the plaintiff in error in the city of his residence for honesty and as a law-abiding citizen was good. On rebuttal, five witnesses called by the prosecution testified that his reputation respecting his honesty and integrity was bad.
The principal contention for a reversal of the judgment is that the offense of larceny had been completed before any knowledge by the plaintiff in error of the theft of the jewels by competent evidence appeared, and that if the evidence shows he committed an offense, the jury should have found him guilty of being an accessory after the fact or of receiving stolen property. To support this contention reference is made to an answer by Wilma Harjes on her direct examination, when called as a witness by the prosecution, that "Ernest told me that Max wanted me to be of the impression that he knew nothing about this robbery; that I was not supposed to know that Max knew anything about it; but Ernest told me anyhow, and told me that Max thought out the plan of what I should do." It is argued that this answer was mere hearsay and therefore incompetent, and that, when excluded, there was no evidence to sustain the verdict and judgment finding the plaintiff in error guilty of larceny.
Evidence is admissible to prove a conspiracy to commit the crime with which a defendant is charged although no conspiracy is laid in the indictment; and where a conspiracy is established, every act or declaration of any of the conspirators in furtherance of the common purpose is regarded as the act or declaration of each of them and may be proved against all. (People v. Looney, 324 Ill. 375; Spies v. People, 122 id. 1). The plaintiff in error and *Page 118
Wilma Harjes first met three or four weeks before Mrs. Stern's jewels were stolen. He met her again on the evening of August 30, 1931, at the Hotel Metropole in the presence of his brother Ernest Levy. Before that meeting, the plaintiff in error had suggested a plan for the theft of the jewels and Ernest Levy reviewed it with Miss Harjes at that meeting. At Lake Marie, when, in the presence of the plaintiff in error, she threatened to confess the crime unless the jewels were returned, he remarked that if she gave heed to others, her arrest and conviction would be the result. On the return to Chicago from Lake Marie, he told her that if she followed his advice, there would be no trouble and the distribution of money would be satisfactory to the several persons concerned. In his brother's apartment at Gary, the plaintiff in error stated that he expected to sell the jewels not later than the next Monday. When that day arrived, he suggested their sale in New York. Blumenfeld and the plaintiff in error went to that city, a portion of the jewels were sold and upon their return the plaintiff in error retained $1800 as his share of the proceeds. When inquiry was made concerning the disposition of the remaining jewels, he answered that he would sell them and divide the proceeds within a few days. These facts show that the plaintiff in error was a party to the conspiracy whose object was the theft of Mrs. Stern's jewels and that he had an active part in the common enterprise from its inception to the division and distribution of the proceeds. The statement or declaration by Ernest Levy to Wilma Harjes as repeated in her answer, although made in the absence of the plaintiff in error, was made in furtherance of the common purpose and was therefore competent and provable against him.
The further contention is made that the testimony of Wilma Harjes, upon which the People's case largely rested, is subject to suspicion and should be acted upon with caution. The testimony of an accomplice is competent, but it *Page 119
is subject to grave suspicion and should be acted upon with great caution. The jury should carefully consider such testimony in the light of all the other evidence in the case, and the influence under which the testimony was given, in order to determine whether the purpose of the witness was to shield himself from punishment, to obtain some personal benefit or advantage or to gratify his malice. If, after all the facts and circumstances in evidence are considered, such testimony uncorroborated is of such a character as to prove guilt beyond a reasonable doubt, it will authorize a verdict of guilty. (People v. Lawson, 345 Ill. 428; People v. Gordon, 344 id. 422;People v. Rongetti, 338 id. 56; People v. Elmore, 318 id. 276;People v. McKinney, 267 id. 454; People v. Rosenberg, 267 id. 202). The cross-examination of Wilma Harjes occupies 146 pages of the record and in no material respect was her testimony shown to be false. On the contrary, facts and circumstances in evidence corroborate her testimony. At the request of the defendants, the court instructed the jury that Wilma Harjes had admitted that she stood convicted of the crime of larceny; that the conviction of a witness for a felony was evidence tending to impeach his or her credibility, and that in determining the weight which they should attach to Wilma Harjes' testimony they had the right to take into consideration the fact that she stood convicted of larceny. The safeguards which the law provides against false testimony were invoked for the protection of the plaintiff in error; and a review of the testimony of Wilma Harjes with all the other evidence in the case shows that the jury's verdict was justified.
Complaint is made that the twenty-third instruction, given at the request of the People, was errroneous. After setting forth the second and third sections of the second division of the Criminal Code, the former defining an accessory before the fact and the second providing that he may be punished independently of the principal, the instruction *Page 120
concluded, "And if the jury find from the evidence, beyond a reasonable doubt, that the defendant Max Levy * * * did aid, abet, assist, advise or encourage the perpetration of the crime, as charged in the indictment, then the jury are justified in finding the defendant guilty." The objection urged is that the instruction should have been limited by such words as "before or at the time of the alleged larceny," so that a verdict finding the plaintiff in error guilty of larceny would not be returned if the jury believed he was only an accessory after the fact. The evidence having shown that the larceny was the result of a conspiracy and that the plaintiff in error aided and abetted the commission of the crime from its inception, the instruction as given to the jury was proper.
The plaintiff in error was represented by the public defender of Cook county and it is urged that because he did not object to the answer by Wilma Harjes that the plaintiff in error proposed the plan for the larceny of Mrs. Stern's jewels, and because that officer did not cross-examine Miss Harjes, the plaintiff in error was improperly defended and, for that reason, the judgment should be reversed and the cause remanded. The objection is without merit. The answer, it has been shown, was competent and an objection to the question which elicited it or a motion to strike the answer would have been of no avail. The three defendants on trial were represented by three attorneys. Miss Harjes had been subjected to a long and thorough cross-examination by two of them with no appreciable advantage to the defendants. A wise discretion, inculcated by ample experience, undoubtedly induced the public defender to refrain from further cross-examination.
The judgment of the criminal court of Cook county is affirmed.
Judgment affirmed. *Page 121 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1010896/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6287
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN WESLEY FAIRCLOTH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
District Judge. (CR-95-72-H)
Submitted: June 12, 2003 Decided: June 17, 2003
Before WIDENER, LUTTIG, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Wesley Faircloth, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Wesley Faircloth appeals the district court’s order
authorizing the sale of real property pursuant to a fine in a
criminal judgment imposed in 1996. We have reviewed the record and
find no reversible error. Accordingly, we affirm for the reasons
stated by the district court. See United States v. Faircloth, No.
CR-95-72-H (E.D.N.C. Jan. 22, 2003). We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2750294/ | PURSUANT TO INTERNAL REVENUE CODE
SECTION 7463(b),THIS OPINION MAY NOT
BE TREATED AS PRECEDENT FOR ANY
OTHER CASE.
T.C. Summary Opinion 2014-104
UNITED STATES TAX COURT
MELANIE L. THOMAS-KOZAK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 802-12S. Filed November 10, 2014.
Norman D. McKellar, for petitioner.
John R. Bampfield and William W. Kiessling, for respondent.
SUMMARY OPINION
GALE, Judge: This case was heard pursuant to the provisions of section
7463 of the Internal Revenue Code in effect when the petition was filed.1
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code of 1986, as in effect for the years in issue, and all Rule references
are to the Tax Court Rules of Practice and Procedure. All dollar amounts are
rounded to the nearest dollar.
-2-
Pursuant to section 7463(b), the decision to be entered is not reviewable by any
other court, and this opinion shall not be treated as precedent for any other case.
Respondent determined deficiencies in petitioner’s 2008 and 2009 Federal
income tax of $7,175 and $7,659, respectively, and accuracy-related penalties
under section 6662(a) of $1,435 and $1,532, respectively. After concessions,2 the
issues for decision are:
(1) whether petitioner is entitled to a deduction for medical expenses for
2008 in an amount greater than that allowed by respondent;
(2) whether petitioner is entitled to a charitable contribution deduction for
2009 in an amount greater than that allowed by respondent;
2
The notice of deficiency disallowed deductions for all but $90 (for each
year) of the $29,525 and $28,596 of expenses petitioner reported on her 2008 and
2009 Schedules A, Itemized Deductions, respectively, for “Job Expenses and
Certain Miscellaneous Deductions” (lines 21-24). These claimed amounts
included tax preparation fees of $245 and depreciation of $2,764 for 2008 and a
deduction for “other” of $4,808 for 2009. Petitioner has not addressed any of
these three items, and we accordingly deem her to have conceded them to the
extent they exceed the $90 respondent allowed for each year.
The notice of deficiency also determined that petitioner’s filing status for
each year at issue was “married filing separately” rather than “single” as claimed
on her 2008 and 2009 returns. As petitioner has not addressed this issue, it is
likewise deemed conceded.
-3-
(3) whether petitioner is entitled to deductions for unreimbursed employee
business expenses for 2008 and 2009 in amounts greater than those allowed by
respondent;
(4) whether petitioner is entitled to a deduction for moving expenses for
2009; and
(5) whether petitioner is liable for accuracy-related penalties for 2008 and
2009.
Background
Some of the facts have been stipulated and are so found. The stipulation of
facts and the accompanying exhibits are incorporated herein by this reference. At
the time the petition was filed, petitioner resided in Tennessee.
Starting in April 2008 and continuing through the end of 2009 petitioner
worked as a mechanical engineer for SunCoke Energy, a division of Sunoco, Inc.
(Sunoco). During 2008 and 2009 petitioner maintained a residence outside
Knoxville, Tennessee. During 2008 she commuted from that residence to a
Sunoco office in Knoxville, but in 2009 her work responsibilities often required
her to travel to other jobsites, principally a jobsite in the St. Louis, Missouri, area.
Sunoco had a written policy for reimbursing employees for their work-
related expenses for the years at issue. Sunoco’s reimbursement policy had
-4-
provisions covering, among other things, business travel, membership in
professional and other organizations, clothing needed for weather or safety
conditions, and meals with persons having business relationships with the
company.
The policy’s provisions covering lodging expenses provided that Sunoco
would not reimburse “multiple hotel expenses on the same night stay for a single
individual in more than one location”. The policy’s provisions covering expenses
relating to an employee’s profession provided that “[e]xpenses associated with
membership * * * in professional, business, civic, and trade organizations can be
reimbursed at * * * [Sunoco’s] discretion”. They also provided that “[Sunoco]
will provide reimbursement for authorized subscriptions to periodicals and
technical or scientific publications serving a business purpose, at * * * [Sunoco’s]
discretion.”
Sunoco provided petitioner with an American Express credit card (corporate
card) to use in paying business expenses. The Sunoco reimbursement policy
required that the corporate card be used “whenever possible” for all business
expenses incurred by an employee, including meals.
Petitioner filed timely Federal income tax returns for 2008 and 2009. On
her 2008 return she reported adjusted gross income of $106,844 and claimed
-5-
deductions for medical expenses of $15,381 and unreimbursed employee business
expenses of $26,516. On her 2009 return she reported adjusted gross income of
$74,013 and claimed a deduction of $6,718 for moving expenses, a deduction of
$2,034 for charitable contributions, and a deduction for $23,788 of unreimbursed
employee business expenses. On her 2008 and 2009 tax returns she reported a
Knoxville area post office box as her address.
Respondent subsequently mailed to petitioner a notice of deficiency with
respect to her 2008 and 2009 taxable years. The notice disallowed Schedule A
deductions that petitioner claimed for medical expenses for 2008, the charitable
contribution deduction for 2009, and miscellaneous deductions, including the
deductions for unreimbursed employee business expenses, for both years, as well
as the moving expense deduction for 2009. The notice determined that petitioner
was liable for accuracy-related penalties for both years.
Petitioner filed a timely petition with the Court seeking redetermination of
the deficiencies.
Discussion
Generally, the Commissioner’s determinations in a notice of deficiency are
presumed correct, and the taxpayer bears the burden of proving that the
determinations are erroneous. Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111,
-6-
115 (1933). Deductions are a matter of legislative grace, and the burden of
showing entitlement to a claimed deduction is on the taxpayer.3 Rule 142(a);
INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).
Medical Expenses
Petitioner claimed a deduction for medical expenses of $15,381 for 2008.
Respondent allowed $11,016 of that amount in the notice of deficiency and
conceded an additional $336 at trial, leaving $4,029 in dispute. Of the disputed
amount, petitioner has addressed only a $569 expenditure for a bicycle and related
accessories. While respondent concedes that petitioner spent $569 for a bicycle
and related accessories, he contends that the expenditure does not qualify as a
medical expense.
Petitioner testified that her physician determined that she had excessive
adrenaline in her body and recommended that she exercise to alleviate the
condition. She conceded that her physician did not recommend any particular
method of exercise but testified that the bicycle could be set up on a stand in a
hotel room and therefore provided a convenient means of exercising during her
travels.
3
Petitioner has not claimed or shown entitlement to any shift in the burden
of proof pursuant to sec. 7491(a).
-7-
Section 213(a) as in effect for 2008 provided a deduction for expenditures
for medical care of the taxpayer not compensated for by insurance or otherwise
that exceed 7.5% of adjusted gross income.4 “Medical care” is defined in section
213(d)(1) to include expenditures for the diagnosis, cure, mitigation, treatment, or
prevention of disease, or for the purpose of affecting any structure or function of
the body. Section 213 carves out a limited exception to the general rule in section
262 that prohibits the deduction of personal, living, or family expenses. Jacobs v.
Commissioner, 62 T.C. 813, 818 (1974). Section 1.213-1(e)(1)(ii), Income Tax
Regs., provides that medical care deductions will be confined strictly to expenses
incurred primarily for the prevention or alleviation of a physical or mental defect
or illness. These expenditures must satisfy a “but for” test: the taxpayer must
show that the expenditure was an essential element of the treatment and that it
would not have been incurred for nonmedical reasons. Jacobs v. Commissioner,
62 T.C. at 819. Inquiries of this nature are primarily factual. Id. (citing Stringham
v. Commissioner, 12 T.C. 580, 584-585 (1949), aff’d per curiam, 183 F.2d 579
(6th Cir. 1950)).
4
The adjusted gross income floor was raised to 10% for taxable years
beginning after December 31, 2012. See Patient Protection and Affordable Care
Act, Pub. L. No. 111-148, sec. 9013(a), 124 Stat. at 868.
-8-
Even accepting arguendo petitioner’s contention that she had an excessive
adrenaline condition, she has not shown that bicycle exercise was essential to the
treatment of that condition. Indeed, she conceded that her physician’s
recommendation was for more exercise generally rather than bicycle riding
specifically. She did not produce evidence indicating that she could not engage in
other methods of exercise. Given the inherent recreational uses of a bicycle, we
conclude that petitioner has not shown that the bicycle would not have been
purchased “but for” her medical condition. Instead, we conclude that the
expenditure was only beneficial to her health generally and therefore does not
qualify as medical care. See France v. Commissioner, 690 F.2d 68, 69 (6th Cir.
1982) (finding physician-recommended dance lessons to alleviate arthritic pains
and nervous tensions not medical care), aff’g T.C. Memo. 1980-215; Thoene v.
Commissioner, 33 T.C. 62, 65 (1959) (finding physician-recommended dance
lessons not medical care); Peacock v. Commissioner, T.C. Memo. 1978-30, 37
T.C.M. (CCH) 177, 184 (1978) (finding gym membership expense not medical
care where physician recommended exercise). We therefore conclude that
petitioner is not entitled to deduct medical expenses for 2008 in excess of those
allowed by respondent.
-9-
Charitable Contributions
Petitioner claimed a deduction for charitable contributions of $2,034 for
2009. Respondent disallowed the entire deduction in the notice of deficiency but
conceded $1,500 at trial, leaving $534 in dispute. Petitioner argues that this
amount relates to her volunteer work on a Habitat for Humanity project. She
testified that $314 pertained to vehicle expenses incurred in driving between St.
Louis and Knoxville on multiple occasions to work on the project. She calculated
her vehicle expenses using the 14-cent standard mileage rate under section 170(i).
She testified that the remaining $220 in dispute pertained to the cost of meals that
she purchased for other participants on this project.
Section 170(a)(1) allows a deduction for charitable contributions made
during the taxable year “if verified under regulations prescribed by the Secretary.”
The contributions must be to or for the use of a qualifying organization. Sec.
170(c). Section 1.170A-1(g), Income Tax Regs., prohibits deductions for
charitable contributions of services but allows deductions for “unreimbursed
expenditures made incident to the rendition of services”. Expenditures of this
nature under $250 must be substantiated with written records that substantially
comply with the requirements of section 1.170A-13(a)(1), Income Tax Regs. See
Van Dusen v. Commissioner, 136 T.C. 515, 534-535 (2011). These documents
- 10 -
must be reliable evidence of the claimed expenses, such as check copies, bank
account statements, and credit card statements. See id. at 533-535. Such
expenditures of $250 or more must also be substantiated with a contemporaneous
written statement from the donee organization containing, among other things, a
description of the services that the taxpayer provided. See id. at 536-537; sec.
1.170A-13(f)(10), Income Tax Regs.
Petitioner offered no documentation that would satisfy the foregoing
requirements. She offered only a spreadsheet that lists the amounts of the vehicle
and meal expense deductions claimed, which she concedes she created when
preparing her return. She did not produce any receipts or other written records
that would tend to corroborate that she made the trips in her vehicle as claimed or
purchased the meals. Without additional corroboration, the noncontemporaneous
spreadsheet is not reliable evidence of her claimed expense deductions.
Additionally, she did not produce a written statement from Habitat for Humanity
regarding the services she provided to substantiate her vehicle expense, which
exceeded $250. Having failed to satisfy the substantiation requirements of section
1.170A-13, Income Tax Regs., she is not entitled to a charitable contribution
- 11 -
deduction for either the vehicle expenses or the costs of meals.5 We therefore
conclude that petitioner has not shown entitlement to any charitable contribution
deduction for 2009 in excess of that allowed by respondent.
Employee Business Expenses
Overview
Petitioner claimed deductions for $26,516 and $23,788 of unreimbursed
employee business expenses for 2008 and 2009, respectively. As detailed in the
Forms 2106, Employee Business Expenses, attached to her returns, the expenses
reported consisted of: vehicle expenses; travel expenses while away from home
overnight; “other” employee business expenses; meals and entertainment
expenses; and, in the case of 2009 only, transportation expenses. Respondent
disallowed deductions for all of these expenses for each of the years. At trial
respondent conceded $1,200 and $1,112 of these expenses for 2008 and 2009,
respectively, leaving $25,316 and $22,676 in dispute, respectively.
Section 162 allows a taxpayer to deduct all ordinary and necessary expenses
paid or incurred by the taxpayer in carrying on a trade or business, including
5
Even if petitioner had substantiated her meal purchases, they would be
more accurately characterized as nondeductible gifts to petitioner’s covolunteers
rather than meals “necessarily incurred” by petitioner while performing donated
services. See Cavalaris v. Commissioner, T.C. Memo. 1996-308, 1996 WL
380695, at *8-*9.
- 12 -
expenses paid or incurred as an employee. Lucas v. Commissioner, 79 T.C. 1, 6
(1982). The taxpayer cannot deduct such expenses, however, to the extent the
taxpayer is entitled to reimbursement from the employer for an expenditure related
to the taxpayer’s status as an employee. See id. at 7; Spielbauer v. Commissioner,
T.C. Memo. 1998-80, 1998 WL 78983, at *3-*4 (stating that ordinary and
necessary educational expenses deductible to the extent they exceeded the amount
that taxpayer was entitled to be reimbursed from employer). Deductions for such
expenses belong to the employer. See Kennelly v. Commissioner, 56 T.C. 936,
943 (1971), aff’d without published opinion, 456 F.2d 1335 (2d Cir. 1972). The
taxpayer bears the burden of proving that the taxpayer was not entitled to
reimbursement from the employer for such expenses. See Fountain v.
Commissioner, 59 T.C. 696, 708 (1973). The taxpayer can prove that he was not
entitled to reimbursement by, for example, showing that he was expected to bear
these costs. See id.; Dunkelberger v. Commissioner, T.C. Memo. 1992-723, 1992
WL 379282, at *1 (finding that management team expected taxpayer to bear
expense of business lunches with vendors). Where the taxpayer’s employer has a
reimbursement policy that covers the expenses, the taxpayer must show that he
sought reimbursement from his employer for the expenses. Orvis v.
Commissioner, 788 F.2d 1406, 1408 (9th Cir. 1986), aff’g T.C. Memo. 1984-533.
- 13 -
Where a taxpayer establishes that he paid or incurred a deductible expense
but does not establish the amount of the deduction to which he may be entitled, we
may in certain circumstances estimate the amount allowable. See Cohan v.
Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930); Vanicek v. Commissioner,
85 T.C. 731, 742-743 (1985). But for expenses subject to the more stringent
substantiation requirements of section 274(d), the Cohan rule may not be used.
See Sanford v. Commissioner, 50 T.C. 823, 827 (1968), aff’d per curiam, 412 F.2d
201 (2d Cir. 1969); sec. 1.274-5T(a)(4), Temporary Income Tax Regs., 50 Fed.
Reg. 46014 (Nov. 6, 1985).
Vehicle Expenses
2008
Petitioner has not addressed the $15,528 of vehicle expenses for which she
claimed a deduction for 2008. We accordingly find that she has conceded them
and sustain respondent’s disallowance thereof. See Rule 34(b)(4).
2009
Petitioner claimed a deduction for vehicle expenses of $7,405 for 2009, all
of which respondent disallowed.
Petitioner testified that she incurred these expenses in connection with
round trip travel between various Sunoco jobsites and her Knoxville residence.
- 14 -
She testified that Sunoco would reimburse her for these round trips only if they
occurred at times that Sunoco designated for traveling home, typically every other
weekend. According to petitioner, however, her responsibilities at these jobsites,
which involved checking on safety conditions when most workers were not on the
site, often required her to work on weekends. Consequently, some of her trips
home would occur at times other than the designated weekend times and thus were
ineligible for reimbursement, according to petitioner. She testified that the vehicle
expenses she claimed arose from such travel. As substantiation for this travel,
petitioner produced a spreadsheet that she conceded she created when preparing
her return.
An employee may be entitled to deduct as a business expense the cost of
travel between her residence and a temporary jobsite. See sec. 162(a)(2); Mitchell
v. Commissioner, T.C. Memo. 1999-283, 1999 WL 669954, at *4-*5. However,
business use of a passenger automobile is subject to the substantiation
requirements of section 274(d) because such a vehicle is “listed property” as
defined in section 280F(d)(4)(A)(i). For such automobile expenses, a taxpayer
must substantiate, by adequate records or by sufficient evidence corroborating the
taxpayer’s own statement: (1) the amount of the expenditure; (2) the mileage for
each business use of the automobile; (3) the date of the business use; and (4) the
- 15 -
business purpose of the use. See sec. 1.274-5T(b)(6), (c)(1), Temporary Income
Tax Regs., 50 Fed. Reg. 46016 (Nov. 6, 1985).
Petitioner has not satisfied the substantiation requirements of section
274(d). The spreadsheet and petitioner’s testimony regarding the vehicle expenses
are not sufficient to establish each element above. Petitioner did not produce any
documentary evidence that would tend to corroborate the spreadsheet entries or
offer testimony regarding what she relied upon to create the entries.
Even aside from her failure to satisfy section 274(d), petitioner has not
corroborated her testimony that Sunoco’s reimbursement policy for trips home was
confined to weekend travel. Sunoco’s written reimbursement policy for
automobile use contained no such provision, and petitioner has not produced
correspondence with or testimony from a supervisor that would corroborate this
feature of Sunoco’s reimbursement policy. See Kessler v. Commissioner, T.C.
Memo. 1985-254, 49 T.C.M. (CCH) 1565, 1570-1571, n.9 (1985) (noting that
taxpayer called his supervisor as witness). We conclude that petitioner has failed
to show she was not entitled to reimbursement of these vehicle expenses.
Because petitioner has not satisfied the substantiation requirements of
section 274(d) or shown that she was not entitled to reimbursement, we sustain
- 16 -
respondent’s disallowance of the vehicle expense deductions she claimed for
2009.
Travel Expenses While Away From Home Overnight
2008
Petitioner reported $2,140 of unreimbursed employee business expenses for
travel while away from home overnight on line 3 of her 2008 Form 2106, all of
which respondent disallowed.
To substantiate these expenses, petitioner produced a spreadsheet that she
conceded she created when preparing her 2008 return, as well as receipts
corresponding to the spreadsheet entries.
As indicated by the proffered receipts, approximately $1,348 of the disputed
amount is for hotel lodging in various cities. Petitioner testified that Sunoco’s
reimbursement policy provided reimbursement for only one lodging expense per
night and that she often incurred two lodging expenses for a given evening when
Sunoco required her to travel from one jobsite to another on short notice. While
Sunoco’s reimbursement policy tends to corroborate petitioner’s claim,6 we
nonetheless reject the claimed deduction for lodging expenses for 2008 because
6
As noted previously, the policy stated that Sunoco would not reimburse
“multiple hotel expenses on the same night stay for a single individual in more
than one location”.
- 17 -
petitioner did not provide any corroborating evidence that she paid for a hotel
room in more than one location on the same evening at any time in 2008. She did
not provide, for example, receipts for hotel charges from two hotels for the same
evening or correspondence with Sunoco management regarding these expenses.
Thus, she has not provided competent evidence that any of the overnight lodging
expenses she claimed for 2008 would trigger the exclusion from reimbursement
under Sunoco’s reimbursement policy. We decline to accept petitioner’s self-
serving testimony without additional corroboration. See Tokarski v.
Commissioner, 87 T.C. 74, 77 (1986). Consequently, we conclude that petitioner
has failed to show that she was not eligible for reimbursement for these expenses.
See Lucas v. Commissioner, 79 T.C. at 7; Fountain v. Commissioner, 59 T.C. at
708.
As indicated by the proffered receipts, an additional $773 of the disputed
amount is for round trip airfare between Knoxville and Cleveland, Ohio.
Petitioner offers no explanation as to why, if this flight was taken in connection
with her duties at Sunoco, she was not reimbursed for it, given that Sunoco’s
policy provided for such reimbursement. In the absence of further evidence, we
reject petitioner’s claim. See Lucas v. Commissioner, 79 T.C. at 7; Fountain v.
Commissioner, 59 T.C. at 708.
- 18 -
The remaining receipts consist of a $5 expense at a newsstand for
“magazines” and a $14 expense for a passport photograph. The magazines are a
nondeductible personal expense, as is the passport-related expense. See Baratelle
v. Commissioner, T.C. Memo. 2000-359, 2000 WL 1732434, at *6.7
In sum, we conclude that petitioner has not shown entitlement to a
deduction for any of the $2,140 of expenses claimed for overnight travel for 2008.
Accordingly, we sustain respondent’s disallowance of these expenses.
2009
Petitioner reported $3,398 of unreimbursed employee business expenses for
travel while away from home overnight on line 3 of her 2009 Form 2106 and an
additional $584 on line 2, purportedly for local transportation.8 Respondent
7
But see Payne v. Commissioner, T.C. Memo. 1986-93, 51 T.C.M. (CCH)
579, 582 (1986) (concluding on the facts of that case that a passport fee is a
deductible business expense).
8
Although petitioner reported $584 on line 2 of the Form 2106 as expenses
for parking fees, tolls, and transportation, an examination of her supporting
receipts reveals that the expenditures were all related to travel while away from
home. This figure includes a total of $310 from hotel invoices for lodging,
parking, and Internet service that will be considered with the associated lodging
expenses.
- 19 -
disallowed all of the foregoing. As substantiation, petitioner produced
spreadsheets she concedes she created when preparing her return and receipts
corresponding to the spreadsheet entries.9
Our analysis for petitioner’s 2009 travel expense deduction claims is similar
to that for 2008. Approximately $2,895 of the receipts are for hotel lodging (and
associated expenses such as hotel parking and Internet service) in various cities.
Petitioner offered the same explanation for Sunoco’s not reimbursing her for these
lodging expenses as she offered for her 2008 lodging expenses; that is, that
Sunoco reimbursed her for only one lodging expense per night. Here again,
however, the lodging expense receipts that petitioner proffered fail to demonstrate
any instance where she incurred two lodging expenses for the same night. She did
not produce other evidence to corroborate her explanation, such as correspondence
with Sunoco management about these expenses. Consequently, we find that
petitioner has failed to show that she was not eligible for reimbursement for the
$2,895 of lodging expenses for which she claimed a deduction for 2009. See
Lucas v. Commissioner, 79 T.C. at 7; Fountain v. Commissioner, 59 T.C. at 708.
The remaining travel expenses for which petitioner claimed a deduction
consist of $593 for a rental car used in Montreal (which petitioner contends was
9
The receipts total $585, a difference we treat as de minimis.
- 20 -
the location of a Sunoco jobsite) and $221 for a rental car originating in Knoxville
that petitioner contends was for trip to a Sunoco facility in New Albany, Indiana.
In contrast to her testimony regarding the lodging expenses, petitioner offers no
explanation as to why Sunoco would not reimburse for rental cars used in these
circumstances. Sunoco’s written reimbursement policy provided for such
reimbursement. In the absence of additional evidence, we conclude that petitioner
has not shown that she was not entitled to reimbursement. See Lucas v.
Commissioner, 79 T.C. at 7; Fountain v. Commissioner, 59 T.C. at 708.
With respect to the remaining $274 for which petitioner claimed a
transportation expense deduction, the substantiating receipts show expenditures
that are properly characterized as expenses for overnight travel: a $254 car rental
from March 19-20 in Wichita, Kansas; a $20 parking fee at the Knoxville airport
on March 20; and a $1 highway toll in Illinois on September 6. Given the date
overlap between the Wichita car rental and the Knoxville airport parking fee, we
infer that petitioner flew from Knoxville to Wichita on March 19 and returned
March 20. Accepting petitioner’s testimony that Wichita was one of the Sunoco
jobsites to which she was assigned, we conclude that the March travel to Wichita
was work related. Here again, however, petitioner offered no explanation for
Sunoco’s not reimbursing her for any of the foregoing expenses even though
- 21 -
Sunoco’s written reimbursement policy provided for it. We therefore sustain
respondent’s disallowance of these expenses. See Lucas v. Commissioner, 79
T.C. at 7; Fountain v. Commissioner, 59 T.C. at 708.
We accordingly sustain respondent’s disallowance of the $3,398 and $584
for which petitioner claimed deductions as overnight travel and local
transportation expenses, respectively, for 2009.
“Other” Employee Business Expenses
2008
Petitioner reported $7,400 on line 4 of her 2008 Form 2106 for “other”
employee business expenses. The notice of deficiency disallowed the deduction
for the expenses in full, but respondent conceded $1,200 of the expenses at trial,
leaving $6,200 of the expenses in dispute.
Petitioner testified that $280 of the disputed amount pertained to steel-
reinforced metatarsal boots that Sunoco required all personnel to wear on jobsites.
She produced a receipt to substantiate the purchase, but the receipt indicates that
the $280 claimed was split between a boots purchase of $142 and a coveralls
purchase of $138 (allocating the sales tax proportionally). Petitioner testified that
the steel reinforcement in the boots ran above the ankle and that the boots were
required for safety on jobsites. She testified that she requested reimbursement
- 22 -
from Sunoco but was denied it because the company believed reimbursing her
would require it to reimburse all contractors at its jobsites as well. Sunoco’s
reimbursement policy, however, stated that the cost of work-related clothing
needed for “weather/safety conditions” was reimbursable.
The cost of clothing is deductible as an employee business expense only if
the clothing is required for the taxpayer’s employment, unsuitable for general
wear, and not worn for personal use. Kinney v. Commissioner, T.C. Memo. 2008-
287, 2008 WL 5330815, at *9 (citing Hynes v. Commissioner, 74 T.C. 1266, 1290
(1980), and Yeomans v. Commissioner, 30 T.C. 757, 767 (1958)). The clothing
must be unsuitable for use outside of the taxpayer’s work environment and not
actually used outside of that environment. See Kinney v. Commissioner, 2008
WL 5330815, at *9.
We are satisfied that petitioner has shown entitlement to deduct the cost of
the boots. We readily accept the boots’ safety purpose and their required use on
job sites as plausible. It is clear the boots are not suitable for other purposes, and
we accept petitioner’s plausible testimony that Sunoco refused reimbursement out
of concern that it not incur an obligation to purchase similar boots for others
(notwithstanding the formal terms of Sunoco’s reimbursement policy for safety-
- 23 -
related clothing). We therefore conclude that petitioner has shown entitlement to a
deduction for an “other” employee business expense of $142 for the boots.
As for the coveralls, petitioner testified that they were fire-retardant clothing
that she needed for work on jobsites. But the receipt does not indicate that the
coveralls were fire retardant. In contrast to her testimony regarding the boots,
petitioner has not shown that the coveralls were unsuitable for general wear and
not worn for personal use. See id. She also failed to address whether she was
entitled to reimbursement for the coveralls. See Lucas v. Commissioner, 79 T.C.
at 7; Fountain v. Commissioner, 59 T.C. at 708. Accordingly, petitioner has not
shown entitlement to an employee business expense deduction for the coveralls.
Petitioner has not addressed the remaining $5,920 of “other” employee
business expenses for which she claimed a deduction for 2008. We accordingly
find that she has conceded them.
We conclude that petitioner is not entitled to claim a deduction for “other”
employee business expenses for 2008 in excess of the amount allowed by
respondent, plus the $142 expense for boots that we have concluded petitioner is
entitled to deduct.
- 24 -
2009
Petitioner reported $11,528 on line 4 of her 2009 Form 2106 for “other”
employee business expenses. The notice of deficiency disallowed them in full, but
respondent conceded $1,112 of them at trial, leaving $10,416 in dispute.
Petitioner testified that $1,319 of the disputed amount pertained to
fire-retardant clothing and a special safety harness that she needed for work on
jobsites. While petitioner produced receipts for these items totaling $1,319, she
offered no testimony concerning any refusal by Sunoco to reimburse her for the
expenditures.
The receipts in question show purchases of clothing including shoes, a
jacket, and coveralls totaling $793 but do not indicate that any of the clothing was
fire retardant. As with the coveralls expense she reported for 2008, petitioner has
not shown that this clothing was unsuitable for general wear and not worn for
personal use. See Kinney v. Commissioner, 2008 WL 5330815, at *9.
Additionally, petitioner has not addressed whether she was entitled to
reimbursement for the clothing. See Lucas v. Commissioner, 79 T.C. at 7;
Fountain v. Commissioner, 59 T.C. at 708. Accordingly, petitioner has not shown
entitlement to deduct the clothing purchases.
- 25 -
As for the safety harness, the receipts do not show such a purchase. As best
we can tell, the harness could be represented by only two receipts of purchases of
unspecified items from “W.W. Granger” totaling $525, one for $454 and one for
$71. Even if we were to accord petitioner the benefit of the doubt on her
substantiation, given the apparent safety purpose served by the harness--which
would bring it within the clear terms of Sunoco’s reimbursement policy--her
failure to explain the circumstances of Sunoco’s not reimbursing her persuades us
that she has failed to show that she did not receive reimbursement. See Lucas v.
Commissioner, 79 T.C. at 7; Fountain v. Commissioner, 59 T.C. at 708.
Petitioner testified that $349 of the disputed “other” employee business
expenses pertained to membership fees for the American Welding Society and the
American Society of Mechanical Engineers and an American Society of
Mechanical Engineers publication. She produced receipts to substantiate these
expenditures. Petitioner testified that Sunoco did not reimburse her.
Given that Sunoco retained discretion as to whether it would reimburse the
foregoing expenses,10 we are satisfied on this record that petitioner was not
10
As noted previously, Sunoco’s reimbursement policy provided that
“[e]xpenses associated with membership * * * in professional, business, civic, and
trade organizations can be reimbursed at * * * [Sunoco’s] discretion”. Sunoco’s
reimbursement policy also provided that “[Sunoco] will provide reimbursement
(continued...)
- 26 -
reimbursed, and the business purpose is apparent. We therefore conclude that
petitioner has shown entitlement to a deduction for $349 of “other” employee
business expenses beyond those respondent allowed.
The “other” employee business expenses in dispute also include $1,763
petitioner spent for tickets to Bristol Motor Speedway.11 Petitioner testified that
she used the tickets to take her supervisor to the races for “comradery” and
conceded that she had not sought reimbursement from Sunoco. Expenditures for
sporting event tickets or drinks merely to foster camaraderie among coworkers
lack a business purpose under section 162, see Finney v. Commissioner, T.C.
Memo. 1980-23, 39 T.C.M. 938, 949-950 (1980); Brenner v. Commissioner, T.C.
Memo. 1967-239, 26 T.C.M. (CCH) 1210, 1216 (1967), unless, possibly, the
purpose is to facilitate acquaintances with new coworkers, a contention not made
here, see Moss v. Commissioner, 758 F.2d 211, 213 (7th Cir. 1985), aff’g 80 T.C.
1073 (1983). We therefore sustain respondent’s disallowance of a deduction for
this expenditure.
10
(...continued)
for authorized subscriptions to periodicals and technical or scientific publications
serving a business purpose, at * * * [Sunoco’s] discretion.”
11
Expenses of this nature are properly reported as meals and entertainment
expenses on Form 2106 line 5. Petitioner treated other Bristol Motor Speedway
ticket expenses as meals and entertainment expenses, discussed infra.
- 27 -
Also included in the disputed “other” employee business expenses is a $214
expense for a power adapter that petitioner testified she needed to power her
laptop computer12 when a power outlet was unavailable at jobsites. However, the
receipt substantiating the purchase of the power adapter is dated December 26,
2008, indicating that this expense would be deductible for 2008 if at all. See sec.
1.461-1(a), Income Tax Regs. In any event, as petitioner has not addressed
whether she was eligible for reimbursement or sought it, she has not shown
entitlement to this deduction for either year. See Fountain v. Commissioner, 59
T.C. at 708.
Finally, although petitioner produced two receipts indicating that she made
expenditures totaling $62 for “business services” at a UPS Store and a “16GB
SDCARD”, she did not offer any testimony or other evidence to support their
business purpose. We accordingly deem them conceded.
This leaves $6,709 of disputed “other” employee business expenses that
petitioner has not addressed. We accordingly deem them conceded.
12
The record is silent as to whether the laptop was petitioner’s or Sunoco’s
property.
- 28 -
We conclude that petitioner has shown entitlement to deduct an additional
$349 in “other” employee business expenses for 2009 beyond the amount allowed
by respondent.
Meals and Entertainment Expenses
Petitioner reported $1,448 and $873 for meals and entertainment expenses
on line 9 of her 2008 and 2009 Forms 2106, respectively, all of which respondent
disallowed.
As substantiation, petitioner produced spreadsheets (that she created when
preparing her returns) and receipts covering $5,793 of meals and entertainment
expenses for 2008 and $3,491 for 2009. Petitioner produced 49 receipts totaling
$2,841 for meal expenses for 2008 and 59 receipts totaling $2,701 for meal
expenses for 2009. The remaining $2,951 and $790 of receipts for 2008 and 2009,
respectively, were for Bristol Motor Speedway tickets.
Meals and entertainment expenses are subject to a 50% limitation prescribed
by section 274(n). They are also subject to the substantiation requirements of
section 274(d). See sec. 1.274-5T(b)(2) and (3), (c), Temporary Income Tax
Regs., 50 Fed. Reg. 46014-46016 (Nov. 6, 1985). A taxpayer must substantiate,
by adequate records or by sufficient evidence corroborating the taxpayer’s own
statement, several elements including the business purpose of the meal and the
- 29 -
business relationship between the meal attendees and the taxpayer. As with other
employee business expenses, the taxpayer must also show that he was not entitled
to reimbursement for them. See Fountain v. Commissioner, 59 T.C. at 708.
Sunoco’s written reimbursement policy provided with respect to business
meals that the expenses would be reimbursed if incurred in connection with
meeting persons having a business relationship with the company. The policy also
required that the corporate card be used to pay for business meals “whenever
possible”.
Petitioner testified that the unreimbursed meal expenses for which she
claimed deductions arose from after-hours working dinners with contractors hired
by Sunoco with whom petitioner worked. According to petitioner, Sunoco
encouraged her to facilitate these after-hours meals with the contractors to
expedite project completion. Petitioner testified that she submitted reimbursement
requests to Sunoco and they were denied, which she attributed to a Sunoco policy
prohibiting reimbursement for meals provided to contractors to whom Sunoco was
paying a per diem.
The difficulty with petitioner’s contention is that only 3 of the 49 meal
receipts for 2008 and 5 of the 59 meal receipts for 2009 conform with her “after
hours” description and the reimbursement policy requirement that they be charged
- 30 -
on the corporate card (which was an American Express card); that is, only eight of
the receipts petitioner proffered to substantiate her meal expenses establish that
the charges were on an American Express card at an “after hours” time. The
remaining 46 and 54 receipts for 2008 and 2009, respectively, establish that they
were not charged on an American Express card13 or incurred “after hours”.14
Since the eight receipts evidencing “after hours” American Express-charged
meals corroborate petitioner’s testimony, we conclude that she has satisfied the
section 274(d) substantiation requirements for these expenses. The meal expenses
on the three such receipts for 2008 total $469, and the meal expenses on the five
for 2009 total $316. We also accept petitioner’s explanation for Sunoco’s not
reimbursing her for these meals, as she could well have been unaware which
contractors were receiving per diem payments from Sunoco. We accordingly find
13
The bulk of these receipts demonstrates that the meals were charged on a
credit card other than American Express, while a few do not indicate whether a
credit card was used for payment. The fact that petitioner did not charge the bulk
of these meals on the corporate card as required by Sunoco’s reimbursement
policy independently supports an inference that the meals were personal.
Moreover, in 11 instances the payor on the receipt was not petitioner but “David
Kozak” (presumably her spouse at the time), further suggesting that these meals
were personal.
14
The bulk of the receipts establishes that the meals occurred during
business hours. In a few instances, the receipts do not establish the time of the
meal.
- 31 -
that petitioner is entitled to deduct additional employee business expenses beyond
those allowed by respondent of 50% of $469 and $316 for 2008 and 2009,
respectively.
As for the remaining meal receipts for each year, petitioner has not
produced sufficient evidence to corroborate her own statement regarding the
business purpose of these meals; that is, that they were after-hours working
dinners. Indeed, most of the receipts contradict petitioner’s testimony.
Consequently, she has not satisfied the substantiation requirements of section
274(d) for any of them.
With regard to the Bristol Motor Speedway tickets,15 although petitioner
produced receipts documenting the purchases (of $2,951 and $790 for 2008 and
2009, respectively), she did not address them and, accordingly, she is not entitled
to deductions for any portions of them as employee business expenses.
Moving Expenses
Petitioner claimed a moving expense deduction of $6,718 on her 2009 tax
return which was disallowed in the notice of deficiency.
15
Petitioner reported another purchase of such tickets, for $1,763, as an
“other” employee business expense on line 4 of her 2009 Form 2106. We
considered that claim previously.
- 32 -
To substantiate her claim, petitioner produced receipts totaling $5,01516 as
follows: (1) $2,397 for three months of lodging at an extended stay facility near
St. Louis for April, May, and July 2009;17 (2) $811 for two separate hotel stays in
St. Louis, each for a few evenings, in February 2009; (3) $257 for three months of
storage unit fees for a unit near her Knoxville residence; and (4) $1,550 for a car
rental from April 1 to April 15.
Petitioner testified that Sunoco transferred her to a St. Louis jobsite in
January 2009 to work on a project and that St. Louis was her base of operations
for the remainder of 2009. She testified that she anticipated returning to Knoxville
once the St. Louis project was complete.
Section 217(a) allows a taxpayer to deduct moving expenses that arise in
connection with the commencement of work by the taxpayer as an employee at a
“new principal place of work.” The taxpayer must show that his employment at
the new principal place of work was permanent or indefinite rather than
temporary. See Goldman v. Commissioner, 497 F.2d 382, 383 (6th Cir. 1974),
16
We treat petitioner as having conceded her moving expense deduction to
the extent it exceeded $5,015.
17
Petitioner reported the April, May, and July extended stay charges as
moving expenses but included some of the June, August, and September charges
from the same facility in her unreimbursed travel expenses while away from home
overnight.
- 33 -
aff’g T.C. Memo. 1973-132; Schweighardt v. Commissioner, 54 T.C. 1273, 1277
(1970); Davis v. Commissioner, T.C. Memo. 1979-47, 38 T.C.M. (CCH) 189, 192
(1979).
Under section 217(b)(1), “moving expenses” are defined as a taxpayer’s
reasonable expenses of moving his belongings from his former residence to his
new residence and of traveling (including lodging) from his former residence to
his new residence. Moving expenses do not include the cost of lodging at the new
principal place of work. See Work v. Commissioner, T.C. Memo. 2005-259, 2005
WL 2885850, at *3 (explaining that the Omnibus Budget Reconciliation Act of
1993, Pub. L. No. 103-66, sec. 13213(a)(1), 107 Stat. at 473, removed all
allowances for temporary lodging).
The evidence in the record shows that St. Louis was not a permanent or
indefinite place of employment for petitioner. She conceded in her testimony that
she planned to return to Knoxville once the St. Louis project was finished,
indicating the temporary nature of the assignment. Moreover, petitioner reported a
Knoxville post office box as her address on her timely 2009 tax return, indicating
that she anticipated returning to Knoxville or actually had done so when she filed
her return in 2010.
- 34 -
In addition, none of the expenses petitioner substantiated qualify as moving
expenses under section 217(b). As for the lodging charges, she cannot deduct
such charges at the new location as moving expenses. See id., 2005 WL 2885850,
at *3. She failed to show that the property she stored near her Knoxville residence
was actually moved to St. Louis. See id. at *4. The fact that the car rental was for
two weeks indicates that petitioner used the rental car for purposes other than
moving her belongings between Knoxville and St. Louis.
Because petitioner has not shown that her employment in St. Louis was
permanent or indefinite and because none of the expenses petitioner substantiated
qualify as moving expenses under section 217(b), we sustain respondent's
disallowance of petitioner’s moving expense deduction.
Accuracy-Related Penalties
Respondent determined accuracy-related penalties under section 6662(a)
for 2008 and 2009. Respondent argues that petitioner is liable for these penalties
because of negligence and a substantial understatement of income tax. See sec.
6662(b)(1) and (2). Petitioner disputes her liability for the penalties.
Section 6662(a) and (b)(1) and (2) imposes a penalty equal to 20% of an
underpayment of tax required to be shown on a return that is attributable to a
substantial understatement of income tax or to negligence. An “underpayment of
- 35 -
tax” for this purpose is defined as the excess of the amount of income tax imposed
over the sum of the amount of tax shown as the tax by the taxpayer on his return
and any tax previously assessed (or collected without assessment), less any rebate.
Sec. 6664(a). An “understatement” is the excess of the amount of tax required to
be shown on a return over the amount of tax shown on the return less any rebate.
Sec. 6662(d)(2)(A). An understatement is substantial when it exceeds the greater
of 10% of the tax required to be shown on the return or $5,000. Sec.
6662(d)(1)(A).
For purposes of the accuracy-related penalty, “negligence” is defined as any
failure to make a reasonable attempt to comply with the provisions of the Internal
Revenue Code, and “disregard” includes any careless, reckless, or intentional
disregard. Sec. 6662(c). Negligence includes any failure to exercise ordinary and
reasonable care in the preparation of a tax return or any failure to keep adequate
books and records or to substantiate items properly. Sec. 1.6662-3(b)(1), Income
Tax Regs.
However, no penalty is imposed with respect to any portion of an
underpayment if the taxpayer acted with reasonable cause and in good faith with
respect to that portion. Sec. 6664(c)(1); sec. 1.6664-4(a), Income Tax Regs. The
determination of whether a taxpayer acted with reasonable cause and in good faith
- 36 -
is made on a case-by-case basis, taking into account all pertinent facts and
circumstances. Sec. 1.6664-4(b)(1), Income Tax Regs. Generally, the most
important factor is the extent of the taxpayer’s effort to assess the taxpayer’s
proper tax liability. Id. An honest misunderstanding of fact or law that is
reasonable in light of all of the facts and circumstances, including the experience,
knowledge, and education of the taxpayer may indicate reasonable cause and good
faith. Id.
Negligence or Disregard of Rules and Regulations
2008
Petitioner had reasonable cause with respect to the portion of her 2008
underpayment attributable to her $569 medical expense deduction claim for the
bicycle and related accessories. Respondent conceded that petitioner purchased
them, we found her testimony regarding her physician’s recommendation credible,
and her belief that she could deduct them as a medical expense was reasonable in
the circumstances. Accordingly, petitioner is not liable for an accuracy-related
penalty on the portion of her underpayment attributable to that deduction.
- 37 -
Regarding the other deductions for expenses for which we sustained the
disallowance, petitioner did not even defend almost $28,00018 of them; that is, she
offered no argument or substantiation whatsoever. These expenses amount to
approximately 82% of the $33,800 of deductions for expenses that respondent
disallowed for 2008 in the notice of deficiency.19 Her negligence with respect to
these deductions is patent. As for the remaining $3,257, for which petitioner
offered some documentation or testimony,20 her evidence fell woefully short of
establishing entitlement to the deductions claimed, as our previous discussion
indicates. This means that petitioner could not substantiate approximately
$31,000 of the deductions she claimed for 2008 and had no support whatsoever for
approximately $28,000 of them. Given the size of these figures in relation to her
income, we conclude that petitioner failed to exercise reasonable care in preparing
her return and failed to keep adequate substantiation. Imposition of a section
18
This amount consists of the unaddressed tax preparation fees and
depreciation, see supra note 2, and the unaddressed medical expenses, vehicle
expenses, and “other” employee business expenses.
19
This amount consists of the expenses on Schedule A for which a deduction
was disallowed, see supra note 2, and the medical expenses for which a deduction
was disallowed.
20
This amount consists of the expenses for lodging, coveralls, airfare,
magazines, and meals and passport-related expenses.
- 38 -
6662(a) penalty on the basis of negligence with respect to the 2008 underpayment
is therefore warranted.
2009
With respect to the 2009 deductions for which we have sustained
disallowance, we similarly conclude that petitioner was negligent in claiming
them.
Petitioner’s claims of a moving expense deduction and a deduction for an
unreimbursed employee business expense for Bristol Motor Speedway tickets
evince a failure to exercise reasonable care in the preparation of her tax return. A
reasonable person would have ascertained that deductions for the purported
moving expenses and the Speedway tickets were well outside the bounds of
sections 217 and 162, respectively, and would not have claimed them.
For the remaining disallowed deductions, petitioner failed to make a
reasonable attempt to comply with substantiation requirements. She offered no
substantiation or even explanation for approximately $13,000 of the expenses for
which she claimed deductions,21 or approximately 35% of the expenses for which
21
This amount consists of the unaddressed “other” expense, see supra note 2,
and the unaddressed moving expenses and “other” employee business expenses.
- 39 -
she claimed deductions that respondent disallowed for 2009.22 For the remainder,
her substantiation was sorely lacking, as discussed previously. Given the size of
the these figures in relation to her income, we conclude that petitioner failed to
exercise reasonable care in preparing her return and failed to keep adequate
substantiation. Imposition of a section 6662(a) penalty on the basis of negligence
with respect to the 2009 underpayment is therefore warranted.
Substantial Understatement of Income Tax
Alternatively, to the extent that the Rule 155 computations show that the
understatement of tax for 2008 or 2009 exceeds the greater of 10% of the tax
required to be shown on the return or $5,000, see sec. 6662(d)(1)(A), petitioner is
liable for a section 6662(a) penalty for an underpayment of tax attributable to a
substantial understatement of income tax.
To reflect the foregoing,
Decision will be entered under
Rule 155.
22
The denominator of this percentage consists of the disallowed expenses
claimed on Schedule A, see supra note 2, and the disallowed charitable
contributions and moving expenses. | 01-03-2023 | 11-10-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2797017/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7873
STANLEY LEE MOULTRIE,
Plaintiff - Appellant,
v.
WILLIAM BYARS, JR., South Carolina Department of Corrections
Director; BRYAN P STIRLING; DEPUTY DIRECTOR ROBERT WARD;
SCDC GENERAL COUNSEL DAYNE HAILE; ASSOCIATE WARDEN
MCFADDEN; MAJOR C WEST; CHRISTOPHER D. FLORIAN; BETHEA LT
MICHAEL TOMS; ANN HALLMAN, Agency Grievance Coordinator; MS
GRAVES, ECI Grievance Coordinator; MARIA LEGGINS, Agency
Mailroom Coordinator; LT JAMES MARTIN; WILLIE L. EAGLETON,
Evan Warden; SGT H SIMS; MS. BAKER, Mailroom Coordinator;
PAMELA MCDOWELL, Mailroom Supervisor; ASSOCIATE WARDEN
BUSH, Lee CI; ASSOCIATE WARDEN NOLAN; ASSOCIATE WARDEN
DEAN; K RIVERS, Lee CI Grievance Coordinator; JIMMY SLEIGH;
DEPUTY WARDEN; LT JACK BROWN; MS CONYERS, Lee CI Officer;
GENERAL COUNSEL TATARSKY; DEPUTY DIRECTOR MCCALL; AMY
SMITH; D EASTRIDGE; FELICIA MCQUEEN; SANDRA BOWIE; DEPUTY
WARDEN DAVIS; CAPTAIN MR. THOMAS; MS. WILSON; GOVERNOR
NIKKI HALEY; ATTORNEY GENERAL ALAN WILSON,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Bristow Marchant, Magistrate
Judge. (9:14-cv-01690-DCN-BM)
Submitted: April 23, 2015 Decided: April 28, 2015
Before SHEDD, DUNCAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Stanley Lee Moultrie, Appellant Pro Se. Jerome Scott Kozacki,
WILLCOX BUYCK & WILLIAMS, PA, Florence, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Stanley Lee Moultrie seeks to appeal the magistrate judge’s
text orders denying his motion to amend his complaint and
denying his motion for reconsideration. This court may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291 (2012),
and certain interlocutory and collateral orders, 28 U.S.C.
§ 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 545-46 (1949). The orders Moultrie
seeks to appeal are neither final orders nor appealable
interlocutory or collateral orders. Accordingly, we dismiss the
appeal for lack of jurisdiction. 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.
DISMISSED
3 | 01-03-2023 | 04-28-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2800715/ | MODIFIED: MAY 14, 2015
RENDERED: FEBRUARY 19, 2015
TO BE PUBLISHED
S51tprrmr Conti of TArttfurkg
2014-SC-000355-MR
COMMONWEALTH OF KENTUCKY, APPELLANTS
FINANCE AND ADMINISTRATION CABINET;
LORI FLANERY, IN HER OFFICIAL
CAPACITY AS SECRETARY OF THE
FINANCE AND ADMINISTRATION CABINET;
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; AUDREY HAYNES, IN HER
OFFICIAL CAPACITY AS SECRETARY OF
THE CABINET FOR HEALTH AND FAMILY
SERVICES; COMMONWEALTH OF
KENTUCKY, DEPARTMENT OF MEDICAID
SERVICES; AND LAWRENCE KISSNER, IN
HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE DEPARTMENT
FOR MEDICAID SERVICES
ON APPEAL FROM COURT OF APPEALS
V. NO. 2014-CA-000429-OA
FRANKLIN CIRCUIT COURT NO. 12-CI-01373
HONORABLE THOMAS D. WINGATE, APPELLEES
JUDGE, FRANKLIN CIRCUIT COURT; AND
KENTUCKY SPIRIT HEALTH PLAN, INC.
OPINION OF THE COURT BY JUSTICE VENTERS
VACATING AND REMANDING
Appellants, Commonwealth of Kentucky, Finance and Administration
Cabinet, et al. (collectively, Cabinet), appeal from an order of the Court of
Appeals granting the petition of Kentucky Spirit Health Care Plan, Inc., for a
writ of prohibition against Franklin Circuit Court Judge Thomas Wingate. The
writ prohibited Judge Wingate from enforcing an order imposing a stay of
discovery in the underlying declaratory judgment litigation.
Kentucky Spirit brought a declaratory judgment action seeking a ruling
that it had a right to terminate its Medicaid managed care contract with the
Cabinet, without penalty, prior to the expiration of the contract. Following a
partial summary judgment in favor of the Cabinet, Kentucky Spirit appealed
and the Cabinet cross-appealed. While those appeals are pending, Kentucky
Spirit intended to pursue pre-trial discovery measures relating to its rights
under the Medicaid contract. The circuit court, however, stayed those
discovery efforts until the resolution of the partial summary judgment appeals.'
In concluding that Kentucky Spirit should have the right to proceed with
discovery, pending the appeal, the Court of Appeals determined that the trial
court's suspension of discovery amounted to an indefinite stay on discovery
without a pressing need to do so in violation of Estate of Cline v. Weddle, 250
S.W.3d 330 (Ky. 2008) and Rehm v. Clayton, 132 S.W.3d 864 (Ky. 2004).
As grounds for relief from the writ, the Cabinet argues that: (1) the trial
court's stay of discovery was proper because upon Kentucky Spirit's appeal of
the partial summary judgment order, the Franklin Circuit Court lost "subject
matter jurisdiction" over the proceeding and, therefore, there was no ongoing
circuit court jurisdiction under which discovery could proceed; and (2) even if
1 On February 6, 2015, the Court of Appeals affirmed the trial court's partial
summary judgment. See Kentucky Spirit Health Plan, Inc. v. Commonwealth Finance
and Administration Cabinet, 2013-CA-001050-MR and 2013-CA-001201-MR, 2015 WL
510852, (Ky. App. Feb. 6, 2015). The Court of Appeals opinion had not attained
finality as of the rendition date of this opinion.
2
the circuit court was not divested of subject matter jurisdiction by the appeal
from the partial summary judgment, a stay of discovery was appropriate
pending resolution of the threshold issues currently on appeal.
Because the circuit court did not abuse its discretion by temporarily
staying discovery, we vacate the writ issued by the Court of Appeals and
remand for entry of an order denying Kentucky Spirit's petition for a writ of
prohibition.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2011, Kentucky Spirit entered into a three-year contract with the
Cabinet to provide Medicaid services in Kentucky. In October 2012, Kentucky
Spirit filed a petition for declaratory judgment (Case No. 12-CI-1373) in
Franklin Circuit Court seeking a determination that it had the right to an early
termination of the contract, without liability for damages, effective July 5,
2013, one year prior to the scheduled conclusion of the initial term under the
provisions of the contract. The complaint further alleged that in the event that
Kentucky Spirit was subject to damages, then those damages should be
calculated pursuant to the liquidated damages provision of the contract. In
April 2013, Kentucky Spirit brought a second lawsuit in Franklin Circuit Court
(Case No. 13-CI-458) in which it alleged various damage claims against the
Cabinet based upon the Cabinet's alleged breach of contract; the Cabinet
responded with its own counterclaim for damages. The two lawsuits were
subsequently consolidated.
3
On May 31, 2013, the circuit court entered an order rejecting Kentucky
Spirit's claim that it was entitled to an early termination of the contract,
holding instead that the company did not have that right. The order further
stated that if Kentucky Spirit did not perform its obligations under the
contract, it would be in breach of the contract and would consequently be
subject to liability under the liquidated damages section of the contract.
Because the order did not resolve all of the issues between the parties (more
specifically, Count III in Case No. 12-CI-1373 and Counts I-VIII in Case No. 13-
CI-458 remained unresolved) the trial court's order was a "partial summary
judgment" with additional matters remaining to be decided. 2
Kentucky Spirit appealed the partial summary judgment order, and the
Cabinet filed a cross-appeal challenging the ruling insofar as it determined that
damages would be calculated exclusively under the liquidated damages clause
of the contract. The issue of the circuit court's continuing "jurisdiction" over
the case during the pendency of the appeal was first introduced as an issue by
the circuit court itself in connection with a motion for injunctive relief filed by
the Cabinet seeking to compel Kentucky Spirit to continue to perform under
the contract beyond its announced termination date of July 5, 2013. In its
order denying that motion, the circuit court stated that the appeal of its partial
summary judgment order "had divested this court of jurisdiction"; the circuit
2 Recognizing that its partial summary judgment ruling did not dispose of all of
the claims pending before it and therefore would otherwise be a non-final order, the
circuit court included the language of CR 54.02 in the order by stating "[t]his order is
final and appealable and there is no just cause for delay."
4
court further stated that it "decline[d] to invoke any residual discretionary
jurisdiction it may retain" so as to address the motion for injunctive relief.
While the appeal of the partial summary judgment awaited adjudication
in the Court of Appeals, Kentucky Spirit served a fifty-item request for
production of documents on the Cabinet; the Cabinet responded with a motion
to stay discovery. 3 In its order granting the Cabinet's motion for a stay the
circuit court stated as follows:
Plaintiff desires to proceed with discovery in this matter,
particularly regarding damages and reformation claims. However,
this Court is without jurisdiction as this matter has been fully
adjudicated at this level. An Opinion and Order was entered on
May 31, 2013 granting summary judgment in favor of the
Defendants. Of importance in the abovementioned Opinion and
Order was the discussion pertaining to the ambiguity of the
contract. The Court stated "[w]hile Section 39.13 is arguably
poorly drafted, the terms of the Contract as a whole are not
ambiguous," and therefore held reformation of the Contract would
not occur. Furthermore, the Court's instruction in an Order
entered on June 25, 2013, stated "[s]hould Defendants seek
redress of the claims for monetary damages, the Court suggests
filing an independent original action for breach of contract at the
appropriate time." The Court directs the parties to the Court of
Appeals. The Court relies upon the abovementioned Orders while
addressing the instant Motion and holds again that jurisdiction
does not remain in the Franklin Circuit Court.
(emphasis added). In response to Kentucky Spirit's motion for reconsideration
of this order the circuit court corrected its erroneous reference to the cases
having been "fully adjudicated," stating "[t]he Court's February 6, 2014 Order
did not dispose of either Count III of Plaintiff's declaratory judgment complaint
3 Kentucky Spirit alleges that this document request applied only to issues
relating to the second lawsuit (the one relating to damages) and did not apply to the
issues relating to the now appealed declaratory judgment action.
5
in 12 CI 1373 or Counts I-VIII of Plaintiff's complaint in 13-CI-458, as those
- -
counts have not been adjudicated. However, the Court maintains that a stay of
discovery in this matter is appropriate."
Following the circuit court's stay of discovery, Kentucky Spirit filed a
petition for a writ of prohibition in the Court of Appeals seeking a writ that
would permit it to proceed with discovery on the remaining issues while the
partial summary judgment was addressed in the appellate courts. The Court of
Appeals concluded that the stay of discovery amounted to an impermissible
indefinite stay on discovery without a pressing need to do so in violation of
Weddle and Rehm. This appeal followed.
II. STANDARD OF REVIEW
We set forth the standard for granting a writ of prohibition in Hoskins v.
Maricle: "A writ ... may be granted upon a showing that (1) the lower court is
proceeding or is about to proceed outside of its jurisdiction and there is no
remedy through an application to an intermediate court; or (2) the lower court
is acting or is about to act erroneously, although within its jurisdiction, and
there exists no adequate remedy by appeal or otherwise and great injustice and
irreparable injury will result if the petition is not granted." 150 S.W.3d 1, 10
(Ky. 2004); see also CR 81. Further, it is well established that a writ of
prohibition "is an 'extraordinary remedy' that Kentucky courts 'have always
been cautious and conservative both in entertaining petitions for and in
4We frequently refer to the first mentioned basis for writ relief as Hoskins's
"first class" writ, and the basis for writ relief mentioned second as Hoskins's "second
class" writ.
6
granting such relief."' Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754
(Ky. 2005) 5 (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)).
Typically, a Court of Appeals decision to grant or deny a writ is reviewed
for an abuse of discretion. Southern Financial Life Ins. Co. v. Combs, 413
S.W.3d 921, 926 (Ky. 2013). "But when the issue presented involves a
question of law, we review the question of law de novo." Id. Because there are
no issues of law predominating in this proceeding, our review is pursuant to
the abuse of discretion standard.
III. ANALYSIS
A. The Appeal of the Partial Summary Judgment did not Divest the
Circuit Court of Subject Matter Jurisdiction and thus May not be
Relied Upon by the Cabinet as an Alternative Grounds for Relief.
The Cabinet's first argument is that the circuit court properly entered a
stay on discovery because, with the appeal of the partial summary judgment
pending, the circuit court was divested "of all jurisdiction over the case," and
therefore, further discovery was improper.
We first note that Kentucky Spirit itself did not seek relief in its petition
to the Court of Appeals under the first class of the Hoskins writ standard, and
does not argue that the circuit court lost jurisdiction following the partial
summary judgment. Rather, as an alternative grounds for upholding the
circuit court's ruling, the Cabinet argues that, upon the appeal of the partial
summary judgment, the circuit court lost "subject matter jurisdiction" to
5 Overruled on other grounds by Interactive Media Entertainment and Gaming
Ass'n, Inc. v. Wingate, 320 S.W.3d 692 (Ky. 2010).
7
further preside over the case, including the power to oversee discovery. 6 The
Cabinet, however, misperceives the concept of "subject matter jurisdiction" as
that terminology has been defined in our relevant precedents. "In Kentucky,
circuit courts are courts of 'general jurisdiction,' which means that circuit
courts 'shall have original jurisdiction of all justiciable causes not vested in
some other court."' Davis v. Wingate, 437 S.W.3d 720, 725 (Ky. 2014) (citing
Ky. Const. § 112(5)). Thus "subject-matter jurisdiction" refers to a circuit
court's authority not simply to hear this case, but rather, to hear "this kind of
case." Id.; see also Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012) ("In the context
of the extraordinary writs, 'jurisdiction' refers not to mere legal errors but to
subject-matter jurisdiction . . . which goes to the court's core authority to even
hear cases" (citations omitted)); Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky.
2012) ("Once filed, a court has subject matter jurisdiction of the case so long as
the pleadings reveal it is the kind of case assigned to that court by a statute or
constitutional provision.").
Here, the underlying claims relate to Kentucky Spirit's action for
ascertaining its right to an early termination of the Medicaid contract and
associated issues concerning the measure of damages. Circuit Courts, as
courts of general jurisdiction, KRS 23A.010(1), 7 have subject matter
6 See Commonwealth, Corrections Cabinet v. Vester, 956 S.W.2d 204, 205-06
(Ky. 1997) ("[w]here the prevailing party seeks only to have the judgment affirmed, it is
entitled to argue without filing a cross-appeal that the trial court reached the correct
result for the reasons it expressed and for any other reasons appropriately brought to
its attention.").
7 "The Circuit Court is a court of general jurisdiction; it has original jurisdiction
of all justiciable causes not exclusively vested in some other court." KRS 23A.010(1).
8
jurisdiction over declaratory judgments and contract disputes of the type at
issue. See KRS 418.040 (declaratory judgment statute); Bank One Kentucky
NA v. Woodfield Financial Consortium LP, 957 S.W.2d 276, 280 (Ky. App. 1997)
N
(a claim for declaratory relief seeking the construction and interpretation of a
contract is valid under KRS 418.040). Thus the Cabinet's argument that the
circuit court lacks "subject matter jurisdiction" because of the order granting
partial summary judgment and subsequent appeal is inaccurate. The award of
partial summary judgment and the associated appeal does not implicate the
relevant inquiry: whether the Franklin Circuit Court has the authority to hear
"this kind of case."
In summary, we are unpersuaded by the Cabinet's argument that the
circuit court's holding may be upheld upon the basis that it had lost "subject
matter jurisdiction" over the underlying litigation, and so may not further
preside over the case in any manner.
B. The Court of Appeals Abused its Discretion in Granting the Writ.
The Cabinet argues that even if the circuit court was not divested of
subject matter jurisdiction by the appeal from the partial summary judgment,
a stay of discovery was appropriate pending resolution of the threshold issues
currently under litigation on appeal. We address this argument under the
second class of the Hoskins test. For a writ to succeed under the second class
of Hoskins Kentucky Spirit must demonstrate that: (1) Franklin Circuit Court
is acting, or is about to act, erroneously, although within its jurisdiction; (2)
9
there exists no adequate remedy by appeal or otherwise; and (3) great injustice
and irreparable injury will result if the petition is not granted.
As discussed above, under the circumstances before us, the circuit court
was not acting outside of its subject matter jurisdiction when it chose to abate
discovery pending resolution of the appeal. However, we have previously held
that the filing of a notice of appeal under CR 73.01(2) divests the circuit court
of particular casejurisdiction and transfers that authority to the appellate
court. City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990); see also
Johnson v. Commonwealth, 17 S.W.3d 109, 113 (Ky. 2000) ("As a general rule,
except with respect to issues of custody and child support in a domestic
relations case, the filing of a notice of appeal divests the trial court of
jurisdiction to rule on any issues while the appeal is pending.") (citations
omitted). Hence, upon the filing of a notice of appeal, while a circuit court
retains subject matter jurisdiction over that type of case, it will typically lose
particular case jurisdiction over the specific lawsuit owing to the transfer of
that jurisdiction to the appellate courts. In declining jurisdiction over the case,
the circuit court specifically cited to Stallings, and the Cabinet relies upon that
same principle in supporting its argument that the circuit court was deprived
of jurisdiction over the case such that ongoing discovery proceedings would be
improper. However, in Garnett v. Oliver, our predecessor court held that "if the
appeal from the particular order or judgment does not bring the entire cause
into the appellate court . . . further proceedings in the conduct of the cause
may properly be had in the lower court." 45 S.W.2d 815, 817 (Ky. 1931). See
10
also Commonwealth v. Bailey, 71 S.W.3d 73, 84 (Ky. 2002) ("An interlocutory
appeal, however, generally only deprives the trial court of the authority to act
further in the matter that is subject of the appeal, and the trial court is not
divested of the authority to act in matters unrelated to the appeal.").
Thus, pursuant to Garnett and Bailey, because Kentucky Spirit's appeal
and the Cabinet's cross-appeal of the partial summary judgment, did not "bring
the entire cause into the appellate court . . . further proceedings in the conduct
of the cause may properly be had in the lower court." Garnett, 45 S.W.2d at
817. As such, we are unpersuaded that Stallings is dispositive of the issue.
Kentucky Spirit claims that its document request applied exclusively to
the damages action and was totally unrelated to the matter pending on appeal,
and "is based upon different facts, asserts different claims, and seeks different
relief than the Declaratory Judgment Action." The Cabinet disputes that claim
and offers examples of how the issues remaining in the circuit court overlap
with the matter on appeal. We conclude that Garnett is the controlling
authority. The circuit court retained jurisdiction over pending claims not being
appealed. Ancillary to that jurisdiction is the authority to allow ongoing
discovery pertaining to claims that remained with that court, subject of course,
to the circuit court's exercise of its broad discretion over the scope of such
discovery matters.
Even though the trial court was authorized to permit ongoing discovery,
nevertheless, it is clear that the trial court's abatement of discovery pending
the appeal will not result in a "great injustice and irreparable injury . . . if the
11
petition is not granted." Trial courts are conferred with broad discretion in
managing discovery in light of the unique factors present in any particular
case. Sexton v. Bates, 41 S.W.3d 452 (Ky. App. 2001) ("It is a well established
principle that a trial court has broad discretion over disputes involving the
discovery process."). Under these circumstances the circuit court acted well
within its discretion in deciding to hold further discovery in abeyance pending
the resolution of the appeal. There was no great injustice associated with the
stay.
Nor is there an irreparable injury connected with the stay. There is no
indication that if the stay is not lifted the documents requested in Kentucky
Spirit's discovery effort will not be readily available for disclosure upon
resolution of the pending appeals. Kentucky Spirit has failed to explain how it
will be prejudiced if discovery is abated until resolution of the appeals. A writ
of prohibition "is an extraordinary remedy," that Kentucky courts "have always
been cautious and conservative both in entertaining petitions for and in
granting such relief." Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). The
trial court's order temporarily abating discovery does not implicate the need for
an extraordinary remedy; nor will it result in a great injustice or an irreparable
injury.
And finally, we believe that the Court of Appeals and Kentucky Spirit
have misplaced their reliance upon Weddle and Rehm to strike down the circuit
court's order as an indefinite stay on discovery without a pressing need. In
Rehm, an asbestos exposure case involving multiple defendants, the circuit
12
court stayed discovery following summary judgment as to some of the
defendants; the plaintiffs sought to continue discovery as to the remaining
defendants. In holding that the plaintiffs were entitled to a writ allowing them
to continue with discovery, we held that lallthough Appellants cannot identify
specific persons' testimony that will be lost or the evidence that will disappear,
they are not required to do so. Information and evidence now available may be
lost as a result of the discovery stay, and that is sufficient." Rehm, 132 S.W.3d
at 868 (internal quotes omitted).
Similarly, Weddle holds that the Court of Appeals erred in declining to
issue a writ of mandamus to compel the trial court to vacate a stay order,
reasoning that the trial court had acted without articulating any urgency for
abating the case, and because the issuance of the stay order resulted in
irreparable injury with no adequate remedy by appeal. Also in this vein, in
Volvo Car Corp. v. Hopkins, 860 S.W.2d 777 (Ky. 1993), we held that in the
context of a sudden acceleration lawsuit that the petitioner was entitled to a
writ because the delay involved in awaiting final disposition of the case before
addressing the erroneous discovery ruling would likely result in losing
discoverable information from witnesses who may have died, or moved, or
whose memories might be dimmed by time.
As we recently explained in Inverultra, S.A. v. Wilson, --- S.W.3d ---, 2014
WL 7238373, *5-*6 (Ky. 2014), Volvo and Rehm both purport to rely on
Meredith v. Wilson, 423 S.W.2d 519 (Ky. 1968), a case in which our predecessor
Court granted mandamus and reversed a discovery stay. The analysis in
13
Meredith, however, was not based on a generalized concern that information
could conceivably be lost. Id. It was based upon the determination that
because "in the circumstances of this case" there was an apparently real risk
that "information and evidence now available may be lost in the event of the
death of either of the witnesses sought to be interrogated." 423 S.W.2d at 520.
Thus, Meredith reflects the sensible holding that a genuine exigency might well
call into question the adequacy of an appeal. Inverultra at *5-*6. Cf. Texaco,
Inc. v. Borda, 383 F.2d 607, 609 (3rd Cir. 1967) (denying mandamus relief from
a discovery stay except allowing the deposition of the seventy-one year old
plaintiff). See also, Landis v. North American Co., 299 U.S. 248, 255 (1936)
(Cardozo, J.) ("the suppliant for a stay must make out a clear case of hardship
or inequity in being required to go forward, if there is even a fair possibility that
the stay for which he prays will work damage to someone else, [and] . . . [o]nly
in rare circumstances will a litigant in one cause be compelled to stand aside
while a litigant in another settles the rule of law that will define the rights of
both.").
In each of these cases where mandamus relief was granted, however, the
potential evidence at risk exceeded a mere request for pre-existing documents
housed at a known and secure location. Rather, in those cases the discovery
requests implicated information realistically subject to loss or destruction, and
to witnesses' fading memories, the dispersal of witnesses, and perhaps even
their deaths. None of these concerns are alleged in Kentucky Spirit's document
14
request dispute; as noted above, there is simply no realistic danger of the loss
of the subject governmental documents.
Obviously, some orders abating discovery may cause irreparable injury
and some may not. Any reading of Rehm, Weddle, and Volvo that there is a
presumption of irreparable damage is misguided. Rehm, Weddle, and Volvo,
therefore, represent a very narrow exception restricting a circuit court's
discretion to abate discovery which is applicable only when there is a realistic
chance of a party losing crucial evidence possessed by witnesses whose
accounts may otherwise be lost if discovery is unduly delayed pending
appellate procedures. As explained, that is simply not the case here. As such,
we conclude that the Court of Appeals', and Kentucky Spirit's, reliance on this
line of cases is misplaced under the facts of this case. See Inverultra, at *5-*6.
IV. CONCLUSION
Because the circuit court did not abuse its discretion by temporarily
staying discovery pending the resolution of matters pertaining to the partial
summary judgment in the appellate courts, we therefore vacate the writ of
prohibition issued by the Court of Appeals and remand the proceeding for entry
of an order denying Kentucky Spirit's petition for a writ of prohibition.
Minton, C.J., Abramson, Cunningham, Keller, Noble and Venters, JJ.,
sitting. All concur.
15
COUNSEL FOR APPELLANTS:
Kenneth Allen Bohnert
Richard M. Sullivan
Scott Alan Johnson
Conliffe, Sandmann 86 Sullivan
COUNSEL FOR APPELLEE HON. THOMAS D. WINGATE, JUDGE, FRANKLIN
CIRCUIT COURT:
Hon. Thomas Dawson Wingate
COUNSEL FOR APPELLEE KENTUCKY SPIRIT HEALTH PLAN, INC.:
Philip Wallace Collier
Bethany A. Breetz
Stites 86 Harbison, PLLC
Christopher Flynn
Crowell 86 Moring, LLP
16
oi5uprrtut Gurt of fT rnfuritv
2014-SC-000355-MR
COMMONWEALTH OF KENTUCKY, APPELLANTS
FINANCE AND ADMINISTRATION CABINET;
LORI FLANERY, IN HER OFFICIAL
CAPACITY AS SECRETARY OF THE
FINANCE AND ADMINISTRATION CABINET;
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; AUDREY HAYNES, IN HER
OFFICIAL CAPACITY AS SECRETARY OF
THE CABINET FOR HEALTH AND FAMILY
SERVICES; COMMONWEALTH OF
KENTUCKY, DEPARTMENT OF MEDICAID
SERVICES; AND LAWRENCE KISSNER, IN
HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE DEPARTMENT
FOR MEDICAID SERVICES
ON APPEAL FROM COURT OF APPEALS
V. NO. 2014-CA-000429-OA
FRANKLIN CIRCUIT COURT NO. 12-CI-01373
HONORABLE THOMAS D. WINGATE, APPELLEES
JUDGE, FRANKLIN CIRCUIT COURT; AND
KENTUCKY SPIRIT HEALTH PLAN, INC.
ORDER
This matter is before the Court on the Appellant's petition to modify the
Opinion of the Court by Justice Venters, rendered February 19, 2015. The
Court having reviewed the record and being otherwise fully and sufficiently
advised, ORDERS:
1) The Appellant's petition to modify the Opinion of the Court by
Justice Venters is GRANTED; and
2) The opinion is MODIFIED on its face by substitution of the
attached opinion in lieu of the original opinion rendered February 19, 2015.
Said modification does not affect the holding.
All sitting. All concur.
ENTERED: May 14, 2015.
CHIEF JUSTICE
2 | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2800688/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-134V
Filed: April 13, 2015
Not for Publication
*************************************
CRAIG A. SIGEL, *
*
Petitioner, * Attorneys’ fees and costs decision based on
* stipulation of fact
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Anne C. Toale, Sarasota, FL, for petitioner.
Traci R. Patton, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On April 13, 2015, the parties filed a stipulation of fact in which they agreed on an
appropriate amount for attorneys’ fees and costs in this case.
In accordance with General Order #9, petitioner asserts that he did not incur any costs in
pursuit of his petition. Petitioner submitted his request for attorneys’ fees and costs to
respondent. During informal discussions, respondent raised objections to certain aspects of
petitioner’s application. Based on these objections, petitioner amends his application for
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made
available to the public unless they contain trade secrets or commercial or financial information that is
privileged and confidential, or medical or similar information whose disclosure would constitute a clearly
unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and
move to redact such information prior to the document=s disclosure. If the special master, upon review,
agrees that the identified material fits within the banned categories listed above, the special master shall
redact such material from public access.
attorneys’ fees and costs to $75,000.00. Respondent does not object to this amount. The
undersigned finds this amount to be reasonable. Accordingly, the court awards $75,000.00,
representing reimbursement for attorneys’ fees and costs. The award shall be in the form of a
check payable jointly to petitioner and Maglio, Christopher & Toale, P.A. for $75,000.00.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: April 13, 2015 s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2 | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3107982/ | NO. 07-10-0470-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 15, 2011
__________________________
SAM GARZA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
__________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-421,831; HONORABLE QUAY PARKER, PRESIDING
__________________________
Memorandum Opinion
__________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Sam Garza appeals his conviction for possessing a controlled substance with intent to deliver. Two issues are asserted on appeal. The first involves the effectiveness of his trial counsel, while the second encompasses the legitimacy of the traffic stop that initiated the detention during which the drugs were acquired. We affirm the judgment.
Issue Two -- Traffic Stop
We address the last issue first. Through it, appellant contends that the officer who detained him lacked probable cause to make the stop. We overrule the issue because, under the circumstances before us, the existence of probable cause or reasonable suspicion to support the detention is irrelevant. Appellant was the subject of one or more outstanding arrest warrants at the time of the stop and eventual arrest, according to the record. The existence of those warrants purged the detention of whatever taint that may have existed. Fletcher v. State, 90 S.W.3d 419, 420 (Tex. App. - Amarillo 2002, no pet.).
Issue One -- Effectiveness of Counsel
Appellant contends that his trial attorney was ineffective because he did not challenge the inventory search of the car. The latter was subject to challenge, according to appellant, since it was not undertaken in conformance with departmental policy. We overrule the issue.
The stop in question occurred at the behest of another officer who had just been a witness to a controlled drug buy via appellant and the officer's confidential informant. Immediately after completion of the buy, the informant informed the officer that appellant had additional drugs in his vehicle (the latter being the place in which the drug sale happened). This information was imparted to the officer who eventually detained appellant. Though we do not necessarily decide the issue, we nevertheless acknowledge that these circumstances could have led one to believe that probable cause existed to not only stop and arrest appellant for drug trafficking but also to search the vehicle for the drugs being sold. See Hereford v. State, 302 S.W.3d 903, 905 (Tex. App. - Amarillo 2009), aff'd, No. PD-0144-10, 2010 Tex. Crim. App. Lexis 730 (Tex. Crim. App. April 6, 2011) (holding that a warrant is not needed to effectuate an arrest when the crime occurred in the presence of an officer); Campbell v. State, 325 S.W.3d 223, 231 (Tex. App. - Fort Worth 2010, no pet.) (holding that the existence of probable cause or reasonable suspicion is not dependent solely upon the information known to the detaining officer but rather the cumulative knowledge of those officers involved); Dahlem v. State, 322 S.W.3d 685, 689 (Tex. App. - Fort Worth 2010, pet. ref'd) (holding that an officer need not acquire a search warrant to search for contraband in a vehicle if there is probable cause to believe that drugs are present in that vehicle); see e.g., Garcia v. State, 327 S.W.3d 243, 248-49 (Tex. App. - San Antonio 2010, no pet.) (finding probable cause for a warrantless search of a vehicle when a police officer witnessed a known credible informant make arrangements for delivery of drugs at his residence in fifteen minutes, when the officers arrived they observed the person the informant had called in a vehicle located at the residence, and the vehicle attempted to drive away). Given this, trial counsel may have concluded that it would serve little purpose to question whether any "inventory search" undertaken by the arresting officers was legitimate. See Kent v. State, 982 S.W.2d 639, 641 (Tex. App. - Amarillo 1998, pet. ref'd, untimely filed) (holding that an attorney need not assert a meritless point to be effective); see also Palacios v. State, 319 S.W.3d 68, 75 (Tex. App. - San Antonio 2010, pet. ref'd) (finding counsel not ineffective in failing to challenge an inventory search because there was probable cause to search the vehicle). And, since the decision to do so or not could fall within the realm of reasonable trial strategy, and nothing of record discloses what strategies, if any, motivated trial counsel to do what he did, appellant failed to prove that his attorney rendered ineffective assistance. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007) (requiring us to presume that counsel had legitimate strategies for his actions); Ex parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App. 2011) (stating that the foregoing presumption cannot generally be overcome absent evidence in the record of the attorney's reasons for his actions).
The judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4538800/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
P.J.’S LAND CLEARING & EXCAVATING, INC., PATRICK WILSON and
BUFFIE WILSON,
Appellants,
v.
PALOMINO PROPERTIES, LLC,
Appellee.
No. 4D19-1631
[June 4, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cymonie S. Rowe, Judge; L.T. Case No. 502014CA003006.
Scott C. Gherman of Scott C. Gherman, P.A., Boca Raton,
for appellants.
Salvatore G. Scro of Tannenbaum Scro, P.L., Sarasota, for appellee.
PER CURIAM.
Affirmed.
LEVINE, C.J., DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2778780/ | J-S07003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE DENTON MARTIN,
Appellant No. 1441 MDA 2014
Appeal from the PCRA Order Entered July 24, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004746-2012
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 11, 2015
Appellant, George Denton Martin, appeals from the post-conviction
court’s July 24, 2014 order denying his petition for relief filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Additionally, Appellant’s counsel, MaryJean Glick, Esq., has filed a petition to
withdraw from representing Appellant, along with an Anders1 brief. While a
Turner/Finley2 no-merit letter is the appropriate filing when counsel seeks
to withdraw on appeal from the denial of PCRA relief, we will accept Attorney
Glick’s Anders brief in lieu of a Turner/Finley no-merit letter. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967).
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S07003-15
(“Because an Anders brief provides greater protection to a defendant, this
Court may accept an Anders brief in lieu of a Turner/Finley letter.”)
(citation omitted). After careful review, we affirm the PCRA court’s order
denying Appellant’s petition, and grant Attorney Glick’s petition to withdraw.
On February 27, 2013, Appellant entered a negotiated guilty plea to
indecent assault of a person less than 13 years of age, involuntary deviate
sexual intercourse with a child, corruption of minors, and unlawful contact
with a minor. Pursuant to the plea agreement, Appellant was sentenced to
an aggregate term of 8 to 20 years’ incarceration. Appellant did not file a
direct appeal.
Instead, on March 25, 2014, Appellant filed a counseled PCRA petition
presenting multiple claims of plea counsel’s ineffectiveness.3 On May 21,
2014, the PCRA court held an evidentiary hearing, at which Appellant and his
plea counsel, Raymond Tarnowski, Esq., testified. On July 24, 2014, the
PCRA court entered an order, accompanied by a detailed opinion, denying
Appellant’s petition. Attorney Glick subsequently entered her appearance on
Appellant’s behalf and filed a timely notice of appeal. However, on October
30, 2014, Attorney Glick filed with this Court a petition to withdraw as
counsel and an Anders Brief, asserting that Appellant had no non-frivolous
issues to raise on appeal. Again, as a Turner/Finley letter is the
____________________________________________
3
When Appellant filed his PCRA petition, and at the subsequent PCRA
hearing, he was represented by Joseph A. Kalasnik, Esq.
-2-
J-S07003-15
appropriate filing when PCRA counsel seeks to withdraw, we will assess
Attorney Glick’s petition to withdraw and Anders brief under the dictates of
Turner/Finley.
In Turner, our Supreme Court “set forth the appropriate procedures
for the withdrawal of court-appointed counsel in collateral attacks on
criminal convictions[.]” Turner, 544 A.2d at 927. The traditional
requirements for proper withdrawal of PCRA counsel, originally set forth in
Finley, were updated by this Court in Commonwealth v. Friend, 896 A.2d
607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d
875 (Pa. 2009),4 which provides:
1) As part of an application to withdraw as counsel, PCRA
counsel must attach to the application a “no-merit” letter[;]
2) PCRA counsel must, in the “no-merit” letter, list each claim
the petitioner wishes to have reviewed, and detail the nature
and extent of counsel's review of the merits of each of those
claims[;]
3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner's issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
____________________________________________
4
In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney Glick filed her petition
to withdraw and no-merit letter with this Court and, thus, our Supreme
Court’s holding in Pitts is inapplicable.
-3-
J-S07003-15
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA
counsel to withdraw; and
6) the court must agree with counsel that the petition is
meritless.
Friend, 896 A.2d at 615 (footnote omitted).
We have received Attorney Glick’s petition to withdraw and a brief that
we will treat as her no-merit letter. On pages 8 through 22 of her no-merit
letter, Attorney Glick discusses the ineffectiveness claims Appellant raised in
his PCRA petition, and explains why those claims are without merit.
Additionally, in her petition, Attorney Glick has sufficiently evidenced the
nature and extent of her review. She has also forwarded to Appellant a copy
of her petition to withdraw and no-merit letter. Finally, Attorney Glick
advised Appellant that he has the right to proceed with this appeal pro se or
to hire new counsel. Therefore, we conclude that Attorney Glick has
complied with the above-stated requirements for withdrawal.
Next, this Court must conduct its own independent review of the
record in light of the issues presented in Appellant’s PCRA petition. Therein,
Appellant raised multiple ineffectiveness claims, including assertions that (1)
plea counsel failed to properly investigate the case and potential defenses,
and review that information with Appellant, prior to advising Appellant to
enter a guilty plea; (2) plea counsel did not sufficiently investigate
Appellant’s history of depression and attention deficit hyperactivity disorder
-4-
J-S07003-15
(ADHD), which precluded Appellant from entering a voluntary, knowing, and
intelligent plea; and (3) plea counsel failed to “understand and compensate
for [Appellant’s] naiveté as a traditional Mennonite regarding the court
system and how [Appellant’s] rights would be affected by various courses of
conduct in the case[.]” PCRA Petition, 3/25/14, at 3-4 (unpaginated).
Appellant further claimed that he was extremely ill in the days leading
up to the plea hearing, and that he also experienced “additional trauma”
during that period because he was charged with other offenses and
“incarcerated for the first time in his life….” Id. at 5 (unpaginated).
Appellant argued that due to his illness and being charged with additional
offenses, he asked his counsel to seek a continuance of the plea proceeding,
but counsel refused. Id. Consequently, Appellant entered his plea simply
“so he could obtain the rest and treatment that he required for his physical
and mental condition[,]” resulting in an invalid plea. Id. at 6 (unpaginated).
Appellant maintained that due to plea counsel’s conduct in these regards, his
guilty plea was invalid.
We have reviewed the certified record, the applicable law, and the
thorough opinion of the Honorable Donald R. Totaro of the Court of Common
Pleas of Lancaster County. Judge Totaro’s well-reasoned decision accurately
addresses the claims of ineffectiveness raised by Appellant in his PCRA
petition, as well as the validity of Appellant’s guilty plea as a whole. We
conclude that Judge Totaro’s determination that Appellant is not entitled to
post-conviction relief is supported by the record and is free of legal error.
-5-
J-S07003-15
See Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(“Our standard of review of the denial of a PCRA petition is limited to
examining whether the court's determination is supported by the evidence of
record and free of legal error.”). Accordingly, we adopt Judge Totaro’s
opinion as our own and affirm the order denying Appellant’s PCRA petition
on the grounds set forth therein. We also grant Attorney Glick’s petition to
withdraw.
Order affirmed. Petition to withdraw granted. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
-6- | 01-03-2023 | 02-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3998785/ | Plaintiff brought action on a promissory note made and executed by the defendants, payable to one Richard Moench, endorsed by Alex Silver, and sold to W.A. Rankin. The defendant pleaded failure of consideration and discharge in bankruptcy.
The evidence shows about the following state of facts: That the note in question was executed some time prior to 1921, and was one of a series of notes given in payment of the cost of an ice machine. All of the other notes involved were paid, payment being made through a bank in Seattle. Respondent initiated bankruptcy proceedings and scheduled the indebtedness shown by the note in question, listing it as due Moench and Silver. The trial court found that the notice of the transfer and assignment of the note to *Page 23
the appellant was not given to the respondent until after March 20, 1922, while the discharge in bankruptcy occurred in 1921. An examination of the testimony shows that the evidence is conflicting on this point, but we can not say that it preponderates against the finding of the trial court. The rule is too well settled in this state to require the citation of any authority that, under such circumstances, the findings of the trial court will be sustained.
The evidence being practically undisputed that the indebtedness was properly scheduled in the bankruptcy proceedings, giving the correct amount, the name of the payee and the first subsequent holder of the note, and the court having found that the respondent had no knowledge of any other person having any interest in the note, the discharge in bankruptcy relieved respondents from any further liability thereon.
Numerous other questions are discussed by both appellant and respondents, but our conclusion on this branch of the case obviates the necessity of any discussion of those matters.
We conclude that the judgment of the lower court was right. It is therefore affirmed.
MACKINTOSH, C.J., MAIN, MITCHELL, and FULLERTON, JJ., concur. *Page 24 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3063604/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16104 ELEVENTH CIRCUIT
APRIL 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-01978-CV-ODE-1
HUGH T. BUTLER, SR.,
Plaintiff-Appellant,
versus
GREIF, INC.,
MICHAEL OGILVIE, JR.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 8, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
This is an employment discrimination case, brought by Hugh T. Butler, Sr.,
against his former employer, Greif, Inc. (“Greif”), under the anti-retaliation
provision of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a).1
The district court granted Greif summary judgment because Butler failed properly
to file a charge with the Equal Employment Opportunity Commission (“EEOC”).
He now appeals.
Prior to bringing this lawsuit, Butler had to file a charge with the EEOC
under oath or affirmation. 42 U.S. C. § 2000e-5(b). Butler’s charge, which was
submitted by his attorney, was not verified at the time it was filed; nor was it
verified while the charge was pending before the EEOC. Butler argues that his
attorney’s signature on the charge was sufficient and that, if not, he could cure the
lack of verification even after the EEOC dismissed his case for failing to cooperate.
He also argues that Greif waived its right to challenge the lack of verification.
Before filing suit under the ADA, a plaintiff must exhaust his administrative
remedies by filing a charge with the EEOC. See 42 U.S.C. § 12117(a) (applying
remedies and procedures of Title VII to ADA); Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1317 (11th Cir. 2001) (stating that exhaustion requires the timely filing
1
Butler also sued his supervisor, Michael Ogilvie, Jr. He subsequently conceded that
Ogilvie was not amenable to suit under the ADA because employers only are liable under the
ADA. Thus, the district court properly entered summary judgment for Ogilvie.
2
of a discrimination charge with the EEOC). An EEOC charge must be verified,
meaning that it must be “sworn to or affirmed . . . or supported by an unsworn
declaration in writing under penalty of perjury.” 29 C.F.R. § 1601.3(a). The
verification requirement is mandatory. See Vason v. City of Montgomery, 240
F.3d 905, 907 (11th Cir. 2001).
Although the applicable regulations allow charges of discrimination to be
filed on behalf of a person, see 29 C.F.R. § 1601.7(a), the regulations do not
dispense with the requirement that a plaintiff verify the facts supporting a claim.
29 C.F.R. § 1601.9. While an attorney may file an EEOC charge on behalf of a
client, the attorney’s signature alone will not constitute verification if the attorney
does not personally swear to the truth of the facts stated in the charge and does not
have personal knowledge of those facts.2
In certain situations, the EEOC regulations permit an otherwise timely
charge to be verified or amended after the time for filing has expired, but the
deadline to verify is the time the employer is obliged to respond to the EEOC
charge. Edelman v. Lynchburg College, 535 U.S. 106, 113, 115-18, 122 S. Ct.
1145, 1149-52, 152 L. Ed. 2d 188 (2002); 29 C.F.R. § 1601.12(b). Where a right to
sue letter has issued, the plaintiff has brought suit, and the EEOC has closed its
2
In Vason, we expressly rejected the argument that the EEOC is obligated to inform a
plaintiff of deficiencies of his charge, such as the lack of verification. 240 F.3d at 907.
3
file, there is no longer a charge pending before the EEOC that is capable of being
verified. See Balazs v. Liebenthal, 32 F.3d 151, 156-58 (4th Cir.1994) (allowing
EEOC charge to be amended and for amendment – verification – to relate back
only so long as the charge is a viable one in the EEOC's files).
At least one Circuit, the Third Circuit in Buck v. Hampton Twp. Sch. Dist.,
452 F.3d 256 (3rd Cir. 2006), has held that the verification requirement should be
subject to waiver “when equity so requires,” such as when, as in that case, the
employer responded to the EEOC charge on the merits, declined to challenge the
sufficiency of the charge before the EEOC, and later attempted to move to dismiss
the suit for lack of verification. Buck, 452 F.3d at 262-65 (noting that the waiver
rule would apply very sparingly). Id. at 265. However, the plaintiff’s failure to
cooperate with the EEOC disentitles that person to equitable relief. See Forehand
v. Florida State Hosp. at Chattahoochee, 89 F.3d 1562, 1570 (11th Cir. 1996).
Here, Butler’s attorney’s signature did not constitute a verification. The
deadline to verify the EEOC charge was while the charge was pending before the
EEOC. Butler, though, did not verify it until after the EEOC had dismissed his
case. Lastly, Butler’s failure to cooperate with the EEOC disentitled him to any
equitable relief.
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063605/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 8, 2009
No. 07-15087 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00799-CV-T-23-TGW
ERNEST ENAX,
an individual,
Plaintiff-Appellant,
versus
STEVEN GOLDSMITH,
an individual,
ROBERT BUDDE,
an individual,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 8, 2009)
Before EDMONDSON, Chief Judge, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Plaintiff-Petitioner Ernest Enax (“Enax”) appeals the district court’s order
dismissing his amended civil-rights complaint for failure to prosecute. We do not
have jurisdiction to review Enax’s appeal from the district court’s 24 August 2007
order. As to Enax’s appeal of the 13 September 2007 and 9 October 2007 orders,
the district court did not abuse its discretion by denying Enax’s motions.
Enax filed in May 2007 a pro se complaint against Defendant Goldsmith, an
Internal Revenue Service (“IRS”) revenue officer, and Defendant Budde, an IRS
group manager, in their individual capacities. Enax alleged civil-rights violations
related to an IRS levy on his Social Security disability benefits. Filing the
complaint under 42 U.S.C. § 1983, Enax contended that Defendants were members
of a “secret society” that stole “by stealth and fraud” money from his Social
Security benefits, thereby “reducing [Mr. Enax] to a condition of involuntary
servitude.” The district court dismissed the complaint without prejudice for failure
to state a claim because Enax did not allege that Defendants were state actors, a
necessary element of a section 1983 claim. The court permitted Enax to file an
amended complaint on or before 13 July 2007.
Enax timely filed an amended complaint, but it did not comply with a local
rule that requires an amended pleading to be filed in its entirety. The district court
2
dismissed the complaint without prejudice and allowed Enax to file an amended
complaint that conformed with local rules by 10 August 2007. Enax did not file an
amended complaint within the allotted time. Two weeks later, on 24 August 2007,
the district court dismissed the case for lack of prosecution.
On 12 September 2007, Enax filed a Fed. R. Civ. P. 60(b) (“Rule 60(b)”)
motion to vacate the district court’s order of dismissal based on “clerical error.”
The court denied the motion the next day.
On 2 October 2007, Enax filed a second motion, this time to vacate the
district court’s 13 September order denying the original motion to vacate. Because
Enax offered no legal basis for the motion, the district court denied the motion on 9
October 2007. Enax filed a notice of appeal on 24 October 2007, seeking review of
the district court’s 24 August dismissal order and its 13 September and 9 October
orders denying Enax’s motions to vacate.
We review for an abuse of discretion the district court’s denial of a Rule
60(b) motion. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001). First, we
examine Enax’s appeal from the district court’s 24 August order. Then, we will
review Enax’s appeal from the 13 September and 9 October orders.
A petitioner’s notice of appeal must be filed within the time limits set forth
in Fed. R. App. P. 4(a). Compliance with the requirements for filing timely a notice
3
of appeal is both “mandatory and jurisdictional.” Coleman v. Thompson, 111 S. Ct.
2546, 2565 (1991). We do not have jurisdiction to hear Enax’s appeal from the 24
August order under Fed. R. App. P. 4(a)(1)(A) or Fed. R. App. P. 4(a)(1)(B).1 At
the latest, Enax’s notice of appeal must have been filed by 23 October 2007 to be
timely. Because Enax did not file a notice of appeal until 24 October 2007, it was
untimely; and we do not have jurisdiction to review it.2
We may, however, review Enax’s appeals from the 13 September and 9
October district court orders denying his Rule 60(b) motions. Relief under Rule
60(b) is an “extraordinary remedy which may be invoked only upon a showing of
exceptional circumstances.” Crapp v. City of Miami Beach, 242 F.3d 1017, 1020
(11th Cir. 2001) (internal citation omitted). Because “an appeal from a denial of a
Rule 60(b) motion cannot serve as a substitute for an appeal of the underlying
order,” we review only the district court’s refusal to reinstate Enax’s case: not the
merits of Enax’s case or the district court’s underlying decision to dismiss it.
