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https://www.courtlistener.com/api/rest/v3/opinions/2892760/ | NO. 07-02-0528-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 14, 2005
______________________________
IN THE MATTER OF THE MARRIAGE OF
MARY BECKY GONZALEZ AND EUSEBIO RAMIREZ GONZALEZ
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-517,360; HONORABLE DRUE FARMER, JUDGE
_______________________________
Before JOHNSON, C.J., and CAMPBELL, J., and BOYD, S.J.
MEMORANDUM OPINION
Eusebio Ramirez Gonzalez brings this appeal from a default decree of divorce terminating his marriage to appellee Mary Becky Gonzalez and dividing the community estate. He challenges the trial court’s division of property and denial of his motion for new trial. We affirm.
The parties were formally married in 1996 and separated in March 2002. On March 27, 2002, appellee filed a petition for divorce alleging the marriage had become insupportable. The petition was signed by an attorney from the Legal Aid Society of Lubbock and was served on appellant April 4, 2002. Appellant was born in Mexico and does not read English. He did not file an answer or appear at the temporary orders hearing held in April 2002 or the final hearing held in September 2002. No reporter’s record was made of the final hearing. The trial court signed a final decree of divorce the day of the hearing.
The community estate divided in the decree included the parties’ homestead occupying two adjacent lots in the City of Lubbock, seven vehicles, and other personal property described only by category. The decree awarded appellant five vehicles, the newest being a 1999 Ford Expedition, household and personal items in his possession and funds and accounts subject to his sole control. It awarded appellee the homestead, two vehicles, household and personal items in her possession and funds and accounts subject to her sole control. The decree assigned to appellant debts of unspecified amounts owed to Ford Motor Credit, an MBNA Charge Card, half of a medical debt incurred for appellee, and all tax liability prior to the 2002 tax year. It assigned to appellee the remaining debt for her medical care and all medical bills for Letticia Gutierrez.
(footnote: 1) It made no mention of any debt on the real property but a proposed deed attached to the decree included a provision that appellee would assume liability on “the note.”
Acting through counsel appellant filed a motion for new trial. His amended motion asserted he did not file an answer because he thought the parties had agreed on a property settlement and he was operating under the “mistake of fact and law” that the final decree would reflect the division of property agreed upon by the parties. He asserted he had a meritorious defense “in that the community property was not divided equally.”
The trial court orally denied the motion after a hearing at which both parties and one of appellee’s counsel testified. Appellant testified his failure to hire an attorney was based on appellee’s representation that he did not need an attorney and the court would divide the real property in accordance with an agreement they had made whereby appellee would receive the “front” house on the property and appellant would keep the “back” house in which he had sometimes lived since their separation. Appellant recounted receiving a letter from his wife’s attorney concerning a court date. He did not retain the letter or recall the exact date but said he went to the courthouse and asked for help in locating the courtroom. He testified he was told by an unidentified person at the courthouse that he did not need to appear.
Appellee denied that she tried to “trick” her husband. Her testimony was to the effect she never advised appellant not to get his own attorney and had encouraged him “numerous times” to seek legal assistance. She said he told her in response that he did not want to spend any money. She denied ever having an agreement with her husband on the property division. The attorney who represented appellee at the time of the temporary orders hearing testified that appellant did not appear at the hearing but he called her later that day and told her he was working and could not attend the hearing.
Appellant presents two issues for our review. The first challenges the division of community property; the second asserts the trial court abused its discretion in denying his motion for new trial. We address his second issue first.
Appellant correctly recites the elements a defendant must establish to show entitlement to a new trial after a no-answer default judgment. Those elements, set out in
Craddock v. Sunshine Bus Lines, Inc.
, 134 Tex. 388, 133 S.W.2d 124 (1939), require the movant to (1) show the failure to answer was not intentional or the result of conscious indifference, but due to accident or mistake, (2) set up a meritorious defense and (3) file the motion at a time “when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”
Id.