Carter ex rel. Carter v. United States, 780 F.2d 925, 927 (11th Cir. 1986) (internal
1
A sixty-day appeal period applies here. Fed. R. App. P. 4(a)(1)(B). See Wallace v.
Chappell, 637 F.2d 1345, 1348 (9th Cir. 1981) (en banc) (sixty-day filing period for Rule 4(a)
applies to alleged grievance arising from government activity if “defendant officers were acting
under color of office” or if “any party in the case is represented by a government attorney”). See
also Williams v. Collins, 728 F.2d 721, 724 (5th Cir. 1984).
2
Because Enax’s Rule 60(b) motion was filed on 12 September 2007, more than ten
business days after entry of the 24 August 2007 order of dismissal, it did not toll the period for
filing a timely notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(vi).
4
citation omitted).
Here, Enax appeals impermissibly the merits of the complaint dismissed by
the district court. He presents no legitimate reason why the district court should
have reinstated his suit under Rule 60(b) due to clerical error or for any other
eligible ground for relief. The district court did not abuse its discretion by denying
Enax’s Rule 60(b) motion in its 13 September and 9 October orders. Accordingly,
we affirm the district court.
DISMISS IN PART, AFFIRM IN PART.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063608/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 8, 2009
No. 07-14764 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00222-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YRAIDA LEONIDES GUANIPA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 8, 2009)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Yraida Leonides Guanipa, a federal prisoner convicted of
attempted possession with intent to distribute cocaine, appeals the district court’s
summary denial of her motion to clarify the conditions of her supervised released
that was filed after the probation officer denied her authority to work as a legal
assistant.
We review the district court's application of the law to sentencing issues de
novo. United States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008), petition for
cert. filed, Jan. 20, 2009 (No. 08-987). “We review the terms of supervised release
for abuse of discretion.” See United States v. Dodge, 554 F.3d 1357, 1360 (11th
Cir. 2009). A remand is necessary when the record on appeal is insufficient to
enable meaningful review. See United States v. Campbell, 473 F.3d 1345, 1347
(11th Cir. 2007).
A probation officer may “use all suitable methods, not inconsistent with the
conditions specified by the court, to aid a probationer or a person on supervised
release who is under his supervision, and to bring about improvements in his
conduct and condition.” 18 U.S.C. § 3603(3). However, under 18 U.S.C. § 3583,
district courts retain the ultimate responsibility for ensuring that a defendant has
complied with the conditions of her supervised release. See Gozlon-Peretz v.
United States, 498 U.S. 395, 400–01, 111 S. Ct. 840, 844–45, 112 L. Ed. 2d 919,
(1991) (noting that, with § 3583, Congress placed responsibility for overseeing a
2
defendant's post-confinement monitoring with the sentencing court). Additionally,
under § 3583, a district court may modify the conditions of supervised release, but,
under Fed.R.Crim.P. 32.1(c), before modifying the conditions of supervised
release, the court must hold a hearing, “at which the person has the right to counsel
and an opportunity to make a statement and present any information in mitigation.”
Fed.R.Crim.P. 32.1(c).
In United States v. Dempsey, 180 F.3d 1325, 13226 (11th Cir. 1999), we
held that district courts are exclusively authorized with imposing occupational
restrictions as a condition of supervised release, and that probation officers lack
such authority. In so holding, we further reasoned that U.S.S.G. § 5F1.5, which
implements 18 U.S.C. § 3583(d), “authorizes only a court to impose occupational
restrictions and restricts its authority to do so to those instances where the court
specifically finds (1) a reasonably direct relationship between the occupational
restriction and the conduct relevant to the defendant’s offense and (2) the
restriction is reasonably necessary to protect the public from the possibility the
defendant will continue to engage in unlawful conduct similar to that for which he
was convicted.” Dempsey, 180 F.3d at 1326 (quoting U.S.S.G. § 5F1.5).
Moreover, the Supreme Court has noted that associational conditions do not extend
to casual or chance meetings, and an “occupational association, standing alone,”
3
does not provide sufficient evidence of a violation of a supervised release
restriction. See Arciniega v. Freeman, 404 U.S. 4, 4, 92 S. Ct. 22, 22, 30 L. Ed. 2d
126 (1971).
Lastly, courts sometimes may use categorical terms to outline the contours
of supervised release conditions, and such categorical terms generally provide
sufficient notice of prohibited conduct when there is a plain understanding of what
activities those categories cover. United States v. Taylor, 338 F.3d 1280, 1286
(11th Cir. 2003).
However, the committee notes to Fed.R.Crim.P. 32.1(b) state specifically
that a defendant should have an opportunity to obtain clarification of a term or
condition of supervised release so that the defendant may have an opportunity to
comply with the court's order without first having to violate it, and caselaw
supports the procedural right to seek clarification. See Fed.R.Crim.P. 32.1(b)
advisory committee’s note; Dempsey, 180 F.3d at 1325–26 (considering a
defendant’s Rule 32.1(b) motion to have occupational restrictions imposed by
probation officer modified or clarified).
Here, the conditions of Guanipa’s supervised release did not include any
occupational restrictions, and the court effectively imposed such a restriction based
on its broad application of a restriction that she not “associate” with any persons
4
engaged in criminal activity or convicted felons. The court’s lack of explanation in
denying Guanipa’s motion does not provide an opportunity for meaningful
appellate review. More importantly, because an “occupational association,
standing alone” is insufficient evidence of a likely violation of the criminal
association restriction, we vacate and remand for the purpose of allowing the
district court to clarify the conditions of supervised release and reconcile those
with Guanipa’s requirement to work. If the court finds that an occupational
restriction is necessary, it needs to elaborate, following a hearing, why such a
restriction has a reasonable relationship to her convicted conduct and is reasonably
necessary to protect the public. Accordingly, we vacate and remand for further
proceedings.
VACATED AND REMANDED.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2768612/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3665
___________________________
Elijah Addai
lllllllllllllllllllllPetitioner - Appellant
v.
Robyn Schmalenberger, Warden, North Dakota State Penitentiary
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the District of North Dakota - Bismarck
____________
Submitted: October 9, 2014
Filed: January 9, 2015
____________
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
____________
BYE, Circuit Judge.
Elijah Addai appeals the district court's1 order denying his 28 U.S.C. § 2254
habeas petition. In his petition, and on appeal, Addai asserts that a brief, consensual
1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota, adopting the report and recommendations of the Honorable Charles
S. Miller, Jr., United States Magistrate Judge for the District of North Dakota.
courtroom closure during his state court trial violated his Sixth Amendment right to
a public trial and that he received ineffective assistance of counsel when his trial
counsel consented to the closure. We find the district court properly denied Addai's
petition and affirm.
I
On August 19, 2007, Addai and a friend gathered with several other people at
an apartment in Fargo, North Dakota. David Delonais and his cousin were also
present. Arguments erupted and tensions rose leading to a fight between Delonais,
Delonais's cousin, Addai, and Addai's friend. During the fight, Delonais stabbed
Addai's friend in the head and ran away. Addai followed, caught, and stabbed
Delonais. Delonais died at the hospital as a result of his injuries. On August 20,
2007, Addai was charged with one count of class AA felony murder, in violation of
North Dakota Century Code section 12.1-16-01(1)(a) for the murder of Delonais.
Addai was tried in the District Court for Cass County, North Dakota, and on
December 11, 2008, a jury found him guilty. The trial court sentenced him to life
imprisonment with the possibility of parole.
During the trial, Addai's attorney called as a witness J. Lange, the attorney of
another individual who had been involved in the investigation of the stabbing, to
testify regarding the alleged tampering with evidence and obstruction of the Delonais
murder investigation. Prior to testifying, Lange explained that he was uncomfortable
testifying because there may be topics which are protected by attorney-client privilege
or are not public knowledge. When Lange was asked to testify about a portion of his
client's criminal file, he objected and advised the trial court that the file was restricted
or sealed. To allow the testimony regarding the restricted file, the trial court closed
the courtroom. Addai's trial counsel stated he did not "have a problem with this" and
the trial court then allowed Addai's attorney to question the witness further regarding
the restricted information.
-2-
Addai's conviction and sentence were affirmed by the North Dakota Supreme
Court on February 17, 2010. See State v. Addai, 778 N.W.2d 555 (N.D. 2010). The
Court also rejected Addai's argument that the brief courtroom closure violated his
Sixth Amendment right to a public trial, finding the trial court did not commit plain
error in closing the courtroom. Addai then filed a petition for post-conviction relief,
arguing he received ineffective assistance of counsel when his trial counsel consented
to the closure. The state district court denied the petition on September 20, 2011, and
in a summary opinion, the North Dakota Supreme Court affirmed on March 15, 2012.
See Addai v. State, 809 N.W.2d 833 (N.D. 2012) (table).
Addai then filed the present 28 U.S.C. § 2254 habeas petition in the United
States District Court for the District of North Dakota. The district court found the
state court's decision regarding Addai's Sixth Amendment argument was not contrary
to or an unreasonable application of clearly established federal law because there was
no plain error and Addai waived the argument by agreeing to the courtroom closure.
The court also held Addai's trial counsel's performance was not deficient, and even if
it was, it caused no prejudice to Addai. Addai argues the district court erred with
regard to both claims.
II
"In determining whether to grant habeas relief, we review the district court's
conclusions of law de novo . . . ." Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir.
1998); see also Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006). Under the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this court's
review in a habeas proceeding is limited:
If the issues raised in the petition were adjudicated on the merits in the
state court proceeding, the petition must be denied, unless the state court
disposition "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
-3-
determined by the Supreme Court of the United States" or "resulted in
a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding."
Ward v. Norris, 577 F.3d 925, 936 (8th Cir. 2009) (quoting 28 U.S.C. § 2254(d)). A
"decision is contrary to clearly established federal law if it either arrives at a
conclusion opposite to that reached by the Supreme Court on a question of law or if
the state court arrives at a result opposite to one reached by the Supreme Court on
materially indistinguishable facts." Miller v. Dormire, 310 F.3d 600, 603 (8th Cir.
2002) (internal quotation marks omitted). "A decision is 'an unreasonable application'
of federal law 'if the state court identifies the correct governing legal principle from
[the Supreme] Court's decisions but unreasonably applies that principle to the facts of
the prisoner's case.'" Middleton, 455 F.3d at 845 (alteration in original) (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)). Our habeas review is not constrained
to the explicit reasoning in the opinion and we "must determine what arguments or
theories supported or . . . could have supported, the state court's decision." Harrington
v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786 (2011); Williams v. Roper, 695 F.3d 825,
834-37 (8th Cir. 2012). Here, there is no dispute that Addai's claims were adjudicated
on the merits in state court, and therefore, AEDPA's limited review applies.
After careful review of the record, we find the state court's determinations that
the brief, consensual courtroom closure did not violate Addai's Sixth Amendment
right and that Addai's attorney's consent to the closure was not ineffective assistance
of counsel were not contrary to or an unreasonable application of clearly established
federal law.
A
The Sixth Amendment to the United States Constitution guarantees that "[i]n
all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial." The right to a public trial is the right of the accused. Presley v. Georgia, 558
-4-
U.S. 209, 212 (2010). We have previously explained the numerous important
considerations supporting open criminal trials. See, e.g., United States v. Thunder,
438 F.3d 866, 867 (8th Cir. 2006) ("An open trial assures that the proceedings are
conducted fairly and discourages perjury, misconduct, and decisions based on
partiality or bias."). When a party objects to closing the courtroom, a trial court
should apply the following standard before excluding the public from any portion of
a criminal trial:
[T]he party seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, the closure must be no broader
than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make
findings adequate to support the closure.
Waller v. Georgia, 467 U.S. 39, 48 (1984); see also Thunder, 438 F.3d at 867-68.
However, "the right of access to a criminal trial is 'not absolute.'" Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 606 (1982). A defendant may certainly consent
to the closure of the courtroom if he believes it to be in his favor, and if he chooses to
do so, he can hardly claim on appeal that the closure violated his Sixth Amendment
right. See Peretz v. United States, 501 U.S. 923, 936 (1991) ("[F]ailure to object to
closing of courtroom is waiver of right to public trial."). Yet, this is precisely what
Addai attempts to do in this case. He now argues his own trial strategy violated his
Sixth Amendment right to a public trial.
Addai's trial counsel created the need for closing the courtroom and then
consented to the closure. As part of his case-in-chief, Addai sought to call Lange as
a witness. The State objected to calling Lange as a witness, and there were extensive
arguments regarding the relevance of any testimony he could offer as well as the
limits of his testimony based on attorney-client privilege concerns. The trial court
overruled the State's objection and allowed Lange to testify. Before testifying, Lange
himself objected to the unusual situation of being called as a witness and vigorously
-5-
argued that his testimony would be privileged or minimally relevant and that other
witnesses could be called to testify regarding the desired subject matter. The trial
court again overruled the objection but expressly limited the opportunity to force
Lange to testify: "I am going to very much restrict what either [the prosecution or
defense] could ask and so I'm going to allow you to raise any objection to a particular
question from the stand." After several questions, Lange objected to a document he
was asked about because the document was not in the public record. Since the only
objection was based on the restricted nature of the document, the trial court closed the
courtroom.2 Addai's trial counsel expressly stated he did not "have a problem with
this." The trial court then explained to the jury the reason for closing the courtroom,
the State noted it was not "entirely comfortable" with the closure, and Addai indicated
no concern or objection. Then, Addai's trial counsel continued to elicit testimony
from Lange regarding the document. At the conclusion of Lange's brief testimony,
the trial court re-opened the courtroom to the public.
In summary, Addai's trial counsel forcefully created the need for closing the
courtroom by calling an attorney as a witness to whom the trial court granted authority
to object from the stand and by asking questions of the witness regarding material not
in the public record. Addai then fully acquiesced to the closure, undoubtedly to
facilitate the admission of the sought-after testimony. Objecting to the courtroom
closure may very well have jeopardized the opportunity for Lange to testify regarding
the restricted matters. Under these circumstances, it is entirely reasonable to believe
consent was given to allow the witness to testify such that Addai waived his Sixth
Amendment right to a public trial for that brief period of time.
2
Addai highlights the document was mistakenly marked as restricted and was
eventually changed by the Clerk of Court to be public. However, there is no dispute
the document was marked as restricted at the time of the closure. Thus, the
subsequent change does not undermine the trial court's concern or Lange's reasonable
objection to it, and the change has no bearing on the question of whether Addai
consented to and waived the closure of the courtroom.
-6-
Under federal law, plain error review involves four steps:
First, there must be an error or defect–some sort of deviation from a legal
rule–that has not been intentionally relinquished or abandoned, i.e.,
affirmatively waived by appellant. Second, the legal error must be clear
or obvious, rather than subject to reasonable dispute. Third, the error
must have affected the appellant's substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the district court proceedings. Fourth and finally, if the above three
prongs are satisfied, the court of appeals has the discretion to remedy the
error–discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.
Puckett v. United States, 556 U.S. 129, 135 (2009) (internal citations and quotation
marks omitted).
Addai does not address the district court's holding that he waived this claim.
Rather, he continues to argue that the trial court committed plain error by failing to
balance the interests described in Waller. However, this is not a case in which a party
objected to the closure, which would require the procedure in Waller, or even a case
in which the attorney failed to object. Rather, this is a case in which the party
claiming error consented to the closure. When a party agrees to the closure of the
courtroom, he waives any such right, and cannot complain on appeal that the alleged
error he helped cause requires reversal, or in this case, habeas relief. See, e.g., United
States v. Christi, 682 F.3d 138, 142-43 (1st Cir. 2012) (Souter, J., sitting by
designation) (explaining that failure to object would be reviewed for plain error but
agreement to closure waives a public trial claim); Johnson v. Sherry, 586 F.3d 439,
444-45 (6th Cir. 2009); Guyton v. Butler, 490 F. App'x 331, 332 (11th Cir. 2012); see
also Crawford v. Minnesota, 498 F.3d 851, 856 (8th Cir. 2007) (denying habeas relief
because under Minnesota law similar claim was waived and procedurally defaulted).
A criminal defendant may waive his right to a public trial, and, in this instance, Addai
did so for what appears to be sound trial strategy. He may argue that his attorney was
-7-
ineffective in agreeing to the closure but he cannot now argue his agreement violated
his Sixth Amendment right. We find the state court did not reach a result that was
contrary to or based on an unreasonable application of federal law because Addai
cannot show he satisfies the first element required to demonstrate plain error under
Supreme Court precedent.3
B
Addai also argues his trial counsel provided ineffective assistance of counsel
by consenting to the courtroom closure and the state court's decision denying his claim
is contrary to or an unreasonable application of federal law. We disagree.
Under the familiar standard of Strickland v. Washington, 466 U.S. 668, 687
(1984), a defendant claiming ineffective assistance of counsel must show counsel's
performance was deficient and the deficiency prejudiced the defendant. When the
question of deficiency is unnecessary to the resolution of the claim, the court may
simply consider whether prejudice exists. See, e.g., Roper, 695 F.3d at 830; James v.
Iowa, 100 F.3d 586, 589 (8th Cir. 1996). The North Dakota Supreme Court denied
the claim on the merits, so we again review the decision under the AEDPA deferential
standard described above.
Addai does not argue the consent to the closure actually caused him any
prejudice. Instead, he argues the closure amounted to "structural error," based on
which this court should presume prejudice. Generally, under this court's precedent,
"when counsel's deficient performance causes a structural error, we will presume
3
We also do not believe Addai could satisfy the fourth element, had he not
consented to the closure and waived the issue. See United States v. Gomez, 705 F.3d
68, 76 (2d Cir. 2013) ("To the contrary, the fairness and public reputation of the
proceeding would be called into serious question if a defendant were allowed to gain
a new trial on the basis of the very [closure] he had invited.").
-8-
prejudice under Strickland." McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir. 1998).
However, McGurk involved the right to a jury trial–not the temporary closure of the
courtroom–and we expressly noted "the extremely limited circumstances in which it
is appropriate to presume prejudice." McGurk, 163 F.3d at 474. Our opinions in
Miller v. Dormire, 310 F.3d 600 (8th Cir. 2002) and Charboneau v. United States, 702
F.3d 1132 (8th Cir. 2013) suggest petitioner may be reading McGurk too broadly. We
have previously denied habeas relief under § 2254 on an ineffective assistance of
counsel claim for lack of prejudice under similar circumstances, which neither party
here discusses. See Girtman v. Lockhart, 942 F.2d 468, 471 (8th Cir. 1991). In
Girtman, the petitioner alleged his trial counsel was ineffective and failed to protect
his right to a public trial by agreeing to conduct voir dire in closed proceedings. Id.
We "fail[ed] to see how Girtman's defense was impaired by the closed voir dire" and
found "that the defense attorney's closure of voir dire was not prejudicial to Girtman's
defense." Id. Our sister courts have taken somewhat varying approaches on the issue.
Compare Ramos v. Dep't of Corr., 575 F. App'x 845 (11th Cir. 2014); Purvis v.
Crosby, 451 F.3d 734, 743 (11th Cir. 2006); United States v. Gomez, 705 F.3d 68, 80
(2d Cir. 2013); Johnson v. Sherry, 586 F.3d 439, 444-45 (6th Cir. 2009); Virgil v.
Dretke, 446 F.3d 598, 607 (5th Cir. 2006), with Owens v. United States, 483 F.3d 48,
66 (1st Cir. 2007); United States v. Withers, 638 F.3d 1055, 1067-68 (9th Cir. 2011).
Because the issue is before us in the context of a habeas petition, and Addai has failed
to demonstrate clearly established federal law, we need not more fully address it. See
Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear
answer to the question presented, let alone one in [Addai's] favor, it cannot be said that
the state court unreasonably applied clearly established Federal law." (internal
quotation marks omitted)); see also Evenstad v. Carlson, 470 F.3d 777, 783 (8th Cir.
2006) ("When the federal circuits disagree as to a point of law, the law cannot be
considered 'clearly established' under 28 U.S.C. § 2254(d)(1)."). It is enough to say
that requiring Addai to demonstrate prejudice would not have been contrary to or an
unreasonable application of clearly established federal law.
-9-
Addai's trial counsel's strategic decision to agree to a brief closure of the
courtroom in no way caused Addai prejudice. As the district court explained in the
denial of the petition:
The total number of pages of trial transcript consumed for the closed
courtroom testimony was ten. And even that does not truly reflect what
little was accomplished, since there were objections and a discussion
about the redaction of one of the exhibits, which everyone agreed to, as
well as a number of questions that were clearly irrelevant or
accomplished nothing more than simply restating what was in the
criminal records introduced as exhibits. Consequently, separating the
wheat from the chaff and assuming the testimony of [Lange] was
relevant at all which was questionable, a half-dozen questions at the most
covered the subject area of the closed testimony.
We further note that almost all of the testimony during the time the courtroom was
closed was elicited by Addai's trial counsel, which was part of trial counsel's strategy
for which he so aggressively fought to permit the witness to even testify at all. Less
than one full page of the transcript covers the cross-examination of the witness. This
case starkly differs from one in which a petitioner's attorney failed to object to a
courtroom closure during the presentation of critical and unfavorable evidence
presented by the other side over an extended period of time. Addai has not
demonstrated, and our independent review of the testimony has not revealed, any
testimony which could be construed as unfavorable to Addai such as to cause him any
prejudice. Indeed, it is difficult to imagine how closing the courtroom during the
examination of a witness called by Addai regarding evidence Addai sought to admit
could have in any way prejudiced him. Accordingly, Addai fails to demonstrate any
prejudice as a result of his attorney's consent to the closure of the courtroom and his
ineffective assistance of counsel claim fails.
-10-
III
For the foregoing reasons, we affirm.
______________________________
-11- | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063037/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 29, 2010
No. 09-15873 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20536-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSVALDO PIEDRA,
a.k.a. Bolly,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 29, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Osvaldo Piedra appeals the district court’s imposition of a supervised
release term. Piedra argues that when he completes his prison term, he will have
served the two-year statutory maximum term of imprisonment for supervised
release violations, and therefore the district court erred by imposing an additional
supervised release term under 18 U.S.C. § 3583(h) (2002). Because we agree, we
vacate and remand the sentence imposed.
In 2004, Piedra pleaded guilty to a single count of money laundering that
occurred from May 1998 through November 2002, in violation of 18 U.S.C.
§ 1956(h). He was sentenced to 29 months’ imprisonment followed by 3 years of
supervised release.
Piedra violated the terms of his release and, in 2008, the district court held a
supervised release revocation hearing, revoked Piedra’s supervised release, and
sentenced him to 12 months and 1 day incarceration, followed by 24 months of
supervised release. In 2009, the district court held another supervised release
revocation hearing. Piedra admitted violating the terms of his second release and
requested that the court sentence him to the high end of the 4-to-10-month
sentencing range and terminate his supervised release due to his alcohol problem.
The probation officer advised the court that the maximum possible
imprisonment term was 11 months and 29 days, which was the statutory maximum
2
of 24 months minus the 12 months and 1 day incarceration that Piedra had
received for his previous supervised release violation. The probation officer also
advised the court that the maximum supervised release term was 36 months minus
any incarceration time the court imposed here. The district court sentenced Piedra
to 11 months and 29 days imprisonment, followed by 24 months of supervised
release, explaining that it sentenced Piedra above the guideline range “because of
his history, because of his total disregard of his prior opportunities to be in
compliance [with] this Court’s orders.” Piedra objected to the reasonableness of
his sentence but did not mention the additional supervised release. He now
appeals.
We review de novo the legality of a sentence imposed pursuant to
revocation of a supervised release term. United States v. Mazarky, 499 F.3d 1246,
1248 (11th Cir. 2007). Because Piedra did not challenge the term of supervised
release imposed, we review for plain error. To demonstrate plain error, Piedra
“must show that: (1) an error occurred; (2) the error was plain; (3) it affected his
substantial rights; and (4) it seriously affected the fairness of the judicial
proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).
3
Section 3583 of Title 18 governs the imposition of a new term of supervised
release following the revocation of a prior term.1 Section 3583(e)(3) provides
that:
[t]he court may . . . revoke a term of supervised release,
and require the defendant to serve in prison all or part of
the term of supervised release authorized by statute for
the offense that resulted in such term of supervised
release . . . except that a defendant whose term is
revoked under this paragraph may not be required to
serve . . . more than 2 years in prison if such offense is a
Class C or D felony . . .
18 U.S.C. § 3583(e)(3) (2002). The charged conspiracy to launder money, 18
U.S.C. 1956(h), is a Class C felony. See 18 U.S.C. § 1956(a)(1) and (h); 18
U.S.C. § 3559(a)(3). Thus, two years is the maximum statutory imprisonment
term for Piedra’s supervised release violations.
Section 3583(h) limits the maximum term of supervised release imposed
upon revocation to “the term of supervised release authorized by statute for the
offense that resulted in the original term of supervised release, less any term of
1
Post-revocation penalties for violations of supervised release are attributable to the offense
conduct underlying the original conviction. Johnson v. United States, 529 U.S. 694, 701 (2000).
Piedra committed the relevant offense between May 1998 and November 2002; therefore, we
apply the 2002 version of § 3583 because the supervised release statute in effect at the time of the
original offense controls the penalties that may be imposed for violations of supervised release.
Id.
4
imprisonment that was imposed upon revocation of supervised release.” 18 U.S.C.
§ 3583(h) (2002).2 “[T]he maximum allowable supervised release following
multiple revocations must be reduced by the aggregate length of any terms of
imprisonment that have been imposed upon revocation.” Mazarky, 499 F.3d at
1250. As this court has explained:
in the case of a Class C felony for which the maximum
supervised release term is three years, a defendant who is
revoked and re-imprisoned for 18 months could be ordered
to serve as much as 18 additional months on supervised
release (36-month maximum term of supervised release
minus 18 months imprisonment equals 18 months possible
re-release supervision). If the same defendant was again
revoked, he could be re-imprisoned for not exceeding six
months (24-month cap minus 18 months previously-served
imprisonment equals 6 months allowable imprisonment)
and if so imprisoned, could not thereafter be placed on
supervision (because the two-year imprisonment cap would
have been reached). Thus, under [subsection (h),] a
defendant would always be credited for incarceration time
2
The full text of 18 U.S.C. § 3583(h) (2002) provides that:
When a term of supervised release is revoked and the defendant is
required to serve a term of imprisonment that is less than the
maximum term of imprisonment authorized under subsection (e)(3),
the court may include a requirement that the defendant be placed on
a term of supervised release after imprisonment. The length of such
a term of supervised release shall not exceed the term of supervised
release authorized by statute for the offense that resulted in the
original term of supervised release, less any term of imprisonment
that was imposed upon revocation of supervised release.
5
against both the cap on re-imprisonment and the maximum
authorized period of supervised release.
Mazarky, 499 F.3d at 1249 (citation omitted) (emphasis in original).
Here, as the government concedes, the district court plainly erred in
imposing an additional term of supervised release. Because 18 U.S.C. § 1956(h)
is a Class C felony, Piedra could not serve more than two years imprisonment for
his supervised release violations. See 18 U.S.C. 3583(e)(3). In aggregate, Piedra
served the 2-year statutory maximum imprisonment term – he served 12 months
and 1 day incarceration for the first revocation and 11 months and 29 days for the
second revocation. Thus, the district court properly applied the requirement in
§ 3583(h) that any term of imprisonment imposed pursuant to revocation be
subtracted from the statutorily authorized term of supervised release. But the
district court failed to recognize that § 3583(h) prohibits the imposition of any
additional supervised release term, where the defendant, as here, has served the
statutory maximum imprisonment term for violating his supervised release. See
Mazarky, 499 F.3d at 1249-50.
Because the court imposed an illegal supervised release term, the district
court erred, this error was plain, and it affected Piedra’s substantial rights.
Moreover, the error seriously affected the fairness of Piedra’s sentencing
6
proceedings. See Gresham, 325 F.3d at 1265. Thus, we vacate the district court’s
judgment insofar as it imposed the additional term of supervised release and
remand with instructions for the district court to re-sentence Piedra accordingly.3
SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.
3
Although Piedra objected to the reasonableness of his sentence before the district court, he
presents no arguments on appeal that his sentence was unreasonable. Accordingly, Piedra has
abandoned any claim that his sentence was unreasonable. United States v. Cunningham, 161 F.3d
1343, 1344 (11th Cir. 1998).
7 | 01-03-2023 | 10-14-2015 |
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12740 ELEVENTH CIRCUIT
MARCH 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A028-929-906
HELAMAN IQUIQUE, II,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 29, 2010)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Helaman Iquique, II, seeks review of the Board of Immigration Appeals’
(BIA’s) order dismissing his appeal, pursuant to 8 C.F.R. § 1003.3(e), because
Iquique was deported prior to filing his appeal. After review, we deny the petition.
Iquique first asserts the Immigration Judge (IJ) erred when it denied his
motion to reopen his asylum proceedings. We review only the BIA’s decision,
except to the extent that it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). Here, because the BIA did not adopt any
part of the IJ’s opinion, we do not review the IJ’s opinion and Iquique’s arguments
pertaining to the IJ’s errors are irrelevant to this appeal.
Iquique also asserts the BIA violated his statutory and due process right to
file a motion to reopen with the IJ because 8 C.F.R. § 1003.3(e) is “ultra vires” to
8 U.S.C. § 1229a(c)(7)(A). We review constitutional challenges de novo.
Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1316 (11th Cir. 2006).
Pursuant to 8 U.S.C. § 1229a(c)(7)(A), an “alien may file one motion to reopen”
his proceedings. 8 C.F.R. § 1003.3(a)(1) provides that a party affected by an IJ’s
decision may appeal that decision by filing a Notice of Appeal with the BIA.
However, “[d]eparture from the United States of a person who is the subject of
deportation proceedings, prior to the taking of an appeal from a decision in his or
her case, shall constitute a waiver of his or her right to appeal” with the BIA. Id. at
§ 1003.3(e).
2
Iquique asserts the Attorney General went beyond the scope of its statutory
authority, 8 U.S.C. § 1229a(c)(7)(A), when it enacted a regulation that waived his
right to file an appeal from outside the United States. However, Iquique has not
presented any arguments that 8 C.F.R. § 1003.3(e) exceeds the Attorney General’s
power to create regulations that govern immigration appeals. The BIA’s authority
comes from various statutes that permit the Attorney General to create an
Executive Office for Immigration Review, 6 U.S.C. § 521(a), and the Attorney
General’s power to establish regulations and review administrative determinations
in immigrations proceedings, 8 U.S.C. § 1103(g)(1), (2). Iquique’s argument that
8 U.S.C. § 1229a prevents the Attorney General from promulgating 8 C.F.R.
§ 1003 is unpersuasive as 8 U.S.C. § 1229a deals with motions to reopen rather
than notices of appeal to the BIA. Iquique has not presented any arguments that 8
C.F.R. § 1103.3(e) exceeds the Attorney General’s power to create regulations
governing immigration appeals. Accordingly, we deny the petition for review.
PETITION DENIED.
3 | 01-03-2023 | 10-14-2015 |
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12244 ELEVENTH CIRCUIT
MARCH 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A096-001-162
GABNER FILS ST. GERMAIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 29, 2010)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Gabner Fils St. Germain, a native and citizen of Haiti, seeks review of the
Board of Immigration Appeals’s (“BIA”) order, affirming the decision of the
immigration judge (“IJ”) denying his application for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”), and relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”), on the basis of an adverse
credibility determination and lack of corroborating evidence. INA §§ 208 & 241,
8 U.S.C. §§ 1158 & 1231; 8 C.F.R. § 208.16(c).
On appeal, St. Germain argues that he suffered persecution in Haiti on
account of his political opinion and membership in a particular social group;
therefore, he contends that the BIA erred in denying his application for asylum.
Specifically, St. Germain argues against the adverse credibility determination,
challenging the IJ’s fact finding process, and contending that the emphasis on his
lack of corroborating evidence was inappropriate. He also asserts that his
procedural due process rights were violated during his removal hearing.1 St.
Germain does not raise the denial of withholding of removal or CAT relief on
appeal, so he has abandoned these claims. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1
St. Germain also seeks a remand to the IJ for consideration of St. Germain’s application
for adjustment of status. St. Germain did not raise this claim before the BIA in relation to the
present petition for review, but has raised this claim in a separate motion to reopen before the
BIA. Therefore, this claim is not properly before us at this time.
2
1226, 1228 n.2 (11th Cir. 2005) (per curiam). Upon review of the record and the
parties’ briefs, we find that substantial evidence supports the BIA’s determination
that St. Germain’s testimony and corroborating evidence before the IJ were not
credible and that St. Germain was not substantially prejudiced by the alleged
procedural due process violation. Therefore, we deny the petition.
I. BACKGROUND
In his credible fear interview, St. Germain said that he was a Haitian police
officer, a criminal investigator, and a supporter of the Organization of People in
Struggle (“OPL”), a human rights organization. St. Germain also stated that he
was a lawyer who represented the OPL. St. Germain said that in Haiti, he
investigated the murder of his friend and police officer, Ricardo Benjamin.
Benjamin was a member of the OPL and criticized human rights abuses by the
police. St. Germain accused the police of committing this murder, and then he was
threatened with death by the government and the government’s political party. St.
Germain stated that he feared the government because he supported the OPL and
because he spoke out against the death of his friend.
In his asylum application, St. Germain stated that in Haiti he was associated
with the Federation of Student University of Haiti (“FEU”), an organization that
criticized the country’s condition. He stated that after he wrote a police report
implicating the police in the assassination of Benjamin, he received telephone calls
3
accusing him of working for the “Convergence” and threatening his life. In his
attached statement, St. Germain stated that he was placed on the team that led the
investigation into Benjamin’s murder as a criminal investigator. The investigation
convinced St. Germain that the police assassinated Benjamin as a result of his
opposition to the police. Ultimately, St. Germain was dismissed from the
investigation and encouraged to leave the country. He felt that his life was in
danger, and another member of the investigation team was murdered.
In support of his application, St. Germain submitted, inter alia, a letter dated
June 7, 2003, to St. Germain from the police commissioner in the area in which
Benjamin was killed, congratulating him on his service as a police investigator and
requesting the records related to the Benjamin investigation. He also submitted a
copy of an internet article dated April 12, 2002, on Benjamin’s murder.
At St. Germain’s removal hearing, St. Germain testified that he was a trained
criminal investigator, that he graduated from law school, and that he continued as a
university student until he left Haiti. When he was in school, he was a member of
the FEU, and he worked as a police officer. He stated that he conflicted with other
police officers in the student protests, and as a result, received personal threats.
With regard to Benjamin’s investigation, he stated that he received threatening
phone calls, and then some people searched his mother’s house and took all of his
documents. During this search, the police ransacked the house, and they pulled a
4
weapon on his mother. On cross-examination, St. Germain testified that he
received the letter from the police commissioner asking for the results of the
Benjamin investigation in April 2002, before he submitted his report. The
government then asked him why the letter was dated June 7, 2003, after St.
Germain was in the United States and no longer on the Haitian police force. St.
Germain replied that there is not a set time frame for an investigation to end. St.
Germain acknowledged that he did not have any other proof that he was an
investigator for Benjamin’s murder, and although he submitted his report to a
supervisory official, he did not know what the final official report concluded about
the murder.
When questioned about his political affiliations, he testified that he was only
a member of FEU, but did not mention OPL. Later, St. Germain stated that FEU
was affiliated with OPL. The government asked if anyone had mistreated his
family that remained in Haiti, and St. Germain replied, “Yes. My family was
threatened.” When asked if his family had been physically mistreated, he replied,
“No.”
The government then discovered certain documents, which had been
retrieved from St. Germain when he was initially detained, in the government’s
file. These documents, which included his police I.D. card and an OPL
membership card, had not been previously submitted to the court or shown to St.
5
Germain’s attorney. The government then showed the documents to St. Germain
and again inquired about his membership in OPL, when he testified only to
membership in FEU. St. Germain stated that FEU gave him the card, and OPL and
“all those parties together” make up “Convergence,” a group which fights for
human rights, and that the card did not say FEU because “they didn’t want the
faculty mingling with the political party.”
On July 8, 2004, the IJ denied St. Germain’s application for relief on the
basis that his testimony was not credible. On November 1, 2005, the BIA
determined that the tape recordings of the removal hearing contained indiscernible
information and returned the record to the IJ to take the necessary steps “to enable
preparation of a complete transcript . . . including a new hearing, if necessary.” On
remand, St. Germain submitted a transcript on which corrections and explanations
of the indiscernible portions were written in by hand. The government objected to
these corrections on the ground that they were not corrections, but explanations to
what was said at the hearing. The IJ specifically approved some of the corrections,
and the transcript was revised to include only the approved corrections. The IJ
granted a new hearing to give St. Germain an opportunity to explain any of the
answers that were included in the transcript.
Before the second hearing, St. Germain, represented by new counsel,
submitted the U.S. State Department’s Haiti Country Report on Human Rights
6
Practices for 2006, together with multiple other reports and articles about police
corruption and human rights abuses in Haiti. He submitted a letter from the United
Nations Haiti Mission stating that St. Germain was a police investigator, and a
police report filed by his mother regarding the search of her home. St. Germain
also submitted an internet report dated February 2002 which appeared to have the
same content as the internet article submitted with the asylum application. During
his testimony, St. Germain stated that his wife was pregnant, and after his house
was searched as a result of the Benjamin investigation, his wife went to the police
station and called one of the policemen a “thug,” at which point, the policeman
kicked his wife in the belly. She started bleeding, and she miscarried. He stated
that his mother told him that during the search of his home, men entered forcibly,
shot at the walls, made her lay down on her stomach, put their feet on top of her
legs, and threatened her with death. St. Germain also stated that he spoke on the
radio, distributed flyers, interacted with the people, and received many threats as a
result of his involvement in the Convergence and related organizations, such as
OPL and FEU.
After recounting the differences between St. Germain’s testimony at the two
hearings and the differences between the testimony and the asylum application, the
IJ concluded that St. Germain was not credible, and that St. Germain had
7
“changed the focus of his fears” because his testimony emphasized his political
activity, while his application relied on his participation in the Benjamin
investigation. Thus, the IJ determined that St. Germain had not met his burden of
proof with respect to asylum, withholding of removal, or CAT relief. The BIA
affirmed, first determining that the IJ’s adverse credibility finding was not clearly
erroneous, and concluding that any error relating to the introduction of the
documents from the detention proceeding was harmless and not prejudicial. The
BIA dismissed the appeal.
II. STANDARD OF REVIEW
We review the BIA’s decision unless the BIA expressly adopted the IJ’s
decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (citation omitted).
Here, since the BIA issued its own opinion upholding the IJ’s adverse credibility
finding and the denial of asylum, we will only review the BIA’s decision.
“The BIA’s factual determinations are reviewed under the substantial
evidence test, and [we] must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817–18 (11th Cir. 2004)
(quotation and citation omitted). “Credibility determinations likewise are reviewed
under the substantial evidence test.” Id. at 818. “The trier of fact must determine
credibility, and this court may not substitute its judgment for that of the BIA with
8
respect to credibility findings.” Id. (citation omitted). Under the highly deferential
substantial evidence test, we will not reverse an adverse credibility finding unless
“the evidence ‘compels’ a reasonable fact finder to find otherwise.” Chen v. U.S.
Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (per curiam) (citation and
quotation omitted). “Furthermore, [u]nder the substantial evidence test, we review
the record evidence in the light most favorable to the agency’s decision and draw
all reasonable inferences in favor of that decision.” Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (alteration in original) (citation and quotation
omitted). We review legal determinations of the BIA de novo. Delgado v. U.S.
Att’y Gen., 487 F.3d 855, 860 (11th Cir. 2007) (per curiam) (citation omitted).
III. DISCUSSION
A. Adverse Credibility Determination
An alien is eligible for discretionary asylum relief if the alien is a “refugee”
within the meaning of INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). INA
§ 208(b)(1)(A), 8 U.S.C. §1158(b)(1)(A). A “refugee” is defined as
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion[.]
9
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the
burden of proving that he qualifies as a “refugee.” 8 C.F.R. § 208.13(a). In order
to meet this burden, “the applicant must, with specific and credible evidence,
establish (1) past persecution on account of a statutorily protected ground or (2) a
well-founded fear of future persecution on account of a protected ground.” Mejia
v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (citations omitted).
“The asylum applicant must establish eligibility for asylum by offering
credible, direct, and specific evidence in the record.” Forgue, 401 F.3d at 1287
(quotation omitted). “[A]n adverse credibility determination alone may be
sufficient to support the denial of an asylum application.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1255 (11th Cir. 2006) (per curiam) (citation and quotation
omitted). We have held that decisions about credibility must be based on “clean
determinations” by the fact finder. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201
(11th Cir. 2005) (citation omitted). “Further, the [fact finder] must offer specific,
cogent reasons for an adverse credibility finding.” Forgue, 401 F.3d at 1287.
“[A]n adverse credibility determination does not alleviate the [fact finder’s] duty to
consider other evidence produced by an asylum applicant.” Id. However, “[o]nce
an adverse credibility finding is made, the burden is on the applicant alien to show
that the . . . credibility decision was not supported by specific, cogent reasons or
was not based on substantial evidence.” Id. (quotation omitted).
10
“Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments.”
Ruiz, 440 F.3d at 1255. In Chen, we upheld an adverse credibility determination
where the IJ cited “a number of inconsistencies and discrepancies between Chen’s
asylum application, his credible fear interview, and his testimony at the removal
hearing.” 463 F.3d at 1232.
The alien’s testimony, “if credible, may be sufficient to sustain the burden of
proof [for asylum] without corroboration.” 8 C.F.R. § 208.13(a); Forgue, 401 F.3d
at 1287 (citation omitted). “The weaker an applicant’s testimony, however, the
greater the need for corroborative evidence.” Yang, 418 F.3d at 1201 (citation
omitted).
Substantial evidence supports the BIA’s conclusion that the IJ’s adverse
credibility finding was not clearly erroneous. First, the record supports each of the
inconsistencies identified by the BIA. At the first hearing and in his asylum
application, St. Germain’s claim of persecution was primarily from the police
based on his investigation of Benjamin’s death. However, at the second hearing,
the focus of St. Germain’s fears shifted to the governmental regime as a result of
his general political involvement. At the second hearing, St. Germain raised new
information regarding his political activities, including radio broadcasts and police
stops, with no clear explanation as to why this information was omitted from his
11
application and the first hearing. At the second hearing, he raised new
explanations for the inconsistencies in his statements that he belonged only to
OPL, and then only to FEU. Significantly, the record supports the inconsistency in
St. Germain’s testimony regarding his family’s physical mistreatment. He first
testified that no one was physically mistreated, and at the second hearing, he
provided testimony regarding his pregnant wife’s loss of a baby due to
mistreatment by the police, the source of his fear of persecution. He first testified
that his mother’s home was ransacked and guns were drawn, but this differs from
the detailed second account involving shooting and physical force. Viewing the
record in the light most favorable to the agency and drawing all reasonable
inferences in favor of that decision, a reasonable fact finder would not be
compelled to reverse the BIA’s finding that St. Germain’s testimony was not
credible. See Forgue, 401 F.3d at 1287.
Also, the record supports the BIA’s conclusion that St. Germain did not
submit corroborative evidence to support his claim of persecution. St. Germain
was unable to provide a copy of his investigative report into Benjamin’s death or
any other evidence regarding his participation in that investigation, even though he
was able to obtain other documentation from Haiti. The letter that he did submit
from the police commissioner requesting the report was unreliable because vague
and non-specific reasons were given as to why it was dated so long after St.
12
Germain had left Haiti. St. Germain submitted no evidence of Benjamin’s death,
other than two internet articles that were also unreliable. St. Germain did not
submit verification of the death of the other investigator, nor evidence that he had
reported any incident to officials. Further, although St. Germain testified about his
political activity through the radio broadcasts, he did not submit any verification of
this testimony. Given the weakness of his testimony, strong corroborative
evidence was needed to sustain his burden of proof for asylum relief, but instead,
his evidence detracted from his claim. See Yang, 418 F.3d at 1201.
Upon review of the record and consideration of the parties’ briefs, we
conclude that substantial evidence supports the BIA’s conclusion that the IJ’s
adverse credibility finding was not clearly erroneous. Also, the record supports the
BIA’s conclusion that St. Germain did not submit sufficient corroborative evidence
to support his claim of persecution. Without credible testimony or sufficient
corroborative evidence, the record does not compel a finding that St. Germain
demonstrated past persecution or a well-founded fear of future persecution on
account of a protected ground, and the present petition fails.
B. Procedural Due Process
“It is well settled that individuals in deportation proceedings are entitled to
due process of law under the Fifth Amendment.” Frech v. U.S. Att’y Gen., 491
F.3d 1277, 1281 (11th Cir. 2007) (citation omitted). However, “[t]o prevail on a
13
procedural due process challenge, the petitioner must show that he was
substantially prejudiced by the violation.” Id. (citations omitted). An alien can
demonstrate substantial prejudice by showing that, in the absence of the due
process violation, “the outcome would have been different.” Ibrahim v. INS, 821
F.2d 1547, 1550 (11th Cir. 1987).
St. Germain’s procedural due process argument fails because he does not
show that substantial prejudice resulted from any alleged procedural error. The
record reveals that the government did not actually realize that the documents were
in the file until a series of questions from the IJ led the government to that
discovery. When the documents were discovered, they were shown to the court
and to St. Germain, and the court then gave St. Germain a chance to explain on re-
direct examination. Significantly, this evidence belonged to St. Germain, was on
his person when he arrived in the United States, and was originally obtained from
him; thus, he is presumed to know of its existence. The evidence did not reveal a
new substantive inconsistency. Thus, St. Germain was not prejudiced by this
evidence; therefore, he cannot prevail on his due process argument.
IV. CONCLUSION
Substantial evidence supports the BIA’s opinion, and St. Germain was not
substantially prejudiced by the alleged procedural due process violation.
Accordingly, we deny the petition.
14
PETITION DENIED.
15 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063041/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15485 MARCH 29, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-00096-CV-CDL-4
BYRON HICKEY,
Plaintiff-Appellee,
versus
COLUMBUS CONSOLIDATED GOVERNMENT, et al.,
Defendants,
CHIEF R.T. BOREN,
Individually and in his official capacity,
CAPT J. D. HAWK,
Individually and in his official capacity,
SGT. DAVID HORIUCHI,
Individually and in his official capacity,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 29, 2010)
Before BIRCH, BARKETT, Circuit Judges, and BUCKLEW,* District Judge.
BARKETT:
Police Chief R.T. Boren, Police Captain, J.D. Hawk, and Police Sergeant
David Horiuchi appeal from an adverse summary judgment in Byron Hickey’s suit
against them asserting employment discrimination and retaliation in violation of
Title VII, § 1981, the Equal Protection Clause, the First Amendment, and Georgia
state law. Hickey claims, inter alia, that, because of his race, Chief Boren
transferred him from Vice to Burglary and Theft. He also claims that he was
retaliated against for supporting another officer’s discrimination complaint against
the Department by the above-noted action as well as by a negative performance
review authored by Horiuchi and supported by Hawk and an extended
administrative assignment ordered by Chief Boren. He asserts that the negative
performance review was itself harmful, even though it was reversed the day
following its initial completion; that the administrative assignment resulted in lost
income due to a departmental rule barring officers from taking outside security-
related jobs while on administrative assignment, and that the transfer to Burglary
and Theft was also its own harm.
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
2
The District Court denied qualified immunity to Boren on the § 1981
retaliation claims based on the extended administrative assignment as well as the §
1981 and Equal Protection discrimination and retaliation claims based on Hickey’s
transfer to Burglary and Theft. The District Court denied qualified immunity to
Hawk and Horiuchi on the 1981 retaliation claim based on the negative
performance review. Boren, Hawk, and Horiuchi appeal these determinations.
Initially, we reject the appellants’ argument that a claim for retaliation under
Section 1981 was not clearly established at the time of the allegedly unlawful
conduct. See Andrews v. Lakeshore Rehabilitation Hospital, 140 F.3d 1405 (11th
Cir. 1998) (recognizing § 1981 post-hiring retaliation claims); Pinkard v.
Pullman-Standard, 678 F.2d 1211, 1229 (5th Cir. Unit B 1982).
However, we find merit in Boren’s argument that, rather than applying the
law at the time of the incidents at issue, the district applied a later-developed legal
standard for retaliation, first discussed in Burlington Northern & Santa Fe Railway
Co., 548 U.S. 53 (2006), to the alleged facts of the case. The clearly-established
law governing retaliation claims in this circuit at the time of the conduct at issue
provided that “in order to be considered an adverse employment action . . . the
action must either be an ultimate employment decision or else must meet some
threshold level of substantiality.” Stravropoulos v. Firestone, 361 F.3d 610,
3
616-617 (11th Cir. 2004).
Subsequent to the actions relevant here, the Supreme Court rejected this
standard in Burlington Northern. See Crawford v. Carroll, 529 F.3d 961, 973-74
(11th Cir. 2008) (Burlington Northern retaliation standard more lenient to plaintiffs
alleging retaliation under Title VII than 11th Circuit standard in effect at time of
defendants’ allegedly unlawful conduct). Instead, the Supreme Court held that “a
plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, “which in this context means it well might have
‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Burlington Northern, 548 U.S. at 60. (internal citation omitted).
The Court further explained that:
We speak of material adversity because we believe it is important to separate
significant from trivial harms. Title VII, we have said, does not set forth “a
general civility code for the American workplace.” . . .
We refer to reactions of a reasonable employee because we believe that the
provision's standard for judging harm must be objective. An objective
standard is judicially administrable. It avoids the uncertainties and unfair
discrepancies that can plague a judicial effort to determine a plaintiff's
unusual subjective feelings. . . .
[T]his standard . . . is tied to the challenged retaliatory act, not the
underlying conduct that forms the basis of the Title VII complaint. By
focusing on the materiality of the challenged action and the perspective of a
reasonable person in the plaintiff's position, we believe this standard will
screen out trivial conduct while effectively capturing those acts that are
likely to dissuade employees from complaining or assisting in complaints
4
about discrimination.
Id. at 68-69 (internal citations omitted).
Although this is the applicable standard now, subsequent law cannot be
applied in a qualified immunity context unless pre-existing law, at the time of the
allegedly unlawful conduct, is clearly established such that it would give notice to
a reasonable official of the wrongfulness of the conduct. See Hope v. Pelzer, 536
U.S. 730, 739-41 (2002).
Accordingly, Boren’s actions relative to the extended administrative
assignment must be evaluated under the clearly established law existing at the time
of the alleged unlawful conduct, and we reverse and remand the denial to Boren of
qualified immunity for reconsideration under that standard.
As to the claim of discrimination against Boren for Hickey’s transfer to
Burglary and Theft and the claims against Hawk and Horiuchi, we reverse the
denial of qualified immunity. Hickey argues that Horiuchi did not follow required
procedures when he decided to down-grade one of the thirteen elements of
Hickey’s 2006 appraisal without giving Hickey advance notice of his intent to do
so. However, Hickey’s January 19, 2006 performance evaluation by Horiuchi did
not result in any tangible harm such as the loss of his job, a delay in his annual
raise, a decrease in his earnings or degrading of his position. Moreover, the January
5
19th evaluation was rejected and never became part of Hickey’s personnel record.
When Hickey’s grievance was resolved in Hickey’s favor, a new - and higher -
evaluation was substituted. Because the evaluation process was suspended as soon
as Hickey contested his appraisal, and before Hickey suffered any tangible harm,
Horiuchi’s non-compliance with Departmental policy – and Hawk’s approval of
that non-compliance – did not rise to the level of substantiality required by the
clearly-established law that existed in this circuit at the time. See Pennington v.
City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (decision to reprimand or
transfer an employee, if rescinded before the employee suffers a tangible harm, is
not an adverse employment action).
Likewise, the transfer to the Burglary unit did not result in any tangible
harm. As such, it too cannot make out a discrimination claim. See Davis v. Lake
Park, 245 F.3d 1232, 1243-45 (11th Cir. 2001).
REVERSED AND REMANDED.
6 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2800744/ | State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 14, 2015 518505
________________________________
In the Matter of PERRY P.
O'CONNELL,
Appellant.
MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: March 25, 2015
Before: Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.
__________
Cynthia Feathers, Pro Bono Appeals Program, Albany (Alan J.
Pierce of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.
__________
Garry, J.
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed May 28, 2013, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because he voluntarily left his employment without good cause.
In 2012, claimant decided to close a catering business that
he had operated for 34 years as a subchapter S corporation. His
subsequent application for unemployment insurance benefits was
ultimately denied by the Unemployment Insurance Appeal Board on
the ground that he voluntarily left his employment without good
cause. Claimant now appeals.
We affirm. "When a claimant closes an operating business,
the issue of whether he or she is qualified to receive benefits
-2- 518505
turns upon whether there was a compelling reason to close the
business" (Matter of Pitic [Commissioner of Labor], 249 AD2d 671,
671 [1998] [citation omitted]; accord Matter of Lowman
[Commissioner of Labor], 101 AD3d 1282, 1283 [2012]). Here,
claimant testified that, beginning in 2009, his business began to
decline and that, between 2009 and 2012, there was a 50% drop-off
of catering contracts. The corporation's tax returns reflect,
however, gross receipts of $297,167 in 2009, with a net income of
$2,522, gross receipts of $281,397 in 2010, with a net income of
$4,997, and gross receipts of $279,755 in 2011, with a net income
of $764. Claimant's individual tax returns reveal that he was
paid a moderate salary in each of these three years. At the time
he closed the business at the end of August 2012, claimant
estimated corporate gross receipts of $220,970 for the year to
date, with a net income of $26,620, after payment of claimant's
salary, in a sum that was lower than the prior years, but was not
an extreme departure from his prior earnings. Although the
decline in business had required claimant to reduce personnel,
there was no proof that the business was otherwise unable to meet
its financial obligations. Claimant owned the building where he
ran the business, and there was no mortgage; the premises were
rented to the business for favorable tax treatment. Although
claimant testified that, at the time he closed the business he
had no bookings for October 2012 to December 2012, he also
testified that his business was seasonal and that this was
generally a slow time. In our view, the record thus establishes
that this was a viable business, and the Board's decision is
supported by substantial evidence (see Matter of Lowman
[Commissioner of Labor], 101 AD3d at 1283; Matter of Pitic
[Commissioner of Labor], 249 AD2d at 671; cf. Matter of Rosen
[Commissioner of Labor], 9 AD3d 775, 776 [2004]; Matter of
Crawford [Hudacs], 182 AD2d 1047, 1048 [1992]).
Lahtinen, J.P., McCarthy and Lynch, JJ., concur.
-3- 518505
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2800773/ | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SIDNEY NELSON, JR.,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2014-3191
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0845-13-0347-I-1.
______________________
Decided: May 14, 2015
______________________
SIDNEY NELSON, JR., Seattle, WA, pro se.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
SHELLEY D. WEGER, BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., REGINALD T. BLADES, JR.
______________________
Before MOORE, CLEVENGER, and WALLACH, Circuit
Judges.
2 NELSON v. OPM
PER CURIAM.
Petitioner Sidney Nelson, Jr., appeals the final order
of the Merit Systems Protection Board (“Board”) affirming
the Office of Personnel Management’s (“OPM”) finding
that Mr. Nelson owed $36,505.58 in overpaid annuity
payments from the Federal Employees Retirement Sys-
tem (“FERS”). See Nelson v. Office of Pers. Mgmt., No.
SF-0845-13-0347-I-1 (Merit Sys. Prot. Bd. Aug. 15, 2014)
(Resp’t’s App. 44–50) (“Final Order”); Nelson v. Office of
Pers. Mgmt., No. SF-0845-13-0347-I-1 (Merit Sys. Prot.
Bd. Dec. 5, 2013) (Resp’t’s App. 22–37) (“Initial Decision”).
Because the Board’s findings were supported by substan-
tial evidence, this court affirms.
BACKGROUND
Mr. Nelson, a former mail handler with the United
States Postal Service, was approved for FERS disability
retirement benefits effective July 19, 2000. In order to
continue receiving these benefits, he was limited to earn-
ing less than $31,937.60, which was 80% of his base pay
at retirement of $39,922. In other words, if he were to
earn $31,937.60 or more, he would be ineligible for disa-
bility retirement benefits. OPM eventually discovered
that while Mr. Nelson was receiving disability retirement
payments, his earnings exceeded the 80% limitation in
calendar years 2001, 2005, 2006, and 2007.
On February 1, 2006, OPM informed Mr. Nelson he
had been overpaid $3,225.38 from July 1, 2002, through
January 31, 2006. OPM stated the cause of the overpay-
ment was Mr. Nelson’s receipt of disability payments
despite the fact he was ineligible to receive them. On
February 8, 2006, Mr. Nelson responded that he could not
afford to repay the overpayment.
On March 21, 2009, OPM notified Mr. Nelson that the
determined overpayment amount was revised to
$36,505.58. It stated he was not entitled to payments
NELSON v. OPM 3
received from July 1, 2002, through December 31, 2002,
and from July 1, 2006, through December 31, 2008, be-
cause his earnings exceeded the 80% earnings threshold
in calendar years 2001, 2005, 2006, and 2007. The notice
explained the overpayment would be recovered through
seventy-three monthly installments of $500 and a final
installment of $5.58. Mr. Nelson requested that OPM
waive the overpayment, claiming he had no knowledge of
the overpayment and he should not be held responsible
for OPM’s mistake.
On May 25, 2011, in a reconsideration decision, OPM
denied his request. Mr. Nelson appealed to the Board.
OPM subsequently rescinded its May 2011 reconsidera-
tion decision and issued a new decision in February 2013,
denying Mr. Nelson’s request for waiver. OPM found Mr.
Nelson was partially at fault for creating the overpay-
ment. In addition, even though OPM found Mr. Nelson
had not provided enough evidence to demonstrate finan-
cial hardship, it revised the repayment schedule so the
overpayment would be repaid in 243 monthly payments of
$150 and a final payment of $55.58.
Mr. Nelson appealed OPM’s decision to the Board, ar-
guing he was without fault for the overpayment and
repaying it would cause hardship. On December 5, 2013,
an Administrative Judge issued the Initial Decision
affirming the OPM’s decision. Mr. Nelson subsequently
filed a petition for review to the full Board. On August
15, 2014, the Board affirmed the Initial Decision in its
Final Order.
Mr. Nelson appeals the Final Order. This court has
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review
This court’s “scope of . . . review of [B]oard decisions is
limited to whether they are (1) arbitrary, capricious, an
4 NELSON v. OPM
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c)
(1988)). The issue of Board jurisdiction is a question of
law this court reviews de novo. Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). This court is
bound by the Board’s jurisdictional factual findings “un-
less those findings are not supported by substantial
evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
II. Disability Benefit Earnings Cap and Overpayment
Any person receiving retirement disability annuities
under the age of sixty who receives income or wages in
any calendar year “equal[ to] or greater than at least 80
percent of the current rate of basic pay of the position
occupied immediately before retirement” is considered to
have his or her earning capacity restored. 5 C.F.R.
§ 844.402(a). If earning capacity is considered restored,
the retirement disability annuity “will terminate on the
June 30 after the end of the calendar year in which earn-
ing capacity is restored.” Id.
Recipients of retirement disability annuities “must
report to OPM their income from wages or self-
employment or both for that calendar year. . . . If an
annuitant fails to submit the report, OPM may stop
annuity payments until it receives the report.” Id.
§ 844.402(d).
Once OPM has demonstrated to the Board by a pre-
ponderance of evidence that the overpayment occurred,
the burden shifts to Mr. Nelson to “establish by substan-
tial evidence that he . . . is eligible for a waiver or an
adjustment.” Id. § 831.1407(b).
NELSON v. OPM 5
OPM may recover an overpayment from a recipient
who is not eligible for waiver. See id. § 831.1401. A
recipient is eligible for waiver if (a) he or she is “without
fault” and (b) “recovery would be against equity and good
conscience.” Id. § 845.301. One who receives an “over-
payment is without fault if he or she performed no act of
commission or omission that resulted in the overpayment.
The fact that the [] OPM or another agency may have
been at fault in initiating an overpayment will not neces-
sarily relieve the individual from liability.” Id. § 845.302.
OPM is required to consider certain factors when deter-
mining fault:
(1) Whether payment resulted from the individu-
al’s incorrect but not necessarily fraudulent
statement, which he or she should have known to
be incorrect;
(2) Whether payment resulted from the individu-
al’s failure to disclose material facts in his or her
possession, which he or she should have known to
be material; or
(3) Whether he or she accepted a payment that he
or she knew or should have known to be errone-
ous.
Id. § 845.302(a). “The individual’s age, physical and
mental condition or the nature of the information sup-
plied to him or her by OPM or a Federal agency may
mitigate against finding fault.” Id. § 845.302(b).
Even if Mr. Nelson “is ineligible for waiver,” he may
still be “entitled to an adjustment in the recovery sched-
ule if he [] shows that it would cause him [] financial
hardship to make payment at the rate scheduled.” Id. §
845.301. “Financial hardship may be deemed to exist in—
but not limited to—those situations where the annuitant
from whom collection is sought needs substantially all of
his/her current income and liquid assets to meet current
6 NELSON v. OPM
ordinary and necessary living expenses and liabilities.”
Id. § 831.1404.
OPM may take into account certain factors when de-
termining whether recovery would cause financial hard-
ship: “(1) The individual’s financial ability to pay at the
time collection is scheduled to be made. (2) Income to
other family member(s), if such member’s ordinary and
necessary living expenses are included in expenses re-
ported by the annuitant.” Id. § 831.1404(a).
III. The Board’s Finding that Mr. Nelson Was Not
Without Fault for the Overpayment Was Supported by
Substantial Evidence
Mr. Nelson’s entitlement to a waiver is governed by
whether he was at fault for the overpayments. Mr. Nel-
son does not contest he received an overpayment, he does
not disagree with the overpayment amount, and he does
not contest he had notice of the 80% earnings limit. In his
petition for appeal to the Board, he argued only that he
was not at fault for the overpayments.
The Board’s finding that Mr. Nelson was not without
fault was supported by substantial evidence. Thus, it was
within its discretion to deny Mr. Nelson’s waiver request.
See 5 C.F.R. § 831.1407(b). The record shows Mr. Nelson
received a letter dated April 4, 2005, outlining his 80%
earnings limitation and his responsibility to report his
earnings to OPM. As the Board found, Mr. Nelson “was
put on further notice concerning the 80% limitation upon
his receipt of the agency’s February 1, 2006 notice of
overpayment” and he chose not to report his 2007 earn-
ings. Initial Decision at 7 n.5. Mr. Nelson accepted
retirement benefit payments when he knew or should
have known he was ineligible to receive such benefits.
See 5 C.F.R. § 845.302(a)(3). By not reporting his earn-
ings, and by not setting aside known ineligible payments,
Mr. Nelson performed several acts of “omission that
NELSON v. OPM 7
resulted in overpayment.” Id. § 845.302. The overpay-
ment was a result of Mr. Nelson’s “failure to disclose
material facts in his [] possession,” mainly, his salary
amount and the fact that his salary exceeded the 80%
limit. Id. § 845.302(a)(2).
IV. The Board’s Finding that Mr. Nelson Was Not
Entitled to Further Adjustment of the Recovery Schedule
Was Supported by Substantial Evidence
Mr. Nelson is eligible for an adjustment of his pay-
ment schedule if he can show the current recovery sched-
ule would cause “financial hardship.” Id. § 845.1404.
The Board’s finding that Mr. Nelson “failed to show that
he is entitled to any adjustment on the collection sched-
ule,” Initial Decision at 10, was supported by substantial
evidence.
As the Board found, Mr. Nelson failed to show he
would face financial hardship because he did not provide
substantial evidence to establish his current income. This
made it impossible to determine whether he “needs sub-
stantially all of his[] current income and liquid assets to
meet current ordinary and necessary living expenses and
liabilities,” 5 C.F.R. § 831.1404, or to determine his “fi-
nancial ability to pay at the time collection is scheduled to
be made,” id. § 831.1404(a)(1).
Although Mr. Nelson did not file a required “Financial
Resources Questionnaire,” he provided an unsworn
statement stating he was living on social security and
disability payments, and listed several of his expenses.
Initial Decision at 7. The statement did not list his or his
spouse’s specific incomes.
OPM substantially revised Mr. Nelson’s payment
schedule in February 2013. Mr. Nelson failed to provide
sufficient evidence asserting he is entitled to further
schedule adjustments.
8 NELSON v. OPM
CONCLUSION
For the reasons set forth above, the decision by the
Board is
AFFIRMED
COSTS
No costs. | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2908317/ | Reed-JL v. State
IN THE
TENTH COURT OF APPEALS
No. 10-95-242-CR
        JOHNNY L. REED,
                                                                                       Appellant
        v.
        THE STATE OF TEXAS,
                                                                                       Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 25,355
                                                                                                   Â
O P I N I O N
                                                                                                   Â
          Johnny L. Reed was sleeping in a car driven by Joezell Charles on Interstate 45 in Navarro
County when Charles was stopped for speeding by State Trooper Michael Turner. During the
stop, Officer Turner searched the vehicle, found cocaine, and arrested both the driver and Reed
for possessing the substance. Reed filed a motion to suppress the evidence, and when the court
denied his motion, pled guilty and filed this appeal. He asserts in a single point that the court
improperly denied his motion to suppress because of insufficient "affirmatively links" between him
and the contraband.
          Turner saw a maroon Chrysler travelling north on IH-45 and began to "pace" the vehicle.
Because he determined that the vehicle was exceeding the posted limit of 65 miles per hour, he
activated his emergency lights. The Chrysler stopped on the improved shoulder, and Turner
stopped his vehicle behind it. When Turner requested a driver's license, the driver said that his
license had expired and gave Turner a Texas Department of Corrections Identification Card, which
identified him as Charles. Turner said that Charles was "nervous."
          When Turner searched Charles for weapons, he discovered "a large bulge" in his left front
pants pocket. When Charles removed it, Turner saw a brown plastic medicine bottle with a white
cap. When asked what it contained, Charles became "very nervous and shaky." He told Turner
that it was medicine for a toothache that his passenger had. Turner, seeing that the bottle had no
label and appeared to be very old, opened the bottle and smelled a "strong odor of cocaine."
When he asked Charles again what the bottle contained, Charles "just looked at the ground and
said nothing." He then admitted that it was "rock cocaine."
          Turner went to the passenger's door of the Chrysler, opened the door, and asked Reed for
some type of identification, which he produced. Reed told Turner that he had borrowed the car
from a friend in Wichita Falls and that he and Charles were travelling from Houston to Dallas.
Turner told Reed about the cocaine and asked him to stand outside of the car while he searched
it. In the back, he found two jackets in the driver's-side seat and a small dark colored bag in the
passenger's-side seat. Under that bag, he found a "brown colored plastic sack, tied in a knot."
Inside that bag, a brown paper sack contained a small clear plastic baggie with a "light brown
colored waxy substance" that Turner believed was more rock cocaine. Another clear plastic
baggie contained a "white powder substance" that Turner believed to be powdered cocaine.
          Turner arrested both Charles and Reed, transported them to the Navarro County jail, and
made an inventory of the vehicle. Laboratory tests showed the waxy substance to weigh 8.2
ounces and the powder to weigh 5 grams. Reed was charged with aggravated possession of a
controlled substance.
          Prior to trial, Reed filed a motion to suppress the evidence of the substances that Turner
had found. He agreed with the State that the court could decide the motion on the basis of the
facts that are contained in the trooper's offense report. The court denied the motion to suppress
and Reed pled guilty. His sole point on appeal asserts:
The trial court erred in denying the appellant's motion to suppress because there
were insufficient affirmative links between the defendant and the contraband seized from
the vehicle in which he was a passenger to show that he exercised care, control, and
management over the contraband and that he knew the matter possessed was contraband.
          The State's first contention that the record is insufficient to allow us to review the court's
denial of the motion to suppress is moot because the record was supplemented after the State's
brief was filed. The State next asserts that Reed failed to show that the search was conducted
without a warrant. However, the stipulated facts contained in Turner's offense report are subject
to no other interpretation but that he was so arrested. Finally, the State points out that reliance
on an "affirmative links" analysis is misplaced when testing the validity of a search, as that
analysis is appropriate for testing the sufficiency of the evidence to support a conviction. Having
said that, the State proceeds to defend the search on the grounds that Turner had probable cause
to conduct it. We agree with the State.
          Under the automobile exception, an officer may conduct a warrantless search of a motor
vehicle if the officer has probable cause to believe that the vehicle contains evidence of a crime.
Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991).
          The "totality of the circumstances" test is used to determine whether probable cause existed
for a warrantless search. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). The
State bears the burden of proving the existence of probable cause to justify a warrantless search.
Id. Probable cause exists when the facts and circumstances within the officer's knowledge and of
which he has reasonably trustworthy information are sufficient in themselves to warrant a belief
by a man of reasonable caution that a particular person has committed or is committing an offense.
Id.
          Reed does not contest Turner's right to stop Charles or to search him. Having found an
old, unlabeled prescription-type bottle that he was told contained medicine for the passenger and
having found that it contained a substance that Charles admitted was cocaine, Turner had probable
cause to believe that the vehicle contained evidence of a crime. Amos, 819 S.W.2d at 161. Thus,
he was authorized to search it. Amores, 816 S.W.2d at 413.
          Because Turner was authorized to search the vehicle in which Reed was a passenger
without a warrant, the court correctly denied the motion to suppress the evidence that Turner
found. We overrule the point and affirm the judgment.
Â
                                                                                 BILL VANCE
                                                                                 Justice
Before Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed March 20, 1996
Do not publish         Â
5" Month="10">October 15, 2003, on the report of a disturbance. He and another officer had been called to La
Mirage II the week before regarding AppellantÂs family and, at that time,
issued written warning citations to Appellant, his mother, and one brother to
stay off the property. The written
warning to Appellant was issued on October 8, 2003, and it purports to bear AppellantÂs signature. On October 15, Officer Arnold, after having
to threaten to enter the apartment because Appellant was initially hiding
inside, found Appellant in SusannaÂs apartment and arrested him for criminal
trespass for violating the warning issued to him on October 8. Officer Charles Herron accompanied Officer
Arnold on October 15, and his testimony corroborated Officer ArnoldÂs
testimony. Both officers testified that
the warning as to Appellant was still valid on October 15 and that it had not
been removed by La Mirage II. Wiethorn
and assistant manager Brenda Lerma of La Mirage II testified that once someone
is warned off the property, they are not allowed back on the property, and they
both testified that they did not give permission to Appellant or his mother or brother
to return to SusannaÂs apartment after the written warnings had been issued.
Bertha and Susanna testified that they did not
know that Appellant had also been warned off the property on October 8. Susanna testified that Appellant and his
youngest brother were living at her apartment after the eviction and that she
thought they had not been warned off the property. Also, Susanna said that she had obtained verbal
permission (through SusannaÂs daughter as an interpreter) from Wiethorn for Bertha
to be on the property, in that Bertha was allowed to pick up and drop off her children
(which would include Appellant) and SusannaÂs children for school and that
BerthaÂs children would be with Bertha on these occasions. Both Wiethorn and Lerma denied that they gave
any verbal permission to Bertha for her or Appellant to be on the property, and
Wiethorn denied even having such a conversation with Susanna. Â On October 15, at the time of AppellantÂs
arrest, Susanna said that Bertha had just brought all the children from school
and had also brought some food for Susanna to cook because, Susanna explained,
after being evicted, Bertha did not have a place to cook at the place she had
moved to. Bertha testified that
Appellant was at the apartment on October 15 because she had just picked him
and the other children up from school and that Appellant had to be with her at
that time. Bertha admitted her understanding
that she could not come to SusannaÂs apartment, but she said that she did so
anyway because she was dropping off the children from school and getting food
for her children to eat. Â (Bertha was
also arrested for criminal trespass on October 15 and pled guilty).
Legal
Sufficiency
         Appellant
argues that the evidence is legally insufficient to support the trial courtÂs
finding of true on the charged allegation of engaging in the delinquent conduct
of criminal trespass.[1]Â When reviewing a challenge to the legal
sufficiency of the evidence to establish the elements of the penal offense that
forms the basis of the finding that the juvenile engaged in delinquent conduct,
we must determine whether, after viewing all the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979). The standard is the same for
both direct and circumstantial evidence cases.Â
Kutzner v. State, 994 S.W.2d
180, 184 (Tex. Crim. App. 1999).
We do not resolve any conflict of fact or assign
credibility to the witnesses, as this was the function of the trier of the
fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421
(Tex. Crim. App. 1992); Matson v. State,
819 S.W.2d 839, 843 (Tex. Crim. App. 1991).Â
Instead, our duty is to determine if both the explicit and implicit
findings of the trier of fact are rational by viewing all of the evidence
admitted at trial in a light most favorable to the verdict. Adelman,
828 S.W.2d at 422. In so doing, any
inconsistencies in the evidence are resolved in favor of the verdict. Â Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819 S.W.2d at 843.
The State was required to prove beyond a
reasonable doubt that Appellant knowingly or intentionally entered or remained
on the property of another after receiving notice that entry was
forbidden. Tex. Pen. Code Ann. § 30.05(a)(1) (Vernon 2003); see Holloway v. State, 583 S.W.2d 376,
377 (Tex. Crim. App. 1979); Bader v.
State, 15 S.W.3d 599, 606 (Tex. App.ÂAustin 2000, pet. refÂd). Generally, the culpable mental state may be
inferred from circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94
(Tex. Crim. App. 1974).
         Appellant
asserts that there is no evidence upon which the trial court could rationally
have found that he criminally trespassed because no trier of fact could
conclude that the State proved the mens
rea element of criminal trespass beyond a reasonable doubt because
Appellant, a minor, was at the apartment at the behest of his mother. Appellant argues that the State did not
contradict BerthaÂs testimony that Appellant was at the apartment only because
she required him to be there because she was dropping off all the children from
school and bringing food for her children to be cooked at the apartment. The trial court, however, was the sole judge
of BerthaÂs credibility and was free to disregard it. See
Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Moreover, SusannaÂs testimony that Appellant
was living at her apartment is inconsistent with BerthaÂs testimony about why
Appellant was there that day, and BerthaÂs testimony that Appellant was not
warned away is contradicted by the testimony of apartment management and Officer
Arnold and by the written warning itself.Â
BerthaÂs testimony that she knew she should not be on the property was
also contradicted by SusannaÂs testimony about receiving verbal permission for
Bertha to be on the property.
         The
State established through Officer Arnold that Appellant was warned away in
writing from the property and through circumstantial evidence that Appellant
knowingly returned to the property in violation of the warning.
Considering all of the evidence in the light
most favorable to the verdict, the trial court could rationally have found
beyond a reasonable doubt that Appellant committed the offense of criminal
trespass. Jackson, 443 U.S. at 318-319, 99 S. Ct. at 2788-89. Finding the evidence to be legally
sufficient, we overrule this issue.
Mistake
of Fact
         In
his second issue, Appellant asserts that the trial court erred because
Appellant established that heÂand his familyÂcommitted a mistake of fact as to
his right to be on the subject property.
ÂIt is a defense to prosecution that the actor
through mistake formed a reasonable belief about a matter of fact if his
mistaken belief negated the kind of culpability required for commission of the
offense. Tex. Pen. Code Ann. § 8.02(a) (Vernon 2003). A reasonable belief is one held by an
ordinary and prudent person under the same circumstances as the actor. Winkley
v. State, 123 S.W.3d 707, 712 (Tex. App.ÂAustin 2004, no pet. h.). It is the defendant, rather than a third
person, who must labor under the mistake of fact. Lasker
v. State, 573 S.W.2d 539, 542 (Tex. Crim. App. [Panel Op.] 1978). The mistake-of-fact defense does not look at
all to the belief or state of mind of any other person; it impliedly looks to
the conduct of others only to the extent that such conduct contributes to the
actorÂs mistaken belief. Johnson v. State, 734 S.W.2d 199, 203-04
(Tex. App.ÂHouston [1st Dist.] 1991, pet. refÂd).
         If
there is a reasonable doubt with respect to the existence of a defense, the
accused must be acquitted. Tex. Pen. Code Ann. § 2.03(d) (Vernon
2003); Winkley, 123 S.W.3d at 712. In other words, the trier of fact must find
against the defendant on the defensive issue beyond a reasonable doubt. See
Sexton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
           In
Zuliani v. State, the court held that
when a defendant challenges the factual sufficiency of the rejection of a
defense, we must review all of the evidence in a neutral light and ask whether
the StateÂs evidence, taken alone, is too weak to support the finding and
whether the proof of guilt, although adequate if taken alone, is against the
great weight and preponderance. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). But in Zuniga v. State, the court recently clarified the standard of
review for factual sufficiency challenges. Zuniga
v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).
When conducting a factual sufficiency review of
the evidence, we consider all of the evidence, but we do not view it in the
light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129
(Tex. Crim. App. 1996). We may find the
evidence to be factually insufficient in two ways. Zuniga,
144 S.W.3d at 484. First, evidence is
factually insufficient when the evidence supporting the finding of guilt,
considered alone, is too weak to support the finding beyond a reasonable
doubt. See id. Second, evidence is
also insufficient when contrary evidence is so strong that guilt cannot be
proven beyond a reasonable doubt. See id. at 484-85. However, in our factual sufficiency review,
we must still give appropriate deference to the trier of fact and should not
intrude upon its role as the sole judge of the weight and credibility given to
evidence presented at trial. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis, 922 S.W.2d at 133.
Roy v.
State addresses ZunigaÂs implication when the defendant
challenges the factual sufficiency of the rejection of a mistake-of-fact defense:
In [clarifying the factual sufficiency standard
of review, Zuniga] did not
specifically address whether the modified standard applies when a defendant
challenges the rejection of a defense. However, the court expressed its desire
to resolve any conflicts in the standard of review for factual sufficiency by
(1) linking the burden of proof at trial to the standard of review on appeal
and (2) avoiding language that suggested a lower burden of proof was required. Â [Zuniga,
144 S.W.3d at 485.]Â Thus, the court
concluded that because the State is required to prove the defendant's guilt
beyond a reasonable doubt, any standard of review that suggested the lower
burden of proof, preponderance of the evidenceÂwhether or not it was actually
employedÂwas inappropriate. Â Id.
. . .
Following Zuniga,
we first look at the burden of proof of the parties at trial when, as in this
case, the defendant raises the defense of mistake of fact. Â See id.
 The defendant bears the initial burden
to present evidence raising the defense; however, once the defense is raised,
the State bears the burden of persuasion to disprove the defense. Â Bruno v.
State, 812 S.W.2d 56, 59-60 (Tex. App.ÂHouston [14th Dist.] 1991), aff'd, 845 S.W.2d 910, 912 (Tex. Crim.
App. 1993); Anderson v. State, 11
S.W.3d 369, 372 (Tex. App.ÂHouston [1st Dist.] 2000, pet. ref'd). Â The State meets its burden by proving its case
beyond a reasonable doubt. Â Bruno, 812 S.W.2d at 59-60. Â Thus, the State's burden does not decrease
once the mistake of fact defense is raised; rather, the State must disprove the
defense by proving its case beyond a reasonable doubt. Â Id.
Â
Because Zuliani's
standard for reviewing the factual sufficiency of the rejection of a defense
utilizes "great weight and preponderance" language, and the Zuniga court resolved some of the
confusion that developed post-Clewis
by avoiding language suggestive of a preponderance of the evidence burden of
proof, we interpret Zuniga to modify
the standard of review for rejection of a defense. Â Accordingly, we adopt the Zuniga modification for the standard of review when the defendant
challenges the rejection of a defense. Â Thus, when the defendant challenges the
rejection of a defense on factual insufficiency grounds, we view all the
evidence in a neutral light and determine whether (1) the evidence supporting
the rejection of the defense, when considered by itself, is too weak to support
the rejection beyond a reasonable doubt or (2) contrary evidence, if present,
is strong enough that the beyond-a-reasonable-doubt standard could not be met. Â See
Zuniga, [144 S.W.3d at 484-85.]Â This
revised standard encompasses both objectives stated in Zuniga; first, it directly links the burden of proof to the
standard of review on appeal, and second, it removes the great weight and
preponderance language from the standard of review. Â See Zuniga,
[144 S.W.3d at 484.]
Â
Roy v.
State, --- S.W.3d ---, ---, 2004
WL 1607489 at *3-4 (Tex. App.ÂHouston [14th Dist.] 2004, no pet. h.).
         We
agree with RoyÂs analysis and will apply it to AppellantÂs mistake-of-fact
defense and factual-sufficiency issue.Â
As Roy notes, the defendant bears the initial burden
of producing some evidence to raise a regular defense such as mistake of fact,
and once the defense is raised, the State bears the burden of persuasion to
disprove the defense. [2]Â Id. at ---, *4.Â
The State meets its burden of persuasion by proving its case beyond a
reasonable doubt and thus need not produce evidence directly refuting the
evidence of the defense. Zuliani, 97 S.W.3d at 594; Roy, at ---, 2004 WL 1607489 at *4.
By its finding of true, the trial court believed
that Appellant knew he did not have permission to be on the property, thus
implicitly finding against AppellantÂs mistake-of-fact defense. While there is some evidence that Susanna
believed that Appellant had permission to return to the property, Appellant did
not produce any evidence that he believed
that he had permission to return to the property. Appellant thus did not meet his initial
burden of production. Nevertheless, the
StateÂs evidence on the permission issue (the apartment managers both testified
that permission was not given after Appellant was warned off, and the officers
testified that Appellant was hiding in the apartment until they threatened to
enter), when considered by itself, is not too weak to support the implicit rejection
of AppellantÂs defense. Cf. Winkley, 123 S.W.3d at 712 (affirming
trespass conviction and rejecting defendantÂs factual sufficiency issue on
mistake-of-fact defense where she testified she had received oral permission to
enter property, but person allegedly giving permission testified he did not
give her permission).
We thus conclude that the evidence is factually
sufficient to support the trial courtÂs implied finding against AppellantÂs
defense. AppellantÂs second issue is
overruled.
Conclusion
         Having
overruled both issues, we affirm the judgment.
Â
BILL VANCE
Justice
Â
Before Chief
Justice Gray,
Justice Vance,
and
Justice Reyna
Affirmed
Opinion
delivered and filed April 20, 2005
[CV06]
   [1]      The StateÂs burden of proof in a juvenile
case is beyond a reasonable doubt. Tex. Fam. Code Ann. § 54.03(f) (Vernon Supp. 2004-05); see In re R.X.F., 921 S.W.2d 888, 899 (Tex. App.ÂWaco 1996, no
writ). We thus apply the criminal
standard of review for legal sufficiency of the evidence. In re
K.B., 143 S.W.3d 194, 199 (Tex. App.ÂWaco 2004, no pet. h.); In re C.P., 998 S.W.2d 703, 708 (Tex.
App.ÂWaco 1999, no pet.); In re R.X.F.,
921 S.W.2d at 899.
Â
   [2]      With an affirmative defense such as
insanity, the defendant has the burden of proof (preponderance of the evidence)
and the burden of persuasion, and on appeal the standard of review is whether,
after considering all the evidence on the issue, the judgment is so against the
great weight and preponderance of the evidence to be manifestly unjust. Meraz
v. State, 785 S.W.2d 145, 150, 154-55 (Tex. Crim. App. 1990). | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2988164/ | December 13, 2012
JUDGMENT
The Fourteenth Court of Appeals
MELANIE DORSETT, AS EXECUTRIX OF MELANIE FOSTER’S ESTATE,
Appellant
NO. 14-11-00039-CV V.
HISPANIC HOUSING AND EDUCATION CORPORATION, Appellee
________________________________
This cause, an appeal from the judgment signed September 28, 2010 in favor of
appellee Hispanic Housing and Education Corporation, was heard on the transcript of the
record. We have inspected the record and find error in the judgment. We therefore order
the judgment of the court below REVERSED and REMAND the cause for proceedings
in accordance with the court’s opinion.
We further order that all costs incurred by reason of this appeal be paid by
appellee Hispanic Housing and Education Corporation.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3236388/ | The prosecution in this case was begun in the Recorder's Court of the City of Birmingham, Ala., and was for the violation of Section 600 of the General Code of Birmingham which prohibits the possession of lottery paraphernalia. From a judgment of conviction in said court an appeal was taken and perfected to the circuit court and was there tried by a jury upon a complaint filed by the attorneys for the City of Birmingham. He was again convicted as charged in the complaint and from the judgment pronounced and entered, this appeal was taken.
Prosecutions under City or Town ordinances are quasi criminal, and on appeal to court of last resort, are subject to rules governing civil appeals. Therefore, in order to properly present insistences of error for review it is essential that assignment of errors be made upon the record as in civil cases.
No assignment of errors has been made upon the record in this case, hence no question is presented for the consideration of this court, and the judgment of the circuit court appealed from must be affirmed. Gentle v. City of Huntsville, 26 Ala. App. 374,160 So. 273, and numerous cases cited in 15 Alabama Digest, Municipal Corporations, 642 (3).
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2898460/ | NO. 07-08-0348-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 20, 2009
______________________________
CHRISTOPHER MILLS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 07-03-6403; HONORABLE PAT PHELAN, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION ON MOTION FOR REHEARING
Remaining convinced that our original disposition of Appellant’s appeal is correct,
we overrule Appellant’s motion for rehearing with these additional comments. Appellant,
Christopher Mills, contends this Court erred in failing to first address his legal sufficiency
issue (Issue One) because a successful challenge would have resulted in an acquittal on
the first-degree felony offense of aggravated assault pursuant to § 22.02(b)(1) of the Texas
Penal Code. Specifically, Appellant contends that there was no evidence that the
complainant’s injuries rose to the level of serious bodily injury, i.e., injuries creating a
substantial risk of death or that causes death, serious permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or organ.1
A court of appeals is required to address every issue “necessary to final disposition
of the appeal.” Tex. R. App. P. 47.1. Because Appellant’s third issue (improper jury
argument committed during the guilt-innocence stage of the trial) had the effect of setting
aside his conviction, resolution of Appellant’s legal sufficiency issue was not necessary to
a final disposition of his appeal.
Furthermore, since the trial court submitted a charge on the second-degree felony
offense of aggravated assault by the use of a deadly weapon, a finding of legal
insufficiency as to the issue of serious bodily injury would have required this Court to
reform the judgment to reflect a conviction as to that lesser included offense. Collier v.
State, 999 W.W.2d 779, 782 (Tex.Crim.App. 1999). Reversal and remand for a complete
new trial accords Appellant greater relief than a remand for purposes of punishment only.
Therefore, not only did the prior opinion of this Court address every issue necessary to final
disposition of this appeal, it also did not improperly fail to address the issue that afforded
Appellant the greater relief.
1
Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2009).
2
That said, even if this Court were to consider Appellant’s legal sufficiency challenge
in accordance with the standards which are well known, we find that a rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214
S.W.3d 9, 13 (Tex. 2007). Considered in the light most favorable to the verdict: (1) the
complainant suffered seven stab wounds to her head, neck, chest, hand, and back, (2) the
head wound involved temporal artery bleeding, (3) the chest wound entered her chest right
above her heart, (3) these injuries required exploratory surgery to determine whether they
were life threatening, (4) treatment required surgery, numerous stitches, a drain tube, and
the insertion of a breathing tube for five days, (5) her treating physician described the
wound by the heart, the injury to the airway requiring a breathing tube and the injury to the
head involving major blood vessels to the brain as creating a substantial risk of death, (6)
the complainant testified that, without the breathing tube down her throat, she could not
breathe, and (7) Detective Hancock testified that the five inch long, double-bladed knife
used to inflict the wounds was, in his opinion, a deadly weapon capable of causing serious
bodily injury. Appellant’s motion for rehearing is overruled.
Patrick A. Pirtle
Justice
Do not publish.
3 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4003424/ | March 1, 1919, James A. Fulks, then living on a farm which he owned in Lawrence county, Ohio, acquired by deed from P. V. Thorniley and wife, at the price of $25,000, a tract of land in Cabell county, West Virginia, containing 369 acres. He later removed to the Cabell county property, *Page 740
and there remained until his death, August 25, 1922. On September 23, 1919, Fulks sold and conveyed to Lester Scheff and Virgie Scheff the farm in Ohio for $9,000, receiving from them, as evidence of the purchase price, nine notes of $1,000 each secured by mortgage of the land, and payable jointly to himself and wife, Hattie Fulks. Some time thereafter in the presence of his wife, Fulks collected eight of the notes, applying the proceeds on the purchase price of the real estate in Cabell county.
Soon after his death, the widow, Hattie Fulks, having been appointed and qualified as administratrix of the estate, delivered to the appraisers as a part of the assets, the unpaid $1,000 note which had been found among papers in the exclusive possession of the husband at the time of his death.
January 8, 1923, the children and heirs-at-law of James A. Fulks instituted this suit in chancery against the widow. Hattie Fulks, for partition by sale of the Cabell county land. By consent of the parties a decree was entered June 20, 1923, directing sale and appointing special commissioners for the purpose. Report of sale, by the special commissioners, at the price of $30,000, was confirmed by decree of September 23, 1923.
January 30, 1924, Hattie Fulks filed her petition in the cause setting up claim against the estate to one-half of the nine notes. The matter was referred to a commissioner in chancery who, after taking proof, disallowed the entire claim. Overruling exceptions of the petitioner thereto, the circuit court affirmed the finding of the commissioner. From this ruling the petitioner appealed.
Notwithstanding the general rule that a delivery to the donee is an essential step to a completed gift of personality, the appellant contends that delivery to the husband of the notes payable jointly to herself and him was a delivery to her, from which arises the prima facie presumption that he intended to give her one-half interest in the notes. This exception to the general rule is recognized in the case of Abegg v. Hirst,144 Iowa 196, 138 A.S.R. 285, 122 N.W. 838, where a husband who purchased a note and mortgage had *Page 741
it assigned to himself and wife. The court, after stating the general rule that where anything remains to be done in carrying out the donor's intent, the gift is not complete, says:
"But here nothing remains for him to do. The assignment was absolute and unconditional. He, as one of the joint assignees, was entitled to the possession of the instruments. His possession thereof was not in any way inconsistent with the complete vesting of title to a one-half interest in his wife, for delivery to either one in pursuance of the assignment was a complete execution of such assignment. From the time of delivery to him of the instruments, the transaction vesting title thereto in common in himself and wife was complete. The title of his wife's one-half interest did not come to her through him but came to her directly by his procurement from the assignor. There was no occasion for him to deliver the instrument to his wife, in order to effect the transfer of such interest, as she acquired directly from the assignor by the assignment. The delivery by the assignor to complete the assignment was sufficient."
We would be so inclined to hold in this case if there were not facts rebutting the prima facie presumption in favor of appellant. She admits in her testimony that it was the purpose at the time of the execution of the notes to have them applied on the purchase price of the land in Cabell county, owned by him, as was actually done with the proceeds of the eight notes collected. Even though she was originally entitled to one-half of the notes, she can not now recover her interest in the proceeds of those collected for the reason that its application, to the purchase price of his property is presumed to have been a gift by her to him. "If a wife deliver or allow her husband to receive money of hers belonging to her separate estate, the presumption is that it is a gift, not a loan."Bennett v. Bennett, 37 W. Va. 396, 16 S.E. 638. With respect to the unpaid $1,000 note, in view of the fact that it was taken along with the other *Page 742
eight notes, to her knowledge to be applied on the purchase price of the property belonging to him, the subsequent conduct of appellant and her husband in treating all of the notes as his property, even to the extent on her part of having the unpaid note appraised as an asset of the estate, and her long delay in asserting any claim, the decree of the circuit court complained of will be affirmed. To constitute a gift intervivos two essential elements must combine: an intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject and invests the donee therewith.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4003425/ | John Sauls was convicted of murder in the second degree for the killing of E. F. Jones and was sentenced to serve eighteen years in the penitentiary. He seeks a reversal of that judgment. The verdict complained of is the third to be returned against defendant for the offense charged. The first, upon motion, was set aside by the trial court and a new trial was awarded. The second was sustained by the trial court, but was set aside by this court by decision rendered March 6, 1923, and a new trial was again directed. We recited the principal circumstances of the homicide in the opinion then written.State v. Sauls, 93 W. Va. 276, 116 S.E. 391, and the present record discloses few material changes. Then, as now, defendant claimed that having suddenly discovered his wife and Jones about to engage in sexual intercourse, he inflicted the fatal wounds under the provocation induced by the situation; and also, that deceased having fired the first shot, defendant's action was in self-defense.
The theory of the state in the former case was that the true motive of defendant and his wife was robbery. It sought by its evidence to show that deceased was inveigled by defendant and his wife into the circumstances which resulted in his death.
Repeating briefly a part of the facts stated in the former opinion, deceased, either upon defendant's invitation, or upon his own volition, called at defendant's residence about 7:00 P. M. on the evening of November 12, 1921, Defendant, his wife and children were there. Both men partook of some moonshine liquor, apparently furnished by deceased, and after a few minutes Mrs. Sauls informed defendant that his lawyer, Judge T. J. McGinnis, desired to see him. Defendant left the house, but stopped at a toilet situate in a barn on his premises, a short distance from the house. He was there about five minutes when he saw deceased approaching and he decided to watch unobserved what deceased was about. Mrs. Sauls followed shortly after, and, according to the testimony of the defense, was about to engage in intercourse with Jones, when defendant halted the proceedings, and having been *Page 187
shot at by the deceased, fired three shots into Jones' body. Mrs. Sauls fled and Jones died shortly after.
A theory of the state, perhaps not relied upon at the former trial, is that defendant had heard reports of his wife's improper relations with Jones, and that his stopping and hiding in the barn was for the purpose of entrapping deceased in his illicit enterprise. If the jury's verdict was reached under proper and sufficient evidence and instructions, it would, of course, be decisive. The question for us is whether it was so arrived at. We will consider certain of the assignments of error in order.
1. The first error urged is that the verdict was not warranted by the evidence and should therefore have been set aside. Defendant argues this point with an eloquent plea that homes be made secure from the violations of seducers, and a defense of him, who, maddened by such unexpected invasion, takes the life of the intruder. However just the principle invoked may be, it suffices for us to say that the evidence upon the conflicting theories presented in this case could only be properly weighed by a qualified jury, and that their judgment has been unfavorable to the accused. If in so deciding defendant had not been prejudiced either by the court's ruling upon the admission or rejection of evidence, or by instruction, we could do nothing else but dismiss at once his objection to the jury's decision.
2. The second objection goes to the empaneling of the jury. Prior to the introduction of evidence on the merits of the case, counsel for defendant moved to quash the jury panel, and upon that motion the court heard the testimony of the Clerk of the Criminal Court and the Sheriff, and examined the writ of venire facias summoning the petit jurors selected to serve at the particular term. It appears that there was no written order of the court authorizing the summoning of the panel, but under verbal agreement with the court and the prosecuting attorney, the clerk, on May 3, 1923, issued the writ calling for seventy jurors to appear at the fourth day of the term, June 14, 1923. The statute, sec. 7, ch. 116, Barnes' Code, 1923, directs the clerk, among other things, to issue a venire facias for thirty jurors, unless the court shall order a greater or less number, and "such writ shall require *Page 188
the attendance of the jurors on the first day of the court or on such other day thereof as the court or judge may order." The point of error, based thereon, is that in the absence of a court order, the clerk was without authority either to order a greater or less number than thirty jurors, or to summon them to appear at any other day than the first day of the term. Happily, this precise question has been decided. At the same term of the same court and by the same panel of jurors, Bertha Price was convicted of second degree murder, and her conviction was reviewed by this court. The identical objections were raised by some of the same counsel who represent defendant Sauls. For reasons which fully appear in our opinion in the Price case, State v. Price, 96 W. Va. 498, 123 S.E. 283, we held the objections raised insufficient.
As was also true in that case it is objected that the certificate of the jury commissioners shows that the panel of seventy was drawn from the petit jury box of the circuit court instead of the criminal court, but since in neither case was this objection assigned as a ground for quashing the panel before the trial judge, the point avails nothing now.
"The ground on which a challenge to the array of jurors is based must be specifically stated in order that the court and the prosecution may be advised, and the latter may have an opportunity to demur thereto or raise an issue of fact thereon; and the action of the court in disposing of the issue of law or fact made thereon must be made a part of the record before error will lie. State v. Price, supra, syl. pt. 4.
3. Defendant assails as objectionable the testimony of Dr. Robert Wriston in which he detailed a purported dying declaration of deceased. The doctor did not reduce the declarant's statements to writing, but testified to them from memory alone. The declaration as given in this record is in all substantial respects the same as testified to in the former trial, and an equally sufficient foundation therefor is laid. Joe Williams, who was present and heard deceased make his statement to the doctor, and who testified concerning the same in the prior trial, was not a witness in the present record, but as the doctor testified fully as to deceased's condition and *Page 189
anticipation of immediate death, the same reasoning which we employed before applies here. The objection that no sufficient foundation for a dying declaration was laid can not be sustained.
4. It is objected that the court erred in admitting the testimony of E. C. Hern. An issue of fact in the case is whether or not money was taken from deceased by defendant after the shooting. On this question several witnesses were called and there was testimony that money had been paid to deceased at his store prior to the homicide, and in defense it was sought to be shown that he made a bank deposit between six and seven P. M. Hern testified that about that time he paid deceased a grocery bill, and saw $40.00 and a roll of "green-backs" in deceased's possession. Testimony similar in character was introduced at the prior trial, but defendant then was not permitted to produce evidence relative to the bank deposit. That error was corrected in this record, and we see no merit in defendant's objection on this score. Defendant says the evidence was improperly offered as rebuttal testimony. This is not true. Counsel for the state, before resting their case, stated that Hern had not arrived, and Mr. Dunn, of defense counsel, expressly agreed that he could be heard later.
5. In the former trial Charley Sanders testified for the defense. He was not present to testify in this record, and counsel for defense offered as evidence the record of his former testimony. It was not offered on the ground that the witness was dead, insane, or out of the state, but that he could not be found. We confess a degree of surprise in finding that there has been some uncertainty about the competency of testimony of this character, especially in the Virginias. So far as deceased witnesses in civil cases are concerned, the law seems settled that their former testimony is proper.Patterson v. Coal Company, 87 W. Va. 177, 104 S.E. 491; Carrico
v. West Virginia Central Ry. Co., 39 W. Va. 86, 19 S.E. 571. The opinion in the latter case contains some expressions as to criminal cases also. The Supreme Court of Virginia distinctly holds that in criminal cases, where a witness who formerly testified for the prisoner is dead, the record of such evidence is admissible. *Page 190
"If a witness for the prisoner in a criminal prosecution has been examined and cross-examined at one trial and dies before a second trial of the case, his testimony given on the first trial may be proved by the prisoner on the second trial." Parks v. Commonwealth, 109 Va. 807, 63 S.E. 462.
Judge Phlegar of that court was apparently at one time disposed to hold oppositely, and so stated his views in the copy of his opinion in Montgomery v. Commonwealth, appearing in 37 S.E. page 841, and 6 Va. Law Reg. 762, but the portion of the opinion so holding was not included in the official report,99 Va. 833, and of course is not the rule in that jurisdiction. Consequently, the remarks of the commentator at page 765 of Vol. 6 of the Va. Law Register, disapproving the views expressed, have no present application.
However, it may be said that the rule as to deceased witnesses does not apply to witnesses merely absent, and in view of certain old cases decided in Virginia, the court in the Parks case was careful to mark that distinction. The cases referred to are Finn's Case, 5 Rand. 701 and Brogy's Case, 10 Gratt. 722.
Finn's case was decided in 1827. Defendant was charged with forgery, and during the course of the trial the attorney for the Commonwealth offered to prove by witnesses what one, Candler, had testified to before the Called Court, Candler having since removed from the jurisdiction. The prisoner objected, but the court overruled the objection and permitted the former testimony to be proved. On writ of error in the Court of Appeals, however, the trial court's ruling was reversed. Citing Peake 60, Phillips 199, and Fenwick's Case, 4 St. Trials, Judge Brockenbrough stated in substance that the rule allowing the introduction of former evidence of witnesses applied only to civil cases, and that so far as he could find, it applied in civil cases only where death of the witness had intervened.
Brogy v. Commonwealth was decided in 1853. There the question arose whether it was competent for the prisoner to prove what two persons had sworn to on a former trial *Page 191
of defendant at which the jury disagreed. As to this the court said:
"This question was presented and directly decided by the General Court as far back as 1827, in Finn's Case, 5 Rand. 701."
Citing no additional authority, the court held that the exclusion of the evidence by the trial court was proper. In this it is very apparent that the court in the Brogy case did not analyze closely the problem before them. In both Finn's case and Fenwick's case the former evidence sought to be admitted was offered by the prosecution; in Brogy's case it was offered by the prisoner, a difference in situation which raises distinctly different problems. Article III, Sec. 14, of the Constitution of this State provides, among other things, that the accused in a criminal prosecution shall "be confronted with the witnesses against him." Other state constitutions have similar provisions, and, construing them, some courts have held that the opportunity at a former trial to cross-examine the witness does not warrant the introduction of his testimony against the accused at a subsequent trial, though the witness be then unavailable. Where, as in the Brogy case and the case at bar, it is the defendant who offers the evidence, no such constitutional objection could possibly be maintained. In the one case, therefore, the problem of the admissibility of the evidence involves a constitutional question; in the other it is merely a matter of policy or practice as applied to the general rule of evidence excluding hearsay testimony. We have referred to our decisions sustaining the competency of such testimony in civil cases where the former witness is dead, also to the Virginia case applying the same rule in a criminal case,Parks v. Commonwealth, supra. The reasoning of the latter case seems particularly fit, as witness the following language of the court:
"It would indeed present an anomalous state of the law to admit such evidence in civil cases, involving property rights merely, and to apply the rule of exclusion to criminal cases, involving life and liberty, when the introduction of such evidence is not infrequently of controlling weight either in *Page 192
bringing the guilty to punishment on the one hand, or of shielding the innocent on the other."
Admitting, however, the propriety of such evidence where the witness is dead, a number of courts have refused to extend the privilege in criminal cases upon any other ground.Collins v. Commonwealth, 12 Bush. (Ky.) 271; State v. Oliver, 43 La. Ann. 1003. Others seem to limit such testimony, where the witness is living and mentally and physically competent, to cases where it is shown that he is beyond the court's jurisdiction. Lucas v. State, 96 Ala. 51. We find no sound reason, however, for such strictness. As stated by Greenleaf (Evidence, 16th ed. § 163-g) death, absence of the witness from the jurisdiction, and inability to find him are equally sufficient reasons for his non-production. And Prof. Wigmore (Evidence, 2d ed. Vol. III, § 1405) says:
"If the witness has disappeared from observation, he is in effect unavailable for the purpose of compelling his attendance."
The Court of Appeals of Texas expressed similar views inSullivan v. State, 6 Tex. App. 319[6 Tex. Crim. 319], 339:
"But the question here is, not as to the right to reproduce the testimony of a deceased witness taken at a former trial, but the right here claimed and exercised by the state is to prove the former testimony of a living witness; or, at least, one who is not shown or claimed to be dead, but who, it is claimed, is not within the jurisdiction of the court or its process. It is not perceived that the reason of the rule which admits proof of what a deceased witness had on some former occasion, between the same parties, on an examination into the same criminal charge, on a former trial, testified to, as admissible on a subsequent trial of the same case, does not apply with equal force to one who, though not dead, is beyond the reach of the process of the court. The testimony of a deceased witness is admitted on the idea that the deceased had been confronted with the witness on the former trial, — had met him face to face, — and that the witness had testified before a competent tribunal, under the sanction of an oath, and an opportunity afforded *Page 193
for cross-examination. The inaccessible witness has been subjected to the same ordeal, the only difference being that the one is dead and the other out of reach."
Of course, as Prof. Wigmore points out, the court must be satisfied that the absence is not the result of collusion, and that the search for the witness has been in good faith, but when it is so satisfied, we do not see why the testimony is not as proper as if death had intervened.
If it be true that we thus share a liberal view as to the competency of such testimony, we are by no means inclined to admit it unless the proper foundation therefor be laid. We have noted the possibility of collusion. The safeguard against such possibility is indicated by a further expression of Wigmore (§ 1405):
"Such a disappearance is shown by the party's inability to find him after diligent search."
Here there was no showing that the witness Sanders was out of the state. Mr. Dunn, of defendant's counsel, stated he had not known of Sanders being in Raleigh County since April, about two months before; that he had heard that the witness and his wife had separated at Sylvit; and that he had information that he had gone to Charleston in Kanawha County. Subpoenas were issued to the sheriffs of Raleigh and Kanawha Counties. The first was not returned, the second was returned by the sheriff of Kanawha County unserved, accompanied by a letter dated June 6th, to the effect that while Sanders had been in Charleston, his present whereabouts were unknown. The clerk of the Criminal Court testified that the Sheriff of Raleigh County rarely made returns of such subpoenas.
Did the defendant show that he was unable to find the witness? Did he make the diligent search upon which to predicate his offer to prove the former testimony? No one testifies that any search was made, or in fact that defendant or his counsel so much as inquired as to Sanders' whereabouts, except through the two sheriffs. No attempt was made to secure information from his wife at Sylvit or from any of his associates *Page 194
or friends, so far as the record shows. There was merely a formal summoning through the officers of the two counties, and the statement of counsel that he was ignorant of the witness' whereabouts. Many cases are cited on this question in a note appended to the case of Smith v. State of Georgia, 15 A.L.R. 490, at pp. 529-538; and from them as well as our own view of the matter, we have little hesitancy in holding that where the efforts to discover the former witness show no more diligence than is evidenced by this record, the defendant can not be said to have established his right to introduce such evidence. The court did not err, therefore, on the showing made in this record, in rejecting the evidence offered.
6. Defendant assigns as error the admission of the testimony of Harvey Templeton, introduced by the state as a rebuttal witness. His statement was that on the day of the shooting, defendant had asked him to go with defendant to Sand Lick for the purpose of bringing back some liquor. The purpose of the state was to contradict the testimony of defendant, on cross-examination, that he had made no such proposal to Templeton. As defendant's direct examination contained nothing concerning the transaction, and as the matter is one wholly irrelevant and collateral to the issues involved, we sustain defendant's argument that defendant's replies on cross-examination were not properly subject to impeachment or contradiction by the state. Hollen v. Crim Peck, 62 W. Va. 451,59 S.E. 172, and cases cited. Defendant's objection to Templeton's testimony should therefore have been sustained, and this point of error is well taken.
7. Defendant objects to state's instructions numbers 1, 2, 4 and 5. In his brief he attacks No. 1 only. That instruction reads:
"The court instructs the jury that where a homicide is proved the presumption is that it is murder in the second degree."
While possibly not reversible error on the facts presented, we think the above instruction should not have been given. The presumption to which the trial court refers is not a presumption of law, but one of fact, depending for its applicability upon the circumstances of the particular case. *Page 195
While it may be that where, as in the case at bar, the killing is admittedly intentional and committed with a deadly weapon, there is a proper presumption of fact that the killing is murder in the second degree, nevertheless, to lay down a rule that any homicide, however it may come about, whether by accident, negligence or intention, is presumably murder in the second degree, we regard as violative of ordinary reason. Wharton, Homicide (3d. ed.) § 147. In so saying we are not unmindful of the many expressions in our decisions, some of which are practically literal authority for the instruction given in this case. In most of them, however, the facts as here, were such as to give possible warrant for the principle; that is, the killing was admittedly intentional, and with a deadly weapon. But even in certain of those decisions the reasoning has not been free from fault. In State v. Dodds,54 W. Va. 289, 46 S.E. 228, it is stated that under our statute, every homicide is prima facie murder in the second degree. Sec. 1, ch. 144, Code, is the statute to which the court referred, and it is authority for no such assertion. After characterizing certain offenses as first degree murder, it says: "All other murder is murder of the second degree." Homicide is not necessarily murder, and the two should not be confused. The instruction as given is abstract and too comprehensive, and we do not approve it.
The objection to instruction No. 5 is formal and unsupported by argument. However, it was in giving this instruction that the court committed its most grievous error, as will be evident from its language:
"The court instructs the jury that if you believe from the evidence in this case beyond a reasonable doubt that John Sauls with a deadly weapon previously obtained by him unlawfully shot and killed E. F. Jones on the 12th day of Nov. 1921, the jury may infer malice, the intent to kill, and the wilfulness from such unlawful use of such deadly weapon."
The vice of this instruction was recently exposed in the case of State v. Whitt, 96 W. Va. 268, 122 S.E. 742, wherein we said: *Page 196
"Where the facts and circumstances of a homicide case are such that they may, in the minds of the jurors, rebut a mere inference of malice on the part of the accused, an abstract instruction to the effect that it is not necessary that malice should exist in the heart of the accused toward deceased, or any particular person, and that deliberation, willfulness, and malice may be inferred from the use of a deadly weapon, and which omits to mention any of the various circumstances, tending to rebut such inference is erroneous."
In that decision and others therein cited we held that it is improper for the court to charge the jury relative to the presumption of malice arising from the use of a deadly weapon, unless it at the same time brings to the jurors' attention the facts and circumstances which tend to rebut the intent and malice which may be implied from the act. Wholly ignoring such facts and circumstances, it is abstract and improper, and should not have been given.
8. Defendant's instruction lettered "H", refused, was covered, so far as it was proper, by instruction "J", given at his request. He can not complain on that score.
For the reasons set out in paragraphs numbered 6 and 7 in this opinion, we reverse the judgment, set aside the verdict, and award defendant a new trial.
Reversed and new trial awarded. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/8540845/ | La Jueza Asociada Señora Pabón Charneco
emitió la opinión del Tribunal.
Ante nos comparece la Sra. Antonia Rivera García (en adelante, la peticionaria) y nos solicita que revoquemos una recalificación realizada por la Registradora de la Pro-piedad de la Sección III de Bayamón, Hon. Namyr Hernán-dez Sánchez. En esta, la Registradora denegó la anotación del derecho a hogar seguro que solicitó la peticionaria al amparo de la Ley Núm. 195-2011 (31 LPRA sees. 1858-1858k).
Este caso nos provee la oportunidad de expresarnos por primera vez en cuanto a la naturaleza y alcance del dere-*632cho a hogar seguro que se reconoció en la Ley Núm. 195-2011. En específico, debemos determinar si para inscribir el derecho que reconoce ese estatuto en una propiedad que es parte de una comunidad hereditaria es necesario que comparezcan a la autorización del Acta Notarial todos los cotitulares de esta.
Previo a resolver esta controversia, pasemos a exponer los hechos que le dieron génesis.
I
Los hechos de este caso son sencillos. La peticionaria es una residente del municipio de Bayamón y en el presente vive en lo que fue su hogar conyugal. Al fallecer su esposo Alberto Rodríguez Salas, la peticionaria pasó a ser dueña en común proindiviso de la mencionada propiedad junto a sus hijos, por ser estos los herederos de su fenecido esposo.
Así las cosas, el 2 de octubre de 2012 la peticionaria le requirió al notario público Luis J. Marín Rodríguez que au-torizara un Acta Notarial para que se anotara en el Registro de la Propiedad su derecho a hogar seguro de acuerdo con la Ley Núm. 195-2011. El Acta Notarial procedió a autorizarse ese mismo día mediante la Escritura Número Dieciséis (16), titulada “Acta de edificación y acta para anotar derecho a hogar seguro”. Surge de los autos que el notario público re-quirió a la peticionaria que compareciera a la autorización del Acta, lo cual hizo en carácter de requirente.
Autorizada el Acta, el 3 de octubre de 2012 se presentó la misma en la Sección III del Registro de la Propiedad de Bayamón. Posteriormente, el 9 de noviembre de 2012 la Registradora de la Propiedad denegó la inscripción y noti-ficó vía fax la falta siguiente:
LA PROPIEDAD PERTENECE A UNA COMUNIDAD HERE-DITARIA, POR LO QUE LOS CO-HEREDEROS [sic] CO-TITULARES [sic] DEBEN CONSENTIR A ESTA TRANS-ACCIÓN.
*633Insatisfecha, el 29 de noviembre de 2012 la peticionaria presentó a través de su representación legal un Escrito de Recalificación en el que argumentó que exigir la compare-cencia de todos los cotitulares iría contra el texto de la Ley Núm. 195, supra, y que sería muy oneroso anotar su dere-cho a hogar seguro para los titulares de propiedades bajo un régimen de comunidad de bienes. Además, adujo que por tratarse de un derecho sui géneris, no había objeción alguna que pudieran anteponer los cotitulares.
Posteriormente, el 17 de enero de 2013 la Registradora de la Propiedad denegó el Escrito de Recalificación presen-tado por la peticionaria. La Registradora sostuvo que como la propiedad en cuestión era parte de una comunidad he-reditaria, un cotitular no podía actuar sin el consenti-miento expreso de los demás cotitulares. Además, la Regis-tradora razonó que para anotar el derecho a hogar seguro al amparo de la Ley Núm. 195, supra, debe existir
[...] el consentimiento expreso de los co-titulares [sic] a que éste [sic] derecho se anote a su favor y NO a favor de los [sic] todos los co-titulares [sic], puesto que éstos perderían el dere-cho de solicitarlo en sus propiedades a tenor con el Art. 10 de la Ley.(1)
Aún inconforme, el 6 de febrero de 2013 la peticionaria presentó el Recurso Gubernativo de autos y alegó que la Registradora de la Propiedad cometió el error siguiente:
Erró la Registradora al negarse a inscribir el derecho a hogar seguro de la recurrente, so pretexto de no haber comparecido al acta los coherederos, cotitulares de la propiedad, en contra-vención a lo dispuesto en la Ley de Hogar Seguro, y la Ley Notarial y su reglamento. Recurso Gubernativo, pág. 4.
Contando con la comparecencia de ambas partes, esta-mos en posición de resolver sin ulterior trámite.
*634II
A. Es indudable que el derecho a la propiedad es de alto interés público en nuestro ordenamiento. De hecho, podría decirse que la génesis del concepto del Estado como el ente jurídico que conocemos hoy surge de teorías políticas que aspiraban a dar una máxima protección al derecho de los individuos a defender y disfrutar su propiedad. Véase R.A. Goldwin, John Locke, en: L. Strauss y J. Cropsey, History of Political Philosophy, 3ra ed., Chicago/Londres, The University of Chicago Press, 1987, págs. 486-488. Sin embargo, el concepto en sí mismo de lo que comprende el derecho a la propiedad ha variado con el paso del tiempo. Véase J.R. Vélez Torres, Curso de derecho civil: los bienes, los derechos reales, San Juan, [s. Ed.], 1983, T. II, págs. 67-74.
La importancia del derecho a la propiedad en nuestro ordenamiento es de tal magnitud que una sección específica de nuestra Constitución establece varias protecciones de este. Primero, el disfrute de la propiedad es uno de los pocos que nuestra Constitución explícitamente dis-pone como de carácter fundamental. Véase Art. II, Sec. 7, Const. PR, LPRA, Tomo 1, ed. 2008, pág. 296. Además, “[n]inguna persona será privada de su [...] propiedad sin debido proceso de ley [...]”. Id. Por último, se establece constitucionalmente que “[1] as leyes determinarán un mínimo de propiedad y pertenencias no sujetas a embargo”. íd.
Este Tribunal también ha sido enfático en reconocer la primacía del derecho a la propiedad en Puerto Rico. Véase Soc. Gananciales v. G. Padín Co., Inc., 117 DPR 94 (1986). Sin embargo, también hemos determinado que el disfrute de la propiedad no representa un derecho absoluto, por lo que este está limitado por intereses sociales apremiantes y normas de convivencia social. Véase López y otros v. A.E.E., 151 DPR 701 (2000).
*635Amparados en estas disposiciones constitucionales, y ante la innegable primacía del derecho a la propiedad en nuestro ordenamiento jurídico, la Asamblea Legislativa ha actuado afirmativamente en varias ocasiones para proteger el llamado derecho a hogar seguro. La primera legislación que reconoció este derecho se tituló “Ley para Definir el Hogar Seguro y para Extentarlo [sic] de una Venta Forzosa” y fue aprobada en 1903. Este estatuto protegía la cantidad de quinientos ($500) dólares que estarían exentos de embargo una vez se ejecutara una sentencia contra la propiedad de un demandado. Véase González v. Corte Municipal, 54 DPR 18 (1938). El estatuto fue derogado por la Ley Núm. 87 de 3 de mayo de 1936, estableciéndose que el derecho a hogar seguro de los ciudadanos se limitaba a la cantidad de mil quinientos dólares ($1,500). 31 LPRA sec. 1851. En el 2003, la Asamblea Legislativa enmendó ese estatuto para aumentar la protección de hogar seguro a quince mil dólares ($15,000).
Luego de la crisis económica que han experimentado gran parte de los países del mundo desde finales de la pa-sada década, la Asamblea Legislativa entendió necesario proveer una protección mayor a los propietarios que la can-tidad provista por las últimas enmiendas a los estatutos que establecían el derecho a hogar seguro. Por esa razón, en el 2011 la Asamblea Legislativa aprobó la Ley Núm. 195, supra.
A diferencia de otras jurisdicciones en Estados Unidos, hay una marcada tendencia de los puertorriqueños a ser propietarios de sus viviendas. De hecho, según la Exposi-ción de Motivos de la Ley Núm. 195, supra, en Puerto Rico la tasa de adquisición de viviendas sobrepasa el setenta por ciento (70%). Ello a diferencia de otros estados, en donde el porcentaje de adquisición no alcanza el cuarenta por ciento (40%).
Por ello, la Asamblea Legislativa entendió necesario extender una protección mayor al derecho a la propiedad en *636casos de cobro de deudas. Según la Exposición de Motivos de la Ley Núm. 195, supra, la Legislatura estimó que “para muchos puertorriqueños su hogar representa casi la tota-lidad de su patrimonio y lo único que pueden ofrecer a sus herederos”. Así, la Rama Legislativa manifestó que enten-día “conveniente aprobar una nueva legislación de van-guardia sobre hogar seguro que brinde una mayor protec-ción al hogar o residencia principal de todos los domiciliados en Puerto Rico y sus respectivas familias”.
Mediante la Ley Núm. 195, supra, la Asamblea Legislativa cambió marcadamente el enfoque del derecho a hogar seguro en nuestro ordenamiento. Como vimos, los estatutos anteriores que reconocieron la existencia de este derecho se enfocaban en darle un valor estrictamente monetario a la propiedad. Es por eso que por más de un siglo el derecho a hogar seguro en Puerto Rico se limitaba a establecer una cuantía de dinero que estaría exenta de ser embargada por los acreedores.
A contrario sensu, la Ley Núm. 195, supra, no se enfoca necesariamente en proteger una cantidad de dinero de embargo, sino que se diseñó con la intención de proteger la propiedad física de los titulares. Es decir, al ser conscientes del valor patrimonial y sentimental que tiene el techo y el hogar para los propietarios en Puerto Rico, la Asamblea Legislativa decidió convertir el derecho a hogar seguro en un vehículo de protección específica en cuanto al disfrute físico del hogar.
Podemos comprobar este interés legislativo al dar una lectura a los Arts. 3 y 5 de la Ley Núm. 195, supra, 31 LPRA sees. 1858 y 1858b. El primero de estos establece que
[t]odo individuo o jefe de familia, domiciliado en Puerto Rico, tendrá derecho a poseer y disfrutar, en concepto de hogar seguro, una finca consistente en un predio de terreno y la es-tructura enclavada en el mismo, o una residencia bajo el régi-men de la Ley de Condominios que le pertenezca o posea le-*637galmente, y estuviere ocupado por éste o por su familia exclusivamente como residencia principal. 31 LPRAsec. 1858.
Vemos entonces claramente la intención legislativa de crear un derecho individual en cuanto al hogar seguro, pero limitándolo solamente a aquella propiedad que sea utilizada por el titular como su residencia principal.
Por otro lado, el Art. 5 del estatuto delimita la extensión de la protección que establece el derecho a hogar seguro. Específicamente provee ese artículo lo siguiente:
Protección contra embargo, sentencia o ejecución
Este derecho protege a la propiedad de embargo, sentencia o ejecución ejercitada para el pago de todas las deudas, excepto las deudas reconocidas como excepciones en la sec. 1858a de este título. 31 LPRA sec. 1858b.
Como se puede apreciar, el derecho protege a la propie-dad física de ser embargada o ejecutada como pago de toda deuda. Al enfocarse en el concepto de deuda, la Asamblea Legislativa enmarcó el derecho en el escenario de los acto-res principales de nuestro Código Civil en los capítulos de contratos y obligaciones: el acreedor y el deudor.
Cabe mencionar también que, como se intima en el Art. 5 de la Ley Núm. 195, supra, el derecho a hogar seguro no es absoluto y está sujeto a una serie de excepciones enumeradas en su Art. 4. Estas son:
(a) En todos los casos donde se obtenga una hipoteca, que grave la propiedad protegida.
(b) En los casos de cobro de contribuciones estatales y federales.
(c) En los casos donde se le deban pagos a contratistas para reparaciones de la propiedad protegida.
(d) En los casos donde aplique el Código de Quiebras Federal, en cuyo caso aplicarán las disposiciones de dicho Código.
(e) En todos los casos de préstamos, hipotecas, contratos re-faccionarios y pagarés constituidos a favor de o asegurados u otorgados por la Puerto Rico Production Credit Association, Small Business Administration, la Autoridad para el Finan-ciamiento de la Vivienda de Puerto Rico, la Administración *638Federal de Hogares de Agricultores, la Federal Home Administration (FHA), la Administración de Veteranos de Estados Unidos y el Departamento de Desarrollo Económico y Comer-cio de Puerto Rico; y las entidades sucesoras de los antes men-cionados, así como a favor de cualquier otra agencia o entidad estatal o federal que garantice préstamos hipotecarios que se aseguran y se venden en el mercado secundario. Art. 4 de la Ley Núm. 195, supra, 31 LPRA sec. 1858a.
Finalmente, la importancia y fortaleza que la Asamblea Legislativa quiso proveer al derecho a hogar seguro queda consagrada al establecerse que este es un derecho irrenunciable y que cualquier pacto en contrario se declarará nulo. Art. 4 de la Ley Núm. 195, supra.(2)
B. Visto el tipo de derecho que quiso consagrar la Asamblea Legislativa mediante la Ley Núm. 195, supra, pasemos a examinar la extensión y naturaleza del mismo.
Como veremos más adelante, existen dos (2) métodos principales mediante los cuales se puede reclamar el derecho a hogar seguro. Pero una vez un individuo designa una propiedad como su hogar seguro, el Art. 9 de la Ley Núm. 195, supra, 31 LPRA sec. 1858f, establece que “el Registrador de la Propiedad tendrá la obligación de anotar que tal propiedad fue así designada por su propietario”.
Mediante esta disposición estatutaria, unido a las disposiciones que proveen para la protección del hogar de los individuos, podemos apreciar claramente la intención *639legislativa de crear un derecho individual que tiene acceso al Registro de la Propiedad en Puerto Rico. Es un principio conocido en nuestro ordenamiento que el “elemento sustancial que abre la puerta de la inscripción es que el derecho produzca el efecto jurídico real”. L.R. Rivera Rivera, Derecho registral inmobiliario puertorriqueño, 2da ed., San Juan, Jurídica Editores, 2002, pág. 398. Es decir, tienen acceso al Registro aquellos derechos personales que trascienden al individuo e incidan en bienes reales. Véase First Federal Savs. v. Registrador, 113 DPR 857, 861 (1983). Comúnmente se denomina este tipo de derechos como aquellos derechos personales con trascendencia real. Rivera Rivera, op. cit, pág. 399. Por ello, una vez se denomina que un derecho personal tiene efecto erga omnes, este tendrá acceso válido al Registro de la Propiedad. íd.
Precisamente el derecho a hogar seguro reconocido en la Ley Núm. 195, supra, es personal con trascendencia real. Ciertamente, es el individuo titular de una propiedad el que puede reclamarlo. Una vez decida hacerlo y este tiene acceso al Registro de la Propiedad, el derecho a hogar seguro adquiere una dimensión real y otra erga omnes.
Por un lado, el derecho surte un efecto real ya que va a la finca misma, la cual recibe una anotación marginal en el Registro de la Propiedad. Por el otro, crea un efecto erga omnes ya que el derecho a hogar seguro remueve del trá-fico comercial la propiedad protegida, quedando así fuera del alcance de los acreedores, con excepción de aquellos dispuestos en el Art. 4 de la Ley Núm. 195, supra. En cierto sentido, este derecho tiene el efecto de insular un bien específico del patrimonio de un deudor y removerlo del tráfico comercial en cuanto al cobro de ciertas deudas. A su vez, representa una limitación a lo dispuesto en el Art. 1811 del Código Civil en cuanto a que “[d]el cumpli-miento de las obligaciones responde el deudor, con todos sus bienes presentes y futuros”. 31 LPRA see. 5171.
*640III
Examinado el ámbito de extensión y la importancia del derecho a hogar seguro establecido en la Ley Núm. 195, supra, pasemos a analizar el proceso mediante el cual la protección contenida en el derecho a hogar seguro se cons-tituye y cuáles son sus efectos regístrales. Ello en aras de resolver la controversia específica que presenta el caso de autos.
El Art. 9 de la Ley Núm. 195, supra, establece dos (2) formas en que los propietarios pueden reclamar su derecho a hogar seguro para con una de sus propiedades. Mediante la primera opción, los individuos pueden reclamar su derecho a hogar seguro en el mismo momento en que adquieran una propiedad. Para así hacerlo, basta con que el individuo lo haga constar en el título de adquisición.
La segunda manera de reclamar el derecho a hogar se-guro se refiere a aquellas instancias en que la finca ya esté inscrita a nombre del titular en el Registro de la Propiedad. Específicamente, el estatuto dispone, en lo per-tinente, lo siguiente:
En los casos donde la finca estuviere ya inscrita a nombre de dicho individuo o jefe de familia, bastará que el propietario o propietarios de la finca otorgue(n) un acta ante notario pú-blico, donde se haga constar que la finca tiene carácter de hogar seguro, para que el Registrador de la Propiedad con-signe tal carácter en nota marginal de la inscripción correspondiente. (Énfasis suplido). Art. 9 de la Ley Núm. 195, supra.
Precisamente es esta disposición la que debemos interpretar en el caso de autos. Ello debido a que una vez un Acta Notarial en la que se reclama el derecho a hogar seguro es presentada en el Registro de la Propiedad, todos los principios regístrales de nuestro ordenamiento se activan. Por ende, como todo negocio jurídico inscribible, *641en el procedimiento de calificación el Registrador “[a]demás de cerciorarse de que el documento cumple con los requisitos formales, deberá determinar si los derechos son inscribibles”. Rivera Rivera, op. cit., pág. 284.
IV
En el caso de autos, no está en controversia que la pro-piedad que la peticionaria quiso proteger con su derecho a hogar seguro no es de su total dominio. La propiedad en la que ella reside consta inscrita en el Registro de la Propie-dad a nombre de ella y sus tres (3) hijos, toda vez que la misma forma parte de una comunidad hereditaria. Como vimos, la peticionaria compareció individualmente a la au-torización del Acta Notarial en la que requirió que se ano-tara su derecho a hogar seguro. La Registradora de la Pro-piedad entendió que esa Acta Notarial no cumplió con los requisitos formales que establece la Ley Núm. 195, supra, ni con el derecho aplicable a la comunidad hereditaria.
Según discutido, el texto del Art. 9 de la Ley Núm. 195, supra, establece que en casos como el de autos en que ya “la finca estuviere ya inscrita a nombre de dicho individuo o jefe de familia, bastará que el propietario o propietarios de la finca otorgue(n) un acta ante notario público [...]”. (Enfasis suplido). Vemos entonces que el propio texto de la Ley Núm. 195, supra, exige que cuando una propiedad tiene más de un titular registral, todos tienen que comparecer a la autoriza-ción del Acta Notarial en la que se reclama el derecho a hogar seguro.
No es para menos. Como hemos visto, el derecho que reconoció la Asamblea Legislativa en la Ley Núm. 195, supra es amplio y abarcador y tiene efectos de carácter real en cuanto a la propiedad. Se trata de un derecho que en cierto sentido remueve a la propiedad del tráfico jurídico cuando se trate del cobro exclusivamente de deudas. Un acto de esa naturaleza, que no es meramente un acto de *642administración, requiere la comparecencia de todos los ti-tulares de la propiedad.
Además del texto de la Ley Núm. 195-2011, debemos recordar que aunque la comunidad hereditaria no está regulada específicamente en el Código Civil, hemos resuelto que a esta le aplican “las disposiciones generales sobre co-munidad de bienes que sean compatibles con el carácter universal de este tipo de comunidad”. Vega Montoya v. Registrador, 179 DPR 80, 88 (2010). Por eso el derecho de los titulares que están sujetos a una comunidad de bienes no es de tal extensión como el de un titular individual. A esos efectos, comenta el profesor Vélez Torres que
[e]n lo relativo a los derechos de los condómines sobre la cosa común, está presente la limitación que implica la presencia del derecho de cada comunero coexistiendo con el de los demás. De ahí que la extensión y efectividad del derecho de cada cual de-penda, necesariamente, de la extensión y efectividad de los de-rechos de los demás. Hay una situación de dependencia y sub-ordinación, pues allí donde empieza el derecho de un comunero termina el del otro. Vélez Torres, op. cit., pág. 150.
La representación legal de la peticionaria nos argumenta que si interpretamos que la Ley Núm. 195, supra, requiere que comparezcan todos los titulares al Acta Notarial que reclama el derecho a hogar seguro en una propiedad sujeta al régimen de comunidad de bienes, ello haría más difícil lograr anotar ese derecho a favor de un titular individualmente. Aunque es más difícil no es imposible. En casos como este, en que no hay evidencia del consenso entre los comuneros para reconocer el derecho a hogar seguro de uno de ellos, siempre se puede acudir al tribunal con el propósito de que se reconozca el derecho a hogar seguro al amparo del Art. 3 de la Ley Núm. 195-2011, supra, y se ordene su anotación en el Registro de la Propiedad. Después de todo, somos un tribunal de jurisdicción general y podemos entender en cualquier acción que presente una controversia legítima. Clases A, B y C v. PRTC, 183 DPR 666, 686 (2011); Mun. Arecibo v. Mun. Quebradillas, 161 *643DPR 109, 114 (2004); Junta Dir. Cond. Montebello v. Fernández, 136 DPR 223, 230 (1994).
Por todo lo anterior, nos parece que el texto de la Ley Núm. 195, supra, y el derecho de comunidad de bienes exigen que en casos de propiedades con más de un dueño, todos los propietarios comparezcan a la autorización del Acta Notarial que reclama la anotación del derecho a ho-gar seguro.
V
De acuerdo con los fundamentos expuestos anterior-mente, procedemos a confirmar la determinación de la Re-gistradora de la Propiedad de la Sección III de Bayamón, la cual denegó la inscripción del derecho a hogar seguro de la peticionara reclamada en la Escritura Núm. 16 intitu-lada Acta de Edificación y Acta para Anotar Derecho a Ho-gar Seguro, la cual fue autorizada el 2 de octubre de 2012 en Bayamón ante el notario Luis J. Marín Rodríguez.
Se dictará sentencia de conformidad.
La Juez Asociada Señora Rodríguez Rodríguez concu-rrió con la expresión siguiente:
Concurro con el resultado por entender que tanto la Ley Núm. 195 de 13 de septiembre de 2013, conocida como la Ley del Derecho a la Protección del Hogar Principal y el Hogar Familiar, como el derecho de comunidad de bienes exigen que para que se inscriba la anotación en el Registro de la Propiedad del derecho de hogar seguro en casos de propiedades con más de un dueño, se requiere que todos los propietarios comparezcan a la autorización del Acta Notarial. Ahora bien, existen unas lagunas en la ley que requieren que la Asamblea Legislativa atienda. Con el requisito que hoy adopta el Tribunal, traslucen una serie de interrogantes. Por ejemplo: En el caso de una propiedad que le pertenece a una comunidad hereditaria y que no tiene anotada la protección de hogar seguro, ¿a quién pro-tegería la anotación de la protección de hogar seguro? ¿Solo a la copropietaria con respecto a su participación independiente a la de la comunidad hereditaria, o a cada uno de los miembro *644de la comunidad hereditaria? De anotarse la protección de ho-gar seguro solo a la copropietaria independiente de la comuni-dad hereditaria, ¿se podría embargar la participación de un coheredero? De permitirse este embargo, ¿no se estaría incum-pliendo con el propósito de la ley? Éstas son sólo algunas de las interrogantes que han quedado en el aire con la Opinión que emite el Tribunal. Exhorto a la Asamblea Legislativa a actuar prontamente para minimizar cualquier impacto nega-tivo en la protección de hogar seguro.
El Juez Presidente Señor Hernández Denton disintió con una opinión escrita, a la que se unió la Jueza Asociada Señora Fiol Matta.
Apéndice del Alegato de la parte recurrida, pág. 14.
Es importante mencionar que la Asamblea Legislativa decidió limitar el de-recho a hogar seguro a solo una propiedad por individuo. La razón para ello es evidente, ya que el derecho a hogar seguro existe para proteger aquella propiedad que sea utilizada como residencia principal por los propietarios. Además, la Ley Núm. 195-2011 (31 LPRA sec. 1858-1858k), estableció en su Art. 10 una penalidad criminal para evitar que los propietarios inscriban el derecho a hogar seguro en más de una de sus propiedades. Esa disposición lee:
“Penalidad por inscripción ilegal
“Incurrirá en delito grave de cuarto grado, toda persona que intente o logre inscribir en el Registro de la Propiedad la protección de hogar seguro en más de una finca de su propiedad o intente o logre inscribir a favor de otra persona la protección de hogar seguro, a la que ésta no tuviere derecho. Además, en los casos donde la persona se encuentre culpable de tal delito, ésta no tendrá derecho a hogar seguro sobre ninguna de las propiedades objeto de su actuación ilegal”. 31 LPRA sec. 1858g. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/130452/ | 539 U.S. 924
Texasv.New Mexico.
No. 65, Orig.
Supreme Court of United States.
June 16, 2003.
1
Motion of the River Master for fees and reimbursement of expenses granted, and the River Master is awarded a total of $7,172.37 for the period January 1 through March 31, 2003. [For earlier order herein, see, e. g., 537 U. S. 806.] | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3445462/ | Reversing. *Page 260
The Felsway Shoe Corporation instituted this action to recover damages to merchandise in the basement of its store in the 400 block on Fourth Street caused by water which escaped from one of the Water Company's mains. The appeal is from a judgment on a directed verdict given in favor of the Water Company at the conclusion of the evidence offered for Felsway. We are asked to reverse the judgment on the grounds that: (1) the circumstances of the case were such that the mere break in the main was evidence of negligence which made a prima facie case in favor of Felsway under the res ipsa loquitur doctrine; (2) Felsway actually proved that the break in the main was due to the Water Company's negligence; and (3) the trial court erred in refusing to permit the introduction of evidence of prior breaks and leaks in the same main in the same locality and under the same conditions. Since we have reached the conclusion that grounds (2) and (3) are well founded, we shall confine our consideration of the case to them.
In 1934 the Water Company laid a new 12 inch water main in the 400 block on South Fourth Street. Mr. John T. Schuler, who since prior to 1934 has been Superintendent of Distribution for the Water Company, testified that in the ordinary course of events a main such as the one in question should last more than 100 years without breaks or leaks. The main was at all times under the exclusive control of the Water Company. The break which caused the damage in question occurred around 2:20 a. m. on the morning of May 13, 1946. There was a lengthwise splitting of one of the 18 foot sections of the main. Mr. Schuler said that from his examination of the damaged main there was no indication of an outside force which caused the damage. He said also that a break in a sewer under Fourth Street near the 400 block during the 1937 flood caused the earth to go down under the water main, thereby causing a strain on the main, including the section which split in 1946. It was shown also that a strain could cause a water main to break.
Unquestionably the Water Company knew that as a result of the 1937 flood the water main in question was in such a condition that a break might be expected. No steps were taken to jack up the main, or to relieve it from strain. As a matter of fact, Felsway sought to *Page 261
show that at least eight other breaks and leaks had occurred in the water main within the 400 block following the 1937 flood and prior to the time of the break in question.
It might be well before discussing the contentions made by Felsway to dispose of the Water Company's contention that negligence was not properly pleaded. The charge of negligence was: "On or about May 13, 1946, at or about 2:30 A. M., because of and as a direct and proximate result of negligence and carelessness of defendant, water escaped from an underground water conduit pipe of defendant located near plaintiff's shoe store, ran into the basement of the shoe store and damaged various articles of personal property of plaintiff to the extent that the difference between the reasonable market values of such property immediately before and immediately after such damage, then and there, was $2796.41, to plaintiff's damage in such amount."
The argument is made that under this plea Felsway was limited to proof of positive acts of negligence on the date specified in the petition. We think otherwise. The charge was that Felsway's damage resulted as a direct and proximate result of negligence on the part of the Water Company.
Felsway showed through Mr. Schuler that the Water Company knew its water main in the 400 block on Fourth Street had sagged as a result of the flood in 1937, and that such sagging would cause a strain on the main which might reasonably be expected to cause a break. We have noted also that a main such as the one in question could be expected to last 100 years or more. Under the circumstances, Felsway had a right to show that at least eight other breaks and leaks had occurred in the water main in the 400 block on Fourth Street after the 1937 flood. Naturally Felsway was relegated to circumstantial evidence and the opinion of experts. As pointed out in Kentucky Central Railroad Co. v. Barrow, 89 Ky. 638, 20 S.W. 165, it had a right to introduce any evidence having a direct bearing upon the question of the Water Company's negligence. See also Illinois Central Ry. Co. v. Hicklin, 131 Ky. 624,115 S.W. 752, 23 L.R.A., N.S., 870; and Coca-Cola Bottling Works v. Shelton, 214 Ky. 118, 282 S.W. 778. Such evidence was held admissible in the case of Haas v. City of New *Page 262
York, 107 Misc. 427, 176 N.Y. S. 433; Silverberg v. City of New York, 59 Misc. 492, 110 N.Y. S. 992; Esberg-Gunst Cigar Co. v. Portland, 34 Or. 282, 55 P. 961, 43 L.R.A. 435, 75 Am. St. Rep. 651; and A. J. Brown Son v. City of Grand Rapids,265 Mich. 465, 251 N.W. 561.
As indicated at the outset, we do not think this case requires a consideration of the applicability of the res ipsa loquitur doctrine. That doctrine was applied in the case of Seale v. Coca-Cola Bottling Works of Lexington, Ky., 297 Ky. 450, 179 S.W.2d 598. However, we think the reasoning in that opinion is applicable to the case at bar. We point out therein that there are times when the law must be content with the proof of reasonable probabilities, and, therefore, must not exact the requirement that evidence in support of a cause of action be of such character as to preclude the possibility of a finding to the contrary. We think Felsway met the burden placed upon it and introduced evidence sufficient to warrant the necessity of the Water Company going forward with its proof.
The judgment is reversed with directions to set it aside and for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445464/ | Affirming.
It is alleged in the petition of the appellee, Mattie O. Strauss, that on January 20, 1928, upon application of Eloise Browne, deceased, and for certain considerations, the appellant, Liberty Life Insurance Company, issued its policy of insurance in the sum of $500 on the life of Eloise Browne, with the plaintiff as beneficiary. The death of the insured is stated to have occurred on November 6, 1928, and it is averred that the company had refused payment under the policy, and a judgment against it was accordingly asked. The petition stated that the policy was filed with it as an exhibit and part thereof, but neither the policy nor a copy is in the record before us. *Page 609
The answer, as amended, also stated that the application for the insurance was made by the deceased; and, further, that the plaintiff had paid or there was paid for her the balance of the first semiannual premium upon delivery of the policy, and the deceased had paid, or there was paid for her, the next semiannual premium on September 22, 1928. It was alleged that the beneficiary had no insurable interest in the life of Eloise Browne, and further pleaded that the deceased in her application in several specific instances had fraudulently and falsely answered material questions, upon the truth of which answers and representations the company had relied in issuing the policy.
Demurrer was sustained to the answer as amended, and, no further pleading being filed by the defendant, the prayer of the petition was sustained, and from the judgment the appeal is prosecuted.
1. The argument that no recovery should have been allowed under the policy because of lack of insurable interest on the part of the beneficiary cannot be sustained, for the defendant's pleading manifests the fact that the insured secured the policy on her own life for the benefit of plaintiff. We have had occasion to treat this subject in the recent case of Harrel's Adm'r v. Harrel, 232 Ky. 469,23 S.W.2d 922, and, upon the authority of several domestic cases, showed that in such a state of case the beneficiary need not have an insurable interest.
2. It is stated in the amended answer that the application containing the false representations was filed as an exhibit, but neither the original nor a copy has been included in the record brought to this court. It is provided by sections 656 and 679 of the Statutes that, if the application be referred to in the policy, it shall not be considered as a part of the contract between the parties nor be relied on, unless it or a copy of a specified kind be attached to the policy. It is nowhere alleged that it was attached in this instance, nor do the averments of the pleading bring it within the class of policies where it is not required to be attached as described in Western Southern Life Insurance Co. v. Weber, 183 Ky. 32,209 S.W. 716. We have neither exhibit before us, and it is an elementary rule that an exhibit tests the sufficiency of a pleading, and, where there is a contradiction, the terms of the exhibit prevail. According to the record the trial court had this exhibit before him, and it may be that its *Page 610
contents were such as to subtract from or entirely overcome the averment. It is a positive and necessary rule that this court will presume the judgment appealed from to be proper, unless there is something in the record brought here showing the contrary. We must assume the omitted portions of the record support the judgment. Cline v. Williams, 196 Ky. 397,244 S.W. 756. First State Bank v. Richardson, 167 Ky. 771,181 S.W. 611.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445465/ | Affirming.
Appellant, Nathan Pollack, instituted this action in the Jefferson circuit court against appellee, Southern Railway Company in Kentucky, to recover damages to a shipment of second-hand machinery handled by it. *Page 303
Appellee's defense was that the machinery, a car lot shipment, was loaded by appellant, and that the damage, if any, was occasioned by the negligent manner in which it was loaded. Upon the trial below, the jury returned a verdict in favor of appellee, and appellant has appealed.
It is urged for appellant, first, that the verdict of the jury is flagrantly against the evidence, and that the judgment should he reversed for that reason. The court finds itself unable to sustain this contention. The issue as to whether the damage to the shipment of machinery was the result of appellee's handling of the shipment or appellant's negligent manner of loading it was submitted to the jury by instructions not complained of. The principles of law governing this question were fully written in I. C. R. R. Co. v. Rogers
Thomas, 162 Ky. 535, 172 S.W. 948, L.R.A. 1915C, 1220, Ann. Cas. 1916E, 1201.
The evidence for appellant tended to establish that this car of machinery loaded at Midway, Ky., and transported by appellee to Louisville, Ky., though it consisted of used machinery was in good condition and properly loaded. Several witnesses for appellant testified that when the car was entered and examined after reaching its destination the braces placed to hold the machinery in place in transit had been torn loose, and that there were enough timbers in the car to indicate that it had been properly braced. A son of appellant, who superintended loading the car, testified fully as to the way in which it was loaded and braced. His testimony was full and explicit, and to the effect that the car had been properly loaded and that the damage to the machinery could not have resulted from improper loading.
The shipment in part consisted of a number of manifold steam radiators, which, from their description found in evidence, as near as can be understood, were approximately 8 feet wide and 8 feet high, and weighed approximately 1,200 pounds each. These were loaded in one end of the car. Their build and weight made them top-heavy, and while in transit they all appear to have toppled over. The damage to them complained of appears to have resulted from so doing and to the other machinery from their toppling over on it. The carpenter who was employed by appellant to place the timbers with which this shipment of machinery was braced testified for appellee. He was asked, "Did you put any bracing up by the radiators?" and answered, "About one; about one on the *Page 304
floor and one about half or two-thirds of the way up, nailed to each side of the car; that was 2x4 or 3x4, I am not sure which." One of the witnesses for appellant, who examined the car of machinery after its delivery in Louisville, in response to a question as to whether anything about the car indicated whether it had been properly or been improperly loaded, responded:
"I couldn't tell anything about it from the appearance whether it was packed properly or not; all of the bracings were down; some of them were entirely down; some of them were only nailed at one end."
It appears then that only two witnesses who were present when this car of machinery was loaded testified as to how it was placed and braced for shipment. The testimony of appellant's son appears to make a first-class case for him that the machinery was properly loaded and braced. The testimony of the carpenter who helped to load the car and who placed the braces to hold this large, weighty, and top-heavy machinery in place would seem to establish that it was not properly braced for shipment. The testimony of the witnesses who inspected the car after its arrival in Louisville necessarily is more or less speculative and conjectural as to whether the damage to the machinery was caused by improper handling of the car by appellee or by improper loading or bracing of the machinery by appellant. The evidence clearly made it a case for the jury under the principles announced in I. C. R. R. Co. v. Thomas, etc., supra, and the verdict of the jury returned under instructions which properly submitted the issue cannot be said to be flagrantly against the evidence.
Appellant insists that the judgment should be reversed because of irregularity and misconduct of the jury or one of its members. The evidence was concluded late in the afternoon of the first day of the trial. When the court was about to require the arguments to be made before adjournment, some member of the jury requested that the arguments be deferred until the following morning. One member of the jury was an employee of the Louisville Nashville Railroad Company, and had employment in the department of that company which kept the records of car movements over any portion of that railroad's tracks or terminals in the city of Louisville, Ky. Appellant, Pollack, while testifying, in describing the *Page 305
damage done to the car of machinery handled by appellee, among other things, stated that the car in which the machinery was shipped "was bursted out on each side." Before returning for jury duty the second morning of the trial, the member of the jury, who was employed by the Louisville Nashville Railroad Company, went to his office and looked up its record and ascertained that the car in which the shipment of machinery was handled which was delivered to appellant, Pollack, on one of the Louisville Nashville Railroad Company's spur tracks, after being unloaded of the machinery, was placed immediately by the Louisville Nashville Railroad Company at the disposal of another shipper, and was loaded and shipped out over its road without being repaired. These facts so ascertained were disclosed by him to other members of the jury before court convened, and doubtless played considerable part in leading the jury to the verdict returned. All of this testimony relative to this misconduct upon the part of jurors comes from members of the jury, and we have raised again the old question whether the verdict of the jury may be impeached by the testimony of the jurors who rendered it. This court from its organization has adhered to the rule that the evidence of jurors may not be received either to prove misconduct of themselves or of any of their fellow jurors. The rule is written, in other words, frequently that a verdict cannot be explained or impeached by the affidavits or other sworn statements of jurors. See Taylor v. Giger, Hardin (3 Ky) 586; Vance v. Haslett, 4 Bibb. (7 Ky.) 191; Cain v. Cain, 1 B. Mon. (40 Ky.) 213; Luttrell v. Maysville, etc., 18 B. Mon (57 Ky.) 291; Louisville Railway Co. v. Hallahan (Ky.) 119 S.W. 200; Rager v. L. N. R. R. Co.,139 Ky. 760, 127 S.W. 155; L. E. Railway Co. v. Crawford,155 Ky. 723, 160 S.W. 267; and Smith's Adm'x v. Middlesboro Electric Co., 164 Ky. 46, 174 S.W. 773, Ann. Cas. 1917A, 1164.
Appellant insists, however, that the rule prevailing in this jurisdiction under the cases announcing it relates only to misconduct of jurors while in the jury room engaged in consideration of the verdict, and does not extend to misconduct occurring outside the jury room. He insists, therefore, that, as the misconduct complained of here occurred outside the jury room, this court should follow the Supreme Court of Wisconsin, which has held, in Peppercorn v. Black River Falls, 89 Wis. 38,61 N.W. 79, 46 Am. St. Rep. 818, and McBean v. State, *Page 306 83 Wis. 206, 53 N.W. 497, that the evidence of jurors relating to conduct of a juror or a third person outside of the jury room may be received to impeach the verdict. In some of the states a distinction seems to have been made between misconduct of jurors occurring within and without the jury room. In some jurisdictions, as in the cases above cited from Wisconsin, the view has been taken that the verdict of a jury may be impeached by the testimony of jurors provided the testimony relates to misconduct occurring outside the jury room. In other jurisdictions, where a distinction has been drawn between misconduct occurring within and without the jury room the other view has been taken; that is, that the testimony of the juror may not be received to impeach the verdict, regardless of whether it relates to improper conduct within or without the jury room. See cases cited in note appearing in 31 L.R.A. (N.S.) page 933. In yet other jurisdictions the question is treated without regard to the distinction between misconduct occurring within or without the jury room, and regardless of where it occurs the rule is adhered to that the verdict of a jury may not be impeached by the testimony of one of its members relating to misconduct upon the part of himself or any of his fellow jurors. That seems to be the rule prevailing in this jurisdiction, as no distinction appears to have been drawn between misconduct within and without the jury room.
In Smith's Adm'x v. Middlesboro Electric Co., 164 Ky. 46,174 S.W. 773, Ann. Cas. 1917A, 1164 one of the grounds for reversal was misconduct upon the part of the jury, and from the opinion it appears that the affidavits of each of the jurors were filed. The alleged misconduct consisted of the jury separating after they had been put in charge of an officer and some of them being biased and influenced by the friends of appellee by the use of whisky and other improper agencies. All of this alleged misconduct occurred outside of the jury room. It was said in that opinion:
"It is a very old rule, in this jurisdiction, that the affidavit of a juror cannot be received, either to prove misconduct of himself or any one of his fellow jurors."
It was further said:
"It follows that the affidavits of the twelve jurors on file cannot be considered, in so far as it is *Page 307
proposed to impeach their verdict, by proof of the misbehavior or misconduct of the jurors themselves, or of their fellow jurors."
While the application of this rule may in instances such as the one now before us work a hardship, yet experience has taught that the safer, better rule is for the courts to close their ears to jurors, who, following a verdict, consent to offer testimony tending to impeach the verdict they have rendered. The reasons upon which the rule is founded have been written in many of the cases herein cited, and need not be here repeated. The evidence of misconduct upon the part of the jurors came solely from members of the jury which rendered the verdict herein, and, for the reason indicated, that evidence cannot be received by the court to impeach the verdict, the foundation of the judgment sought to be reversed by this appeal. This court concludes that the trial court properly overruled appellant's motion for a new trial upon the ground of improper conduct upon the part of the jury, and that the judgment of the trial court must be affirmed.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445468/ | Reversing.
The Board of Education of the Campton Graded and High School instituted this action against the County Board of Education of Wolfe County alleging in substance that on the 20th day of August, 1932, it entered into a contract with defendant whereby it agreed to accept Wolfe county high school students into its school at Campton and to furnish them tuition and training for the school year, 1932-1933; that it did accept such children as provided in the contract for the school year specified therein but that defendant has failed and refused to pay the sum stipulated in the contract or any part thereof. It prayed judgment for the sum of $1,300 and for an order requiring and directing defendant Board of Education of Wolfe County to assemble and pay plaintiff such sum with interest from June 30, 1933 until paid.
A copy of the contract was filed as an exhibit with and made a part of the petition. The contract reads:
"August 11th, 1932.
"This article of agreement made and entered into this day and year above mentioned, by and between Wolfe County Board of Education, party of the first part, and the Campton Graded and High School, whereby the said Campton Graded and High School has for the sum of thirteen hundred and forty five dollars agreed to furnish tuition free to all the Wolfe County High School Students sent to the said School by the Wolfe County Superintendent for Year 1932-33. The said Campton Graded and High School Board agree to on the recommendation of the Wolfe County Superintendent to employ one Leona Coldiron of Hazel Green, Ky., as an assistant teacher in the said High School, for a period of five months at the salary of *Page 403
ninety dollars per month. The said teacher possessing the legal qualifications to teach in the said capacity recommended for.
"Given under our hands this 20th day of August 1932. Campton Graded and High School.
"G.M. Center, Chair.
Wolfe County Board of Education.
"James H. Dunn, Chair.
"Bruce Rose, Supt.
"Attest; — A.B. Kash, Clerk Wolfe Circuit Court."
A demurrer to the petition was sustained, and plaintiff declining to further plead, its petition was dismissed and it is appealing.
Respective parties apparently are in agreement that their rights are to be determined by section 4526b-1, Kentucky Statutes, Carroll's 1930 Edition, which was in force at the time. It is the contention of counsel for appellant that the contract is valid and conforms to the requirements of the statute. On the other hand, it is the contention of appellees that the petition does not state a cause of action because the contract sued on does not contain the provisions and stipulations required by the statute and does not aver that the contract was ever authorized or adopted by the boards of education or that any official action by either of the boards of education was taken concerning the contract.
The section of the statute in question relates to the establishing of high schools by county boards of education of each county and requires that the county board of education of each county should establish one or more high schools if there was not already existing in the county a high school of the first class; but provides further that if such high school already existed, the county board of education might make arrangements with the trustees or board of education of such high school as would furnish pupils completing rural schools free tuition in the high school and if such arrangements were made, then such high school might be considered as meeting the purpose of the law without attempting the establishment of another high school; and further provided in effect that county boards of education should have power and authority to unite with governing authorities of cities or towns in their respective *Page 404
counties for the purpose of establishing a high school for joint use of such county and city or town, and to unite with such authorities for the purpose of maintaining such high school if one already be in existence.
The statute, continuing, provided:
"For this purpose said county boards are hereby given full power and authority to make such contracts as they may deem necessary or proper for the establishment and maintenance of such high schools for the joint use of the county and such city or town. Said contract shall be in writing and shall contain full and complete stipulations as to employment and compensation of teachers, course of study, payment of expenses of the school and the control and discipline of the pupils."
It will be noted from a reading of this section of the statute that county boards of education were required to furnish high school facilities to all pupils completing common school courses but left open to the various boards three ways of meeting the mandatory requirements of the statute: (1) To establish one or more high schools in the county; (2) to enter into an arrangement with the trustees or the board of education of any high school already existing in the county to furnish pupils completing the rural school courses free tuition in such high school; and (3) to unite with governing authorities of any city or town for the purpose of establishing a high school for the joint use of the county and city or town.
It will be noted that the quoted excerpt from the section of the statute in question relates solely to the establishment of high schools for the joint use of the county and any city or town, if the county pursued the third course left open by the statute.
Counsel for appellees cite and rely on the cases of Board of Trustees of Hartford Graded School v. Ohio County Board of Education et al., 172 Ky. 424, 189 S.W. 433, County Board of Education of Hopkins County v. Dudley et al., 154 Ky. 426,157 S.W. 927, and Hellier Graded School District v. Pike County Board of Education, 233 Ky. 63, 24 S.W.2d 934.
In the first case cited it appears there had been an arrangement entered into between the county board of education and the trustees of the graded school district *Page 405
whereby the common school graduates would be permitted to attend the high school in the graded district for a stipulated tuition fee. The county board having refused to pay these fees for the pupils, the graded school trustees brought suit against the county board of education asking judgment for tuition fees alleged to be due under the agreement. It was held in effect that the contract could not be enforced because the written contract was not adequate on its face in that it did not comply with the quoted provisions of section 4526b-1, supra; that it was not authorized or adopted by the board of trustees of the graded school or by the county board acting in their official capacity. Respecting the requirements of the statute concerning the stipulations of the contract, it followed the second case cited. In the second case cited the county board of education entered into an arrangement whereby graduates from the common schools might attend the public school at Earlington but the Earlington school was not a graded or high school but was a common school of a common school district of the county. The arrangement was evidenced only by a resolution of the board of education, and the court held that this did not constitute a contract, since it was unilateral only and did not bind the Earlington school authorities to perform any service for the board of education and did not contain any provision whatever concerning the courses of study, payment of expenses of the school, or the control or discipline of pupils. In those cases, the court clearly overlooked the two different courses or methods the county board might pursue in lieu of establishing one or more high schools, as provided at the outset of the section of the statute referred to; and that the quoted provisions of the section relating to contracts applied solely where the county board of education adopted the third method as above indicated by entering into an arrangement with the city or town for the establishment and joint use of a high school. If the county board of education adopted the second method of providing high school education for pupils who have completed the common school courses, it merely entered into an arrangement with the trustees of an established high school whereby such pupils would be furnished free tuition in such high school without the county board being given any control or management of the high school.
It is our conclusion that the quoted provisions of *Page 406
the statute relating to the stipulations that should be contained in the contract does not apply in cases of this character, but solely to agreements whereby the county board of education and the governing authorities of a city or town establish and maintain a high school for the joint use of the county or the city and county.
It does not appear in this case as it did in the first case cited by counsel for appellees that the contract was not adopted by the county board of education or by trustees of the graded school district, but, on the other hand, it is alleged that the parties entered into a written contract which is filed with and made a part of the petition and is signed by the respective boards by their chairmen and by the county superintendent, who is secretary of the county school board.
In the third case cited, it was merely held that where there was no verbal or written contract the county was not obligated by implied contract to pay the graded school authorities tuition for pupils within the county but outside the graded district attending such graded schools.
Apparently in sustaining the demurrer the lower court was guided by the first two cases cited by appellees, but it is quite obvious that the opinion in those cases was based on a misconception of the statute relative to arrangements between the county board of education and the trustees of a high school whereby the graduates of the common school might attend the high school, but without giving the county board of education any control over such high school; and to the extent that they conflict with this opinion in that respect they should be and are overruled.
For the reasons indicated, the judgment is reversed and the cause remanded, with directions to overrule the demurrer to the petition. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3183121/ | RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0059p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ex rel. VICKI ┐
SHELDON, │
Relator-Appellant, │
│
│
v. > No. 15-3075
│
│
KETTERING HEALTH NETWORK, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:14-cv-00345—Timothy S. Black, District Judge.
Argued: October 8, 2015
Decided and Filed: March 7, 2016
Before: KEITH, CLAY, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert F. Croskery, CROSKERY LAW OFFICES, Cincinnati, Ohio, for Appellant.
Natalie T. Furniss, BRICKER & ECKLER, LLP, Columbus, Ohio, for Appellee. ON BRIEF:
Robert F. Croskery, CROSKERY LAW OFFICES, Cincinnati, Ohio, for Appellant. Natalie T.
Furniss, Anne Marie Sferra, BRICKER & ECKLER, LLP, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Vicki Sheldon (“Relator,” in this qui tam action) appeals
from the district court’s order, entered on January 6, 2015, denying her motion for leave to
amend her complaint and granting Defendant Kettering Health Network’s (“KHN”) motion to
1
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 2
dismiss. Relator alleges that KHN violated the False Claims Act (“FCA”), 31 U.S.C.
§ 3729(a)(1), by falsely attesting to compliance with the Health Information Technology for
Economic and Clinical Health Act (hereinafter “HITECH Act” or “the Act”), Pub. L. No. 111-5,
Title XIII, 123 Stat. 226 (2009), and by receiving “meaningful use” incentive payments as a
result. The district court held that Relator’s complaint failed to state a plausible claim, and
denied as futile Relator’s motion to amend. The district court held, in the alternative, that
Relator’s claims were precluded by a prior Ohio state court judgment in a case involving similar
claims filed by Relator against KHN.
For the reasons set forth below, we AFFIRM the district court’s order granting KHN’s
motion to dismiss and denying Relator’s motion to amend.
BACKGROUND
On April 29, 2014, Relator brought a qui tam action under the False Claims Act,
31 U.S.C. § 3730(b), against KHN in federal court, alleging KHN falsely certified its compliance
with certain provisions of the HITECH Act.
I. The HITECH Act
Enacted in 2009, the HITECH Act was designed to encourage the adoption of
sophisticated electronic health record (“EHR”) technology by health care providers. See, e.g.,
Vadim Schick, After HITECH: HIPAA Revisions Mandate Stronger Privacy and Security
Safeguards, 37 J.C. & U.L. 403, 404 (2011). To that end, the Act creates incentive payments for
eligible health care providers (“providers”)—i.e. individual hospitals and health care
professionals—that demonstrate “meaningful use” of certified EHR technology. 42 C.F.R.
§ 495.2; see also 42 U.S.C. §§ 1395w-4(o), 1395ww(n) (establishing diminishing schedule for
incentive payments to encourage early adoption by eligible professionals and hospitals).
Incentive payments are calculated using a formula that takes account of each individual
provider’s volume of patients. See, e.g., 42 C.F.R. §§ 495.102(a)(1) (eligible professionals),
495.104(c)(2) (hospitals).
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 3
As a condition to receipt of incentive payments, the Act requires providers to meet
roughly two-dozen meaningful-use objectives and accompanying measures of compliance.
42 C.F.R. § 495.20; 42 U.S.C. §§ 1395w-4(o), 1395ww(n). Objectives and measures were
released in two stages; Stage 2, which went into effect on September 4, 2012, added additional
objectives and measures to the requirements for compliance with the Act. See Electronic Health
Record Incentive Program—Stage 2, 77 Fed. Reg. 53,968 (Sept. 4, 2012); 42 C.F.R.
§§ 495.20(h)–(m). After Congress passed the Act, the Centers for Medicare and Medicaid
Services (“CMS”), an agency of the Department of Health and Human Services, promulgated
specific standards for meeting these objectives. See, e.g., Medicare and Medicaid Programs;
Electronic Health Record Incentive Program, 75 Fed. Reg. 44314-01 (July 28, 2010).
The meaningful-use objective relevant here (hereinafter “the objective” or “security and
privacy objective”) requires providers to “[p]rotect electronic health information created or
maintained by the certified EHR technology through the implementation of appropriate technical
capabilities.” 42 C.F.R. §§ 495.20(d)(15)(i), (f)(14)(i), (j)(16)(i), (l)(15)(i) (establishing the
same security and privacy objective for different types of providers over different Stages of Act
implementation). To meet the objective during Stage 1 of Act implementation, providers were
required to “[c]onduct or review a security risk analysis in accordance with the requirements
under 45 C.F.R. § 164.308(a)(1) and implement security updates as necessary and correct
identified security deficiencies as part of [their] risk management process.” Id. at
§§ 495.20(d)(15)(ii), (f)(14)(ii). During Stage 2, providers are additionally required to “address[]
the encryption/security of data stored in Certified EHR Technology in accordance with
requirements under” 45 C.F.R. §§ 164.312(a)(2)(iv) and 164.306(d)(3). 42 C.F.R.
§§ 495.6(j)(16)(ii), (l)(15)(ii). To receive incentive payments, individual providers must legally
attest to meeting these standards. See id. at § 495.8. Attestation is required at intervals
dependent upon the type of provider, the “EHR Incentive Program” chosen (Medicare or
Medicaid), and the reporting year. See id. at § 495.4.
Both Stage 1 and Stage 2 measures for the security and privacy objective require
providers to comply with 45 C.F.R. § 164.308(a)(1), which contains security and privacy
standards established under the Health Insurance Portability and Accountability Act of 1996
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 4
(“HIPAA”). Subsection (a)(1) requires health care providers to “[i]mplement policies and
procedures to prevent, detect, contain, and correct security violations.” Specifically, the
subsection requires providers to:
(A) . . . Conduct an accurate and thorough assessment of the potential risks and
vulnerabilities to the confidentiality, integrity, and availability of electronic
protected health information held by the covered entity or business associate.
(B) . . . Implement security measures sufficient to reduce risks and vulnerabilities
to a reasonable and appropriate level to comply with § 164.306(a).
(C) . . . Apply appropriate sanctions against workforce members who fail to
comply with the security policies and procedures of the covered entity or business
associate.
(D) . . . Implement procedures to regularly review records of information system
activity, such as audit logs, access reports, and security incident tracking reports.
Id. at (a)(1)(ii).
Stage 2 measures for the objective require providers to comply with two additional
HIPAA regulations—45 C.F.R. §§ 164.312(a)(2)(iv) and 164.306(d)(3)—that also contain
security standards. 42 C.F.R. §§ 495.6(j)(16)(ii), (l)(15)(ii). The first standard,
§ 164.312(a)(2)(iv), requires providers to “[i]mplement a mechanism to encrypt and decrypt
electronic protected health information.” The second standard, § 164.306(d)(3), requires
providers to implement such a mechanism if “reasonable and appropriate,” and if not, to
document why and implement “an equivalent alternative measure.”
II. Relator’s first amended complaint
According to Relator’s first amended complaint, Defendant KHN is a network of
hospitals, medical facilities, and physicians that provide medical services. “[D]uring the past
several years,” the complaint asserts, KHN certified to the United States that it implemented a
system of protecting electronic protected health information (“e-PHI”) in accordance with
HITECH Act requirements, and it received meaningful-use payments as a result. (R. 4 at ¶ 5.)
KHN would submit this certification to the government by “checking ‘Yes’ to the question ‘Did
you conduct or review a security risk analysis per 45 CFR 164.308(a)(1) and implement security
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 5
updates as necessary and correct identified security deficiencies as part of its [sic] risk
management processes.’” (Id. at ¶ 25.)1
Relator alleges, however, that KHN’s attestations of compliance under the Act were
false. This allegation stems from two letters she received from KHN informing her that its
employees had impermissibly accessed her e-PHI. These letters, which were attached to
Relator’s original complaint, state that based on its own internal investigation, KHN discovered
Relator’s e-PHI had been accessed on several occasions by Relator’s (now former) husband,
Duane Sheldon, and others.2 Relator’s complaint asserts that while Duane Sheldon was serving
as a director for KHN, he began an affair with a subordinate employee, and together they
accessed Relator’s e-PHI in furtherance of that affair. The letters Relator received from KHN
also state that (1) “these instances of access are inappropriate/unauthorized and in violation of
[KHN] policy and procedure, as well as law,” (2) KHN was investigating these instances of
access “as a breach under the [HITECH Act],” and (3) KHN would be notifying the United
States Department of Health and Human Services of the breaches. (R. 1-1, Pg ID # 10–13.)
After Relator learned her e-PHI had been impermissibly accessed, she requested (through
counsel) that KHN provide her with specific e-PHI access reports generated by a software
system called “EPIC.” Relator asserts that KHN bought and implemented the EPIC software
system sometime before her e-PHI was breached. The complaint states that when properly
utilized, the EPIC system helps KHN to “maintain[] electronic health information,” and allows
approved persons to access medical information while protecting such information from
unapproved access. (R. 4 at ¶ 7.) With EPIC, health care providers can run a comprehensive
series of reports, known as “CLARITY” reports, which help providers monitor improper access
to e-PHI. Relator, who apparently has some personal familiarity with the EPIC software, lists
several of these reports by name in her complaint and asserts that EPIC’s training materials
1
However, the complaint does not state where or on what form KHN “checked ‘Yes’” to this question.
2
“Although matters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6)
motion to dismiss, documents attached to a motion to dismiss are considered part of the pleadings if they are
referred to in the plaintiff’s complaint and are central to the plaintiff’s claim.” Seaton v. TripAdvisor LLC, 728 F.3d
592, 596 (6th Cir. 2013) (internal quotation marks and brackets omitted).
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 6
suggest providers run such reports on a regular basis to safeguard against unauthorized access to
e-PHI.
Relator states that when she asked for specific CLARITY reports by name, KHN refused
to provide them. Instead, KHN provided her with a series of “homegrown” reports that
contained inconsistent information regarding the users who had impermissibly accessed
Relator’s e-PHI. At some point, Relator discovered that her daughter and grandson’s e-PHI had
also been inappropriately accessed, and that their medical billing information had been
manipulated. Finally, Relator alleges that an employee who reported to Duane Sheldon routinely
ran an “expired medication report” containing the e-PHI of Relator and numerous other patients.
According to Relator, there was no reason for this employee to run that report, and the report sat
on an unmonitored printer for hours.
Based on these facts, the complaint avers that KHN’s attestation of compliance with the
HITECH Act’s security and privacy objective was false.
III. Subsequent procedural history
On June 4, 2014, while her federal complaint was still under seal pending possible
government intervention, Relator filed a second suit against KHN in the Court of Common Pleas
for Montgomery County, Ohio. In this suit, Relator was joined by her daughter Haley Dercola
and grandson Tucker Dercola as plaintiffs, and together they alleged state torts arising from the
same breach of Relator’s and co-plaintiffs’ electronic health records. They also alleged
violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., and the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq., stemming from KHN’s alleged mishandling
of bills accumulated during Haley Dercola’s hospitalization while giving birth to Tucker.
On August 29, 2014, the United States filed a notice of election to decline intervention in
Relator’s qui tam action in federal court. That same day, the district court ordered the complaint
be unsealed.
On October 21, 2014, the Montgomery County Court of Common Pleas dismissed
Relator’s state action in its entirety for “failure to state a claim upon which relief can be
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 7
granted.” Sheldon v. Kettering Adventist HealthCare, 2014 CV 03304, at *3 (Montgomery Cty.
Ct. Com. Pl. 2014). The court based its dismissal on the fact that (1) “Every allegation related to
Plaintiff’s tort claims in the ‘facts’ section of the complaint revolves around KHN’s alleged
failure to run certain ‘Clarity reports,’ which Plaintiffs alleged were required of KHN under
HIPAA;” and (2) “HIPAA does not allow private causes of action, according to Ohio law.” Id.
Plaintiffs appealed that decision to the Court of Appeals of Ohio.
On November 12, 2014, KHN filed a motion to dismiss in the federal case arguing:
(1) Relator had failed to state a claim under the heightened pleading standards applicable to FCA
claims, and (2) the Ohio state court’s dismissal of Relator’s state case was res judicata, and
Relator’s federal claim was therefore precluded. On December 12, 2014, Relator filed a motion
to amend her complaint, attaching a proposed amended complaint that Relator argued “cures any
perceived defects in insufficient particularity.” (R. 14, Pg ID # 326.)
Relator’s proposed second amended complaint alleged that KHN’s breaches affected not
only Realtor and her family members, but also dozens of other people whose e-PHI was
mistakenly shared with Relator. The proposed complaint further stated that to obtain
meaningful-use money from the federal government, KHN certified its compliance with the
HITECH Act on a yearly basis, and that such certification was required in 2011, 2012, and 2013.
Finally, the proposed complaint listed four KHN employees that Relator claimed “participated”
in KHN’s false certification of HITECH Act compliance.
On January 6, 2015, the district court issued an order denying Relator’s motion to amend
and granting KHN’s motion to dismiss under Rule 12(b)(6). The district court held that Relator
failed to plead her claims with sufficient particularity because she had not alleged a specific false
claim by KHN, and because she failed to plausibly plead that KHN did not meet the HITECH
Act’s standards. The court further held that because Relator’s proposed amended complaint
failed to cure these deficiencies, granting her leave to amend would be futile. Finally, as an
alternative basis for its decision, the district court noted that the factual allegations in Relator’s
federal case “are nearly identical to those underlying the state court action,” and therefore
Relator’s claims were barred by the doctrine of res judicata. (R. 19, Pg ID # 387.) Relator
timely appealed.
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 8
On August 14, 2015, the Court of Appeals of Ohio rendered its decision on Relator’s
state action. Sheldon v. Kettering Health Network, 40 N.E.3d 661 (Ohio Ct. App. 2015). The
court affirmed the dismissal of Relator’s state case and reiterated that her claims “stemmed from
KHN’s alleged failure to protect the privacy of the plaintiffs’ electronic medical information and
the improper accessing and disclosure of that information by KHN administrator Duane Sheldon,
the former spouse of Vicki Sheldon.” Id. at *1. On September 25, 2015, Relator appealed that
decision to the Ohio Supreme Court. That appeal is currently pending.
DISCUSSION
I. Standard of Review
We review de novo a district court’s dismissal of a suit pursuant to Rule 12(b)(6).
Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). A district
court’s order denying a Rule 15(a) motion to amend is typically reviewed for abuse of discretion.
Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). However, where the
district court denies leave to amend because the complaint as amended would not withstand a
motion to dismiss under Rule 12(b)(6), that denial is reviewed de novo. Seaton v. TripAdvisor
LLC, 728 F.3d 592, 596 (6th Cir. 2013) (discussing standard for denial of leave to amend for
“futility”). Likewise, we review de novo a district court’s application of the doctrine of res
judicata. Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009).
II. Analysis
A. Pleading standards under the False Claims Act
The False Claims Act imposes liability on any person who “knowingly makes, uses, or
causes to be made or used, a false record or statement material to a false or fraudulent claim.”
31 U.S.C. § 3729(a)(1)(B); see also id. at § 3730(b) (“A person may bring a civil action for a
violation of section 3729”). As with all claims, plaintiffs alleging violations of the FCA must
plead sufficient facts that, when taken as true, “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “The district
court must construe the complaint in a light most favorable to the plaintiff, accept all of the
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 9
factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of
facts in support of his claims that would entitle him to relief.” Columbia Nat. Res., Inc. v.
Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995).
In addition, “[c]omplaints alleging FCA violations must comply with Rule 9(b)’s
requirement that fraud be pled with particularity.” Chesbrough v. VPA, P.C., 655 F.3d 461, 466
(6th Cir. 2011). Under Rule 9(b), a party alleging fraud or mistake “must state with particularity
the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b); see also U.S. ex rel.
SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 505 (6th Cir. 2008) (“SNAPP I”) (noting the
“knowledge” element of FCA claims “does not need to be pled with particularity”). Specifically,
a plaintiff must “allege the time, place, and content of the alleged misrepresentation . . . the
fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the
fraud.” U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 643 (6th Cir. 2003)
(“Bledsoe I”) (quoting Coffey v. Foamex L.P., 2 F.3d 157, 161–62 (6th Cir. 1993)).
Importantly, Rule 9 should not be read to “reintroduce formalities to pleading.” U.S. ex
rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 503 (6th Cir. 2007) (“Bledsoe II”); see also
SNAPP I, 532 F.3d at 503–04 (noting Rule 9’s heightened pleading standards “should not be
read to defeat the general policy of ‘simplicity and flexibility’ in pleadings contemplated by the
Federal Rules”). A complaint sufficiently pleads the time, place, and content of the alleged
misrepresentation so long as it “ensure[s] that [the] defendant possesses sufficient information to
respond to an allegation of fraud;” providing the defendant with sufficient information to
respond is Rule 9’s “overarching purpose.” SNAPP I, 532 F.3d at 504.
B. Application to Relator’s amended and proposed amended complaints
To state a claim under the FCA, the plaintiff must sufficiently plead:
[1] that the defendant [made] a false statement or create[d] a false record [2] with
actual knowledge, deliberate ignorance, or reckless disregard of the truth or falsity
of the information; [3] that the defendant . . . submitted a claim for payment to the
federal government; . . . and [4] that the false statement or record [was] material
to the Government’s decision to make the payment sought in the defendant’s
claim.
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 10
U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 618 F.3d 505, 509 (6th Cir. 2010) (“SNAPP II”).3
In dismissing Relator’s suit pursuant to Rule 12(b)(6), the district court identified two
deficiencies in the amended and proposed amended complaints—namely, failure to plead facts
sufficient to plausibly establish the [1] false statement and [3] claim for payment elements above.
These deficiencies are addressed in turn.
1. Relator failed to plausibly allege that KHN’s attestation of HITECH
Act compliance was false
The FCA requires relators to establish “that the defendant [made] a false statement or
create[d] a false record.” SNAPP II, 618 F.3d at 509. We have held that “[w]hen a claim [for
payment] expressly states that it complies with a particular statute, regulation, or contractual
term that is a prerequisite for payment, failure to actually comply” satisfies this element. See
Chesbrough, 655 F.3d at 467 (citing Mikes v. Straus, 274 F.3d 687, 697–99 (2d Cir. 2001)).
This theory of liability under the FCA is referred to as “false certification.” Id.
As noted above, a relator’s pleadings of false certification must “contain[] ‘enough facts
to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “Plausibility is not the same as probability, but rather ‘asks for more
than a sheer possibility that a defendant has acted unlawfully.’” Ctr. for Bio-Ethical Reform, Inc.
v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (“CBER”) (quoting Iqbal, 556 U.S. at 678).
And “[a]lthough a court must construe a complaint’s allegations in favor of the plaintiff, . . . and
must accept all factual allegations as true, . . . the court need not accept legal conclusions or
unwarranted factual inferences.” Debevec v. Gen. Elec. Co., 121 F.3d 707, at *2 (6th Cir. 1997)
(table) (internal citations omitted).
3
As we noted in Chesbrough, Congress amended the FCA in 2009 in response to the Supreme Court’s
decision in Allison Engine Co. v. U.S. ex rel. Sanders, 553 U.S. 662 (2008). 655 F.3d at 466 n.2 (citing the Fraud
Enforcement and Recovery Act, Pub. L. No. 111–21 (2009)). Allison held that the old language of
§ 3729(a)(1)(B)—at that time numbered § 3729(a)(2)—contained a specific intent requirement, such that liability
under the FCA required that the defendant made her false statement “to get” the government to pay a claim. Id.
(quoting the old language of § 3729(a)(1)(B)). In response, Congress struck the words “to get” from the section,
thereby eliminating the specific intent requirement. Id. For this reason, the above rule statement quoted from
SNAPP II, 618 F.3d at 509, omits the specific-intent element from that opinion’s summary of the elements of an
FCA claim.
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 11
In this case, Relator alleges that KHN falsely certified its compliance with the HITECH
Act’s requirements, and that KHN received meaningful-use incentive payments as a result. This
allegation is premised on two conclusions drawn from the facts outlined in her complaint: first,
that the individual breaches alleged in the complaint either constitute violations of the Act in
themselves or suggest KHN failed to implement security policies and procedures; and second,
that KHN’s failure to run CLARITY reports on a regular basis constituted a breach of its duties
under the Act. Because these conclusions are either facially implausible or based on incorrect
conclusions of law, we affirm the district court’s dismissal of Relator’s suit pursuant to Rule
12(b)(6).
i. KHN’s alleged breaches of Relator’s e-PHI
Relator’s complaint alleges KHN’s individual breaches, by themselves, constituted
violations of the Act. Specifically, Relator argues: (1) KHN’s letters alerting Relator to breaches
of her e-PHI contained or constituted an admission that KHN violated the HITECH Act; and
(2) the impermissible running of the “expired medication report” constituted, in itself, a breach
of KHN’s duties under the HITECH Act. Relator also argues that when taken together, these
individual breaches suggest an absence of necessary policies or procedures.
To begin, Relator’s claim that KHN’s individual breaches each constituted a violation of
the HITECH Act is an incorrect conclusion of law. The Act’s implementing regulations require
providers to “[c]onduct or review a security risk analysis,” “implement security updates as
necessary,” and “correct identified security deficiencies.” See, e.g., 42 C.F.R.
§§ 495.6(d)(15)(ii), (f)(14)(ii). This language indicates that compliance is premised on the
process of analyzing and reviewing security policies and procedures; attestation of compliance is
not rendered false by virtue of individual breaches. See id. Indeed, materials distributed by
CMS discussing compliance with the objective state that providers need not “fully mitigate all
risks” of e-PHI breaches before attesting to Act compliance. See CMS, Security Risk Analysis
Tipsheet: Protecting Patients’ Health Information 5 (Revised Dec. 2013), https://www.cms.gov/
Regulations-and-Guidance/Legislation/EHRIncentivePrograms/Downloads/SecurityRisk
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 12
Assessment_FactSheet_Updated20131122.pdf.4 Instead, “[t]he EHR incentive program requires
correcting any deficiencies [in security] (identified during the risk analysis) . . . .” Id.
Similarly, 45 C.F.R. § 164.308(a)(1) requires health care providers to “[i]mplement
policies and procedures to prevent, detect, contain, and correct security violations.” The more
detailed regulations contained in subsection (a)(1)(ii) likewise indicate that individual breaches
do not negate compliance: those regulations state that risks should be reduced to a “reasonable
and appropriate level,” and that providers should “[a]pply appropriate sanctions against”
employees who violate security policies. Id. This language plainly contemplates occasional
breaches of e-PHI. Thus, as KHN aptly states, “[t]he regulations . . . do not impose a strict
liability standard that requires hospitals to prevent all privacy breaches.” (Def.’s Br. at 11.)
For these reasons, KHN’s admissions that Relator’s e-PHI was improperly accessed
could not, by themselves, render “false” any of KHN’s attestations of Act compliance. The same
holds true for the impermissible running of the “expired medication report.” See CBER,
648 F.3d at 369 (“[T]he general rule that the court must accept as true all allegations in the
complaint ‘is inapplicable to legal conclusions.’” (quoting Twombly, 550 U.S. at 570)).
Relator’s complaint also states that these individual breaches, taken together, indicate a
lack of policies and procedures. Her proposed amended complaint adds no new facts to support
this claim. Assuming occasional breaches of e-PHI can support a reasonable inference that
security policies and procedures do not exist, Relator’s allegations fail to support such an
inference. See id. (“A claim is plausible on its face if the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” (emphasis added) (internal quotation marks omitted)).
Relator’s own allegations, which we must accept as true, indicate that KHN did have
policies and procedures in place. Those allegations assert that “[KHN] revealed that there had
4
The CMS website contains numerous resources (pertaining to the incentive program) distributed by
CMS over the years of HITECH Act implementation. See, e.g., CMS, Resources for Previous Years of the
HER Incentive Programs (last modified Dec. 18, 2015), https://www.cms.gov/Regulations-and-
Guidance/Legislation/EHRIncentivePrograms/RequirementsforPreviousYears.html. We reference this particular
document because it provides some clarity as to what the security and privacy objective required of providers during
Stage 1 of HITECH Act implementation.
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 13
been a breach of Relator Vicki Sheldon’s private electronic health records” in the two letters she
attached to her complaint. (R. 4 at ¶ 16.) Notably, these letters state that the breaches of
Relator’s e-PHI were “inappropriate/unauthorized and in violation of [KHN] policy and
procedure,” that KHN conducted an investigation, and that it would be notifying HHS of the
breach. (R. 1-1, Pg ID # 10, 12.) Even assuming, however, that these statements are not true,
that Relator even received such letters indicates that KHN has some procedure in place for
detecting unauthorized access to e-PHI, as well as a policy of investigating such unauthorized
access and notifying patients whose information was breached.
For these reasons, we agree with the district court’s conclusion that Relator’s allegations
that KHN lacked the requisite policies and procedures are not facially plausible. U.S. ex rel.
Sheldon v. Kettering Health Network, No. 1:14-CV-345, 2015 WL 74950, at *5–6 (S.D. Ohio
Jan. 6, 2015).5
ii. KHN’s alleged failure to run CLARITY reports on a regular
basis
In support of her claim that KHN falsely attested to HITECH Act compliance, Relator
relies on the following chain of inference: first, KHN’s failure/refusal to provide Relator with
CLARITY reports when asked indicated that it had not run them; second, KHN’s failure to run
CLARITY reports indicated that it “had failed to follow the usual steps and standards in the
industry to protect medical information” (R. 4 at ¶ 16); and third, failing to follow industry
standards by running CLARITY reports on a regular basis constituted a breach of KHN’s duties
under the HITECH Act. Relator’s proposed amended complaint does nothing to bolster this
chain of inference or the facts supporting it; the amended complaint merely adds the conclusory
allegation that “failure to use and run [CLARITY] reports and review them for violations
5
Relator’s complaint alleges that KHN violated the Act by “failing to implement policies and procedures
that allow only authorized persons to access electronic protected health information,” as required under 45 C.F.R.
§ 164.312(a) and (b). (See R. 4 at ¶¶ 26, 31.) But because the security and privacy objective references only
§§ 164.312(a)(2)(iv) and 164.306(d)(3), this allegation appears to be premised on a mistaken reading of the law.
42 C.F.R. §§ 495.6(j)(16)(ii), (l)(15)(ii). Section 164.312(a)(2)(iv) requires KHN to “[i]mplement a mechanism to
encrypt and decrypt electronic protected health information.” Relator’s complaint contains no allegations regarding
data encryption, and none of the facts stated in the complaint would permit an inference that KHN failed to
implement data encryption mechanisms. For these reasons, we do not discuss this issue further.
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 14
indicates that a provider has failed to implement policies and procedures for protecting patient
private health information.” (R. 14-1 at ¶ 10.)
Even assuming the cogency of the first two links in Relator’s inferential chain, the final
link is an incorrect conclusion of law. As we stated above, HITECH Act compliance is premised
on the process of conducting security risk analyses and correcting any security deficiencies
located thereby, see 42 C.F.R. §§ 495.6(d)(15)(ii), (f)(14)(ii), as well as implementing
appropriate policies and procedures. 45 C.F.R. § 164.308(a)(1). Neither the Act nor the HIPAA
regulations to which it refers require that providers adhere to a particular schedule for running
reports, or to purchase and use a particular brand of EHR software. See id. In sum, we agree
with the district court’s conclusion that “[t]he HITECH Act requires hospitals to implement a
system to protect e-PHI; it does not require covered entities to use a particular e-PHI product or
vendor or to run a specific type of monitoring report.” U.S. ex rel. Sheldon v. Kettering Health
Network, No. 1:14-CV-345, 2015 WL 74950, at *4 (S.D. Ohio Jan. 6, 2015).
Because Relator’s claim that KHN’s attestation of HITECH Act compliance was false is
based either on implausible inferences or incorrect conclusions of law, we conclude that Relator
failed to adequately plead the “false statement” element of her FCA claim. See SNAPP II,
618 F.3d at 509.
2. Relator failed to plead a specific claim for payment
The FCA requires relators to establish “that the defendant . . . submitted a claim for
payment to the federal government.” SNAPP II, 618 F.3d at 509. In this Circuit, there is “[a]
clear and unequivocal requirement that a relator allege specific false claims” when pleading a
violation of the FCA. Bledsoe II, 501 F.3d 504. This requirement derives from the fact that “the
[FCA] statute attaches liability, not to the underlying fraudulent activity or to the government’s
wrongful payment, but to the ‘claim for payment.’” Sanderson v. HCA-The Healthcare Co.,
447 F.3d 873, 877–78 (6th Cir. 2006) (quoting United States v. Rivera, 55 F.3d 703, 709 (1st Cir.
1995)); see also U.S. ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1311 (11th Cir. 2002)
(“The submission of a claim is thus not . . . a ‘ministerial act,’ but the sine qua non of a False
Claims Act violation.”).
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 15
In SNAPP I, for example, the relator alleged that the defendant received, between
1991 and 2001, an undetermined number of government contracts based on fraudulent
misrepresentations made in reports filed annually with the federal government. 532 F.3d at 506.
The relator also alleged the approximate value of those contracts. Id. Despite pleading these
details with specificity, id., we affirmed dismissal of the relator’s complaint because the relator
had “not complied with Bledsoe II’s mandate that ‘[i]n order for a relator to proceed to discovery
on a fraudulent scheme,’ it must plead with specificity ‘characteristic example[s]’ that are
‘illustrative of [the] class’ of all claims covered by the fraudulent scheme.” Id. (quoting Bledsoe
II, 501 F.3d at 510–11); see also Sanderson, 447 F.3d at 877 (“Rule 9(b) ‘does not permit a False
Claims Act plaintiff merely to describe a private scheme in detail but then to allege simply . . .
that claims requesting illegal payments must have been submitted, were likely submitted or
should have been submitted to the Government.’”).
This case is on all fours with SNAPP I. At its most specific, Relator’s complaint alleges
that KHN “falsely certified to the United States Government that it had complied with the
HITECH Act to collect ‘Meaningful Use’ monies” (R. 4 at ¶ 25) in an amount “believed to
exceed $75,000,000.00.” (Id. at ¶ 27.) Nowhere, however, does the complaint allege a specific
false claim for payment. Although Relator asserts KHN received government money “as a
result” of false certification, this equates to an allegation that claims “must have been submitted”
at some point—allegations explicitly held insufficient in Sanderson, 447 F.3d at 877. Thus, the
district court was correct in dismissing Relator’s complaint for, inter alia, failing to “identify
with specificity examples that are illustrative of the class of all claims covered by the fraudulent
scheme.” U.S. ex rel. Sheldon v. Kettering Health Network, No. 1:14-CV-345, 2015 WL 74950,
at *6 (S.D. Ohio 2015).6
The additional facts in Relator’s proposed amended complaint likewise fail to meet the
FCA’s heightened pleading standards. The additional facts relevant here allege that KHN falsely
attested to its compliance with the HITECH Act on an annual basis, and that certification was
6
Tellingly, before filing her proposed amended complaint, Relator submitted a motion admitting that “[i]n
order for the Relator to answer the Defendant’s Motion to Dismiss on the issue of the heightened pleading standard .
. . Relator needs to possess information as to the time, date, place, and person making a HiTech certification.”
(R. 10, Pl.’s Mot. for Discovery, Pg ID # 299.) Relator’s amended complaint did not add such information.
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 16
“required . . . in 2011, 2012, and 2013.” (R. 14-1 at ¶ 23, Pg ID # 332.) Even with these
additional facts, however, Relator’s pleadings are insufficient under this Court’s holding in
SNAPP I because she fails to allege a characteristic example of a false claim for payment. The
Act’s implementing regulations establish that attestation is provider-specific: incentive payments
are calculated, in part, using the volume of patients that a particular hospital or professional
treated during the reporting year. See 42 C.F.R. §§ 495.102(a)(1) (eligible professionals),
495.104(c)(2) (hospitals). CMS materials likewise suggest that meeting the security and privacy
objective requires review of the “physical safeguards” and security protocols at each individual
provider’s “facility and other places where patient data is accessed.” See CMS, Security Risk
Analysis Tipsheet: Protecting Patients’ Health Information 4 (Revised Dec. 2013), supra.
Relator’s proposed amended complaint states that KHN is “a network of hospitals,
medical facilities and physicians” (R. 14-1 at ¶ 4), and that KHN “serves as the records custodian
for many doctors and physicians” (id. at ¶ 25), but it fails to name a single hospital or
professional in KHN’s network for whom attestation was rendered “false” by virtue of KHN’s
allegedly deficient security protocols. Relator’s allegations might create an inference that
security flaws affected all providers in KHN’s network.7 But this amounts to an allegation of a
broader fraudulent scheme. Under our holding in SNAPP I, “[i]n order for a relator to proceed to
discovery on a fraudulent scheme, it must plead with specificity characteristic example[s] that
are illustrative of [the] class of all claims covered by the fraudulent scheme.” 532 F.3d at 506
(internal quotation marks omitted). Merely implying that attestations “must have been
submitted” by certain unnamed providers in the KHN network does not satisfy Rule 9(b). See id.
(quoting Sanderson, 447 F.3d at 877).8
7
This inference, however, is attenuated: Relator’s complaint contains no facts regarding KHN’s EHR
infrastructure, and it does not explicitly state whether Duane Sheldon was able to access Relator’s e-PHI because of
network-wide flaws in KHN’s security protocols or because of the flaws at the physical location of a particular
provider. This deficiency in Relator’s complaint is exemplified by her allegation that a KHN employee
impermissibly ran a report containing her e-PHI that “sat on an unmonitored printer for hours, allowing improper
access by any employee that chose to review it.” (R. 4 at ¶ 19; R. 14-1 at ¶ 20.) Yet, Relator does not state where
this printer is located.
8
The proposed amended complaint also states the names and titles of KHN employees allegedly involved
in KHN’s attestations of Act compliance. In Bledsoe II, we held that “while such information is relevant to the
inquiry of whether a relator has pled the circumstances constituting fraud with particularity, it is not mandatory.”
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 17
Relator argues on appeal that she has sufficient “first-hand knowledge” of KHN’s false
claims to satisfy Rule 9(b)’s heightened pleading standards. (Pl.’s Reply Br. at 13–16.) This
argument is similar to one made by the relators in Chesbrough, 655 F.3d at 471. In that case, the
relators cited footnote 12 in Blesdoe II, 501 F.3d at 504, for the proposition that:
the requirement that a relator identify an actual false claim may be relaxed when,
even though the relator is unable to produce an actual billing or invoice, he or she
has pled facts which support a strong inference that a claim was submitted. Such
an inference may arise when the relator has “personal knowledge that the claims
were submitted by Defendants . . . for payment.”
Id. In holding that a “relaxed” standard—to the extent it even exists in this Circuit—was not
applicable in that case, we observed that cases applying a relaxed standard involved relators with
“personal knowledge” that was based either on working in the defendants’ billing departments,
or on discussions with employees directly responsible for submitting claims to the government.
Id. at 471–72 (distinguishing Hill v. Morehouse Med. Assocs., Inc., 2003 WL 22019936 (11th
Cir. August 15, 2003) (unpublished); United States v. R & F Prop. of Lake Cty., Inc., 433 F.3d
1349 (11th Cir. 2005); U.S. ex rel. Lane v. Murfreesboro Dermatology Clinic, PLC, 2010 WL
1926131 (E.D. Tenn. May 12, 2010)); see also U.S. ex rel. Marlar v. BWXT Y-12, L.L.C.,
525 F.3d 439, 446 (6th Cir. 2008) (declining to apply Bledsoe II’s “relaxed standard”).
As in Chesbrough, we need not decide whether a relaxed standard exists in this Circuit
because Relator lacks the “personal knowledge” necessary to qualify. Although Relator has
some personal knowledge regarding the nature of the alleged fraudulent certification—
specifically, knowledge of EPIC software and KHN’s alleged failure to use that software
effectively—such knowledge is not relevant to specific claims analysis. Relator does not claim
that she worked in KHN’s security or billing departments, or that she ever spoke with those
directly responsible for HITECH Act certification. And although her relationship with a KHN
employee likely provided her with additional insight into KHN’s policies and procedures,
Relator never alleges that this relationship gave her the sort of “personal knowledge” found in
cases applying a relaxed standard. See Chesbrough, 655 F.3d 471–72. Thus, Relator lacks the
501 F.3d at 506. Even so, Relator’s proposed amended complaint does not state for which provider(s) in KHN’s
network these employees submitted attestation.
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 18
personal knowledge necessary to “support a strong inference—rather than simply a possibility—
that a false claim was presented to the government.” Id. at 472.
For these reasons, Relator’s complaint and proposed amended complaint fail to satisfy
the “clear and unequivocal requirement that a relator allege specific false claims” when pleading
a violation of the FCA. Bledsoe II, 501 F.3d 504. This deficiency, combined with Relator’s
failure to adequately plead a false claim, leads us to conclude that neither of Relator’s complaints
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also In re
Omnicare, Inc. Sec. Litig., 769 F.3d 455, 469 (6th Cir. 2014) (noting Twombly’s plausibility
requirement applies “to each element of the cause of action”).
C. Res judicata
Although we ultimately agree with the district court’s determination that Relator’s
complaint fails to state a claim, we note that even had we felt differently, Relator’s claims would
likely be barred under the doctrine of res judicata. Thus, like the district court below, we
conclude that res judicata provides an alternative basis for dismissing Relator’s complaint.
Under the doctrine of res judicata, “a final judgment on the merits bars further claims by
parties or their privies based on the same cause of action.” Montana v. United States, 440 U.S.
147, 153 (1979) (citations omitted). When evaluating whether a state-court judgment bars
further claims in a federal forum, “[f]ederal courts must give the same preclusive effect to a
state-court judgment as that judgment receives in the rendering state.” Abbott v. Michigan,
474 F.3d 324, 330 (6th Cir. 2007) (citing 28 U.S.C. § 1738). Thus, because KHN argues that the
Ohio state court’s decision precludes Relator’s federal action, we analyze the preclusive effect of
that decision under Ohio law.
In Grava v. Parkman Township, 653 N.E.2d 226, 229 (Ohio 1995), the Ohio Supreme
Court held that “[a] valid, final judgment rendered upon the merits bars all subsequent actions
based upon any claim arising out of the transaction or occurrence that was the subject matter of
the previous action.” The court explained:
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 19
When a valid and final judgment rendered in an action extinguishes the plaintiff’s
claim pursuant to the rules of merger or bar . . ., the claim extinguished includes
all rights of the plaintiff to remedies against the defendant with respect to all or
any part of the transaction, or series of connected transactions, out of which the
action arose.
Id. (alteration in original) (quoting Restatement (Second) of Judgments § 24(1) (Am. Law Inst.
1982)).
In Hapgood v. City of Warren, 127 F.3d 490 (6th Cir. 1997), we distilled Grava’s holding
into a four-element test for establishing res judicata under Ohio law. There must be:
(1) a prior final, valid decision on the merits by a court of competent jurisdiction;
(2) a second action involving the same parties, or their privies, as the first; (3) a
second action raising claims that were or could have been litigated in the first
action; and (4) a second action arising out of the transaction or occurrence that
was the subject matter of the previous action.
Id. at 493; see also Ohio ex rel. Boggs v. City of Cleveland, 655 F.3d 516, 520 (6th Cir. 2011)
(“The party asserting the defense bears the burden of proof.”). These elements are addressed in
turn.
1. Final decision on the merits
Under Ohio law, “a dismissal grounded on a complaint’s failure to state a claim upon
which relief can be granted constitutes . . . an adjudication on the merits. As a result, res judicata
bars refiling the claim.” State ex rel. Arcadia Acres v. Ohio Dep’t of Job & Family Servs.,
914 N.E.2d 170, 174 (Ohio 2009) (internal quotation marks omitted) (citing Ohio Civ. R. 41(B)).
Here, the Montgomery County Court of Common Pleas dismissed Relator’s state action in its
entirety for “failure to state a claim upon which relief can be granted.” Sheldon v. Kettering
Adventist HealthCare, 2014 CV 03304, at *3 (Montgomery Cty. Ct. Com. Pl. 2014).
Relator argues that this decision was not “final” because her state case involves “new law
that is still under review by an appellate Court, and, most probably, is on its way to the Ohio
Supreme Court however decided.” (Pl.’s Reply Br. at 10.) We addressed a similar argument in
Hapgood. See 127 F.3d at 494 n.3. In Hapgood, a federal district court granted the defendant
summary judgment on the ground of res judicata while the plaintiff’s case in Ohio state court
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 20
was on appeal. Id. Nonetheless, we concluded that “[t]he pendency of an appeal . . . does not
prohibit application of claim preclusion. The prior state court judgment remains ‘final’ for
preclusion purposes, unless or until overturned by the appellate court.” Id. (citing Cully v.
Lutheran Med. Ctr., 523 N.E.2d 531, 532 (Ohio 1987)).
As with Hapgood, the fact that Relator’s state claims were on appeal when the federal
district court entered its judgment does not affect the analysis under res judicata. Thus, the “final
decision on the merits” element is met in this case.
2. Second action involving the same parties
In Ohio, application of res judicata requires the parties to the first action be identical to,
or privies with, those in the second (precluded) action. Johnson’s Island, Inc. v. Danbury Twp.
Bd. of Trs., 431 N.E.2d 672, 675 (Ohio 1982). Ohio courts “have applied a broad definition to
determine whether the relationship between the parties is close enough to invoke the doctrine” of
res judicata. Kirkhart v. Keiper, 805 N.E.2d 1089, 1092 (Ohio 2004). “Thus, a mutuality of
interest, including an identity of desired result, may create privity.” Id. (internal quotation marks
omitted). In this case, both the Ohio and federal actions involve Relator as plaintiff and KHN as
defendant. Moreover, because the Ohio court entered judgment in Relator’s state action before
the federal district court, the federal case became the second action for res judicata purposes.
Relator appears to argue that the parties in her federal and state cases are different
because the state case “has two additional parties (Plaintiff Vicki Sheldon’s daughter and her
grandson) . . . .” (See Pl.’s Br. at 12.) The relevant inquiry for this element, however, is whether
the plaintiff and defendant in the precluded action were opposing parties in the first action; the
presence of additional plaintiffs does not affect the analysis. See, e.g., Awad v. Chrysler Grp.
LLC, No. 11-14082, 2013 WL 5816505, at *7 (E.D. Mich. Oct. 29 2013) (“There can be no
question that Chrysler was a defendant in both actions. That Chrysler is the only defendant in the
subsequent federal court action does not alter the analysis.”); Ray v. Citibank, N.A., No. 256322,
2005 WL 3179677, at *2 (Mich. Ct. App. Nov. 29, 2005) (“It is also undisputed that plaintiff and
defendant were opposing parties in the federal action. Under federal law, it is immaterial for res
judicata purposes that the prior action included additional parties.”). Even if this were not the
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 21
case, the “mutuality of interest, including an identity of desired result” between the parties in
Relator’s federal and state actions, would be sufficient to satisfy this element. Kirkhart,
805 N.E.2d at 1092.
Relator also argues that because res judicata applies only to “subsequent” actions, this
element is not met because her federal case was the first action filed. This misstates the rule: the
relevant inquiry for res judicata is which action resulted in judgment first, not which action was
filed first. See, e.g., Lesher v. Lavrich, 784 F.2d 193, 195 (6th Cir. 1986) (“[F]ederal courts must
give prior state court judgments the same preclusive effect they would have in the courts of that
state.” (emphasis added)). Thus, because the Ohio state court issued its final judgment first,
despite being the second action filed, Relator’s federal case is the “second” or “subsequent”
action for res judicata purposes.
For these reasons, the second element of res judicata is met in this case.
3. The second action arises from claims that were or could have been
litigated in the first action
To apply res judicata in Ohio, it must be true that the claims in the precluded action
“could have been litigated in the first action.” Hapgood, 127 F.3d at 493. As the “could have”
phrasing implies, this element concerns only the legal possibility of bringing the disputed claims
in the previous action. See Hapgood, 127 F.3d at 494; see also Boggs, 655 F.3d at 522–23
(holding res judicata not applicable where disputed claims were not ripe when previous action
commenced); Demsey v. Demsey, 488 F. App’x 1, 5–6 (6th Cir. 2012) (emphasizing that the
disputed claims “could have been” raised in the previous action); Doe ex rel. Doe v. Jackson
Local Sch. Dist., 422 F. App’x 497, 501 (6th Cir. 2011) (holding plaintiff could have litigated
disputed claim in previous action where state’s rules of civil procedure allowed such claims).
In this case, because the Ohio state court action was the first to reach a final adjudication
on the merits, the question is whether Relator could have raised her FCA claim in that action.
Below, the district court assumed that state courts have concurrent jurisdiction over FCA claims.
See generally U.S. ex rel. Sheldon v. Kettering Health Network, No. 1:14-CV-345, 2015 WL
74950, at *6–7 (S.D. Ohio Jan. 6, 2015). Plaintiff did not challenge this assumption in the
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 22
district court and concedes the point on appeal. (See Pl.’s Reply Br. at 11 (“concurrent
jurisdiction is present”).) In a recent case involving similar circumstances, we assumed without
deciding that state courts do possess concurrent jurisdiction over FCA claims. See United States
v. Chrysler Grp., LLC, 571 F. App’x 366, 369 (6th Cir. 2014). We do the same, and therefore
conclude that Relator “could have” brought her FCA claim in her state court action.
Relator argues that bringing her FCA and state tort claims in the same action would have
been tactically inconvenient because “the entire case would presumably have been under seal
and languished for months, without discovery . . . .” (Pl.’s Reply Br. at 7.) We addressed a
similar argument in Wilkins v. Jakeway, 183 F.3d 528 (6th Cir. 1999). In Wilkins, plaintiff’s
counsel argued that splitting FCA claims and other claims “allow[ed] counsel to immediately
commence discovery on those claims which were not sealed.” Id. at 535. Although we
ultimately held res judicata was inapplicable, we also stated:
Although we do not question the veracity of counsel’s intent, the fact remains
that, by bringing two different suits which present two different theories of the
case arising from the same factual situation, counsel has engaged in the precise
behavior the doctrine res judicata seeks to discourage. See generally Restatement
(Second) of Judgments § 24, 25 cmt. a, d (explaining that res judicata
extinguishes all claims arising out of the same transaction of [sic] series of
transactions. As such, a plaintiff is pressured to present all material relevant to
the claim in one action, including any and all theories of the case even where
those theories are based on different substantive grounds.). This type of duplicity
should be avoided at all costs.
Id.
We agree with Wilkins’ reasoning. Notwithstanding any inconvenience to Relator, the
doctrine of res judicata commands attention to the burdens placed on defendants, courts, and the
integrity of judgments by allowing similar claims with identical facts to be re-litigated in a
second forum. See Restatement (Second) of Judgments § 24 cmt. d (Am. Law Inst. 1982)
(“When a defendant is accused of successive but nearly simultaneous acts, or acts which though
occurring over a period of time were substantially of the same sort and similarly motivated,
fairness to the defendant as well as the public convenience may require that they be dealt with in
the same action.”); Wilkins, 183 F.3d at 532 n.4 (summarily rejecting plaintiff’s argument that
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 23
“although both cases could have been litigated in the same action, it is questionable whether they
should have been litigated in the same case”).
For these reasons, the third element of res judicata is met in this case.
4. Same transaction or occurrence as the previous action
Ohio’s res judicata doctrine precludes a second action based on the same “transaction, or
series of connected transactions, out of which the [first] action arose.” Grava, 653 N.E.2d at
229. Quoting the Restatement (Second) of Judgments, Grava held that the second action
involves the same “transaction” if it concerns the same “common nucleus of operative facts.” Id.
(quoting Restatement (Second) of Judgments § 24 cmt. b (Am. Law Inst. 1982)). Although not
quoted in Grava, the full text of the paragraph in the Restatement using the “common nucleus of
operative facts” language states:
[i]n general, the expression [“transaction, or series of connected transactions”]
connotes a natural grouping or common nucleus of operative facts. Among the
factors relevant to a determination whether the facts are so woven together as to
constitute a single claim are their relatedness in time, space, origin, or motivation,
and whether, taken together, they form a convenient unit for trial purposes.
Though no single factor is determinative, the relevance of trial convenience
makes it appropriate to ask how far the witnesses or proofs in the second action
would tend to overlap the witnesses or proofs relevant to the first.
Restatement (Second) of Judgments § 24 cmt. b (Am. Law Inst. 1982).
Importantly, Grava held that this element does not require the claims in both actions to be
identical:
[res judicata] “applies to extinguish a claim by the plaintiff against the defendant
even though the plaintiff is prepared in the second action (1) To present evidence
or grounds or theories of the case not presented in the first action, or (2) To seek
remedies or forms of relief not demanded in the first action.”
653 N.E.2d at 229 (quoting Restatement (Second) of Judgments § 25 (Am. Law Inst. 1982));
see also id. at 382 (“That a number of different legal theories casting liability on an actor may
apply to a given episode does not create multiple transactions and hence multiple claims. This
remains true although the several legal theories . . . would emphasize different elements of the
facts.” (quoting Restatement (Second) of Judgments § 24 cmt. c)). In sum, satisfaction of this
No 15-3075 U.S. ex rel. Sheldon v. Kettering Health Network Page 24
element under Ohio law does not require that both cases involve identical causes of action, proof
of identical elements, or even the presentation of exactly the same evidence. See id. at 382–83.
Yet, in this case, Relator’s state and federal cases are nearly identical: the vast majority
of the allegations in Relator’s state complaint involve either KHN’s failure to adequately utilize
EPIC’s CLARITY reports, or KHN’s alleged violation of HIPAA based on Duane Sheldon’s
improper access to Relator’s e-PHI. These allegations are mirrored in Relator’s federal
complaint. In other words, the allegations underlying Relator’s state and federal claims are
related “in time, space, origin, [and] motivation.” Restatement (Second) of Judgments § 24 cmt.
b (Am. Law Inst. 1982). Moreover, because both the state and federal claims are based on
KHN’s alleged failure to satisfy HIPAA standards, those claims would “form a convenient unit
for trial purposes,” as “the witnesses or proofs in the [federal] action would tend to overlap the
witnesses or proofs relevant to the [state action].” Id.
For these reasons, we conclude that Relator’s state and federal cases share a “common
nucleus of operative facts,” Grava, 653 N.E.2d at 229, and that all four elements of res judicata
are therefore met in this case. Thus, res judicata provides an additional basis for our conclusion
that the district court did not err by dismissing Relator’s complaint and denying her leave to
amend.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order granting Defendant’s
motion to dismiss and denying Relator’s motion to amend. | 01-03-2023 | 03-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3048141/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1016
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Gabriel Angel Moreno-Gonzalez, also *
known as Gordo, also known as * [UNPUBLISHED]
Gregorio Sanchez Gonzalez, *
*
Appellant. *
___________
Submitted: December 1, 2009
Filed: December 9, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Gabriel Angel Moreno-Gonzalez appeals the 120-month prison sentence the
district court1 imposed after he pleaded guilty to conspiring to distribute and to
possess with intent to distribute 500 grams or more of a methamphetamine mixture,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. His counsel has moved to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967).
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
Moreno-Gonzalez pleaded guilty pursuant to a plea agreement that contained
a waiver of his right to appeal his sentence. We will enforce that appeal waiver here.
The record reflects that Moreno-Gonzalez understood and voluntarily accepted the
terms of the plea agreement, including the appeal waiver; the appeal falls within the
scope of the waiver; and we conclude that no injustice would result from enforcing it.
See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc); United
States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (enforcing
appeal waiver in Anders case); see also United States v. Ishkhanian, 2009 WL
3681978, *3-5 (3d Cir. Nov. 6, 2009) (error raised for first time on appeal is reviewed
for plain error; while Federal Rule of Criminal Procedure 11(b)(1)(N) requires district
court to address defendant personally regarding appeal waiver and nothing in plain
language of Rule 11 allows court to delegate this responsibility to government, this
error did not affect defendant’s substantial rights when record showed he understood
and voluntarily waived right to appeal; enforcing appeal waiver); United States v.
Michelsen, 141 F.3d 867, 872 (8th Cir. 1998) (district court’s statement at sentencing
hearing that defendant had right to appeal does not negate appeal waiver).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues for appeal beyond the scope of the
waiver. Therefore, we dismiss the appeal, and we grant counsel’s motion to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063589/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 10, 2009
No. 08-10989 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00002-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN LEVOID SMITH,
a.k.a. Frog,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 10, 2009)
Before EDMONDSON, Chief Judge, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Kelvin Levoid Smith appeals his conviction for being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1). No reversible error has
been shown; we affirm.
On appeal, Smith argues that the district court erred in denying his motions
to suppress (1) guns discovered in his car because no exception applied to the
warrantless search, (2) statements he made before his arrest because he had not
received Miranda1 warnings, and (3) his post-arrest statements because he did not,
in the light of his intoxication, voluntarily waive his Miranda rights. In
considering the district court’s denial of a motion to suppress, we review fact
determinations for clear error and application of law to the facts de novo.2 United
States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). And we construe all facts
in the light most favorable to the prevailing party. Id.
Smith was involved in a car accident in the parking lot of a gas station late at
night. A police officer who approached Smith immediately after the accident
noticed that he was agitated and smelled strongly of alcohol. Smith later had
1
Miranda v. Arizona, 86 S. Ct. 1602 (1966).
2
Smith objected to fact-findings in the magistrate judge’s report and recommendation
about the suppression motions only by noting that “certain facts stated within the report and
recommendation [were] not correct.” See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983) (we review for plain error when a party fails to “specifically identify [the fact] findings to
which he objects” in the magistrate’s report). But as we explain, under either plain or clear error
review, Smith’s arguments fail.
2
difficulty performing field sobriety tests and eventually refused to continue the
tests. Smith was then placed under arrest for driving under the influence (“DUI”).
Officers searched Smith’s car after his arrest, and the search yielded two loaded
guns.
Based on these facts, the warrantless search of Smith’s car was permissible
as a search incident to a lawful arrest. The Fourth Amendment permitted the
officers to search Smith and his car to look for weapons that could be used to
injure police officers and to collect and preserve evidence. United States v.
Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996) (officers lawfully arresting a car
occupant may search the passenger area of the car as a contemporaneous incident
of the arrest). Smith does not contest that his DUI arrest was lawful.
We also conclude that the district court committed no error in failing to
suppress Smith’s statements. The officer who initially approached Smith after the
accident asked him -- without giving him Miranda warnings -- if he had any
weapons on him. Smith responded that he had a gun in his car. The officer’s
question was permissible under the public safety exception to Miranda. See United
States v. Newsome, 475 F.3d 1221, 1224-25 (11th Cir. 2007) (explaining that
Miranda’s public safety exception allows officers to question a suspect without
first Mirandizing him when necessary to protect either themselves or the general
3
public). It was reasonable for the officer to ask Smith about weapons to protect his
own safety and that of others in the area based on Smith’s agitation and his strong
odor of alcohol.
About Smith’s post-arrest statements when he told officers there was a gun
in his car and that he had been drinking, we conclude that he voluntarily waived his
Miranda rights. A waiver of Miranda rights must be knowing and voluntary; and
whether a defendant has waived his Miranda rights is evaluated based on the
totality of the circumstances. United States v. Barbour, 70 F.3d 580, 584-85 (11th
Cir. 1995). Smith was given Miranda warnings upon his arrest and again at the jail
before questioning began. While Smith did not execute a formal waiver, he
voluntarily spoke to officers and made consistent statements, both at the scene and
at the jail. Although Smith had been intoxicated, at least three hours elapsed
between the car accident and the start of the jail interview. And at the interview,
Smith noted that officers had already read his rights to him, appropriately
responded to questions, and even acknowledged that he was sober during the
questioning. Based on the totality of these circumstances, the district court made
no error in determining that the passage of time and Smith’s demeanor during
questioning rendered his waiver of Miranda rights knowing and voluntary.3
3
Smith also contends that he was denied his right to counsel because he asked for a
lawyer during questioning at the jail but officers continued to question him. That Smith did not
4
Smith next argues that the district court erred in admitting evidence of prior
bad acts -- his DUI arrest, the presence of a large amount of cash on his person,
and a powdery white substance in his car -- because this evidence was irrelevant to
the felon-in-possession charge and served only to prejudice him and confuse the
jury. We review a district court’s admission of prior crimes or bad acts under
Fed.R.Evid. 404(b) for an abuse of discretion. United States v. Ellisor, 522 F.3d
1255, 1267 (11th Cir. 2008).
Under Rule 404(b), evidence of uncharged crimes is not admissible to show
proof of bad character. But evidence of uncharged crimes is not extrinsic under
Rule 404(b) if it is (1) an uncharged offense that arose out of the same transaction
as the charged offense, (2) necessary to complete the story of the crime, or
(3) inextricably intertwined with the evidence about the charged offense. Ellisor,
522 F.3d at 1269. And an uncharged crime that explains the context, motive, and
set-up of the crime properly is admitted if linked in time and circumstances with
the charged crime or forms an integral and natural part of an account of the crime.
United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).
unequivocally invoke his right to counsel is clear: he simply mentioned in passing that he had a
lawyer and continued to talk about the incident when officers attempted to clarify his reference
to a lawyer. See United States v. Acosta, 363 F.3d 1141, 1152 (11th Cir. 2004) (questioning
must cease when a suspect expresses a desire to consult with counsel, but request for counsel
must be unambiguous and unequivocal).
5
No abuse occurred on this record. Evidence about the DUI arrest helped
explain to the jury why officers approached Smith, detained him, and searched his
car. The evidence is intertwined and closely linked in time and circumstances with
the felon-in-possession offense: the guns forming the basis for the instant charge
were discovered during the DUI arrest. See id. When officers searched Smith and
his car, they discovered over $4000 in his pocket and a white powdery substance
that appeared to be cocaine in the glove compartment of the car.4 Smith later told
officers that the powdery substance was “candle wax.” This evidence may be
extrinsic to the charged offense, but it served to show more than Smith’s bad
character. The white powder and Smith’s characterization of it showed Smith’s
knowledge of the contents of his car, which included the guns. And the large
amount of cash showed Smith’s motive to protect himself by carrying a gun. See
Fed.R.Evid. 404(b) (listing knowledge and motive as examples of non-propensity
use of character evidence).
Given the helpfulness of the DUI evidence in telling the jury a coherent
story and the probative value of the white powder and money in proving the felon-
in-possession offense, the district court abused no discretion in concluding that any
unfair prejudice resulting from this evidence did not outweigh substantially its
4
The substance later was tested and determined to be a mixture of procaine and caffeine,
a legal substance.
6
probative value. See Fed.R.Evid. 403; United States v. Fortenberry, 971 F.2d 717,
721 (11th Cir. 1992) (the balance between probative value and unfair prejudice
should “be struck in favor of admissibility”).
Smith also challenges the district court’s removal of the only African-
American on the jury. This juror was removed after the close of the evidence at the
behest of the government because she had been asleep through much of the trial.
The district court excused the juror, noting that it had seen her sleeping many times
during the brief trial. We review for an abuse of discretion a district court’s
decision to replace, before jury deliberations, a juror who is unable to perform her
duties with an alternate juror. Fed.R.Crim.P. 24(c); United States v. De La Vega,
913 F.2d 861, 868-69 (11th Cir. 1990). We will not disturb the district court’s
decision without a showing of bias or prejudice, which includes discharge of a
juror “without factual support or for a legally irrelevant reason.” Id. at 869. We
discern no abuse here as the court articulated clearly an acceptable, non-biased and
factually supported reason for excusing the juror: her inability to stay awake during
trial.5
AFFIRMED.
5
On appeal, Smith does not address the court’s reasoning for removing the juror and,
instead, appears to be making a challenge based on Batson v. Kentucky, 106 S. Ct. 1712 (1986).
But Batson -- which applies to peremptory challenges -- is inapplicable to the removal of jurors
under Rule 24(c).
7 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130464/ | 539 U.S. 926
Tenenbaumv.White, Secretary of the Army.
No. 02-1353.
Supreme Court of United States.
June 16, 2003.
1
Appeal from the C. A. 6th Cir.
2
Certiorari denied. Reported below: 45 Fed. Appx. 416. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3063612/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14512 APRIL 8, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00070-CR-ORL-31GJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS RAQUAL WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 8, 2009)
Before BLACK, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Marcus Raqual Williams, a federal prisoner convicted of a cocaine-base
offense, appeals the district court’s denial of his motion for a reduced sentence
under 18 U.S.C. § 3582(c)(2). On appeal, Williams argues the district court erred
in concluding it lacked authority to apply United States v. Archer, 531 F.3d 1347
(11th Cir. 2008), retroactively in a § 3582(c)(2) proceeding.
“We review a district court’s decision whether to reduce a sentence pursuant
to [§ 3582(c)(2)] . . . for abuse of discretion.” United States v. Brown, 332
F.3d 1341, 1343 (11th Cir. 2003). A district court may not modify a term of
imprisonment once it has been imposed except where expressly permitted by
statute or by Fed. R. Crim. P. 35. 18 U.S.C. § 3582(c)(1)(B). One statutory
exception to this general rule includes relief under § 3582(c)(2), which provides:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C.
[§] 994(o), upon motion of the defendant or the Director of the
Bureau of Prisons, or on its own motion, the court may reduce the
term of imprisonment, after considering the factors set forth in
[§] 3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.
18 U.S.C. § 3582(c)(2). “[A] sentencing adjustment undertaken pursuant to
[§] 3582(c)(2) does not constitute a de novo resentencing.” United States v.
2
Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (quoting United States v.
Bravo, 203 F.3d F.3d 778, 781 (11th Cir. 2000)).
Because Archer is not a retroactive guideline amendment promulgated by
the Commission, it cannot establish an independent jurisdictional basis under
§ 3582(c)(2). Accordingly, the district court did not err in determining that it
lacked authority to apply Archer retroactively in a § 3582(c)(2) proceeding.1
AFFIRMED.
1
Williams had previously filed a motion for a reduced sentence under § 3582(c)(2),
requesting a reduction based on Amendment 706 to the Guidelines. The district court denied the
motion because Williams was sentenced based on the career offender provisions of the Guidelines.
Williams did not appeal the denial of that motion, and thus it is not before this Court on appeal.
3 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539130/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/05/2020 01:08 AM CDT
- 566 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. HANSON
Cite as 305 Neb. 566
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Brandon B. Hanson, respondent.
___ N.W.2d ___
Filed April 17, 2020. No. S-19-355.
1. Disciplinary Proceedings: Appeal and Error. Attorney discipline cases
are original proceedings before the Nebraska Supreme Court. As such,
the court reviews a referee’s recommendations de novo on the record,
reaching a conclusion independent of the referee’s findings.
2. Disciplinary Proceedings: Proof. Violations of disciplinary rules must
be established by clear and convincing evidence.
3. Disciplinary Proceedings. The basic issues in a disciplinary proceed-
ing against an attorney are whether discipline should be imposed and,
if so, the appropriate discipline evaluated under the particular facts and
circumstances of the case.
4. ____. With respect to the imposition of attorney discipline in an indi-
vidual case, each attorney discipline case must be evaluated in light of
its particular facts and circumstances.
5. ____. When no exceptions to the referee’s findings of fact in an attorney
discipline case are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.
6. Disciplinary Proceedings: Rules of the Supreme Court. Under Neb.
Ct. R. of Prof. Cond. § 3-501.2(c) (rev. 2016), a “Prepared By” notation
is required only when an attorney actually prepares for a client a plead-
ing, brief, or other document that is to be filed with the court.
7. Attorney and Client: Conflict of Interest: Words and Phrases. The
phrase “conflict of interest” denotes a situation in which regard for one
duty tends to lead to disregard of another or where a lawyer’s repre-
sentation of one client is rendered less effective by reason of his or her
representation of another client.
8. Disciplinary Proceedings: Rules of the Supreme Court. The failure
to include a “Prepared By” notation as required by Neb. Ct. R. of Prof.
- 567 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. HANSON
Cite as 305 Neb. 566
Cond. § 3-501.2(c) (rev. 2016) does not itself constitute a violation of
Neb. Ct. R. of Prof. Cond. § 3-504.3.
9. Disciplinary Proceedings: Intent. Proof of actual intent to deceive or
defraud is not required to demonstrate an attorney engaged in conduct
involving dishonesty, fraud, deceit, or misrepresentation. Instead, the
focus of the inquiry is on the effect of the lawyer’s conduct.
10. Disciplinary Proceedings. The basic issues in a disciplinary proceeding
against an attorney are whether discipline should be imposed and, if so,
the appropriate discipline under the circumstances.
11. ____. Each attorney discipline case must be evaluated in light of its
particular facts and circumstances. For purposes of determining the
proper discipline of an attorney, the Nebraska Supreme Court consid-
ers the attorney’s actions both underlying the events of the case and
throughout the proceeding, as well as any aggravating or mitigat-
ing factors.
12. ____. In an attorney disciplinary proceeding, it is necessary to consider
the discipline that the Nebraska Supreme Court has imposed in cases
presenting similar circumstances.
Original action. Judgment of public reprimand.
Julie L. Agena, Deputy Counsel for Discipline, for relator.
Brandon B. Hanson, pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
This is an original action brought by the Counsel for
Discipline of the Nebraska Supreme Court against attorney
Brandon B. Hanson. This action alleges Hanson violated sev-
eral provisions of the Nebraska Rules of Professional Conduct
and his oath as an attorney by preparing legal documents
for his girlfriend without including a “Prepared By” notation
as required by Neb. Ct. R. of Prof. Cond. § 3-501.2(c) (rev.
2016). At the time, Hanson was employed as the Valley County
Attorney and Hanson’s girlfriend, a former Valley County
employee, was involved in a lawsuit as a self-represented liti-
gant regarding the reasons for her termination from the Valley
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County sheriff’s office. This is the first time Hanson has been
the subject of a disciplinary action.
BACKGROUND
Hanson was admitted to practice law in Nebraska in 2011
and served as the county attorney for Valley County, Nebraska,
from January 2015 to January 2019. At all times relevant to
this case, Hanson was engaged in the practice of law in Ord,
Nebraska, and in a personal relationship with his girlfriend,
C.S. C.S. was previously employed by the Valley County sher-
iff’s office as a jailer/dispatcher, but was involuntarily termi-
nated from her employment in January 2018.
At the time C.S.’ employment was terminated, Hanson was
running for reelection as the Valley County Attorney in a
contested primary election. Hanson’s opponent, Kayla Clark,
established a campaign social media account on which a private
individual, G.B., posted a comment stating C.S. had been ter-
minated from her employment with the sheriff’s office because
she had been intoxicated at work. G.B. was an active supporter
of Clark’s political campaign.
In April 2018, C.S., as a self-represented litigant, filed two
lawsuits in the Valley County Court against G.B., both related
to the social media comment. The documents filed by C.S.
contained indexing notations that were consistent with nota-
tions on other legal documents that had been prepared by
Hanson. On May 2, C.S., as a self-represented litigant, filed an
amended complaint and demand for jury trial with the notation
“Prepared By: Brandon B. Hanson, NSBA #24675.”
On May 29, 2018, the Counsel for Discipline initiated a pre-
liminary inquiry into Hanson’s actions. The inquiry came after
Clark filed a grievance against Hanson, alleging that Hanson
had prepared pleadings for C.S. without including the required
notation, which was a concurrent conflict of interest with his
position as the Valley County Attorney, and that he had used
his political office to harass or intimidate Clark’s supporters.
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Clark also asserted that if Hanson was representing C.S. in
the matter, Hanson had misrepresented that C.S. was a self-
represented litigant.
Valley County was not a party to C.S.’ lawsuit against G.B.
However, on June 5, 2018, G.B. deposed the Valley County
sheriff regarding the reason for C.S.’ termination of employ-
ment and reports made after the termination. Hanson did not
enter an appearance, nor did he represent the sheriff at the
deposition as the Valley County Attorney. A deputy county
attorney for Custer County, Nebraska, was appointed to serve
as counsel for the sheriff.
A subpoena was issued for Hanson’s deposition, individu-
ally, in which G.B. requested Hanson produce legal materials
that he produced on behalf of C.S. in the matter. On July 23,
2018, Hanson filed a motion to quash the deposition on the
grounds of attorney-client privilege. The motion was sustained
after the Valley County Court found that Hanson had prepared
legal documents for C.S. in the case and, thus, that an attorney-
client privilege existed.
The Counsel for Discipline filed formal charges against
Hanson, alleging he violated § 3-501.2(c) (scope of representa-
tion and allocation of authority between client and lawyer) and
Neb. Ct. R. of Prof. Cond. §§ 3-501.7(a) and (b) (rev. 2019)
(conflict of interest and current clients), 3-501.11(c) (special
conflicts of interest for former and current government offi-
cers and employees), 3-503.3(a) (rev. 2016) (candor toward
tribunal), 3-504.3 (dealing with unrepresented person), and
3-508.4(a) and (c) (rev. 2016) (misconduct). The Counsel for
Discipline also alleged Hanson violated his oath of office under
Neb. Rev. Stat. § 7-104 (Reissue 2012).
In his response to the formal charges, Hanson admitted
that he violated § 3-501.2(c) by assisting C.S. in preparing
legal documents without including a “Prepared By” notation.
Hanson also admitted that the violation constituted miscon-
duct under § 3-508.4(a). Hanson apologized for the error. He
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explained that after learning of his mistake, he added the nota-
tion in the amended complaint filed May 2, 2018, and stopped
providing legal assistance to C.S. in the case. Hanson did not
address the allegation that he had violated his oath of office,
but denied the remaining allegations.
An evidentiary hearing was held on the charges. The only
two witnesses called were Hanson and C.S. The referee found
Hanson had violated his oath of office under § 7-104 and
the following rules of professional conduct: §§ 3-501.2(c),
3-501.7(a) and (b), 3-504.3, and 3-508.4(a) and (c).
The referee concluded that Hanson had not violated
§§ 3-501.11(c) and 3-503.3(a). There was no evidence that
Hanson had confidential information regarding C.S.’ termina-
tion, or information regarding G.B., and there was insufficient
evidence to find that Hanson’s failure to notify the court of his
involvement was misleading.
Regarding sanctions, the referee determined that because
Hanson was an elected county attorney, “his assistance to
[C.S.] was an abuse of his public office” and “the need to
deter others is great.” The referee further concluded that self-
represented individuals, such as G.B., are “especially vulnera-
ble to . . . Hanson’s behind-the-scenes assistance to [C.S.]” The
referee recommended Hanson be suspended from the practice
of law for a period of 6 months.
Hanson filed six exceptions to the referee’s report and rec-
ommendation. The relator filed no exceptions.
ASSIGNMENTS OF ERROR
Hanson admits to violating §§ 3-501.2(c) and 3-508.4(a)
by failing to include a “Prepared By” notation. However, he
argues that the facts and law do not support finding viola-
tions of §§ 3-501.7(a) and (b), 3-504.3, 3-508.4(c) or state-
ments made by the referee regarding the need for sanctions.
Hanson also asserts that the recommended 6-month suspension
is excessive.
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STANDARD OF REVIEW
[1,2] Attorney discipline cases are original proceedings
before the Nebraska Supreme Court. 1 As such, the court
reviews a referee’s recommendations de novo on the record,
reaching a conclusion independent of the referee’s findings. 2
Violations of disciplinary rules must be established by clear and
convincing evidence. 3
ANALYSIS
[3,4] The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so,
the appropriate discipline evaluated under the particular facts
and circumstances of the case. 4 With respect to the imposition
of attorney discipline in an individual case, each attorney disci-
pline case must be evaluated in light of its particular facts and
circumstances. 5
[5] When no exceptions to the referee’s findings of fact in
an attorney discipline case are filed, the Nebraska Supreme
Court may consider the referee’s findings final and conclu-
sive. 6 Because the relator filed no exceptions, we consider the
referee’s findings that Hanson did not violate §§ 3-501.11 and
3-503.3 final and conclusive. Likewise, Hanson did not file an
exception to the finding that he violated his oath of office. We
therefore consider the finding that Hanson violated § 7-104 to
be final and conclusive.
1
State ex rel. Counsel for Dis. v. Chvala, 304 Neb. 511, 935 N.W.2d 446
(2019).
2
Id.
3
Id.
4
State ex rel. Counsel for Dis. v. Jorgenson, 302 Neb. 188, 922 N.W.2d 753
(2019).
5
State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995, 893 N.W.2d 694
(2017).
6
Id.
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Scope of Representation.
Section 3-501.2(c) provides:
A lawyer may prepare pleadings, briefs, and other docu-
ments to be filed with the court so long as such filings
clearly indicate thereon that said filings are “Prepared
By” and the name, business address, and bar number of
the lawyer preparing the same. Such actions by the lawyer
shall not be deemed an appearance by the lawyer in the
case. Any filing prepared under this rule shall be signed
by the litigant designated as “pro se,” but shall not be
signed by the lawyer preparing the filing.
Hanson admits to violating this rule by drafting pleadings
and providing legal advice to C.S. regarding her termination
of employment from the sheriff’s office without including the
required “Prepared By” notation. He asserts that he was merely
trying to ensure C.S.’ documents were well drafted and that
his failure to include the notation was an inadvertent mistake.
Hanson also notes that after the mistake had been brought to
his attention, he corrected it on the amended complaint and ter-
minated his assistance to C.S. Although we find that Hanson’s
failure to include the required notation was unintentional, he
clearly violated § 3-501.2(c).
[6] This court is mindful of the increase in self-represented
litigants and the need for limited scope representation.
Attorneys who are willing to answer questions, discuss the
information required on court forms, and provide advice on
how to draft and file legal documents provide an invaluable
resource in promoting greater access to justice. We are not
suggesting that § 3-501.2(c) requires a “Prepared By” stamp
every time a lawyer assists a self-represented litigant in this
way. Rather, under § 3-501.2(c), a “Prepared By” notation is
required only when an attorney actually prepares for a client a
pleading, brief, or other document that is to be filed with the
court. Here, however, Hanson’s involvement was not limited
in this way. He does not dispute that he actually prepared the
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documents in question or that an attorney-client privilege rela-
tionship existed.
Conflict of Interest.
Under § 3-501.7(a),
a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1) the representation of one client will be directly
adverse to another client; or
(2) there is a significant risk that the representation
of one or more clients will be materially limited by the
lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
Section 3-501.7(b) provides:
Notwithstanding the existence of a concurrent conflict
of interest under paragraph (a), a lawyer may represent a
client if:
(1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent representation
to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of
a claim by one client against another client represented
by the lawyer in the same litigation or other proceeding
before a tribunal; and
(4) each affected client gives informed consent, con-
firmed in writing.
The referee found Hanson’s representation of C.S. was a
conflict of interest and, thus, a violation of § 3-501.7(a) and
(b). The referee determined that Hanson had represented C.S.
as a client, based on Hanson’s assertion of attorney-client
privilege. The referee further found that this representation was
a concurrent conflict of interest with Hanson’s employment
as the Valley County Attorney. The referee noted that Valley
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County was not a party to C.S.’ lawsuit against G.B. However,
the referee concluded that preparing pleadings for C.S. and
advising her posed a significant risk that Hanson’s representa-
tion of the county would be materially limited by his duty to
C.S., because the lawsuits involved the reasons for C.S.’ termi-
nation from the Valley County sheriff’s office.
Hanson filed an exception to the referee’s finding that a
conflict of interest existed. Hanson asserted that no conflict of
interest existed, because the relevant lawsuit was not against
Valley County; the lawsuit was between two private indi-
viduals, C.S. and G.B. At oral argument, however, Hanson
acknowledged that his assistance to C.S. was likely a conflict
of interest with his duties as the Valley County Attorney.
[7] The phrase “conflict of interest” denotes a situation in
which regard for one duty tends to lead to disregard of another
or where a lawyer’s representation of one client is rendered
less effective by reason of his or her representation of another
client. 7 Hanson testified that as the county attorney, he pro-
vided advice to county agencies and their officials and spoke to
the sheriff about general employment issues. He also admitted
to assisting C.S. with advice about pleading theories and court-
room decorum in regard to the lawsuits.
While Valley County was not a party to the lawsuit, the
underlying issues focused on C.S.’ termination from the
Valley County sheriff’s office and subsequent statements made
regarding her termination. Further, the Valley County sheriff
was deposed during the litigation, and outside counsel had
been appointed. Based on the evidence presented, along with
Hanson’s own admissions, we find there is clear and convinc-
ing evidence demonstrating that Hanson’s assistance to C.S.
was a concurrent conflict of interest with his representation of
Valley County, in violation of § 3-501.7(a) and (b).
7
State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
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Dealing With Unrepresented Persons.
Section 3-504.3 provides, in relevant part:
In dealing on behalf of a client with a person who is
not represented by counsel, a lawyer shall not state or
imply that the lawyer is disinterested. When the lawyer
knows or reasonably should know that the unrepresented
person misunderstands the lawyer’s role in the matter,
the lawyer shall make reasonable efforts to correct the
misunderstanding.
Hanson argues that failing to include the “Prepared By”
notation does not constitute a statement of disinterest. He fur-
ther asserts that § 3-504.3 was not violated, because he made
no statements to G.B. regarding the case and had no personal
interaction with G.B. to imply that he was disinterested.
The referee found that Hanson’s failure to include the nota-
tion was unintentional and that when Hanson learned of the
failure, he corrected the error. But the referee concluded that
Hanson violated § 3-504.3 after finding Hanson had not noti-
fied G.B. that he was assisting C.S. until he filed the motion
to quash deposition. The referee reasoned that Hanson had
an affirmative duty to inform G.B. of his involvement and
that his failure to do so caused the lawsuit to proceed in a
“fundamentally unfair manner” for G.B. However, the record
demonstrates G.B. was aware of Hanson’s involvement before
the subpoena for deposition was issued.
The initial complaint regarding the lawsuit between C.S.
and G.B. was filed on April 9, 2018. G.B. was notified of
Hanson’s involvement on May 2, when, after learning of his
error, Hanson included the following notation on the amended
complaint: “Prepared By: Brandon B. Hanson, NSBA #24675.”
Hanson’s motion to quash deposition was not filed until July
23. G.B. was clearly aware of Hanson’s assistance to C.S.
prior to Hanson’s assertion of attorney-client privilege, because
the subpoena for deposition issued by G.B. requested that
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Hanson bring the legal documents he had prepared for C.S. to
the deposition.
Moreover, the American Bar Association (ABA) has advised
that an attorney’s failure to disclose behind-the-scenes assist
ance to a pro se litigant “will not secure unwarranted ‘special
treatment’ for that litigant or otherwise unfairly prejudice other
parties to the proceeding.” 8 The ABA has stated that in the
absence of a law requiring disclosure, “[a] lawyer may pro-
vide legal assistance to litigants appearing before tribunals
‘pro se’ and help them prepare written submissions without
disclosing or ensuring the disclosure of the nature or extent of
such assistance.” 9
[8] In this case, there was no evidence presented to refute
Hanson’s claim that he neither made statements to G.B. regard-
ing the case nor had personal interaction with G.B. The failure
to include a “Prepared By” notation does not itself constitute
a violation of § 3-504.3. Therefore, we find that the evidence
presented does not establish a violation of § 3-504.3.
Misconduct.
Pursuant to § 3-508.4, it is professional misconduct for a law-
yer to “(a) violate or attempt to violate the Rules of Professional
Conduct[,] knowingly assist or induce another to do so or do so
through the acts of another; [or] (c) engage in conduct involv-
ing dishonesty, fraud, deceit or misrepresentation.”
Hanson admits that failing to include a “Prepared By” nota-
tion constitutes misconduct under § 3-508.4(a), but denies vio-
lating § 3-508.4(c). He asserts that he merely forgot to include
the notation and that he had no intent to mislead, be dishonest,
or otherwise be deceitful.
8
ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 07-446 at 3
(2007) (discussing undisclosed legal assistance to pro se litigants).
9
Id., Formal Op. 07-446 at 1.
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The referee found Hanson had violated both subsections
(a) and (c) of § 3-508.4. The referee concluded that Hanson’s
failure to notify G.B. of his attorney-client relationship until
being issued a subpoena constituted misrepresentation under
§ 3-508.4(c).
[9] This court has held that proof of actual intent to deceive
or defraud is not required to demonstrate an attorney engaged
in conduct involving dishonesty, fraud, deceit, or misrepresen-
tation. 10 Instead, “[t]he focus of the inquiry is on the effect of
the lawyer’s conduct . . . .” 11
In this case, there was no evidence presented to show that
G.B. was unaware of Hanson’s assistance to C.S. Further, as
discussed above, the record refutes the referee’s conclusion
that Hanson failed to notify G.B. of his involvement prior to
being issued a subpoena.
We find that Hanson violated § 3-508.4(a) by failing to
include the required notation, but we further conclude that
there is insufficient evidence to demonstrate Hanson violated
§ 3-508.4(c). This conclusion is supported by the ABA’s Formal
Opinion 07-446, 12 in which the ABA opined that an attorney’s
failure to disclose the preparation of documents for a pro se
litigant does not constitute conduct involving dishonesty, fraud,
deceit, or misrepresentation.
Sanctions.
[10] The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so,
the appropriate discipline under the circumstances. 13 Neb. Ct.
10
State ex rel. Special Counsel for Dis. v. Shapiro, 266 Neb. 328, 665
N.W.2d 615 (2003).
11
Id. at 336, 665 N.W.2d at 623.
12
Formal Op. 07-446, supra note 8.
13
State ex rel. Counsel for Dis. v. Ubbinga, supra note 5.
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R. § 3-304 provides that the following may be considered as
discipline for attorney misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to
suspension, on such terms as the Court may designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above. 14
To determine whether and to what extent discipline should
be imposed in an attorney discipline proceeding, we consider
the following factors: (1) the nature of the offense, (2) the
need for deterring others, (3) the maintenance of the reputation
of the bar as a whole, (4) the protection of the public, (5) the
attitude of the respondent generally, and (6) the respondent’s
present or future fitness to continue in the practice of law. 15
[11] As stated above, each attorney discipline case must be
evaluated in light of its particular facts and circumstances. 16
For purposes of determining the proper discipline of an attor-
ney, we consider the attorney’s actions both underlying the
events of the case and throughout the proceeding, as well as
any aggravating or mitigating factors. 17
In this case, the evidence establishes that while he was the
county attorney for Valley County, Hanson produced legal
documents for C.S., his self-represented girlfriend, without
14
See, also, Neb. Ct. R. § 3-310(N) (rev. 2019).
15
State ex rel. Counsel for Dis. v. Ubbinga, supra note 5.
16
State ex rel. Counsel for Dis. v. Pivovar, 288 Neb. 186, 846 N.W.2d 655
(2014).
17
State ex rel. Counsel for Dis. v. Island, 296 Neb. 624, 894 N.W.2d 804
(2017).
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including a “Prepared By” notation as required by § 3-501.2(c).
The legal documents were filed by C.S. in the county court for
Valley County between April 9 and May 2, 2018. While Valley
County was not a party to the lawsuit, a concurrent conflict
of interest existed because the issues involved focused on the
reasons for C.S.’ termination from the Valley County sher-
iff’s office.
As mitigating factors, we note that Hanson has had no prior
disciplinary complaints; he was cooperative throughout these
disciplinary proceedings; he has accepted responsibility for his
actions; and there was no evidence of harm to Valley County,
G.B., or C.S. We also find, as did the referee, that Hanson is
fit to practice law, his violations were unintentional and arose
from an isolated incident, he corrected his error when it was
brought to his attention, and he appears to have learned his les-
son. Notably, we find no aggravating factors.
[12] We have said that it is necessary to consider the dis-
cipline that we have imposed in cases presenting similar cir-
cumstances. 18 For cases involving conflicts of interest and no
other violations, the relator correctly notes that this court has
generally imposed just a public reprimand. 19 While this case
also involves the violation of § 3-501.2(c), we recognize the
violation was unintentional, and we have no comparative cases,
because the failure to include a “Prepared By” notation is an
issue of first impression in Nebraska.
Taking into account all of the mitigating factors, the
absence of aggravating factors, the short period of time dur-
ing which the violations occurred, and the unique nature of
this case, we determine that the appropriate sanction is a
public reprimand.
18
State ex rel. Counsel for Dis. v. Seyler, 283 Neb. 401, 809 N.W.2d 766
(2012).
19
See, State ex rel. Counsel for Dis. v. Peppard, 291 Neb. 948, 869 N.W.2d
700 (2015); State ex rel. NSBA v. Frank, 262 Neb. 299, 631 N.W.2d 485
(2001).
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CONCLUSION
This court finds by clear and convincing evidence that
Hanson violated his oath of office and §§ 3-501.2(c), 3-501.7(a)
and (b), and 3-508.4(a) of the Nebraska Rules of Professional
Conduct. It is the judgment of this court that Hanson should
be, and hereby is, publicly reprimanded. Hanson is directed
to pay costs and expenses in accordance with Neb. Rev. Stat.
§§ 7-114 and 7-115 (Reissue 2012) and § 3-310(P) and Neb.
Ct. R. § 3-323(B) within 60 days after an order imposing costs
and expenses, if any, is entered by the court.
Judgment of public reprimand. | 01-03-2023 | 06-05-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2462936/ | 237 F. Supp. 2d 1181 (2002)
GREENPEACE, AMERICAN OCEANS CAMPAIGN, and Sierra Club, Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE, and Donald L. Evans, in his official capacity as Secretary of the Department of Commerce, Defendants,
AT-SEA Processors Association, United Catcher Boats, Aleutians East Borough, and Westward Seafoods, Inc., et al., Defendant-Intervenors.
No. C98-492Z.
United States District Court, W.D. Washington at Seattle.
December 18, 2002.
*1182 *1183 Todd D. True, Adam J. Berger, Patti A. Goldman, Earthjustice Legal Defense Fund, Seattle, WA, Eric Paul Jorgensen, Douglas A. Ruley, Janis Searles, Juneau, AK, Peter Van Tuyn, Jack K Sterne, Trustees for Alaska, Anchorage, AK, for Plaintiff.
Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Samuel D. Rauch, III, US Department of Justice, ENRD Wildlife & Marine Resources, Washington, DC, Michael J. Robinson, Anthony P. Hoang, US Department of Justice, ENRD General Litigation, Washington, DC, Charles R. Shockey, Lyn Jacobs, Wayne D. Hettenbach, US Department of Justice Environment & Natural Resources Division, Washington, DC, for Defendant.
ORDER
ZILLY, District Judge.
I. INTRODUCTION
Plaintiffs Greenpeace, American Oceans Campaign, and the Sierra Club originally filed suit in 1998 challenging the National Marine Fisheries Service's (NMFS) North Pacific Fishery Management Plans for the groundfish fisheries in the Bering Sea and Gulf of Alaska. Plaintiffs claim these fisheries are harmful to the endangered *1184 Steller sea lion and seek relief under the Endangered Species Act, the National Environmental Policy Act, and the Administrative Procedure Act. This litigation has resulted in several prior motions and court rulings on various issues. For a detailed description of the relevant legal and factual background in this case, see Greenpeace v. National Marine Fisheries Service, 55 F. Supp. 2d 1248 (W.D.Wash. 1999) (hereinafter Greenpeace (I)); Greenpeace v. National Marine Fisheries Service, 80 F. Supp. 2d 1137 (W.D.Wash.2000) (hereinafter Greenpeace (II)); and Greenpeace v. National Marine Fisheries Service, 106 F. Supp. 2d 1066 (W.D.Wash.2000) (hereinafter Greenpeace (III)). This litigation has a long history which is outlined later in this Order. The matters presented at this time represent the latest disputes relating to the Steller sea lions.
This matter now comes before the Court on cross-motions for summary judgment related to Plaintiffs' Eighth, Ninth, and Tenth claims stated in Plaintiffs' Supplemental Complaint, docket no. 526. Plaintiffs' Eighth claim challenges the no jeopardy conclusion of the October 19, 2001 biological opinion (2001 BiOp) issued by NMFS. Plaintiffs' Ninth claim challenges the no adverse modification conclusion of the 2001 BiOp. Plaintiffs' Tenth claim challenges the no jeopardy or adverse modification conclusion as to global fishing rates in the November 30, 2000 biological opinion issued by NMFS (FMP BiOp) and the 2001 BiOp. Plaintiffs move for summary judgment on their Eighth, Ninth, and Tenth claims. See docket no. 544. Federal Defendants, the National Marine Fisheries Service and Donald L. Evans, Secretary of Commerce, cross-move for summary judgment on these claims. See docket no. 551. Defendant-Intervenors Aleutians East Borough, Atsea Processors Association, Fishing Company of Alaska, Inc., Groundfish Forum, Westward Seafoods, Inc., et al., and United Catcher Boats also cross-move for summary judgment on the same claims. See docket no. 553.
The Court has reviewed the documents filed in support of and in opposition to the motions together with the relevant administrative record. On October 30, 2002, the Court heard oral argument from the parties on the issues presented by the pending motions. After oral argument, the Court took the matter under advisement. Being fully advised, the Court now GRANTS Plaintiffs' Motion for Summary Judgment as to Claims Eight and Nine and DENIES Plaintiffs' Motion for Summary Judgment as to Claim Ten. For the same reasons, the Court DENIES Defendants' and Defendant-Intervenors' Motions for Summary Judgment as to Claims Eight and Nine and GRANTS Defendants' and Defendant-Intervenors' Motion for Summary Judgment as to Claim Ten. The Court remands the 2001 BiOp to the National Marine Fisheries Service for further action in compliance with this Order.
II. BACKGROUND
The Gulf of Alaska (GOA) and the Bering Sea/Aleutian Islands region (BSAI), collectively referred to as the North Pacific ecosystem, is home to the largest commercial fishery in the United States. The ecosystem is also home to the western population of Steller sea lions. In 1990, the western population of Steller sea lions was listed under the Endangered Species Act (ESA) as a threatened species and in 1997 was reclassified as endangered. This case arises out of the attempt to regulate this fishery in light of the presence of an endangered species and the legal dictates of the ESA and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act), 16 U.S.C. § 1801 et seq. Regulation of this fishery under these dictates has been far from a simple *1185 task, as the extensive litigation history of this case, extending back to the filing of the original complaint on April 15, 1998, and the voluminous administrative record, comprising more than 50,000 pages of documents, amply demonstrate. It is clear to the Court that a tremendous amount of time, energy, and resources have been expended in attempting to end the decline of the western population of Steller sea lions, while maintaining the fishing industry that is so important to the region, on the basis of ever-changing scientific knowledge.
A. A Brief Review of the Procedural Process
Under the Magnuson Act, the North Pacific Fishery Management Council (Council) prepares Fishery Management Plans (FMPs) that regulate all aspects of the commercial fisheries in the North Pacific ecosystem. See 16 U.S.C. §§ 1852(a)(1)(G), (h). The promulgation of FMPs constitutes "agency action" under the ESA.
The ESA imposes upon the National Marine Fisheries Service the duty to "insure" that any proposed action by the Council does not "jeopardize" the continued existence of any threatened or endangered species or result in the destruction or "adverse modification" of the critical habitat of such species.[1]See 16 U.S.C. § 1536(a)(2). A species is "endangered" when it is in danger of extinction throughout all or a significant portion of its range. See 16 U.S.C. § 1532(6). The designated critical habitat of a species is intended to protect those geographical areas occupied by the species which contain the physical and biological features essential for the survival and recovery of the species. See 16 U.S.C. §§ 1532(3), 1532(5)(A)(i); see also 58 Fed.Reg. 45,269 (August 27, 1993) (final rule designating Steller sea lion critical habitat).
In order to avoid jeopardy and adverse modification, the ESA requires that the "action" agency consult with an "expert" agency to evaluate the effects a proposed agency action may have on a listed species.[2] If the action agency determines that a proposed agency action may adversely affect a listed species, the action agency is required to perform a formal consultation with the expert agency. 50 C.F.R. § 402.14(a). The final product of a formal consultation is a biological opinion (BiOp) which states the expert agency's conclusions regarding the possibility of any jeopardy or adverse modification that the proposed action would cause. See 16 U.S.C. § 1536(a)(2). When jeopardy or adverse modification is found, the expert agency must propose "reasonable and prudent alternatives" (RPAs), by which the action can proceed without causing jeopardy or adverse modification. See 16 U.S.C. § 1536(b)(3)(A).
B. A Brief Review of the Agency Actions and Litigation History
In April 1998, Plaintiffs filed suit in this Court initially alleging that NMFS was implementing a North Pacific fishery management plan without a comprehensive Environmental Impact Statement or adequate biological opinions addressing the effect of the fisheries on the Steller sea *1186 lion. See Complaint, docket no. 1. Plaintiffs specifically challenged biological opinions issued by NMFS in January 1996 for the BSAI and in March 1998 for the GOA. On October 9, 1998, this Court stayed the pending litigation because NMFS represented to the Court that it was in the process of preparing a Supplemental Environmental Impact Statement and a new biological opinion that would address all federally managed fisheries in the BSAI and GOA. In December of 1998, NMFS issued two biological opinions addressing the potential effects of the North Pacific groundfish fisheries on the Steller sea lion. The first opinion (BiOp1) discussed the effects of the pollock and Atka mackerel fisheries on the Steller sea lion. The second opinion (BiOp2) considered the effects of the FMP in their entirety. Plaintiffs challenged both of these opinions.
In BiOp1, NMFS concluded that the mackerel fishery was not likely to jeopardize the Steller sea lion population but that the pollock fishery was likely to result in jeopardy. The Court upheld these findings under the ESA. See Greenpeace (I), 55 F. Supp. 2d 1248, 1269 (W.D.Wash.1999). However, the Court ruled that the RPA adopted by the Council and approved by NMFS with respect to the pollock fishery was arbitrary and capricious and remanded to NMFS for preparation of a revised RPA. Id. at 1276. In October, 1999, NMFS issued Revised Final Reasonable and Prudent Alternatives for the pollock fishery.
In BiOp2, NMFS analyzed the effects of its entire fishery management scheme on the Steller sea lion. The Court ruled on January 25, 2000 that BiOp2 was inadequate under the ESA because it was not a comprehensive opinion and failed to analyze the full scope of the FMP. Greenpeace (II), 80 F. Supp. 2d 1137, 1150 (W.D.Wash. 2000). Thereafter, on July 19, 2000, this Court enjoined all groundfish trawl fishing within Steller sea lion critical habitat in the oceans of the BSAI and GOA west of 144~ W longitude.[3] The Court concluded that NMFS was in continuing violation of the ESA and plaintiffs had proven both "irreparable harm" and that continued fishing posed "a reasonably certain threat of imminent harm" to the Steller sea lion. Greenpeace (III), 106 F. Supp. 2d 1066, 1080 (W.D.Wash.2000).
On November 30, 2000, NMFS issued a new biological opinion on the North Pacific groundfish fisheries (FMP BiOp) and the Court dissolved the injunction. See Order, docket no. 486. The FMP BiOp also concluded that the FMP in existence was likely to jeopardize endangered Steller sea lions and adversely modify their designated critical habitat. See S6-249 at 268, 270. Accordingly, NMFS included an RPA to the FMP in the FMP BiOp. Id. at 271-300. The RPA contained within the FMP BiOp imposed a series of heightened regulations on the North Pacific fisheries including the complete closure of two-thirds of Steller sea lion critical habitat to all fishing for pollock, Pacific cod, and Atka mackerel, seasonal catch limits within the remainder of critical habitat to spatially distribute the fishing, and a system of four seasons inside critical habitat and two seasons outside critical habitat to temporally redistribute the fishing. Id. at 271-72.
After the issuance of the FMP BiOp, a rider was placed on an appropriations bill limiting the implementation of the RPA. See Consolidated Appropriations Act, 2001, Pub.L. No. 106-554, § 1(a)(4), [Div. A, § 209], 114 Stat. 2763, 2763A-176 (2000). The legislation required NMFS and the *1187 Council to consult and review the measures necessary to protect the Steller sea lion and its critical habitat. As a result of this legislation the Council proposed a number of changes to the RPA in the FMP BiOp to be implemented through the Magnuson Act procedures (Amended RPA). The Amended RPA reopened areas of critical habitat to fishing previously closed by the RPA, eliminated the four season dispersal of fishing within critical habitat except for pollock, and removed many of the spatial distribution measures implemented in the RPA. S8-549, Table 3.1 at 39-42, Table 5.4 at 153.
Because of the passage of legislation, and its effect on implementation of the RPA in the FMP BiOp, the parties agreed to temporarily stay litigation. On March 6, 2001, the Court entered a Stipulation and Order staying this litigation until June 15, 2001. NMFS subsequently announced that it intended to reinitiate consultation on the FMPs and release a new biological opinion on October 19, 2001. The Court therefore entered a Stipulation and Order continuing the stay until November 1, 2001.
NMFS reviewed the Amended RPA and issued a new biological opinion on October 19, 2001 (2001 BiOp). The 2001 BiOp was limited to a review of the Amended RPA and did not reconsider the original jeopardy and adverse modification conclusion of the FMP BiOp. The 2001 BiOp found that the Amended RPA was not likely to jeopardize the continued existence of the western population of Steller sea lions or adversely modify their critical habitat. See id. at 185. The 2001 BiOp states in part that the FMP BiOp "will remain in effect as NMFS' coverage at the plan level, and this opinion will address the project level effects on listed species that would be likely to occur if the Council's preferred action were implemented." Id. at 8. Thus, the 2001 BiOp supplements, but does not replace the FMP BiOp. Therefore, the Court must review both biological opinions to resolve the pending motions.
III. ANALYSIS
A. Standard of Review
Challenges to biological opinions issued pursuant to Section 7 of the ESA, 16 U.S.C. § 1536, are reviewed under the Administrative Procedures Act (APA) to determine whether the biological opinion was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). A biological opinion is arbitrary and capricious if it fails to articulate a satisfactory explanation for its conclusions, relies on factors which Congress did not intend for it to consider, or fails to consider an important aspect of the problem. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). Courts will defer to an agency's technical or scientific expertise. See Central Ariz. Water Conservation Dist. v. United States EPA, 990 F.2d 1531, 1540 (9th Cir.1993); United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989). However, this deference is not unlimited, and the presumption of expertise may be rebutted if the agency's decisions are based on science but are shown to be not reasonable. Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679 (D.D.C.1997); N. Spotted Owl v. Hodel, 716 F. Supp. 479, 482 (W.D.Wash.1988).
B. Claim Ten of the Supplemental Complaint
Claim Ten of the Supplemental Complaint alleges that the FMP BiOp and the 2001 BiOp are arbitrary and capricious because they determined that jeopardy and adverse modification would not result until key Steller sea lion prey populations were reduced below the target population *1188 level established in current FMPs. Plaintiffs make two arguments in their motion for summary judgment as it relates to Claim Ten of the Supplemental Complaint. Plaintiffs argue that the FMP BiOp's conclusion that the overall harvest rates set forth in the FMP will not cause jeopardy or adverse modification to the Steller sea lion critical habitat is arbitrary and capricious. Second, Plaintiffs contend that the global control rule as set forth in the RPA is arbitrary and capricious because it will not prevent jeopardy or adverse modification. Defendants contend that Plaintiffs' claims are without merit and that Claim Ten of the Supplemental Complaint should be dismissed.
1. Overall Harvest Rates
Plaintiffs' first challenge is to the conclusion of the FMP BiOp, which is incorporated in the 2001 BiOp, that the overall level of fishing allowed under the status quo fishery management plan does not jeopardize the continued existence of Steller sea lions or adversely modify their critical habitat. The FMP BiOp concluded that there was "no significant, relevant evidence that the current exploitation strategy (which reduces the biomass to between 40 and 60% of the predicted unfished biomass)[4] adversely affects listed species by reducing their likelihood for survival and recovery in the wild." S6-249 at 250. Plaintiffs contend that this conclusion is arbitrary and capricious because it is not supported by data within the FMP BiOp and runs contrary to the FMP BiOp's concomitant finding that "biomass reductions of Steller sea lion prey species, along with other factors such as climate change, natural predators, etc., were a significant contributing factor of the reduction and current decline of the population of Steller sea lions." Id. at 259. Nonetheless, the FMP BiOp goes on to state that "the current strategy maintains biomass at acceptable levels." Id. These two statements appear at first glance to be contradictory, but are not necessarily irreconcilable.
Although the Court "may not supply a reasoned basis for the agency's action that the agency itself has not given," Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S. Ct. 438, 42 L. Ed. 2d 447 (1974) (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947)), the Court should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman, 419 U.S. at 286, 95 S. Ct. 438. Plaintiffs contend that the FMP BiOp's analysis of total catch rates is "limited to a single paragraph." Plaintiffs' Motion for Summary Judgment, docket no. 544, at 15. This argument fails to view the FMP BiOp as a complete document and fails to take into consideration the other conclusions of the FMP BiOp. The FMP BiOp extensively reviewed the population trends of the Steller sea lion and the overall fishing rates, and concluded that the manner in which the current fishing strategy contributed to the decline of the species was not by reducing overall biomass, but by causing localized depletions, temporally and spatially within the Steller sea lion's critical habitat, which nutritionally stresses Steller sea lions.
The conclusion that the harm to the Steller sea lion derives from concentrated localized fishing in critical habitat areas and not from global depletion of prey species has been the assumption and *1189 conclusion of NMFS beginning with the Steller sea lion critical habitat designation in 1993. See AR 5 at 3, 58 Fed.Reg. 45,269, 45,271 (Aug. 27, 1993) ("At present, NMFS believes that the exploitation rates in federally managed fisheries are unlikely to diminish the overall abundance of fish stocks important to Steller sea lions. However, spatial and temporal regulation of fishery removals in some areas has been determined to be necessary to ensure that local depletion of prey stocks does not occur."); AR 114 at 236, Report by National Research Council (stating that it is unlikely that the total rate of depletion of pollock has been responsible for a decrease in mammals and that "[i]t is more likely that marine mammals and birds have been affected by the distribution in space and time of fishing effort on pollock ...."). These assumptions were reviewed and challenged as part of the process of developing the FMP BiOp. See, e.g., S6-99 at 2 (discussing the assumptions made regarding overall harvest in the 1998 BiOp and concluding that the assumption that total allowable catch is irrelevant "dramatically underestimated the potential adverse effects of the fisheries on the marine ecosystem of the North Pacific"); S6-123 (asking, "On what basis does sustainable fisheries insure that such a reduction in prey does not have serious effects on listed species, critical habitat, or the ecosystems?").
In light of the questions raised regarding this baseline presumption that the 40-60% reduction in spawning biomass was not detrimental to the Steller sea lions, an Analytical Team was formed to analyze this and other presumptions of the FMP BiOp. See S6-126. The Analytical Team concluded that as "the current groundfish prey stock size is at 58% of the unfished level while the abundance of [Steller sea lion] is about 22% of their assumed original carrying capacity ... it is unlikely that the current overall abundance levels of groundfish are restricting [Steller sea lion] carrying capacity." S6-160 at 6. Additionally, the Analytical Team considered ecosystem wide effects of prey removal and concluded that current science indicates that "under the status quo regime, there has not been clear evidence of fishing as the cause of species fluctuations through food web effects" and "no evidence that groundfish fisheries caused declines" in diversity. Id. at 32, 36. The conclusions of the Analytical Team support the FMP BiOp's assumption that overall harvest rates are not the cause of Steller sea lion population decline.[5]
The FMP BiOp also includes a Steller sea lion case study estimating prey availability for Steller sea lions based on the 1999 prey biomass estimates. S6-249, App. 3. The case study supports the conclusion that the current overall harvest rates do not adversely affect the Steller sea lions. It concluded, in part, that estimates of food requirements for the sea lion population "are below available biomass even at current fishing mortality. . . ." S6-249 at 226. This conclusion was reached by estimating the monthly amount of prey availability in the North Pacific Ecosystem and comparing it to monthly estimates of sea lion prey consumption. See S6-249, App. 3 at 1-2. The comparison demonstrated that "the available data on monthly consumption requirements relative to the total biomass of three important prey species in critical habitat are consistent with the conclusion that forage availability (without consideration regarding species *1190 composition or spatial distribution) is adequate to support the recovery of Stellar sea lions to optimal population levels." Id. at 2. The case study's ultimate conclusion was that:
Based on the available information, it is reasonable to expect the groundfish fisheries do compete with non-human consumers in the marine ecosystem in the BSAI and GOA. However, this competition occurs as a result of the temporal and spatial behavior of the fishing fleet, and removals by this fleet on a local level, not as a result of a decrease in total prey availability due to the reduction of total fish biomass.
Id. at 4. The 2001 BiOp continues this discussion and states that a review of the current estimates of Steller sea lion population and prey availability "could lead one to conclude that there is sufficient forage in the Gulf of Alaska, Bering Sea, and Aleutian Islands, combined, to support a healthy stock of Steller sea lions." S8-549 at 166.[6]
Plaintiffs direct the Court to remarks by other contributors and reviewers challenging this assumption and conclusion of the FMP BiOp. One reviewing scientist criticizes the finding by arguing that it does not account for the fact that a reduction of overall prey will force predators to expend greater resources catching prey even where there is sufficient prey to be caught. S8A1-851 at 1-2. Although this criticism may be valid, it does not make NMFS's decision to rely on the opposite conclusion arbitrary and capricious. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.").
Accordingly, the Court concludes that the FMP BiOp's determination that the Overall Harvest Rates do not cause jeopardy or adverse modification is not arbitrary and capricious.
2. Global Control Rule
Plaintiffs contend that even if NMFS's no jeopardy or adverse modification conclusion regarding the overall harvest rates is not arbitrary and capricious, the global control rule set out in the Amended RPA is arbitrary and capricious. The global control rule is a protective measure that alters the allowable biological catch ("ABC") of pollock, Pacific cod, and Atka mackerel on a sliding scale basis as projected prey stocks drop. The goal of the global control rule is to prevent a decline in total biomass to a level that would jeopardize Steller sea lions. The dispute between Plaintiffs and Defendants is whether the global control rule set out in the Amended RPA is sufficiently stringent to keep prey stocks from dropping to an overall level that would cause jeopardy or adverse modification.
The global control rule in effect at the time of the FMP BiOp began reducing fishing when prey stocks fell below 40% of unfished levels, and prohibited fishing when prey stocks fell to a projected theoretical level of 2% of unfished levels. S6-249 at 212, 259; S6-160 at 26-28. In the Amended RPA, NMFS set out a revised global control rule which starts limiting the amount of fishing when estimated prey stocks are less than 40% of unfished biomass, and bans all fishing when stocks drop to 20% of unfished levels.[7] S8-549 at *1191 24-25. Plaintiffs argue that this rule is inadequate because the FMP BiOp and the 2001 BiOp conclude that fishing which reduces prey biomass to below 40% of unfished levels will not insure protection of the Steller sea lion. Defendants assert that the biological opinions never concluded that a drop below 40% would cause jeopardy or adverse modification. Defendants argue that the global control rule in the Amended RPA is consistent with the conclusion that jeopardy or adverse modification would occur only if fishing stocks drop to an unknown level that is below 20% of unfished levels.
The FMP BiOp states that "biomass reductions of important groundfish species below 40% of their unfished level would not insure the protection of listed species or their environment." S6-249 at 250-51. The FMP BiOp also states that although current fishing strategies had maintained biomass at acceptable levels, "the current harvest control rule in use by NMFS allows for significant variation below the target biomass level.... [T]he fishery could be conducted to the point that only 2% of the unfished biomass remained." Id. at 259. Accordingly, in the FMP BiOp RPA, the FMP BiOp concluded that the global control rule had to be revised to prevent "directed fishing for a species when the spawning biomass is estimated to be less than 20% of the projected unfished biomass." Id. at 271. The FMP BiOp RPA concluded that because "fishing for pollock, Pacific cod and Atka mackerel under this control rule would cease at a population size 10 times larger than under current practices," it should "ensure that adequate levels of each prey species are maintained for Steller sea lions." Id. at 273.
Plaintiffs contend it was arbitrary and capricious for NMFS not to ban all fishing when projected spawning biomass falls below 40% of unfished levels. Plaintiffs' argument hinges on the statement in the FMP BiOp that "biomass reductions of important groundfish species below 40% of their unfished level would not insure the protection of listed species or their environment."[8]Id. at 250-51. Plaintiffs, however, take this statement out of context. The previous sentence states that the current fishing strategy (referring to the 1999 plan), which sought to maintain prey stocks at an average of 40% of unfished levels, did not adversely affect Steller sea lions. Id. at 250. The statement on which Plaintiffs rely was summary language placed at the start of a lengthy discussion regarding the current harvest strategy. The FMP BiOp concluded that the current harvest strategy maintained target biomass at an acceptable level. Id. at 259. Thus, the statement does not say that any reduction of biomass below 40% would cause jeopardy or adverse modification, but that a fishing strategy that attempted to have a target fishing level below 40% would not be sufficiently protective. Plaintiffs' attempt to *1192 conflate the FMP BiOp's conclusion regarding the lowest target fishing level needed to insure protection with a conclusion that all fishing must be banned when stocks drop below 40% of unfished levels is faulty. The goal of the global control rule is to have the "forage base of a particular prey item [be] on average above 40% of unfished biomass," S6-864 at 2, and thus the conclusion that a modified amount of fishing can continue after stocks fall below 40% of unfished levels is not arbitrary and capricious. Although NMFS stated that "take"[9] of Steller sea lions could be expected to occur below a biomass level of 40%, S6-249 at 259, "take" is not the same as a jeopardy or adverse modification conclusion, which requires a separate inquiry. See id. at 258-59. Moreover, scientists discussing the global control rule worked from the assumption that the 40% line was not a jeopardy or adverse modification line. S6-854; S6-855.
Plaintiffs argue that the ban on fishing when prey stocks reach 20% of unfished levels is arbitrary and capricious because NMFS failed to explain why it drew the line at 20%. Defendants argue that the 20% line is adequate to insure against jeopardy and adverse modification. Defendants argue that 20% was chosen because it was so high that jeopardy or adverse modification could not possibly result. Transcript, docket no. 571, at 69.
The administrative record provides some support for Defendant's argument. The FMP BiOp states in the RPA that a global control rule that requires fishing to stop at a population size 10 times larger than under current practices "should ensure that adequate levels of each prey species are maintained for Steller sea lions." S6-249 at 273. One member of the RPA team stated in an email that "the [Steller sea lion] population will be in jeopardy of continued existence from a perspective of the `F40' strategy alone should the forage level drop to where it would no longer support a population as large as 20,000 animals (i.e., a 0.2 ratio of fish biomass current to unfished biomass)." See S6-864 at 2 (Email from Dr. DeMaster). Although the administrative record does not clearly state when jeopardy or adverse modification would occur, Plaintiffs acknowledged at oral argument that the ESA does not require NMFS to actually declare such a line. Transcript, docket no. 571, at 92. Therefore, given that the global control rule at the time of the FMP BiOp did not prohibit fishing until prey stocks reached 2% of unfished levels while the Amended RPA bans fishing at a figure ten times the previous amount, and given that no jeopardy or adverse modification could be expected to occur until prey stocks fell below 20% of unfished levels, the Court finds that the 20% line chosen by NMFS is not arbitrary and capricious. The Court finds that the 20% line is sufficiently high to insure that no jeopardy or adverse modification will occur. The Court notes that currently no prey stocks are even near 20% of their unfished levels.
Because the Court has determined that the FMP BiOp's conclusion that the overall harvest rates will not cause jeopardy or adverse modification to the Steller sea lion critical habitat was not arbitrary and capricious, the Court does not find that the global control rule violates the ESA. This strategy is a prudent and reasonable action in light of the uncertainties surrounding the impacts of overall decreased prey availability.[10]
*1193 For the foregoing reasons, the Court DENIES Plaintiffs' Motion for Summary Judgment and GRANTS Defendants' and Defendant-Intervenors' Cross-Motions for Summary Judgment as to Claim Ten of the Supplemental Complaint, docket no. 526.
C. Claims Eight and Nine 2001 BiOp Conclusions Regarding Jeopardy and Adverse Modification
The ESA requires NMFS to "insure that any action ... is not likely to jeopardize the continued existence of any endangered species ... or result in the destruction or adverse modification of habitat or such species." 16 U.S.C. § 1536(a)(1). Plaintiffs argue that NMFS acted arbitrarily and capriciously in concluding in the 2001 BiOp that the 2001 proposed amendments to the FMP BiOp RPA are not likely to adversely modify the designated critical habitat of the western population of Steller sea lions or jeopardize the continued existence of the Steller sea lions. First, Plaintiffs contend that the "zonal approach" applied in the 2001 BiOp is arbitrary and capricious because it relies upon conclusions that scientific data does not support. Plaintiffs further argue that insofar as the no jeopardy and no adverse modification findings relied on the DeMaster Study, S8-650, they are arbitrary and capricious. Second, Plaintiffs argue that the 2001 BiOp failed to assess or analyze the likely effects on Steller sea lions and their prey that the level of fishing allowed under the Amended RPA in critical habitat causes. Each of these arguments relates equally to claims Eight (relating to the no jeopardy conclusion of the 2001 BiOp) and Nine (relating to the no adverse modification conclusion of the 2001 BiOp) of the Supplemental Complaint.[11]
1. Zonal Approach
The driving force behind the Amended RPA was a determination that different areas of critical habitat are of varying levels of importance to Steller sea lions, based on how much Steller sea lions use each area. See S8-549 at 18 ("This opinion focuses on the modifications to the FMP because they were developed to be in lieu of the previous RPA.... [G]iven the new biological information of Steller sea lions, [the conclusion was reached] that there were other possible ways to avoid jeopardy and adverse modification for sea lions and their habitat."). The Amended RPA was developed and reviewed under a "zonal approach" to management. This zonal approach was developed in large part on the basis of telemetry data.[12]Id. at 139 ("The results from current telemetry analyses ... provide a basis to begin evaluating sea lion foraging ecology at a level of detail not previously possible.").
*1194 Using telemetry data to track Steller sea lion locations, NMFS concluded that 75% of Steller sea lion foraging effort occurs within 10 nm of shore and only 25% occurs beyond the 10 nm zone.[13] Based on this data, NMFS for the first time designated varying importance levels to different areas of critical habitat. Id. at 142-144, Table 5.2 at 145. Thus, critical habitat from 0-3 nm was rated as of "high" concern, 3-10 nm was also of "high" concern, 10-20 nm was of "low to moderate" concern, and beyond 20 nm was of "low" concern. Id., Table 5.2 at 145. The 2001 BiOp also re-evaluated the importance of spatial, temporal, and global effects of fishing. Id. Spatial dispersion (outside 10 nm) was rated of "low" concern, temporal dispersion (outside 10 nm) was rated of "low to moderate" concern, and global fishing effects were rated of "moderate" concern. Id.
Plaintiffs challenge the development and use of the "zonal approach" as an effective tool to evaluate conservation methods. Plaintiffs contend that the data NMFS relies upon does not support the conclusions drawn under the "zonal approach" regarding the relative importance of each segment of critical habitat. Plaintiffs argue, therefore, that any fishing plan which relies upon the varying importance of different areas of critical habitat is arbitrary and capricious. Defendants assert that the new telemetry data is sufficient to support the conclusions drawn in the 2001 BiOp, and that the Court is required to give deference to the conclusions of the agency's experts in regard to this data. Plaintiffs raise two arguments regarding the telemetry data: (a) the telemetry data relied upon by NMFS did not present any new insight into Steller sea lion behavior but simply confirmed facts already known and therefore cannot be rationally related to a different view of critical habitat, and (b) NMFS ignored the significant caveats placed on the data by the scientists presenting the data and therefore failed to rationally relate the facts found in the data to the choices made in developing the Amended RPA. Defendants respond that the data provided more insight and knowledge as to Steller sea lion foraging habits and is rationally connected to the conclusions drawn. Defendants also argue that NMFS discussed and properly evaluated each of the caveats connected to the data.
a. Is the Telemetry Data Sufficiently "New" in Order to Support the New Conclusions Regarding Critical Habitat?
Plaintiffs argue that the zonal approach is arbitrary and capricious because it is based on information that was previously known to NMFS. Plaintiffs contend that when the agency alters its earlier conclusions, it must produce evidence that supports a change, and if there is no new data or evidence, any change is arbitrary and capricious. Plaintiffs rely on Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983), in which the Court held that "an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance." Plaintiffs admit, however, that all of the telemetry data considered in the 2001 BiOp was not available to NMFS in earlier opinions. See Plaintiffs' Motion for Summary Judgment, docket no. 544, at 29. Plaintiffs' argument is that the additional *1195 data did not "provide[] a substantially different picture of Steller sea lion use of habitat than that previously known and understood by NMFS ... [and] simply served to reinforce the agency's previous conclusions." Id.
Plaintiffs' argument lacks merit because the zonal approach does not fundamentally alter any prior conclusions NMFS made. In prior biological opinions, NMFS treated all critical habitat in the same manner, although NMFS recognized that there was a possibility that not all critical habitat was of the same importance to Steller sea lions. See, e.g., S6-249 at 95-96. The additional cumulative knowledge presented in the telemetry data for the first time in the 2001 BiOp led NMFS to conclude that critical habitat ought to be divided into sections. NMFS did not reverse or rescind earlier scientific conclusions, but merely concluded on the basis of additional knowledge which did not contradict earlier considerations that a more refined approach to reviewing impacts on critical habitat was possible.
The administrative record demonstrates that the satellite telemetry data available in 2001 was sufficiently "new." The 2001 BiOp states:
There is considerable information contained in the telemetry data already collected, and more coming in daily from recent deployments. Numerous manuscripts are in preparation, which reflect a range of hypotheses and opinion on the utility of such data. In many ways this biological opinion is on the leading edge, utilizing all of the newly available data to make the best determination we can to provide for the survival and recovery of Steller sea lions.... NMFS must use the best available scientific and commercial data to determine whether the proposed action is likely to jeopardize the continued existence of Steller sea lions or destroy or adversely modify their critical habitat.
S8-549 at 142. The 2001 BiOp acknowledges that satellite telemetry data was considered in the FMP BiOp, but "the level of analysis at that time was very coarse." Id. at 135; see S6-249 at 87-88. The 2001 BiOp goes on to state that at the time of the FMP BiOp, the "level of detail for the analysis was at a fairly broad level of critical habitat, and provided little information for treating different parts of critical habitat in different ways. This information was crucial in making the determination that all of critical habitat should be protected in a substantial way." S8-549 at 137. During the RPA Committee[14] process used to develop the Amended RPA, several presentations regarding telemetry data were given to the RPA Committee. Id. at 137-39. These presentations included analyses of data that had not been available earlier. Id. at 139. The conclusions that led to the zonal approach were based "on these new preliminary reports" that analyzed the data. Id.
The 2001 BiOp provides a rational explanation for how the new analysis led to the further refinement of conclusions to be drawn from telemetry data. It clearly states in conclusion that:
The results from current telemetry analyses by NMML, ADF & G, and Dr. Andrews provide a basis to begin evaluating sea lion foraging ecology at a level of detail not previously possible. Although most of this data was available during the drafting of the FMP biological opinion, the analyses described here were not. As described above, NMFS *1196 previously considered all critical habitat to be equally as important to sea lion foraging. In other words, we knew animals spent a lot of time close to shore, but weren't able to quantify that amount. Preliminary analyses of the frequency and distribution of sea lion locations is described in ADF & G and NMFS (2001), which provides a rudimentary attempt to relate sea lion distribution with foraging effort in order to estimate competitive overlap with fisheries.
Id. Accordingly, the Court concludes that using telemetry data in the 2001 BiOp to evaluate impacts on critical habitat was not arbitrary and capricious.
b. Did NMFS Properly Review the Caveats Placed on the Telemetry Data?
Plaintiffs argue that the 2001 BiOp improperly concluded that the telemetry data represents foraging sites of the Steller sea lions. There does not appear to be any dispute that the telemetry data is the "best available science" for tracking where Steller sea lions are located. The dispute is whether it is sufficient evidence to make a rational determination of where Steller sea lions forage. In addition, Plaintiffs contend that the conclusions reached ignore the limitations placed on the data by the nature of satellite telemetry. Plaintiffs' argument is that NMFS ignored the caveats that the scientists placed on the data and analyses, thereby making NMFS's conclusions arbitrary and capricious.
(i) Location vs. Foraging
The 2001 BiOp notes that the author of the telemetry studies "pointed out the danger of using the telemetry data to estimate the percentage of time the instrumented sea lions may have spent at specific distances from shore, and then further inferring from that information the spatial distribution of foraging bouts." S8-549 at 137-38. Additionally, the 2001 BiOp notes that another "preliminary study demonstrated that observations of where sea lions travel and dive do not necessarily allow one to distinguish productive feeding areas from unproductive ones." Id. at 138. In using the telemetry data to make conclusions regarding the importance of different areas of critical habitat, NMFS recognized that contrary to these caveats, "[t]he critical assumption that must be made here is that the observed at-sea distributions are indicative of sea lion foraging" and as "NMFS has no indication that disproportionate benefits would accrue from foraging at various distances from land, therefore drawing from the information above that roughly 75% of the at-sea distributions occur within 10 nm from shore, we can then speculate that about 75% of the foraging effort occurs within 10 nm from shore ...." Id. at 139. Basically, NMFS recognized that the telemetry data does not necessarily describe foraging behavior accurately. However, because there is no information that Steller sea lions forage more extensively or successfully further from shore, NMFS found it reasonable to attribute equal foraging success to each of the areas where Steller sea lions are found. Thus, if Steller sea lions forage equally successfully in both the areas of 0-10 nm and 10-20 nm from shore, and spend approximately three times longer in the 0-10 nm zone, NMFS found it reasonable to conclude that the 0-10 nm zone is three times as important to the Steller sea lions. Id.
The fundamental disconnect between Plaintiffs and Defendants is in their interpretation of the telemetry studies. Defendants state that they are acting conservatively by equating every site with foraging, and that clearly Steller sea lions could not be foraging where they never go. Plaintiffs argue that because there is no evidence that nearshore locations constitute *1197 foraging areas, it is equally likely that all foraging takes place outside the 0-10 nm zone or that equal amounts of foraging take place in each zone, so NMFS should not assume that every location is a foraging location. In response to this caveat that location does not necessarily equate with foraging, Defendants have supplied a rational explanation for how and why they chose to ignore the caveat. NMFS states that the telemetry data is the best science available for evaluating foraging areas and that there is no science available to show whether "there are areas of ocean, a time of day or distance from land that is more or less important or effective for a foraging Steller sea lion." Id. Plaintiffs argue that the Court should find their reading of the data to be more reasonable; however, that is not the Court's responsibility. The Court concludes that NMFS's conclusions are supported in the record and were not arbitrary and capricious.
(ii) Nearshore Bias
The caveat that location does not necessarily correspond to successful foraging is only the first of the caveats regarding the telemetry data. The caveat NMFS described in the 2001 BiOp as "one of the most confounding" is that "Steller sea lion at-sea behavior is considered to be different near haulouts and rookeries than it is further offshore." Id. at 139. Steller sea lion nearshore behavior involves spending a great deal of time on the surface, allowing the telemetry transmitters to transmit data. Id. at 139-40. The offshore activity tends to include more deep diving behavior, during which the transmitters would be unable to transmit location data. Id. at 140. Thus, this differing behavior pattern creates a bias in the data because of the nature of satellite telemetry.[15] Steller sea lion location data will only be recorded for those areas in which a Steller sea lion stays above water or resurfaces repeatedly during a ten-minute period. Telemetry data will thus fail to record location data for much offshore activity.[16] Accordingly, "the probability of obtaining at-sea locations near haulouts and rookeries is likely higher than when [the Steller sea lions are] further offshore," thereby biasing the data towards a finding that more foraging occurs nearshore. S8-576 at 13. In an effort to account for this bias, the authors of the telemetry study filtered the data by discounting 90% of the at-sea locations from the 0-2 nm zone. Id.; S8-549 at 140.
This filtered data was considered in the 2001 BiOp, but did not alter the 2001 BiOp's conclusion that the 0-10 nm zone was of greater importance to Steller sea lions. S8-549 at 141 (stating that both the filtered and unfiltered data demonstrate that the 0-3 and 3-10 nm zones were the most important based on Steller sea lion locations, "except for adults in winter and pups and juveniles in summer"). However, a closer look at the filtered data in fact demonstrates that in summer the 3-10 nm zone and the 10-20 nm zone are of approximately the same importance (14.9% of observations *1198 vs. 12.6% of observations) for pups and juveniles, and that more than 50% of the at-sea locations for pups and juveniles in the summer were outside of the 0-10 nm zone. Id. at 142, Table 5.1b. Similarly, for adult Steller sea lions in winter the amount of time spent in the 3-10 nm zone (14.7%) was roughly equivalent to the amount spent in the 10-12 nm zone (11.8%), and more than 50% of the at-sea locations were outside the 0-10 nm zone. Id.
Defendants argue that the categories of pups and juveniles in summer and adults in winter should not be considered when drawing conclusions from telemetry data. Id. at 140-41; Transcript, docket no. 571, at 48-55. Excluding this data means that much of the telemetry data is not considered. In the summer, excluding pups and juveniles reduces the amount of telemetry data by over two-thirds. S8-549 at 142, Table 5.1b. Defendants further argue that telemetry data for adults need not be considered at all because pups and juveniles are the key population segment that is driving the Steller sea lion decline. Transcript, docket no. 571, at 52-54. The 2001 BiOp states that juveniles that have been weaned are "the age class likely to be a critical factor in the current decline of the western population" and that "pups and juveniles are the most likely part of the sea lion population affected by nutritional stress, localized depletions, and predation...." S8-549 at 140-41, 139. Telemetry research has focused on pups and juveniles because the leading hypothesis is that their survival is central to the decline of Steller sea lions. Id. at 136. Although the record also indicates that "considerable evidence suggests that decreased reproductive success" and "changes in adult survival may also have contributed to the decline," S6-249 at 82, 83, NMFS's focus on the telemetry data for pups and juveniles is not arbitrary and capricious.
Defendants also argue that an evaluation of the telemetry data should focus on only the winter months. The 2001 BiOp states that the winter months are the most important for Steller sea lions because of harsher environmental conditions and increased Steller sea lion metabolic needs. S8-549 at 78, 94-95. However, the 2001 BiOp also states that Steller sea lions "need more or less continuous access to food resources throughout the year," and that "food availability is surely critical year round, although it may be particularly important for young animals and pregnant-lactating females in the winter."[17]Id. at 94, 95. Furthermore, the 2001 BiOp explains that the increased number of at-sea locations for pups and juveniles in the summer is likely the result of the fact that "most of the pups/juveniles instrumented during the fall and winter were still nursing," and therefore "would be less likely to travel far from shore." Id. at 140. The at-sea location data for pups and juveniles in summer is therefore more representative of foraging than the winter data because "by spring and early summer, some of these animals are weaned and they begin to forage on their own further from shore." Id. Thus, the filtered data actually demonstrates that the 3-10 nm zone and the 10-20 nm zone are of more or less equal foraging importance for the most critical population segment, in contrast to NMFS's conclusion that the 3-10 nm zone is of "high" concern and the 10-20 nm zone is of "low to moderate" concern. Id. at 145, Table 5.2. Therefore, the conclusion that the filtered data equally supports the zonal approach is not rationally related to the data the expert scientists presented.[18]
*1199 Defendants argue that if either the unfiltered or filtered data supported the conclusions the 2001 BiOp reached, the Court would not have to find that NMFS's decision was not rational. Transcript, docket no. 571, at 47. However, NMFS is required to use the "best available scientific and commercial data." S8-549 at 142. Given that the agency recognized that the unfiltered data contained a "confounding" bias, id. at 139, NMFS's reliance on unfiltered telemetry data to support its conclusions would be arbitrary and capricious. Agency action is arbitrary and capricious where the agency has failed to "articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). Although "an agency must have discretion to rely on the reasonable opinions of its own qualified experts," Marsh v. Or. Natural Resources Council, 490 U.S. 360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989), the presumption of agency expertise can be rebutted if the decision is not reasonable. See Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679 (D.D.C.1997). In this case, the experts stated that the unfiltered data contained a significant bias and in order to better equate the location data with foraging, the experts filtered the data. The filtered data demonstrates that Steller sea lions use the 3-10 nm zone and the 10-20 nm zones almost equally. S8-549 at 142, Table 5.1b. NMFS has failed to provide any rational explanation for its choice to ignore significant portions of the filtered data. NMFS has also failed to provide any rational connection between the filtered data and its implementation of the zonal approach.
The Court notes that when the percentage of time the Steller sea lion spends in the 0-3 nm zone is added to the time spent in the 3-10 nm zone, the filtered data demonstrates that the 0-10 nm zone is approximately three times more important than the 10-20 nm zone. Nonetheless, this sum does not support the differing ranking of importance of the 3-10 nm and 10-20 nm zones, id. at 145, Table 5.2; id. at 170 (describing the 3-10 nm zone as "one of the highest areas of concern for foraging Steller sea lions" and the 10-20 nm zone as "of low to moderate concern"), because the relevant filtered data shows that Steller sea lions use the 3-10 nm and the 10-20 nm zones almost equally. See supra note 18; S8-549 at 142, Table 5.1b. Thus, NMFS cannot rationally rely on the difference in the ranking of the zones in developing the Amended RPA, which allowed fishing in portions of the 10-20 nm zone but continued to prohibit fishing in the 3-10 nm zone.
Accordingly, the Court finds that the 2001 BiOp's no jeopardy and no adverse modification conclusions are arbitrary and capricious because they rely on the zonal approach to management which is not rationally connected to the data presented.[19]
*1200 2. Failure to Analyze the Likely Effects on Steller Sea Lions, Their Prey, and Their Critical Habitat Under the Amended RPA.
In the alternative, even if the zonal approach were rationally related to the telemetry data presented, NMFS must still analyze the likely effects of the Amended RPA on Steller sea lions, their prey, and their critical habitat before reaching a no jeopardy or adverse modification conclusion in the 2001 BiOp. The Court finds that Defendants failed to perform the appropriate analysis of the Amended RPA before reaching the no jeopardy and no adverse modification conclusions in the 2001 BiOp. Plaintiffs concede that the FMP BiOp addressed the relevant factors under the ESA for determining whether the fisheries would adversely affect the Steller sea lion's critical habitat or jeopardize the Steller sea lion's continued existence. See, e.g., S6-249 at 232-33 (setting out seven questions to be answered by the BiOp in order to evaluate the effect of fisheries on Steller sea lion critical habitat). Plaintiffs contend that in evaluating the Amended RPA, NMFS failed to properly conduct the necessary seven-question analysis set forth in the FMP BiOp at 232-33.[20] Defendants argue that they were not required to duplicate the seven-question analysis in the 2001 BiOp. Defendants also argue that the 2001 BiOp incorporates the findings of the FMP BiOp and that sufficient analysis exists in the administrative record to support the Amended RPA. See Defendant-Intervenor's Reply, docket no. 560, at 19 ("[The 2001 BiOp] did not abandon or ignore the analyses performed in the FMP BiOp, but neither did it re-invent the wheel, as Plaintiffs seem to think it should have."); Federal Defendants' Reply, docket no. 558, at 12 ("Plaintiffs' `lead' argument then simply boils down to a request that NMFS restate the analyses and conclusions that it had already presented in the FMP BiOp even though the 2001 BiOp incorporates, without supplanting, the FMP BiOp.").
*1201 a. Was the Method NMFS Used to Determine No Jeopardy and No Adverse Modification Proper Under the ESA?
Plaintiffs argue that Defendants were required to answer the seven questions, especially the last one because it is weighted twice as much as the others, before reaching a no jeopardy or no adverse modification conclusion. S6-249 at 232-33; Transcript, docket no. 571, at 14. Defendants claim that the purpose of the questions was to look at overlap in time, space, and species of concern to Steller sea lions, and that the narrow proposed action of the 2001 BiOp dealt only with three prey species for which the seven-question analysis had already been done in the FMP BiOp. Transcript, docket no. 571, at 64-65. Thus, Defendants argue it was logical not to go back and reevaluate. Id. at 64.
The purpose of the seven-question test set forth in the FMP BiOp was "to determine which fisheries may be adversely affecting Steller sea lions and whether or not those affects [sic] are likely to jeopardize their continued existence or adversely modify their critical habitat." S6-249 at 232. Thus, Defendants' argument that these seven questions went only to the issue of overlap is faulty. However, the ESA does not require that Defendants conduct this particular seven-question analysis, as long as there is some analysis to support the conclusions drawn in the 2001 BiOp. The Court notes that NMFS's use of a three-step inquiry in the 2001 BiOp to determine whether the proposed action would cause jeopardy to Steller sea lions is an alternative method which satisfies the ESA requirements regarding the analysis required regarding jeopardy.[21] S8-549 at 16, 132, 178. For the inquiry regarding adverse modification of critical habitat, NMFS engaged in "a more qualitative analysis using all available scientific and commercial information." Id. at 16. The Court finds that this method of evaluating adverse modification is also sufficient under the ESA, as long as NMFS explains its analysis as it did in the 2001 BiOp. Id. at 182-84. The Court must therefore determine whether the content of the analysis in the 2001 BiOp, coupled with the previous analysis in the FMP BiOp that the 2001 BiOp incorporated, is sufficient under the ESA to support the conclusions drawn in the 2001 BiOp.
b. Does Sufficient Analysis Exist in the Administrative Record to Support the No Jeopardy or Adverse Modification Conclusion of the 2001 BiOp?
The 2001 BiOp is limited to a review of the Amended RPA, which was necessary because of the jeopardy and adverse modification conclusions of the FMP BiOp. The Council found that the Amended RPA could replace the FMP BiOp RPA because "given the new biological information on Steller sea lions, ... there were other possible ways to avoid jeopardy and adverse modification for sea lions and their habitat." Id. at 18. Initially, in order to avoid the effects of competition between the fisheries and the Steller sea lion for prey, the FMP BiOp set forth an RPA that required sections of critical habitat from 0-20 nm to be closed year-round to directed fishing for pollock, Pacific cod, and Atka mackerel. S6-249 at 274.[22] The major *1202 change presented by the Amended RPA and challenged by Plaintiffs is the increase of allowable fishing in the 10-20 nm zone of critical habitat. The specific reopenings in the 10-20 nm zone of critical habitat that the Amended RPA contemplates are outlined in Table 3.1 of the 2001 BiOp. S8-549 at 39-42. Table 5.4 presents a comparison of the FMP BiOp RPA measures and the Amended RPA. Id. at 153.
Plaintiffs argue that because NMFS provided no explanation of the catch levels occurring in critical habitat, the Court cannot find that NMFS's determination of no jeopardy and no adverse modification in the 2001 BiOp was not arbitrary and capricious. Transcript, docket no. 571, at 87-88. The FMP BiOp concluded that the amount of fishing within critical habitat caused adverse modification of critical habitat and jeopardy to the continued existence of Steller sea lions, partly because of nutritional stress. S6-249 at 251, 268, 270. The FMP BiOp did not, however, consider whether nutritional stress was due to over-fishing within the 0-10 nm zone or the 10-20 nm zone because it was treating all areas of critical habitat alike, since the zonal approach to management had not been developed. See, e.g., id. at 274. Because the FMP BiOp did not utilize a zonal approach in concluding that fishing within critical habitat caused jeopardy and adverse modification, if all of the fishing within critical habitat were occurring within the 10-20 nm zone, the Amended RPA would not eliminate the cause of the nutritional stress.[23] The Amended RPA will not avoid jeopardy and adverse modification unless it actually alters fishing patterns within critical habitat. The administrative record contains no information as to whether the Amended RPA will alter the fishing patterns that were found to cause jeopardy and adverse modification in the FMP BiOp. The FMP BiOp notes that under the 1999 fishing regulations, the "portion of critical habitat that remained open to the pollock fishery consisted primarily of the area between 10 and 20 nm from rookeries and haulouts in the GOA and parts of the eastern Bering Sea special foraging area." Id. at 256. In addition, the 1999 fishing regulations maintained the 10 nm trawl exclusion zone around important rookeries and haulouts, reduced the amount of allowable catch of Atka mackerel that could come from within critical habitat, and closed portions of critical habitat between 10-20 nm. Id. at 255. The FMP BiOp determined that these fisheries, which permitted some level of fishing in the 10-20 nm zone, reduced the likelihood of Steller sea lion foraging effectiveness and reduced the likelihood of Steller sea lion survival. Id. at 258. The Amended RPA neither assesses the level of fishing it allows in this zone of "low to moderate" importance, nor explains how it will change the negative impact on Steller sea lions that the FMP BiOp found.
Although the 2001 BiOp compares the RPA to the Amended RPA, the 2001 BiOp does not compare the Amended RPA to the FMP previously evaluated in the FMP BiOp. The 2001 BiOp presents no information regarding where fishing takes place in critical habitat or where prey are located within critical habitat. Thus, there is no information known as to how much the Amended RPA will reduce fishing within critical habitat. See S6-249 at 277 (describing the reductions in fishing that will *1203 occur because of closures of critical habitat under the FMP BiOp RPA). Although the 2001 BiOp presents new data regarding where Steller sea lions are located, an evaluation of where Steller sea lions forage does not present a complete picture of the effects of the Amended RPA. Fishing outside the forage zones may cause localized depletions within the forage zones, which could then cause adverse modification of the "high" importance areas of critical habitat and impact the Steller sea lions. For example, the 2001 BiOp concluded that "the use of closure areas in the most important foraging zones alleviates the need for small catch limits in areas outside of 10 nm from shore that were previously considered to be integral to the RPA in the FMP biological opinion." S8-549 at 143. However, there is no analysis of how the newly opened fishing areas will impact the "most important foraging zones." Id. Unless and until it is determined that it is fishing within the 0-10 nm zone that is the cause of the nutritional stress, or the agency explains in the administrative record why the proposed modifications in the 10-20 nm zone will not cause jeopardy or adverse modification, any conclusion that closures of only the 0-10 nm zone will remedy the jeopardy and adverse modification found in the FMP BiOp is arbitrary. Therefore, even if the Court found that the 2001 BiOp correctly evaluated the differing importance of the zones of critical habitat, nowhere does the 2001 BiOp evaluate the differing effect of the current and proposed level of fishing on those zones of critical habitat and the Steller sea lions. Without an analysis of how the fishing within critical habitat impacts the differing zones of importance, or an explanation in the record of why such an analysis was not required, it is not possible for the Court to find that the agency has "articulated a rational connection between the facts found and the choice made." Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 982 (9th Cir.1985) (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S. Ct. 2246, 76 L. Ed. 2d 437 (1983)). In short, the 2001 BiOp does not contain a viable analysis of cause and effect, which is exactly what the ESA requires. This failure is fatal to the 2001 BiOp.
Defendant-Intervenors Pacific Cod Freezer Longliners argue that the hook-and-line gear method of fishing is passive and does not result in any concentrated removal of prey so as to jeopardize Steller sea lions or adversely modify their critical habitat. Although evidence in the administrative record supports the position that hook-and-line fishing may be less likely to cause localized depletion, there is a lack of sufficient scientific evidence to support a conclusion that the hook-and-line fishery does not cause jeopardy or adverse modification. S6-249 at 215; S8-549 at 148-49. The 2001 BiOp states:
These data suggest that the hook- & -line fishery in the BSAI Pacific cod fishery is more dispersed than the trawl fishery, and may be less likely to cause localized depletions of prey for Steller sea lions. However, to stress again, the critical link between fisheries removals ... and the effects on sea lions is so poorly understood that we cannot unequivocally [sic] say that these gear types do or do not adversely affect Steller sea lions.
S8-549 at 149. Thus, the Court cannot find that the hook-and-line fishery does not cause jeopardy to Steller sea lions or adverse modification of Steller sea lion critical habitat. Moreover, NMFS did not analyze the hook-and-line fishery as a separate fishery, and it is beyond the Court's role to conduct such an analysis.
Accordingly, in the alternative, the Court concludes that the 2001 BiOp's finding of no adverse modification of critical *1204 habitat and no jeopardy to the continued existence of Steller sea lions is arbitrary and capricious because the necessary analysis of the impact of the Amended RPA on Steller sea lions, their prey, and their critical habitat was not performed.
For the foregoing reasons the Court GRANTS Plaintiffs' Motion for Summary Judgment and DENIES Defendants' Motion for Summary Judgment as to Claims Eight and Nine of the Supplemental Complaint.
IV. CONCLUSION
For the foregoing reasons the Court GRANTS Plaintiffs' Motion for Summary Judgment as to Claims Eight and Nine and DENIES Plaintiffs' Motion for Summary Judgment as to Claim Ten, docket no. 544. For the same reasons the Court DENIES Defendants' and Defendant-Intervenors' Motions for Summary Judgment as to Claims Eight and Nine and GRANTS Defendants' and Defendant-Intervenors' Motion for Summary Judgment as to Claim Ten, docket nos. 551, 553.
The Court REMANDS the 2001 BiOp to the National Marine Fisheries Service for further action in compliance with this Order.
IT IS SO ORDERED.
NOTES
[1] "Jeopardize" means "to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. "Adverse modification" means "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species." Id.
[2] In this case, NMFS's Office of Sustainable Fisheries is the "Action" Agency and NMFS's Office of Protected Resources is the "Expert" Agency.
[3] Critical habitat for Steller sea lions consists of all major rookeries and haulouts in Alaska west of 144~W longitude, including the associated waters within 20 nautical miles (nm) of these sites, and three special aquatic foraging areas. S6-249 at 60-61.
[4] The 40-60% reduction in spawning biomass (spawning biomass excludes juvenile fish because they do not aid in the reproductive success of the population) from unfished levels is an extrapolation of what the fish population would look like if there were no commercial fishery, compared to the current population.
[5] Plaintiffs challenge NMFS's reliance on the conclusions of the Analytical Team because they are the views of the Action Agency rather than the Expert Agency. A conclusion by the Expert Agency that the Action Agency has properly analyzed the data is not, however, foreclosed under the review process required by the ESA.
[6] This conclusion is based on the assumption that a Steller sea lion needs between 22 times to 46 times more forage than it is capable of consuming in a single year. These figures are known as the "forage ratio." S8-549 at 164.
[7] The Amended RPA slightly changed the global control rule NMFS proposed in the FMP BiOp RPA. The global control rule in the RPA started limiting fishing at a linear rate when stocks reached 40% of unfished levels and banned fishing when stocks reached 20% of unfished levels. S6-249 at 273. Under the Amended RPA, the global control rule limits fishing when prey stocks are between 40% of unfished levels and 20% of unfished levels at a slightly slower rate, and bans fishing when prey stocks reach 20% of unfished levels. S8-549 at 24-25. The changes between the RPA and the Amended RPA do not significantly affect Plaintiffs' challenges to the global control rule. Thus, the Court need not consider the justification for the rule separately under the FMP BiOp and the 2001 BiOp.
[8] Other than this sentence, Plaintiffs do not direct the Court to any discussion within the administrative record regarding a threshold global level of prey necessary for the protection of the Steller sea lions.
[9] The ESA defines "take" as to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" and does not require that actual death occur or that the species population declines. 16 U.S.C. § 1532(19).
[10] See, e.g., Review of the November 2000 Biological Opinion and Incidental Take Statement with respect to the Western Stock of the Steller sea lion, S8-176 at 48-49 (concluding that review of the effect of global fisheries on the Steller sea lion population results in a determination that "there is no justification for altering the current control rule for pollock, cod, and Atka mackerel.").
[11] While the concepts of jeopardy and adverse modification overlap considerably, they are two separate standards and are to be analyzed separately. Conservation Council for Haw. v. Babbitt, 2 F. Supp. 2d 1280, 1287 (D.Haw.1998). Plaintiffs' challenges to the no jeopardy and no adverse modification conclusions, however, are based on the same arguments.
[12] Satellite telemetry is a method of tracking the movements of Steller sea lions. A satellite linked time-depth recorder ("SDR"), which is composed of a small package of electronics, is glued to a sea lion's back. S8-549 at 135. The SDR transmits depth information from the unit up to orbiting satellites which then triangulate the source beam to estimate a location of the animal. Id. Between 1990 and March 2001, 98 SDRs were deployed on Steller sea lions in the western stock. Id.
[13] Plaintiffs allege that this conclusion itself is arbitrary and capricious. This argument will be discussed further below.
[14] The RPA Committee was created by the Council to review scientific and commercial data, provide recommendations for Steller sea lion protection measures, and develop the Amended RPA. S8-549 at 12.
[15] An SDR must be above the water in order to provide a signal to the orbiting satellite. S8-549 at 135. An SDR will attempt to send a signal to a satellite every forty seconds if the sensor determines that the instrument is above the surface. Id. If the instrument is not above water it will attempt to send a signal the next time it is above water. Id. Multiple transmissions must be received within a ten-minute period in order for a satellite to estimate a location. S8-576 at 13.
[16] For example, the telemetry data for adult females in the GOA during the summer breeding season shows that Steller sea lions "made distant offshore trips > 100 nm from shore, yet locations were not obtained between 8 and 100 nm." S8-576 at 13. Additionally, other data demonstrates that because "the first prey ingestion event occurs at least 0.9 hours after departure from a rookery.... a portion of nearshore at-sea locations do not represent locations where animals successfully obtained prey." Id.
[17] The record indicates that reproduction places increased metabolic demands on adult females, which winter conditions exacerbate. S8-549 at 94; S6-249 at 81.
[18] The filtered data for the most important Steller sea lion population group during the season that they are foraging demonstrates that they spend approximately equal amounts of time in the 3-10 nm zone and the 10-20 nm zone. S8-549 at 142, Table 5.1b.
---------------------------------------
ZONE PUPS/JUVENILES (summer)
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0-3 nm 22.1%
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3-10 nm 14.9%
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10-20 nm 12.6%
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beyond 20 nm 50.4%
---------------------------------------
[19] Because the Court concludes that the zonal approach is not rationally connected to the telemetry data presented, the Court also finds that the DeMaster Study, S8-650, cannot independently support the Amended RPA. The DeMaster Study attempted to make a qualitative comparison between the FMP BiOp RPA and the Amended RPA in order to determine whether they were roughly equivalent in their effect on the Steller sea lion population. S8-549 at 161; S8-650 at 2. The DeMaster Study compared the FMP BiOp worst case scenario (0.77% annual decrease) with a more realistic scenario under the FMP BiOp (0.05% annual increase), and with the projected scenario under the Amended RPA (0.25% annual decrease). S8-549 at 156, Table 5.6. One of the basic assumptions of the study was that different areas of critical habitat were more important than others. Id. at 161-62; S8-650 at 12.
The Court notes that because the FMP BiOp found that a 0.7% estimated annual decrease did not cause jeopardy or adverse modification, S6-249 at 300, it was rational for the 2001 BiOp to conclude that a lower estimated annual decrease of 0.25% would not cause jeopardy or adverse modification. S8-549 at 162 ("Given the uncertainty in the available data and the qualitative nature of this analysis, ... the difference in the expected trajectories is insignificant and ... it is reasonable to conclude that the [RPA and Amended RPA] are approximately equal in avoiding adverse effects with Steller sea lions."). Plaintiffs cannot demonstrate that the no jeopardy or adverse modification conclusion of the 2001 BiOp is arbitrary and capricious based on the choice of a less conservative alternative.
[20] The seven questions in the FMP BiOp at 232-233 are:
(1) Do Steller sea lions forage on the target fish species?
(2) Do Steller sea lions forage on the target fish species at a rate of at least 10% occurrence?
(3) If yes to Number 2, does the size of Steller sea lion prey overlap with the size caught by commercial fisheries?
(4) If yes to Number 2, does the fishery overlap spatially with the area used by Steller sea lions to forage on this species?
(5) If yes to Number 2, [d]oes the fishery operate at the same time Steller sea lions are foraging on the fish species?
(6) If yes to Number 2, [d]oes the fishery operate at the same depth range that Steller sea lions are using to forage on the fish species?
(7) If yes to 1-6, does that fishery operate in a spatially or temporally compressed manner in Steller sea lion critical habitat?
[21] This three-step inquiry required NMFS to: (1) Identify the probable direct and indirect effects of the proposed action on the action area, (2) Determine whether reductions in Steller sea lion reproduction, numbers, or distribution would reasonably be expected, and (3) Determine if any reductions in Steller sea lion reproduction, numbers, or distribution could be expected to appreciably reduce the Steller sea lion's likelihood of surviving and recovering in the wild. S8-549 at 16, 178.
[22] The RPA closed areas where "approximately 16% of GOA pollock and 28% of GOA Pacific cod catches, 23% of EBS pollock, 24% of EBS Pacific cod, and 2% of BSAI Atka mackerel, 53% of AI pollock, 21% of AI Pacific cod, and 44% of BSAI Atka mackerel catches have occurred [from 1998-1999]." S6-249 at 277.
[23] Fishing in the 10-20 nm zone may impact Steller sea lions foraging in the 0-10 nm zone because prey migrate back and forth across these zones. S8-549 at 143. This is sometimes referred to as the "edge effect." The 2001 BiOp does not evaluate the edge effect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3235633/ | The appellant in this case having filed his brief as required on the original submission, and the state not having filed brief within fifteen days thereafter from such submission, the motion of the appellant that the application for rehearing be stricken must be granted. Supreme Court Rule 38 provides: "No application shall be received or filed which is not presented in strict compliance with this rule." The rule proceeds further: "No appellee can, as a matter of right, apply for a rehearing unless brief was filed with clerk upon the original hearing within fifteen days after submission of the cause, containing a certificate that a copy of same was served within said time upon counsel for appellant." This rule does not apply in criminal cases except when the appellant files a brief upon submission of the cause, which was done in this case.
The application for rehearing must be stricken. Hill v. State, 24 Ala. App. 239, 133 So. 741; Shirey v. State,18 Ala. App. 109, 90 So. 72; Ex parte Shirey, 206 Ala. 167,90 So. 75.
The application is stricken. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2987351/ | Order filed March 27, 2013
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00110-CV
____________
In the Interest of K.F., K.A.F., R.S.H., and R.H., Jr., Children
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2011-04832J
ORDER
This is an accelerated appeal from a judgment in a suit in which the
termination of the parent-child relationship is at issue. Appellant=s brief was due
March 25, 2013. No brief has been filed.
Unless appellant files a brief with the clerk of this court within 10 days of
the date of this order, the court will dismiss the appeal for want of prosecution. See
Tex. R. App. P. 42.3(b).
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130487/ | 539 U.S. 927
In re Middlestead.
No. 02-1487.
Supreme Court of United States.
June 16, 2003.
1
Appeal from the C. A. 11th Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/130494/ | 539 U.S. 928
Rivera-Perezv.United States.
No. 02-1659.
Supreme Court of United States.
June 16, 2003.
1
Appeal from the C. A. 1st Cir.
2
Certiorari denied. Reported below: 319 F. 3d 12. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2170491/ | 806 F. Supp. 2d 872 (2011)
SUNTRUST MORTGAGE, INC., Plaintiff,
v.
UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY OF NORTH CAROLINA, Defendant.
Civil Action No. 3:09cv529.
United States District Court, E.D. Virginia, Richmond Division.
August 19, 2011.
*874 S. Miles Dumville, Alison Ross Wickizer Toepp, Curtis Gilbert Manchester, Travis Aaron Sabalewski, Reed Smith LLP, Jeremy Stephen Byrum, McGuirewoods LLP, Richmond, VA, Antony Bradley Klapper, Elizabeth Anne Reidy, Reed Smith LLP, Matthew Jay Schlesinger, Washington, DC, Edward Joseph Stein, Joshua Gold, Anderson Kill & Olick, New York, NY, Matthew Robertson Sheldon, Richard Dean Holzheimer, Jr., Reed Smith LLP, Falls Church, VA, for Plaintiff.
Brian Christopher Baldrate, Jennifer Vosko Caughey, John Curry Millian, Gibson Dunn & Crutcher LLP, Washington, DC, Christopher Dean Dusseault, James Louis Zelenay, Jr., Matthew Allan Hoffman, Melissa Marie Case, William Edward Wegner, Gibson Dunn & Crutcher LLP, Los Angeles, CA, John Buckley Warden, IV, Wyatt B. Durrette, Jr., Durrettecrump PLC, Kevin Jermone Funk, Durrettebradshaw PLC, Richmond, VA, for Defendant.
MEMORANDUM OPINION
ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court, following a bench trial, on SunTrust Mortgage, Inc.'s ("ST") affirmative defense to Count IV of DEFENDANT UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY OF NORTH CAROLINA, *875 INC.'S ANSWER TO PLAINTIFFS' [sic] AMENDED COMPLAINT AND COUNTERCLAIM (Docket No. 47) ("Counterclaim").[1]
For the reasons set forth below, ST has met its burden on the affirmative defense (alternatively, "first material breach defense"). Judgment therefore will be entered for ST on Count IV of UG's Counterclaim.
PROCEDURAL HISTORY
Count IV of UG's Counterclaim seeks a "declaratory judgment stating that Sun-Trust is obligated under [the insurance policy] to continue making annual renewal premium payments on all loans in each of the Loan Pools, notwithstanding that the Maximum Cumulative Liability amount has been reached with respect to a particular Loan Pool."[2] On April 26, 2011, 784 F. Supp. 2d 600 (E.D.Va.2011), the Court entered summary judgment for UG on Count IV of the Counterclaim.[3] Specifically, it held: "[t]he insurance policy clearly and unambiguously requires SunTrust . . . to pay annual premiums to United Guaranty. . . for the life of the insured loans, notwithstanding that UG's Maximum Cumulative Liability . . . for loss on those loans has been reached."[4] However, in so holding, the Court failed to address ST's first material breach defense, which was pled by ST as an affirmative defense to Count IV of the Counterclaim[5] and which had been briefed, albeit in a skimpy fashion, in opposing UG's motion for summary judgment on Count IV.[6]
*876 ST's first material breach defense was that UG materially breached the insurance policy by "(a) continuing to collect and failing to refund premiums on [performing] IOF Combo 100 Loans[7] when United Guaranty knew it would not pay claims on those loans; and (b) relying on a legally unsupportable basis for denying Sun-Trust's claims [on defaulted IOF Combo 100 Loans]."[8] The consequence of those alleged breaches, said ST, was that UG may not "enforc[e] any contractual obligation of SunTrust to continue paying renewal premiums under the Policy."[9]
The Court realized its failure to consider ST's first material breach defense in a conference call with the parties on May 3, 2011. To allow ST to be heard on its affirmative defense, the Court vacated the order entering summary judgment for UG on Count IV of the Counterclaim.[10] A briefing schedule was set for ST's first material breach defense and the issue was set for oral argument on May 23, 2011, with an evidentiary hearing to follow, if necessary, on May 25, 2011.[11] The Court heard oral argument on ST's first material breach defense, and, finding genuine disputes of material fact, received evidence on the affirmative defense on May 25-26, 2011. That, in effect, was a denial of SUNTRUST MORTGAGE, INC.'S MOTION FOR SUMMARY JUDGMENT ON COUNT IV OF UNITED GUARANTY'S COUNTERCLAIM (Docket No. 468), which ST filed on May 9, 2011, pursuant to the briefing schedule set by the Court. Following the bench trial, the Court ordered the parties to file post-trial findings of fact and conclusions of law.[12] The Court informed the parties that consideration of ST's first material breach defense would be limited to evidence adduced at the bench trial.[13] Accordingly, the Court's findings of fact are based exclusively on evidence received at trial.
Of course, Count IV of UG's Counterclaim is just one part of this litigation, it having developed out of the events which gave rise to ST's breach of contract claim, as presented in Count I of the THIRD AMENDED COMPLAINT (Docket No. 121) ("TAC"). In brief, Count I of the TAC alleges that UG breached the insurance policy when, from the spring of 2007 through 2009, it denied ST's claims on IOF Combo 100 Loans.[14] Count I of the TAC thus overlaps the second of the two alleged breaches in ST's first material breach defense: that UG breached the insurance policy by denying claims on IOF Combo 100 Loans.
*877 ST was awarded summary judgment on Count I of the TAC on May 13, 2011. The Court held that UG's denial of claims on IOF Combo 100 Loans breached the insurance policy.[15] It therefore is not necessary to decide in this opinion whether UG's denial of claims on IOF Combo 100 constituted a breach of the insurance policy. It did.
The questions that must be answered now are whether the improper collection of premiums alleged in ST's first material breach defense was in fact a breach of the insurance policy, and, if so, whether that breach, and the breach already found by the Court, were material in view of the policy. Some preliminary procedural questions must be answered as well, but the substantive questions are limited to those outlined above.
FINDINGS OF FACTS
ST is a corporation based in Virginia. It is a subsidiary of SunTrust Bank.[16] ST's business is the origination of mortgage loans on residential real property. It sold some loans, retained others in its portfolio, and serviced those that it retained as well as some that it sold. See Trial Transcript of Evidentiary Hearing of May 25-26, 2011 ("Trial Tr.") 53:15-17; see also id. at 55:1-6.
UG provided ST with mortgage insurance to cover losses on second-lien loans in the event of borrower default. Id. at 258:20-24. A written insurance policy effectuated the coverage. The policy consisted of a "Master Policy" issued circa 1998, as modified by a "SunTrust Mortgage Agreement Closed-End Purchase Money Seconds-Flow Business Risk Sharing ProgramJune 23, 2004" ("2004 Flow Plan") and a "SunTrust Mortgage Agreement Closed-End Purchase Money Seconds-Flow Business Risk Sharing Experienced Rating PlanOctober 17, 2005" ("2005 Flow Plan").[17]
Under the insurance policy, the insured party, ST, underwrote the loans and submitted them for coverage on a monthly basis. The insurer, UG, in turn extended coverage to the loans that ST had submitted by issuing them unique certificate numbers. See ST Ex. 3 §§ 1.2, 3.1(a); Trial Tr. 271:12-13. In addition to evidencing coverage under the policy, the certificate numbers assisted UG in tracking the loans, verifying that premiums had been paid on them, and, among other things, qualifying and processing claims on them. Trial Tr. 271:14-18.
UG did not endeavor to determine whether a submitted loan in fact conformed to the underwriting parameters unless and until ST made a claim on the loan. If, after a claim was made on a loan, UG determined that the loan did not in fact meet the agreed-to parameters, UG rescinded coverage on the loan and returned any premiums that it had collected on the loan.
All the loan products covered under the policy fell under an umbrella of products referred to as "Combo Loans." Id. at 69:21-25, 70:6-10. ST began offering Combo Loans around 2000 and continued to offer them when it filed this action in *878 July 2009. Combo Loans were second-lien mortgage loans that had been originated with a first-lien mortgage loan on the same parcel of real estate. Id. at 54:6-55:19. ST generally sold the first-lien mortgage loan on the secondary market and retained the second-lien loan for its loan portfolio and had it insured. Id. at 55:1-6.
ST offered at least eight general types of Combo Loans between 2000 and 2009. Id. at 264:3-13. See generally UG Ex. 48. One such type of Combo Loan permitted borrowers to obtain loans with a maximum loan-to-value ratio of up to 90%; another type permitted borrowers to obtain loans with a maximum loan-to-value ratio of up to 95%; and a third type permitted borrowers to obtain loans with a maximum loan-to-value ratio of up to 100%. All of the loan products were further characterized by customizing features that the borrowers selectedfor instance, first- and/or second-lien loans that required interest-only payments for a specified period of time, first- and/or second-lien loans that required principal and interest payments for a specified period of time, or some combination thereof. See, e.g., ST Ex. 34 at 24-99. The loans at issue here are second-lien loans made behind an interest-only first-lien loans with a combined loan-to-value ratio of up to 100%. See n. 7, supra.
The second-lien loans were the riskier of the two loans on a real estate parcel. This fact was not lost on ST. It understood that, in the event of foreclosure, the amount owed on the second-lien loans would be satisfied only after the amount owed on the first-liens had been satisfied. Trial Tr. 55:5-11, 56:23-58:24. It also understood that the risk associated with the second-lien loans would increase in a declining residential real estate market. See id. at 57:16-58:24. ST understood, too, that the residential real estate market historically was prone to fluctuation. See id. at 60:15-61:17. Being aware of such risks, particularized and systemic, ST paid UG for mortgage insurance on the second-lien loans in its portfolio. Id. at 55:4-11, 60:11-13. ST "borrow[ed] on [its] earnings in the good times[ ] to protect [itself] in the bad times." Id. at 61:9-17.
From the insurance policy's inception, all the insured loans were grouped into loan pools. Each loan pool corresponded to a "Policy Year," which Section 1.33 of the Master Policy defined as the "annual period from the Effective Date of this Policy until 12:01 a.m. (Eastern Time) of the same day of the following year and each subsequent time period similarly calculated." ST Ex. 3 § 1.33. The effect of Section 1.33 was that all loans issued in a twelve-month interval, the beginning of which was marked by the "effective date of [the] Policy," were placed in the same pool. Trial Tr. 70:17-21; see also ST Ex. 71 ¶ 11. The individual characteristics of the loans therefore had no bearing on their placement in the pools; the singular determinant was their date of origination. This method of placing the loans in pools resulted in the pools each containing different types and quantities of Combo Loans. Trial Tr. 71:16-20.
In the policy's nomenclature, the "maximum cumulative liability" referred to UG's coverage obligation under the policy. Pursuant to Section 1.26 of the Master Policy, the maximum cumulative liability was based on a percentage of the aggregate total of the loan amounts insured in each pool. Specifically, the maximum cumulative liability was "an amount to be determined for each Policy Year" that was equal to ten percent of the aggregate total of the insured loan amount in a pool,[18] less ten *879 percent of the aggregate total of the loan amount in a pool for which coverage had ceased for certain enumerated reasons, including rescission of a loan ("cancell[ation] by [UG] in accordance with Section 3.6") and exclusion of a loan from coverage ("exclu[sion] under Section 4"). ST Ex. 3 § 1.26.
Two realities followed from the maximum cumulative liability being so determined. First, each pool imposed its own coverage obligation on UG. This meant that UG's coverage obligation for a particular loan extended only so far as its coverage obligation for the pool containing the loan. Second, each pool imposed a coverage obligation on UG that, in being dependent on the total amount insured in the pool (which, of course, changed as new loans were insured, loan amounts were paid down, and coverage of existing loans was cancelled), was variable in nature.
Although a pool corresponded to a "Policy Year," the amount in the most current pool (i.e., the one to which newly originated loans were added) was updated on a monthly basis. At the end of each month, ST bundled the Combo Loans that it had issued during the month and submitted the loans for coverage. Trial Tr. 73:14-21, 74:5-11. When the twelve-month period allotted for a loan pool expired, the loan pool was closed, meaning that no other Combo Loans would be added to it, and another loan pool was commenced. Loans were then added to the newly created pool on a recurring monthly basis for the next twelve months. The insurance policy called for this process to be repeated ad infinitum. See ST Ex. 3 § 1.33.
The Master Policy established the basic framework for the payment of premiums. Section 3.3 of the Master Policy provided for the payment of an "Initial Premium" for each newly insured loan under the policy. Id. § 3.3. Section 3.4 of the Master Policy provided for the payment of "Renewal Premiums" on the loans for which an initial premium already has been paid: "[t]he insured's obligation for the payment of [renewal] premium due . . . shall continue for each Loan insured [under the policy]. . . notwithstanding the payment by [UG] of Losses . . . during a Policy Year in an amount equal to the Maximum Cumulative Liability for such Policy Year. . . ." Id. § 3.4. Although Sections 3.3 and 3.4 stated that an initial premium and renewal premium, respectively, were to be paid for each loan insured under the policy, they did not specify how those premiums were to be calculated.
Before the 2005 Flow Plan, UG calculated the premiums without reference to language in the insurance policy. UG's actuaries analyzed data of every loan with all lenders, not just ST, that UG had insured dating back twenty years. Then, based on the analysis of that data, the actuaries established rate factors for each general category of ST loan that was insured under the policy, with each rate factor corresponding to the predicted risk of the loan category to which it was to be applied. The premium for each loan was calculated by applying the rate factor matching that *880 loan's category to the outstanding balance of the loan. See Trial Tr. 285:20-287:3.
The 2005 Flow Plan changed the method of calculating the premiums and, for the first time, linked the calculation of the premium to language in the insurance policy. In the mid-2000s, in response to ST's requests for lower premiums, UG offered ST the opportunity to have the performance of its entire loan portfolio "earn" lower premiums. Id. at 275:3-10. UG did this because it valued ST's business and because ST's portfolio had outperformed the majority of its other lenders' portfolios. See id. at 274:20-275:15. The 2005 Flow Plan accordingly established an "Experience Rating Plan": "a special lender pay program that features potential changes in the rate for new and existing business based on the cumulative loss ratio of the insured business." ST Ex. 5. Notwithstanding that the Combo Loans insured under the policy had different risk characteristics (as evidenced by the fact that they had been assigned different rate factors before the 2005 Flow Plan according to the general loan category), the 2005 Flow Plan called for the "cumulative loss ratio" to be calculated by taking the cumulative losses paid out by UG on all the loans insured under the policy and dividing that figure by the cumulative premiums collected by UG on all the loans insured under the policy. Id.; Trial Tr. 276:19-277:14. Also according to the 2005 Flow Plan, the cumulative loss ratio was to be calculated each calendar year (after the 2005 Flow Plan went into effect) using the loss and premium data for the most recent seven-year experience of all the loans insured under the policy.[19] ST Ex. 5.
UG was to apply a rate factor to the outstanding balances of all the loans insured under the policy according to a table in the 2005 Flow Plan listing eleven different rate factors for eleven different cumulative loss ratio ranges. The rate factors increased as the values in the cumulative loss ratio ranges increased as set forth below:
Paid Loss Ratio Annual Rate
0-15 0.35%
15-25 0.40%
25-35 0.50%
35-45 0.60%
45-55 0.70%
55-65 0.80%
65-75 0.95%
75-85 1.00%
85-90 1.05%
90-100 1.15%
100+ 1.35%
Id.
The premiums for the first two years under the 2005 Flow Plan, however, did not make use of the cumulative loss ratio. Pursuant to the 2005 Plow Plan, UG set the "initial rate . . . based on the most recent experience[20] with the lender [ST] as well as the quality of business expected in the future." Id. The initial rate was in effect for two years, with UG applying that rate to the outstanding balances of the insured loans to calculate the premiums for each loan.[21]
Use of the cumulative loss ratio (as set forth in the preceding table) to calculate premiums began in the third year of the *881 2005 Flow Plan and continued each year thereafter. Trial Tr. 338:25-339:2. UG calculated the cumulative loss ratio based on the seven-year experience of all of ST's loans covered by the policy; it then matched the calculated cumulative loss ratio with the ranges listed on the table in the 2005 Flow Plan to determine the applicable rate factor; and, finally, it applied the applicable rate factor to the outstanding balance of all the loans insured under the policy to calculate the premiums for all the loans.
UG issued a bill to ST each month stating a gross premium for all the loans insured under the policy. Attached to the monthly bills was a detailed statement stating the portion of the gross amount applicable to each loan. Id. at 181:3-19.
The initial dispute in this action arose in the spring of 2007 when UG began denying claims on IOF Combo 100 Loans that had not been underwritten using Fannie Mae's automated underwriting system, "Desktop Underwriting" ("DU"). This dispute is the subject of Count I of the TAC. UG took the position that IOF Combo 100 Loans that had not been underwritten using DU were excluded from coverage under the terms of the insurance policy. ST disagreed.
The IOF Combo 100 Loans that are at issue in Count I of the TAC are housed in six loan pools. ST Ex. 71 ¶ 151; see also id. at Ex. C (listing the loan pools). ST began originating loans of this kind in late 2004 after the execution of the 2004 Flow Plan, see id. at Ex. C; see also Trial Tr. 190:23-25, but ST originated the majority of the loans between 2005 and 2007 after the execution of the 2005 Flow Plan, see ST Ex. 71 at Ex. C. ST originated and submitted IOF Combo 100 Loans for coverage under the policy for more than three years before the coverage dispute in Count I of the TAC arose. By January 2008, UG was categorically denying claims on IOF Combo 100 Loans that had not been underwritten using DU.
In early 2008, word that UG had begun systematically to deny claims of loans for non-use of the DU method reached Robert Partlow, a Senior Vice President of ST. Trial Tr. 86:21:24. Mr. Partlow initiated communications with UG in an effort to resolve the dispute. During these communications, Mr. Partlow corresponded with John Gaines, a Senior Vice President of UG. Id. at 87:11-14. In June 2008, Mr. Partlow received a letter from Mr. Gaines indicating that UG had denied claims on IOF Combo 100 Loans that had not been underwritten using DU. ST Ex. 10. The letter also indicated that "[t]here are undoubtedly a large percentage of loans remaining in force that will similarly be denied should they default," and that "without [ST's] help, [UG is] unable to identify those loans with interest only first mortgages that are lacking the required DU approval." The letter from Gaines also stated: "[i]t is not appropriate for us [UG] to continue to accept premium on loans that are not eligible for claim payment." Id.
In the months after receiving the letter, Mr. Partlow engaged in additional discussions with Mr. Gaines to resolve the dispute. Trial Tr. 88:7-11. But, the dispute persisted. Accordingly, on October 28, 2008, the parties entered into an agreement (the "Tolling Agreement") recognizing "the intent of the Parties to preserve the status quo as of September 30, 2008 with respect to claims or potential claims between the Parties in connection with [UG's denial of claims on IOF Combo 100 Loans that had not been underwritten using DU]." ST Ex. 56. The Tolling Agreement was to remain in force until November 17, 2008. Id. It was extended not less than seven times while the parties continued *882 negotiations, carrying its effective expiration date through July 31, 2009. See ST Exs. 57-63; Trial Tr. 88:24-89:2, 89:14-20.
In response to the statement in the Gaines letter that "without [ST's] help, [UG is] unable to identify those loans with interest only first mortgages that are lacking the required DU approval," ST sent UG a list of all IOF Combo 100 Loans insured under the policy that, it believed, had not been underwritten using DU.[22] ST Ex. 6. The list of loans was attached to an email dated February 6, 2009, from Mr. Partlow to Mr. Gaines. Id. It was compiled at Mr. Partlow's direction, Trial Tr. 90:14-16, and Mr. Partlow believed its contents to be accurate, id. at 90:23-24. The number of loans on the list totaled 11,981. Id. 217:24-218:4. By way of an email dated February 14, 2009, UG informed ST that it had "match[ed] all of the loans [on the list]" with its own loan records. ST Ex. 9; see also Trial Tr. 91:17-22.
Of the 11,981 loans on the list, 1,069 (approximately 9%) had in fact been denied coverage before ST sent UG the list on February 6, 2009. ST Ex. 70 ¶¶ 6, 8. Therefore, not all the loans on the list were performing loansi.e., loans that had not defaulted and on which ST had not submitted claims. Of course, the vast majority of the loans on the list were performing loans. For those loans, UG submitted *883 to ST bills for millions of dollars in premiums, which ST has paid. Before UG received the Partlow list, from May 1, 2007, through February 28, 2009, UG billed premiums of, and ST paid premiums in, an amount not less than $10,977,351 for the performing loans on the list. Id. at Ex. A. And, after receiving the list, from March 1, 2009, through March 31, 2011, UG demanded premiums of, and ST paid premiums in, an amount not less than $12,027,250 for the performing loans on the list. Id. For all such performing loans on the list for which ST has not submitted claims and are otherwise performing, UG has continued to bill and collect premiums. Id. ¶ 15.
In early July 2009, the parties had reached what appeared to be a final resolution of the dispute and had prepared a settlement agreement. However, UG abruptly and without explanation refused to execute the agreement and declined to further discuss settlement. Trial Tr. 92:24-93:4. By that time, the negotiations had been ongoing for months. As of June 30, 2009, UG had denied not less than $63,894,849 in claims on IOF Combo 100 Loans, ST Ex. 71 ¶ 18, Ex. E; see also Trial Tr. 196:19-25, which, at that time, equated to more than 25% of the total coverage liability of UG for the six loan pools at issue in Count I of the TAC, ST Ex. 71 at Ex. E; Trial Tr. 197:1-5.
Within two weeks of the unexpected end of settlement talks to UG, ST filed the present action.[23] ST continued paying premiums during the pendency of the action because it feared that UG could use its failure to do so to invoke Section 3.6 of the Master Policy to cancel coverage on all loans for which premiums had not been paid. Trial Tr. 178:22-179:12.
After receiving the list of loans from Mr. Partlow in February 2009, and even after UG broke off settlement discussions in July 2009, UG has not exercised its contractual right to audit the loans on the list. Id. at 252:22-23. ST Ex. 3 § 7.6; see also Trial Tr. 252:18-21. Thus, UG has not ever determined whether those loans are in fact eligible for coverage under its interpretation of the insurance policyan interpretation on which it has denied tens of millions of dollars in claims made by ST on IOF Combo 100 Loans that have defaulted. And, at no time between receiving the list of loans from Mr. Partlow in February 2009 and responding to ST's first material breach defense in May 2011, did UG dispute the accuracy of the loan list. Trial Tr. 94:25-95:19. It was only during the course of this litigation, and quite far into the process, that UG raised the specter of the list being unreliable.
The foregoing findings of fact provide a basic factual context for discussion of the procedural and substantive legal issues relevant to ST's first material breach defense. Further findings of fact are made as appropriate in the ensuing legal discussion and conclusions.
CONCLUSIONS OF LAW
Each of the procedural and substantive legal issues relevant to ST's first material breach defense are decided in turn below.
I. ST Did Not Waive Its Right To Assert Its First Material Breach Defense
A. Position Of The Parties
UG argues that the doctrine of waiver prevents ST from asserting its first material *884 breach defense. Central to UG's argument is 13 Williston on Contracts § 39:31 (4th ed.), which provides: "when a contract not fully performed on either side is continued in spite of a known excuse, the right to rely upon the known excuse is waived [and] in turn, the defense based on the excuse is lost."[24] UG contends that ST lost its right to rely upon UG's improper denial of claims on the IOF Combo 100 Loans as a predicate for its first material breach defense to Count IV of UG's counterclaim, because ST allegedly knew in June 2008, after receiving the Gaines letter, that UG had denied claims on the loans and that UG would continue to deny claims on them, yet it continued to pay premiums under the policy and continued to accept millions of dollars in insurance payouts. In other words, UG maintains that, having been informed of UG's breach in June 2008, and having subsequently performed under and having nonetheless accepted the benefits of the policy, ST cannot now cite that breach as a reason to be released from further performance under the policy.
ST counters that it did not waive its right to rely upon UG's denial of claims on the loans as a predicate for its first material breach defense, because, "by its words and deeds, [it] consistently and repeatedly asserted its position that United Guaranty's refusal to pay claims [on the loans] was contrary to United Guaranty's obligations under the insurance policy."[25] And, in any event, says ST, UG did not carry its burden to prove waiver.
B. Analysis
In Virginia, "[a] party claiming waiver has the burden of showing two essential elements of waiver, namely `knowledge of the facts basic to the exercise of the right [waived] and the intent to relinquish that right.' These elements must be shown by `clear, precise and unequivocal evidence.'" Stuarts Draft Shopping Ctr. v. S-D Assocs., 251 Va. 483, 468 S.E.2d 885, 889-90 (1996) (quoting Stanley's Cafeteria v. Abramson, 226 Va. 68, 306 S.E.2d 870, 873 (1983)) (emphasis and brackets in original). The requisite elements of waiver do not conflict with the general principle articulated in 13 Williston on Contracts § 39:31 (4th ed.), and they control its application under Virginia law.
The record shows that UG has failed to carry its burden on its waiver argument. Contrary to evidencing an intent to relinquish its rights, ST's actions in the wake of its receipt of the June 2008 letter from UG demonstrate that it intended to preserve those rights.
When ST received the Gaines letter, it did not accept the position announced by UG that IOF Combo 100 Loans that had not been underwritten using DU were not eligible for coverage under the policy. Rather, ST immediately stated its disagreement and then set out to resolve the dispute through negotiations with UG. When negotiations had not resolved the dispute by October 2008, ST and UG entered into the Tolling Agreement, which, as a result of multiple extensions executed *885 in the midst of continued negotiations, remained in effect through July 2009. In addition to tolling the limitations period for claims related to the coverage dispute, the Tolling Agreement provided in clear terms that "SunTrust wishes to preserve and protect its right to prosecute any and all claims SunTrust may have against UG related to the Dispute, the Policies, [and] insurance coverage obligations under the Policy for certain SunTrust insurance claims stemming from SunTrust mortgage products." ST Ex. 56. ST's conduct after receiving the Gaines letter and the terms of the Tolling Agreement foreclose a finding that, by continuing to pay premiums, it intended to relinquish its known right to assert against UG any rights it had respecting its insurance coverage.
And, not more than two weeks after UG informed ST in July 2009 that it was no longer amenable to resolving the dispute through negotiations, ST sued UG, alleging, among other things, a breach of the insurance policy on account of UG's denials of claims on IOF Combo 100 Loans that had not been underwritten using DU. Then, when UG filed its Counterclaim, Count IV of which sought a declaratory judgment to enforce provisions of the insurance policy providing for continued payment of renewal premiums after the exhaustion of UG's coverage obligation, ST timely pled its first material breach defense as an affirmative defense to the relief sought by UG.
ST continued to pay the premiums because UG led ST to believe that the dispute could be settled, and ST did not want UG to cancel the coverage for non-payment of premiums under Section 3.6 of the Master Policy while the parties were working to compromise the dispute. Nothing in the record demonstrates that ST continued to pay premiums on the loans because it agreed with UG's stated position in the Gaines letter, or because it had excused UG's denial of claims on the loans. Accordingly, UG has failed to show by clear, precise, and unequivocal evidence that ST intended to relinquish its right to raise ST's denial of claims on IOF Combo 100 Loans as a basis for its first material breach defense.
UG's reliance on American Chlorophyll, Inc. v. Schertz, 176 Va. 362, 11 S.E.2d 625 (1940), and federal cases citing to it, for its waiver argument is without merit.[26] First, American Chlorophyll is factually inapposite. In American Chlorophyll, "the parties specifically contracted that no breach should be grounds for terminating the contract unless two notices were given, the first stating that a breach had occurred, and the second that the thirty-day `period of grace' had expired and that the contract was henceforth at an end." 11 S.E.2d at 628 (emphasis in original). Because the plaintiff failed to terminate the contract in the prescribed manner after the defendant had breached, the court found that the plaintiff had waived his right to assert the defendant's prior breach as a bar to the defendant's counterclaim for damages. Id. The facts at issue here are not at all like those in American Chlorophyll. The insurance policy does not limit the ability of a party to cancel the policy based on the breach of another party. And, ST and UG executed the Tolling Agreement explicitly preserving then-extant and potential claims related to the dispute, and they extended it many times. The Tolling Agreement establishes that, from the nascent stages of the dispute, ST intended to preserve its rights related to the dispute *886 (and, moreover, gave notice of its intention to do so to UG). On facts such as these, which were not before the American Chlorophyll court (or any court which since has cited that decision), it cannot be said that ST waived its right to rely on UG's denial of claims as a predicate for its first material breach defense.
Second, even if American Chlorophyll were factually applicable (and it is not), this district recently held that American Chlorophyll is no longer good law for the waiver principle for which UG cites it. See Tandberg, Inc. v. Advanced Media Design, Inc., No.1:09cv863, at 9-11 (E.D.Va. Dec. 11, 2009) (Order) (finding "plainly meritless" the proposition that "American Chlorophyll and its progeny remain good law in Virginia" based on the "weight of authority supporting application of Countryside and Horton" and at least twenty other decisions in Virginia state and federal courts permitting operation of the first material breach doctrine to prevent enforcement of a contract by the breaching party even when both parties continued to perform the contract). The decision in Tandberg is well-documented, and independent assessment of the underlying authorities counsels that it is correct. Hence, the Court adopts Tandberg here.
II. ST May Sue For Contract Damages And Raise As An Affirmative Defense Its First Material Breach Defense
A. Position of the Parties
UG argues that, "awarding expectation damages and excusing [ST's] own obligations are overlapping and duplicative remedies that would result in a double recovery and an unjustified windfall."[27] "Thus," UG argues, "the doctrine known as the election of remedies holds that `[w]hen a material breach of contract has occurred, a party has two recourses: rescind the contract and recover the value of any performance made by it or affirm the contract and recover damages for the breach.'"[28] According to UG, "a party cannot do both."[29]
ST meets that argument by pointing out that it is not seeking a double recovery. "The only remedy sought by SunTrust in this case," argues ST, "is damages for UG's breach."[30] ST clarifies that "[t]he material breach affirmative defense is not a remedy. Rather, it is the interposition of a legal reason why United Guaranty is not entitled to the remedy it seeks, i.e., a declaratory judgment that it can continue to collect premiums after the coverage under its policy is exhausted."[31] It follows, according to ST, that it may seek damages as a remedy for its breach of contract claim in Count I of the TAC and plead its first material breach defense as an affirmative defense to UG's requested relief in Count IV of the Counterclaim.
B. Analysis
UG's election of remedies argument must be rejected. It conflates two distinct concepts in the civil litigation process: a remedy sought under a cause of action and an affirmative defense raised as a bar to a *887 cause of action. In this action, ST seeks but one remedy: damages for UG's breach of contract. ST seeks that remedy in Count I of the TAC, which ST filed in its capacity as a plaintiff before UG filed its Counterclaim. ST's first material breach defense, on the other hand, is an affirmative defense, not a remedy. An affirmative defense is a "response to a plaintiff's claim which attacks the plaintiff's legal right to bring an action." BLACK'S LAW DICTIONARY 60 (6th ed. 1990). ST's first material breach defense, which ST raised in its capacity as a defendant, thus is a response to UG's request for declaratory relief that attacks UG's legal right to the declaratory judgment that is sought in Count IV of the Counterclaim. With ST's first material breach defense properly conceived as the affirmative defense that it is, the election of remedies doctrine simply has nothing to say about ST's ability to plead it in this action.[32]
It appears that Virginia courts have never squarely addressed, in the election of remedies context, the ability of a party to seek damages for breach of contract and absolution from further performance under the same contract as a result of the other party's material breach. However, they have, commensurate with the inherent distinction between remedies and affirmative defenses, permitted the award of contract damages in conjunction with the operation of the first material breach doctrine.
The decision in Shen Valley Masonry, Inc. v. S.P. Cahill and Associates, No. 00-75, 2001 WL 34038625 (Va.Cir.Ct. Dec. 11, 2001), is illustrative. There, the court both awarded a plaintiff subcontractor $332,033 in "completed but unpaid labor" and $4,585 in "clean up and equipment removal costs" stemming from a defendant general contractor's breach of a subcontract and denied the defendant general contractor's prayer for liquidated damages based on the latter's "initial material breach" of the subcontract. Shen Valley Masonry, 2001 WL 34038625, at *8-9. The court articulated the first material breach doctrine as follows: "[t]he party who commits the first breach of a contract is not entitled to enforce the contract." Id. at *6 (citing, among other cases, Countryside Orthopaedics v. Peyton, 261 Va. 142, 541 S.E.2d 279 (2001); Horton v. Horton, 254 Va. 111, 487 S.E.2d 200 (1997)). Significantly, the court said nothing about the first material breach doctrine's precluding a plaintiff (even one who benefits from the doctrine's operation) from suing for damages on the contract. The court's silence in this regard is not surprising, because, as explained above, the first material breach doctrine operates not as a remedy requested by a party in its capacity as a plaintiff, but as an affirmative defense pled by a party in its capacity as a defendant.[33]
The Supreme Court of Virginia's decision in ADC Fairways Corp. v. Johnmark Construction, Inc., 231 Va. 312, 343 S.E.2d 90 (1986), further undermines UG's assertion that contract damages and the first material breach doctrine are mutually exclusive "remedies." In ADC Fairways, the court permitted a plaintiff contractor *888 to recover damages for delays in performance that the trial court had held were a breach of the defendant real estate developer's obligations under the contract. When the defendant argued that it was entitled to an offset against the damages awarded to the plaintiff, the Supreme Court responded that the defendant "could only recover an offset if it had not breached." ADC Fairways, 343 S.E.2d at 93. It explained: "[b]ecause the trial court ruled that [the defendant] breached the contract and because we have upheld that ruling, it follows that the trial court did not err in denying [the defendant's] claim of offset."[34]Id. The allowance of the plaintiff's recovery of contract damages and concurrent denial of the defendant's right to a damages offset based on the latter's material breach of the contract in ADC Fairways is inconsistent with UG's argument that a plaintiff's request for damages under a contract and invocation of the first material breach doctrine to excuse further performance under the same contract is an either-or proposition.
In sum, the distinct nature of a remedy and an affirmative defense and the distinct functions they serve in the litigation process, as confirmed by Virginia decisions, counsel that a litigant may seek the remedy of damages under a cause of action for breach of contract and, in response to his adversary's countervailing breach of contract claim, may also invoke the first material breach doctrine, all without running afoul of the election of remedies doctrine.[35]
III. UG Breached The Insurance Policy Both In Denying Claims On ST's IOF Combo 100 Loans And In Continuing To Demand And Collect Premiums On Performing IOF Combo 100 Loans For Which It Knew Claims Would Be Denied
A. Position of the Parties
ST argues that UG breached the insurance policy in two ways. First, it argues that UG breached the insurance policy "by failing to pay SunTrust's claims on the loans at issue in Count I of the Third Amended Complaint."[36] Second, ST argues that "United Guaranty's billing for and collecting premiums on [performing] loans on which it [knew] it [would] not pay claims constitutes a . . . breach of the policy."[37]*889 ST contends that "[t]he undisputed facts show that United Guaranty made the corporate decision in the second quarter of 2008 that it would not pay a claim on any IOF Combo 100 loan that was not underwritten using Fannie Mae's Desktop Underwriter. . . automated program," yet it continued to bill for, and collect, premiums on performing IOF Combo 100 Loans that had not been underwritten using DU."[38] ST argues that, pursuant to Section 3.6 of the Master Policy,[39] UG had two options when it decided that the policy did not require it to pay claims on IOF Combo 100 Loans that had not been underwritten using DU: to cancel coverage and return the premiums paid on the loans or not cancel coverage, continue to collect premiums, and pay ST's claims on such loans despite the fact that it believed the policy did not obligate it to do so. According to ST, UG instead opted for a course forbidden by the policy: "continuing to collect premiums but providing no coverage."[40]
UG concedes, as it must, based on the Court's earlier entry of summary judgment for ST on Count I of the TAC, that, for purposes of applying the first material breach doctrine, it must be considered to have breached the insurance policy when it denied claims on IOF Combo 100 Loans that had not been underwritten using DU.[41] However, UG argues that its acceptance of premiums on performing IOF Combo 100 Loans was not a breach of policy. First, it contends that "no provision in the Master Policy, the 2004 Flow Plan, and the 2005 Flow Plan . . . requires UG to reject premiums sent by SunTrust on in-force loans."[42] Second, UG refutes ST's claim that it accepted premiums on "specific loans knowing that it would never pay a claim on that loan." UG argues that ST was slow to respond to Mr. Gaines' June 2008 request for ST's assistance in identifying IOF Combo 100 Loans that had not been underwritten using DU, noting that ST did not send UG the list of loans that, in ST's estimation, had not been underwritten using DU until February 2009. UG also argues that the list itself was inaccurate. It notes that claims have been made on about 4,400 of the loans on the list and, further, that 341 of these claims were paid by UG.[43] According to UG, the fact that it found those 341 claims to be valid proves that, contrary to ST's representations, not all the loans on the list were non-DU loans. Finally, UG argues that it received the list of loans at a time when settlement discussions were ongoing with ST. UG contends that, if it had stopped demanding and collecting premiums on the performing IOF Combo 100 Loans, it would have jeopardized the efficacy of those discussions and breached the Tolling Agreement by disturbing the "status quo" relationship of the parties.[44]
B. Analysis
ST rests its breach argument respecting UG's continued collection of premiums principally on Section 3.6 of the Master *890 Policy. ST also repeatedly argues that UG acted improperly in continuing to collect premiums on performing IOF Combo 100 Loans when it knew that it would never pay a claim on those loans.[45] In considering the record and the parties' post-trial briefs, the Court construed these arguments to be that UG's continued collection of premiums breached its duty to deal in good faith with its insured on a matter of the insurance contract. The Court ordered the parties to state their respective positions on UG's continued collection of premiums in respect to the duty of good faith and fair dealing after the close of trial,[46] and ST confirmed the Court's construction of its arguments as alleging that, in continuing to collect premiums on performing IOF Combo 100 Loans, UG "fail[ed] to deal fairly and in good faith" with ST.[47]
*891 As explained below, ST's agreement based on Section 3.6 of the Master Policy is not well taken. But, ST is correct that, in billing for, and accepting premiums on loans which it knew it would not cover, UG breached the duty of good faith and fair dealing it owed to ST.
1. Section 3.6 of the Master Policy
Section 3.6 of the Master Policy, the provision on which ST relies, does not forbid the conduct in which UG engaged respecting the performing loans on the list. The most that can be said about that provision is that it provided UG with a "right," exercisable at "its option," to cancel coverage on a loan for certain prescribed reasons. See ST. Ex. 3 § 3.6. It does not follow that UG was precluded by that provision from continuing to collect premiums on IOF Combo 100 Loansor any loans, for that matterthat it had decided were not eligible for coverage. That is because Section 3.6 simply does not speak to UG's ability under the policy to collect, or to continue to collect, premiums.
2. Implied Duty of Good Faith and Fair Dealing
However, UG's conduct in billing for and collecting premiums knowing that it would not pay claims was a breach of the insurance policy because it was a breach of the duty of good faith and fair dealing owed to ST. Although it appears that the Supreme Court of Virginia has never expressly adopted Section 205 of the Restatement (Second) of Contracts ("Restatement"), which states that "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement," the Court holds that it would do so here.
The task of a district court exercising diversity jurisdiction over an action the substance of which concerns state law is to interpret and apply the relevant state law to the controversy at issue. Where the highest court of a state has yet to address a legal issue that must be decided during the course of the federal litigation, the task of a district court sitting in diversity is to predict, as best as possible, how the state's highest court would decide the issue. See Nature Conservancy v. Machipongo Club, Inc., 579 F.2d 873, 874-75 (4th Cir.1978). In carrying out this task, the Court should consider all of the authority on the undecided issueof course, giving the most weight to applicable decisions of the state's highest court.
*892 The weight of authority counsels that, in Virginia, parties to an insurance contract are bound by an implied duty of good faith and fair dealing.[48] It follows that UG owed ST a duty of good faith and fair dealing in its performance of the insurance policy, including the collection of premiums.
Two courts have found that an implied duty of good faith and fair dealing obtains in first-party insurance relationships in Virginia, and that a breach of the duty gives rise to a contract claim. It seems that only one Virginia court has had occasion to decide whether Virginia law imposes an implied duty of good faith and fair dealing in first-party insurance relationships; and that court found that it did. See Harris v. USAA Cas. Ins. Co., 37 Va. Cir. 553, 568 (1994) (stating "this case . . . involves the application of Virginia law in a first-party insurance context. It is the opinion of this court, after careful consideration of what authority exists in Virginia and nationwide, that the Virginia Supreme Court would imply a duty of good faith in a first-party insurance context [and] would find the breach of same to give rise to a claim for breach of contract. . . .").[49] The Fourth Circuit has likewise held that an implied duty of good faith and fair dealing governs first-party insurance relationships in Virginia. In A & E Supply Co. v. Nationwide Mutual Fire Ins. Co., 798 F.2d 669 (4th Cir.1986), the Fourth Circuit explained that, pursuant to Section 205 of the Restatement, "[a]ll contracting parties owe to each other a duty of good faith in the performance of the agreement." 798 F.2d at 676. And, citing Carpenter v. Virginia-Carolina Chemical Co., 98 Va. 177, 35 S.E. 358 (1900), the Court of Appeals concluded that "the Virginia Supreme Court has long enforced . . . bonds [of good faith] in contract despite an absence of an express promise among the parties." A & E Supply, 798 F.2d at 676-77. Moved in part by such authorities, *893 the Fourth Circuit held that, "in a first-party Virginia insurance relationship, liability for bad faith conduct is a matter of contract," with the contract itself and general contract law "govern[ing] the measure of recovery."[50]Id.; see also Florists' Mutual Ins. Co. v. Tatterson, 802 F. Supp. 1426, 1436 (E.D.Va.1992) (citing A & E Supply for the proposition that "[i]n first-party Virginia relationships, liability for bad faith conduct can only arise from the contract and extends only to situations connected with the policy"). And, one decision in this district, when addressing allegations of an insurer's bad-faith refusal to pay benefits under a policy, has stated that, "[u]nder Virginia law, every contract contains an implied covenant of good faith and fair dealing in the performance of the agreement." Penn. Life Ins. Co. v. Bumbrey, 665 F. Supp. 1190, 1195 (E.D.Va. 1987).
Outside the context of insurance, numerous Virginia state and federal courts in Virginia have acknowledged that an implied duty of good faith and fair dealing obtains in contractual relationships under Virginia law. Many of those courts have done so in cases involving contracts governed by the Uniform Commercial Code, which, pursuant to Va.Code § 8.1A-304, there is no question "impose[] an obligation of good faith in [their] performance and enforcement." See, e.g., Charles E. Brauer Co., Inc. v. NationsBank of Virginia, 251 Va. 28, 466 S.E.2d 382, 385 (1996) (stating "[t]he breach of an implied duty under the U.C.C. gives rise . . . to a cause of action for breach of contract"). Many of those decisions, however, have acknowledged an implied duty of good faith and fair dealing in cases involving contracts not governed by the Uniform Commercial Code, and therefore outside Va.Code § 8.1A-304's ambit.[51]See, e.g., Stepp v. Outdoor World Corp., 18 Va. Cir. 106, 111 (1989) (recognizing an "implied covenant of good faith and fair dealing by all parties in the performance" of a contract for the sale of real estate); Virginia Vermiculite, Ltd. v. W.R. Grace & Co., 156 F.3d 535, 542 (4th Cir.1998) (announcing, during its construction of a contract for the sale of land and conveyance of mining rights, that "it is a basic principle of contract law in Virginia, as elsewhere, that although the duty of good faith does not prevent a party from exercising its explicit contract rights, a party may not exercise contractual *894 discretion in bad faith, even when such discretion is vested solely in that party" (emphasis in original)); Enomoto v. Space Adventures, Ltd., 624 F. Supp. 2d 443, 450 (E.D.Va.2009) (stating "[i]n Virginia, every contract contains an implied covenant of good faith and fair dealing," and, in so stating, rejecting the argument that an implied covenant of good faith could not exist under Virginia law when there was an express contract setting forth the parties' duties); Johnson v. D & D Home Loans Corp., No. 2:07cv204, 2007 WL 4355278, at *3 (E.D.Va. Dec. 6, 2007) (noting, in response to defendants' argument that Virginia law did not recognize an implied duty of good faith and fair dealing respecting a contract for the deed of real property, that "[u]nder Virginia law, every contract contains an implied covenant of good faith and fair dealing").
The decisions that have recognized an implied duty of good faith and fair dealing in non-Uniform Commercial Code contracts have done so in line with the position adopted by the majority of jurisdictions: that a duty of good faith and fair dealing governs all contracts at common law. See generally Steven J. Burton, Breach of Contract and the Common Law Duty To Perform In Good Faith, 94 Harv. L.Rev. 369, 369 (1980) (explaining "[a] majority of American jurisdictions . . . recognize the duty to perform a contract in good faith as a general principle of contract law"); id. at 404 (appendix) (providing an extensive list of state and federal cases "explicitly recogniz[ing] a general obligation of good faith performance in every contract at common law"). Of course, this is the position taken by Section 205 of the Restatement, the origins of which, notably, trace to the Uniform Commercial Code provision that served as a genesis for Va. Code § 8.1A-304.[52]See Restatement (Second) of Contracts § 205 cmt. a (1981) (explaining the concept of "good faith" by referencing Uniform Commercial Code §§ 1-201(19) and 2-103(1)(b)).
Some who have argued against finding an implied duty of good faith and fair dealing under Virginia law have relied on Ward's Equipment, Inc. v. New Holland North America, 254 Va. 379, 493 S.E.2d 516 (1997). There, the Supreme Court of Virginia wrote: "in Virginia, when parties to a contract create valid and binding rights, an implied covenant of good faith and fair dealing is inapplicable to those rights. This is so under either the common law or the Uniform Commercial Code. . . ." Ward's Equipment, 493 S.E.2d at 520.
Taken in isolation, it has been maintained that the statement in Ward's Equipment counsels against finding an implied duty of good faith and fair dealing under Virginia law. But, the statement was not made in isolation, and therefore it should not be so construed. In the sentence directly following the passage quoted above, the Supreme Court of Virginia wrote: "[g]enerally such a covenant cannot be the vehicle for rewriting an unambiguous contract in order to create duties that do not otherwise exist." Id. (citations omitted). From this latter statement it is clear that the Court was not saying in Ward's Equipment that an implied duty of good faith and fair dealing did not exist at all under Virginia law. Rather, the Court was saying that an implied duty of good faith and fair dealing must yield to the express terms of the contract when the *895 latter might be conceived as inconsistent with the former. See Enomoto, 624 F.Supp.2d at 450 (concluding "Ward's . . . addressed only conduct that Defendant was explicitly authorized to undertake by the contract"). And, in any event, it cannot be maintained that Ward's Equipment rejected categorically an implied duty of good faith and fair dealing in Virginia since the Court, after all, cited Va.Code § 8.1-203, the predecessor to Va.Code § 8.1A-304. Like Va.Code § 8.1A-304, Va. Code § 8.1-203 imposed a duty of good faith and fair dealing in every contract under the Uniform Commercial Code. Thus, to read Ward's Equipment as rejecting an implied duty of good faith and fair dealing as a matter of course is to make the rather untenable conclusion that the Supreme Court of Virginia either was unaware of or ignored a statutory provision which it itself cited.
In summary, the weight of state and federal authority, inside and outside the insurance context, counsels that, commensurate with Section 205 of the Restatement, an implied duty of good faith and fair dealing obtained in the insurance policy executed between ST and UG. Analytically, there is no reason to differentiate between contracts falling under the Uniform Commercial Code and contracts that do not insofar as an implied duty of good faith and fair dealing is concerned. A legal regime that recognized the duty in contracts for the sale of goods but did not recognize the duty in contracts for the sale of land, or, as is relevant here, the provisioning of insurance, would be arbitrary in the extreme. This Court therefore joins the numerous courts that have concluded that Virginia law recognizes no such distinction.
3. UG's Breach of the Implied Duty of Good Faith and Fair Dealing
Having found that an implied duty of good faith and fair dealing governed the insurance policy, it must be determined whether UG breached the duty. As the state and federal caselaw instructs, if UG breached the duty, it breached the policy under Virginia law.
a. The Duty Of Good Faith And Fair Dealing In The Context Of The Insurance Policy
The duty of "good faith" defies a fast and true definition. But, at minimum, it includes "faithfulness to an agreed common purpose and consistency with the justified expectations of the other party [to a contract]." Restatement (Second) of Contracts § 205 cmt. a (1981); see also RW Power Partners, L.P. v. Virginia Elec. & Power Co., 899 F. Supp. 1490, 1498 (E.D.Va.1995) (citing, among other authorities, the commentary of Section 205 of the Restatement for a definition of "good faith").
It is beyond dispute that a "justified expectation" of the party who contracts for insurance with an insurance company is that the payment of premiums to the company secures from the company a promise to provide insurance. More specifically, the payment of premiums by the insured, and acceptance thereof by the insurer, secures a promise from the insurer to pay claims on the property for which the premium has been paid.[53] Naturally, there *896 will be some instances where, based on the terms of the insurance policy and the conduct of the insured, the payment of a claim is neither required nor appropriate after the insurance company has collected premiums. But, it strains credulity to accept as correct UG's position that an insurance company is free to demand and retain premiums on items for which, prior to and contemporaneous with the demand and collection of premiums, the company actually knows it will not insure simply because the insurance policy does not expressly prohibit such conduct on the part of the company. That is especially true where, as here, the insurer actually has said that retention of premiums is improper. The demand and retention of premiums under such circumstances is so antithetical to the purpose of a contract for insurance that an express prohibition of the kind that UG indicates is absent from the insurance policy will hardly, if ever, be found.
The record clearly shows that the common purpose that underlay the ST/UG insurance contract was to provide ST a measure of relief from the default of somewhat risky loans. Indeed, ST obtained insurance from UG on second-lien mortgage loans in part because the loans were riskier than their first-lien counterparts and because ST appreciated the historical volatility of the national real estate market. ST's justified expectation was that, if it paid premiums, it would have the coverage for which it paid those premiums. According to ST's records, UG insured about 26,000 second-lien loans affiliated with the IOF Combo 100 Loan product. Not later than June 2008, as evidenced by the Gaines letter, UG decided that it would not pay claims on IOF Combo 100 Loans that had not been underwritten using DU. In Gaines' letter, UG requested ST's assistance in identifying IOF Combo 100 Loans that, according to UG's interpretation of the policy, would not be eligible for claim payments because they had not been underwritten using DU. ST expressed disagreement with UG's interpretation of the policy, but, nonetheless, in February 2009, ST provided UG with a list of some 12,000 IOF Combo Loans that it believed were not subject to coverage under UG's interpretation of the policy. UG confirmed that the loans on the list comported with its records. In the months after receiving the list of loans (March 1, 2009, through March 31, 2011), UG demanded and collected not less than $12,027,250 in premiums from ST for the loans on the list.
*897 b. UG's Argument Respecting Parties' Settlement Of ST's Count I Fees And Costs
UG argues that the "Settlement, Stay, and Tolling Agreement" ("Settlement Agreement") executed between the parties bars ST from advancing the argument, in support of its first material breach defense, that UG breached its duty of good faith and fair dealing in continuing to collect premiums on performing IOF Combo 100 Loans. That position is not well-taken because the limited scope of the Settlement Agreement is evidenced by its clear terms: "Subject to the terms below, UG stipulates to a monetary amount for the fees and costs associated with ST's claim, and ST agrees to accept that monetary amount in lieu of pursuing its fees and costs under Virginia Code § 38.2-209 with respect to Count I" (emphasis added).[54] The Settlement Agreement thus effected a settlement on ST's claim for attorney's fees and costs pursuant to Va.Code § 38.2-209 due on account of UG's refusal to pay the insurance on the loans at issue in Count I of the TAC. It did not effect a settlement on ST's assertion that UG acted improperly in continuing to collect premiums on performing IOF Combo 100 Loans as that claim might relate to ST's first material breach defense, which ST pled as an affirmative defense to Count IV of UG's Counterclaim. In proffering the Settlement Agreement as a bar to the Court's consideration of ST's claim that UG acted improperly in continuing to collect premiums,[55] UG conflates a claim brought by the insured in its capacity as a plaintiff that the insurer denied claims in bad faith with an affirmative defense brought by the insured in its capacity as a defendant that, by failing to perform the policy consonant with the duty of good faith and fair dealing, the insurer has materially breached the policy and therefore may not pursue its own claim (in this instance for declaratory relief) under the policy.
c. UG's Justifications Offered At Trial For Its Continued Collection Of Premiums
UG offered three reasons at trial to justify its continued demand for, and collection of, premiums after its decision in June 2008 to deny claims on IOF Combo 100 Loans that had not been underwritten using DU and after its receipt in February 2009 of the list of IOF Combo 100 Loans that, according to ST, had not been underwritten using DU. First, UG recites (and accurately so) that the policy is silent as to UG's ability to continue to demand and collect premiums. Second, UG says that the list of loans furnished by ST was inaccurate. Third, UG explains that it did not want to impede the settlement negotiations or breach the Tolling Agreement.
UG's first justification is unavailing for the reason explained above that, under Virginia law, UG had a duty to perform the contract in good faith, even if the contract was silent as to that duty. UG's second justification is likewise unpersuasive. The record shows that UG never raised the inaccuracy of the list of loans as a reason why it could continue to demand and collect premiums on the loans. The first time that notion appeared was in response to ST's first material breach defense and even then it appeared late in the litigation.
*898 And, even if the list of loans had been inaccurate to the point of being unreliable (which it was not), UG had a right to audit the loans on the list, as it did with all the loans insured under the policy. Had UG audited the loans, it could have dispelled any legitimate concern about the integrity of the list.[56] For sure, owing to the large number of loans on the list, any meaningful effort to investigate the list's accuracy likely would have required a more than trivial investment of resources on the part of UG. But, as the insurer, UG had an obligation to determine which loans were in fact not eligible for claim payouts under its interpretation of the policy and to stop collecting premiums on those loans. And, UG certainly had this obligation once ST provided it with a list of loans confirming UG's stated belief that a large portion of the loans for which ST believed it was paying premiums (about 12,000 of the approximate 100,000 total loans then insured under the policy) were likely ineligible for coverage, at least, in view of UG's interpretation of the policy. UG's disregard for its obligation is demonstrated by the fact that it set out to determine which loans were not eligible for coverage under its stated interpretation of the policy and then, after ascertaining from the insured that there were almost 12,000 loans meeting that description, UG continued to accept the very premiums which its executives say it could not properly accept.
UG's third justification for its continued demand and collection of premiums is equally unconvincing. The Tolling Agreement entered into in October 2008, and its subsequent extensions, simply preserved the rights of the parties "with respect to claims or potential claims between the parties" (emphasis added). In essence, it foreclosed any waiver of a claim or defense and tolled statutes of limitations. It did not by its terms prohibit either ST or UG from changing its position vis-a-vis the coverage dispute or its course of conduct therein. Thus, a decision by UG to stop billing ST or to stop accepting premium payments would not have breached the Tolling Agreement.
It likely is true, however, that a decision to stop accepting premiums would have disrupted, perhaps even ended, the settlement discussions. But, even if UG was animated by such a motive to avoid that result, it certainly did not have that reason after it refused to execute the settlement agreement and declined thereafter even to discuss settlement further.[57]
The bottom line is that, from March 2009 through March 2011, UG continued to bill for, and collect, premiums on IOF Combo 100 Loans that, by February 2009, at the latest, ST had clearly identified as not being eligible for coverage under UG's expressed interpretation of the insurance policy. Because UG persisted in subscribing to that interpretation of the policy in March 2009, and at all times thereafter, it had an obligation to stop demanding and *899 collecting premiums on the loans. This obligation stemmed not from any express language in the policy, but from the duty of good faith and fair dealing that UG owed to ST based on the common purpose of the insurance contractto insure ST's loans in return for the payment of premiums on such loansand the justified expectation of STnot to pay premiums on loans as to which UG knew that it would not provide the coverage for which ST was paying.
Moreover, the record clearly shows that UG wanted to continue to collect premiums on the performing IOF Combo 100 Loans because it understood that the maximum cumulative liability for the pools would likely be reached in any event, and thus it was to UG's benefit to continue collecting renewal premiums on these loans in the future since, whether they did or did not default, UG would still be paying out the same amount in insurance claims to ST (capped at the combined maximum cumulative liability of the applicable pools).
d. UG's Arguments Offered After Trial In Response To ST's Assertion That UG Breached The Duty Of Good Faith And Fair Dealing
The foregoing are the three arguments UG offered at trial in defense of its continued collection of premiums on performing IOF Combo 100 Loans. In DEFENDANT UNITED GUARANTY'S REPLY REGARDING GOOD FAITH AND FAIR DEALING (Docket No. 543) at 1-3, UG recently posited three additional reasons why, in its view, it cannot be held to be in breach of the duty of good faith and fair dealing. Specifically, UG argues: first, ST has failed to prove by the requisite clear and convincing evidence standard that UG acted in bad faith; second, UG's continued collection of premiums "[did] not prevent ST from enjoying the benefit of the insurance contract," and thus, under Florists' Mutual, 802 F.Supp. at 1436 (stating "for there to be a bad faith claim, there must be some bad faith that in some way impaired the ability of the insured to receive the benefits of the insurance contract causing the plaintiff damages"), cannot act as the basis for a finding of bad faith; and, third, "given ST's position (accepted by this Court) that IOF Combo 100 loans were covered under the insurance contract and eligible for claim payments, UG presumably would have breached the express terms of the contract had it done exactly what ST now urges: return premiums and rescind coverage on the entire body of disputed loans." None of these new rationales for avoiding a finding that UG breached its duty of good faith and fair dealing are persuasive.
First, even if, as UG argues, State Farm Mutual Automobile Insurance Co. v. Floyd, 235 Va. 136, 366 S.E.2d 93 (1988), controls on the issue of the evidentiary burden, thus imposing a clear and convincing evidentiary standard here (and the decision arguably does not control, since it involved allegations, unlike those here, that the insurer acted in bad faith in failing to settle a claim within the policy limits and said: "we hold that bad faith must be proved by clear and convincing evidence in cases of this kind," 366 S.E.2d at 98 (emphasis added)), the records shows, clearly and convincingly, that UG's continued collection of premiums on loans the claims for which it knew it would deny was a breach of its duty to perform the insurance policy in good faith.
Second, Florists' Mutual, 802 F. Supp. 1426, does not bar a finding that UG breached the duty of good faith and fair dealing here because the record clearly establishes that UG's continued collection of premiums impaired the ability of ST to receive the benefits of the insurance contract. *900 As explained in note 53, supra, the payment of premiums in return for insurance coverage is the "essence" of a contract for insurance. ST has paid millions of dollars in premiums (thus being deprived of the benefit of the use of that money) on IOF Combo 100 Loans that UG knew it would not cover. Although those loans have not defaulted, and hence have not been denied coverage by UG, it cannot be reasonably maintained that UG's conduct has not impaired ST's ability to receive the benefit of the policy. UG knowingly billed for and collected premiums on loans for which it knew there was to be no insurance coverage. It is difficult to imagine a more substantial impairment of an insured's benefits under a policy. The mere happenstance that ST has not had need to submit claims on the loans owing to the loans' continued performance does not alter the fact that ST has paid millions of dollars in premiumsat UG's demand for what UG knew would amount to nothing in the way of insurance coverage.
Third, a finding that UG breached its duty of good faith and fair dealing in continuing to collect premiums on performing IOF Combo 100 Loans is separate and distinct from the Court's earlier finding that UG breached the insurance policy by denying claims on IOF Combo 100 Loans based on such loans' not having been DU-underwritten. Relevant to the former is what UG knew at the time it decided to bill for and collect premiums on the performing IOF Combo 100 Loans, not what UG knows nowonly after being told by the Courtthat its denial of claims on the Count I loans was a breach of the policy. The record clearly shows that, when UG received the Partlow loan list, it believed IOF Combo 100 Loans that had not been underwritten using DU were not covered by the policy and that, despite being of this conviction, UG continued to bill for and collect premiums on loans that ST represented as being IOF Combo 100 Loans that had not been underwritten using DU. This is the temporal context in which the propriety of UG's conduct must be assessed; and it shows UG's conduct to have been improper.
IV. UG's Breaches Of The Insurance Policy Were Material
A. Position of the Parties
ST argues, and the Court has found, that UG breached the insurance policy, first, in denying claims on IOF Combo 100 Loans that are the subject of Count I of the TAC and, second, in continuing to demand and collect premiums on performing IOF Combo 100 Loans on the Partlow list the claims for which it had decided it would deny. ST further argues that, under Virginia law, both breaches were material in view of the insurance policy. In support of its argument that UG's denial of claims was material, ST notes that, pursuant to Section 6.3 of the Master Policy, UG had an obligation to pay claims within sixty days. According to ST, the fact that the policy imposed a specific timeframe for the payment of claims made the timely payment of claims critical under the policy. Also relevant for ST is that, as of June 30, 2009, around when ST filed suit, UG had denied claims in an amount totaling approximately $63 million. The magnitude of this amount, argues ST, was significant to the point of being material.[58] In support of its argument that UG's continued collection of premiums on performing IOF Combo 100 Loans on the Partlow list was a material breach, ST argues that UG's conduct flouted the "fundamental function" of the policy: UG's insuring loans in exchange for ST's payment of premiums. *901 Additionally, ST argues that the amount of premiums that ST demanded and collected on the loans on the list from May 2007 to March 2011approximately $23 million was significant to the point of being material.[59]
UG offers one argument in response to the alleged materiality of both breaches. According to UG, its denial of claims on the IOF Combo 100 Loans at issue in Count I of the TAG will only result in losses to ST of approximately 2% to 3% of the "total consideration" that "ST could have expected under the contract [of] approximately $287 million [in insurance coverage]."[60] UG explains that, based on the operation of the maximum cumulative liability under the 2005 Flow Plan, "[r]escinding coverage on the approximately $88 million in loans at issue in Count I reduced UG's [coverage] liability by approximately $7 million" from $287 million to $280 million.[61] That $7 million is paltry, contends UG, in comparison to the $287 million in coverage to which ST argues it was entitled. And, says UG, ST will receive substantially all of the $287 million in coverage that ST claims it bargained for since the maximum cumulative liability for the loan pools either has been or is expected to be reached for all six pools containing IOF Combo 100 Loans.[62]
B. Analysis
Virginia law defines a "material breach" as "a failure to do something that is so fundamental to the contract that the failure to perform that obligation defeats an essential purpose of the contract." Horton, 487 S.E.2d at 204. It includes a "failure of consideration of such a degree that the remaining consideration may be deemed to be no substantial consideration." Neely v. White, 177 Va. 358, 14 S.E.2d 337, 341 (1941). "Proof of a specific amount of monetary damages is not required when the evidence establishes that the breach was so central to the parties' agreement that it defeated an essential purpose of the contract." Horton, 487 S.E.2d at 204 (citations omitted).
In assessing the materiality of a breach, this district has considered the permissive factors set forth in Section 241 of the Restatement. See, e.g., RW Power, 899 F.Supp. at 1496-97 (quoting and applying the Restatement factors).[63] Those factors are:
(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
*902 (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
Assessment of these factors and the Virginia caselaw on materiality demonstrates that UG's breaches, considered in combination,[64] constituted a material breach of the insurance policy.
The record clearly shows that UG's breaches substantially denied ST the benefit it reasonably expected under the insurance policy. UG's argument, reduced to its core, is that, in the end, ST will get nearly all of what it bargained for in insurance coverage as a consequence of the interaction between the capped nature of UG's coverage obligation and the number and amount of claims that ST has made, and likely will make, for its other loans insured under the policy. What UG's argument ignores is that ST did not pay premiums on the IOF Combo 100 Loans on which UG denied claims to get insurance coverage on other loans for which it was already paying premiums.
And, even if UG had eventually paid the claims on these loans (which it has not), what UG's argument further ignores is that ST did not pay premiums on the IOF Combo Loans in return for a promise by UG to insure those loans at a time when UG saw fit to do so. Pursuant to Section 6.3 of the Master Policy, ST paid premiums in exchange for UG's promise to pay claims within sixty days of their being made. ST Ex. 3 § 6.3; see also Trial Tr. 410:1-16, 421:12-22. The timeliness of UG's payment of claims was critical not just because the policy indicated it was, but also because ST had purchased insurance from UG to protect itself in precisely the type of situation in which it found itself in and around 2007, 2008, and 2009, when its claims were being denied. During those years, ST, like most banks, was under severe stress from the national collapse of the stock and residential real estate markets. Trial Tr. 95:24-96:23. It is hollow for UG to claim that substantially delayed receipt of the insurance coverage is tantamount to receiving the insurance proceeds within the time specified by the policy and that ST needed, and had contemplated needing, in those years. Cf. Tandberg, Inc. v. Advanced Media Design, Inc., No. 1:09cv863, 2009 WL 4067717, at *4 (E.D.Va. Nov. 23, 2009) (stating "under Virginia law, it is well-settled that failure to make timely payment constitutes a material breach" (citing, among other cases, Horton, 487 S.E.2d at 204)).
It must be said, too, that the magnitude of UG's denial of claims forced substantial hardship on ST. In June 2009, shortly before ST filed suit, the claims outstanding for IOF Combo 100 loans was approximately $63 million. ST Ex. 74; Trial Tr. 410:1-16. This outstanding balance equated to more than 25% of UG's total coverage obligation at that time for the six pools *903 containing IOF Combo 100 Loans. UG's refusal to pay such a significant portion of its total coverage obligation was certainly a material breach of the policy.[65]
Timely payment of its claims was an integral feature of both the policy and ST's decision to purchase insurance from UG. Moreover, UG's continued demand and collection of premiums on performing IOF Combo 100 Loans for which it knew claims would be denied resulted in ST paying millions of dollars in premiums during a two-year period in which ST was under significant economic pressure.
Where, as here, ST has incurred substantial harm as a result of UG's breaches, it cannot be said that relieving ST of its obligation to pay further premiums on all the loans insured under the policy will result in a forfeiture to UG. UG argues that, "in the two years since SunTrust filed suit on Count I, it has collected over $130 million in additional claims payments and now has less than $6 million in claims payments remaining [as a function of the maximum cumulative liability of the pools] despite owing United Guaranty over $90 million in continued premiums."[66] To terminate ST's obligation to continue paying renewal premiums at this juncture, contends UG, would give a windfall to ST at UG's expense.
Although UG's argument has some superficial appeal, upon closer examination, it is must be rejected. First, UG's argument wholly neglects the fact that UG's obligations under the terms of the insurance policy extended not only to paying ST's claims, but also to paying ST's claims in a timely manner (i.e., sixty days). Thus, while UG may have paid "$130 million in additional claims" since this action has *904 been pending, it scarcely can be maintained that UG substantially performed the policy when it did not timely payand, in fact, did not pay at allapproximately $63 million in claims on IOF Combo 100 Loans that were outstanding as of June 2009. Second, of the $130 million that UG says it has paid ST during the pendency of this litigation, it must be remembered that $63 million of itthat is, almost half of itwas due ST before the litigation commenced and would have counted against UG's maximum liability under the policy (which UG itself concedes has been or likely will be reached for all six of the pools containing Count I loans). Thus, in reality, the "additional" performance that UG has rendered is at most only about $67 million. Third, while the consequence of applying the first material breach doctrine here is financially significant, it cannot be considered to effectuate a forfeiture on UG, or to confer a windfall for ST, when one takes into account the effects of the breach on UG's insured.
The remaining two factors of Section 241 of the Restatement augur that UG's breaches were material. There is nothing in the record suggesting that UG has attempted to cure its breaches.[67] In fact, quite to the contrary, UG has persistently insisted that it did not breach the policy. And, as found respecting UG's continued billing for, and collection of, premiums on the performing IOF Combo 100 Loans on the Partlow list, UG failed to conform its conduct to standards of good faith and fair dealing.
On this record, ST has carried its burden to prove that UG's failures to perform its obligations, respecting both the payment of claims and the collection of premiums, defeated an essential purpose of the contract of insurance.
V. The Insurance Contract Is Not Severable
Having determined that UG breached the insurance policy in two distinct ways, and having now further determined that those breaches were material under Virginia law in view of the language and purpose of the insurance policy, it follows that UG may not sue for further performance on the contract under the first material breach doctrine. See 4A M.J. Contracts § 77 ("The party who commits the first material breach of a contract is not entitled to enforce it or to maintain an action thereon against the other party for his or her subsequent failure to perform."). This is so unless the policy is severable. See 2 Couch on Ins. § 23:1 ("Whether a contract of insurance is considered entire or whether its parts are severable is of great importance in determining the effect of a breach of part of the contract. If the contract is entire, all of the [party's] protection will be lost upon a breach as to any part of the risk, but if the contract is severable, only the part of the policy directly affected by or connected with the breach will be avoided."); see also 15 Williston on Contracts § 45:17 (4th ed.) ("[A] recovery may be had for part performance of a divisible contract, and is not barred by a subsequent breach by the party seeking recovery. By contrast, in an indivisible contract, the entire fulfillment of the promise by either party, in the absence of any agreement to the contrary or waiver, is a condition precedent to the fulfillment of any part of the promise by the other party.").
*905 A. Position of the Parties
UG argues that the insurance policy is severable on a "loan-by-loan basis." The corollary of this, contends UG, is that, because UG's breach only related to the IOF Combo 100 Loans that were denied coverage and the performing IOF Combo 100 Loans on the Partlow list, ST's first material breach defense does not bar a judgment, as it seeks in Count IV of the Counterclaim, obligating ST to pay future premiums on the other loans insured under the policy, notwithstanding the maximum cumulative liability having been reached for the pools in which those loans are housed.[68] In support of its severability argument, UG cites East Augusta Mutual Fire Insurance Co. of Virginia v. Hite, 219 Va. 677, 250 S.E.2d 348, 352 (1979) (holding "the better rule . . . on the question of the divisibility of a contract of insurance for a gross premium on several items of property separately valued[] is that it depends upon the nature and entirety of the risk. Thus, where the property is so situated that the risk of one item affects the risk on the other, the contract is entire and not divisible"). UG argues that, because each loan insured under the policy had "unique risk characteristics and every borrower ha[d] a unique risk profile," with the ultimate effect being that "the risk of default of one loan [did] not impact the risk of default on any other loans," East Augusta counsels that the policy is severable on an individual loan basis.[69]
UG further argues that the operation of the maximum cumulative liability evidences the severable nature of the policy. UG spotlights that the cancellation or denial of coverage as to one loan in a pool did not set at naught the contractual relationship between the parties; rather, as UG indicates, it merely resulted in the maximum cumulative liability for a pool being adjusted downward to reflect the loss of the removed loan's value.[70]
Additionally, UG maintains that the sheer scope of the policy augurs for severability. UG notes that the policy insures "over a hundred thousand loans presenting different types of risks," and that, "in this context, it cannot reasonably be inferred that the parties intended to let a single, isolated breach (or even the breach of several loans with the same characteristic) unravel the entire contract."[71]
UG acknowledges that a single rate factor was applied to each loan insured under the policy in calculating premiums, but it argues that the significant feature of the premiums' calculations, insofar as the issue of severability is concerned, is that "the rate factor was applied to individual loans and a separate premium was apportioned to each loan."[72] Finally, UG asserts that *906 the language employed in provisions of the policy demonstrates the policy's severable nature.
Among the provisions significant for UG are: first, Section 3.1 of the Master Policy, providing that "if a loan meets the Reporting Program Guidelines, the insured may submit that loan with a New Loan Summary Form"; second, Section 1.2 of the Master Policy, defining "Certificate" as "the document extending the indicated coverage option to a specified Loan under this Policy"; and, third, Section 3.6 of the Master Policy, authorizing UG to
cancel coverage under any Certificate with respect to the related Loan if any of the Insured's representations made with respect to such Loan were materially inaccurate . . . or if the Insured has otherwise materially breached any of its obligations . . . in connection with such Loan or related Certificate.[73]
The repeated references to individual loans insured under the policy, according to UG, evidences the parties' intent to enter into an insurance contract making "each loan. . . severable from the others."[74]
ST argues that the insurance policy is not severable based on "the express language of the . . . insurance contract, the manner in which [the] contract was implemented, and the testimony of United Guaranty's own witnesses."[75] First, ST cites Section 1.32 of the Master Policy, which defines "Policy" as "this contract of insurance and all the applications, attachments, Exception Approvals, Commitments, Certificates, amendments, endorsements, and schedules related hereto, which are incorporated herein a made part hereof with respect to the Loans to which they relate."[76] Important to ST is that Section 1.32 defines the policy as a singular contract "deal[ing] with a mass of loans."[77] According to ST, Section 1.32's definition of "Policy" as one document with global effect is to be expected given that "for both financial and administrative reasons, the parties agreed that there would be a single Master Policy whose terms would govern all loans insured by United Guaranty."[78]
Second, ST argues that UG did not perform a "loan-by-loan risk assessment" in deciding whether to accept loans for coverage under the policy. On this point, ST notes that UG's former president, Alan Atkins, testified that UG formulated and approved "broad guidelines," "parameters," and "criteria" for the types of loan products that it would insure under the policy, and that, rather than assessing the particular risk for each loan as it was submitted for coverage, UG insured each loan so long as it comported with the broad criteria approved by UG in advance of the loan's submission.[79]
Third, ST argues that the method of calculating premiums under both the 2004 Flow Plan and the 2005 Flow Plan establishes the non-severable nature of the policy. Respecting the calculation of premiums under the 2004 Flow Plan, ST takes the view that the initial premiums were based on the twenty-year performance of all the loans UG had insured with all of its lenders, and that UG's actuarial department calculated a rate factor for each loan *907 product that, in turn, was applied to the outstanding balances of loans within a product category.[80] "The 2005 Flow Plan changed the manner in which premiums were calculated," says ST, "but again premiums were not based on any loan-by-loan risk assessment, but rather on the performance of the entire SunTrust loan portfolio."[81]
Here, ST notes that the initial rate under the 2005 Flow Plan, which governed for the first two years, was based on the most recent seven or eight-year experience of ST's loan portfolio and the quality of the business UG expected in the future. Then, in the third and subsequent years under the 2005 Flow Plan, notes ST, the premium rate was based on the paid loss ratio, which was the ratio of the cumulative losses divided by the cumulative premiums paid by ST for all the loans insured under the policy over the most recent seven years.[82] Critical for ST is that, under both the 2004 Flow Plan and 2005 Flow Plan, the rate factor applied to the outstanding balances of the loans to calculate the premiums owed on the loans had nothing at all to do with the particular risks of the individual loan to which the rate factor was applied. In short, ST argues that the determination of the rate factor was based on aggregate math.
Fourth, ST argues that the maximum cumulative liability reveals the indivisible nature of the policy, since, by way of its operation, "United Guaranty's risk regarding any particular loan depends on the status of the entire loan pool."[83] Fifth, and finally, ST rejects UG's contention that the principles articulated in East Augusta show the policy to be severable on a loan-by-loan basis. Because "both the manner in which premiums are set and limits on liability are established [] are based on the cumulative performance of the insured loans and not on a loan-by-loan basis," ST argues that East Augusta, which recognized the interconnectedness of the risk of insured items as evidencing an indivisible contract, counsels against severability here.
B. Analysis
Eschner v. Eschner, 146 Va. 417, 131 S.E. 800 (1926), states the test for severability in Virginia:
[p]rimarily the question of whether a contract is entire or severable is one of intention, which intention is to be determined from the language which the parties have used and the subject matter of the agreement. A contract may, both in its nature and its terms, be severable and yet rendered entire by the intention of the parties.
131 S.E. at 802 (internal quotation marks omitted). Furthermore, "[t]he divisibility of the subject matter of the contract will not determine the entire or severable character of the contract, although it may often assist in determining the intention of the parties." Id. (internal quotation marks omitted). In assessing the intention of the parties, "regard is to be had to the situation of the parties, the subject matter of the agreement, the object which the parties had in view at the time and intended to accomplish." Id. (internal quotation marks omitted). "If the intent is expressed in writing, it of course controls; if not, it is to be discovered with the aids referred to in the Eschner case as well as by the practical consideration given the contract by the parties themselves." *908 O'Quinn v. Looney, 194 Va. 548, 74 S.E.2d 157, 159 (1953).
The record clearly demonstrates that the insurance policy is not severable on a loan-by-loan basis.[84] It is true that the policy has indicia of severability at the individual loan level. For, as UG emphasizes, multiple provisions of the policy speak to the submission of a "Loan" for coverage, the extension of coverage to a "Loan," and the cancellation or exclusion from coverage of a "Loan." And, undeniably, UG's maximum cumulative liability for a pool is dependent on each individual loan to the extent that terminating coverage on a loan, and hence removing it from a pool, decreases UG's coverage obligation for that pool commensurate with the removed loan's value. Moreover, the premiums paid under both the 2004 Flow Plan and 2005 Flow Plan were loan-specific in that they were calculated by applying a rate factor (unique to each kind of loan product under the 2004 Flow Plan and applied policy-wide under the 2005 Flow Plan) to the outstanding balances of individual loans. Further, each bill that UG sent ST, in addition to showing a gross premium for the month, showed the premium owed for each loan insured under the policy. And, it cannot be reasonably maintained that the language of the policy supports an argument that the cancellation of coverage on a single loan ended either party's duties with regard to the other loans insured under the policy.
But, when one considers these features of the policy in relation to the broader context of how the policy came to be and how the parties operated under it, it must be concluded that ST and UG intended to implement an indivisible contract of insurance by way of the Master Plan and, later, the 2004 Flow Plan and 2005 Flow Plan. To the extent that the policy called for coverage to be extended and terminated on a loan-by-loan basis, it did so out of convenience and necessity rather than a desire on the part of the parties to create thousands of individual contracts of insurance for each loan insured under the policy.
The record relating to the execution of the Master Policy substantiates this. ST and UG executed the Master Policy to insure second-lien mortgage loans originated as part of ST's Combo Loan program. Under the Master Policy, each month, ST submitted the loans that it had originated for coverage. UG, in turn, issued each loan a unique certificate number, which confirmed coverage pursuant to the terms of the Master Policy and performed the necessary functions of allowing UG to track the loans, verify that premiums had been paid on them, and, qualify and process claims on them. The parties chose this method of doing business, and wrote it into the Master Policy, to provide a means by which UG could insure in bulk ST's Combo Loan productswhich were diverse and oftentimes changingwithout UG having to pre-approve each loan, which, of course, would have delayed the lending process. If the Master Policy can be said to have done one thing, it was to implement a streamlined method of insuring large quantities of loans with wide-ranging and variable characteristics under one contract of insurance.
*909 The Master Policy's definition of the "Policy" as "this contract of insurance and all applications, attachments, Exception Approvals, Commitments, Certificates, amendments, endorsements and schedules related thereto, which are incorporated herein and made a part hereof with respect to the Loans to which they relate," ST Ex. 3 § 1.32 (emphasis added), confirms that the Master Policy established a single contract of insurance. Rather than defining the "Policy" as a conglomeration of individual "Certificates" or "Loans," which themselves equate to individual contracts of insurance, Section 1.32 defined the "Policy" as "this contract of insurance"singularwhich "incorporates" the "Certificates" and made them "a part" of one cohesive whole.
The 2005 Flow Plan further reinforces the Master Policy, and hence the policy as a whole, as a document intended to insure ST's loans efficiently on a global scale. It developed in response to ST's increasing requests for UG to insure additional types of Combo Loans and to offer ST sweeping discounts on its premiums. And, further illustrative of its purpose, it resulted in UG's instituting an "Experience Rating Plan," under which the rate factor applied to all the loans insured under the policy would be "based on the cumulative loss ratio of the insured business," with the cumulative loss ratio being the quotient of the aggregate losses over the most recent seven years for all the loans insured under the policy and the aggregate realized premiums for the most recent seven years of all the loans insured under the policy, all without regard to particular loans or loan types. ST Ex. 5. This aggregate method of calculating premiums, which took into account the performance of ST's entire loan portfolio with UG, followed another method of calculating premiums that had been used under the 2004 Flow Plan, which likewise did not rely on any loan-specific rate factor. Under this earlier method of calculating premiums, UG's actuaries calculated a rate factor for each type of Combo Loan product based on the twenty-year performance of all the loans UG had insured with all of its lenders. UG then applied the rate factors derived to the Combo Loan products to which the calculated risk corresponded.
Under both the 2005 Flow Plan and the 2004 Flow Plan, UG calculated the premiums for each loan using each loan's outstanding balance as the base against which the rate factor was applied to determine the premium owed. But, neither the fact that the premium was calculated as to each loan nor the fact that the outstanding balance of each loan factored into the premium counsels for severing the policy on a loan-by-loan basis. East Augusta instructs that the "nature and entirety of the risk" must be considered in assessing the divisibility of a "contract of insurance for a gross premium on several items of property separately valued." 250 S.E.2d at 352. "[W]here the property is so situated that the risk of one item affects the risk on the other, the contract is entire and not divisible." Id. Here, the 2005 Flow Plan, in basing the rate factor for each loan on the aggregate cumulative performance of all the loans insured under the policy, effectively made the risk of insuring any one loan under the policy necessarily bound up with, and thus inseparable from, the risk of insuring all of the other loans under the policy. Under such circumstances, East Augusta teaches that the policy should be regarded as entire and indivisible.[85] UG is *910 correct to indicate that the risk associated with any one particular loan insured under the policy did not actually depend on the risk associated with any of the other loans insured under the policy, since one loan's default was an event unto itself. But, tellingly, the policy did not treat the risk of each loan as independent; rather, it treated the risk of each loan as interdependent. It must be concluded, therefore, that the parties rejected an arrangement that would give rise to standalone contracts of insurance for each loan ST insured with UG.
UG's coverage obligation under the policy further reveals the non-severable nature of the contract. With UG's maximum cumulative liability being capped for each pool based on a percentage of the total amount of loans insured in a pool, UG's *911 coverage obligation was intertwined not with the individual performance of any one loan, but rather the performance of the mass of different loans in each pool. The removal of a loan from a pool affected UG's coverage obligation for the pool; however, given the number of loans in each pool, the effect was trivial in relation to the sum of all the loan amounts in the pool. The locus of UG's coverage obligation was the aggregate total of the loans insured in each pool, not events pertaining to any one individual loan.
In arguing for severability, UG contends that not finding the contract severable would result in the Court having to find "unreasonably" that the "parties intended to let a single, isolated breach (or even the breach of several loans with the same characteristic) unravel the entire contract." This is hyperbole. The only manner relevant to the Court's purposes here in which the contractual relationship of the parties would, to borrow UG's words, "unravel" by function of the law is if one party materially breached the policy; and, as the Court's analysis on the issue of materiality evinces, "material" breaches of contracts are not usually found on an "isolated breach." UG materially breached the insurance policy by denying coverage on more than thirteen hundred IOF Combo 100 Loans and continuing to demand and collect premiums on many thousands more which it knew it would not insure. That conductwhich hardly can be said to be an "isolated breach"is the reason why ST will not be obligated to perform further under the policy.
The prevailing purpose of the insurance policy, the policy's implementation of premium rates and liabilities, and the parties' conduct under and pursuant to the policy demonstrate that the parties intended to create one contract of insurance to insure second-lien loans en masse. The policy therefore must be held entire and indivisible. The effect of the Court's holding is that UG's ST's first material breach defense not only bars UG from a judgment obligating ST to continue to pay renewal premiums on performing IOF Combo 100 Loans on the Partlow list, but also bars UG from a judgment obligating ST to continue to pay renewal premiums on all other performing loans insured under the policy because the policy is not severable from the former category of loans.
CONCLUSION
For the reasons stated above, ST has met its burden on its first material breach defense, and judgment will be entered for ST on Count IV of UG's Counterclaim.
It is so ORDERED.
NOTES
[1] ST pled the affirmative defense in SUNTRUST MORTGAGE, INC.'S ANSWER TO UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY OF NORTH CAROLINA, INC.'S COUNTERCLAIM (Docket No. 63) at 16 in alleging: "United Guaranty materially breached the subject contract(s) first, thus precluding it from obtaining any relief or recovery thereunder."
[2] Counterclaim at 32, ¶ 4.a.
[3] See generally ORDER (Docket No. 452); MEMORANDUM OPINION (Docket No. 451). The procedural history predating the Court's entry of summary judgment in favor of UG on Count IV of the Counterclaim is set forth in the MEMORANDUM OPINION (Docket No. 451) at 2-3.
[4] MEMORANDUM OPINION (Docket No. 451) at 2. The basis for the Court's holding is set forth more fully in the MEMORANDUM OPINION (Docket No. 451) at 15-23.
[5] Counterclaim at 32, ¶ 4.a.
[6] See SUNTRUST MORTGAGE, INC.'S BRIEF IN OPPOSITION TO DEFENDANT UNITED GUARANTY'S MOTION FOR SUMMARY JUDGMENT ON COUNT IV OF ITS COUNTERCLAIM (Docket No. 216) at 22-24. There in fact were two rounds of summary judgment briefing on Count IV of the Counterclaim. The first round followed DEFENDANT UNITED GUARANTY'S MOTION FOR SUMMARY JUDGMENT ON COUNT IV OF ITS COUNTERCLAIM AGAINST PLAINTIFF SUNTRUST MORTGAGE (Docket No. 186), which was filed on October 4, 2010. Finding genuine disputes of material fact on the record then before it, the Court denied that motion on December 10, 2010. ORDER (Docket No. 310). The second round followed ST's MOTION FOR JUDGMENT ON THE PLEADINGS ON COUNTERCLAIM COUNT IV OR, IN THE ALTERNATIVE, RENEWED REQUEST FOR ENTRY OF SUMMARY JUDGMENT (Docket No. 354), which was filed on March 4, 2011, and which prompted UG to file DEFENDANT UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY OF NORTH CAROLINA'S RENEWED MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIM COUNT IV. Those motions culminated in the ORDER (Docket No. 452) and MEMORANDUM OPINION (Docket No. 451) entering summary judgment for UG on Count IV of the Counterclaim. The Court overlooked ST's affirmative defense in the MEMORANDUM OPINION (Docket No. 451) because, while that issue was clearly briefed in the first round of summary judgment briefing, it was but briefly raised in the second.
[7] "IOF Combo 100 Loans" are the type of loans at issue in Count I of the THIRD AMENDED COMPLAINT (Docket No. 121). They consist of a second-lien loan made behind an interest-only first-lien loan with a combined loan-to-value ratio of up to 100%. Trial Transcript of Evidentiary Hearing of May 25-26, 2011:65:12-66:3, 66:22-69:4.
[8] MEMORANDUM IN SUPPORT OF SUNTRUST'S MOTION FOR SUMMARY JUDGMENT ON COUNT IV OF UNITED GUARANTY'S COUNTERCLAIM (Docket No. 469) at 15.
[9] Id. at 3.
[10] ORDER (Docket No. 459).
[11] Id.
[12] ORDER (Docket No. 492).
[13] See id. ("The [post-trial] briefs shall cite to the record by page and line number and shall not cite to, or otherwise rely on, evidence that was not admitted at the bench trial on the merits of SunTrust's affirmative defense to Count IV of [the Counterclaim].").
[14] The Court has set forth the allegations in Count I of the TAC in detail in prior opinions. See MEMORANDUM OPINION (Docket No. 403) at 3-4; MEMORANDUM OPINION (Docket No. 448) at 2-3.
[15] The reasons for the Court's holding are set forth in the MEMORANDUM OPINION (Docket No. 448) and the MEMORANDUM OPINION (Docket No. 518), which are incorporated by reference here.
[16] UG is a North Carolina corporation with its principal place of business in Greensboro, North Carolina. Jurisdiction lies under 28 U.S.C. § 1332, there being diversity of citizenship and the amount in controversy exceeding $75,000.00.
[17] These documents are ST Exs. 3, 4, and 5, respectively.
[18] The 2004 Flow Plan and 2005 Flow Plan modified UG's ten percent coverage obligation under the Master Policy by instituting a "risk share program" under which the parties agreed to pay loan losses in three, alternating layers. Under the 2004 Flow Plan, UG agreed to pay the first two percent of losses; ST agreed to pay losses exceeding two percent but not exceeding five percent of a pool's gross loan proceeds; and UG agreed to pay losses exceeding five percent but not exceeding ten percent of a pool's gross loan proceeds. ST Ex. 4. Under the 2005 Flow Plan, UG agreed to pay the first five percent of losses; ST agreed to pay losses exceeding five percent but not exceeding eight percent of a pool's gross loan proceeds; and UG agreed to pay losses exceeding eight percent but not exceeding ten percent of a pool's gross loan proceeds. ST Ex. 5.
[19] This seven-year look-back was not to go past the execution of the 2005 Flow Plan. Thus, for the first six years under 2005 Flow Plan, UG was to use data encompassing a period of time that in fact was shorter than seven years. See Trial Tr. 283:18-23.
[20] The testimony at trial was that UG considered the past seven or eights years' performance of all ST loans insured by UG. Id. at 338:14-23.
[21] The testimony did not indicate what precisely the rate factor was, but it established that, owing to the exemplary record of ST's loan portfolio, it was a "lower rate" than what UG typically offered to its other lenders. Id. at 336:17-22.
[22] A ST employee, Daniel Green, prepared the list of loans. In preparing the list, Mr. Green used ST's electronic origination system to isolate the second-lien loans insured under the policy that were coupled with an interest-only first-lien loan that had an underwriting designation of "traditional." Id. at 201:16-25. In doing this, Mr. Green was using IOF Combo 100 loans that had been underwritten traditionally as a proxy for IOF Combo 100 Loans that had not been underwritten using DU. Mr. Green's method showed 11,981 loans to have been traditionallyand, thus, presumably, not DUunderwritten.
Because Mr. Green used a proxy method, he did not review the individual loan files of the IOF Combo 100 Loans included on the list, which were in ST's, not UG's, possession. Given the information available on ST's electronic records system, review of the loan files would have been the only way to determine with absolute certaintywhether a loan had been underwritten using DU.
Mr. Green subsequently verified the list of 11,981 loans with an alternate method. Instead of isolating the IOF Combo Loans that had been traditionally underwritten, as he had previously done, he isolated the IOF Combo Loans that ST's records indicated as having been processed through the DU software. Mr. Green learned that IOF Combo 100 Loans that had been so processed would have a first-lien loan with a "DU decision" (also referred to throughout the record as a "DU finding") designation. A "DU decision" refers to a report generated by the DU software after loan data had been put into, and processed by, the software. Id. at 212:16-20. Mr. Green understood that, just because ST's records indicated a "DU decision" for a loan, it did not follow that the loan had actually been underwritten using DU. Id. at 213:12-214:4, 215:23-216:7. The presence of a "DU decision" notation merely meant that the loan had been run through the DU software. Mr. Green found that about 14,000 loans had a "DU decision."
Mr. Green had cause to believe that his initial proxy method was accurate based on the 14,000 figure. DeeDee Hadalski, a ST employee to whom Mr. Green often turned when he needed large data pools pertaining to ST's loans, id. at 206:5-11, had given him a spreadsheet indicating that a total of 26,172 IOF Combo 100 Loans were insured under the policy, UG Ex. 68. With the earlier proxy method indicating that about 12,000 IOF Combo 100 Loans had been underwritten traditionally, Mr. Green would have expected to find that about 14,000 IOF Combo 100 Loans had a "DU decision" designation when that field was acting as a proxy for loans that had been underwritten using DU, since the sum of 12,000 traditionally underwritten loans and 14,000 DU-underwritten loans equaled 26,000 loans, thus accounting for substantially all of the IOF Combo 100 Loans that Ms. Hadalski's spreadsheet showed to be insured under the policy.
[23] See DEFENDANT'S NOTICE OF REMOVAL (Docket No. 1) (noting filing date of "July 16, 2009").
[24] UNITED GUARANTY'S MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AS TO COUNT IV OF ITS COUNTERCLAIM AND IN OPPOSITION TO SUNTRUST'S MOTION FOR SUMMARY JUDGMENT (Docket No. 478) at 8.
[25] SUNTRUST'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE TRIAL OF SUNTRUST'S AFFIRMATIVE DEFENSE TO COUNT IV OF UNITED GUARANTY'S COUNTERCLAIM (Docket No. 503) ("ST's Proposed Facts and Law") at 25.
[26] UNITED GUARANTY'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING COUNT IV OF UNITED GUARANTY'S COUNTERCLAIM (Docket No. 506) ("UG's Proposed Facts and Law") at 31.
[27] Id. at 29.
[28] Id. (quoting Siemark Corp. v. Ningbo Haitian Mach. Co., No. 147502, 1997 WL 1070617, at *1 (Va.Cir.Ct. June 11, 1997)).
[29] Id. at 30.
[30] SUNTRUST'S REPLY TO UNITED GUARANTY'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING COUNT IV OF UNITED GUARANTY'S COUNTERCLAIM (Docket No. 508) ("ST's Reply to UG's Proposed Facts and Law") at 22.
[31] Id.
[32] The inapplicability of the election of remedies doctrine renders inapplicable Robb v. Vos, 155 U.S. 13, 15 S. Ct. 4, 39 L. Ed. 52 (1894), and similar cases cited in UG's Proposed Facts and Law at 30-31, the rationales of which rely on the election of remedies doctrine. The inapplicability of these cases was foretold, in any event, by the fact that they all involve a situation unlike the one here, where a plaintiff sought the inconsistent remedies of damages under a contract and rescission of the same contract.
[33] Conceptually, the concept could be asserted by a declaratory judgment plaintiff, but that need not be addressed here.
[34] The Court is aware that, in ADC Fairways, the Court reversed the trial court's lost profits award of $47,781.13 on account of the award being based on evidence that the court found too speculative. The reversal of the lost profits portion of the damages award, however, does not diminish the persuasive effect of ADC Fairways in relation to UG's election of remedies argument, because the Court still permitted the remaining $75,630.87 in damages to be awarded to the plaintiff while also holding that the defendant's claim for a damages offset was barred on account of the first material breach doctrine. Clearly, in ADC Fairways, the Court had an opportunity either to vacate the entire damages award on account of the operation of the first material breach doctrine or to preempt the operation of the first material breach doctrine on account of the plaintiff's seeking damages under the contract if it deemed a suit for damages on a contract and the operation of the first material breach doctrine as being irreconcilable under the law. Tellingly, the Court did neither.
[35] As explained below in the main text of the opinion, where there is no state decision directly on point, a federal court sitting in diversity must attempt to predict how the state court would apply its law to the facts of the federal case. The decisions in ADC Fairways, Countryside Orthopaedics, and Horton instruct that the election of remedies doctrine does not foreclose, under Virginia law, a reliance on the same breach of a contract affirmatively as the basis for a claim and defensively as the predicate for an affirmative defense.
[36] ST's Reply to UG's Proposed Facts and Law at 9.
[37] Id. at 6.
[38] Id.
[39] Section 3.6 of the Master Policy provides in pertinent part: "[UG] shall have the right, at its option and to the extent permitted by applicable law, to cancel coverage under any Certificate with respect to the related Loan [and] [UG's] liability shall be limited to the return of premium. . . ." ST Ex. 3 § 3.6.
[40] ST's Reply to UG's Proposed Facts and Law at 7.
[41] UG's Proposed Facts and Law at 2.
[42] Id. at 5.
[43] Id. at 6.
[44] Id.
[45] For example, ST's Proposed Facts and Law at 22 states: "[p]resent and former members of United Guaranty's senior management, including former President, [sic] Alan Atkins, [sic] testified that it was improper for United Guaranty to collect and retain premiums on IOF Combo 100 Loans where the first lien loan was not underwritten using DU because United Guaranty knew it would never pay a claim on such loans." ST's Reply to UG's Proposed Facts and Law at 1 states that United Guaranty "collected millions of dollars in premiums for coverage it had no intention of providing." ST's Reply to UG's Proposed Facts and Law at 6 further quoted UG's witnesses to argue that UG's continued collection of premiums was "not appropriate" and "would not be right." And, ST's Reply to UG's Proposed Facts and Law at 2 describes UG's alleged breach of the policy as "intentional."
[46] See ORDER (Docket No. 539) (ordering two rounds of "simultaneous briefs on the duty of good faith and fair dealing as it relates to first-party insurance relationships in Virginia and United Guaranty's continued collection of premiums on the loans in question"). ST filed the following briefs in accordance with the order on August 8 and 11, 2011, respectively: SUNTRUST MORTGAGE, INC.'S OPENING BRIEF ON THE DUTY OF GOOD FAITH AND FAIR DEALING (Docket No. 540) and SUNTRUST MORTGAGE, INC.'S REPLY BRIEF ON THE DUTY OF GOOD FAITH AND FAIR DEALING (Docket No. 542). And UG filed the following briefs on August 8 and 11, 2011, respectively: DEFENDANT UNITED GUARANTY'S POST TRIAL BRIEF REGARDING THE COVENANT OF GOOD FAITH AND FAIR DEALING (Docket No. 541) and DEFENDANT UNITED GUARANTY'S REPLY REGARDING GOOD FAITH AND FAIR DEALING (Docket No. 543).
[47] See SUNTRUST MORTGAGE, INC.'S REPLY BRIEF ON THE DUTY OF GOOD FAITH AND FAIR DEALING (Docket No. 542) at 7.
In DEFENDANT UNITED GUARANTY'S REPLY REGARDING GOOD FAITH AND FAIR DEALING (Docket No. 543) at 14, UG argues that ST has waived its right to argue that "UG breached the implied covenant of good faith and fair dealing . . . [g]iven [ST's] consistent position throughout this litigation from its early pleadings that UG breached the express terms of the parties' contract, and ST's failure to even mention the possibility that UG breached an implied covenant of good faith and fair dealing" (internal quotation marks omitted and brackets in original). UG is not correct in its conclusion.
First, as ST's statements quoted in note 45, supra, evince, UG had notice that ST's position was that UG's continued collection of premiums on performing IOF Combo 100 Loans was improper. Although ST did not employ the precise phrase "breach of an implied covenant of good faith and fair dealing," it was clear from ST's statements in its briefs before and after trial, as well as its questioning of witnesses and presentation of evidence during trial, that it was alleging that UG's continued collection of premiums was a reason (among others) to hold that UG had materially breached the insurance policy.
Second, the evidence adduced at trial, irrespective of the clarity of ST's position on UG's collection of premiums, clearly supports a finding that UG breached an implied covenant of good faith and fair dealing by continuing to collect premiums on performing IOF Combo 100 Loans. That will be addressed later in the main text of the opinion. Suffice it to say here that it would contravene the Court's role as the finder of fact (the trial on ST's first material breach doctrine being one without a jury) not to make a finding that the evidence clearly supports.
Third, and flowing from the first two points, UG has not shown that it was prejudiced by ST's arguing after trial, for the first time explicitly, that UG breached an implied covenant of good faith and fair dealing in continuing to collect premiums on performing IOF Combo 100 Loans. Because ST made clear its position before, during, and after trial that UG's continued collection of premiums was an affront to basic notions of fair business practices, much of the oral and documentary evidence offered at trial (by both UG and ST, the latter of which UG had fair opportunity to rebut) addressed the issue of why UG continued (and has continued) to collect premiums on the loans in question. Indeed, UG even offered evidence at trial on why ST wanted to continue to pay premiums on the loans. Given the parties', and thus the record's, attention at trial to the fact of UG's continued collection of premiums (not to mention the multiple rounds of briefing, as ordered by the Court, on the discrete issue of the duty of good faith as its pertains to UG's continued collection of premiums), it cannot be said that UG has been denied an opportunity to respond to ST's claim (or, for that matter, the Court's understanding of it) that UG breached an implied covenant of good faith and fair dealing in continuing to collect premiums on the performing IOF Combo 100 Loans.
[48] Both parties agree that Virginia has taken the view that a duty of good faith and fair dealing in contract exists in Virginia. See DEFENDANT UNITED GUARANTY'S POST TRIAL BRIEF REGARDING THE COVENANT OF GOOD FAITH AND FAIR DEALING (Docket No. 541) at 1, 3-5; SUNTRUST MORTGAGE, INC.'S OPENING BRIEF ON THE DUTY OF GOOD FAITH AND FAIR DEALING (Docket No. 540) at 6-7.
[49] The Court notes that another Virginia court raised, without deciding, the issue of whether there was an implied duty of good faith and fair dealing in first-party insurance relationships in Coker v. State Farm Fire & Cas. Co., No. 161002, 1998 WL 972219 (Va. Cir.Ct. June 4, 1998). The court noted that the Supreme Court of Virginia had yet to decide the issue, but that it had "recognized the potential liability of an insurer for an excess judgment obtained against the insured, arising from the insurer's refusal to settle a claim within the policy limits" in Aetna v. Price, 206 Va. 749, 146 S.E.2d 220 (1966). The court took this as an indication that the Supreme Court of Virginia had recognized an implied duty of good faith and fair dealing in third-party insurance contexts, but not first-party insurance contexts. Coker, 1998 WL 972219, at *6 n. 6.
The Court's own review of Virginia caselaw confirms the continued vitality of Price. See Erie Ins. Group v. Hughes, 240 Va. 165, 393 S.E.2d 210 (1990) (citing Price for the proposition that an insurer has a "duty to exercise good faith in dealing with the offer of compromise" made by a third-party tort claimant that is within the insurance policy's coverage limits); Reisen v. Aetna Life & Cas. Co., 225 Va. 327, 302 S.E.2d 529 (1983) (same); see also Levine v. Selective Ins. Co. of America, 250 Va. 282, 462 S.E.2d 81 (1995). Although the Supreme Court of Virginia's recognition of an implied duty of good faith and fair dealing in third-party insurance relationships is by no means dispositive in the direction of finding an identical duty in first-party insurance relationships, it is reasonable to conclude that such recognition makes it at least more likely that the Supreme Court of Virginia would recognize an implied duty in a first-party relationships too.
[50] In addition to defining the duties that an insurer owes to an insured, one of which, the Court of Appeals found, was a duty to act in good faith in the performance of the policy, A & E Supply held that an insurer's breach of the duty of good faith gave rise to an action in contract, not tort, and thus punitive damages would not be available stemming from the breach. 798 F.2d at 676-78. In A & E, the Fourth Circuit directed most of it analysis toward answering the question of the proper area of the lawcontract or tortin which a claim for bad-faith practices in a first-party insurance relationship sounded. Notwithstanding that focus, the Court of Appeals clearly recognized that an insurer owes a duty of good faith to the insured in first-party insurance contexts.
[51] The Court is aware that Virginia courts have not always found an implied duty of good faith and fair dealing outside the purview of the Uniform Commercial Code. They have refused to locate the duty in at-will employment contracts. See, e.g., Spiller v. James River Corp., 32 Va. Cir. 300 (1993); Burton v. Central Fidelity Bank, 14 Va. Cir. 159 (1988). These decisions, however, are not applicable to the insurance context. The at-will employment relationship is a unique creature of the law, which rests on the presumption that an employer can fire an employee for virtually any reason it desires, without explanation. An implied duty of good faith and fair dealing in such contracts would run contrary to their very purpose and substance. The same is not true of insurance contracts, as the cases that have dealt with those types of contracts confirm.
[52] Echoing the Restatement, Michie's Jurisprudence speaks to a broadly applicable duty of good faith and fair dealing: "The law implies a covenant of good faith and fair dealing in every contract for the purpose of evaluating a party's performance of that contract." 4A M.J. Contracts § 58 (citing, among another case, A & E Supply, 798 F.2d 669).
[53] So elementary is this principle that it stands on its own. It bears mentioning, however, that the axiom finds support in Virginia insurance cases that, though addressing facts and legal issues different from the ones here, provide basic insight into the relationship between the insured and insurer under Virginia law. See Autumn Ridge, L.P. v. Acordia of Va. Ins. Agency, Inc., 270 Va. 83, 613 S.E.2d 435, 438 (2005) ("The risk undertaken by the insurer is an essential element of a contract of insurance, and no premium is due from the insured unless the risk attaches."); Ingrams v. Mut. Assur. Soc., 40 Va. 661, 668 (Va.1843) ("For the premium paid by the insured, and the risk which the insurer takes upon himself, are considerations each for the other; they are correlatives, whose mutual operation constitutes the essence of the insurance contract."); see also Foremost Guar. Corp. v. Meritor Sav. Bank, 910 F.2d 118 (4th Cir.1990) (holding an insurance company waived the right to rescind coverage when it continued to accept premiums with knowledge of grounds for rescission).
Not surprisingly, the axiom also finds support in insurance treatises. See, e.g., 5 Couch on Ins. § 79:6 ("As a general rule, an insurer is entitled only to such premium as the risk carried reasonably warrants. It follows that where . . . a premium has been paid for which there has been no corresponding risk, the unearned premium should be returned to the insured.").
Finally, UG itself acknowledged the inherent impropriety in collecting premiums on propertyin this case, loansthat were not eligible for coverage. For example, the Gaines letter stated that "[i]t is not appropriate for [UG] to continue to accept premium on loans that are not eligible for claim payment." ST Ex. 10; see also Trial Tr. 125:18-23. And, Mr. Gaines acknowledged the same at trial: "[UG's] not going to keep somebody's premium if the loan did not qualify [for coverage]. That would not be right." Trial Tr. 302:16-17.
[54] This language is taken from the Settlement Agreement that counsel for UG provided to the Court and represented as being the version that the parties executed.
[55] See DEFENDANT UNITED GUARANTY'S REPLY REGARDING GOOD FAITH AND FAIR DEALING (Docket No. 543) at 15-17.
[56] The fact that, as UG claims, some 300 of the approximately 12,000 loans on the list had in fact been run through DU, UG's Proposed Facts and Law at 17, is thus irrelevant to the appropriateness of UG's continued demand and collection of premiums on the loans on the list.
[57] UG argues that ST wanted to continue to perform under the policy by continuing to pay premiums on the loans on the list because ST had determined by September 2008 that it was to its benefit to do so. Id. at 11-12. But, even if ST wanted to continue to pay premiums on the loans in order to maximize its coverage under the policy, UG had a duty (notwithstanding ST's motivations) arising from the basic purpose of the policy and reasonable expectation of ST not to demand and collect premiums on loans that, according to its interpretation of the policy, were not covered.
[58] ST's Proposed Facts and Law at 20-21.
[59] Id. at 21-22.
[60] UG's Proposed Facts and Law at 26-27.
[61] Id. at 27.
[62] Id. at 9.
[63] Although the Supreme Court of Virginia has not formally adopted Section 241 of the Restatement, it has cited its commentary in expounding on the type of evidence required to establish a material breach. Horton, 487 S.E.2d at 204. Moreover, other Virginia courts have relied extensively on Section 241 of the Restatement in assessing the materiality of a breach. See, e.g., South Auburn L.P. v. Old Auburn Mills, L.P., No. 24210, 2005 WL 1995433, at *5 (Va.Cir.Ct. Aug. 18, 2005).
[64] Precedent shows that, in assessing the materiality of multiple breaches, as the Court must do here, it is appropriate to consider the combinedor "cumulative"effect of the breaches. See, e.g., Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 187 (2d Cir.2007) (stating "if [the plaintiff] breached one or more warranties and the cumulative effect of such breaches was material, [the plaintiff] did not substantially perform its side of the deal"); Coleco Indus., Inc. v. Berman, 423 F. Supp. 275, 313 (E.D.Pa. 1976) (considering the defendants' breaches singly and in combination in determining their materiality); Prima Classe USA, Ltd. v. The Gitano Group, Inc., No. 91cv1765, 1992 WL 51546, at *2-3 (S.D.N.Y. Mar. 9, 1992) (same); Talley v. Talley, 566 N.W.2d 846, 851 (S.D.1997) (rejecting the defendant's argument that the "trial court's cumulative application of the breaches of each individual agreement to support a finding of material breaches of all the agreements was in error").
[65] It is appropriate to measure the effect of UG's denial of claims on the IOF Combo Loans at issue in Count I of the TAG in June 2009 and not now, or sometime in the future, as UG contends. Farnsworth on Contracts § 8.16 ("The time for determining materiality is the time of the breach. . . .").
UG places much emphasis on Neely v. White, 177 Va. 358, 14 S.E.2d 337 (1941). There, the Supreme Court of Virginia held that a defendant could not use a non-party corporation's breach of a contract, ninety-three percent of which, the Court noted, had been performed, as a basis for barring the plaintiff from suing the defendant for damages on a separate contract, the obligations of which the defendant had assumed from the nonparty corporation in another transaction. Neely, 14 S.E.2d at 340. Citing Neely, UG argues that, because it allegedly has provided (in the months after June 2009) or will provide in the future ninety-seven to ninety-eight percent of the insurance coverage ST expected to obtain under the policy, it has not materially breached the policy.
UG's reliance on Neely is misplaced. First, Neely is a novel case factually, where the defendant was citing the breach of a non-party as a basis for preempting the contract claim by the plaintiff. The interest of the Neely court in allowing the plaintiff's claim to proceed, despite the non-performance of the non-party corporation, was thus far different from any corresponding interest here. Second, and even assuming, for argument's sake, that Neely's applicability was not limited by its peculiar facts, Neely does not stand for the proposition that a court must look beyond the moment in time in which the breach occurredin this instance, to a point months, and, indeed, years, after the obligation was dueto afford the breaching party an opportunity to "cure" its prior breach. In contrast to the ninety-three percent performance referenced in Neely, which had taken place by the time of the alleged breach, the ninety-seven to ninety-eight percent performance on which UG hopes to rely can only be said to have taken place (if it took place or will take place at all) at a time significantly after (as judged by Section 6.3 of the Master Policy) the breach found by the Court. Simply put, it is a misapprehension of Neely to argue, as UG does, that the decision requires the Court to ignore the policy's sixty-day limit for the payment of claims and ST's reasons for procuring insurance from UG on the loans at issue in assessing the materiality of UG's breach.
[66] UG's Proposed Facts and Law at 36.
[67] The most that UG has done in this direction is to return the premiums collected on the IOF Combo 100 Loans at issue in Count I of the TAC. But, obviously, the return of premiums did nothing to cure the breach as to those loans, which was the denial of claims on those loans.
[68] Actually, UG argues in UG's Proposed Facts and Law at 24 that ST's first material breach defense does not bar it from a judgment obligating ST to pay future premiums on all performing loans insured under the policy, including the performing IOF Combo 100 loans on the Partlow list. However, UG's argument assumes (incorrectly) that it was not a breach of the insurance policy for it to continue demanding and collecting premiums on the performing IOF Combo 100 Loans on the list. The Court having found that UG did in fact breach the policy in continuing to demand and collect premiums on those loans, the strongest form of UG's argument that remains viable in light of the Court's ruling is that ST's first material breach defense does not bar it from seeking a declaratory judgment obligating ST to continue to pay renewal premiums on all performing loans insured under the policy that were not on the Partlow loan list. That point is addressed here.
[69] Id. at 20.
[70] Id.
[71] Id. at 21.
[72] Id. at 24.
[73] Id. at 21-22.
[74] Id. at 22.
[75] ST's Reply to UG's Proposed Facts and Law at 21.
[76] Id. at 12 (emphasis added).
[77] See id. at 13.
[78] Id. at 12.
[79] Id. at 13.
[80] Id.
[81] Id. at 14.
[82] Id. at 14-15.
[83] Id. at 17.
[84] At oral argument, the Court raised the notion, without commenting on its merit, of the policy being severable on a product-by-product basis as opposed to a loan-by-loan basis. UG acknowledged that severing the policy thusly was a possibility, but it did not meaningfully press that argument further at oral argument or in its post-trial brief. Accordingly, the Court does not address that argument here, except to say that the record does not support a finding that the policy was severable on a product-by-product basis.
[85] In addition to relying on East Augusta, UG cites and discusses at length United Guaranty Mortgage Indemnity Co. v. Countrywide Financial Corp., 660 F. Supp. 2d 1163 (C.D.Cal. 2009). UG argues that the insurance policy at issue here is "virtually indistinguishable in all material respects from the policy at issue [in Countrywide]," UG's Proposed Facts and Law at 23, which the court found severable on a loan-by-loan basis, 660 F. Supp. 2d at 1191-92.
The outcome in Countrywide should not control here for several reasons. First, Countrywide's severability analysis, and ultimately its holding, relied on California's test for severability of insurance contacts articulated in Coca Cola Bottling Co. of San Diego v. Columbia Casualty Ins. Co., 11 Cal. App. 4th 1176, 14 Cal. Rptr. 2d 643 (1992), which calls for consideration of "special factors" that the Supreme Court of Virginia has not recognized as having such status. Second, even assuming that the "special factors" articulated in Coca Cola Bottling are applicable here, those factors do not show the policy to be severable. The first two Coca Cola Bottling factors inquire whether the policy called for separate and distinct liability limits for each loan and whether the policy called for separately rated premiums for each loan. In contrast to Countrywide, both questions must be answered in the negative here. The Master Policy capped UG's coverage obligation at a percentage of the total loan amounts insured in a loan pool (meaning, therefore, that the policy did not call for separate and distinct liability limits for each loan), and, under the 2004 Flow Plan and 2005 Flow Plan, UG applied different rate factors to different categories of loan products (based on UG's actuaries' assessment of the risk associated with the loan categories) and a single rate factor to all the loans insured under the policy (based on the performance of all the loans as informed by cumulative loss ratio), respectively (meaning, therefore, that the policy did not call for separately rated premiums for each loan). It should be noted, too, that the Countrywide court seemed to misapply the second Coca Cola Bottling factor in finding that application of "a single multiplier based on the . . . overall loan profile" to all loans insured under the policy resulted in premiums being separately rated as to each loan. Id. at 1192, 14 Cal. Rptr. 2d 643. Universal application of a single rate factor to all loans insured under a policyespecially when the rate factor is predicated on the performance of the entire loan portfoliodoes not result in the policy's loans having separately rated premiums. In order to have separately rated premiums for each loan, separate rates (not separate premiums) must be applied to the loans. The Countrywide court failed to appreciate this subtlety. Third, and finally, as the third Coca Cola Bottling factor (inquiring whether "global rescission would work the absurdity of inviting litigation on irrelevant statements") suggests, the context in which the Countrywide court assessed severability is materially different from the one here. In Countrywide, the insurance company was seeking global rescission of all of the loans insured under the policy based on alleged misrepresentations of the insured that, by concession of the insurance company, did not relate to all the loans insured under the policy. Id. at 1190. The effect of the court not finding the policy severable, therefore, would have been that the insurance company would have been able to execute a global rescission of the policy based on misrepresentations of the insured that, it was uncontested, were of isolated import. ST's first material breach defense not involving an insurer's attempt to rescind coverage on loans, and certainly not involving an insurer's attempt to rescind coverage on all loans insured under a policy based on select misrepresentations of the insured, the Court's interests here respecting severability are materially different than the court's interests in Countrywide. This is all to say that Countrywide does not counsel for the result that UG claims it does. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3435036/ | The appellant Tisher, a police officer of the appellant city, and another officer, while engaged in conveying two prisoners to the city jail, ran into an automobile driven by Avery Jones, with whom appellee was riding, near the intersection of Main and Story Streets in said city, inflicting the injuries of which she complains. The collision occurred sometime after one o'clock A.M. on the night of September 30, 1928. The street was free from traffic or other obstructions at the place and in the vicinity of the collision. The police car was equipped with a horn and siren.
The negligence charged is the failure of the driver of the police car to sound the horn or siren as it approached the intersection of Main Street, on which the police car was proceeding north, with Story Street, and the operation thereof at an excessive and dangerous rate of speed and in a careless and negligent manner. A further ground of negligence was withdrawn from the jury and need not be here considered. At the conclusion of the evidence of plaintiff and again at the close of all of the evidence, appellants moved the court for a directed verdict.
One of the grounds of the motion was that the city, in providing and maintaining a police department, acts in a strictly governmental capacity, and is not liable for damages caused by the negligence or nonfeasance of its officers. The motion was both joint and severable: that is, both defendants and each separately moved for a directed verdict.
Appellee in argument severely criticizes the various assignments of appellant of the propositions relied upon for reversal. It must be confessed that several of the assignments are clearly insufficient. We are of the opinion, however, that the *Page 656
third proposition relied upon, which assigns as error the overruling by the court of the motions for a directed verdict on the ground that the appellant city, while acting in its governmental capacity, is not liable for the negligence of its officers, is sufficient.
[1] It is a well established rule, recognized by courts generally, that municipalities exercise dual functions or powers, and that, in the exercise of the one wherein the power is delegated by the sovereign to preserve the peace and to protect persons and property, they act in a governmental capacity. Police officers, while engaged in conveying prisoners from the point of arrest to the city jail, act for the municipality in its governmental capacity. Leckliter v. City of Des Moines, 211 Iowa 251; Rowley v. City of Cedar Rapids, 203 Iowa 1245; McFadden v. Jewell, 119 Iowa 321; Looney v. City of Sioux City, 163 Iowa 604; Bradley v. City of Oskaloosa, 193 Iowa 1072; Norman v. City of Chariton, 201 Iowa, 279; Harris v. City of Des Moines, 202 Iowa 53; Mocha v. City of Cedar Rapids, 204 Iowa 51.
It is obvious from the foregoing authorities without further discussion that the appellant city is not liable and that its motion for a directed verdict should have been sustained. The motion should have also been sustained upon one other ground in favor of both appellants.
[2] According to the testimony of appellee and also of her companion who was driving the automobile in which she was riding, both of them saw the police car, which was equipped with bright headlights, approaching from the south, when it was a block and a half away. Appellee was proceeding southward on Pearl Street, and, when Story Street was reached, the driver turned the car to the left to go east, and was struck by the police car on the east side of the street. The street between curbs at the point of the collision was more than eighty feet in width. The court submitted to the jury as one of the grounds of negligence the failure of the driver of the police car to sound a warning of the approach of the police car by sounding the horn or the siren, and in the instruction submitting such issue told the jury that such failure on the part of the driver, if in the exercise of ordinary prudence and caution such warning *Page 657
should have been given, would be negligence. Section 5040, Code of 1927, requires that:
"Every motor vehicle shall be equipped with a suitable bell, horn, or other signaling device producing an abrupt sound sufficiently loud to serve as an adequate warning of danger."
The submission of this issue to the jury is challenged by appellant upon the ground that both the appellee and the driver of the car in which she was riding testified that they saw the police car approaching from the south when it was a block and a half away, and that the giving of a warning would have availed them nothing. Certainly this is true. They were already apprised of the presence and approach of the police car while they were in a place of perfect safety. They were, therefore, in a position to adopt such course as was best designed to prevent a collision, with the consequent injury. It cannot in such circumstances be said that the failure of the driver of the car to sound the horn was in any respect the proximate cause of the injury. Ryan v. Trenkle, 203 Iowa 443; Wilkinson v. Queal Lbr. Co., 203 Iowa 476. The issue, therefore, should not have been submitted.
Appellant has with the same severity assailed the sufficiency of the proposition assigned at this point, and argues with considerable vigor that both the assignment and exceptions preserved to the instruction are insufficient to present a question for review by this court. We are of the opinion, however, that the assignment, although it might well have been made more full and specific, is sufficient to apprise the court and counsel of the ruling relied upon for reversal and also of the reasons upon which the claim of error is predicated. The exceptions to the instructions were sufficient to raise the point.
Other questions argued by counsel need not be considered. For the reasons already stated, the judgment of the district court must be and it is reversed. — Reversed.
FAVILLE, C.J., and De GRAFF ALBERT, and WAGNER, JJ., concur. *Page 658 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2182085/ | 338 F. Supp. 1016 (1970)
Louis HAMILTON et al.
v.
Victor SCHIRO et al.
Civ. A. No. 69-2443.
United States District Court, E. D. Louisiana, New Orleans Division.
June 25, 1970.
Luke J. Fontana and Robert Hobbs, New Orleans, La., for plaintiffs.
Blake Arata, New Orleans City Atty., for defendants.
CHRISTENBERRY, District Judge.
This cause came on for hearing on plaintiffs' motion for preliminary and permanent injunction and the court, having considered the evidence, the stipulations of the parties and counsels' briefs, now makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Orleans Parish Prison was built in 1929 and designed to house from 400 to 450 inmates.
2. The prison usually houses from 800 to 900 inmates even though the facility has never been enlarged.
*1017 3. The prison is a five-story structure with six cell-type areas and seven dormitory areas.
4. The cells, which are 13'×8½'×7½' and constructed mainly of metal, were designed to accommodate four inmates, but six to eight inmates are usually confined in each cell.
5. Each cell is usually provided with a toilet and hand bowl, but some only have water from the toilet because of the inoperable condition of the hand bowl.
6. These toilet and hand bowls are so badly corroded and rusted that cleanliness is impossible.
7. The cells have no interior lighting, the only light entering them is that from the aisles outside the cells that slants in, thus leaving the cells dim and dingy at all times. There is even less light in the many areas where windows have been boarded up, or papers stuffed in them to keep out the elements.
8. The seven dormitory areas were designed to accommodate 40 men each but now house from 60 to 80 inmates each.
9. The inmates of Parish Prison are issued mattresses, which are rarely if ever sunned or cleaned, even though they may have been vomited or urinated upon. Because of the crowded condition many have to sleep on their mattresses on the cell floor or on the aisle floor.
10. The men are issued mattress covers which they use for long periods of time, and there is difficulty in having them cleaned because of the frequent breakdowns of the laundry equipment. No sheets or pillow cases are issued. Blankets are usually but not always provided.
11. Ventilation throughout the entire structure is very poor. It is worsened by the boarding up of windows to prevent inmates from simply pulling the bars out of the decayed windows and rotting plaster walls. As a consequence the inmates are subjected to extreme temperatures in summer and winter, with the temperature reaching over 100° during the summer months. Pipe decay and boiler malfunctions cause heating to be quite inconsistent and uneven. During the winter, the inmates are subjected to very cold dampness, as a result of the roof and side walls leaking.
12. The entire structure is infested with rats, mice, roaches and vermin as a result of the location of the prison over an extensive sewer system, and holes in the shower areas and floors caused by decay of the metal. Also, since the prison has no central dining area for inmates, the men eat in their tiers, causing food to be there to attract the rats and roaches, etc.
13. Because of faulty and inadequate plumbing most of the building and particularly the kitchen is permeated by a foul odor.
14. In the kitchen, plaster has fallen and continues to fall, and tile is missing, causing the kitchen to be unsanitary.
15. Bathing facilities are entirely inadequate, often 45 to 60 men have to use one shower, with low water pressure and no hot water, after many have spent a full day in physical activities for prison upkeep.
16. The inmates receive outdoor exercise only once every 20 to 30 days for two to three hours, depending on weather conditions.
17. All of the inmates are in constant danger of losing their lives should a fire occur in the prison. The Fire Prevention Division of the New Orleans Fire Department, after inspection, lists 29 violations, some of which are blatant. There is no fire alarm system; fire extinguishers are insufficient in number and many are empty and inoperable. Each tier has only one means of egress, and all fire escapes are inoperable and permanently sealed to prevent escape.
18. The danger of a fire occurring is increased by the inmates sometimes burning tightly rolled newspapers in their cells to keep warm in the winter and the fact that many windows are stuffed with newspaper.
*1018 19. The danger of an outbreak of contagious diseases is great as a result of the unsanitary conditions in the toilets, the kitchen, and the sleeping equipment. Further, no medical intake survey is made to detect prisoners with contagious diseases. Although the incidence of gonorrhea is high, only sporadic blood tests for syphilis are done. As a result of the crowded conditions, there is no isolation or quarantine area for those with contagious diseases that are detected.
20. Inmates are put in constant fear of and subjected to bodily injury and sexual attacks from other inmates. There are no isolation areas for any of the following dangerous groups, since there are only six single cells in the prison:
a) homosexuals and sexual offenders,
b) men who pose severe disciplinary problems,
c) mental defectives,
d) men with psychotic reactions or who are disturbed emotionally,
e) juveniles,
f) drug addicts, and
g) informers and those threatened by other prisoners.
As a result they are sometimes put in cells with first offenders and others.
21. The deteriorating ironwork and crumbling condition of the prison provide easy access to material from which inmates may fashion deadly weapons.
22. Supervision is woefully inadequate to provide any protection or deterrent effects to physical attacks once the tier door is closed and the guard is on one side and the prisoners on the other. Particularly in dormitory areas with 50 to 60 men, observation is very poor.
23. Since first offenders are not segregated, they frequently receive violent indoctrination into the norms and behavior of chronic offenders.
24. The combined effects of the fearful atmosphere and crowded and sordid living conditions has a severe effect on psychotics, often causing those transferred to the prison from mental hospitals to be returned to the hospitals. Disruptive psychotic prisoners are sometimes moved into a hallway by the main gate and shackled to the bars.
25. Hospital facilities and medical attention are woefully inadequate to meet the needs of the inmates. Inmates who should be confined to bed with chronic diseases must be kept on the open tiers. Medication that is prescribed frequently never reaches the inmate or else is taken from him by other prisoners.
26. The allotment by the City of $1.25 per diem per prisoner for food, bedding, uniforms, medication, janitorial supplies, maintaining the kitchen and laundry equipment and other needs is not adequate to provide the minimum human needs of the inmates.
27. The Central Police Lockup's existing facilities have never been more than partially filled, except on occasional weekends and this only in the male section. The 10th floor reserved for women has never been filled. Thus, the women in the prison (4 to 10 average) could be housed in unused new, existing facilities in a presently constructed, equipped, and staffed area.
28. The two unfinished floors of the same building have a normal capacity of 240 inmates in 24 ten-man cells. These floors could be finished and the cells used, thereby materially reducing the prisoner population of the Parish Prison.
29. The existing Parish Prison is owned by the City, maintained by city funds, and prisoners' subsistence is paid for by the City. Thus, in moving the prisoners to the new facilities there would be no involvement with any other political subdivision of government.
30. The Criminal Sheriff of the Parish of Orleans is doing the best he can with the facilities and means available to him.
*1019 CONCLUSIONS OF LAW
1. This court has jurisdiction of the parties and subject matter herein. 42 U.S.C. § 1983.
2. Plaintiffs did not need to exhaust state remedies as a condition precedent to this court's asserting jurisdiction over their cause of action grounded on 42 U.S.C. § 1983. Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968); McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967).
3. Defendants are subject to the restraints of the Eighth and Fourteenth Amendments of the United States Constitution which prohibit the infliction of cruel and unusual punishment. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).
4. Plaintiffs as state prisoners may enforce their right to be free from cruel and unusual punishment and this court will intervene in matters of prison administration to protect their constitutional rights. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Beard v. Lee, 396 F.2d 749 (5th Cir. 1968); Wright v. McMann, supra; Howard v. Smyth, 365 F.2d 428 (4th Cir.), cert. den., 385 U.S. 988, 87 S. Ct. 599, 17 L. Ed. 2d 449 (1966); Morris v. Travisono, 310 F. Supp. 857 (D.R.I.1970); Holt v. Sarver, 309 F. Supp. 362 (E.D.Ark. 1970); Hancock v. Avery, 301 F. Supp. 786 (M.D.Tenn.1969); Holt v. Sarver, 300 F. Supp. 825 (E.D.Ark.1969); Jordan v. Fitzharris, 257 F. Supp. 674 (N. D.Cal.1966).
5. Prison life inevitably involves some deprivation of rights, but the conditions of plaintiffs' confinement in Orleans Parish Prison so shock the conscience as a matter of elemental decency and are so much more cruel than is necessary to achieve a legitimate penal aim that such confinement constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Beard v. Lee, supra; Wright v. McMann, supra; Howard v. Smyth, supra; Morris v. Travisono, supra; Holt v. Sarver, supra, 309 F. Supp. 362; Hancock v. Avery, supra; Kish v. County of Milwaukee, 48 F.R.D. 102 (E.D. Wis.1969); Holt v. Sarver, supra, 300 F. Supp. 825; Jordan v. Fitzharris, supra.
The court finds that the plaintiffs are entitled to relief and will enter an appropriate order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4538801/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
OLIVER KAMM, a/k/a O.E.K.,
Appellant,
v.
BROWARD COUNTY SHERIFF’S OFFICE,
Appellee.
No. 4D19-3093
[June 4, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. RP018-0003107 (21).
Kendra E. Parris of Parris Law, P.A., Orlando, for appellant.
Kristin G. MacKenzie, Assistant General Counsel, Office of General
Counsel, Broward County Sheriff’s Office, Fort Lauderdale, for appellee.
PER CURIAM.
Affirmed.
LEVINE, C.J., DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3063592/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 10, 2009
No. 07-15139 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 01-01779-CV-T-17-EAJ
KEVIN O'HALLORAN,
as Chapter 11 Trustee for Greater
Ministries International, Inc., et al.,
Plaintiff–Appellant,
WILLIAM C. SMITH, an individual, suing
on behalf of himself and all persons
similarly situated,
JOHN TINGUE, an individual, suing
on behalf of himself and all persons
similarly situated,
Plaintiffs,
versus
FIRST UNION NATIONAL BANK OF FLORIDA,
and it successor in name or interest,
a banking entity,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 10, 2009)
Before BARKETT, HILL and ANDERSON, Circuit Judges.
PER CURIAM:
Kevin O’Halloran, the Chapter 11 Trustee for Greater Ministries
International, Inc. appeals the dismissal of his third amended complaint consisting
of five counts against First Union National Bank of Florida. We find it unnecesary
to repeat the facts of this case which are set forth in our prior opinion in
O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197 (11th Cir. 2003). We
affirm.
We readily find that there was no reversible error as to the dismissal of the
first four counts of the Complaint. To prevail on these counts the plaintiff had to
show the existence of a special relationship between Greater Ministries and First
Union other than the existence of a general account. The agreement pertaining to
the account in question demonstrated that it was a general checking account. More
importantly, O’Halloran conceded in his brief that it was a general account.
Therefore, O’Halloran could not state a claim on these counts.
2
The remaining count, count five, alleged the negligent performance of duties
voluntarily undertaken. Under Florida law, the failure to perform a voluntarily
assumed duty can give rise to liability. See Brown v. City of Delray Beach, 652
So. 2d 1150, 1153 (Fla. Dist. Ct. App. 1995); Hartley v. Floyd, 512 So. 2d 1022,
1024 (Fla. Dist. Ct. App. 1987). In both of these cases, the defendants promised to
undertake a duty on the plaintiffs’ behalf, and failed to perform it, giving rise to
liability for their negligence. Brown, 652 So. 2d at 1152; Hartley, 512 So. 2d at
1024.
In this case, Gerald Payne, presented to the bank a facially genuine
authorization to withdraw funds from the subject account. O’Halloran essentially
alleges that because First Union was suspicious of Payne’s activities, it voluntarily
undertook the duty of confirming his authorization to withdraw funds from the
account. This case differs from any of the Florida cases cited in that it is
undisputed that First Union did not explicitly promise Greater Ministries that the
bank would take any steps other than the ordinary duties owed to the owner of a
general account, namely, ensuring that persons seeking to make withdrawals are
facially authorized to do so. First Union did not promise to undertake any duty on
another’s behalf. Rather, the actions undertaken by the bank were taken on its own
behalf and there is no other party to whom it is alleged that First Union made any
3
promise. Thus, we find no error in the dismissal of the remaining count five.
AFFIRMED
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063594/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13823 APRIL 9, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. 19207-06
WILLIAM R. BASS,
BETTY O. BASS,
Petitioners-Appellants,
versus
COMMISSIONER OF IRS,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
United States Tax Court
_________________________
(April 9, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
William R. Bass and his wife, Betty O. Bass, appeal pro se from the U.S.
Tax Court’s order and decision in favor of the Commissioner of Internal Revenue
(“the Commissioner”) directing them to pay tax additions or penalties, under 26
U.S.C. §§ 6653(a)(1), (a)(2), and 6661, based on their underpayment of their 1982
taxes. The tax court found additionally that it lacked jurisdiction to consider the
enhanced rate of interest imposed pursuant to 26 U.S.C. § 6621(c). The Basses’
tax deficiency, or underpayment, stemmed from their investment in Cal-Neva
Partners, a jojoba farming partnership, and the related deductions they took
regarding that partnership. For the reasons explained below, we affirm the tax
court’s final decision.
I. FACTS
In 1982, the Basses invested in Cal-Neva Partners, a jojoba farming
operation. At the time, Mr. Bass worked as an accountant for Lockheed
Corporation, and Mrs. Bass worked as a typist for the Institute of Basic Youth
Conflict. Mr. Bass was contacted regarding the Cal-Neva Partners investment. On
an unrelated business trip for his employer, Mr. Bass met two people involved with
Cal-Neva Partners. The two people Mr. Bass met with were a man from the airline
industry and a woman who was an attorney. Mr. Bass testified that he did a
“limited amount of checking” regarding the investment, and he did not spend “days
and days . . . in the area where [the man and woman] resided.” Mr. Bass thought
that Cal-Neva Partners seemed like a viable investment, and he paid the $5,000
2
initial investment amount and financed the rest of the investment amount.
Ultimately, the partnership went under.
On their 1982 tax return, Mr. and Mrs. Bass did not identify their investment
in Cal-Neva Partners. Instead, on their Schedule C form, they listed “Bass
Enterprises,” listed their apparent home address, and wrote “not applicable” in the
space for the employer identification number. They listed a $13,150 deduction as a
“write-off” for a “farming venture.” While the Basses did not identify Cal-Neva
Partners on the 1982 tax return, this “farming venture” was Cal-Neva Partners.
After the decision in Cal-Neva Partners v. Commissioner, Docket No. 6594-
87 (2005), which determined that the deductions taken by Cal-Neva Partners for
research and development into jojoba farming were not allowable as deductions,
the Commissioner of the Internal Revenue Service issued a Notice of Deficiency to
the Basses, informing them that they owed additions to tax under 26 U.S.C. §§
6653(a)(1), (a)(2), and 6661 for the deductions they had taken related to Cal-Neva
Partners. The IRS determined that the Basses improperly deducted $14,783.69 for
a tax motivated transaction. Based on this calculation, the IRS calculated that their
deficiency for tax was $7,020. The Notice of Deficiency explained that the Basses
owed additions of twenty-five percent of the deficiency under § 6661, five percent
of the deficiency under § 6653(a)(1) and fifty percent of the interest owed on the
deficiency under § 6653(a)(2). The Notice also stated that interest accrued on the
3
deficiency at the rate of 120 percent of the underpayment rate under 26 U.S.C. §
6621(c) because the understatement of income was due to a tax motivated
transaction. The Notice of Deficiency indicated that it reflected only the tax
additions for 1982, and not the underlying income tax or interest owed for 1982.
On September 16, 2006 the Basses filed a pro se petition with the U.S. Tax
Court for a redetermination of the deficiency alleged in the Commissioner’s Notice
of Deficiency. The tax court held a trial. Following the trial, the tax court issued
its findings of fact and opinion. The tax court found that the Basses were liable for
tax additions for negligence under 26 U.S.C. §§ 6653(a)(1) and (a)(2). The tax
court also found that the Basses were liable for tax additions under 26 U.S.C. §
6661 because substantial authority did not support their treatment of the Cal-Neva
Partners loss and because they did not adequately disclose the loss on their return.
Furthermore, the tax court found that the Basses were not able to deduct the $5,000
out-of-pocket payment by the Basses for investment in Cal-Neva Partners. Finally,
the tax court held that it did not have jurisdiction over the underlying tax
deficiency assessment nor over the interest assessment under 26 U.S.C. § 6621(c).
The Basses have appealed the tax court’s findings of fact and opinion to this Court.
II. DISCUSSION
The Basses have essentially appealed on three grounds to this Court. The
Basses argue first that the tax court erred in finding that they were liable for tax
4
additions under §§ 6653(a)(1), (a)(2), and 6661. The Basses argue second that the
tax court should have allowed a $5,000 deduction related to Cal-Neva Partners for
the 1982 tax year, which would have affected the applicability of the tax additions
imposed. The Basses argue third that the tax court should have found the increased
interest rate imposed on the underlying tax deficiency under 26 U.S.C. § 6621(c) to
be inappropriate.
A. The Tax Additions
On appeal, the Basses first argue that the tax court clearly erred in finding
that they were liable for tax additions under §§ 6653(a)(1), (a)(2), and 6661. The
tax court found the Basses liable under §§ 6653(a)(1) and (a)(2) because their tax
underpayment was due to negligence. The tax court found the Basses liable under
§ 6661 because their tax underpayment was not supported by substantial authority,
and the facts underlying the disallowed deduction were not disclosed.
We review the tax court’s findings of fact for clear error and its legal
conclusions are reviewed de novo. Florida Hosp. Trust Fund v. Comm’r, 71 F.3d
808, 810 (11th Cir. 1996). “A finding of fact is clearly erroneous if the record
lacks substantial evidence to support it, so that our review of the entire evidence
leaves us with the definite and firm conviction that a mistake has been committed.”
Creel v. Comm’r, 419 F.3d 1135, 1139 (11th Cir. 2005) (quotation omitted).
Several Internal Revenue Code (“IRC”) provisions impose penalties, or tax
5
additions, for the nonpayment of federal income tax liabilities. Former
§ 6653(a)(1) imposed a tax addition in an amount equal to five percent of the
taxpayer’s underpayment of a tax if such underpayment was “due to negligence or
intentional disregard of rules and regulations.” 26 U.S.C. § 6653(a)(1) (1982).1
Section 6653(a)(2) imposed a tax addition in an amount equal to fifty percent of
the interest due on the portion of the underpayment attributable to negligence or
intentional disregard of rules and regulations. Id. § 6653(a)(2). Negligence is
defined as a taxpayer’s failure to exercise “due care or failure to do what a
reasonable and ordinarily prudent person would do under the circumstances.”
Marcello v. Comm’r, 380 F.2d 499, 506 (5th Cir. 1967). The tax court determined
in this case that the Basses’ underpayment was due to negligence.
Substantial evidence supported the tax court’s finding that the tax additions
under § 6653(a)(1) and (a)(2) were appropriate because the Basses were negligent
in failing to investigate their Cal-Neva Partners investment and seek independent
advice on that investment. Specifically, the tax court found that Mr. Bass relied
solely on the representations of promoters who had no known experience in jojoba
farming, and that he spent very little time investigating the investment or its tax
treatment. While the Basses argue on appeal that Mr. Bass’ experiences growing
1
The IRC provisions for the penalties at issue in this case were restructured for tax returns
due after 1989 and now appear at 26 U.S.C. §§ 6662-6663. See Omnibus Budget Reconciliation Act
of 1989, Pub. L. No. 101-239, § 7721, 103 Stat. 2106, 2395-99.
6
up on a farm, his education and career as an accountant, and his prior experience
with similar investments meant that his investigation into Cal-Neva Partners was
sufficient to constitute due care, the tax court considered these facts and found that
Mr. Bass’ experience was not persuasive evidence that he was qualified to assess
the Cal-Neva Partnership. Therefore, we cannot say that the tax court clearly erred
in finding that the Basses were negligent in their underpayment of tax.
Section 6661 of the IRC provided that, “[i]f there is a substantial
understatement of income tax for any taxable year, there shall be added to the tax
an amount equal to 25 percent of the amount of any underpayment attributable to
such understatement.” 26 U.S.C. § 6661(a) (1988).2 A substantial understatement
existed if the amount of the understatement exceeded the greater of ten percent of
the tax required to be shown on the return or $5,000. Id. § 6661(b)(1)(A). The
amount of the understatement was reduced by that portion of the understatement
that was attributable to (1) the tax treatment of any item for which there was
“substantial authority,” or (2) the tax treatment of any item for which the relevant
facts affecting the treatment were adequately disclosed on or with the return. Id. §
2
Although the penalty under § 6661(a) was only 10 percent of the underpayment attributable
to the substantial understatement in 1982, 26 U.S.C. § 6661(a) (1982), Congress passed a law in
1986 raising the rate to 25 percent for all penalties assessed after the law’s enactment, see Omnibus
Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 8002(a), (b), 100 Stat. 1874 (1986); Karr
v. Comm’r, 924 F.2d 1018, 1026 n.9 (11th Cir. 1991) (noting the amendment). The Basses do not
dispute the 25 percent rate used to calculate their § 6661 tax addition.
7
6661(b)(2)(B). Substantial authority exists when “the weight of the authorities
supporting the treatment is substantial in relation to the weight of authorities
supporting contrary positions.” 26 C.F.R. § 1.6661-3(b)(1) (1985). In order for a
disclosure to be adequate under § 6661(b)(2)(B)(ii), a taxpayer should provide the
IRS with information regarding the tax treatment of the item that “reasonably may
be expected to apprise the [IRS] of the nature of the potential controversy.” 26
C.F.R. § 1.6661-4(b) (1985).
For the purposes of § 6661, authority includes IRC provisions, IRS
regulations, court cases, and administrative pronouncements. 26 C.F.R. § 1.6661-
3(b)(2) (1985). Authority does not include an individual taxpayer’s prior tax
practices. See id. The Basses have pointed to no authority other than their tax
practices from other years. Therefore, the tax addition under § 6661 was proper
because substantial authority did not support the Basses’ deduction related to the
investment in Cal-Neva Partners, and they did not disclose facts regarding the
deduction on their 1982 tax return.
Thus, the tax court properly found that the Basses were liable for tax
additions pursuant to §§ 6653(a)(1), (a)(2), and 6661.3
B. The $5,000 Deduction
3
The Basses’ argument regarding the burden of proof does not affect our analysis
because the tax court clearly held that the record in this case supported the application of the
additions to tax even if the burden of production were on the Commissioner.
8
The Basses argue that the tax court clearly erred in finding that, because they
were not entitled to a $5,000 deduction for the partnership investment, that amount
did not affect the applicability of the tax additions imposed. Whether an
expenditure is deductible as an ordinary and necessary business expense is a
question of fact that we review for clear error. Bone v. Comm’r, 324 F.3d 1289,
1293 (11th Cir. 2003).
The Basses were not entitled to deduct the $5,000 they invested in Cal-Neva
Partners because it was a capital expenditure rather than a business expense. “As a
general rule, expenditures paid or incurred in carrying on a trade or business are
deductible as ordinary and necessary business expenses, but capital expenditures
are not.” Vinson v. Comm’r, 621 F.2d 173, 174 (5th Cir. 1980) (citing 26 U.S.C.
§§ 162(a) and 263(a)). “[A] partner’s interest in the partnership is itself a capital
asset, subject to gain or loss like any other capital asset.” Stackhouse v. United
States, 441 F.2d 465, 467 (5th Cir. 1971). Mr. Bass testified that the $5,000
payment to Cal-Neva Partners was an investment for his partnership interest in the
partnership. Accordingly, the tax court did not clearly err in finding that the
investment did not affect the applicability of tax additions under 26 U.S.C. §§
6653(a)(1), (a)(2), and 6661.
C. Increased Rate of Interest
Finally, the Basses argue, on the merits, that the tax court erred in using a
9
120 percent increased rate of interest under 26 U.S.C. § 6621(c), because their
investment in Cal-Neva Partners was not tax-motivated. Former § 6621 of the IRC
provided for enhanced interest for underpayments attributable to tax motivated
transactions. Specifically, if a taxpayer’s substantial underpayment of income tax
was due to a tax motivated transaction, interest would accrue and be assessed on
the deficiency at 120 percent of the underpayment rate. 26 U.S.C. § 6621(c)(1)
(1987).
Although we liberally construe pro se briefs, “issues not briefed on appeal
by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008), cert. denied, 129 S. Ct. 74 (Oct. 6, 2008). The Basses have
abandoned any challenge to the tax court’s finding that it lacked jurisdiction to
consider the enhanced rate of interest imposed pursuant to § 6621(c) by failing to
dispute that finding.
We affirm the final decision of the tax court imposing on the Basses tax
additions pursuant to 26 U.S.C. §§ 6653(a)(1), (a)(2), and 6661.4
AFFIRMED.
4
The Basses did not argue in their initial brief that the tax court’s computation of the tax
addition amounts was erroneous, although they address that issue briefly in their reply brief.
Nonetheless, we do not consider “issues raised for the first time in a pro se litigant’s reply brief.”
Timson, 518 F.3d at 874. Accordingly, the Basses have abandoned any challenge to the tax court’s
computations by not briefing the issue in their initial brief. See id.
10 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1419322/ | 499 P.2d 380 (1972)
William L. TEAGUE, Appellant,
v.
UNITED TRUCK SERVICE, Francis J. Tolbert, Owner, and Ray Evans Johnson, Appellees.
No. 43904.
Supreme Court of Oklahoma.
June 20, 1972.
Dick Bell, Seminole, Horsley, Epton, Culp & Butts, Wewoka, Frank Seay, Seminole, for appellant.
Bishop & Wantland, Seminole, for appellees.
*381 BARNES, Justice.
This appeal arose out of an action brought by the above named Appellant against the above named Appellees to recover damages allegedly sustained in a collision between his 1960-Model Mercury Station Wagon and a 1967-Model "bobtailed" White diesel tandem truck owned and/or operated by Appellees. The parties will hereinafter be referred to by surname and/or trial court designations of "plaintiff" and "defendants".
Just before the collision, at about 4:30 p.m., of a rainy October day, the truck, driven in a southerly direction by the defendant Johnson, came up behind plaintiff's station wagon, traveling the same direction, on State Highway No. 59, approaching Salt Creek bridge some 3 miles northeast of St. Louis, Oklahoma. The plaintiff stopped, or almost stopped, his vehicle just north of the bridge because a pedestrian, followed by a Chevrolet, was attempting to drive a calf across the bridge from the south. As the truck overtook plaintiff's vehicle, defendant Johnson applied his brakes and veered off to the right of the roadway, but the left rear corner of his truck's tail board struck the station wagon's right rear corner. The Chevrolet was driven by a Mrs. Rosturn and the calf was being herded on foot in front of it by Mrs. Rosturn's younger brother, Luther Martin.
After the collision, plaintiff complained of personal injuries and was taken to a Seminole hospital. A Highway Patrolman, Mr. Don Kirk, investigated the accident.
In his petition, plaintiff alleged that as a result of the collision he was damaged in the amount of $264.05 for the repair of his station wagon, and $113,578.20 for personal injuries. He also alleged that the defendant was negligent in his failure to keep a proper lookout ahead of the truck, his truck's following the station wagon too closely in violation of 47 Ohio St. 1961, § 11-310, and the driving of the truck at a speed greater than would permit it to be brought to a stop "within the assured clear distance ahead" in violation of 47 Ohio St. 1961, § 11-801.
In their answer, defendants alleged that negligence of plaintiff in stopping his vehicle on the traveled portion of the highway in violation of Oklahoma Statutes caused, or contributed to, the happening of the accident. As a further defense, defendants alleged that the defendant driver, Johnson, was confronted with a sudden emergency and that he acted in said emergency as any reasonable or prudent person would have done.
Subsequently, defendants moved that Mrs. Rosturn and Luther Martin be made additional defendants in the case, and, after their motion was denied, filed an amended answer in which they alleged that the primary cause of the accident was the combined negligence of those parties in driving the calf across the bridge in the face of oncoming traffic, and plaintiff's negligence "in stopping his automobile on the traveled portion of the highway and in not keeping a lookout to his rear."
At the trial, it was established that on the day of the accident it was raining and *382 the highway, a 2-lane asphalt or blacktopped one, 22 feet wide, was slick. Defendant Johnson testified that he saw plaintiff's station wagon and Mrs. Rosturn's Chevrolet when his truck was 400 feet away, but, despite his truck's speed of only 40 miles per hour and brakes in good condition, because of his truck's skidding on the slick pavement when its brakes were applied, he was unable to stop it before reaching the rear of plaintiff's station wagon. Johnson further testified that when he realized he could not completely stop the truck in that distance and that Mrs. Rosturn's Chevrolet was approaching in the other traffic lane, he ran his truck off the embankment just behind the station wagon in an effort to avoid colliding with either. He claimed the truck was not traveling over 3 or 5 miles per hour at the time it struck the station wagon's right rear corner. Johnson was examined about a deposition he had given earlier in which he stated, among other things, that he was 8/10ths of a mile from plaintiff's station wagon when he first saw it near the bridge and started applying his truck's brakes. During the witness' redirect examination, however, it was shown that in another part of his deposition he stated that he had been confused and had mistakenly stated the distance was 8/10th of a mile when he intended to say it was 1/10th of a mile. Johnson further testified that he had ascertained the distance of 400 feet by a measurement he made after the accident. The Highway Patrolman, Kirk, testified, among other things, that when he came to investigate the accident, Johnson told him that, as he drove down the hill approaching the bridge, he didn't realize the station wagon had stopped, until it was too late to avoid hitting it.
According to plaintiff's evidence, he had not stopped the station wagon, but was driving it very slowly toward the bridge's north end at the time it was struck from the rear by the truck. Plaintiff's testimony was to the further effect that he did not see the truck behind his station wagon until the collision occurred.
Mrs. Rosturn was a witness for the defendants and testified that, as she drove her Chevrolet north across the bridge behind her 19-year-old brother, Luther Martin, and the calf, plaintiff's station wagon was in the traveled portion of the highway approaching the bridge from the north. She further testified that she did not see the station wagon move as the truck came up behind it and nosed into the ditch, and did not think it had been struck. Her testimony tended, in general, to support Johnson's testimony that plaintiff's station wagon was boosted forward no more than 5 feet, if any, by the collision's impact. With toy cars, this witness demonstrated to the jury the positions of the station wagon and the truck when the collision occurred. She also testified, without objection, that she and her older brother, the calf's owner, had discussed the likelihood of his responsibility for the accident. Much of defendants' evidence was calculated to show that plaintiff's physical disability, if any, was the result of previous accidents he had had.
At the close of the evidence, both parties moved for a directed verdict. Plaintiff's motion was specifically predicated on the ground that the evidence showed that the truck driver, Johnson, had been guilty of negligence per se in failing to stop his truck within the assured clear distance ahead, in violation of the Oklahoma Statute, supra. The court denied both motions for directed verdicts and submitted the cause to the jury under instructions, which included its Instruction No. 15 on unavoidable accident. Thereafter, the jury returned a general verdict for defendants, and judgment was entered accordingly. After the overruling of his motion for a new trial, plaintiff lodged the present appeal.
For reversal of the trial court's judgment, plaintiff, taking the position that defendants had no legal defense, contends that the trial court erred in overruling his motion for a directed verdict. To support his position, plaintiff's brief quotes the *383 aforementioned portions of Johnson's deposition (about which he was cross-examined), as well as portions of his testimony at the trial, and that of the Highway Patrolman, Kirk. By way of explaining the adverse verdict, plaintiff opines that the trial court's Instruction No. 15 "may have" had a part in confusing the jury; and, by quoting the first two paragraphs of the syllabus in Huey v. Stephens, Okl., 275 P.2d 254, he implies that the court should not have given the jury that instruction. Plaintiff's brief also sets forth extensive quotations from Davis v. Kunkle, 302 Ky. 258, 194 S.W.2d 513, and Wilson v. Sorge, 256 Minn. 125, 97 N.W.2d 477, as if the Court in this case should have directed a verdict for him, as was done for the plaintiffs in those two cases.
We have examined both of the last cited cases and find neither of them analogous to the present case because of crucial differences in their evidence. In Wilson, the defendant introduced no evidence in opposition to plaintiff's evidence on the issue of his liability. In Davis, the Court stated: "We can not escape the conclusion that the only reasonable inference to be drawn from the evidence is that the proximate cause of the accident was the [defendant's negligence]."
We cannot say that this case presented no jury question as to who was responsible for the collision, or that it was the trial court's prerogative to rule that negligence on Johnson's part in violating Section 11-801(a) was, as a matter of law, the proximate cause of the collision, as said court was asked to do in plaintiff's motion for a directed verdict. The Court of Appeals was evidently of the same opinion, but remanded this case to the trial court for a new trial, upon concluding that the giving of Instruction No. 15 was prejudicial error.
Instruction No. 15 told the jury that its verdict should be for the defendants only if it found that plaintiff's injuries, if any, were the result of an unavoidable or inevitable accident "and that such accident happened without fault of the defendants,..." Thus, the issue of whether or not the collision was an unavoidable accident was not submitted to the jury separately and independently from the question of whether or not negligence on the part of the defendants was involved. On the contrary, Instruction No. 15 made any finding by the jury that the collision was an unavoidable accident dependent upon its finding that the defendants were without "fault" (the equivalent of negligence) in the matter. Therefore, rather than being controlled by the authorities we followed in Huey v. Stephens, supra, we think the question here is the same as the one we dealt with in Hayward v. Ginn, Okl., 306 P.2d 320. There, we recognized that "there was no legal basis for submitting to the jury the issue of unavoidable accident as a separate and independent defense", but we concluded that the unavoidable accident instruction involved there "with the definition given ... in connection therewith" was harmless under the circumstances. We have arrived at the same conclusion in this case. As Instruction No. 15 was worded, it did not constitute a misinterpretation of the law, nor contain, on its face, any erroneous statement of fundamental law. In this connection, notice Mason v. McNeal, 187 Okl. 31, 100 P.2d 451. As in the instance of other errors not inherently prejudicial, unlike those from which, by their nature, one of the litigants obtains "beneficial prejudice (see Montgomery v. Murray, Okl., 481 P.2d 755, 760, 761, and the cases cited therein), claimed errors in instructions must be shown to have probably affected the verdict adversely to the complaining party, before this Court will treat them as reversible errors. Missouri-Kansas-Texas Ry. Co. v. Harper, Okl., 468 P.2d 1014, and Missouri-Kansas-Texas Ry. Co. v. Hayes, Okl., 445 P.2d 249. As quoted from Badgwell v. Lair, Okl., 325 P.2d 968, 971, in the Montgomery case:
"Probability of a change in the outcome of a lawsuit is the test of prejudice *384 this court has long employed in alleged errors of practice and procedure."
And in Hatcher v. Morris, Okl., 441 P.2d 462, 465, we said:
"Whether the verdict is sufficiently supported by the evidence is usually the best criterion of whether the complaining party has suffered prejudice from the court's instructions; ..."
In Tucker v. Colorado Indoor Trap Shoot, Inc., Okl., 471 P.2d 912, 919, this Court said:
"It is well settled in this jurisdiction that a judgment will not be disturbed because of alleged erroneous instructions, unless it appears reasonably certain that the jury was misled thereby, to the prejudice of the complaining party." (Emphasis added)
Here, as already noted, there was evidence from which the jury might have reasonably concluded that plaintiff was guilty of contributory negligence or that the negligence of one or more persons, other than the defendants, was the proximate cause of the collision. Furthermore, in addition to the manual demonstrations of Mrs. Rosturn, already noted, the judge and jury had the benefit of certain depictions of the scene of the collision and the positions of the two involved vehicles before and after the collision that are not in the record before us. We have previously recognized that such evidence places the trier of the facts in a better position, than the reviewing court, to arrive at a just determination. In this connection, notice Townley v. Casaba, Okl., 474 P.2d 414, 416, and Gessel v. Smith, Okl., 435 P.2d 587, 591.
On the basis of the record, and arguments, submitted by plaintiff, we cannot say "it appears reasonably certain" that the jury, by reason of the trial court's giving it Instruction No. 15, was misled to the extent of returning a verdict that it otherwise would not have returned. Accordingly, the judgment of the trial court, in conformity with said verdict, is hereby affirmed and the decision of the Court of Appeals is reversed.
BERRY, C.J., and WILLIAMS, JACKSON, IRWIN and LAVENDER, JJ., concur.
DAVISON, V.C.J., and HODGES and McINERNEY, JJ., concur in result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2129024/ | 518 F. Supp. 191 (1981)
UNITED STATES of America, Plaintiff,
v.
YONKERS BOARD OF EDUCATION; City of Yonkers; and Yonkers Community Development Agency, Defendants.
80 CIV 6761 (LBS).
United States District Court, S. D. New York.
June 29, 1981.
*192 John S. Martin, Jr., U. S. Atty., S. D. N. Y., James P. Turner, Acting Asst. Atty. Gen., Gen. Litigation Section, Civil Rights Division, Dept. of Justice, Washington, D. C., for plaintiff; Thomas M. Keeling, Joshua P. Bogin, Theodore M. Shaw, Kenneth J. Barnes, Washington, D. C., of counsel.
N.A.A.C.P., New York City, for plaintiffs-intervenors; Thomas I. Atkins, Charles E. Carter, Margrett Ford, Teresa Demchak, New York City, of counsel.
Vedder, Price, Kaufman, Kammholz & Day, New York City, for City of Yonkers and Yonkers Community Development Agency; Thomas F. Hilbert, Michael W. Sculnick, James M. Donegan, Gerald S. Hartman, New York City, of counsel.
Butzel, Long, Gust, Klein & Van Zile, for Yonkers Bd. of Ed., John B. Weaver, John H. Dudley, Jr., Mark T. Nelson, Detroit, Mich., Hall, Dickler, Lawler, Kent & Howley, New York City, of counsel.
OPINION
SAND, District Judge.
The defendants in this action have filed various motions to sever, strike, and dismiss, as well as motions directed to the form of the complaint. There is also before the Court a motion by the National Association for the Advancement of Colored People ("NAACP"), Yonkers Branch, and an individual student, by her next friend, on behalf of themselves and all individuals similarly situated, to intervene in this proceeding. The defendants' motions to sever and dismiss are denied, without prejudice to renewal at a later stage in the proceedings, principally because they have been made prematurely. Plaintiff's allegations with respect to the interrelationship between housing and school segregation raise profound and complex factual and legal questions. However, it is inappropriate to deal *193 with the defendants' contentions prior to any discovery or evidentiary presentation. The defendants' motions addressed to the form of the complaint are denied and the motion to intervene is granted.
The Complaint
We will first deal with a series of motions addressed to the complaint itself. In dealing with these motions, it must be recognized that there has as yet been no trial or evidentiary hearing held in these proceedings and that no facts developed during discovery have been presented. For the purposes of these motions, the Court must accept the allegations of the complaint and at this stage of the litigation, assume that all of the matters alleged in the complaint are true and provable. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Shear v. National Rifle Assoc., 606 F.2d 1251, 1253 (D.C.Cir.1979); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977); Gumer v. Shearson Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974). An understanding of the motions and of the respective contentions of the parties requires a review of the challenged allegations of the complaint in some detail.
By complaint filed December 1, 1980 against the Yonkers Board of Education ("School Board"), City of Yonkers ("City") and Yonkers Community Development Agency ("CDA"), the Attorney General, on behalf of the United States, instituted this proceeding to "enforce the provisions of Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., the regulations of the United States Department of Education which implement Title VI, 34 C.F.R. § 100.8, Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), 42 U.S.C. § 3601 et seq., the Fourteenth Amendment to the United States Constitution, and the contractual assertions made by the defendant Yonkers Board of Education in consideration of its continuing receipt of federal financial assistance." Complaint, ¶ 1.
The complaint alleges that the defendant Yonkers Board of Education is a body corporate entrusted with the general management and control over the educational affairs in the Yonkers School District, a department of the defendant, City of Yonkers. The defendant, the City of Yonkers, the complaint alleges, is a municipal corporation governed by an elected City Council and Mayor and an appointed City Manager. Id., ¶ 4. It exercises, according to the complaint, control over the school board through its control over the budget and disbursal of monies to the school board "including but not limited to, expenditures for such items as employee salaries, construction of schools, and the purchase or sale of real property." Id., ¶ 4(a). It is further alleged that the Mayor of the City of Yonkers appoints all nine members of the school board. Id., ¶ 4(b). The defendant Yonkers Community Development Agency is, according to the complaint, a body corporate doing business in Yonkers, governed by seven members, including the City Manager of Yonkers, the Mayor of Yonkers, the Corporation Counsel for the City of Yonkers, the City Comptroller and two City residents appointed by the Mayor with the advice and consent of the City Council. Id., ¶ 5.
The complaint alleges further that "the schools in the Yonkers City School District are substantially segregated by race" id., ¶ 15, and that "[t]he segregated condition of the public schools operated by the School Board has been caused, in substantial part, by intentional, racially discriminatory actions and omissions by the defendant School Board and the defendant City of Yonkers. Paragraph 17 of the complaint enumerates "specific racially discriminatory practices of the School Board which have resulted in the unlawful segregation of students by race" and paragraph 19 of the complaint alleges that "specific racially discriminatory practices of the defendant City of Yonkers which have resulted in the unlawful segregation of students by race include, but are not limited to, the following: (a) the selection of sites for public and subsidized housing units which intentionally and effectively perpetuated and seriously aggravated racial *194 segregation in the City of Yonkers and in the Yonkers School District; and (b) the appointment to the School Board, since 1975, of individuals opposed to the desegregation of the Yonkers Public Schools."
The Motion to Sever
The School Board has moved, pursuant to Fed.R.Civ.P. 21, to sever the "plaintiff's claims against the Yonkers Board of Education from those against the Yonkers Community Development Agency."[1] In support of this motion, the School Board alleges:
"Plaintiff's Complaint contains two separate and distinct areas of alleged wrongdoing. First plaintiff alleges that the Yonkers Board of Education has unlawfully operated the public schools. Second, plaintiff alleges that the Yonkers Community Development Agency has unlawfully located, constructed and operated subsidized housing in the City of Yonkers. It is clear that the Board of Education has no authority over any aspect of public housing and that the Community Development Agency has no authority over the public schools. If either has been guilty of wrongdoing, the other cannot be held responsible or be required to undertake remedial action therefor.
These two separate claims should be ordered severed in order to reach a speedy and inexpensive determination of each of plaintiff's allegations." School Board Motion to Sever, ¶ 1.
Further, the Board relies on language contained in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22-23, 91 S. Ct. 1267, 1279, 28 L. Ed. 2d 554 (1971) and Hart v. Community School Board, 512 F.2d 37, 41 (2d Cir. 1975) wherein the federal courts are admonished not to seek, in school desegregation cases, to deal too broadly with all of the ills of our society, including all aspects of racial discrimination. The School Board also contends that discovery costs will be reduced by severance because the City and the School Board will not be required to send representatives to each other's depositions.
Plaintiff responds that the motion to sever should be denied because misjoinder under Rule 20(a) has not occurred, and because "the gravamen of the United States' complaint [is] that the City, with and through two agencies under its jurisdiction and authority, has implemented a policy of racially motivated discrimination which has promoted unlawful racial segregation in the public schools and in housing patterns throughout Yonkers." Response of the United States in Opposition at 13. Plaintiff disputes the Board's contention that severance will reduce discovery costs, based on the identity of claims asserted against the City and the CDA.[2] Finally, the United States argues that it is proper to include in one lawsuit both housing discrimination and school desegregation claims.
The School Board's motion is based on Rule 21, which grants discretion to the Court to sever a claim or party which has been misjoined. The standards for joinder of defendants are provided by Fed.R.Civ.P. 20(a), as follows:
"All persons ... may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against *195 one or more defendants according to their respective liabilities."
Thus, the motion to sever should be denied if plaintiff's claims against the School Board, the City and the CDA (1) relate or arise out of the same transaction or occurrence or series of transactions or occurrences and (2) if a question of law or fact common to all defendants will arise.[3] "There is no rigid rule as to what constitutes the same series of transactions or occurrences for purposes of joinder under Rule 20." Vulcan Society of Westchester v. Fire Department of the City of White Plains, supra note 3 at 387 (citation omitted). Moreover, Rule 20 should be interpreted to encourage "the broadest possible scope of action consistent with fairness to the parties....", United Mine Workers v. Gibbs, 383 U.S. 715, 724, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218, and to prevent multiple lawsuits. See League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977); Mosley v. General Motors Corp., 497 F.2d 1330, 1332-33 (8th Cir. 1974). Rule 20(a) has been described variously as requiring a logical or reasonable relationship, Mosley v. General Motors Corp., supra at 1333; or simply "enough ultimate factual concurrences that it would be fair to the parties to require them to defend jointly," Hall v. E. I. Du Pont De Nemours & Co., 345 F. Supp. 353, 381 (E.D.N.Y.1972) (quoting Eastern Fireproofing Co., Inc. v. United States Gypsum Co., 160 F. Supp. 580, 581 (D.Mass.1958)). See generally, e. g., C.A.B. v. Carefree Travel, Inc., supra note 3, 513 F.2d at 384 (joinder proper where "[t]he operative facts are related, even if the same transaction is not involved"); Nassau County Association of Insurance Agents, Inc. v. Aetna Life & Casualty Co., 497 F.2d 1151, 1154 (2d Cir.) (thousands of unrelated transactions did not provide basis for joinder absent allegation of any connection between practices of 164 defendants) cert. denied 419 U.S. 968, 95 S. Ct. 232, 42 L. Ed. 2d 184 (1974). Under either version of the Rule 20(a) requirement, we find it satisfied here.
Plaintiff has alleged that the City, through the School Board and the CDA, has implemented a racially discriminatory policy. The allegations in the complaint against the School Board, the City, and the CDA and their interrelated activities are logically related and constitute a series of transactions or occurrences within the meaning of Rule 20(a). See Poindexter v. Louisiana Financial Assistance Commission, 258 F. Supp. 158, 166-67 (E.D.La.1966) aff'd 393 U.S. 17, 89 S. Ct. 48, 21 L. Ed. 2d 16 (1968). In addition, questions of law and fact common to all defendants will arise in this action. Examples of common factual questions include the interrelationship, in terms of control and coordination, of the three defendants, and whether there has been intentional action by these defendants. A common legal question is whether, and by what means, such intent must be shown. We therefore conclude that the requirements and underlying purposes of Rule 20(a) have been satisfied.
The School Board does not propose a different Rule 20(a) analysis.[4] Rather, the School Board appears to seek a severance primarily because of its view that school desegregation and housing discrimination claims may not be brought in one action. It is on this basis that the School Board invokes the Court's discretion to sever under *196 Rule 21. As noted, the School Board relies on language in Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1, 22-23, 91 S. Ct. 1267, 1279, 28 L. Ed. 2d 554 (1971) and Hart v. Community School Board, 512 F.2d 37, 41 (2d Cir. 1975), to the effect that "one vehicle can carry only a limited amount of baggage." The School Board also argues that its responsibilities are distinct from those of the CDA and that therefore, they should not be joined, with the resulting increase in discovery costs due to the necessity of attending discovery sessions applying to the other agency only.
The United States responds that this is not a case in which an action brought solely against a school board is sought to be expanded to encompass other community problems. We agree. Here, the complaint, the allegations of which we must accept for the purposes of this motion, alleges in the first instance that the actions of the City, the School Board and the CDA have had the total and combined effect of causing and perpetuating racial segregation. According to the complaint, the School Board and the CDA are agencies of the City and cannot be viewed as unrelated. The defendants contend that the School Board is a State, rather than a City agency, but it is not contested that the City appoints all of the School Board members and that the City provides funding to the schools. Thus, with respect to plaintiff's contention that the City exercises at least some control over the School Board as well as the CDA, a factual question has been presented which cannot be resolved at this stage of the proceedings, and the instant motion will therefore be denied.[5]
We note, with respect to the motion to sever, that although the Board emphasizes the language in Swann urging that school desegregation cases not be burdened with all of the ills of the society, significantly in Swann, after recognizing the interrelationship between discriminatory construction of housing and school segregation, 402 U.S. at 20-21, 91 S.Ct. at 1278, the Court stated: "We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree." Id. at 23, 91 S. Ct. at 1279. Here, if the allegations of the complaint are accepted, school segregation is a consequence of both discriminatory action by school authorities and other discriminatory actions taken by another city agency, all with a view to perpetuating a segregated school system. See Arthur v. Nyquist, 415 F. Supp. 904, 961-69 (W.D.N.Y. 1976), aff'd in part, rev'd in part on other grnds, 573 F.2d 134, 145 n.22 (2d Cir. 1978), cert. denied 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978).
It is one thing to seek to engraft into a school desegregation case extraneous concerns *197 or to seek to join non-educational agencies in the remedial aspects of a school desegregation case involving a single school, see Hart, supra; it is another thing to say, as the Board appears to do, that housing and school segregation are so inherently distinct and unrelated that two city agencies, each with primary responsibility for either schooling or housing, cannot be joined together with the City which controls the appointment, financing or other significant aspects of the functioning of those agencies, in a single proceeding. We find the latter contention without merit in the present context of this litigation. Of course, any determination of the merits of plaintiff's allegations must await the completion of discovery and either motions for summary judgment if there are no material factual disputes, or a trial if there are material factual disputes.
Emphasizing again the preliminary procedural stage of this litigation, the motion to sever is denied without prejudice, as is true with respect to all motions to sever, to renewal if at a later stage in the proceedings, after discovery and further development of the contentions of the parties, such relief appears appropriate.
Motion to Dismiss with respect to Title VIII of the Civil Rights Act of 1968
Defendants City of Yonkers and CDA move to dismiss the allegations of Title VIII, 42 U.S.C. §§ 3601-3619, on the grounds that the United States has failed to state a claim against them on the face of the complaint. The complaint alleges:
"22. Defendant Community Development Agency (formerly Yonkers Urban Renewal Agency) is the coordinating agency for all urban renewal programs in the City of Yonkers. It has broad powers to plan, undertake and effectuate urban renewal projects, including, inter alia, the power to purchase property, construct buildings and contract for federal subsidies. It has coordinated the planning and construction of most of the subsidized housing projects in the City of Yonkers, including, but not limited to:
YEAR
PROJECT OPENED
10 Orchard Street 1971
164-170 Buena Vista Avenue 1971
Messiah Baptist 1972
Waverly Arms 1972
Jackson Terrace 1973
Frazier Homes 1973
Warburton/Ashburton (Dorado) 1973
Whitney Young Houses 1974
Cromwell Towers 1974
Parkledge (Ramp) 1975
Riverview I 1975
Riverview II 1975
23. The Yonkers City Council is responsible for approving all sites for construction of public and subsidized housing in the City of Yonkers, and has participated in the site selection process for every public and subsidized housing project in the City of Yonkers.
24. Defendants Yonkers Community Development Agency and City of Yonkers have intentionally followed a systematic pattern of selecting sites for public and subsidized housing projects that has effectively perpetuated and seriously aggravated residential segregation in the City of Yonkers, in violation of the Constitution and of Title VIII of the Civil Rights Act of 1968. As a direct result of the defendants' site selection policies, over 97% of all subsidized housing units and 100% of all subsidized family units constructed in Yonkers are located west of the Saw Mill River Parkway, in or immediately adjacent to residential areas of high minority concentration."
In support of their motion, defendants advance a number of contentions, each of which will be discussed briefly. First, defendants contend that the claim of alleged violation of Title VIII lacks specificity. The defendants allege that the complaint fails to "state the relationship between the occupants of the subsidized units and the classes sought to be protected by the Act." Memorandum of City of Yonkers and Yonkers CDA, at 32. Moreover, the defendants assert that "[i]n addition to its failure to *198 articulate how the location of subsidized housing units effects purported residential racial segregation in the City of Yonkers, the Complaint does not allege any facts to show that racial minorities do not, in fact, live east of the Saw Mill River Parkway or have been discriminated against in attempts to reside in that area of the City." Id. at 33.
We find that the complaint complies with Fed.R.Civ.P. 8(a) which provides for notice pleading. See School District of Kansas City v. State of Missouri, 460 F. Supp. 421, 443 (W.D.Mo.1978), appeal dismissed 592 F.2d 493 (8th Cir. 1979). We also find that paragraph 24 of the complaint quoted supra, sufficiently alleges the relationship between the occupants of the housing units and the classes protected by Title VIII, as well as the segregative effect of the site selections. See United States v. School District of Ferndale, 577 F.2d 1339, 1344 (6th Cir. 1978) ("The averments leave little question as to what the United States is complaining about and whose rights it is attempting to vindicate.") (citation omitted). This contention is without merit.
Next, the City and CDA, relying on Wheatley Heights Neighborhood Coalition v. Jenna Resales, 447 F. Supp. 838 (E.D.N.Y. 1978), contend that the plaintiff has failed to allege a causal connection between the acts of the defendants and the racial segregation challenged here. As we have noted, in paragraph 24 and elsewhere in the complaint, the United States has alleged a causal connection between the defendants' intentional acts and racial segregation in Yonkers. Moreover, defendants' reliance on Wheatley Heights is misplaced. In that case, Judge Neaher dismissed the complaint after substantial discovery on the ground that, on the undisputed facts, a causal nexus between the actions of the defendant and racial steering had not been established. Id. at 841, 844. However, an earlier summary judgment motion had been denied as "premature because it could not then be said that plaintiffs would be unable, through discovery, to adduce facts requiring imposition of liability on [the defendant]." Id. at 839. In this case, discovery has not been completed and the facts are not undisputed. Defendants' contention with respect to causal connection is likewise premature and without merit at this stage of the litigation.
Next the City and CDA contend that the acts alleged in the complaint do not constitute an unlawful housing practice under Title VIII, "[n]or does the complaint charge that the City and CDA are presently planning or going forward with any public or subsidized housing projects located in areas of high minority concentration." Memorandum at 38. The parties disagree with respect to the scope of Title VIII, and with respect to whether the alleged actions or failures to act of the City and CDA violated Title VIII. This dispute should be resolved in the particular factual context of this case, as it will be developed through discovery. We therefore reject this contention as prematurely raised.
Next, the City and CDA contend that "[t]he Fair Housing Act does not impose any duty upon a Governmental body to construct or to `plan for, approve and promote' any housing", Acevedo v. Nassau County, 500 F.2d 1078, 1082 (2d Cir. 1974), and that the allegations of the complaint conflict with this principle. The United States responds that the primary thrust of its complaint is "that a pattern and practice of intentionally segregative site selection decisions carried forward over a substantial period of time constitutes a violation of [Title VIII]," and that it seeks imposition of affirmative duties on the defendants as a remedy for such a violation. The United States also notes that several courts, e. g., Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973), have imposed "specific affirmative responsibilities on municipalities and local housing authorities." Brief in Opposition at 26. Again, it is not appropriate to resolve this dispute, or the myriad of issues raised in the extensive case law, until the facts of this case and the contentions of the parties with respect to those facts have been developed and clarified through discovery.
*199 Next, in a supplemental memorandum in support of the motion, defendants urge in further support of the motion to dismiss that the complaint does not allege a present violation or the perpetuation of pre-Act violations of Title VIII and that an analysis of the Federal Housing Programs demonstrates that under no set of facts could defendants be responsible for the alleged violations of Title VIII. In support of this last contention, the defendants review the nature of housing constructed pursuant to § 236 of the National Housing Act, as amended, 12 U.S.C. § 1715z-1, and the responsibility of various governmental bodies including federal housing agencies for the selection of sites and implementation of § 236 housing. We reject these contentions because paragraphs 22-25 of the complaint sufficiently allege a present violation of the Act and perpetuation of pre-Act violations, and because we cannot at this juncture resolve either the factual issues raised by the inter-relationship of federal and local agencies in the construction of subsidized housing or the defenses arising therefrom. See Arthur v. Starrett City Associates, 89 F.R.D. 542 (E.D.N.Y.1981). We are not prepared to declare that a local entity can never be sued under Title VIII. See, e. g., Otero v. New York City Housing Authority, supra.
For the reasons just stated, the City and CDA's motion to dismiss is denied, without prejudice to renewal after completion of discovery.
The School Board's Motion to Dismiss Paragraph 17(g)
The School Board moves to dismiss paragraph 17(g) of the complaint which reads as follows:
"17. Specific racially discriminatory practices of the School Board which have resulted in the unlawful segregation of students by race, include, but are not limited to, the following: ... (g) the denial of equal educational opportunity to minority students through
(i) their assignment to schools having generally poorer facilities and curiculae and less experienced teachers than schools attended mostly by white students; and
(ii) the School Board's historical operating hypothesis that minority students are not capable of performing at the level of white students."
This motion is based on the Board's contention that the phrase "equal educational opportunity" is derived from the Equal Educational Opportunity Act of 1974 (EEOA), 20 U.S.C. § 1701 et seq., and that the practices alleged in paragraph 17(g) of the complaint are not declared unlawful in § 1703 of the EEOA. However, this action is brought under the Civil Rights Act of 1964, not the EEOA. The phrase "equal educational opportunity" does not appear to be used in the complaint as a technical term or as a term of art. The EEOA specifically provides that it is not intended to modify or diminish the authority of the "Courts of the United States to enforce fully the ... Fourteenth Amendment". 20 U.S.C. § 1702(b). The motion to dismiss paragraph 17(g), more appropriately designated a motion to strike that allegation of the complaint, is denied.
Motion to Dismiss Paragraph 17(h)
Paragraph 17 of the complaint contains another subparagraph which the Board moves to dismiss or to strike. That paragraph relates to the School Board's alleged failure to adopt the desegregation aspects of a reorganization plan proposed in 1977 which had incorporated recommendations of a Board appointed citizens' task force and of State Education Officials. The Board contends that this allegation conflicts with the determination of the Supreme Court in Dayton Board of Education v. Brinkman, 433 U.S. 406, 414, 97 S. Ct. 2766, 2772, 53 L. Ed. 2d 851 (1977) (quoting Brinkman v. Gilligan, 503 F.2d 684, 697 (6th Cir. 1974)) that:
"The question of whether a rescission of previous board action is in and of itself a violation of appellants' constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took.... If the Board *200 was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation. If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission ipso facto is an independent violation of the Constitution."
Plaintiff does not contend that the School Board's failure to adopt the proposed reorganization plan amounted to a constitutional violation "in and of itself". Rather, the complaint, in paragraphs 17(a)-(h), alleges various racially discriminatory practices, of which the failure to adopt the reorganization plan is one example. Nor can it be determined at this stage of the litigation whether or not the School Board was under a constitutional duty to act. Thus, the holding in Dayton that the remedy imposed by the Court of Appeals for the Sixth Circuit was entirely out of proportion to the constitutional violations found by the district court, see 433 U.S. at 418, 97 S. Ct. at 2774, does not support the contention that, in a different factual context, failure to adopt a recommended plan may not be relevant to whether the Board engaged in "specific racially discriminatory practices ... which have resulted in the unlawful segregation of the students by race ..." as alleged in paragraph 17 of the complaint. The failure to adopt the proposed plan may also be probative of the Board's discriminatory intent. See Columbus Board of Ed. v. Penick, 443 U.S. 449, 463 n.12, 99 S. Ct. 2941, 2949 n.12, 61 L. Ed. 2d 666 (1979); Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 713 ("official acts in their setting can provide circumstantial evidence of intent").
Moreover, the Board's motion seeks to lift the allegations of paragraph 17(h) out of the context of the complaint as a whole, as if it, standing alone, were required to constitute an independent cause of action. We do not understand this to be its purport within the context of this complaint and the motion that it be stricken or dismissed is denied.
Motion to Strike Paragraph 17(g)(ii)
The Board moved also to strike paragraph 17(g) of the complaint on the ground that the allegation that it was "the School Board's historical operating hypothesis that minority students are not capable of performing at the level of white students" violates the First Amendment's preclusion of sanctions by the Government solely because of a person's beliefs.
The motion in this regard is frivolous. Obviously, the action is not concerned with the beliefs of individual members of the School Board, except to the extent to which the Board members are alleged to have acted or failed to act to the detriment of minority students. See Arthur v. Nyquist, 573 F.2d 134, 142 (2d Cir.) cert. denied 439 U.S. 860, 99 S. Ct. 179, 58 L. Ed. 2d 169 (1978). The challenged allegation must be read in the context of a complaint which alleges elsewhere (paragraph 19(b)) that the City of Yonkers has appointed to the School Board since 1975 "individuals opposed to the desegregation of the Yonkers Public Schools". In no sense can the allegations of the complaint be fairly construed to seek a remedy because of the individual unimplemented views of any persons. Moreover, the complaint alleges intentional action by the School Board, an allegation to which a historical operating hypothesis or assumption, if proved, would be relevant. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-68, 97 S. Ct. 555, 562-65, 50 L. Ed. 2d 450 (1977); United States v. City of Parma, Ohio, 494 F. Supp. 1049, 1054 (N.D.Ohio), appeal dismissed 633 F.2d 218 (6th Cir. 1980).
Miscellaneous Other Motions
Motions to strike other allegations of the complaint are of a like character to those discussed above and are denied. Motions to strike are generally disfavored. FRA S.p.A. v. Surg-O-Flex of America, Inc., 415 F. Supp. 421, 427 (S.D.N.Y.1976); 5 C. Wright and A. Miller, Federal Practice and Procedure, § 1381, at 799 (1969). See also 2A Moore's Federal Practice, § 12.21[2] ("Matter will not be stricken unless it is clear that it can have no possible bearing *201 upon the subject matter of the litigation. If there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied.").
Nor does the Court perceive any grounds to require a more definite statement by the plaintiff pursuant to Fed.R.Civ.P. 12(e). The complaint is not "so vague or ambiguous that [the defendants] cannot reasonably be required to frame a responsive pleading," Fed.R.Civ.P. 12(e), and the motion for a more definite statement will not be granted "merely to require evidentiary detail normally the subject of discovery." School District of Kansas City v. State of Missouri, supra 460 F.Supp. at 443 (citation omitted).
The motion to require a statement of separate claims and separate counts pursuant to Fed.R.Civ.P. 10 misperceives the theory upon which the United States is proceeding. We understand that theory to be, not that there are separate causes of action which have been joined in a single complaint, but that the actions taken by the City of Yonkers and the two agencies over which it exercises significant control have together operated to cause the violations which this suit seeks to remedy. These motions are denied.
Defendants have moved to dismiss the Attorney General's claims brought under the Fourteenth Amendment on the ground that the Attorney General is not authorized and does not have standing to sue under the Constitution. The United States responds that Title IV of the Civil Rights Act of 1964 provides such standing. Although this is a hotly debated issue, see, e. g., United States v. Philadelphia, 644 F.2d 187, 189-203 (3d Cir. 1980); id. at 213-28 (Aldisert, J., dissenting from order denying rehearing) (February 19, 1981); Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 90-92 (3d Cir. 1979) (en banc), rev'd on other grnds, ___ U.S. ___, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981); United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979); United States v. School District of Ferndale, 577 F.2d 1339, 1345-46 & n.12 (6th Cir. 1978); United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977); United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y. 1970), we need not reach it in this case. Here, the defendants' motion is predicated on the absence from the litigation of a non-governmental plaintiff, a contention which, even if it were sufficient to require dismissal of the Fourteenth Amendment claims, has been mooted by our grant of the motion to intervene.[6]
The City of Yonkers and the CDA also contend that the Attorney General has not complied with the pre-requisites under Title VI to bring suit against the City, although paragraph 1 of the complaint recites that the action is brought to enforce the provisions of various statutes including Title VI of the Civil Rights Act of 1964. The United States responds to this aspect of the motion by asserting "... the City's argument regarding Title VI of the Civil Rights Act of 1964 is irrelevant, since the complaint does not allege that the City violated Title VI." Response of the United States in Opposition, at 3. Indeed the allegations with respect to Title VI (Complaint, ¶¶ 9, 10, 13) all relate to alleged assurances of compliance with the provisions of Title VI by the School Board and the determination by the Attorney General that the School Board is operating in violation of Title VI and would not comply voluntarily with the provisions thereof. Since the complaint does not allege that either the City or the CDA violated Title VI, the motions by those defendants directed to alleged insufficiencies in the assertion of Title VI claims against the City must perforce be denied.
Motion for Intervention
A motion to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2) or, alternatively, to intervene permissively pursuant to Fed.R.Civ.P. 24(b)(2) has been filed by the Yonkers Branch of the NAACP and Regina Ryer, a minor by her next friend, Charlotte Ryer, on behalf of themselves and *202 all similarly situated black and minority children and families. The United States opposes intervention as of right, but supports permissive intervention. The defendants oppose both types of intervention. We do not reach the question whether intervention as of right should be granted because we find, in the exercise of our discretion, that permissive intervention is warranted.
Applications for permissive intervention are governed by Rule 24(b),[7] which places resolution of motions for permissive intervention in the discretion of the Court,[8] guided by three considerations: (1) whether the application is timely;[9] (2) whether the intervenors present "a question of law or fact in common" with the main action; and (3) "whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."[10]See United States v. Columbia Pictures Industries, Inc., 88 F.R.D. 186, 189 (S.D.N.Y.1980).
The intervenors' application has been timely filed at an early stage of the proceedings by and on behalf of people directly interested in the litigation.[11] It is beyond dispute that the intervenors' proposed complaint contains claims having questions of law and fact in common with the main action. The opposition to intervention focuses on "undue delay and prejudice to the original parties." The defendants contend that the intervenors' class action allegations and their claims under state law will unduly expand the scope of the action to the prejudice of the defendants, that the intervenors' participation will not contribute to the development of the facts, that the United States adequately represents the intervenors' interests,[12] that the intervenors will suffer no harm if intervention is denied because they can bring a separate action,[13] and that discovery proceedings will be more difficult to schedule due to the increase in the number of parties.
We have considered the defendants' arguments and find that no undue delay or *203 prejudice to the defendants will result from intervention. The intervenors do not propose to alter the basic factual context of the original action, and the additional legal claims asserted by them based on those facts will be most economically resolved in this action, rather than in a separate action.[14] Moreover, we are unpersuaded that counsel acting in good faith would be unable to schedule discovery proceedings, or that any other undue delay or prejudice would result from the granting of intervenors' application.
It is, of course, impossible to determine definitively at this point whether the immediate participation of the intervenors will in the long run expedite or impede either the progress of the litigation or the efforts at settlement. No settlement agreement has yet been reached. The Court has strongly encouraged the parties to attempt to resolve this litigation by agreement and we have been advised that efforts in that direction have been made and are continuing. At the defendants' insistence, a representative of the NAACP has not been present at such settlement discussions but the United States has advised us that it has undertaken to keep the intervenors fully advised as to the status of settlement discussions. No matter who attends which meetings, the position of the NAACP and of the minority residents of Yonkers for whom they purport to speak, with respect to any proposed disposition of this litigation, is something which the Court would ultimately have to take into consideration. We agree with the applicants for intervention that it is more appropriate for them to intervene in this action at this stage and their motion is granted.
For the reasons stated herein, the motions to dismiss are denied, and the motion to intervene is granted. The defendants are directed to answer the plaintiff's complaint within 20 days, and to answer or move with respect to the intervenors' complaint within 20 days.
Settle order on notice by July 15, 1981.
NOTES
[1] The City and the CDA submitted a brief in support of the Board's Motion to Sever, in which it is asserted that "there has been improper joinder of the Board of Education with the City and the CDA...." Memorandum of City and CDA in support of Motion to Sever at 7. Our disposition of this motion is not altered by treating the City as well as the CDA as a movant with respect to the Motion to Sever.
[2] As noted, the School Board moved to sever only the CDA, while the brief filed by the City and the CDA urged severance of both the City and the CDA.
[3] The City and the CDA have overstated the second requirement in their contention that there must be at least one claim which is made against all of the defendants in the action. Although Rule 20(a) requires a question of law or fact common to all defendants, it does not require that the common question be the basis for an identical claim against each defendant. See C.A.B. v. Carefree Travel, Inc., 513 F.2d 375, 384 (2d Cir. 1975); Mosley v. General Motors Corp., 497 F.2d 1330, 1333, 1334 (8th Cir. 1974); Kedra v. City of Philadelphia, 454 F. Supp. 652, 661 (E.D.Pa.1978); 3A Moore's Federal Practice § 20.06 at 20-46 (2d ed. 1979). Cf. Vulcan Society of Westchester County v. Fire Department of the City of White Plains, 82 F.R.D. 379, 390 (S.D.N.Y.1979) (denying motion to sever where plaintiff challenged "interrelated" Civil Service exams).
[4] The City and the CDA do offer an alternative Rule 20(a) analysis, which we find without merit. See note 3, supra.
[5] The City asserts a similar claim as a ground for dismissing plaintiff's Title IV claim, contained in paragraph 19 of the complaint:
"the complaint's allegations fail as a matter of law to allege sufficient control over management of educational affairs by the City to satisfy Title VI. The complaint only alleges control over budgetary matters; it fails to allege any City control over educational affairs, student assignment, or school administration. Control over the budget, without more, is insufficient. The Board of Education is a separate and autonomous entity under New York law, and is subject as a matter of state law, to the control of the New York State Board of Regents, and not the City. As a result, the City cannot be held liable for the acts of the Board of Education, since it has no power or authority to influence educational affairs." Reply Memorandum of City and CDA at 8 (emphasis in original).
However, paragraph 4 of the complaint, the allegations of which must for these purposes be accepted as true, alleges that the City exercises control over the School Board to the comprehensive extent set forth in that paragraph, including not only budget expenditure, construction, purchase and sale of real property, but the appointment by the Mayor of the City of all of the members of the School Board. Whether or not the defendant City exercises such control over the School Board so that it may be liable for the actions of that body, or be subject to this suit because of actions taken or omitted by the Board, presents a factual question with respect to the extent of control over the Board which cannot be resolved by the motion to dismiss. This motion is denied.
[6] The defendants' motion was brought prior to the motion to intervene. At page 9 of the Memorandum of the City and CDA, it was stated: "No member of the public, however, has joined or intervened in this suit as a private plaintiff seeking to enforce his own constitutional or statutory rights." The School Board joined in this motion, also prior to the filing of the motion to intervene.
[7] Rule 24(b) provides in relevant part:
"Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
[8] United States Postal Service v. Brennan, 579 F.2d 188, 191-92 (2d Cir. 1978) ("Permissive intervention is wholly discretionary with the trial court.... The trial court's discretion is very broad.").
[9] NAACP v. New York, 413 U.S. 345, 365-66, 93 S. Ct. 2591, 2602-03, 37 L. Ed. 2d 648 (1973).
[10] United States Postal Service v. Brennan, supra, 579 F.2d at 191 (undue delay or prejudice to original parties is "principal consideration") (noting other considerations).
[11] The School Board contends that the NAACP "lacks standing to maintain an action on its own behalf." School Board Response to Motion to Intervene at 1. The NAACP is seeking intervention on behalf of its members, and in conjunction with its representation of an individual class action plaintiff who clearly has standing to bring a proceeding. While it is therefore not of great practical significance to this suit whether the NAACP has standing, we conclude that it does. Tasby v. Estes, 572 F.2d 1010, 1012 n.12 (5th Cir. 1978) (rejecting challenge to NAACP standing and affirming grant of intervention motion by NAACP on behalf of its members and members' children and three named school children) cert. dismissed 444 U.S. 437, 100 S. Ct. 716, 62 L. Ed. 2d 626 (1980). See generally Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977); NAACP v. Button, 371 U.S. 415, 443, 83 S. Ct. 328, 343, 9 L. Ed. 2d 405 (1963). We also note that the NAACP has represented plaintiffs in numerous desegregation suits. See cases cited in Applicant's Brief in Support of Motion to Intervene at 4 n.2.
[12] Adequacy of representation by the United States, although one factor to be considered, United States Postal Service v. Brennan, supra, 479 F.2d at 191, is, in this context, "a minor factor." United States v. Columbia Pictures, supra, 88 F.R.D. at 189 (footnote omitted). In any event, we agree with the Government's assertion that the intervenors' "perspective, ideas, experience could only add as to resolution of this matter." Tr. of Argument, April 28, 1981 at 17, and conclude that representation of intervenors' perspective by their own counsel is appropriate.
[13] "This argument is meritless. The proper inquiry is whether intervention would prejudice the rights of existing parties, not whether a denial of intervention would prejudice the proposed intervenor." Weisman v. Darneille, 89 F.R.D. 47, 52 (S.D.N.Y.1980). Moreover, commencement of a separate action which would most likely be consolidated with this action would not promote judicial economy.
[14] The intervenors have stated their intention to file a separate action if their application is denied. Were such a proceeding to be filed in this Court, it would, under the rules applicable to all actions filed here, be treated as a case related to the instant proceeding and in all likelihood would be consolidated with this proceeding. In response to this observation, the defendants contend that there would be a difference between a consolidation of two related actions, and intervention in a single proceeding. Whatever difference there may be, and whatever arguments could be made or availed of in one circumstance, but not the other, are not pinpointed with any precision. In any event, any differences between the parties and their respective rights will be noted by the Court when appropriate. In effect, granting intervenors' application merely eliminates the consolidation process.
We also note that intervention in this case is not comparable to intervention in an SEC injunctive proceeding by private class action plaintiffs who seek damages. See SEC v. Everest Management Corp., 475 F.2d 1236, 1240 (2d Cir. 1972) (affirming exercise of district court's "broad discretion" to deny intervention which would have an adverse effect on SEC enforcement) (noting that intervention by private party in SEC enforcement action might be appropriate in a different case). See also Commodity Futures Trading Commission v. Carter, Rogers and Whitehead & Co., 497 F. Supp. 450, 453 (E.D.N.Y.1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2971352/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0007n.06
Filed: October 6, 2004
Case No. 02-5885; 02-5888
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENTUCKY RESTAURANT CONCEPTS )
INC., ET AL., )
)
Plaintiffs-Appellants, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
CITY OF LOUISVILLE, ET AL., ) DISTRICT OF KENTUCKY
)
Defendants-Appellees. )
)
__________________________________________)
BEFORE: BATCHELDER and SUTTON, Circuit Judges; and BELL, District Judge.*
ALICE M. BATCHELDER, Circuit Judge. At oral argument, counsel for Appellants
and Appellees conceded that the only issue properly before this court is the question of
damages–a question not overtly considered by the district court’s June 12, 2002 order. We agree.
Accordingly, we deny the Appellees’ Motion to Dismiss and we REMAND this case for
consideration of damages in light of the district court’s prior order in favor of Appellants and
such other factors as the district court deems relevant.
*
The Honorab le Robert Holmes B ell, Chief United States District Judge for the Western District of Michigan,
sitting by designation. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2129103/ | 770 F. Supp. 480 (1991)
LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS; and the Sokaogon Chippewa Community, Plaintiffs,
v.
STATE OF WISCONSIN; Tommy G. Thompson, Governor of the State of Wisconsin; Donald J. Hanaway, Attorney General of the State of Wisconsin; David Vernon Penn, District Attorney of Vilas County, Wisconsin; and Janet L. Marvin, District Attorney of Forest County, Wisconsin, Defendants.
No. 90-C-408-C.
United States District Court, W.D. Wisconsin.
June 18, 1991.
*481 Bruce R. Greene, Boulder, Colo., for Lac du Flambeau Band.
Milton Rosenberg, Madison, Wis., for Sokaogon Chippewa Community.
Waltraud A. Arts, Asst. Atty. Gen., Madison, Wis., for State of Wis., Tommy G. Thompson, Donald J. Hanaway, David Vernon Penn, Janet L. Marvin.
OPINION AND ORDER
CRABB, Chief Judge.
This is a civil action brought under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., arising out of defendants' alleged failure to bargain in good faith with plaintiffs on the terms of a tribal-state Indian gaming compact. Defendants concede that the state has refused to bargain over certain gaming activities that it believes are not proper subjects of negotiation. They represent, however, that the state is prepared to return to negotiations once the court has determined whether the disputed activities are proper subjects for a compact.
The case is before the court on defendants' motion for summary judgment, and their motions to strike the affidavits of Rita Keshena, Milton Rosenberg and James Landru. Jurisdiction is present. 25 U.S.C. § 2710(d)(7)(A).
The Indian Gaming Regulatory Act is the product of years of legislative effort to devise a comprehensive scheme for regulating gaming activities on Indian lands. It reflects congressional concerns about the increasing reliance of Indian tribes on gaming revenues for the provision of governmental services to tribal communities and the lack of mechanisms for regulating gaming activity. The essential feature of the Act is the tribal-state compact process, the means Congress devised to balance the states' interest in regulating high stakes gambling within their borders and the Indians' resistance to state intrusions on their sovereignty. The structure of the Act conforms to the basic principle that the states and tribes negotiate as sovereigns. See S.Rep. No. 100-446, 100th Cong., 2d Sess. at 13:
After lengthy hearings, negotiations and discussions, the Committee concluded that the use of compacts between tribes and states is the best mechanism to assure that the interests of both sovereign *482 entities are met with respect to the regulation of complex gaming enterprises such as pari-mutuel horse and dog racing, casino gaming, jai alai and so forth. The Committee notes the strong concerns of states that state laws and regulations relating to sophisticated forms of class III gaming be respected on Indian lands where, with few exceptions, such laws and regulations do not now apply. The Committee balanced these concerns against the strong tribal opposition to any imposition of State jurisdiction over activities on Indian lands. The Committee concluded that the compact process is a viable mechanism for setting [sic] various matters between two equal sovereigns.
The Act divides gaming activities into three classes. Class I includes social games played solely for prizes of minimal value and traditional forms of Indian gaming engaged in as part of a tribal celebration or ceremony. 25 U.S.C. § 2703(6). These activities are within the exclusive jurisdiction of the tribe. § 2710(a)(1). Class II games include bingo and related games and non-banking card games, as well as certain "grandfathered" card games that were operated by Indian tribes in four named states before May 1, 1988. Section 2703(7). Specifically excepted from Class II are non-grandfathered banking games such as baccarat, chemin de fer or blackjack, and video games of chance and slot machines. Class II gaming is within the jurisdiction of the tribes, subject to the requirements of the Act, with some oversight by the National Indian Gaming Commission. Section 2710(a)(2).
Class III includes all other forms of gaming. 25 U.S.C. § 2703(8). Class III gaming activities are lawful on Indian lands only if the activities are (1) authorized by an ordinance or resolution adopted by the governing body of the tribe that meets the requirements of the statute and is approved by the commission chairman; (2) located in a state that permits such gaming for any purpose by any person, organization or entity; and (3) conducted in conformance with a tribal-state compact entered into by the tribe and the state. Section 2710(d).
The parties dispute whether the state is required to include casino games, video games and slot machines in its negotiations with the tribes.[1] I conclude that it is required to negotiate those activities because they are permitted under Wisconsin law within the meaning of 25 U.S.C. § 2710(d)(1)(B). Accordingly, I will deny defendants' motion for summary judgment.
For the purpose only of deciding defendants' motion for summary judgment, I find that there is no genuine issue with respect to any of the following material facts set forth under the heading "Facts." In making these findings, I have not taken into consideration any of the averments included in the affidavits of Rita Keshena, Milton Rosenberg or James Landru, because those averments relate to the manner in which the state has negotiated with the tribes or to the state negotiators' understanding of the scope of the negotiations for a tribal-state compact and have no bearing on the issue raised on the motion for partial summary judgment, which is whether the gaming activities at issue are lawful under 25 U.S.C. § 2710(d). It is irrelevant whether the state bargained in good faith because it concedes it has not bargained on the disputed activities and is prepared to conclude a compact once it has been determined which activities must be included in the negotiations. It is irrelevant also what the negotiators thought the statute requires; the requirements of the statute raise an issue of law and not of fact.
FACTS
Plaintiffs Lac du Flambeau Tribe of Lake Superior Chippewa Indians and Sokaogon Chippewa Community are federally-acknowledged Indian tribes with reservations *483 in the State of Wisconsin. Defendant State of Wisconsin is a sovereign state of the United States. Defendant Tommy G. Thompson is Governor of the State of Wisconsin. Defendant David Penn is the District Attorney for Vilas County, Wisconsin. At all times relevant to this suit, defendant Donald J. Hanaway was the Attorney General of the State of Wisconsin, and defendant Janet Marvin was the District Attorney for Forest County, Wisconsin.
The Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., became effective October 17, 1988. On November 16, 1988, plaintiff Lac du Flambeau submitted a written request for tribal-state compact negotiations. Although plaintiff Sokaogon never submitted a written request, it was a party to the various efforts at negotiation that were carried out with the plaintiff tribes as well as with other Wisconsin tribes.
On July 19, 1989, plaintiff Lac du Flambeau proposed as class III gaming activities the following games: "Black Jack 21 cards, Cards, Video/Slots, games such as Black-Jack and Poker, Craps, Roulette, Keno, off track betting parlor, Sports book." On October 18, 1989, the Department of Justice's tribal-state gaming compact negotiator sent plaintiff Lac du Flambeau a final draft of the tribal-state gaming compact between it and the State of Wisconsin.
On November 14, 1989, Michael Allen, plaintiff Lac du Flambeau's tribal president, resubmitted a gaming compact to the State of Wisconsin based on tribal council action of November 13, 1989. The resubmitted compact covered casino games, including video gaming machines, roulette, slot machines, poker and craps.
The final draft gaming compact with plaintiff Sokaogon covered casino games, including video gaming machines, blackjack, roulette, slot machines, poker and craps.
When bill drafts of the tribal-state gaming compacts were requested, legislative lawyers raised questions about the scope of the games that had been negotiated, particularly about the inclusion of activities not conducted by anyone else in Wisconsin. On October 24, 1989, the Wisconsin Lottery Board requested an attorney general's opinion on the scope of gaming permitted in Wisconsin. On February 5, 1990, defendant Hanaway issued an opinion to the effect that class III games were prohibited in Wisconsin with the exception of lotteries and on-track parimutuel wagering. Since then, the State of Wisconsin has refused to negotiate on any class III activities other than lotteries and on-track betting.
At the present time, the Wisconsin Lottery conducts three types of lotteries in which prizes are distributed among persons who purchase tickets: instant scratch games, pull-tab or break-open games, and on-line games. Instant scratch games are lotteries that use preprinted tickets with a latex covering that is scratched off to reveal the play symbols underneath. A player wins when a winning combination of play symbols is printed on the ticket. The lottery also offers additional methods of play such as secondary drawings for persons who hold winning instant scratch tickets.
Pull-tab or break-open games utilize preprinted tickets made of laminated paper that is partially perforated to allow a strip to be torn to reveal the symbols underneath. As in instant scratch games, the player wins if there is a winning combination of symbols on the ticket.
In on-line games, the player chooses (or the computer selects) a subset of six numbers from a larger set of numbers. The winning numbers are determined by a drawing, and prizes are paid for matching, in any order, six, five or four of the numbers drawn. Tickets are issued by a computer terminal connected electronically to a central computer that records and confirms the play. The ticket is the evidence of the player's entry numbers and is the only basis on which a prize may be claimed. Wisconsin's MEGABUCKS, Lotto* America, is an on-line game in which the player chooses (or the computer selects) six different numbers between 1 and 54, and prizes are awarded for matching four, five or six of the numbers drawn. It is offered simultaneously *484 by sixteen governmental jurisdictions within the United States through a commonly administered drawing and prize pool. SuperCash is an on-line game with a set top prize of $250,000 for matching correctly, in any order, six, five or four of the numbers drawn. A third type of on-line game adds a secondary method of playing an on-line game. For example, a person may win a small cash prize if he or she happens to be the 99th person to purchase a ticket, as determined by the central computer.
The Wisconsin Racing Board is an agency of the State of Wisconsin. It regulates racing and on-track parimutuel wagering in the state, and issues licenses to applicants who wish to own and operate racetracks at which on-track parimutuel wagering is conducted. It has licensed five dog racetracks since it began operating.
OPINION
Plaintiffs' complaint states two causes of action: a claim pursuant to 28 U.S.C. § 1362 to enjoin defendants Penn and Marvin from prosecuting the plaintiffs for operating certain gaming activities on their reservations, and the claim at issue, that the state failed to bargain with plaintiffs in good faith within the meaning of the Indian Gaming Regulatory Act. Plaintiffs' motion for a preliminary injunction on the first claim was denied in an opinion entered July 18, 1990. I held then that the class III activities the plaintiffs were offering on their reservations were illegal under federal law in the absence of a federal-state compact; that the state has no jurisdiction to prosecute violations of its gaming laws on the reservations; that such prosecutions are within the exclusive jurisdiction of the federal government; and that plaintiffs could show no irreparable harm from the threat of unlawful state prosecution because they could avert such harm simply by ceasing their illegal gaming activity. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 743 F. Supp. 645 (W.D.Wis.1990). None of those holdings is implicated in the present motion, which relates only to the interpretation of § 2710(d)(1) of the Indian Gaming Regulatory Act.
Defendants concede that the state's refusal to bargain casino games, video games and slot machines subjects it to an order from the court requiring it to reach a compact with the plaintiffs within sixty days. Defendants have stipulated with plaintiff Lac du Flambeau that once their motion for summary judgment is decided, an order can issue giving the state sixty days in which to reach a compact with the Lac du Flambeau. This concession and stipulation make it unnecessary to hold a trial or evidentiary hearing to determine whether the state has negotiated in good faith with plaintiff Lac du Flambeau, and leave the only question before the court the proper interpretation of the Indian Gaming Regulatory Act.[2]
The issue between the parties centers on the provision in 25 U.S.C. § 2710(d)(1) that "Class III gaming activities shall be lawful on Indian lands only if such activities are.... (B) located in a State that permits such gaming for any purpose by any person, organization, or entity...." (Emphasis added.) Defendants argue that casino games, video games and slot machines are not permitted for any purpose by any person, organization or entity within Wisconsin; because they are not, the state is not required to bargain over these games. Defendants' position is that Congress meant "permits" to be given its usual dictionary meaning of formally or expressly granting leave; therefore, unless a state grants *485 leave expressly for the playing of a particular type of gaming activity within the state, that activity cannot be lawful on Indian lands. Under this approach, the state is required to bargain only over gaming activities that are operating legally within the state.
Defendants' reading of "permits" ignores the other meanings assigned to the word, such as "[t]o suffer, allow, consent, let; to give leave or license; to acquiesce by failure to prevent, or to expressly assent or agree to the doing of an act." Black's Law Dictionary (5th ed.). More important, it ignores the Supreme Court's opinion in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987), on which Congress relied in drafting the Indian Regulatory Gaming Act. In Cabazon, the Supreme Court held that in determining whether a state's criminal laws would apply to gambling on Indian lands under Public Law 83-280, a court must analyze the state's policy toward gambling.[3] If the policy is to prohibit all forms of gambling by anyone, then the policy is characterized as criminal-prohibitory and the state's criminal laws apply to tribal gaming activity. On the other hand, if the state allows some forms of gambling, even subject to extensive regulation, its policy is deemed to be civil-regulatory and it is barred from enforcing its gambling laws on the reservation. California's policy was found to be regulatory: the state permitted and even promoted many forms of gambling, including a state-run lottery, parimutuel racing, bingo, and the card games played in the tribal card room. Because California regulated rather than prohibited gambling in general and bingo in particular, id. at 211, 107 S. Ct. at 1089, it could not enforce its criminal gambling laws against the Cabazon band's high-stakes bingo and card games without infringing impermissibly on tribal sovereignty. Id. at 222, 107 S. Ct. at 1095.
The Senate Report on the Indian Gaming Regulatory Act makes explicit reference to Cabazon in discussing class II gaming, which has the same requirement as class III gaming that the gaming activity be "located within a state that permits such gaming for any purpose by any person, organization or entity." Section 2710(b)(1)(A). The Senate committee stated that it anticipated that the federal courts would rely on the Cabazon distinction between regulatory gaming schemes and prohibitory laws, explaining with regard to the scope of allowable activities:
The Committee wishes to make clear that, under S.555 [the gaming act], application of the prohibitory/regulatory distinction is markedly different from the application of the distinction in the context of Public Law 83-280. Here, the courts will consider the distinction between a State's civil and criminal laws to determine whether a body of law is applicable, as a matter of Federal law, to either allow or prohibit certain activities.
S.Rep. No. 100-446, at 6. Under Pub.L. 280, a court looks at the civil-criminal distinction to determine whether a state can go onto an Indian reservation to enforce the state's criminal gambling laws; under the Indian Gaming Regulatory Act, the court looks at the distinction between the state's civil and criminal laws to determine whether the state permits gaming activities of the type at issue.
Although the Senate committee was speaking of class II activities, its comments are equally applicable to the requirement for class III activities. 25 U.S.C. § 2710(d)(1)(B). See Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1030, (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 1620, 113 L. Ed. 2d 717 (1991): "We deem this legislative history [relating to class II gaming] instructive with respect to the meaning of the identical language in *486 section 2710(d)(1)(B), regarding class III gaming, which we must interpret." See also United States v. Nunez, 573 F.2d 769, 771 (2d Cir.), cert. denied, 436 U.S. 930, 98 S. Ct. 2828, 56 L. Ed. 2d 774 (1978) (settled principle of statutory construction that same word or phrase used in more than one section of statute will be construed to have same meaning in next place if its meaning in the first place is clear).
In addition, the congressional findings set out at subsection (5) of 25 U.S.C. § 2701 support the view that Congress did not intend the term "permits such gaming" to limit the tribes to the specific types of gaming activity actually in operation in a state.
Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity. [Emphasis added.]
In light of the legislative history and the congressional findings, I conclude that the initial question in determining whether Wisconsin "permits" the gaming activities at issue is not whether the state has given express approval to the playing of a particular game, but whether Wisconsin's public policy toward class III gaming is prohibitory or regulatory.
The original Wisconsin Constitution provided that "[e]xcept as provided in this section, the legislature shall never authorize any lottery, or grant any divorce." For more than a century, this prohibition against "any lottery" was interpreted as prohibiting the operation or playing of any game, scheme or plan involving the elements of prize, chance and consideration. The prohibition against a "lottery" has been held to outlaw theater promotions, State ex rel. Cowie v. La Crosse Theaters Co., 232 Wis. 153, 286 N.W. 707 (1939); mercantile promotions, State ex rel. Regez v. Blumer, 236 Wis. 129, 294 N.W. 491 (1940); charitable bingo, State ex rel. Trampe v. Multerer, 234 Wis. 50, 289 N.W. 600 (1940); and television games of chance, State v. Laven, 270 Wis. 524, 71 N.W.2d 287 (1955). In 1965, however, the constitution was amended to allow Wisconsin citizens to participate in promotional sweepstakes (by defining "consideration" as not including listening to or watching a radio or television program or visiting a store or other place without being required to make a purchase or pay a fee). The constitution was amended again in 1973 to authorize bingo when played by charitable organizations, and in 1977 to allow raffles for charitable organizations. In 1987 the electorate approved two constitutional amendments: one authorized the state to operate a lottery, with the proceeds going to property tax relief, Wis. Const. Art. 4, § 24(6); the second removed any prohibition on parimutuel on-track betting. Art. 4, § 24(5).
When the voters authorized a state-operated "lottery," they removed any remaining constitutional prohibition against state-operated games, schemes or plans involving prize, chance and consideration, with minor exceptions. See Op.Att'y Gen.Wis. 10-91, slip op. at 5 ("Under the [state] constitution, the Legislature may authorize any type of state-operated lottery subject only to the advertising, use-of-revenue and off-track wagering restrictions.")[4]
The amendments to the Wisconsin Constitution evidence a state policy toward gaming that is now regulatory rather than prohibitory in nature. See Cabazon, 480 U.S. at 211, 107 S. Ct. at 1089: "In light of the fact that California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates rather than prohibits gambling in general and bingo in particular." The fact that Wisconsin continues to prohibit commercial gambling and *487 unlicensed gaming activities does not make its policy prohibitory. See Cabazon, 480 U.S. at 211, 107 S. Ct. at 1089, rejecting a similar argument by the State of California, which asserted that it could prohibit high stakes, unregulated bingo on the reservation because it treated such bingo as a misdemeanor under state law: "that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub.L. 280." See also Mashantucket Pequot Tribe, 913 F.2d at 1029 (state's allowance of state-operated lottery, bingo, jai alai and other forms of parimutuel betting evidence a regulatory rather than prohibitory policy toward class III gaming although state outlawed the casino games at issue except for fund-raising purposes by nonprofit organizations under certain highly regulated circumstances); United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358, 367 (8th Cir.1990) (existence of state-regulated blackjack, bingo, parimutuel horse and dog race betting, state lottery, and slot machines shows South Dakota's gaming policy to be non-prohibitory, although state had outlawed card games played for money until institution of this action).
Defendants argue that even if Wisconsin is viewed as having a regulatory policy toward class III gaming activities in general, the state need not negotiate the specific activities in dispute because it does not permit expressly the type of gaming plaintiffs want to offer on their reservations. It is not necessary for plaintiffs to show that the state formally authorizes the same activities plaintiffs wish to offer. The inquiry is whether Wisconsin prohibits those particular gaming activities. It does not.
Defendants' assertion that they are required to negotiate only the identical types of games currently offered by the lottery board misconceives the point of the Indian Gaming Regulatory Act, as well as the holding in Cabazon. It was not Congress's intent that the states would be able to impose their gaming regulatory schemes on the tribes. The Act's drafters intended to leave it to the sovereign state and tribal governments to negotiate the specific gaming activities involving prize, chance and consideration that each tribe will offer under the terms of its tribal-state compact. See Mashantucket Pequot Tribe, 913 F.2d at 1024:
The compact process is therefore to be invoked unless, applying the Cabazon test, it is determined that the state, "as a matter of criminal law and public policy, prohibit[s] [class III] gaming activity." § 2701(5). Absent such a conflict, the interests of the tribe and state are to be reconciled through the negotiation of a compact, and, if negotiations fail to achieve a compact and it is determined that the state did not negotiate in good faith, through the litigation and mediation process prescribed by section 2710(d)(7)(A) and (B).
Id. at 1030.
Although defendants insist that their position is not that the tribes are limited to negotiating "the exact games" that the state lottery operates, they argue that Wisconsin law must give express authorization for a "gaming activity" before it can be a proper subject of negotiation. Defendants offer no authority for distinguishing between the state's current lottery games and the activities proposed for negotiation by the tribes. Instead, the state makes the bald statement that casino games "are of a wholly different character than a state lottery or on-track pari-mutual wagering." Defendants' reply brief at 17. The state's current attorney general has rejected the imposition of artificial distinctions within the term lottery, so long as the activity involves the elements of prize, chance and consideration and is not addressed explicitly by the constitutional amendments. Op. Att'y Gen.Wis. 10-91, slip op. at 5-7. I find no reason to impose similarly artificial categories in applying the Cabazon test and in interpreting the Indian Gaming Regulatory Act.
Defendants make one final argument in support of their contention that Congress never intended to permit tribes to conduct games not in operation in the state: a large part of the reasoning behind the compacts *488 was to utilize the regulatory mechanisms for gaming already in place in the states. See S.Rep. No. 446 at 13-14. Defendants' argument has some merit, but it founders on the actual language used by Congress, and the source of that language. The term is "permits," not "operates" or "is in operation." Congress has stated that "permits" is to be interpreted under the Cabazon analysis. Therefore, the fact that a state permits an activity does not mean that the state has a mechanism in place to regulate the precise activities the tribes wish to offer. A state might not prohibit a particular Class III gaming activity, but simply allow it to be conducted, without taking any steps to restrict it in any way. Or a state might allow certain Class III gaming activity to be carried out by small charitable groups on very limited occasions without having any mechanism in place to regulate the same activity carried out on a large scale basis. See, e.g., Mashantucket Pequot Tribe, 913 F.2d 1024 (state that permitted "Las Vegas nights" to be operated by nonprofit organizations subject to statutory restrictions was required to negotiate over inclusion in tribal-state compact of banking games such as baccarat, chemin de fer, and blackjack, as well as roulette and poker that were played at such parties).
I conclude that the state is required to negotiate with plaintiffs over the inclusion in a tribal-state compact of any activity that includes the elements of prize, chance and consideration and that is not prohibited expressly by the Wisconsin Constitution or state law.
To ensure that states engage in negotiations with Indian tribes, the Indian Gaming Regulatory Act requires the states to negotiate in good faith with any tribes that request negotiation, and it gives federal courts jurisdiction over cases brought by Indian tribes arising from the failure of a state to enter into negotiations or to conduct such negotiations in good faith. 25 U.S.C. § 2710(d)(3)(A) and (7)(A). If a state fails to negotiate in good faith the court may require it to conclude a compact within sixty days, § 2710(d)(7)(B)(iii), and shall appoint a mediator to conclude a compact if negotiations are not successful. § 2710(d)(7)(B)(iv). Pursuant to § 2710(d)(7)(B)(iii) and the state's concession that it has failed to negotiate over activities I have now determined must be the subjects of negotiation, the state will be required to conclude a compact with each plaintiff within sixty days. If plaintiff Sokaogon objects to this order, it shall have seven days in which to make its objections known.
ORDER
IT IS ORDERED that defendants' motion to strike the affidavits of Rita Keshena, Milton Rosenberg and James Landru is GRANTED and defendants' motion for summary judgment is DENIED. FURTHER, IT IS ORDERED that pursuant to 25 U.S.C. § 2710(d)(7)(B)(ii), the State of Wisconsin is REQUIRED to conclude a tribal-state class III gaming compact with plaintiff Lac du Flambeau Band of Lake Superior Chippewa Indians and with plaintiff Sokaogon Chippewa Community gaming compact within sixty (60) days from the date of this order. If plaintiff Sokaogon Chippewa Community objects to the order requiring the state to conclude a compact with it, it is to make its objections known within seven (7) days of the date of this order.
NOTES
[1] In this opinion, the term "casino game" refers to banking card games played against the house, such as baccarat, chemin de fer and blackjack, and to roulette, poker and craps. The term "video games" is used as shorthand for electronic or electromechanical facsimiles of any game of chance. See 25 U.S.C. § 2703(7)(B)(ii).
[2] Plaintiff Sokaogon has refused to enter into a similar stipulation, wishing to preserve its right to demonstrate the state's lack of good faith in negotiation. Given the state's concession that it has failed to negotiate over any Class III activities, including those that are clearly subject to negotiation because they are in operation in Wisconsin, it is difficult to understand what advantage plaintiff Sokaogon thinks it is gaining by refusing to stipulate. It can gain no remedy other than the one the state has conceded even if it shows that the state has demonstrated other indicia of bad faith in its negotiations. Plaintiff suggests that findings of bad faith by the court would have a material effect on the mediator's choice of last, best offer should the negotiations reach an impasse, but this suggestion is without foundation.
[3] Pub.L. No. 83-280, which was enacted in 1953 and codified as 18 U.S.C. § 1162 and 28 U.S.C. § 1360, gave six states, including Wisconsin, limited civil and general criminal jurisdiction in certain areas of Indian country within their borders. As a result, Wisconsin has criminal jurisdiction over offenses committed by or against Indians in all Indian country within the state, with the exception of the Menominee Reservation, "to the same extent that [it] has jurisdiction over offenses committed elsewhere within the State...." 18 U.S.C. § 1162(a).
[4] This conclusion departs from the conclusion of defendant Hanaway, former Attorney General, expressed in Op.Att'y Gen.Wis. 3-90. Defendant Hanaway found that the framers of the state constitution and the members of the legislature considered lotteries a form of gambling separate and distinct from other forms of gambling such as betting, playing gambling machines, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1107021/ | 981 So.2d 1177 (2006)
ARTHUR A. HENDERSON
v.
BOBBY McMILLIAN.
No. 2040438.
Supreme Court of Alabama.
January 6, 2006.
Decision of the Alabama Court of Civil Appeal without Opinion. Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1107030/ | 981 So.2d 1179 (2006)
CHARLES E. HERCUS, JR.
v.
AURELIA HERCUS.
No. 2040859.
Supreme Court of Alabama.
March 24, 2006.
Decision of the Alabama Court of Civil Appeal without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3063042/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 26, 2010
No. 09-14387 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-80096-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE L. ADAMS,
a.k.a. Preacher,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 26, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Richard L. Rosenbaum, appointed counsel for Joe L. Adams, has filed a
motion to withdraw on appeal supported by a brief prepared pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent
review of the entire record reveals that counsel’s assessment of the relative merit of
the appeal is correct. Because independent examination of the entire record reveals
no arguably meritorious issues, counsel’s motion to withdraw is GRANTED, and
Adams’s conviction and sentence are AFFIRMED.
2 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063045/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14753 ELEVENTH CIRCUIT
MARCH 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00059-CR-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME JOSE DELCID-DELAO,
a.k.a. Jaime Del Cid,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 26, 2010)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Jaime Jose Delcid-Delao contends that his seventy-month sentence for
illegal re-entry after deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2) is
unreasonable under 18 U.S.C. § 3553(a). The district court enhanced Delcid-
Delao’s base offense level by 16 levels because his prior conviction for obstruction
of an officer constitutes a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Delcid-Delao challenges the substantive reasonableness of the sentence, claiming
the district court should not have applied the full 16-level enhancement because his
conduct that constituted the obstruction offense—elbowing and kicking an
officer—is more akin to simple battery than it is to the crimes of violence
specifically enumerated in § 2L1.2.1 After review, Delcid-Delao’s sentence is
affirmed.2
In analyzing Delcid-Dealo’s challenge, this Court examines whether his
sentence is reasonable in light of the record and the § 3553(a) factors. United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). This Court will not reverse his
sentence unless it is “left with the definite and firm conviction that the district court
1
Delcid-Delao does not argue that his felony obstruction conviction does not meet the
legal definition of a “crime of violence” under U.S.S.G. § 2L1.2; he argues only that the district
court should have recognized the less-violent nature of his particular crime and should have
accordingly departed downward from the Guidelines’ range.
2
This Court reviews the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445
(2007).
2
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191, 1203 (11th Cir.
2008)
In declining to depart downward from the Guidelines’ range, the district
court specifically considered Delcid-Delao’s colorful criminal history, including
multiple batteries and probation violations in addition to the felony obstruction of
an officer. After considering the particular circumstances of the case, as § 3553(a)
requires, the district court determined that a seventy-month sentence was
appropriate. Delcid-Delao has not met his burden of showing that this
determination was in any way an abuse of discretion, especially considering that
the sentence was at the very bottom of the Guidelines’ range of 70 to 87 months.
See Talley, 431 F.3d at 788 (holding when a district court applies a within-
Guidelines sentence, this Court “ordinarily will expect that choice to be a
reasonable one”). The sentence imposed was substantively reasonable and is
therefore affirmed.
AFFIRMED.
3 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063047/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11111 ELEVENTH CIRCUIT
MARCH 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00205-CR-1-VEH-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC DEMONTE TRAMMELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 26, 2010)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Jeffrey D. Bramer, appointed counsel for Cedric Demonte Trammell in this
direct criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief prepared pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire
record reveals that counsel’s assessment of the relative merit of the appeal is
correct. Because independent examination of the entire record reveals no arguable
issues of merit, counsel’s motion to withdraw is GRANTED, and Trammell’s
conviction and sentence under Count Three are AFFIRMED.
2 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2988305/ | Motion Granted; Dismissed and Memorandum Opinion filed November 27, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00910-CV
IN THE MATTER OF H.C, a Juvenile
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Court Cause No. 12-03-02932 JV
MEMORANDUM OPINION
This is an appeal from a judgment of adjudication and disposition signed August
21, 2012. On November 15, 2012, appellant filed a motion to dismiss the appeal. See
Tex. R. App. P. 42.1. The motion is granted.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Frost, Christopher, and Jamison. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3457330/ | Affirming.
This is an appeal from a judgment which dismissed an appeal from the County Court because the traverse of the finding in a forcible detainer proceeding had not been filed within the time specified by Section 463 of the Civil Code of Practice.
On the thirteenth of June, 1945, the appellee made complaint before the County Judge of Warren County that the appellant forcibly detained from her the premises at 334 Main Street, Bowling Green, and the County Judge thereupon issued the usual writ. Following a hearing, the Court, on July 10, 1945, found the appellant to be unlawfully in possession of the premises and entered a judgment to that effect. On July 13, 1945, the traverse provided for by Section 463 of the Civil Code of Practice, was filed and the record was thereafter filed in the office of the Clerk of the Circuit Court. Appellee filed a motion to dismiss the appeal because of the delay in filing the traverse, and on July 21, 1945, the Circuit Court entered an order dismissing the case, from which order this appeal was granted.
Section 463 of the Civil Code of Practice requires that the traverse of the finding of the original trial court must be filed within three days next after the finding. The filing of the traverse within three days was necessary to give the Circuit Court jurisdiction. See Berry et al. v. Trice, 179 Ky. 594, 201 S.W. 37; Hoskins v. Morgan, 249 Ky. 576,61 S.W.2d 30.
It is too well settled to admit of dispute that the day of the rendition of the judgment must be counted as the first of the three days within which the traverse must be filled. Black v. National Bank of Kentucky, 226 Ky. 152, 10 S.W.2d 629, and cases cited therein.
While it is contended that the three days provided for in Section 463 of the Civil Code mean three judicial *Page 867
days (Black v. National Bank of Kentucky, supra), the judgment in this case was entered on July 10th, which fell oil Tuesday, and there were no intervening legal holidays between that date and Thursday, July 12th, which was the last day the traverse could have been filed. The traverse, being filed on July 13th, was filed too late.
Appellant presents two other contentions: First, he claims that the judgment was not actually signed or of record on July 10th. However, the record shows that the judgment was entered on July 10th, is dated the same day, and we are bound by the record. Second, it is claimed that his attorney did not receive a copy of the judgment and had no knowledge that it was entered until July 13th. This is not the unavoidable casualty and misfortune referred to in Section 518 of the Civil Code of Practice, and this plea has no merit. See Louisville Joint Stock Land Bank v. McMurry, 278 Ky. 238, 128 S.W.2d 596; and Carter et al. v. Miller, 264 Ky. 532, 95 S.W.2d 29.
The judgment of the Circuit Court in dismissing the appeal for lack of jurisdiction was correct and it is therefore affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457333/ | Affirming.
The appellant, Theodore Zeutzius, was indicted by the grand jury of Jefferson County, Kentucky, for the murder of Charles E. Fowler. Upon a trial of the case he was convicted of voluntary manslaughter and his punishment fixed at confinement in the state penitentiary for ten years.
There is no complaint as to the sufficiency of the evidence and the only grounds relied on for reversal are, (1) the court failed and refused to instruct the jury on the law of self-defense, and (2) the court failed to instruct the jury on drunkenness of appellant. We will discuss these points in the order named.
(1) Counsel is in error in his insistence that the *Page 456
court failed to instruct the jury on the law of self-defense. By Instruction No. 1 the court gave to the jury the usual instruction on murder and voluntary manslaughter. Instruction No. 2 defined certain words and phrases used in Instruction No. 1. Instruction No. 3 reads as follows:
"If the jury shall believe from the evidence that at the time the defendant shot said Charles E. Fowler if he did so, he in good faith believed, and had reasonable grounds to believe, that he was then and there in danger of death, or the infliction of some great bodily harm, at the hands of said Fowler, and there appeared to defendant, in the exercise of a reasonable judgment at the time and under the circumstances no other safe means of averting tile danger, either real or to him apparent, except to shoot, wound or kill said Fowler the jury will find the defendant not guilty."
Other instructions were given, but no complaint is made in regard to them. However, upon examination of the instructions for ourselves, we find them to be substantially correct.
(2) It is the established rule that when there is any evidence tending to show that an accused was so drunk at the time of the commission of the act that he did not know what he was doing or was incapable of entertaining felonious intent, the court should instruct the jury on that theory of defense. However, this case does not come within that category. Appellant was asked and answered as follows:
"Q. Were you drunk at the time of this trouble? A. No, sir.
"Q. Are you positive of that? A. I was drinking. I was not drunk."
In addition to the positive testimony of appellant that he was not drunk, but "drinking" only, his evidence as a whole indicates that he had sufficient mind and memory to give a connected narrative of everything that happened. He related in detail all the facts and circumstances that might tend to excuse his conduct. See Barnett v. Commonwealth, 195 Ky. 699,243 S.W. 937; Hayes v. Commonwealth, 171 Ky. 291,188 S.W. 415.
The evidence being insufficient to require an instruction *Page 457
on drunkenness, the trial court did not err in failing to give such an instruction.
Finding no error prejudicial to appellant's substantial rights, the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457334/ | Reversing.
Appellants, Rosa Lee Wilcox, Fannie May Clowers and Samuel Hall are children and heirs at law of Nannie Belle Hall, who died intestate in 1895. Appellees, Robert R. Sams, Cleveland Sams and the children of Naomi Allen are children and grandchildren of John Sams, who died intestate in 1897, the owner and in possession of a large body of land located in Estill county, and variously estimated to contain from 500 to 900 acres.
John Sams' widow died June 15, 1901, and shortly thereafter his land was partitioned among his three children, *Page 698
Robert, Cleveland and Naomi, by appropriate action in the Estill county court. Deeds were accordingly executed to them by the court's commissioner and recorded. Each party tooK possession of the tract so allotted to him and by himself or his heirs or grantees has remained in the open, notorious and continuous adverse possession of same ever since.
On August 17, 1920, appellants filed this action against appellees for partition of John Sams' land and an accounting for rents, waste, etc., since his death alleging the adoption of their mother, Nannie Belle Hall, by him in 1879 as his heir pursuant to section 2071 of the statutes. While the adoption was denied by appellees in their answer, it is matter of record and was admitted upon the trial below as it is here. As Mrs. Hall died before Sams it follows that her children inherited through her and as his grandchildren the undivided one-fourth interest in his land that she would have inherited if she had survived him. Power v. Hafley, 85 Ky. 671, 4 S.W. 683.
The principal question in issue therefore is whether the right of appellants to claim and recover their respective interests in the land was barred by the fifteen years statute of limitation when this action was instituted in 1920 as appellees pleaded and the chancellor held.
Appellants and appellees unquestionably became joint owners of Sams' land upon his death and the rule is thoroughly established by the many cases cited in support thereof by counsel for appellants that the possession of one joint owner is presumptively the possession of all and that to oust his cotenants his possession must not only be of the adverse character required by law as against strangers, but such as to bring home to his cotenants notice that he is holding and claiming adversely to them. The more recent of such cases which cite most if not all the earlier ones are: Johnson v. Myer, et al., 168 Ky. 430, 182 S.W. 190; Winchester v. Watson, 169 Ky. 213, 183 S.W. 483; Rush v. Cornett, 169 Ky. 714, 185 S.W. 88; Collins v. Blaine, 198 S.W. 541, 178 Ky. 120; Sullivan v. Sullivan, 179 Ky. 686, 201. S.W. 24; War Fork Land Co. v. Marcum, 180 Ky. 352, 202 S.W. 668; Miller v. Powers, 184 Ky. 417, 212 S.W. 453; May v. C. O. R. R. Co., 184 Ky. 493,212 S.W. 131; Bailey's Widow and Heirs v. See, 187 Ky. 596,219 S.W. 1061; Gilbert v. Carter, 189 Ky. 476, 225 S.W. 143; Strong v. Ky. River *Page 699
Hardwood Co., 189 Ky. 529, 225 S.W. 358. These cases, however, do not sustain the further contention of appellants that this notice must be actual although in some of them the word actual is employed in stating the rule, since it is well settled not only by the above cases but more particularly those in which the precise question was involved that the required notice may be actual or constructive and may be inferred or imputed from the acts and conduct of the one in actual possession. Gillaspie v. Osborn, 3 A.K. Marshall 78, 13 Am. D. 136; Gill v. Faunteleroy's Heirs, 8 B. Monroe 177; Russell's Heir's v. Mark's Heirs, 3 Motc. 37; Greenhill v. Biggs, 85 Ky. 155,2 S.W. 774; Big Sandy Co. v. Ramey, 162 Ky. 236, 172 S.W. 508; Rush v. Cornett, 169 Ky. 714, 185 S.W. 88; May v. C. O. R. R. Co., 184 Ky. 493, 212 S.W. 131; Quarles v. Bradshaw,200 Ky. 475, 255 S.W. 124; Settle v. Simpson, 204 Ky. 470,264 S.W. 1092.
In the case at bar the partition was effected by court proceedings in which Sams' children asserted complete and exclusive ownership, and appellants were required to take notice of the deeds executed and recorded in pursuance thereof conveying to Sams' three children born in wedlock absolute title to the shares allotted to them in that proceeding and the fact that they, their heirs and grantees were claiming and holding thereunder adversely to appellants and all others as was expressly held in May v. C. O. R. R. Co., Quarles v. Bradshaw, Settle v. Simpson and several others of the cases,supra. That they were holding their respective tracts adversely to appellants, each other and every one else and that appellants were not only chargeable with knowledge of that fact after the execution and recordation of the deeds of partition but had actual knowledge thereof is thoroughly established. Indeed such knowledge is not really denied by appellants whose insistence is rather that appellees' known occupancy although exclusive and apparently adverse was not so in fact or at law because of their ignorance until shortly before they instituted this action of the adoption of their mother by Sams and their consequent rights as his heirs, although the adoption was evidenced by the public records of the county where the land was located and the parties resided and was known to some at least of Sams' intimates and neighbors who are still living. The fallacy of this argument is patent.
While a lack of knowledge of one's rights is often if not always an important consideration upon the question *Page 700
of laches, it ordinarily is insufficient to prevent the operation of statutes of limitation. This is particularly true where as here nothing was done by appellees to prevent discovery by appellants of their right of inheritance, which being matter of public record could and should have been discovered by the exercise of any kind of diligence upon the part of appellants, who also knew that Sams had always recognized their mother as his natural child and them as his grandchildren. 17 Rawle C. L. 832; 37 C. J. 969; Reuff-Griffin Decorating Co. v. Wilkes, 173 Ky. 566, 191 S.W. 443.
It follows that appellees' possession became adverse and appellants' cause of action against them accrued when the land was partitioned among the former and they took possession of the tracts so allotted and conveyed to them. The exact date of this is not ascertainable from the record before us as appellants have not brought up the partition proceedings and deeds although the record shows they were filed as exhibits with defendants' depositions. This occurred, however, in 1901, 2 or 3 and the exact date is immaterial since during all that time appellants, Clowers and Hall, were infants and Mrs. Wilcox a married woman, she having married November 30, 1899, at 17 years of age.
Hence whether appellants' cause of action was barred when filed in 1920 by the 15 year statute of limitation (section 2505) depends upon how long its operation was suspended by section 2506 of the statutes, which provides:
"If, at the time the right of any person to bring an action for the recovery of real property first accrued, such person was an infant, married woman, or of unsound mind, then such person, or the person claiming through him may, though the period of fifteen years has expired, bring the action within three years after the time such disability is removed."
Construing these sections and their somewhat similar predecessors the rule has long been established and consistently followed in this state that when the right of entry descends to heirs who are all under disability at the time their right of action accrues the limitation does not begin to run against any of them until the disability is removed from all. But if part of them are not then under disability the disability of the others does not prevent the statute from running against all. Moore v. Calvert, *Page 701
6 Bush 356; May v. C. O. R. R. Co., supra; Henderson v. Fielder, 185 Ky. 482, 215 S.W. 187; Combs v. Grigsby, 200 Ky. 31, 252 S.W. 111; Quarles v. Bradshaw and Settle v. Simpson,supra.
The disability of infancy, under which alone Samuel Hall and Mrs. Clowers were laboring when the cause of action accrued, was removed in 1904 and 1909 respectively, but Mrs. Wilcox, although she became of age in 1903, still is and at all times has been a covert just as she was when the cause first accrued. Hence under the above rule the action was not barred as to any of them.
The subject of laches is discussed generally and at length in appellants' brief, but none of those to whom large parts of the land have been conveyed is a party to this action and in the present state of the record it is impossible to ascertain what portions thereof are still in appellees' possession or to which if any the plea of laches is directed or applicable. Hence that question is not now considered and nothing herein is to be construed as affecting such land or the rights of any party in or to or growing out of same or as indicative of how the right of appellants or appellees in the remaining lands are affected thereby if at all.
Wherefore, the judgment is reversed solely upon the question of limitations and the cause remanded for any and such proceedings as are necessary to an equitable adjustment of the rights of appellants and appellees, and other interested parties in and to the lands here involved. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457337/ | Affirming.
This case involves the validity of two deeds executed by Mattie Allen, deceased, to Luther Butler. One *Page 180
of the deeds was executed in April, 1938, and the other in May, 1939. Mrs. Allen came into possession of the property in question in 1936 under the will of her husband, W.A. Allen. Mrs. Allen died late in 1939. The deeds were attacked upon the grounds that Mrs. Allen had only a life estate in the property, and that there was no consideration for the transfers to Butler and that they were made for the purpose of defeating the heirs of W.A. Allen.
Clause 2 of Mr. Allen's will is as follows:
"I will and bequeath to my wife, Mattie Allen, all of the remainder of my property of whatever kind, both personal and real, and herein direct that she shall have full and complete charge and control of same, to the extent of selling and transferring any or all real estate, and shall use any or all of said property or the proceeds from same that she shall desire, and any remaining at her death shall be equally divided between my sister, Sarah Walker, and the living children of my deceased sister, Margaret Butler (one half to Sarah Walker and one half to living children of Margaret Butler)."
The appellants contend that the provision of the will just quoted gave Mrs. Allen an extremely limited power of disposition, but the appellees contend that she was given expressly an unlimited power of disposition. The rule is that, where property is devised to one absolutely with unlimited power of disposition, and by subsequent provision of the will the testator undertakes to devise whatever may be left of the property at the first taker's death, the limitation over is void and the first taker acquires a fee-simple title. Nelson v. Nelson's Ex'r, 140 Ky. 410, 131 S.W. 187; Wells v. Jewell,232 Ky. 92, 22 S.W.2d 414; Wintuska v. Peart, 237 Ky. 666,36 S.W.2d 50; Whicker v. Strong, 258 Ky. 135,79 S.W.2d 388; Sumner v. Borders, 266 Ky. 401, 98 S.W.2d 918; Davis v. Conrad, 270 Ky. 224, 109 S.W.2d 612, and cases cited in these opinions. But, where the intent of the testator is obscure, we look to the will as a whole to determine that intent, regardless of collateral and subsidiary rules. Wintuska v. Peart, supra; Walker v. Walker's Adm'r, 239 Ky. 501, 39 S.W.2d 970; Breckinridge v. Breckinridge's Ex'rs, 264 Ky. 82,94 S.W.2d 283. *Page 181
The appellees stress the Nelson and Wells cases, supra, wherein devises were made in language similar to that used in the will now before us. The first taker in each of those cases took a fee-simple estate.
In the Wintuska case the part of the will in question read as follows:
"After satisfying the above specific devises, I will to my wife, Sallie M. Peart, the remainder of my entire estate of whatsoever it may consist whether realty, personalty or mixed, to use, manage and control as she may wish without any restrictions whatever, hereby investing her with full power to sell and convey by deed or otherwise any property herein willed to her. But when my said wife shall come to die, if she so desires, she may give or will one-half of whatsoever of my estate then remains in her possession to the children of S.S. Phillips, Frank Phillips, Jennie Hines Phillips Larue and Mary Phillips, the remaining half to be divided equally to my two brothers, John W. Peart, and James A. Peart, and my two sisters, Lucy H. Peart and Ada B. Peart."
This Court held that the will expressly limited the power of the first taker to dispose of the property by will, and therefore did not give her an unlimited power of disposition. During the course of the opinion it was said:
"* * * The unlimited power of disposition comprises not only conveyances inter vivos but also the power to dispose of by will if the devisee so wishes and as the devisee may wish. Now had Wm. L. Peart by this fifth clause of his will devised his estate to his wife 'to use, manage and control as she may wish without any restrictions whatever * * * with full power to sell and convey by deed or otherwise' the property devised, any property not disposed of by her in her lifetime to go as the testator directed, the case would fall within the rule of Wells v. Jewell, 232 Ky. [92] 93, 22 S.W.2d 414; Barth. Barth, 38 S.W. 511, 18 Ky. Law Rep. 840; Plaggenborg v. Molendyk's Adm'r, 187 Ky. 509, 219 S.W. 438; Commonwealth v. Stoll, 132 Ky. 234, 114 S.W. 279, 116 S.W. 687; Becker v. Roth, 132 Ky. [429] 433, 115 S.W. 761; Nelson v. Nelson, 140 Ky. 410, *Page 182 131 S.W. 187; and of many others cited and relied upon by the appellant. In these cases, the devise is typical — the first taker is given the property to enjoy with full power to sell and convey by deed or otherwise (sometimes it is even stated that the taker may will the property devised), but whatever remains of the property undisposed of by the first taker at his death is to go as testator directs. It will be observed in such a devise that the power of disposition is not limited by any expressed words of the testator. The first taker is left free to dispose of the property as he may see fit, and the testator putting no express limitation on that power, we have held it to be a power to dispose of by will as well as by an inter vivos conveyance. The taker then is invested with all the attributes of a fee and, being so invested, is held to take a fee. Once this position is arrived at, it inevitably follows as those cases hold that the limitations over of what remains undisposed of by the first taker are void."
It is obvious from the foregoing quotation that the Wintuska case does not limit or modify the rule heretofore mentioned.
The appellants insist that the phrases "to the extent of selling and transferring any or all real estate," and "shall use any or all of said property or the proceeds from same that she shall desire," were restrictions upon the part of the will which gave Mrs. Allen full charge and control of the property. They insist also that there was a further limitation which restricted Mrs. Allen's right to dispose of the property in directing the disposition of any property which might remain at her death. We are unable to agree with this construction of the will.
It is our conclusion that Mr. Allen intended to give his wife a fee-simple estate in the property. The gift over, therefore, was void. The property was bequeathed to Mrs. Allen. She was given full and complete charge and control of it, with the right to sell or transfer any or all of it and to use any or all of it, or the proceeds from the sale thereof as she desired. Clearly, this was a devise with unlimited power of disposition.
In view of the foregoing conclusion that Mrs. Allen took a fee-simple estate, it is unnecessary to discuss the *Page 183
second question raised by the appellants. Suffice it to say, however, that Luther Butler brought forth evidence in support of the deeds which would warrant a finding that they not be disturbed.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457338/ | Affirming.
This is an appeal from a judgment of the Henry Circuit Court construing the will of W.S. Threlkeld, deceased. The testator left an estate worth approximately $300,000. In his will dated October 9, 1944, he made several specific bequests, including one of $5000 to E.O. Magruder and $5000 to each of Magruder's three children, He bequeathed $5000 to Mrs. Charlotte Callis, and directed his executors to place with a trust company in Louisville $30,000 for the benefit of Mrs. Callis, who is to receive $125 each month during her life. At her death, the principal remaining is to go to the Synodical Presbyterian Orphanage of Anchorage, Kentucky, referred to in the will as the Presbyterian Orphans' Home of Anchorage, Kentucky. The specific cash bequests in the original will amount to approximately $80,000. *Page 236
The thirteenth clause of the will reads:
"Many years ago my wife and I agreed to give a large portion of our respective estates to the Presbyterian Orphans Home at Anchorage, Kentucky, and having that in mind as well as it being my individual desire, I give to the Presbyterian Orphans Home at Anchorage, Kentucky, all of the remainder of my estate."
In the fourteenth clause the testator appointed E.O. Magruder and J. Wirt Turner executors and directed them to sell all of his property, real and personal. On January 13, 1945, the testator executed a codicil in which he directed his executors to turn over $12,000 to the Citizens Union Fidelity Trust Company, of Louisville, for the benefit of Dr. Owen Carroll, who is to receive $1000 each year during his life and at his death the remainder, if any, is to go to the Presbyterian Orphanage at Anchorage, Kentucky. On November 8, 1945, the testator executed a second codicil, which reads:
"Nov. 8/1945.
"On account of the great increase, in value of both personal and real property I want to change and grant following bequests as follows, in my last will, dated Oct. 9/44.
"To the following that I gave $5,000.00 each I want to have ($10,000.00).
"My niece Elizabeth Cyrus.
"E.O. Magruder
"Jimmie Harding Hughes
"Mrs. Charlotte Callis.
"Also I want the darkes, Tom Johnson and Price Brown (Happy) to have $500.00, that is if Tom and Happy are living with me at the time of my death. Also Mrs. Callis is to have everything in front dining room and stoker in front hall.
"Arthur Stivers who has been with me several years has always been of great help to me. He owes me four $500.00 Five Hundred notes and if is living with me at time of my death I want one cancelled but if they should be paid I want $500.00 given to him. *Page 237
"I always expect to keep two automobiles I want E.O. Magruder to have choice, Mrs. Charlotte Callis the other.
"I think Wm. Buford (son of Vida Threlkeld) as deserving boy, so I want $5,000.00 Five Thousand Dollars given to him.
"W.S. Threlkeld"
In the third codicil he increased Price Brown's bequest from $500 to $1000.
Mr. Threlkeld died January 29, 1946, and on March 3, 1946, the executors brought this declaratory judgment proceeding for a construction of the will. They sought the advice of the court on six questions. An agreed judgment was entered declaring the rights of the parties as to five of the questions propounded in the petition, but the parties were unable to agree on the construction of the following clause in the codicil dated November 8, 1945:
"I always expect to keep two automobiles I want E.O. Magruder to have choice, Mrs. Charlotte Callis the other."
It appears that E.O. Magruder was a cousin of the testator and Mrs. Callis was his housekeeper. It was alleged in the petition that the testator did not own an automobile at the time of his death. He had given his automobile to G.L. Magruder, a son of E.O. Magruder, and had ordered a Lincoln automobile from an agent at Shelbyville, Kentucky, and a DeSoto automobile from an agent at Owenton, Kentucky. Neither of these automobiles had been delivered to the testator prior to his death, nor had delivery been tendered at the time the petition seeking a construction of the will was filed. E.O. Magruder claims that he is entitled to the Lincoln automobile and that the executors should be required to pay for it and deliver it to him, and Mrs. Callis claims that she is entitled to the DeSoto automobile and that the executors should be required to pay for it and deliver it to her. In paragraph one of her answer Mrs. Callis alleged as a conclusion that the testator had entered into a valid and binding contract for the Lincoln and DeSoto automobiles; that she was entitled to the DeSoto automobile; and that the estate of the testator *Page 238
was responsible for the purchase price. She also alleged that W.S. Threlkeld did not at the time of his death own an automobile of any kind, but had contracted for the Lincoln and DeSoto and they were the automobiles referred to in the codicil of November 8, 1945. A demurrer to paragraph one of her answer was sustained after Mrs. Callis and the executors stipulated that the contracts referred to in paragraph one of the answer were oral and not in writing, involved sums exceeding $500 each and no part of the purchase price had been paid. It was stipulated that these facts should be considered as if stated in the pleadings. The court then declared the rights of the parties as follows:
"* * * The said will and codicil of said W.S. Threlkeld, deceased, are construed as not authorizing his Executors to perform the oral contracts referred to in the pleadings herein, by the acceptance of delivery of the automobiles referred to in said contracts, or the payment therefor by the Executors out of the assets of the estate of said decedent; and accordingly, it is the judgment of this Court that said Executors are not authorized to accept delivery of said automobiles, or either of them, or to pay therefor the purchase price thereof out of the assets of the estate of the said W.S. Threlkeld, deceased, or to deliver said automobiles to said defendants, Charlotte Callis or E.O. Magruder."
J. Wirt Turner and E.O. Magruder, executors, E.O. Magruder individually, find Charlotte Callis have appealed.
It is their contention that a latent ambiguity in the clause in question arises when the language of the will is applied to the facts of the case, and extrinsic evidence should be admitted to show what the testator meant by what he said. The extrinsic evidence which they would introduce is the fact that the testator had placed orders for two automobiles. It is conceded that these orders were verbal, and in view of KRS361.040 that the contracts were unenforceable. The extrinsic evidence would be of no assistance in arriving at the testator's intention. The clause in Codicil No. 2 is clear and unambiguous. If the testator owned two automobiles at the time of his death Mr. Magruder was entitled to one and Mrs. Callis to the other. If he owned none, neither was *Page 239
entitled to have one purchased out of the estate. There is nothing in the clause referred to, or other parts of the will, which indicates an intention on the part of the testator to require his executors to purchase two automobiles and deliver them to Mr. Magruder and Mrs. Callis in the event he owned none at the time of his death. If such had been his intention he could easily have expressed it. The construction urged by appellants would require the Court to import into the will an intention not expressed therein. In Bush's Ex'r v. Mackoy,267 Ky. 614, 103 S.W.2d 95, 96, it was stated that, where there is ambiguity in a will, the court will consider surrounding circumstances at the time of execution of will, amount of testator's estate, apparent motive which actuated him and other facts tending to throw light on the language used, and the Court then said:
"But such conditions cannot import into the will any intention not expressed therein."
In that case the description in the will of a lot devised was inaccurate and it was hold that parol evidence was admissible to identify it. Here there is no inaccuracy or ambiguity in the description of the property. In Cambron v. Pottinger, 301 Ky. 768, 193 S.W.2d 412, it was said that there is no requirement for the introduction of parol evidence to amplify the meaning of an unambiguous will which should be construed according to its terms alone. While it is a cardinal rule in the construction of wills that the intention of the testator must be ascertained and given effect, Cahill v. Pelzer, 204 Ky. 644,265 S.W. 32, it is not the function of the court to make a will for the testator or to improve on the will as round or to give to the language of the testator an intent not deducible from the will itself. Calloway v. Calloway, 171 Ky. 366,188 S.W. 410, L.R.A. 1917A, 1210; Meader's Ex'r v. Old Odd Fellows and Rebekahs Home, 296 Ky. 497, 177 S.W.2d 874; Daniel v. Tyler's Ex'r, 296 Ky. 808, 178 S.W.2d 411. In the will before us there is no ambiguity in the description of the property or of the persons named as legatees. Appellants' position in its final analysis is that the court should permit the receipt of extrinsic evidence to create an ambiguity which did not exist on the face of the will and then proceed to dissolve that ambiguity by accepting additional extrinsic evidence as to the testator's *Page 240
intent. Even if the facts referred to in the answer of Mrs. Callis and in the stipulation had been admitted in evidence, the ambiguity or uncertainty, if any, so created would not have been sufficiently clarified to authorize the Court to make the material additions to the language of the testator contended for by appellants. The pleaded extrinsic facts do not change the intrinsic evidence of the intent of the testator as expressed in his will. We think the chancellor correctly construed the clause in question and the judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/130603/ | 539 U.S. 936
Hannahv.United States.
No. 02-10687.
Supreme Court of United States.
June 16, 2003.
1
Appeal from the C. A. 9th Cir.
2
Certiorari denied. Reported below: 56 Fed. Appx. 416. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3457341/ | Affirming.
This equitable action was instituted by appellee against appellants to cancel a deed which she had executed *Page 778
and delivered to them on March 14, 1923, on the ground that it had been procured by fraud. Issue was duly joined, and, upon the hearing below, the chancellor adjudged appellee the relief sought. Hence the appeal.
Appellee is the surviving widow or Augustus Ratcliff, who died March 3, 1923. At the time of his death he was the sole owner in fee-simple title of two tracts of farm land in Boyd county, Kentucky, known as lots No. 21 and 22, in the Means
Russell Iron Company's Bellefonte Furnace Lands, containing about 101 acres. He and appellee owned jointly lot No. 34 of the same lands containing 22-89/100 acres, and lot No. 23 in block No. 8 of East Oakview, a suburb of Ashland. They made their home on the latter tract of land. By the deed sought to be cancelled, which was executed ten or eleven days after the death of her husband, appellee bad conveyed all of her right, title and interest in and to all of this land, both in her own right and as surviving widow of her husband, to three of her sons, who are appellants herein. It appears that appellee is 67 years of age. She and her husband were married January 7, 1873. At that time he owned the clothing that be wore and $5.00 in money. Shortly, after they were married Mrs. Ratcliff inherited from her father about $350.00. It was invested in 50, acres of land in Elliott county, the title being taken in her husband. By the fruits of their lives of industry and economy they subsequently were able to purchase additional lands in Elliott county, title of which was taken in him. Subsequently the Elliott county lands were sold and the Boyd county farm lands which he owned when he died were purchased. The title of all of it, including the 22 acre tract, was taken in Mr. Ratcliff. Some years before his death, however, they conveyed the 22 acre tract to another and subsequently repurchased it, the title then being taken jointly in Mr. and Mrs. Ratcliff. The house and lot in Ashland where they lived when he died was purchased in 1922 and was paid for largely, if not wholly, with money received by Mrs. Ratcliff on a policy of insurance for $10,000.00 taken in her favor by one of their sons who was killed in action during the World War. The title was taken jointly in them. For the last five years of his life Mr. Ratcliff was unable because of physical infirmity to engage in labor, and the last three or four years was an invalid, requiring much care and attention, and his wife lovingly and tenderly rendered *Page 779
that service to him, None of their children lived with them, and some of them at such a distance that their visits were infrequent. None of them appears to have shared the burden of caring, for their father. Three days before his death, at the instance of the three sons, a will was prepared for him by which he devised his real estate to them. All parties Seoul agreed that at the time he did not have mental capacity to make a will. The scrivener frankly so testified. He did not then seem to know either his property or his children, and had to be reminded that he had made no provision whatever for his wife. After his death, upon learning the content of the will, his daughters, who had been disinherited, gave notice of their dissatisfaction and intention to contest the probate of the will. The deed which appellee signed and Which by this proceeding she sought to cancel, so far as it conveyed her interest either in her own right or as the surviving widow of her husband to her three sons, appears to have grown out of the controversy between the sons and daughters with respect to a settlement of their father's estate. It was prepared in ail attorney's office after ail all day's session had by the children, at which their mother does not appear to have been present, and was signed by her and them at nine or ten o'clock at night, she having been sent for shortly before that time. By the terms of the deed, in accordance with the settlement made between the children, the four daughters were paid $650.00 each for their interest in the real estate left by their father, in consideration of which they conveyed the same to the three son; and appellee for no consideration that we have been able to discover conveyed to the three sons all of her interest as the surviving widow of her husband in all of the real estate owned by him at the time he died, and also the undivided half interest which she owned in her own right in the house and lot in Ashland and in the 22 acre tract of land, but was graciously allowed an estate for life in the house and lot in Ashland, which she had paid for and absolute title to one-half of which she held. She testified that the deed was not read to her and that she did not understand its contents, and that when she signed it she was laboring under the mental strain incident to the last illness and death of her husband, which bad been aggravated by the controversy and bickering of their children over his estate. She testified also that she was told by one of her sons *Page 780
that to sign the paper they had prepared was the only way to keep down trouble and a lawsuit over her husband's estate; and that, although she finally signed, she stated that she could not do so "with a free good will." Some of her daughters corroborate her as to what occurred at the time she signed the deed in question. The three sons and the attorney who prepared the deed and who was present when she signed it testified that she understood the transaction fully and signed it with full knowledge of its contents and the consequences of so doing. The attorney, however, corroborated her to the extent that he says she stated that she could not sign it "with a free good will."
Under these facts it is insisted that we must conclude that the chancellor erred in adjudging a cancellation of the deed in question. The court is unable to bring itself around to that way of thinking. A more unconscionable case of an aged, trusting parent being over-reached at a time when most susceptible by avaricious children would be difficult to imagine. The chancellor correctly concluded that the deed should be cancelled, and the judgment will be affirmed.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3245644/ | Opinion of the Justices of the Supreme Court in answer to questions propounded by the Governor under Code 1940, Title 13, § 34, as to whether the Board of Compromise, acting under Code 1940, Title 55, § 12, may release, diminish or compromise a claim based on final tax assessment made by Department of Revenue, in view of Section 100 of the Constitution.
June 22, 1948.
The Honorable Chief Justice and Associate Justices of the Supreme Court of Alabama
Judicial Building
Montgomery, Alabama
Gentlemen:
Under the provisions of Title 13, Section 34, Code of Alabama 1940, your written opinion is respectfully requested on the following important constitutional questions:
1. Does Section 100, Constitution of Alabama 1901, prohibit the Governor, Attorney General, and Auditor, acting as a Board of Compromise under Title 55, Section 12, Code of Alabama 1940, from releasing, diminishing, or compromising a claim of the State or its political subdivisions based upon a final tax assessment made by the Department of Revenue against a solvent taxpayer, after legal and proper notice to the taxpayer, which tax is authorized by statute to be assessed by the Department of Revenue; no appeal having been taken to the Circuit Court from such final assessment?
2. Would the answer to Question No. One above be the same if (a) such taxpayer is insolvent; and if (b) such taxpayer is insolvent but owns assets subject to the tax lien and sufficient to discharge such lien?
3. Is a final tax assessment made by the Department of Revenue upon legal and proper notice such "doubtful claim" within the purview of said Section 100 of the Constitution as to authorize or empower said Board of Compromise to assume jurisdiction and to release, diminish, or compromise such final assessment on such terms as to the Board seem just and reasonable upon petition filed with the Board by a dissatisfied taxpayer, and in the absence of an appeal to the Circuit Court from such final assessment?
Respectfully submitted,
James E. Folsom Governor of Alabama
To the Hon. James E. Folsom,
Governor of Alabama,
Montgomery.
Sir:
Answering your inquiry of June 22, 1948, with respect to the jurisdiction of the Board of Compromise over tax assessments, we beg to advise.
Section 100 of the 1901 Constitution reads:
"No obligation or liability of any person, association, or corporation held or owned by this state, or by any county or other municipality thereof, shall ever be remitted, released, or postponed, or in any way diminished, by the legislature; nor shall such liability or obligation be extinguished except by payment thereof; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; provided, that this section shall not prevent the legislature from providing by general law for the compromise of doubtful claims." *Page 98
Section 12, Title 55, Code of 1940, provides:
"The governor, attorney-general, and auditor have authority to adjust, compromise, and settle, on such terms as to them may seem just and reasonable, any claim of the state against any person or corporation, or any public officer, or his sureties, or because of the negligence or default in the safe keeping, collection, or disbursement of the public moneys, or funds, or property, by any officer having charge or custody of either."
Prior to the year 1879 tax liabilities could be compromised by the legislature. See, Tallassee Mfg. Co. v. Glenn, 50 Ala. 489.
The first statute authorizing the compromise of State claims was enacted by the legislature of 1879, Acts 1879, page 176. Sections 1 and 2 of the Act correspond with sections 12 and 13, Title 55, Code of 1940. Sections 1 and 2 of the 1883 Act were brought forward into the Code of 1886 as sections 70 and 71. When carried into the Code of 1886, section 70 read as follows:
"The governor, attorney-general and auditor have authority to adjust, compromise and settle, on such terms as to them may seem just and reasonable, any claim of the state against any person, or any public officer, or his sureties, arising underthe revenue laws; or because of the negligence or default in the safe keeping, collection, or disbursement of the public moneys, or funds, or property by any officer having charge or custody of either." (Italics ours.)
This section was carried forward into the Code of 1896 as section 3753, omitting however the italicized portion of section 70, quoted above. In short, the legislature amended the section to omit therefrom the words "arising under the revenue laws."
Section 12, Title 55, Code of 1940, is substantially the same as section 3753, Code of 1896. From 1896 to the present time there has been no substantial amendment in such section.
The only amendment that has been made to such section as it appears in the Code of 1896 is to insert the expression "or corporation" after the word "person."
Section 100, supra, first appeared in our Constitution of 1901. It has no counterpart in previous constitutions.
It is suggested that the omission of the words "arising under the revenue laws" from section 70, supra, when it was carried forward into the Code of 1896 as section 3753, evinces a legislative intent to exclude claims arising under the revenue laws. We do not agree. Section 3753, supra, is broader in scope and more inclusive than section 70, supra, and, in our opinion, the legislature intended to include not only claims arising under the revenue laws, but other claims as well.
Suggestion is also made that section 12, supra, is unconstitutional because it includes "any" claim, whereas section 100 of the Constitution provides that the legislature may authorize the settlement or compromise of "doubtful" claims only. Section 12, as shown above, antedates section 100 of the Constitution. The proviso in section 100, supra, authorizing the legislature to provide for the settlement of "doubtful claims" is not self-executing. Therefore, section 12, supra, was not repealed when section 100 of the Constitution was adopted. 50 Am.Jur. sections 540-541, page 547.
It is the duty of the Court to construe a statute so as to make it harmonize with the Constitution, if this can be done without doing violence to the terms of the statute and the ordinary canons of construction. A statute in such terms, as not to exclude constitutional requirements and to justify the Court in holding that it is subject to those requirements, should be upheld and the constitutional requirement treated as a feature of it. Montgomery S. R. Co. v. Sayre, 72 Ala. 443; Almon v. Morgan County, 245 Ala. 241, 16 So.2d 511. In other words, the adoption of section 100 of the Constitution had the effect of amending section 70 of the Code of 1896 (now section 12, supra), and must be read into it. It should be considered as dealing with "doubtful claims" only. This has been the administrative construction of section 12, *Page 99
supra, over a period of many years, and we do not now feel justified in striking it down.
The answer to your inquiry depends largely upon the construction of the term "doubtful claims."
Answering your first inquiry, we are of the opinion that a final tax assessment made by the Department of Revenue against a solvent taxpayer, after legal and proper notice to the taxpayer, which tax is authorized by statute to be assessed by the Department of Revenue, no appeal having been taken to the circuit court from such final assessment, is not a doubtful claim within the purview of section 100 of the Constitution, and cannot be released, diminished or compromised. We therefore answer inquiry numbered 1 in the affirmative.
The answer to your inquiry numbered 2(a) is not the same. The Board of Compromise has the authority to compromise a final tax assessment against an insolvent taxpayer where the assessment thereof is doubtful of collection. Answering inquiry numbered 2(b), the Board of Compromise would not have such authority although the taxpayer is insolvent, but has assets subject to the tax lien sufficient to discharge it. Its collection could not be doubtful.
The answer to your inquiry numbered 3 depends upon whether the collection of such a final tax assessment is doubtful. If there is doubt as to its collectibility it may be compromised, otherwise not. It is to be noted that section 12, supra, the enabling act, provides for the settlement of State claims only. It makes no provision for the settlement or compromise of claims of any political subdivision of the State.
Respectfully submitted,
LUCIEN D. GARDNER Chief Justice. JOEL B. BROWN ARTHUR B. FOSTER J. D. LIVINGSTON THOMAS S. LAWSON ROBERT T. SIMPSON DAVIS S. STAKELY Associate Justices. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3063595/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15030 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 9, 2009
________________________ THOMAS K. KAHN
CLERK
Agency Nos. A098-858-347, A098-858-348
VIRGINA VALENZUELA DOMINGO-FRANCISCO,
MARIA BETANCOURTH MIGUEL-DOMINGO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 9, 2009)
Before BIRCH, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Virginia Valenzuela Domingo-Francisco and her daughter, Maria
Betancourth Miguel-Domingo, (collectively, “the Domingos”), proceeding pro se,
seek review of the Board of Immigration Appeals’ (“BIA”) decision affirming
without opinion the Immigration Judge’s (“IJ”) order denying their applications for
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”) and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, and Degrading Treatment or Punishment (“CAT”), 8 U.S.C.
§ 1231(b)(3); 8 C.F.R. § 208.16(c). The Domingos argue that the IJ’s
determination that there was no nexus between their Mayan ancestry and past or
future persecution was not supported by substantial evidence. After careful
review, we deny the petition.1
When the BIA affirms the decision of the IJ without opinion, we review the
decision of the IJ. Bigler v. U.S. Att’y Gen., 451 F.3d 728, 732 (11th Cir. 2006).
Here, the BIA affirmed the IJ’s decision without opinion and expressly deemed it
to be the “final agency determination.” As a result, we review the IJ’s analysis as
if it were the BIA’s. The IJ’s factual determinations are reviewed under the
substantial evidence test, and we must affirm the decision if it is “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.’” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)
(quotation omitted). The substantial evidence test is “deferential” and does not
allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. U.S. Att’y Gen.,
1
The Domingos have not raised the issue of the IJ’s denial of CAT relief on appeal.
Accordingly, they have abandoned any argument as to this issue. See Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
241 F.3d 1320, 1323 (11th Cir. 2001). We review the record evidence in the light
most favorable to the agency’s decision and may not overturn findings of fact
unless the record compels it. Forgue, 401 F.3d at 1286-87. The fact that evidence
in the record may also support a conclusion contrary to the administrative findings
is not enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc). Notably, we construe a pro se petitioner’s brief
liberally. Lorisme v. I.N.S., 129 F.3d 1441, 1444 n.3 (11th Cir. 1997).
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of the
Department of Homeland Security has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.
8 U.S.C. § 1101(a)(42)(A).
An alien may be eligible for asylum not only on the basis of persecution by a
governmental group, but also on the basis of persecution by non-governmental
group that the government cannot control. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
3
1257-58 (11th Cir. 2006). The asylum applicant carries the burden of proving
statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that the statutorily listed factor will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. An alien must
demonstrate a nexus between past or future persecution and a protected activity by
showing that the protected ground, “at least in part,” motivated or would motivate
her persecution. Rodriguez-Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th
Cir. 2007) (holding that an alien must demonstrate a nexus between her persecution
and a protected ground); Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir.
2006) (holding that the alien’s persecution must, at least in part, be based on a
protected ground). An applicant establishes a well-founded fear when he
establishes that there is “a reasonable possibility he or she would be singled out
individually for persecution,” or that she is a member of, or is identified with, a
group that is subjected to a pattern or practice of persecution. Djonda v. U.S. Att’y
Gen., 514 F.3d 1168, 1174 (11th Cir. 2008) (quotation omitted). An asylum
applicant may not show merely that she is a member of a particular social group,
but must show that she was persecuted because of her membership in that social
group. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
4
On the record here, substantial evidence supports the IJ’s determination that
the Domingos failed to demonstrate a nexus between past persecution or a
reasonable fear of future persecution and a protected ground. Specifically, the
record shows that substantial evidence supports the IJ’s determination that
Domingo-Francisco and her family members suffered violence and harassment as a
result of random acts of violence, rather than because of their Mayan ancestry.
Adefemi, 386 F.3d at 1027. Indeed, Domingo-Francisco testified that she and her
family members suffered violence in Guatemala, and asserted in her asylum
application that she had been persecuted because of her Mayan race, but she did not
testify that this violence was motivated by their Mayan ancestry. Instead,
Domingo-Francisco testified that guerrillas threatened to rape her “because she
didn’t have a husband,” and did not testify that the threatened rape occurred due to
her race. And while she explained that her family suffered violence because her
brother guarded the flag, she did not provide any testimony or other evidence that
connected the act of guarding the flag with Mayan ancestry. In fact, in her written
personal statement, Domingo-Francisco explained that the flag that her brother had
guarded was a Guatemalan flag, and did not connect the flag with Mayan ancestry
or culture. Likewise, her brother’s civil patrol identification card and code of
conduct evidenced his affiliation with the Guatemalan nationality rather than with
Mayan ancestry or culture.
5
We recognize that the published reports and articles of record, including the
country report, support an inference that Domingo-Francisco and her family could
have suffered violence because of their Mayan identity. Based on this evidence, the
IJ could have inferred that the violence Domingo-Francisco testified to was linked
to her race. See Djonda, 514 F.3d at 1174 (holding that a petitioner may
demonstrate eligibility for asylum or withholding of removal by showing that she
was a member of group subjected to a pattern of persecution). These articles and
Domingo-Francisco’s testimony also, however, supported an inference that she and
her family suffered harm as a result of random acts of criminal violence that lacked
a racial motive. Ruiz, 440 F.3d at 1258 (holding that an alien who demonstrates
that she was a victim of criminal activity that is not based on a protected ground is
not eligible for asylum or withholding of removal). Thus, although this evidence
could possibly support a finding that Domingo-Francisco and her family were
persecuted on the basis of race, it does not compel this finding in light of Domingo-
Francisco’s testimony and the other evidence. Forgue, 401 F.3d at 1286-87;
Adefemi, 386 F.3d at 1027. Moreover, the evidence provides substantial support
for the IJ’s finding that Domingo-Francisco and her family were not persecuted on
the basis of race. Id. at 1286. As a result, the Domingos did not meet the burden
for asylum.
6
Finally, because the Domingos failed to meet the burden for asylum, they
necessarily failed to meet the burden for withholding of removal. See id. at 1288
n.4 (holding that when a petitioner fails to “establish a claim of asylum on the
merits, he necessarily fails to establish eligibility for withholding of removal”).
PETITION DENIED.
7 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063597/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15960 ELEVENTH CIRCUIT
APRIL 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 01-10037-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEDRICK BROOKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 9, 2009)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
In United States v. Brooks, 93 Fed.Appx. 903, PIN (11 th Cir. 2002), we
affirmed appellant’s prison sentence of 168 months1 on a plea of guilty to
distribution of at least five grams of cocaine base (“crack cocaine”), in violation of
21 U.S.C. § 841(a). On March 6, 2006, appellant moved the district court to
reduce his sentence under 18 U.S.C. § 3582(c) based on Amendment 706 to the
Sentencing Guidelines, which reduced the base offense levels applicable to crack
cocaine offenses. The court denied his motion on the ground that, having been
sentenced as a career offender under U.S.S.G. § 4B1.1, he was not eligible for
relief under Amendment 706. He now appeals, arguing that he was eligible for
relief because at his sentencing, the court departed downward from the Guidelines
sentence range based on its finding that his criminal history category substantially
overrepresented his criminal record; hence, he was not sentenced as a career
offender. He also argues that the court had the authority to reduce his sentence in
accordance with the Supreme Court’s decision in United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
A district court may reduce the sentence “of a defendant who has been
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). Any reduction, however, must be “consistent with applicable policy
1
The Guidelines prescribed a sentence range of 168 to 210 months’ imprisonment.
2
statements issued by the Sentencing Commission.” Id. The applicable policy
statements provide that “a reduction in the defendant’s term of imprisonment is not
authorized under 18 U.S.C. 3582(c)(2) and is not consistent with this policy
statement if . . . [a retroactive amendment] is applicable to the defendant but the
amendment does not have the effect of lowering the defendant’s applicable
guideline range because of the operation of another guideline or statutory
provision.” U.S.S.G. § 1B1.10, comment. (n.1(A)).
Here, although, at sentencing, the court departed downward in arriving at
appellant’s criminal history category, his offense level was calculated by
application of the career offender provision. Accordingly, the applicable sentence
range was not affected by Amendment 706, and he is ineligible for sentence
reduction. See United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), cert.
denied, McFadden v. United States, 129 S. Ct. 965 (2009), and cert. denied, (U.S.
Mar. 9, 2009) (No. 08-8554). Booker provides appellant no assistance because it
does not apply to § 3582(c)(2) proceedings. Therefore, the court was bound by the
limitations imposed by U.S.S.G. § 1B1.10. See United States v Melvin, No. 08-
13497, manuscript op. at 7 (11th Cir. Feb. 3, 2009) (holding that Booker does not
“prohibit the limitations on a judge’s discretion in reducing a sentence imposed by
§ 3582(c)(2) and the applicable policy statement by the Sentencing Commission”),
3
petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664).
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063598/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13272 APRIL 9, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 94-06003-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LEWIS SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 9, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Robert Lewis Smith, a federal prisoner convicted of a crack
cocaine offense, through counsel, appeals the district court’s grant of his pro se
motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2). Smith’s
motion was based on Amendment 706 to the Sentencing Guidelines, which
lowered the base offense levels associated with crack cocaine offenses, as well as
an argument that the district court could further reduce his sentence under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and
Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558, 169 L. Ed. 2d 481
(2007). The district court granted the motion in part, recalculated the guideline
range applying Amendment 706, and imposed a sentence at the corresponding
point near the middle of the amended guideline range.
On appeal, Smith argues that Booker and Kimbrough apply to § 3582(c)(2)
proceedings, and that the district should further reduce his sentence after
considering his post-sentence rehabilitation and the continuing crack/powder
disparity. He argues that the district court should impose a sentence below the
amended guideline range, but that, based on the factors he presented, the district
court should at least reduce to the low end instead of the middle of the amended
guideline range. Smith also argues that he was denied assistance of counsel
because the district court ruled on his motion without allowing appointed counsel
to present arguments on his behalf.
2
Discretion to impose a sentence within the amended guideline range
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003). In addition, in the § 3582(c)(2) context, “we review de novo the
district court’s legal conclusions regarding the scope of its authority under the
Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.
2002).
The district court must engage in a two-part analysis when determining
whether to reduce a defendant’s sentence pursuant to an 18 U.S.C. § 3582(c)(2)
motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). The court
must: (1) recalculate the sentence under the amended Guidelines, and (2) decide, in
its discretion, whether it will choose to impose a new sentence or retain the original
sentence. Id. at 780-81. The second part of the analysis “should be made in light
of the factors listed in 18 U.S.C. § 3553(a).” Id. at 781. While a district court must
consider the § 3553(a) factors, it “commits no reversible error by failing to
articulate specifically the applicability–if any–of each of the section 3553(a)
factors, as long as the record demonstrates that the pertinent factors were taken into
account by the district court.” United States v. Eggersdorf, 126 F.3d 1318, 1322
3
(11th Cir. 1997).
Under 18 U.S.C. § 3582(c)(2), the court may not modify a term of
imprisonment once it has been imposed except
in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2) (emphasis added).
The policy statement applicable to § 3582(c)(2) proceedings is U.S.S.G.
§ 1B1.10, which instructs courts how to determine the amended guideline range.
U.S.S.G. § 1B1.10(b)(1) (2008). The policy statement provides in relevant part
that “the court shall not reduce the defendant’s term of imprisonment under 18
U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the
minimum of the amended guideline range determined under [§ 1B1.10(b)(1)].”
U.S.S.G. § 1B1.10(b)(2)(A).
In United States v. Melvin, ___ F.3d ___, ___ (11th Cir. February 3, 2009)
(No. 08-13497), we held that § 3582(c)(2) only allows a district court to reduce
sentences in a manner “consistent with the applicable policy statements of the
Sentencing Commission.” Id., at 9. We noted that the policy statement applicable
4
to § 3582(c)(2) proceedings prohibited the district court from reducing a term of
imprisonment below the low end of the amended guideline range. Id. at 5, 9; see
U.S.S.G. § 1B1.10(b)(2)(A). We further held that Booker and Kimbrough do not
apply to § 3582(c)(2) proceedings, and that the district court could not rely on
Booker or Kimbrough to reduce the defendant’s sentence below the low end of the
amended guideline range. Melvin, ___ F.3d at ___.
After reviewing the record, we conclude that the district court did not abuse
its discretion in imposing a reduced sentence within the amended guideline range.
Furthermore, the district court did not err in declining to reduce Smith’s sentence
further pursuant to Booker and Kimbrough because Booker and Kimrough do not
apply to § 3582(c)(2) proceedings. Accordingly, we affirm Smith’s sentence.
Assistance of Counsel
Proceedings under § 3582(c)(2) “do not constitute a full resentencing of the
defendant,” U.S.S.G. § 1B1.10(a)(3), or a de novo resentencing,. United States v.
Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). Moreno, 421 F.3d at 1220. Citing
Fed.R.Crim.P. 43(a)(3) and (b)(4), we have held that, although the defendant must
be present at his initial sentencing, he “need not be present at proceedings
involving the correction or reduction of sentence under . . . 18 U.S.C. § 3582(c).”
United States v. Parrish, 427 F.3d 1345, 1347 (11th Cir. 2005) (quotation omitted).
5
Because Smith was not entitled to a hearing, and the district court granted
his motion for a reduced sentence, we conclude that Smith was not denied
assistance of counsel.
AFFIRMED.
6 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063599/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11733 APRIL 9, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-60342-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC SCRIVENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 9, 2009)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Eric Scrivens appeals his conviction on grounds that the government did not
adequately rebut his asserted entrapment defense and appeals his sentence on
grounds that it was unreasonable and that the district court failed to consider fully
the sentencing factors. We disagree and affirm.
I. BACKGROUND
Scrivens was indicted for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (Counts 1 and 4); possession with
intent to distribute five grams or more of cocaine, in violation of 21 U.S.C. § 841
(Count 2); and possession of an unregistered firearm, in violation of 26 U.S.C.
§ 5861(d) (Count 3).
At trial, two different versions of events were presented by various
witnesses. The prosecution’s only witness, ATF Agent Mike Connors, testified to
the following:
Based on information from Elijah Clark – a paid, confidential informant –
that Scrivens was interested in illegal activity, Agent Connors arranged to meet
Scrivens and Clark to try to purchase a firearm. At the meeting, Agent Connors
asked if any of the men knew where he could obtain a “hammer,” a slang term for
gun. Scrivens and Connors then recorded each other’s phone number into their
cell phones. As Conners was walking away from the meeting, Scrivens phoned
him and when Connors said he was looking to get a gun, Scrivens said that
2
“wouldn’t be a problem.”
About a week later, Scrivens and Connors arranged to meet, and Clark
attended the meeting.1 Scrivens told Connors that he had a gun that he could sell to
Connors. Connors agreed to buy it, and Scrivens said he had to go home to get it.
During that conversation, Scrivens and Connors also discussed the possibility of
Scrivens obtaining crack cocaine. Connors left to go to their rendevous spot, and a
half hour later, Scrivens and Clark arrived, with Clark driving. Scrivens handed
the gun wrapped in a plastic bag to Connors through the car window. Scrivens
later called Connors to ask if he was happy with the purchase. Connors replied that
he was satisfied, and the two agreed to talk again.
The next day, Scrivens and Agent Connors agreed to meet again, this time
for Connors to purchase one ounce of crack cocaine from Scrivens. Clark again
drove Scrivens to the meeting. The amount Connors received, however, was less
than the amount he had arranged to buy and when Connors called Scrivens to
complain, Scrivens promised to make it up to Connors in another gun sale.
A few weeks later on April 20, 2006, Scrivens and Agent Connors met
again. Clark was not present at this meeting, and Clark had not been involved in
1
The conversations and meetings between Connors and Scrivens were recorded and
tapes of those conversations were played for the jury. The taped conversations were consistent
with Connors’s testimony. The interactions between Scrivens and Clark were not taped.
3
setting up the meeting. Scrivens said that he was working on a cocaine deal and
would let Connors know when he received the drugs. Connors told Scrivens that
he was planning a robbery of an armed cocaine transport and was looking for a
crew to help him. Scrivens responded that “it wouldn’t be a problem, that kind of
thing happens every day.”
A week after that meeting, Connors had Scrivens ride along with him on a
staged gun deal where Connors pretended to sell guns to other undercover agents.
Again, Clark was not present at nor was he involved in arranging this meeting. A
video of the car ride from that afternoon was shown to the jury, revealing Scrivens
stating that he had seen a gun at his friend’s house and that he wished he had stolen
it. Scrivens also mentioned different people he knew who were selling drugs and
stated that all he was looking for was one good “lick,” meaning robbery. At one
point during the conversation, Connors told Scrivens that if the robbery was not
something that Scrivens was interested in that it was fine and to just forget about it.
Scrivens replied that he remained interested.
In the six months that followed, Agent Connors and Scrivens talked
occasionally. Scrivens changed his phone number and called Connors to give him
the new number.
Scrivens called Connors to tell him that he had a sawed-off shotgun to sell,
4
and they arranged to meet a few days later on October 2, 2006. Connors called
Clark to tell him to start hanging around with Scrivens again and be available to
provide transportation to Scrivens on the day of the meeting. At the meeting,
Agent Connors purchased the sawed-off shotgun and some ammunition from
Scrivens.
About one month later, Scrivens contacted Connors and stated that he had
recruited another person to participate in the potential robbery. On November 3,
2006, Connors met with Scrivens, Clark, and a third man brought by Scrivens.
Agent Connors explained his idea for the robbery of a stash house. During the
conversation, Scrivens talked about shooting everyone guarding the stash house. A
few days later, Scrivens again initiated a sale of a shotgun to Connors, which
Connors purchased.
On November 20, 2006, law enforcement officers arrested Scrivens. Agent
Connors advised him of his constitutional rights. Scrivens waived those rights and
admitted to selling the firearms to Connors. Scrivens stated that he did not know
the names of the people from whom he obtained the firearms, but that he did know
it was illegal for him, as a convicted felon, to possess a firearm.
At trial, Scrivens testified on his own behalf. His testimony focused on his
relationship with Clark and his assertions that Clark induced him to sell guns and
5
drugs to Connors. Scrivens stated that he was being manipulated by Clark to be
the point man, but that Clark was the real impetus behind all the transactions with
Connors. Clark would set the price and give Scrivens the guns and drugs to deliver
to Connors. When Connors paid him, Scrivens would pass most of the money on
to Clark. Scrivens denied mentioning robberies and testified that he had no intent
to participate in any robbery. Scrivens testified that he spoke with Connors about
guns and drugs because Clark had told him to make Connors think he was a “bad
guy.” Scrivens admitted that he had three prior felony convictions, including
robbery with a firearm.
Scrivens also presented a number of witnesses to testify on his behalf. Clark
testified that he met Scrivens shortly before Scrivens began meeting with Connors,
but admitted that Scrivens seemed to know him from prison. Clark also testified
that he arranged for Scrivens to meet Agent Connors after Scrivens told him that he
was “into” robbery. Clark confirmed that he often drove Scrivens to the initial
meetings with Connors, but denied pushing Scrivens to sell the guns or cocaine.2
In his closing argument, Scrivens asserted that Clark set him up and that he
was induced into conducting the gun and drug deals by Clark. The jury
instructions included a discussion of an entrapment defense. The jury returned
2
Scrivens also presented testimony of his mother, brother, and ex-girlfriend.
6
guilty verdicts as to Count 2 (possession with intent to distribute five grams or
more of cocaine, in violation of 21 U.S.C. § 841), Count 3 (possession of an
unregistered firearm, in violation of 26 U.S.C. § 5861(d)), and Count 4 (possession
of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)). The jury
acquitted Scrivens of the firearm possession in Count 1.
The probation office prepared a presentence investigation report (“PSI”) and
determined the adjusted offense level to be 37, including an adjustment for
Scrivens’s status as a career offender under U.S.S.G. § 4B1.4. His status as a
career offender placed him in a criminal history category of VI. Accordingly, the
guidelines range was 360 months to life imprisonment. Count 4 carried a
mandatory minimum sentence of 15 years. 18 U.S.C. §§ 922(g), 924(e). The PSI
also recommended a two-level enhancement for obstruction of justice, based on the
probation office’s assessment that Scrivens committed perjury at trial.
Scrivens filed objections to the PSI, disagreeing with the statement of facts
and asserting that he was entrapped by the informant.3 Scrivens objected to the
suggested enhancement based on perjury. Scrivens also requested a downward
departure because he had already spent 15 years of his life in prison, and he felt
3
Scrivens acknowledged at the sentencing hearing that these objections to the facts
would have “no bearing on the guidelines.”
7
that a lesser sentence would sufficiently reflect the seriousness of the offense.4
The district court stated that it “considered the statements of the parties, []
reviewed the presentence investigation and report and [was] fully aware of all the
facts and circumstances surrounding the crime.” The court overruled Scrivens’s
objections to the report and denied his motion for a downward departure. The
court also denied the government’s request for an enhancement for obstruction of
justice. The district court adopted the factual findings and guideline applications
contained in the PSI and sentenced Scrivens to 360 months’ imprisonment as to
Counts 2 and 4 and 120 months’ as to Count 3, to run concurrently. Scrivens did
not object after the sentence was imposed.
II. STANDARD OF REVIEW
“When an entrapment defense is rejected by the jury, [our] review is limited
to . . . whether the evidence was sufficient for a reasonable jury to conclude that
the defendant was predisposed to take part in the illicit transaction.” United States
v. Brown, 43 F.3d 618, 622 (11th Cir. 1995). The review is de novo, but we view
all facts and make all inferences in favor of the government. United States v.
Francis, 131 F.3d 1452, 1456 (11th Cir. 1997). “[The] jury’s verdict cannot be
overturned if any reasonable construction of the evidence would allow the jury to
4
Scrivens also objected to the enhancements for having “trafficked in firearms” and for
the number of firearms, but withdrew those objections at the sentencing hearing.
8
find the defendant guilty beyond a reasonable doubt.” Brown, 43 F.3d at 622.
We review the reasonableness of a sentence for an abuse of discretion.
United States v. Pugh, 515 F.3d 1179, 1188 (11th Cir. 2008).
III. DISCUSSION
A. Entrapment
Entrapment is an affirmative defense involving two elements: (1) the
government inducement of the crime, and (2) lack of predisposition on the part of
the defendant. United States v. Miller, 71 F.3d 813, 816 (11th Cir. 1996). Once
the defendant establishes that the government induced him to commit the crime,
“the burden shifts to the government to prove beyond a reasonable doubt that the
defendant was predisposed to commit the crime.” Brown, 43 F.3d at 623. This
inquiry evaluates the defendant’s subjective state of mind and “asks the jury to
consider the defendant’s readiness and willingness to engage in the charged crime
absent any contact with the government’s officers or agents.” Id. Although this
court has refused to set out a list of factors by which to judge predisposition,
predisposition has been found where the defendant demonstrated ready
commission of the charged crime and where opportunities were given for the
defendant to back out of the criminal acts, but failed to do so. Id. “[T]he fact-
intensive nature of the entrapment defense often makes jury consideration of
9
demeanor and credibility evidence a pivotal factor.” Id. (citing United States v.
Ventura, 936 F.2d 1228, 1230 (11th Cir. 1991)).
Here, the district court submitted the question of predisposition to the jury,
and, according to the verdict, the jury found that Scrivens had not been entrapped.
The evidence was more than sufficient to support the jury’s finding that Scrivens
was predisposed to commit the crimes of which he was convicted. According to
Agent Connors’s testimony, Scrivens called Connors to arrange the gun sale after
their first meeting. Scrivens and Connors met several times, and Scrivens
discussed gun and drug deals and expressed interest in committing robbery. At no
time did Scrivens demonstrate hesitancy about committing these crimes or express
a desire to not participate. Connors gave Scrivens an opportunity to express any
unwillingness when he told Scrivens that he did not have to participate in the
robbery and could just forget about it. In response, Scrivens reaffirmed his interest
in criminal activity. Scrivens’s prior convictions for violent crimes, including
armed robbery, also demonstrated his predisposition to commit these crimes,
especially those related to firearms. See Brown, 43 F.3d at 625 (noting that the
“[e]xistence of prior related offenses is relevant” to the government’s showing of
predisposition in its rebuttal of an asserted entrapment defense).
Although Scrivens testified to a different version of events, the jury was
10
entitled to conclude that he was not credible and to reject his statements as untrue.
See United States v. Rudisill, 187 F.3d 1260, 1268 (11th Cir. 2008) (noting that a
defendant who testifies runs the risk that the jury might not believe his testimony);
see also United States v. Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995) (“[W]hen a
defendant takes the stand in a criminal case and exposes his demeanor to the jury,
the jury may make adverse determinations about his credibility and reject his
explanation as a complete fabrication.”). The testimony of Agent Connors and
Clark, as well as the corroborating recordings of the conversations between
Scrivens and Connors, provides sufficient evidence to support the jury’s
assessment that Scrivens was not entrapped.
B. Sentencing
We “measure the ‘reasonableness’ of a given sentence against the factors
outlined by Congress in 18 U.S.C. § 3553(a).” Pugh, 515 F.3d at 1188; see United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (“We must evaluate whether
the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).”).
A district court’s imposition of a sentence must be both procedurally and
substantively reasonable. United States v. Gonzalez, 550 F.3d 1319, 1323 (11th
Cir. 2008). A sentence may be procedurally unreasonable where the court failed to
11
calculate properly the guidelines range, treated the guidelines as mandatory, failed
to consider the § 3553(a) factors,5 selected a sentence based on clearly erroneous
facts, or failed to adequately explain the chosen sentence. Gall v. United States, —
U.S. —, 128 S. Ct. 586, 597 (2007). “[S]ubstantive reasonableness involves
examining the totality of the circumstances, including an inquiry into whether the
statutory factors in § 3553(a) support the sentence in question.” Gonzalez, 550
F.3d at 1324. “[T]he party who challenges that sentence bears the burden of
establishing that the sentence is unreasonable in light of both [the] record and the
factors in section 3553(a).” Talley, 431 F.3d at 788.
In this case, the sentence was procedurally and substantively reasonable.
Scrivens has not shown any error in the imposition of his sentence. The sentencing
guidelines range was accurately calculated and the imposed sentence was within
the guidelines range. The district court stated that it had “considered the
statements of the parties, [] reviewed the presentence investigation and report and
[was] fully aware of all the facts and circumstances surrounding the crime.” This
statement sufficiently demonstrates that the district court considered the guidelines
5
Under § 3553(a), a district court should consider, inter alia, the nature and
circumstances of the offense, the history and characteristics of the defendant, the available kinds
of sentences and the sentencing range established in the guidelines, the need to avoid
unwarranted sentencing disparities among similarly situated defendants, and the need to reflect
the seriousness of the offense, to afford adequate deterrence to criminal conduct, and to protect
the public. See 18 U.S.C. § 3553(a)(1)-(7).
12
range and § 3553(a) factors, including the facts of the case and the defendant’s
history. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (noting
that the district court is not required to state on the record that it has considered the
§ 3553 factors nor expound upon each individual factor).
Additionally, we conclude after a thorough review of the record and the
defendants’ criminal history that the sentence imposed was substantively
reasonable. Scrivens qualified as a career offender and had prior convictions
involving firearms. In this case, Scrivens was convicted of selling guns and drugs
to an undercover agent and the record showed that he expressed a willingness to
commit a robbery that would likely include further violence. The court imposed a
sentence at the low end of the guidelines range, and Scrivens has not demonstrated
that his sentence is unreasonable in light of the § 3553(a) factors.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Scrivens’s conviction and sentence.
13 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130623/ | 539 U.S. 938
Stokes, aka Muhammedv.United States Parole Commission.
No. 02-6980.
Supreme Court of United States.
June 17, 2003.
1
Appeal from the C. A. D. C. Cir.
2
Certiorari dismissed under this Court's Rule 46. Reported below: 40 Fed. Appx. 610. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/130627/ | 539 U.S. 939
National Rifle Assn. et al.v.Federal Election Commission et al.
No. 02-1675.
Supreme Court of United States.
June 19, 2003.
1
Appeal from the D. C. D. C. [Probable jurisdiction noted, ante, p. 911.]
2
Briefs of the parties who were plaintiffs in the District Court are not to exceed 50 pages for the opening briefs and 20 pages for the reply briefs, except that the plaintiffs in No. 02-1674 may file an opening brief not to exceed 75 pages, and the political party plaintiffs in Nos. 02-1727, 02-1733, 02-1753 may file a consolidated opening brief not to exceed 100 pages. The Solicitor General may file a brief not to exceed 140 pages, and the intervenor-defendants may file a brief not to exceed 75 pages. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3063600/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15465 ELEVENTH CIRCUIT
APRIL 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 01-00136-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORNELIOUS E. CRAWFORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 9, 2009)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Cornelious E. Crawford, a federal prisoner convicted of crack cocaine
offenses, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion
for a reduced sentence. After review, we affirm.1
Under § 3582(c)(2), a district court may modify the term of imprisonment of
an already incarcerated defendant if the defendant’s sentence is “based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2). However,
“[w]here a retroactively applicable guideline amendment reduces a defendant’s
base offense level, but does not alter the sentencing range upon which his or her
sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.”
Moore, 541 F.3d at 1330; see also U.S.S.G. § 1B1.10(a)(2)(B). Crawford’s
§ 3582(c)(2) motion was based on Amendment 706 to the Sentencing Guidelines,
which lowered most of the base offense levels in U.S.S.G. § 2D1.1(c) applicable to
crack cocaine offenses.
The district court did not err in concluding that Crawford was ineligible for a
§ 3582(c)(2) reduction. At his original sentencing, Crawford’s initial guidelines
range, based on § 2D1.1(c)’s drug quantity table, was 210 to 262 months’
imprisonment. However, Crawford was subject to a statutory mandatory minimum
1
We review de novo a district court’s legal conclusions regarding its authority to modify a
sentence under § 3582(c)(2). United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008), cert.
denied, Moore v. United States, ___ S. Ct. ___, 2009 WL 301854 (Mar. 9, 2009).
2
sentence of twenty years, pursuant to 21 U.S.C. § 841(b)(1)(A). Accordingly,
Crawford’s guidelines range became 240 to 262 months. See U.S.S.G. § 5G1.1(c)
(providing that a sentence may be imposed “at any point within the applicable
guideline range” so long as the sentence “is not less than any statutorily required
minimum sentence”). The district court imposed the statutory mandatory
minimum 240-month sentence.
In short, Crawford’s 240-month sentence was not based on the amount of
crack cocaine attributed to him, but rather on the statutory mandatory minimum.
See United States v. Williams, 549 F.3d 1337, 1339-40 (11th Cir. 2008)
(concluding that defendant sentenced to statutory mandatory minimum is not
eligible for sentence reduction because Amendment 706 had no effect on the
statutory mandatory minimum sentence). Thus, even though Amendment 706
lowered the base offense level for Crawford’s crack cocaine offense, Crawford’s
sentencing range remained 240 months by virtue of the statutory mandatory
minimum. Because Amendment 706 had no effect on Crawford’s sentencing
range, Crawford was not eligible for a sentence reduction under § 3582(c)(2).
Crawford’s arguments regarding the applicability of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and Kimbrough v. United States, 552
U.S. ___, 128 S. Ct. 558 (2007), are foreclosed by our precedent. See United
3
States v. Melvin, 556 F.3d 1190 (11th Cir. 2009) (concluding that “Booker and
Kimbrough do not prohibit the limitations on a judge’s discretion in reducing a
sentence imposed by § 3582(c)(2) and the applicable policy statement by the
Sentencing Commission”). We do not address Crawford’s remaining arguments
regarding alleged deficiencies in his 21 U.S.C. § 851 information because they are
outside the scope of a § 3582(c)(2) proceeding. See 18 U.S.C. § 3582(c)(2)
(limiting proceedings under statute to cases where a retroactive amendment affects
the applicable sentencing range).
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3222874/ | Before the decision of the Supreme Court in the case of State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36, holding unconstitutional the so-called Birmingham court of common pleas (which was attempted to be created by an act of the Legislature, Loc. Acts 1927, p. 346), the appellee, in this case, had brought suit therein (if the proceedings in an unconstitutional court may be so denominated), against appellants here, upon a promissory note for $100. The said Birmingham court of common pleas rendered a judgment in the plaintiff's favor and the defendants appealed therefrom to the circuit court. The plaintiff refiled in the circuit court his complaint, and defendants thereupon filed a plea setting up the invalidity of the proceedings in the primary court. This plea was stricken on motion of appellee, and upon a final hearing a judgment was rendered in the circuit court in favor of appellee and against appellants. The error assigned here is sustaining the motion to strike.
We know of no direct authority, and have been cited to none in this state, decisive of this question. The case is one of which the circuit court had original jurisdiction (Code 1923, § 6676(1), and it may be well contended that, irrespective of any jurisdiction in the primary court, when the case reached the circuit court the parties might have waived any question of jurisdiction and proceeded to judgment. Such has been done in former cases. Anderson v. Winton, 136 Ala. 422, 34 So. 962; Anders Bros. et al. v. Latimer et al., 198 Ala. 573,73 So. 925; South North Ala. R. R. Co. v. Brown, 53 Ala. 651. The appellants did not so waive, but, on the contrary, filed a plea as above indicated, and the question arises as to whether or not that plea was properly stricken.
The Supreme Court has held in effect that if a justice had no jurisdiction the circuit court on appeal acquires none if the question be raised. Sou. Ry. v. Goggins, 198 Ala. 642,73 So. 958. Indeed, in Crabtree v. Cliatt, 22 Ala. 181, the Supreme Court held the circuit court, on appeal, might ex mero motu dispose of the cause of which the lower trial court had no jurisdiction. The case of Webb v. Carlisle, 65 Ala. 313, is more nearly in point. There, an unconstitutional statute sought to confer additional jurisdiction upon the primary court and, on appeal, it was declared that the circuit court was vested with the privilege, if not the duty, to repudiate the cause.
It results from the foregoing that, in our view, the lower court erred in striking the appellant's plea. Instead of striking the plea, the circuit court should have dismissed the cause from its docket, and a judgment to that end will be entered here.
Reversed and rendered. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4538802/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ODELIN AGUILERA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3804
[June 4, 2020]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge;
L.T. Case No. 56-2013-CF-000885A.
Carey Stafford Haughwout, Public Defender, and Gary Lee Caldwell,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
DAMOORGIAN, GERBER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3994180/ | The majority is fearful that, if we liberally construe the workmen's compensation act, as we are required by the legislative mandate to do, we would, in the case at bar, be judicially legislating. We had no such qualms when we expressly wrote out of the statute (Rem. Rev. Stat., § 9480 [P.C. § 704a]) — were we not then judicially legislating? — the legislative mandate that strict compliance with the statute was prerequisite to the right to maintain a tort action against a municipal corporation. SeeDuschaine v. Everett, 5 Wn.2d 181, 105 P.2d 18; Sopchakv. Tacoma, 189 Wn. 518, 66 P.2d 302; and Johnson v.Seattle, 9 Wn.2d 231, 114 P.2d 972. In the cases just cited will be found two lines of authority each in hopeless conflict with the other. See, also, MacVeigh v. Division ofUnemployment Compensation, 19 Wn.2d 383, 142 P.2d 900, where we insisted upon strict compliance with the statute there involved, although by legislative mandate liberal construction of the statute was required.
I am convinced that the language of the statute (Rem. Rev. Stat. (Sup.), § 7675), quoted in the majority opinion, means that, when an injured workman elects to seek a remedy against thetort-feasor instead of taking under the workmen's compensation act, such injured workman is to be furnished competent counsel, without expense to him, to prosecute his cause of action against such third person. The judgment should be affirmed. *Page 545 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2974811/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0116n.06
Filed: February 12, 2007
Case No. 03-1700
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JUNE CARABELL, et al. )
)
Plaintiffs-Appellants, )
) ORDER REMANDING CASE
v. ) TO THE DISTRICT COURT
) WITH INSTRUCTIONS TO
UNITED STATES ARMY CORPS OF ) REMAND TO THE ARMY
ENGINEERS, et al. ) CORPS OF ENGINEERS
)
Defendants-Appellees. )
)
_______________________________________ )
)
BEFORE: BATCHELDER and GIBBONS, Circuit Judges; STAFFORD*, District Judge.
Following the Supreme Court’s decision in the consolidated cases of Rapanos v. United
States, No. 04-1034, and Carabell v. United States Army Corps of Engineers, No. 04-1384, 126 S.
Ct. 2208 (2006), we REMAND this case to the district court with instructions to remand to the Army
Corps of Engineers for further proceedings consistent with the Supreme Court’s decision in
Rapanos.
*
The Honorable William Stafford, United States District Judge for the Northern District
of Florida, sitting by designation. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2800839/ | PS4-117 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1097
___________
UNITED STATES OF AMERICA
v.
AHMED JOAQUIN,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 08-cr-00031)
District Judge: Honorable Stanley R. Chesler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 13, 2015
Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: May 14, 2015)
___________
OPINION*
___________
PER CURIAM
Pro se appellant Ahmed Joaquin seeks review of the District Court’s order denying
his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). We will dismiss
the appeal as untimely.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
In 2008, Joaquin pleaded guilty to unlawful possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1). His judgment of sentence was affirmed on
direct appeal. See United States v. Joaquin, 362 F. App’x 289 (3d Cir. 2010). In 2014,
Joaquin filed an “Affidavit Oath of Declaration and Letter/Motion for to Appoint
Counsel” in which he indicated that the Sentencing Commission had met to discuss
proposed changes to the sentencing guidelines for § 922 offenses. In an order entered
December 4, 2014, the District Court construed the document as a motion for sentence
reduction pursuant to § 3582(c), and denied it. On December 29, 2014, Joaquin’s
“Response of the Denial” was filed, in which he asked the District Court to reconsider its
decision or “treat this request as a ‘Notice of Appeal.’” The document was separately
docketed as a notice of appeal.
Pursuant to Fed. R. App. P. 4(b)(1)(A), a defendant in a criminal case has 14 days
from the entry of the district court’s judgment to timely file a notice of appeal. See
United States v. Arrango, 291 F.3d 170, 171-72 (3d Cir. 2002) (recognizing that a § 3582
motion is a continuation of the prior criminal proceeding). Joaquin’s notice of appeal
was untimely, even by December 22, 2014, the day it was dated.1 Although Rule 4(b)’s
time limitations are not jurisdictional, the Government has properly invoked the rule by
constitute binding precedent.
1
Even assuming the document, if construed as a motion for reconsideration, could toll
the time for taking an appeal, see United States v. Brewer, 60 F.3d 1142, 1144 (5th Cir.
1995), it was untimely filed. See Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257,
268 (1978) (a motion to reconsider in a criminal case is timely if “filed within the original
period for review.”) (quoting United States v. Healy, 376 U.S. 75, 78 (1964)).
2
requesting in its brief that this Court dismiss the appeal as untimely. See Virgin Islands
v. Martinez, 620 F.3d 321, 327 (3d Cir. 2010) (“Upon proper invocation of [Rule 4(b)]
when a notice of appeal is filed out of time, we must dismiss the appeal.”). Accordingly,
we will dismiss the appeal as untimely. Joaquin’s “Motion for Abeyance” is denied.
3 | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2968947/ | Certiorari granted by Supreme Court, November 7, 2014
Dismissed by Supreme Court January 9, 2015
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1375
BOBBY CHEN,
Plaintiff – Appellant,
v.
MAYOR & CITY COUNCIL OF BALTIMORE; MICHAEL BRAVERMAN,
Department of Housing and Community Development of
Baltimore City; JEROME J. DORICH, JR., Department of
Housing and Community Development of Baltimore City;
WILLIAM BOLDEN, Department of Housing and Community
Development of Baltimore City; P&J CONTRACTING COMPANY,
INC.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:11-cv-03227-GLR)
Submitted: November 4, 2013 Decided: November 12, 2013
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bobby Chen, Appellant Pro Se. Adam S. Levine, Steven John
Potter, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland;
Kristen Nichole Nesbitt, GOODELL DEVRIES LEECH & DANN, LLP,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Bobby Chen appeals the district court’s order
dismissing the complaint in this action for failure to effect
service of process. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Chen v. Mayor & City Council of
Baltimore, No. 1:11-cv-03227-GLR (D. Md. Feb. 22, 2013). We
deny the motion for appointment of counsel, grant leave to
proceed in forma pauperis, and 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
3 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2987352/ | Order filed, March 27, 2013.
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00117-CV
____________
MEMC PASADENA, INC., Appellant
V.
RIDDLE POWER, LLC AND TRIAD ELECTRIC AND CONTROLS, INC.,
Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2008-11010
ORDER
The reporter’s record in this case was due March 11, 2013. See Tex. R.
App. P. 35.1. The court has not received a request to extend time for filing the
record. The record has not been filed with the court. Because the reporter’s record
has not been filed timely, we issue the following order.
We order Karen DeShetler, Delicia Struss, and Jessica Kim, the substitute
court reporters, to file the record in this appeal within 30 days of the date of this
order.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3100188/ | Order entered August 6, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01066-CR
EX PARTE ALEJANDRO TOVAR
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX13-90004-M
ORDER
The Court has received appellant’s notice of appeal from the trial court’s order denying
him the relief sought by his article 11.072 application for writ of habeas corpus. The appeal is
accelerated pursuant to Texas Rule of Appellate Procedure 31.
It does not appear a hearing was conducted on the habeas corpus application. The trial
court’s order reflects that the ruling was based on the pleadings, the official court records, and
the affidavit of trial counsel. Accordingly, we ORDER the Dallas County District Clerk to file,
by AUGUST 19, 2013, the clerk’s record containing the documents related to the habeas corpus
proceeding, including the application and response, and all documents attached to the application
and response, trial court’s written order denying appellant the relief sought by his application for
writ of habeas corpus, and the trial court’s rule 25.2 certification of appellant’s right to appeal.
Appellant’s brief is due by SEPTEMBER 9, 2013. The State’s brief is due by
SEPTEMBER 30, 2013.
The appeal will be submitted without argument on October 11, 2013 to a panel
consisting of Justices FitzGerald, Francis, and Myers.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to Gary
Fitzsimmons, Dallas County District Clerk; the Dallas County District Clerk’s Office, Criminal
Records Division; and to counsel for all parties.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2800865/ | Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CF-653
MICHAEL A. HARTLEY, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CF3-21883-12)
(Hon. J. Michael Ryan, Trial Judge)
(Submitted January 8, 2015 Decided )
William R. Cowden was on the brief for appellant.
Ronald C. Machen, Jr, United States Attorney at the time the brief was filed,
and Elizabeth Trosman and John Truong, Assistant United States Attorneys, and
Susan M. Simpson, Special Assistant United States Attorney, were on the brief for
appellee.
Before WASHINGTON, Chief Judge, and BLACKBURNE-RIGSBY and
EASTERLY, Associate Judges.
WASHINGTON, Chief Judge: A unanimous jury convicted appellant Michael
A. Hartley of one count each of assault with intent to commit robbery while armed
2
(“AWIRWA”),1 assault with significant bodily injury (“felony assault”),2 malicious
destruction of property valued at less than $1,000,3 and wearing a hood or mask
while committing a crime4 in connection with the attempted robbery of James
Galloway-Reed (“JGR”). Appellant challenges the trial court’s denial of his
motion for judgment of acquittal on the AWIRWA and felony assault counts.
Specifically, appellant argues that: (1) the trial court erred in denying his
motion for judgment of acquittal because there was insufficient evidence that he
was armed for purposes of the AWIRWA conviction; and (2) the injuries sustained
by JGR were not severe enough to constitute significant bodily injuries for
purposes of the felony assault conviction. For the reasons stated below, we hold
that the trial court erred in denying appellant’s motion for judgment of acquittal on
both counts and order that his convictions for those two counts be vacated and that
a judgment of conviction be entered for assault with intent to commit robbery
(“AWIR”).
1
D.C. Code §§ 22-401, -4502 (2012 Repl.).
2
D.C. Code § 22-404 (a)(2) (2012 Repl.).
3
D.C. Code § 22-303 (2012 Repl.).
4
D.C. Code § 22-3312.03 (2012 Repl.).
3
I.
On the afternoon of December 24, 2012, appellant saw JGR talking on his
cell phone and then attempted to rob him of the phone while JGR was on the
platform of the Rhode Island Metro station trying to make his way home. During
the encounter, appellant repeatedly demanded that JGR surrender his phone, but
JGR refused to do so. After failing to acquire JGR’s phone through verbal
bullying, appellant placed his hand in his jacket pocket, and threatened JGR, telling
him, “this isn’t a joke, I have a gun.” JGR testified that he saw appellant with his
hand in his pocket but that he did not believe that appellant actually had a gun.
JGR quickened his pace as he continued to walk towards the street and
appellant followed him, all the while telling JGR that he had a gun. Finally,
appellant pursued JGR to an underpass across the street from the Metro station and
began to physically assault him in an effort to steal his cell phone. Appellant
stopped assaulting JGR when the police arrived on the scene in response to a call
about the incident.5 At the scene, JGR identified appellant as the man who
assaulted him and appellant was arrested. The police did not find a firearm in
appellant’s possession or in the area where the assault took place. As a result of
5
A bystander called police after witnessing appellant chase JGR.
4
the attack, JGR suffered minor cuts to his face, a black eye, and swelling.
II.
Appellant first contends that the evidence was insufficient for a jury to find
beyond a reasonable doubt that he was armed for purposes of the AWIRWA
conviction. We agree.
When evaluating a claim of evidentiary insufficiency, this court views the
evidence in a light most favorable to the government. Peterson v. United States,
657 A.2d 756, 760 (D.C. 1995). Accordingly, we reverse “only if there is no
evidence upon which a reasonable mind might fairly conclude guilt beyond a
reasonable doubt.” Id. (quoting In re R.H.M., 630 A.2d 705, 707 (D.C. 1993))
(internal quotation marks omitted). In other words, the pertinent question on
appeal is whether a rational factfinder, after viewing the evidence in a light most
favorable to the government, could have found the essential elements of the
charged crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979). Furthermore, this court does not distinguish between direct and
circumstantial evidence when reviewing a trial court’s denial of a motion for
judgment of acquittal. See Taylor v. United States, 662 A.2d 1368, 1371 n.7 (D.C.
5
1995); Paris v. United States, 515 A.2d 199, 204 (D.C. 1986).
The District’s “while armed” enhancement provision allows the court to
impose an additional term of imprisonment when the defendant has been convicted
of a crime of violence6 during which the defendant was “armed with” or “ha[d]
readily available”: (1) a firearm, (2) an imitation firearm, or (3) any other
dangerous or deadly weapon. See D.C. Code § 22-4502 (a). Accordingly, the
government is required to prove beyond a reasonable doubt that the defendant
possessed or, at a minimum, had ready access to a firearm, imitation firearm, or
other dangerous weapon, while committing a dangerous crime. See Smith v.
United States, 777 A.2d 801, 809 (D.C. 2001). In the absence of direct evidence,
this can be proven with circumstantial evidence as long as a factfinder could
reasonably infer from the evidence presented that the defendant possessed a
firearm, imitation firearm, or other dangerous weapon, while committing the
crime. See id. at 809-10; see also Boyd v. United States, 473 A.2d 828, 832 (D.C.
1984) (affirming defendant’s armed rape conviction based primarily on victim’s
testimony containing statements indicating the presence of a knife even though no
direct evidence was introduced that defendant actually possessed a knife during the
6
Assault with intent to rob is a crime of violence. See D.C. Code § 23-1331
(4).
6
rape).
The question here is whether placing one’s hand in one’s pocket and
pointing it at someone while verbally threatening to shoot them if they do not
comply with one’s demand is sufficient evidence to satisfy the District’s while
armed enhancement statute. The government principally relies on our decision in
Smith to support its argument that the evidence in this case is sufficient to support
the jury’s finding that appellant attempted to rob JGR while armed with a firearm
or an imitation firearm. However, the Smith case is easily distinguishable from the
present case. In Smith, the defendant entered a fast food restaurant with his right
hand in his right jacket pocket and, after pointing his hand through the jacket
pocket at employees, proceeded to pilfer the cash register, threatening to shoot
anyone who intervened. 777 A.2d at 803-04. Even though no one testified to
actually seeing a firearm on defendant’s person, and a firearm was never
recovered, this court concluded that the jury could have permissibly inferred that
the defendant had a firearm, or an imitation thereof, at the time that he committed
the robbery, despite the defendant’s testimony that he was only using his hand. Id.
at 809-10. In reaching its decision, this court noted that:
[O]ur decision in this case does not necessarily implicate Smith’s
characterization of the imitation firearm. The jury, after hearing all of
the evidence, could have reasonably believed that Smith’s hand was
accessing an imitation firearm in his pocket rather than actually
7
making an imitation firearm. In any event, we simply hold there was
sufficient evidence for a jury to have found that Smith committed the
robbery while armed.
Id. at 810 n.15 (emphasis in original).
However, unlike the witnesses in the Smith case, the victim here testified
that he did not believe that appellant was armed with a firearm or might be
accessing a weapon while appellant’s hand was in his pocket. Further, unlike the
defendant in Smith, who fled the scene of the crime before police could arrive,
appellant in this case was standing within twenty yards of JGR when the police
officers arrived and arrested him for the assault. Notably, no evidence was
admitted at trial that a firearm or anything that could have been mistaken for a
firearm was found on appellant or at the scene. Thus, the jury here was not as free
as the jury in the Smith case to infer that appellant had a firearm in his possession
or was accessing a firearm, or imitation thereof, when he committed the assault on
JGR.7
7
Moreover, unlike almost all of the cases upon which the Smith court relied
in reaching its decision that there was sufficient circumstantial evidence to support
the defendant’s armed robbery conviction, here, there was no physical
manifestation of any weapon, imitation or otherwise, that a witness perceived,
either by seeing it or feeling it, that reasonably could be mistaken for a firearm at
the time the crime was committed. Cf. Bates v. United States, 619 A.2d 984, 985-
86 (D.C. 1993) (victim testified that an object that felt like a firearm was pressed
against his head and eyewitness testified that appellant pointed a silver object that
(continued . . .)
8
In sum, on this record, we agree with appellant that there was insufficient
evidence to support a finding that appellant attempted to rob JGR while armed with
a firearm or an imitation firearm and therefore, his conviction for AWIRWA must
be vacated and judgment for the lesser-included offense of AWIR be entered.
III.
Appellant also argues that the evidence was insufficient to support his felony
assault conviction because JGR did not suffer any significant bodily injury as a
result of the assault. The government concedes this point, and we agree. See In re
(. . . continued)
looked like a firearm at the victim); Paris v. United States, 515 A.2d 199, 203
(D.C. 1986) (victim testified that appellant thrust an “extremely hard” object into
his ribs); Meredith v. United States, 343 A.2d 317, 319 (D.C. 1975) (testimony that
robbery was committed with a .22 caliber starter pistol). Furthermore, there was
no evidence that a firearm or other object that could have been mistaken for an
imitation firearm was found on the scene. Thus, the testimony in the
aforementioned cases that someone saw something that could have been part of a
firearm or came in contact with something that felt like a firearm is significantly
stronger evidence from which to draw a reasonable inference that the assailant was
actually armed with a weapon or imitation weapon than the testimony in this case
that the victim saw appellant’s hand in his pocket and never thought that it was
anything other than appellant’s hand. The latter testimony is much less compelling
on the question of whether appellant in this case was in possession of a firearm or
imitation firearm than the former examples and therefore, the inferences that can
be drawn from that evidence to support a circumstantial case are significantly less
probative than the inferences that can be drawn from the more compelling
evidence presented in the other cases.
9
R.S., 6 A.3d 854, 858-59 (D.C. 2010). Accordingly, appellant’s felony assault
conviction must be vacated and a conviction for simple assault imposed. See id. at
855 n.1. Further, as the government also concedes, the simple assault conviction
merges with the AWIRWA conviction—which we are ordering vacated only to the
extent that the “while armed” element of the crime is removed—since the simple
assault and AWIR offenses arose out of a single, uninterrupted act of violence. See
Villines v. United States, 320 A.2d 313, 314 (D.C. 1974).
IV.
For the foregoing reasons, we remand this case to the trial court with
instructions to vacate appellant’s AWIRWA conviction and enter a judgment of
conviction on that count for AWIR and to vacate appellant’s felony assault
conviction and enter judgment on the lesser-included offense of simple assault that
will merge with the AWIR conviction.
So ordered. | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4004327/ | This is a suit for injunctive relief. By it the appellant, Reece M. Pedicord, sought to enjoin and inhibit Elm Grove Mining Company, a corporation, and Raymond H. Lewellyn, from interferring with the carrying out and enforcement of a certain alleged contract, dated the 7th day of December, 1928, and covering a period of five years beginning January 1, 1929, and ending December 31, 1933, made between the Elm Grove Mining Company by its general manager and appellant. The circuit court of Ohio county, after consideration of the testimony taken on motion to dissolve, sustained the motion and dismissed plaintiff's bill.
Dr. Pedicord had, prior to August 1, 1927, been engaged in practice of medicine in and around defendant's mining operations at Elm Grove, and was at the time serving a majority of the miners. He seems to have been very friendly with the general manager, Joseph Arkwright, and the two, in conformity with an outline prepared by Fulmer, safety director, entered into an understanding whereby Pedicord would perform certain services for the men and company in exchange for a check-off, by the company, of seventy-five cents each pay day from each employee. This arrangement continued until the middle of 1929.
Prior to putting the check-off into effect the safety director had the following memorandum printed and circulated among *Page 118
the employees: "Elm Grove, W. Va. * * * I hereby agree to the employment of R. M. Pedicord, M. D., by the month and authorize the Elm Grove Mining Company to deduct from my pay 75c each pay for the services of said physician. All sickness to me and those dependent on me to be treated for the above fee. All operations to me and my dependents, not covered by State Compensation, shall be done for 50% regular customary fee. Confinement cases to be treated for 50% customary fee. Signed __________ Witness __________." About 80% of the 1100 miners then in the employ of the company signed. Men later taken into employ were required to sign. The doctor was paid this check-off every two weeks, beginning with August 1, 1927. On August 4, 1927, Arkwright wrote to the several directors of the Valley Camp Coal Company, the operating corporation, in regard to the results obtained through the services of a safety director. This letter contained the following paragraph: "You will also note the attached contract covering Company doctor effective at three Elm Grove mines August 1, 1927." The "so-called" contract, which contained a list of the duties of the doctor, and a statement in regard to a 75c check-off, to be handled by the company, was headed: "Proposed plan for contracting, to some competent physician, medical and surgical services for the employees of the Elm Grove Mining Company." On December 7, 1928, the paper, purporting to be a contract between Elm Grove Mining Company of the first part, and Pedicord of the second part, was executed on behalf of the company "By Joseph Arkwright, general manager." It recites, among other things: "That whereas the party of the first part proposes to act as agent for its employees in securing for them certain privileges and benefits, and among other things desires to procure said employees reduced rates for medical services, and to act as agent for the party of the second part in collecting his fees; Now, Therefore, in consideration of the premises and the mutual covenants hereinafter contained, the said party of the second part agrees that he will contract directly with the said party of the first part to furnish all employees of said first party complying with *Page 119
the stipulations required by it, and will render to them and to the members of their families dependent on them, certain limited professional services, hereinafter defined, for aperiod of five (5) years, beginning on the 1st day of January, 1929, and ending on the 31st day of December, 1933."
Two questions are raised on appeal: (1) Is there a contract? and if so, (2) is it such a contract as may be, under the circumstances, enforced by injunction?
The validity (and hence the existence) of the alleged contract, upon which appellant seeks relief, rests primarily upon whether or not Arkwright had authority, as general manager, to bind the company for a period of five years. If he had no such authority, then a ratification must be shown on behalf of the company. A corporation always acts only through its agents duly authorized by its by-laws or by the board of directors.
Arkwright had been placed in charge of the several holdings of the Valley Camp Coal Company, including Elm Grove Mining Company interests, as general manager, and therefore, in the absence of limitations, had implied authority as such manager over such matters as came within the scope of the company's ordinary business. Kelly Convertible Wagon Co. v. Rhodes Mfg.Co., 102 W. Va. 16, 18; Stewart v. Blackwood Electric SteelCorp., 100 W. Va. 331, 340; Rua v. Bowyer Smokeless Coal Co.,84 W. Va. 47; Carroll-Cross Coal Co. v. Abrams CreekCoal Co., 83 W. Va. 205; Thomas v. Kanawha Valley Traction Co.,73 W. Va. 374. In other words, he had authority to bind the corporation by the employment of such agents and employees as were usual and necessary in the conduct of such business. 7 Rawle C. L. 628; 2 Rawle C. L. Sup. 419; 14-A C. J. 430, sec. 2283, and cases there cited. And while the weight of authority seems to be to the effect that he may make a contract of employment for one year, on the theory that such a contract ordinarily is not for an unusual or extraordinary length of time (Manross v.Uncle Sam Oil Co., 88 Kan. 237, 128 P. 385), such period may be limited or augmented by the prevailing custom. Reupke v.Stuhr Son Grain Co., 126 Iowa 632, 102 N.W. 509. He is not permitted, however, in the absence of express authority, to make *Page 120
contracts for a long future period. But nowhere in the bylaws of the corporation or the minutes of the board of directors is the general manager given power to make contracts for an unusual or extraordinary length of time. Admitting that other companies had been checking-off wages for medical services, there is nothing in the record tending to show a written contract in any instance, or that it was customary to hire physicians for a long period of time. The memorandum, which the appellant claims to be a contract between himself and the men, only provided for appellant's service "by the month". The letter of August 4, 1927, to the several directors does not give notice of intent to hire for five years, or even a year. And the enclosure in that letter made no reference to time. Even the letter of September, 1928, to J. A. Paisley, which says that "Within the near future we will see what can be done to install company doctors at Soudan and Kinlock mines," etc., does not intimate a long term contract. The fact that Arkwright signed notes on behalf of the company does not aid Pedicord, since this authority was bestowed upon him as treasurer, not as general manager.
As to ratification, it appears that the alleged contract, after being executed, was filed away in the office of the general manager, at Elm Grove office, and was not discovered until sometime after Arkwright's resignation in May, 1929. Not a word appears in the correspondence to the effect that such an instrument had been signed. The enclosure in the letter of August 4, 1927, was not notice of even an intention to execute a written contract of any nature, especially one of unusual duration. Arkwright does state that he took the matter up at the meeting of the directors, but he cannot say definitely which one. But this fact is denied by the directors called to testify. There could be no ratification in the absence of knowledge of the existence of the contract. The fact that the check-off was paid from the Cleveland office during the last few months of Arkwright's managership did not put the directors on notice of the five year contract. In addition to this, there was testimony to the effect that Pedicord had made the statement that he did not need a contract while Arkwright was in charge. The whole record seems to *Page 121
show an air of secrecy on the part of the contracting parties. In this state of the evidence, the finding of the trial court cannot be disturbed. Being of this opinion, it becomes unnecessary to discuss the second question, which presupposes a valid, binding contract.
The decree of the circuit court is therefore affirmed.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3006037/ | THE STATE OF SOUTH CAROLINA
In The Supreme Court
Tony L. Pope and Lynn S. Pope, Individually and
Representing as a Class All Unit Owners for Riverwalk
At Arrowhead Country Club Horizontal Property
Regime, Respondents,
v.
Heritage Communities, Inc., Heritage Riverwalk, Inc.,
and Buildstar Corporation, Petitioners.
Riverwalk At Arrowhead Country Club Property Owners'
Association, Inc., Respondent,
v.
Heritage Communities, Inc., Heritage Riverwalk, Inc.,
and Buildstar Corporation, Petitioners.
Appellate Case No. 2012-206066
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Horry County
Clifton Newman, Circuit Court Judge
Opinion No. 27578
Heard February 19, 2015 – Filed September 30, 2015
DISMISSED AS IMPROVIDENTLY GRANTED
C. Mitchell Brown, William C. Wood, Jr., and Brian P.
Crotty, all of Nelson Mullins Riley & Scarborough, LLP,
of Columbia; and William L. Howard, Stephen L.
Brown, and Russell G. Hines, all of Young Clement
Rivers, LLP, of Charleston, for Petitioners.
John P. Henry and Philip C. Thompson, both of
Thompson & Henry, PA, of Conway, for Respondent.
PER CURIAM: We granted a writ of certiorari to review the court of appeals'
decision in Pope v. Heritage Communities, Inc., 395 S.C. 404, 717 S.E.2d 765 (Ct.
App. 2011). We now dismiss the writ as improvidently granted.
DISMISSED AS IMPROVIDENTLY GRANTED.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur. | 01-03-2023 | 09-30-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130649/ | 539 U.S. 941
Saucerman et al.v.Norton, Secretary of the Interior, et al.
No. 02-1393.
Supreme Court of United States.
June 23, 2003.
1
Appeal from the C. A. 9th Cir.
2
Certiorari denied. Reported below: 51 Fed. Appx. 241. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1029013/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2042
RIFAQAT ALI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: May 7, 2009 Decided: June 4, 2009
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per
curiam opinion.
Joseph Peter Drennan, Alexandria, Virginia; Paul Shearman Allen,
PAUL SHEARMAN ALLEN & ASSOCIATES, Washington, D.C., for
Petitioner. Michael F. Hertz, Acting Assistant Attorney
General, Daniel E. Goldman, Senior Litigation Counsel, Paul T.
Cygnarowicz, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rifaqat Ali, a native and citizen of Pakistan,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) denying his motion to reopen. We have
reviewed the record and the Board’s order and find that the
Board did not abuse its discretion in denying the motion as
untimely. See 8 C.F.R. § 1003.2(c)(2) (2008). We therefore
deny the petition for review in part for the reasons stated by
the Board. See In re: Ali (B.I.A. Sep. 23, 2008). We lack
jurisdiction over Ali’s challenge to the Board’s refusal to
exercise its sua sponte authority to reopen and therefore
dismiss this portion of the petition for review. See Mosere v.
Mukasey, 552 F.3d 397, 400-01 (4th Cir. 2009).
Accordingly, we deny in part and dismiss in part the
petition for review. 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 IN PART
AND DISMISSED IN PART
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1260754/ | 493 P.2d 336 (1971)
KENNETH A. COPE, PLAINTIFF AND RESPONDENT,
v.
THEODORE R. COPE AND MARGUERITE V. COPE, DEFENDANTS AND APPELLANTS.
No. 11975.
Supreme Court of Montana.
Submitted October 29, 1971.
Decided December 30, 1971.
Rehearing Denied January 24, 1972.
*337 Bolinger & Wellcome, H.A. Bolinger, argued, Bozeman, Graybill, Graybill & Ostrem & Warner, Donald L. Ostrem, argued, Great Falls, for defendants and appellants.
John V. Potter, Jr., argued, White Sulphur Springs, Meloy, Kline & Niklas, Peter Meloy appeared, Helena, for plaintiff and respondent.
JAMES T. HARRISON, Chief Justice.
This is an appeal by defendants-appellants from a judgment entered in the District Court of Meagher County. The case was tried by the court without a jury and judgment was entered whereby the court found the plaintiff-respondent had acquired an easement by prescription over certain land owned by defendants, and that the easement enured to the benefit of plaintiff's successors and all other persons by invitation or contract with plaintiff. Defendants' appeal challenges the district court's judgment twofold in that: (1) The facts disclosed by the record clearly bear out plaintiff's use of the road in question was a permissive use at best, and the court therefore erred in determining plaintiff acquired an easement by prescription; (2) The record further shows that the plaintiff intends to subdivide into parcels his dominant tenement, which would substantially increase the burden upon the servient tenement, and the right of unlimited assignment by the plaintiff can only serve to increase the burden upon defendants' property.
Plaintiff's position in this appeal may be summarized as follows: (1) The district court's findings are final because defendants failed to file exceptions to the court's *338 findings within the prescribed period of time as set forth under the provisions of Rule 52(b) of the Montana Rules of Civil Procedure; (2) The evidence clearly established an easement by prescription across defendants' land; (3) The court did not err in refusing to rule as to whether or not the possible subdivision of the dominant tenement would result in an unreasonable burden upon defendants' land.
The underlying facts forming the basis of this case are as follows:
The plaintiff, Kenneth A Cope, in 1963 became the owner of two government survey lots which in total amount to a little over twenty acres of land. The road in question, which is called "Two Creeks" road runs from a county road in Meagher County, across lands amounting to a section and a half, which are owned by defendants, and are situated between the county road and plaintiff's land. The litigation concerning this appeal arises with respect to the status of the road running across defendants' land and giving plaintiff access to his land. This road cuts across an active ranching operation presently operated by Theodore V. Cope, who is the son of defendants' Theodore R. Cope and Marguerite V. Cope, pursuant to the terms of a certain lease dated November 1, 1967, for a term of seven years. The road follows what is referred to in the transcript as the "Two Creek Draw", and runs down Two Creeks through five gates to the Smith River. The property adjacent to the Smith River was originally owned by plaintiff's grandmother, Rosamond Luebner. Upon her death the plaintiff's father, Kenneth T. Cope, acquired title to the property by way of a tax sale. This was brought about by an agreement between the three sons of Rosamond Luebner; Kenneth T. Cope, Charles J. Cope and Theodore R. Cope, whereby the lands were divided between the brothers, with Kenneth T. Cope receiving the lands adjacent to the Smith River, which in 1963 became the property of plaintiff. Rosamond Luebner's husband, Frank, survived her, and according to a family agreement Frank Luebner could live in a cabin on plaintiff's land as long as he wished. This agreement was noted by a lease dated August 1, 1967, between the plaintiff, the defendant Theodore R. Cope, Kenneth T. Cope, and Charles J. Cope all as lessors, and as lessee, Frank Luebner for the term of his natural life. Prior to 1947 when Mrs. Luebner passed away, the Luebner couple lived in the cabin part of each year, and since 1947 Frank Luebner has lived in the cabin every summer for a number of years. Regarding the blood relationships of the various parties in this case, the plaintiff is a nephew of the defendants, and a stepson of Frank Luebner.
We feel this entire matter may be resolved by our answering the crucial question as to whether or not the facts in the record and the relationship between all parties involved herein support the district court's determination that plaintiff had acquired an easement by prescription. Accordingly, what the record before us actually reveals and the relationship of the various parties thereto, is indeed the crux of our analysis. Generally, the courts look to a variety of acts and circumstances to determine whether the user in a particular case was adverse or permissive; however, in a great many cases, no particular circumstance is decisive other than the general over-all scheme of things. At the outset, we mention that it is a general principle of law that members of a family may not acquire an easement by prescription against each other in the absence of a showing of a clear, positive, and continued disclaimer and disavowal of title.
In reference to the case at hand, the record abounds with testimony showing the continuous and cordial relationship between the Cope families for a considerable period of time. Further, the testimony of plaintiff's predecessor occupier, Frank Luebner, shows the existence of a friendly, neighborly relationship with the defendants while Luebner was occupying the cabin on *339 plaintiff's land and using the road which crosses over defendants' land.
It is well established law in this state that a party claiming to have acquired an easement by prescription must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. Scott v. Jardine Gold Min. & Mill Co., 79 Mont. 485, 257 P. 406. An "Exclusive" use means that the claimants' right to use the right of way is independent of a like right of way in another. Scott v. Weinheimer, 140 Mont. 554, 374 P.2d 91. Further, any user which is permissive in its inception cannot ripen into a prescriptive right, unless there has been a distinct and positive assertion by the claimant owner of a right hostile to the owner of the servient lands. Drew v. Burggrat, 141 Mont. 405, 378 P.2d 232. Finally, the presence of gates that must be opened by the user is generally considered to be strong evidence of a mere personal license to pass over the right of way. Peasley v. Trosper, 103 Mont. 401, 64 P.2d 109.
We have many times stated that the function of this Court is to determine whether there is substantial evidence to support the findings of fact of the trial court, and we will not reverse such findings of fact unless there is a clear preponderance of the evidence against such findings. See Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48, and cases therein cited, and Smith v. Krutar, 153 Mont. 325, 457 P.2d 459.
Applying the foregoing general principles to the relevant facts contained in this case, there is no evidence in the record herein to support the district court's determination that plaintiff acquired an easement by prescription. The evidence shows quite clearly that the use of the road in question by plaintiff and other members of the Cope family was permissive in nature only, and this permissive use has never changed in its status during the entire period the parties used the road. Indeed nothing is more essential to establish a right of way by prescription than those requirements that the claimant prove his use was both hostile and exclusive. The evidence at hand reveals just the contrary. The defendant, Marguerite V. Cope testified that from 1939 to 1947 Mrs. Luebner lived for part of each year in "Frankie's cabin", and that Mrs. Luebner always asked Mrs. Cope for permission for Mrs. Luebner's guests to come down the road to visit her. On occasion, Mrs. Cope would refuse to permit people other than Mrs. Luebner's guests and friends to use the road; furthermore, as to those of the general public who came in cars, teams and wagons, Mrs. Cope charged each vehicle a dollar or so to use the road. In any event, the testimony in the record reveals from the years 1939 to 1947 a permissive nature to the use of the road for all those concerned, and a friendly neighborly attitude between the various members of the Cope bloodlines occupying the adjoining lands. The defendant, Theodore R. Cope, testified that at no time was there any controversy between any members of the Cope families regarding the use of the road. The plaintiff testified he has never lived on the land which he acquired in 1963, and to which the road in question runs. As early as 1945, plaintiff recollects using the road for fishing and remembers as many as 20 or 30 cars a day using the road during fishing season. Plaintiff further testified there were five gates on the road, the first in the yard of defendants' property that opens up into the county road, and the last gate going onto plaintiff's property. The plaintiff testified those two gates were always closed, and that the others could be found either open or closed. As stated above, the presence of gates that must be opened by the user is strong evidence of a mere personal license to pass over a right of way.
We feel the testimony of Frank Luebner carries significant import because it shows the consistency of the permissive nature of the road's use and the lack of any element of hostility between any of the parties living on the lands over which the road runs. Luebner testified he had an arrangement *340 with the Copes whereby Luebner's good friends could come down the road to visit him, and the public wasn't allowed to come down unless Luebner knew them. It appears throughout all of Luebner's testimony that it remained within the discretion of the Copes as to who could come down the road to see Luebner, and at all times there was a harmonious friendship between Luebner and the Copes. Theodore V. Cope, who commenced living on his father's land in 1965, testified he had a good relationship with Frank Luebner and further testified to the following when asked what persons he allowed to use the road:
"Well if I know they are not connected with him or a strange vehicle, when they stop to open the gate I will ask them who they are and what they are doing and if they are friends of Frankie's or been invited down by him or any of the relatives, they go on now. If they are other strangers and just want to find out where the road goes, they don't go."
Such testimony clearly shows the strong degree of control which the Copes exercised over the use of the road. The record reveals at all times they maintained that control. The record further reveals the use of the road for many years by a Great Falls fishing club, by hunters, and others, but always it appears the Copes had the final say as to its use. Surely the history of the road's use as revealed by the lengthy testimony in the record completely negates any exclusive right of one particular party or individual to use the road independent of the right of another.
We feel of equal importance is the fact that the record reveals no proof or implication of hostility during plaintiff's tenure on the land, which is a necessary element to establish adverse use or prescription. Further, both Kenneth Cope and Theodore R. Cope testified except for minor improvements made by plaintiff the road has changed very little since 1951. We feel the repairs by plaintiff were not of the kind nor nature to fall within acts constituting adverse use. The transcript before us reveals a long history of the road's permissive use coupled with the background of a close and cordial family relationship among the parties. As previously mentioned in this opinion, a family relationship existing between the litigants creates an inference in itself that the use in controversy is permissive. Our review of the record seems to add strength to that inference.
Therefore, a careful review of all the testimony contained in the record herein leads us to the conclusion that plaintiff's use of the "Two Creek" road was and still is merely permissive and personal in nature; and accordingly; plaintiff may in no way whatsoever transfer or assign his limited personal right or license to use the road to any other person or persons.
As to the remaining issues on this appeal, we have the plaintiff's contention that the district court's findings are final because defendants failed to file exceptions to such findings within the prescribed limit.
With respect to the necessity of exceptions to findings we have previously pointed out, as we did in Stapp v. Nickels, 150 Mont. 220, 434 P.2d 141: "The effect is that counsel must point out his exceptions to the findings so that the trial court may have an opportunity to correct them."
While the defendants did not file exceptions to the findings as such, they did call the attention of the court to the alleged errors in the findings by way of a motion to amend the judgment, coupled with a motion for a new trial, which was timely served and filed under the rules. In that motion defendants called the court's attention to the fact that the judgment was conflicting and not decisive of the rights of the parties in that it decreed plaintiff was the owner of an easement over defendants' land, and that the use of said easement should not substantially increase the burden of such easement on the land, and at the same time decreed that the easement granted to plaintiff applied to his successors, assigns, transferees and other *341 persons lawfully going to and from the property. Further, that the judgment should be amended to conform to the evidence because there was no evidence to substantiate that plaintiff was the owner of an easement across defendants' lands by reason of adverse use; and also because the evidence showed the use of the road was permissive and by agreement of the parties and limited to use by relatives of the parties and invitees of the owner of the life estate.
The court, therefore, had ample opportunity to correct its findings and the judgment entered thereon and in our view this was a sufficient compliance with the rule.
Finally, because we have already found plaintiff's use to be permissive in nature, and therefore nonassignable, it will be unnecessary at this time to make any determination regarding any undue burden upon the defendants' servient tenement caused by the subdivisions proposed by plaintiff.
For these reasons the judgment is reversed.
HASWELL, DALY, CASTLES, JJ., and DIGNAN,[*] D.J., concur.
NOTES
[*] THOMAS DIGNAN, District Judge, sitting in place of JOHN C. HARRISON, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591901/ | 223 P.3d 323 (2010)
STATE
v.
ROSE.
No. 99940.
Court of Appeals of Kansas.
February 5, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3047315/ | Case: 11-11352 Date Filed: 05/11/2012 Page: 1 of 6
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11352 ELEVENTH CIRCUIT
MAY 11, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 1:10-cv-01612-TCB; 09-BKC-78173-PWB
In Re:
LORRAINE MCNEAL,
Debtor.
---------------------------------------------------------------------------------------------------
LORRAINE MCNEAL,
Plaintiff-Appellant,
versus
GMAC MORTGAGE, LLC,
HOMECOMINGS FINANCIAL, LLC,
a GMAC company,
Defendants-Appellees.
Case: 11-11352 Date Filed: 05/11/2012 Page: 2 of 6
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(May 11, 2012)
Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.
PER CURIAM:
Lorraine McNeal appeals the district court’s affirmance of the bankruptcy
court’s denial of McNeal’s “Motion to Determine the Secured Status of Claim.”
In her motion, McNeal sought to “strip off”1 a second priority lien on her home,
pursuant to 11 U.S.C. § 506(a) and (d). Reversible error has been shown; we
reverse and remand for additional proceedings.
McNeal filed a voluntary petition for bankruptcy under Chapter 7 of the
Bankruptcy Code. In her petition, McNeal reported that her home was subject to
two mortgage liens: a first priority lien in the amount of $176,413 held by HSBC
and a second priority lien in the amount of $44,444 held by Homecomings
Financial, LLC, a subsidiary of GMAC Mortgage, LLC (collectively, “GMAC”).
1
In bankruptcy terms, a “strip down” of an undersecured lien reduces the lien to the value
of the collateral to which it attaches and a “strip off” removes a wholly unsecured lien in its
entirety.
2
Case: 11-11352 Date Filed: 05/11/2012 Page: 3 of 6
McNeal also reported that her home’s fair market value was $141,416. The parties
do not dispute these factual allegations.
McNeal then sought to “strip off” GMAC’s second priority lien, pursuant to
sections 506(a) and 506(d). McNeal contended that, because the senior lien
exceeded the home’s fair market value, GMAC’s junior lien was wholly unsecured
and, thus, void under section 506(d). The bankruptcy court denied the motion,
concluding that section 506(d) did not permit a Chapter 7 debtor to “strip off” a
wholly unsecured lien. The district court affirmed.
When the district court affirms the bankruptcy court’s order, we review only
the bankruptcy court’s decision on appeal. Educ. Credit Mgmt. Corp. v. Mosley,
494 F.3d 1320, 1324 (11th Cir. 2007). And we review the bankruptcy court’s
legal conclusions de novo. Hemar Ins. Corp. of Am. v. Cox, 338 F.3d 1238, 1241
(11th Cir. 2003).
That GMAC’s junior lien is both “allowed” under 11 U.S.C. § 502 and
wholly unsecured pursuant to section 506(a) is undisputed.2 To determine whether
2
11 U.S.C. § 506(a) provides in pertinent part:
An allowed claim of a creditor secured by a lien on property in which the estate
has an interest . . . is a secured claim to the extent of the value of such creditor’s
interest in such property . . . and is an unsecured claim to the extent that the value
of such creditor’s interest . . . is less than the amount of such allowed claim.
3
Case: 11-11352 Date Filed: 05/11/2012 Page: 4 of 6
such an allowed -- but wholly unsecured -- claim is voidable, we must then look to
section 506(d), which provides that “[t]o the extent that a lien secures a claim
against a debtor that is not an allowed secured claim, such lien is void.” See 11
U.S.C. § 506(d).
Several courts have determined that the United States Supreme Court’s
decision in Dewsnup v. Timm, 112 S. Ct. 773 (1992) -- which concluded that a
Chapter 7 debtor could not “strip down” a partially secured lien under section
506(d) -- also precludes a Chapter 7 debtor from “stripping off” a wholly
unsecured junior lien such as the lien at issue in this appeal. See, e.g., Ryan v.
Homecomings Fin. Network, 253 F.3d 778 (4th Cir. 2001); Talbert v. City Mortg.
Serv., 344 F.3d 555 (6th Cir. 2003); Laskin v. First Nat’l Bank of Keystone, 222
B.R. 872 (B.A.P. 9th Cir. 1998). But the present controlling precedent in the
Eleventh Circuit remains our decision in Folendore v. United States Small Bus.
Admin., 862 F.2d 1537 (11th Cir. 1989). In Folendore, we concluded that an
allowed claim that was wholly unsecured -- just as GMAC’s claim is here -- was
voidable under the plain language of section 506(d).3 862 F.2d at 1538-39.
3
Although Folendore addressed the 1978 version of the Bankruptcy Code, the 1984
amendments to the Code did not alter the pertinent language in section 506(a) or (d).
4
Case: 11-11352 Date Filed: 05/11/2012 Page: 5 of 6
A few bankruptcy court decisions within our circuit -- including the
decision underlying this appeal -- have treated Folendore as abrogated by
Dewsnup. See, e.g., In re McNeal, No. A09-78173, 2010 Bankr. LEXIS 1350, at
*9-12 (Bankr. N.D. Ga. Apr. 9, 2010); In re Swafford, 160 B.R. 246, 249 (Bankr.
N.D. Ga. 1993); In re Windham, 136 B.R. 878, 882 n.6 (Bankr. M.D. Fla. 1992).
But Folendore -- not Dewsnup -- controls in this case.
“Under our prior panel precedent rule, a later panel may depart from an
earlier panel’s decision only when the intervening Supreme Court decision is
‘clearly on point.’” Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284
(11th Cir. 2007). Because Dewsnup disallowed only a “strip down” of a partially
secured mortgage lien and did not address a “strip off” of a wholly unsecured lien,
it is not “clearly on point” with the facts in Folendore or with the facts at issue in
this appeal.
Although the Supreme Court’s reasoning in Dewsnup seems to reject the
plain language analysis that we used in Folendore, “‘[t]here is, of course, an
important difference between the holding in a case and the reasoning that supports
that holding.’” Atl. Sounding Co., Inc., 496 F.3d at 1284 (citing Crawford-El v.
Britton, 118 S. Ct. 1584, 1590 (1998)). “[T]hat the reasoning of an intervening
high court decision is at odds with that of our prior decision is no basis for a panel
5
Case: 11-11352 Date Filed: 05/11/2012 Page: 6 of 6
to depart from our prior decision.” Id. “As we have stated, ‘[o]bedience to a
Supreme Court decision is one thing, extrapolating from its implications a holding
on an issue that was not before that Court in order to upend settled circuit law is
another thing.” Id. In fact, the Supreme Court -- noting the ambiguities in the
bankruptcy code and the “the difficulty of interpreting the statute in a single
opinion that would apply to all possible fact situations” -- limited its Dewsnup
decision expressly to the precise issue raised by the facts of the case. 112 S. Ct. at
778.
Because -- under Folendore -- GMAC’s lien is voidable under section
506(d), we reverse and remand for additional proceedings consistent with this
decision.
REVERSED AND REMANDED.
6 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047317/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-3-2009
USA v. Edwin Flamer
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1421
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 07-4151 / 08-1421 / 08-1599
UNITED STATES OF AMERICA
v.
EDWIN FLAMER,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No.07-cr-00117-001)
District Judge: Honorable James T. Giles
Submitted Under Third Circuit LAR 34.1(a)
January 30, 2009
Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges
(Opinion filed: February 3, 2009)
OPINION
AMBRO, Circuit Judge
Edwin Flamer was convicted in the Eastern District of Pennsylvania of distributing
50 grams or more of cocaine base and sentenced to life imprisonment based on two prior
felony drug convictions. He now appeals his conviction and sentence, along with the
District Court’s denial of his post-trial motions for, respectively, additional time to file a
Federal Rule of Criminal Procedure 33 motion for a new trial, and Jencks Act, 18 U.S.C.
§ 3500, and other discovery, material. Flamer’s attorney has moved to withdraw his
representation under Anders v. California, 386 U.S. 738 (1967). We grant the motion and
affirm Flamer’s conviction and sentence, along with the District Court’s denial of his
post-trial motions.1
I.
Because we write solely for the parties, we recite only those facts necessary to our
decision. On January 11, 2007, Flamer was arrested in Valley Township, Pennsylvania,
for selling cocaine base to an informant who had been working with both local and
federal drug enforcement agents. The sale was recorded by the informant via both audio
and video, while audio recordings were made of the four phone calls during which the
sale was arranged. A subsequent analysis of the substance sold by Flamer revealed it to
be 50.3 grams of cocaine base at 79.8% purity.
On March 7, 2007, a grand jury returned an indictment against Flamer, charging
him with one count of knowing and intentional distribution of 50 grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). A jury found Flamer
guilty after a three-day trial. Flamer then made a pro se motion requesting more time
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
with which to file a Rule 33 motion for a new trial, explaining that he was “in the process
of hiring a new so attorney so that [he] can have him file a Rule 33 [m]otion on a post
trial issue of [i]neffective [a]ssistance of [c]ounsel.” The District Court denied the
motion and Flamer filed an interlocutory appeal. It later imposed a life sentence on
Flamer based on his two prior convictions for sales of cocaine.
Flamer filed an appeal of his conviction and sentence, but shortly thereafter
submitted a pro se motion seeking to receive all Jencks Act and other discovery material
relating to his case. The District Court denied the motion and Flamer appealed that as
well.2
His counsel filed an Anders brief, seeking to withdraw his representation. Flamer
declined to file a pro se brief.
II.
Our rules provide that “[w]here, upon review of the district court record, trial
counsel is persuaded that the appeal presents no issue of even arguable merit, counsel
may file a motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. LAR
109.2(a). If we concur with trial counsel’s assessment, then we “will grant [the] Anders
motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly, our
“inquiry when counsel submits an Anders brief is . . . twofold: (1) whether counsel
adequately fulfilled the rule’s requirements; and (2) whether an independent review of the
2
We have consolidated Flamer’s three appeals.
3
record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001).
We are satisfied that trial counsel’s Anders brief is adequate and that there are no
nonfrivolous grounds on which to challenge either Flamer’s conviction or his sentence.
The evidence of guilt presented at trial was overwhelming—audio and video tapes that
showed Flamer arranging and completing the sale. The tapes were properly admitted by
the District Court. The life sentence imposed on Flamer was required under 21 U.S.C.
§ 841(b)(1)(A) because the drug offense of which Flamer was convicted came after two
prior convictions for felony drug offenses became final.
In addition, the District Court did not abuse its discretion in denying Flamer’s
post-trial motions. The District Court denied Flamer’s motion for additional time to file a
Rule 33 motion for a new trial on the ground that his ineffective assistance of counsel
claim should be pursued in a collateral proceeding, not in a motion for a new trial. This
was consistent with the practice of our Court. See United States v. Chorin, 322 F.3d 274,
282 n.4 (3d Cir. 2003) (explaining our “preference that ineffective assistance of trial
counsel claims be brought as collateral challenges under 28 U.S.C. § 2255, rather than as
motions for a new trial”).
The Court also correctly denied Flamer’s motion for Jencks Act and other
discovery material. That motion was submitted after Flamer filed his notice of appeal of
his conviction and sentence, at which time the District Court lost jurisdiction over matters
4
pertaining to the conviction. See Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 58 (1982) (explaining that “[t]he filing of a notice of appeal . . . confers jurisdiction
on the [C]ourt of [A]ppeals and divests the [D]istrict [C]ourt of its control over those
aspects of the case involved in the appeal.”).
III.
Counsel adequately fulfilled the requirements of Anders. Because our independent
review of the record fails to reveal any nonfrivolous grounds for appeal, we will grant
counsel’s motion to withdraw and affirm the judgments entered by the District Court. In
addition, we certify that the issues presented in the appeal lack legal merit and thus that
counsel is not required to file a petition for writ of certiorari with the Supreme Court. 3d
Cir. LAR 109.2(b).
5 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047329/ | [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10699 MAY 8, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:08-cv-01024-JA-DAB
CARL ROBERT ALVAREZ,
Plaintiff - Appellant,
versus
ATTORNEY GENERAL FOR THE STATE OF FLORIDA,
STATE ATTORNEY FOR THE EIGHTEENTH
JUDICIAL CIRCUIT OF FLORIDA,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 8, 2012)
Before MARCUS, COX and SILER,* Circuit Judges.
MARCUS, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
Carl Robert Alvarez appeals from a district court order dismissing his §
1983 civil rights action against the Attorney General of Florida and the State
Attorney for Florida’s Eighteenth Judicial Circuit. In 1991, Alvarez was
convicted in Florida of first-degree murder, sexual battery, and aggravated child
abuse. He was sentenced to life imprisonment. In state postconviction
proceedings, Alvarez sought to obtain, pursuant to Florida’s postconviction DNA
access procedures, some of the physical evidence collected by the State in order to
conduct DNA testing. The state trial court denied the petition, and Florida’s Fifth
District Court of Appeal affirmed, Alvarez v. State, 951 So. 2d 852 (Fla. 5th Dist.
Ct. App. 2007) (Table).
In his federal complaint, Alvarez claims that the State prevented him from
gaining access to physical evidence for purposes of DNA testing, in violation of
his procedural due process rights under the Fourteenth Amendment, the Eighth
Amendment’s prohibition against cruel and unusual punishment, his Sixth
Amendment right to confrontation and compulsory process, and his Fourteenth
Amendment right of access to the courts. The district court dismissed all of the
claims for failure to state a claim or for lack of subject-matter jurisdiction.
After thorough review, we affirm. The Supreme Court has recently made it
abundantly clear that there is no freestanding constitutional right to access
2
evidence for DNA testing, and that the federal courts may only upset a state’s
postconviction DNA access procedures if they are fundamentally inadequate to
vindicate substantive rights. Alvarez has made no showing that Florida’s
postconviction DNA access procedures are unconstitutional on their face. Indeed,
at oral argument, Alvarez’s counsel explicitly abandoned any facial challenge to
the constitutionality of Florida’s access procedures. Alvarez also attacks the state
courts’ application of these procedures to the facts of his case, but the district
court correctly determined that it lacked jurisdiction to entertain the claim under
the Rooker-Feldman doctrine. His remaining claims attempt in various ways to
assert a freestanding constitutional right to obtain evidence for DNA testing; they
are squarely foreclosed by case precedent.
I.
Because this case was decided on a motion to dismiss, we take the facts
from Alvarez’s complaint and the attached exhibits as true. Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam) (“When
considering a motion to dismiss, all facts set forth in the plaintiff’s complaint are
to be accepted as true and the court limits its consideration to the pleadings and
exhibits attached thereto.” (internal quotation marks omitted)).
These are the essential facts and procedural history. In 1991, Alvarez was
3
convicted in the Eighteenth Judicial Circuit Court for Seminole County, Florida,
of first degree murder, sexual battery, and aggravated child abuse of his stepson,
Joshua Boynton, who was seven years old. On the evening of December 5, 1989,
Alvarez made a 911 phone call reporting that his stepson was unconscious.
Boynton was still unconscious when the paramedics arrived about four minutes
later. Boynton never regained consciousness, however, and was determined to be
brain dead the following day. His life support systems were removed on
December 7, 1989. Boynton had sustained injuries to the left side of his face, left
ear, both eyes, the left side of the head, and the inside parts of his thighs and
buttocks.
Alvarez claims that no physical evidence linked him to the crime and that
his conviction was based wholly upon his pre-trial statements denying
responsibility for the crimes. In fact, the State’s medical evidence contradicted
Alvarez’s pre-trial statements. Thus, for example, the State’s medical evidence
established that the Boynton’s injuries were not consistent with the victim falling
from a couch -- the explanation initially offered by Alvarez to paramedics. The
medical testimony further provided that the condition of Boynton’s anus was
consistent with it having been penetrated by a blunt object or finger. The
defense’s theory at trial was no longer that Boynton had fallen from a couch, but
4
rather that Boynton’s injuries were inflicted by someone other than Alvarez and
that it was possible that a third party may have injured Boynton while Alvarez was
asleep that night or when Boynton was at a neighbor’s house or with his mother
earlier in the day.
During the investigation of Alvarez, the State collected the following pieces
of physical evidence: Joshua Boynton’s pajama top on which a small amount of
blood was found; Joshua Boynton’s pajama bottom and jeans; Joshua Boynton’s
sweatshirt; a pair of men’s sweatpants; a men’s white Hard Rock Cafe sweatshirt
and Joshua Boynton’s belt; a vomit-soaked towel; a pair of men’s pajamas; one
towel; a pair of blue jeans; and one pair of sweatpants. Alvarez claims that none
of this physical evidence was submitted for DNA testing at the time of his criminal
trial in 1990, observing that “[s]ophisticated DNA tests were not then generally
available.”
Alvarez also says that in 1990 the blood found on Boynton’s pajama top
was insufficient to allow for DNA testing, but “DNA testing can now be
performed on even a single cell and even on degraded evidence.” Alvarez
proposes to perform DNA testing on each of the aforementioned pieces of
evidence at his own expense, and thus seeks access for that reason. He also posits
that the physical evidence has been preserved and is in the possession of either the
5
Seminole County Sheriff’s Office or Clerk of Court.
Following his conviction, Alvarez collaterally filed in state court a “Petition
for Post-Sentencing DNA Testing,” pursuant to Fla. R. Crim. P. 3.853 and Fla.
Stat. § 925.11. Fla. R. Crim. P. 3.853 specifically governs the procedures in
Florida for obtaining postconviction DNA testing. It requires the trial court to
answer three questions when ruling on the access motion:
(A) Whether it has been shown that physical evidence that may contain
DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely
would be admissible at trial and whether there exists reliable proof to
establish that the evidence containing the tested DNA is authentic and
would be admissible at a future hearing.
(C) Whether there is a reasonable probability that the movant would
have been acquitted or would have received a lesser sentence if the
DNA evidence had been admitted at trial.
Fla. R. Crim. P. 3.853(c)(5). Fla. Stat. § 925.11 also addresses postsentencing
DNA testing and similarly requires the trial court to answer the same three
questions. Fla. Stat. § 925.11(2)(f).
After several rounds of amendation, Alvarez filed a “Third Amended
Petition for Post-Conviction DNA Testing” in state court, maintaining his
innocence and seeking access to the physical evidence for DNA testing. He
6
claimed this would exonerate him because the resulting tests would establish the
identity of the real perpetrator of these crimes. Alvarez theorized that the victim’s
injuries were sustained as a result of violent conduct, so there would be a
reasonable possibility that bodily fluids would have been left behind on the
physical evidence, including the blood found on the victim’s pajama top.
The state court conducted a hearing on the petition in June 2006 pursuant to
Florida’s now-decade-old DNA access procedures. Ultimately, the court denied
the third amended petition in a brief order. It found that Alvarez had “failed to
meet the first and third prongs” of the rule’s three-part test. As for the first prong,
the court found that because the injury to the victim was allegedly “caused by
some blunt object, but not a penis,” there was a strong likelihood that no DNA
evidence relating to the victim’s injuries existed on the items in evidence. And as
for the third prong, the court found that Alvarez’s theory of innocence was simply
“I didn’t do it,” and that Alvarez failed to adequately explain how DNA testing
would exonerate him, resulting in an acquittal or lesser sentence. The state trial
court’s order was summarily affirmed per curiam by Florida’s Fifth District Court
of Appeal. Alvarez, 951 So. 2d at 852.
Alvarez then filed the instant civil rights action in the United States District
Court for the Middle District of Florida pursuant to 42 U.S.C. § 1983. The State
7
moved to dismiss, and after the United States Supreme Court decided District
Attorney’s Office for the Third Judicial District v. Osborne, 129 S. Ct. 2308
(2009), the district court granted the motion and dismissed all of Alvarez’s claims.
This timely appeal followed.
II.
We review de novo the grant of a motion to dismiss under Fed. R. Civ. P.
12(b)(6) for failure to state a claim. Thompson v. RelationServe Media, Inc., 610
F.3d 628, 633 (11th Cir. 2010). Like the district court, we are required to accept
the factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff. Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs.
for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). The
district court also based its dismissal in part on the absence of subject-matter
jurisdiction pursuant to Fed. R. Civ. P 12(b)(1); we review that question of law de
novo as well. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.
2009).
The Supreme Court’s recent decision in Osborne controls the resolution of
many of the issues raised on appeal, so we explicate it at some length. Osborne
involved an Alaska prisoner convicted by an Alaska jury of kidnaping, assault,
and sexual assault. 129 S. Ct. at 2314. Osborne later filed a § 1983 suit in federal
8
district court seeking access to crime scene evidence for DNA testing. Id. at 2315.
Osborne claimed that the Due Process Clause and other constitutional provisions
afforded him a constitutional right to access the DNA evidence. Id. The district
court granted summary judgment in favor of Osborne, and the Ninth Circuit
affirmed, generally finding a due process right to access DNA evidence in
postconviction proceedings analogous to the right to be provided with exculpatory
evidence prior to trial under Brady v. Maryland, 373 U.S. 83 (1963). Osborne,
129 S. Ct. at 2315.
The Supreme Court reversed, rejecting the attempt to constitutionalize the
issue of postconviction access to DNA evidence. The Court reasoned instead that
the task of “harness[ing] DNA’s power to prove innocence” within the existing
criminal justice framework “belongs primarily to the legislature.” Id. at 2316. Of
course, the legislative procedures for postconviction access to DNA evidence still
must be consonant with the requirements of due process; thus, the Supreme Court
observed that Osborne had “a liberty interest in demonstrating his innocence with
new evidence under state law.” Id. at 2319. But it squarely rejected the Ninth
Circuit’s extension of the Brady right to exculpatory evidence in this context. Id.
at 2319-20. The Court reasoned that “[a] criminal defendant proved guilty after a
fair trial does not have the same liberty interests as a free man,” and that
9
“Osborne’s right to due process is not parallel to a trial right, but rather must be
analyzed in light of the fact that he has already been found guilty at a fair trial, and
has only a limited interest in postconviction relief.” Id. at 2320.
After again rejecting Brady as the wrong framework, the Supreme Court
posed the operative question this way: “whether consideration of Osborne’s claim
within the framework of the State’s procedures for postconviction relief offends
some principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental, or transgresses any recognized principle of
fundamental fairness in operation.” Id. (internal quotation marks omitted).
Ultimately, the Supreme Court concluded that there was “nothing inadequate
about the procedures Alaska has provided to vindicate its state right to
postconviction relief in general, and nothing inadequate about how those
procedures apply to those who seek access to DNA evidence.” Id.
The Supreme Court also rejected Osborne’s attempt to defend the Ninth
Circuit’s opinion on substantive due process grounds. The Court flatly held that
“there is no such substantive due process right.” Id. at 2322; see also Skinner v.
Switzer, 131 S. Ct. 1289, 1299 (2011) (“Osborne has rejected substantive due
process as a basis for [DNA testing] claims.”). Noting its general reluctance to
expand the concept of substantive due process, Osborne, 129 S. Ct. at 2322 (citing
10
Collins v. Harker Heights, 503 U.S. 115, 125 (1992)), the Court further observed
that in the context of DNA testing, “[t]here is no long history of such a right, and
the mere novelty of such a claim is reason enough to doubt that substantive due
process sustains it,” id. (internal quotation marks and alteration omitted). Finally,
the Court noted that “[t]he elected governments of the States are actively
confronting the challenges DNA technology poses to our criminal justice systems
and our traditional notions of finality.” Id. The Court reasoned that “[t]o suddenly
constitutionalize this area would short-circuit what looks to be a prompt and
considered legislative response.” Id. The Court concluded that it was “reluctant
to enlist the Federal Judiciary in creating a new constitutional code of rules for
handling DNA.” Id.
With Osborne in mind, we turn to Alvarez’s claims.
A.
Alvarez’s first and primary assertion was that Florida’s DNA access
procedures fail to meet the requirements of procedural due process. As briefed,
the claim challenged the constitutionality of Florida’s procedures both facially and
as-applied to his case. At oral argument, however, Alvarez’s counsel expressly
abandoned any challenge to the facial constitutionality of Florida’s procedures,
leaving only an as-applied challenge. Thus, Alvarez now argues only that the
11
Florida courts erroneously applied and interpreted Florida’s concededly
constitutional procedures in deciding his case. The problem with the argument is,
as the district court properly determined, that the district court lacked jurisdiction
over this claim under the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine derives from Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460
U.S. 462 (1983). The doctrine is a jurisdictional rule that precludes the lower
federal courts from reviewing state court judgments. Nicholson v. Shafe, 558 F.3d
1266, 1270 (11th Cir. 2009). This is because “[28 U.S.C.] § 1257,1 as long
interpreted, vests authority to review a state court judgment solely in th[e
Supreme] Court.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
292 (2005). The Supreme Court recently has cautioned that “[t]he Rooker-
Feldman doctrine . . . is confined to cases of the kind from which the doctrine
acquired its name: cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.”
Id. at 284; see also Lance v. Dennis, 546 U.S. 459, 464 (2006) (per curiam)
1
Title 28 U.S.C. § 1257 provides in relevant part that “[f]inal judgments or decrees
rendered by the highest court of a State in which a decision could be had, may be reviewed by the
Supreme Court by writ of certiorari” if they involve an issue of federal law. 28 U.S.C. § 1257(a).
12
(noting the “narrowness” of the Rooker-Feldman rule). We have since explained
that the Rooker-Feldman doctrine operates as a bar to federal court jurisdiction
where the issue before the federal court was “inextricably intertwined” with the
state court judgment so that (1) the success of the federal claim would “effectively
nullify” the state court judgment, or that (2) the federal claim would succeed “only
to the extent that the state court wrongly decided the issues.” Casale v. Tillman,
558 F.3d 1258, 1260 (11th Cir. 2009) (per curiam) (internal quotation marks
omitted).
Fully aware that Rooker-Feldman is a narrow jurisdictional doctrine, we
nonetheless hold that Alvarez’s challenge to the Florida courts’ resolution of his
petition is squarely within its orbit. Although this Circuit has yet to consider the
applicability of the Rooker-Feldman doctrine in the context of a § 1983 suit
challenging a state’s failure to produce evidence for DNA testing, the district court
relied upon decisions from two of our sister circuits, which have held that the
Rooker-Feldman doctrine bars challenges nearly identical to the one raised here.
See McKithen v. Brown, 626 F.3d 143, 154-55 (2d Cir. 2010) (holding that the
Rooker-Feldman doctrine barred the claim that “the state court incorrectly and
unconstitutionally interpreted the [New York DNA] statute by not assuming
exculpatory results,” and noting that “[t]he proper vehicle for McKithen to
13
challenge the state court’s interpretation of [the statute] was an appeal to the New
York Appellate Division”); In re Smith, 349 F. App’x 12, 15 (6th Cir. 2009)
(“[B]y complaining that the [Michigan] state trial court wrongfully denied him the
DNA evidence because rejection of his petition was improper -- but not
complaining that the statute itself is flawed -- Smith is ‘complaining of an injury
caused by the state-court judgment and seeking review and rejection of that
judgment,’ which is clearly barred by Rooker-Feldman.” (quoting Exxon Mobil,
544 U.S. at 291)).
Alvarez similarly seeks review and rejection of the state court judgment in
this case. See Exxon Mobil, 544 U.S. at 291. His as-applied procedural due
process claim plainly and broadly attacks the state court’s application of Florida’s
DNA access procedures to the facts of his case; notably, it does not challenge the
constitutionality of those underlying procedures. Alvarez claims that in denying
his petition for DNA testing, “the State court arbitrarily ignored material facts
showing a ‘reasonable probability’ that Mr. Alvarez would have been acquitted,”
and that the state court made erroneous findings of fact concerning his petition.
Alvarez’s claim is thus unlike the claim before the Supreme Court in
Skinner v. Switzer, 131 S. Ct. 1289 (2011), where the Court held that the Rooker-
Feldman doctrine did not bar a claim that Texas’s DNA access statute, as
14
authoritatively construed by the Texas courts, was unconstitutional. Id. at 1297-
98. On this point, Skinner stands for the unremarkable proposition that the
existence of a state court judgment interpreting or relying upon a statute does not
bar a federal court from entertaining an independent challenge to the
constitutionality of that statute. Id. at 1298 (“[A] state-court decision is not
reviewable by lower federal courts, but a statute or rule governing the decision
may be challenged in a federal action. Skinner’s federal case falls within the latter
category.”). Again, Alvarez has abandoned any such broad challenge to the
constitutionality of Florida’s DNA access procedures in this case, and our holding
that the Rooker-Feldman doctrine bars his procedural due process attack on the
state court judgment is wholly consonant with the Supreme Court’s reasoning in
Skinner.
Alvarez’s as-applied procedural due process challenge boils down to a claim
that the state court judgment itself caused him constitutional injury by arbitrarily
denying him access to the physical evidence he seeks under Florida’s concededly
constitutional procedures. It is abundantly clear that success on this claim would
“effectively nullify” the state court’s judgment and that the claim would succeed
“only to the extent that the state court wrongly decided the issues.” Casale, 558
F.3d at 1260 (internal quotation marks omitted). Simply put, Alvarez’s claim
15
meets all of the criteria for application of the Rooker-Feldman doctrine as they
have been recently articulated by the Supreme Court in Exxon Mobil: undeniably,
it is part of a “case brought by [a] state-court loser[]”; unambiguously, it
“complain[s] of injuries caused by [the] state-court judgment[],” namely the
arbitrary and erroneous application of Florida’s DNA access procedures; clearly,
the state court judgment was “rendered before the district court proceedings
commenced”; and, finally, Alvarez’s claim “invit[es] district court review and
rejection” of the state court judgment. 544 U.S. at 284; see also Brown v. R.J.
Reynolds Tobacco Co., 611 F.3d 1324, 1330 (11th Cir. 2010) (“The [Rooker-
Feldman] doctrine bars the losing party in state court ‘from seeking what in
substance would be appellate review of the state judgment in a United States
district court, based on the losing party’s claim that the state judgment itself
violates the loser’s federal rights.’” (emphasis added) (quoting Johnson v. De
Grandy, 512 U.S. 997, 1005-06 (1994))).
The district court did not err in determining that, to the extent Alvarez has
alleged a violation of procedural due process because of the way the Florida state
courts applied Florida’s DNA access procedures to the facts of his case, Rooker-
Feldman barred the court from exercising subject-matter jurisdiction over the
claim.
16
B.
Alvarez’s second argument is styled as an actual innocence claim based on
the Due Process Clause. Alvarez says that the State’s “refusal to allow the release
of biological evidence for DNA testing . . . deprived him of the opportunity to
make a conclusive showing that he is innocent of the crimes for which he is
currently incarcerated although he is, in fact, innocent.” He relies on Herrera v.
Collins, 506 U.S. 390 (1993), where the Supreme Court “assume[d], for the sake
of argument . . . that in a capital case a truly persuasive demonstration of ‘actual
innocence’ made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no state avenue
open to process such a claim,” id. at 417 (emphasis added).
To the extent Alvarez has thereby raised a substantive due process right to
obtain biological evidence for DNA testing, in order “to make a conclusive
showing that he is innocent,” the claim is without merit, because the Supreme
Court in Osborne unambiguously concluded that there is no substantive due
process postconviction right to obtain evidence for DNA testing purposes. 129 S.
Ct. at 2322-23.
Moreover, as the Supreme Court noted in Osborne in reference to the
petitioner’s “oblique[]” reliance “on an asserted federal constitutional right to be
17
released upon proof of ‘actual innocence,’” 129 S. Ct. at 2321, this kind of claim
“would be brought in habeas,” id. at 2322. In Osborne, the Court assumed without
deciding that such a constitutional right exists, “because even if so there [was] no
due process problem” under federal habeas and discovery procedures. Id. at 2321-
22 (citing 28 U.S.C. § 2254 Rule 6; Bracy v. Gramley, 520 U.S. 899, 908-09
(1997)). But Alvarez, like Osborne, has not sought habeas relief based on a
freestanding actual innocence claim, nor has he shown (or, for that matter, even
argued) that the available discovery in a habeas proceeding is facially inadequate
or that it somehow would be arbitrarily denied to him. See id.
Further, in this Circuit we have already ruled that Osborne foreclosed
Herrera-based actual innocence claims of the sort made here. See Cunningham v.
Dist. Attorney’s Office, 592 F.3d 1237, 1255 (11th Cir. 2010) (“After the Court
issued its decision [in Osborne], we asked the parties for supplemental briefing to
address Osborne’s impact on this appeal. In response, Cunningham conceded that
his Brady, substantive due process, Herrera-based actual innocence, and
clemency-related claims did not survive the Osborne decision. We agree with
those concessions.” (emphases added)); id. at 1272 (“[T]he Supreme Court has
made clear that Herrera is not a basis for obtaining DNA testing in a § 1983 action
. . . .”). Nor, finally, is Cunningham distinguishable from this case. On the
18
contrary, the circumstances confronted by the panel in Cunningham were nearly
identical to those we face here. Cunningham similarly involved a prisoner serving
a life sentence seeking access to biological evidence for DNA testing under § 1983
in the “hope[] that the results will show that he is innocent.” Id. at 1241 (emphasis
added).
C.
Alvarez also makes two cursory, one-paragraph arguments that seek to
constitutionalize a right to access evidence for DNA testing under the Eighth and
Sixth Amendments. Thus, Alvarez claims that it is cruel and unusual punishment
to subject him to a sentence of life imprisonment if there is evidence that might
exonerate him. Alvarez also claims that he is entitled to access the evidence for
DNA testing under the Sixth Amendment because he “has a right to the
government’s assistance in securing favorable witnesses at trial and to put forward
evidence that might influence the determination of guilt or innocence.”
These claims likewise are without merit under Osborne. One of the main
reasons underlying the decision in Osborne is that it should be primarily up to the
state and federal legislatures to fashion procedures that balance the powerful
exonerating potential of DNA evidence with the need for maintaining the existing
criminal justice framework and the finality of convictions and sentences. See
19
Osborne, 129 S. Ct. at 2316-17, 2322-23. For us to sweep aside Florida’s
established procedures and constitutionalize a right to access evidence for DNA
testing under the Sixth or Eighth Amendments would squarely conflict with the
Supreme Court’s explicit rejection of an invitation “[t]o suddenly constitutionalize
this area.” Id. at 2322; see also id. (“We are reluctant to enlist the Federal
Judiciary in creating a new constitutional code of rules for handling DNA.”). We
can discern no conceivable basis in this case, nor has Alvarez provided us with
one, for attempting an end-run around the Osborne holding under the cloak of the
Sixth or Eighth Amendments.
D.
Finally, Alvarez argues that the State, by denying him access to the physical
evidence, has effectively deprived him of the opportunity to litigate his claim, in
violation of the Due Process and Equal Protection Clauses of the Fifth and
Fourteenth Amendments. This claim is also foreclosed by Supreme Court and
Circuit precedent. “‘It is now established beyond a doubt that prisoners have a
constitutional right of access to the courts’ under the Due Process Clause.”
Cunningham, 592 F.3d at 1271 (quoting Bounds v. Smith, 430 U.S. 817, 821
(1977)). But in order to establish a violation of that right, “a prisoner must show
an actual injury.” Id. (citing Lewis v. Casey, 518 U.S. 343, 349 (1996)). This
20
requirement “derives ultimately from the doctrine of standing,” Casey, 518 U.S. at
349, and “reflects the fact that the very point of recognizing any access claim is to
provide some effective vindication for a separate and distinct right to seek judicial
relief for some wrong,” Cunningham, 592 F.3d at 1271 (internal quotation marks
omitted). Accordingly, “a litigant asserting an access claim must also prove that
he has a colorable underlying claim for which he seeks relief.” Barbour v. Haley,
471 F.3d 1222, 1226 (11th Cir. 2006).
Alvarez has pointed us to no underlying cause of action that he was
prevented from lodging in a court of law. Alvarez can hardly claim that he was
denied the opportunity to present a substantive due process claim, a Sixth
Amendment claim, or an Eighth Amendment claim to a court when he has no such
colorable claims in the first place. Barbour, 471 F.3d at 1226; cf. Cunningham,
592 F.3d at 1272 (“Because we have concluded that Alabama’s mechanism for
postconviction relief is consistent with due process under Osborne’s fundamental
fairness standard, it follows that it does not improperly interfere with
Cunningham’s right of access to the courts.”). Thus, he has failed to establish in
support of his access to courts claim the necessary prerequisite of an “actual
21
injury.” Cunningham, 592 F.3d at 1271.2
2
Again, Alvarez has abandoned as a direct claim any procedural due process challenge to
the facial constitutionality of Florida’s DNA access procedures. But to the extent his alternative
claim that he was denied access to the courts turns on an underlying cause of action alleging that
Florida’s procedures fail to meet the requirements of procedural due process, we are still hard-
pressed to find that Alvarez has established an actual injury. Florida’s procedures are in many
ways more favorable to a petitioner seeking DNA access than the Alaska or federal statutes, see
generally Alaska Stat. § 12.72.010 et seq.; 18 U.S.C. § 3600 -- both of which the Supreme Court
endorsed in Osborne. Osborne, 129 S. Ct. at 2316-17 (noting that “the federal statute is a model
for how States ought to handle the issue” of postconviction DNA testing); id. at 2320 (holding
that there was “nothing inadequate about the procedures Alaska has provided to vindicate its
state right to postconviction relief in general, and nothing inadequate about how those procedures
apply to those who seek access to DNA evidence”); see also Cunningham, 592 F.3d at 1263
(“Osborne . . . invites . . . a comparative approach, describing key elements of Alaska’s process
as both ‘similar’ to other state and federal statutes and also ‘not inconsistent’ with fundamental
fairness.”).
Thus, for example, unlike the Alaska and federal statutes at issue in Osborne, Florida’s
procedures explicitly provide for the possibility of a hearing on a motion to obtain DNA testing.
Fla. R. Crim. P. 3.853(c)(3) (“Upon receipt of the response of the prosecuting authority, the court
shall review the response and enter an order on the merits of the motion or set the motion for
hearing.”). Also unlike the Alaska and federal statutes, Florida explicitly provides for the right
to appeal an adverse decision on the motion, Fla. R. Crim. P. 3.853(f), as well as the possibility
of a rehearing in the trial court, Fla. R. Crim. P. 3.853(e). In addition, unlike the federal statute,
Rule 3.853 does not require that the applicant’s identity be a disputed issue at trial, allowing
instead for the additional possibility that the DNA evidence will only mitigate his sentence. Rule
3.853 requires that the motion contain either “a statement that identification of the movant is a
genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA
evidence would either exonerate the defendant or mitigate the sentence that the movant
received.” Fla. R. Crim. P. 3.853(b)(4) (emphases added). The federal statute, however, is not
phrased in the disjunctive but rather definitively requires the court to find that, “[i]f the applicant
was convicted following a trial, the identity of the perpetrator was at issue in the trial.” 18
U.S.C. § 3600(a)(7). Also unlike the federal statute, Rule 3.853 sets a definitive limit on the time
period within which the government must respond to a motion seeking postconviction DNA
testing. Rule 3.853 provides that, if the court finds the motion to be facially sufficient, “the
prosecuting authority shall be ordered to respond to the motion within 30 days or such other time
as may be ordered by the court.” Fla. R. Crim. P. 3.853(c)(2). The federal statute, on the other
hand, more vaguely provides that, upon receipt of the applicant’s motion, the court shall “allow
the Government a reasonable time period to respond to the motion.” 18 U.S.C. § 3600(b)(1)(B).
Finally, unlike the federal statute, Rule 3.853 places no time limit on when a motion for
postconviction DNA testing can be filed. Specifically, Rule 3.853 provides that “[t]he motion
for postconviction DNA testing may be filed or considered at any time following the date that the
22
Moreover, the State’s “out-of-court refusal to release evidence for DNA
testing in no way prevent[ed Alvarez] from asking a state court to order release of
that evidence.” Id. at 1272. Indeed, that is precisely what Alvarez did in this case
-- he sought release of the evidence from the state court, and the state court denied
his request. Under these circumstances, Alvarez cannot raise a colorable claim
that he was deprived of access to the courts by the State’s actions; the district court
properly dismissed this claim too.
judgment and sentence in the case becomes final.” Fla. R. Crim. P. 3.853(d) (emphasis added).
The federal statute, on the other hand, does not set a firm deadline but requires that the motion
for postconviction DNA testing be made in a “timely fashion.” 18 U.S.C. § 3600(a)(10).
In other respects, Florida’s procedures mirror the federal statute in the protections
afforded applicants. Both provide, for example, that the government must bear the costs of DNA
testing if the applicant is indigent. 18 U.S.C. § 3600(c)(3)(B); Fla. R. Crim. P. 3.853(c)(6).
Similarly, both provide that a court may appoint counsel to represent an indigent applicant. 18
U.S.C. § 3600(b)(3); Fla. R. Crim. P. 3.853(c)(4). And like the federal statute, Rule 3.853 places
limits on who can conduct the actual DNA testing in order to ensure the reliability of the process
and the results. Specifically, Rule 3.853 provides that the DNA testing must be conducted by the
Florida Department of Law Enforcement or its designee. Fla. R. Crim. P. 3.853(c)(7). Upon a
showing of good cause, however, the court may order that the testing be done by another certified
laboratory or agency, if requested by a movant who can bear the cost of such testing. Id. The
federal statute similarly provides that the DNA testing must be carried out by the Federal Bureau
of Investigation. 18 U.S.C. § 3600(c)(1). If, however, “the court makes all the necessary orders
to ensure the integrity of the specific evidence and the reliability of the testing process and test
results,” “the court may order DNA testing by another qualified laboratory.” Id. § 3600(c)(2).
In short, inasmuch as Florida’s postconviction DNA access procedures either mirror or
are more applicant-friendly than the Alaska and federal statutes endorsed in Osborne, Florida’s
postconviction DNA access procedures plainly do not offend any principle of justice so rooted in
the traditions and conscience of our people as to be ranked as fundamental, nor do they transgress
any recognized principle of fundamental fairness in operation. See Osborne, 129 S. Ct. at 2320;
cf. Cunningham, 592 F.3d at 1263 (“Alabama’s procedures pass [constitutional] muster if they
compare favorably with Alaska’s.”).
23
AFFIRMED.
24 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130660/ | 539 U.S. 942
Bodellv.Anderson et al.
No. 02-1534.
Supreme Court of United States.
June 23, 2003.
1
Appeal from the Ct. App. Ky.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3110855/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00279-CR
RONNIE CHARLES SCOTT APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant Ronnie Charles Scott attempts to appeal from his felony driving
while intoxicated conviction. The trial court’s certification of Appellant’s right to
appeal states that this “is a plea-bargain case, and the defendant has NO right of
appeal” and that “the defendant has waived the right of appeal.” See Tex. R.
App. P. 25.2(a)(2). On June 27, 2012, we notified Appellant that this appeal
could be dismissed unless he or any party desiring to continue the appeal filed a
1
See Tex. R. App. P. 47.4.
response showing grounds for continuing the appeal. Appellant filed a pro se
response that does not present grounds for continuing the appeal.
The Texas Rules of Appellate Procedure are clear that in a plea-bargain
case, an appellant may appeal only those matters that were raised by written
motion filed and ruled on before trial or after getting the trial court’s permission to
appeal. See Tex. R. App. P. 25.2(a)(2). Because the trial court’s certification
reflects that Appellant has no right of appeal, we dismiss this appeal for want of
jurisdiction. See Tex. R. App. P. 25.2(a)(2), (d), 43.2(f).
PER CURIAM
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 26, 2012
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4538803/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NICHOLAS GARNSEY and NICHOLE GARNSEY,
Appellants,
v.
FIRST PROTECTIVE INSURANCE COMPANY d/b/a FRONTLINE
INSURANCE,
Appellee.
No. 4D19-3961
[June 4, 2020]
Appeal of a nonfinal order from the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; Barbara W. Bronis, Judge; L.T. Case
No. 562019CA001523.
Earl I. Higgs Jr. of Higgs Law, P.A., Orlando, for appellants.
Jay M. Levy and Ryan L. Marks of Jay M. Levy, P.A., Miami, for appellee.
PER CURIAM.
Affirmed.
LEVINE, C.J., GERBER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2800861/ | Case: 14-40037 Document: 00513043103 Page: 1 Date Filed: 05/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-40037
Fifth Circuit
FILED
Summary Calendar May 14, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARKUS DWAYNE CHOPANE,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:10-CR-56-1
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Markus Dwayne Chopane, federal prisoner # 05662-078, is serving a
180-month term of imprisonment for possession with intent to distribute 50
grams or more of cocaine base. He appeals the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion, in which he sought a sentence reduction pursuant
to the Fair Sentencing Act (FSA) and Amendment 750 to U.S.S.G. § 2D1.1.
Chopane argues that although he was sentenced pursuant to a Federal Rule of
* 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.
Case: 14-40037 Document: 00513043103 Page: 2 Date Filed: 05/14/2015
No. 14-40037
Criminal Procedure 11(c)(1)(C) plea agreement, the record reflects that the
district court considered the applicable sentencing range under the Sentencing
Guidelines, the 18 U.S.C. § 3553(a) factors, and the plea agreement in
determining the appropriate sentence. He further asserts that the district
court had the discretion to reduce his sentence in view of Freeman v. United
States, 131 S. Ct. 2685 (2011).
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” § 3582(c)(2);
see United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district
court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for
an abuse of discretion, and its interpretation of the Guidelines is reviewed
de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
Chopane was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement
to 180 months of imprisonment and five years of supervised release. The plea
agreement did not expressly state that the sentence would be determined
pursuant to the Sentencing Guidelines and the 180-month sentence was not
based on the advisory guidelines range. The district court accepted the plea
agreement and sentenced Chopane in accordance with it. Because Chopane’s
sentence was not derived from the quantity of cocaine involved in the offense
under the Guidelines, the district court had no authority to reduce Chopane’s
sentence under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B); Dillon v. United
States, 560 U.S. 817, 826-27 (2010). The district court did not have discretion
to reduce Chopane’s sentence under Freeman because the plea agreement did
not expressly state that the sentence would be determined pursuant to the
Sentence Guidelines, and the sentence specified by the agreement was not
2
Case: 14-40037 Document: 00513043103 Page: 3 Date Filed: 05/14/2015
No. 14-40037
based on the applicable advisory guidelines range. See Freeman, 131 S. Ct. at
2699-2700 (Sotomayor, J., concurring). Therefore, the district court did not
abuse its discretion in denying Chopane’s § 3582(c)(2) motion. See Henderson,
636 F.3d at 717.
AFFIRMED.
3 | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050680/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLOBAL HORIZONS, INC.; GLOBAL
HORIZONS MANPOWER INC.;
MORDECHAI ORIAN,
Plaintiffs-Appellants,
v. No. 07-55116
U.S. DEPARTMENT OF LABOR, an D.C. No.
CV-06-08203-ABC
Agency of the United States of
America; ELAINE L. CHAO, in her OPINION
capacity as Secretary of the U.S.
Department of Lagbor; DOES 1
THROUGH 10, INCLUSIVE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
September 26, 2007—Pasadena, California
Filed December 13, 2007
Before: J. Clifford Wallace, Thomas G. Nelson, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Wallace
16395
GLOBAL HORIZONS v. U.S. DOL 16397
COUNSEL
Kari E. Hong, Law Offices of Kari E. Hong, Portland, Ore-
gon, for the appellants.
Ira A. Daves, Assistant U.S. Attorney, Los Angeles, Califor-
nia, for the appellees.
OPINION
WALLACE, Senior Circuit Judge:
Global Horizons, Inc., Global Horizons Manpower, Inc.,
and Mordechai Orian (collectively, Global Horizons) appeal
from the district court’s denial of their request entitled “ex
parte Application for Temporary and Preliminary Restraining
Orders Staying the Effective Date of Administrative Action.”
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and
we affirm.
16398 GLOBAL HORIZONS v. U.S. DOL
I
Global Horizons is a labor contractor in the business of pro-
viding temporary alien agricultural workers to United States
farmers pursuant to the H-2A worker program. For Global
Horizons to receive government permission to provide the
alien workers, it must show in its application that there are
insufficient United States workers to perform the labor
involved and that the employment will not adversely affect
wages and working conditions of the United States workers
similarly employed. 8 U.S.C. § 1188(a); see generally 20
C.F.R. Part 655. It was in its application that Global Horizons
ran into difficulty.
On July 27, 2006, the United States Department of Labor
(DOL) sent Global Horizons a “Determination and Notice”
stating that it would deny all future H2-A labor certification
applications from the company for a period of three years.
The DOL gave two reasons for its decision. First, it found that
Global Horizons improperly sought certification of 200 work-
ers for which it had neither the agricultural work nor the req-
uisite contractual relationship with a United States farmer.
Second, the DOL found that Global Horizons “knowingly
provided false information regarding the termination of the
employment of U.S. workers.”
The final paragraph of the notice advised Global Horizons
its sole method to challenge the DOL action: It had “the right
to request an expedited administrative review or a de novo
hearing” before an Administrative Law Judge (ALJ). The
notice specified, however, that such a request must be made
“within seven calendar days of the date of this Determination
and Notice.”
Global Horizons acknowledges that it did not file a request
for hearing within the stipulated time. Indeed, when Global
Horizons filed its request, it was even eight days after it con-
tends it actually received the DOL notice. Its excuse is that
GLOBAL HORIZONS v. U.S. DOL 16399
there was an internal delay forwarding the notice to the legal
department.
The ALJ ordered the parties to submit supplemental briefs
on the issue of equitable tolling. Subsequently, the ALJ issued
a 19-page administrative order denying Global Horizons’
request for a hearing as untimely. The ALJ held that Congress
intended H2-A matters to be handled in an expedited manner,
and the DOL had set numerous tight deadlines to achieve that
end. The ALJ also found that Global Horizons was no
stranger to this expedited process, having requested ALJ
review at least 18 times since 2003. The ALJ then engaged in
a lengthy discussion of the proper standard of equitable toll-
ing to be applied. Finally, the ALJ held that the facts of the
case failed to qualify for equitable tolling, given Global Hori-
zons’ failure to offer any satisfactory explanation for its delay
in responding.
Global Horizons then filed its application for preliminary
injunctive relief in the United States District Court for the
Central District of California, which the district court denied.
Global Horizons timely appealed.
II
We recognize two sets of criteria for preliminary injunctive
relief. Under the “traditional” test, a party must demonstrate
“(1) a strong likelihood of success on the merits, (2) the possi-
bility of irreparable injury to plaintiff if the preliminary relief
is not granted, (3) a balance of hardships favoring the plain-
tiff, and (4) advancement of the public interest (in certain
cases).” Johnson v. Cal. State Bd. of Accountancy, 72 F.3d
1427, 1430 (9th Cir. 1995) (citation and internal quotation
marks omitted). “Alternatively, a court may issue a prelimi-
nary injunction if the moving party demonstrates either a
combination of probable success on the merits and the possi-
bility of irreparable injury or that serious questions are raised
16400 GLOBAL HORIZONS v. U.S. DOL
and the balance of hardships tips sharply in his favor.” Id.
(citations, emphasis, and internal quotation marks omitted).
[1] Global Horizons sought review of the ALJ’s decision in
the district court pursuant to the Administrative Procedures
Act. 5 U.S.C. § 701 et seq. Under this statute, the district
court could set aside the ALJ’s decision only if it was “arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Under this nar-
row standard, the ALJ needed only to “articulate a rational
connection between the facts found and the conclusions
made.” Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs,
384 F.3d 1163, 1170 (9th Cir. 2004) (quotation marks and
citation omitted).
A.
[2] Global Horizons argues that the ALJ was “charting new
and unexplored ground” when it determined that equitable
tolling would be the standard to apply in the circumstances of
this case, and the district court therefore abused its discretion
when it denied injunctive relief because there were no serious
legal issues in the action before it. The question for the district
court, however, was not whether Global Horizons had raised
serious legal issues with respect to the substance of the ALJ’s
equitable tolling analysis. Instead, the court considered
whether Global Horizons had raised serious questions as to
whether the analysis was arbitrary and capricious. The only
real issue, then, was whether the ALJ articulated a sufficiently
rational explanation for the decision. See id. at 1170. The dis-
trict court correctly held that Global Horizons had not raised
serious questions going to the merits of this issue, given the
19-pages of in-depth rational analysis provided by the ALJ in
its administrative order.
B.
The district court then held, in a footnote, that “[b]ecause
Plaintiffs have failed to demonstrate either a likelihood of
GLOBAL HORIZONS v. U.S. DOL 16401
success on the merits, or the existence of serious questions
going to the merits, it is unnecessary to address the possibility
of irreparable injury or the relative hardships.” Global Hori-
zons takes issue with this holding. It argues that the district
court was required to give at least some consideration to both
the threat of irreparable harm and the threat to the public
interest before it could deny the preliminary injunction.
[3] We have described the relationship between success on
the merits and irreparable harm as “a sliding scale in which
the required degree of irreparable harm increases as the prob-
ability of success decreases.” Prudential Real Estate Affili-
ates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir.
2000). To reach this sliding scale analysis, however, a moving
party must, at an “irreducible minimum,” demonstrate some
chance of success on the merits. Arcamuzi v. Cont’l Air Lines,
Inc., 819 F.2d 935, 937 (9th Cir. 1987). When, as here, a party
has not shown any chance of success on the merits, no further
determination of irreparable harm or balancing of hardships is
necessary. See Sports Form, Inc. v. United Press Int’l, Inc.,
686 F.2d 750, 752-53 (9th Cir. 1982); see also Leary v.
Daeschner, 228 F.3d 729, 739 fn.3 (6th Cir. 2000); The Pitt
News v. Fisher, 215 F.3d 354, 366 (3d Cir. 2000).
[4] This rule applies with equal force to the public interest
element of our preliminary injunction analysis. We have rec-
ognized that, in certain situations, we must consider the public
interest when making a preliminary injunction determination.
See Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859,
862 (9th Cir. 2007). However, there is no reason to treat this
required showing any differently than that of irreparable
harm. Once a court determines a complete lack of probability
of success or serious questions going to the merits, its analysis
may end, and no further findings are necessary. That is true
here.
C.
[5] Global Horizons also argues that the district court
abused its discretion by failing to address specifically several
16402 GLOBAL HORIZONS v. U.S. DOL
substantive arguments that the company raised in its applica-
tion for preliminary relief. First, Global Horizons argues that
the DOL’s debarment notice was in conflict with the regula-
tions, since 20 C.F.R. § 655.110 provides for a two-year
debarment if a company has committed two violations, and a
three-year debarment only if a company has committed three
or more violations. This is precisely the sort of argument that
Global Horizons could have raised with the ALJ had the com-
pany filed a timely request for a hearing. Because it missed
the seven-day deadline, however, the only issue before the
district court was whether the ALJ abused its discretion in
refusing to grant equitable tolling. Any dispute as to the
length of debarment, therefore, would have been irrelevant to
the district court’s analysis.
[6] Global Horizons also made a number of constitutional
arguments before the district court, including that the relevant
regulations were void for vagueness, lacked proper due pro-
cess safeguards, and were promulgated in excess of statutory
authority. Although the district court potentially had jurisdic-
tion to hear these claims, Global Horizons provided only a
conclusory one-sentence argument for each, and the district
court did not abuse its discretion when it did not address them
specifically in its order.
III
Finally, we recognize that in the eleven months since
Global Horizons filed the present appeal, the company has
taken very few steps to move its application for permanent
injunction forward in the district court. The government filed
an answer on April 20, 2007, but Global Horizons entered
into two continuances. This delayed the district court from
holding a scheduling conference until November 5, 2007.
Twenty-five years ago in Sports Form, we admonished parties
for appealing a preliminary injunction “in order to ascertain
the views of the appellate court on the merits of the litiga-
tion.” 686 F.2d at 753. We repeat our concern. Because of our
GLOBAL HORIZONS v. U.S. DOL 16403
limited scope of review and the paucity of the factual record
on a preliminary injunction application, our disposition “may
provide little guidance as to the appropriate disposition on the
merits” and will often “result in unnecessary delay to the par-
ties and inefficient use of judicial resources.” Id. Given the
purported urgency of Global Horizons’ claims, the company
would have been better served to pursue aggressively its per-
manent injunction claim in the district court, rather than
apparently awaiting the outcome of this appeal.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
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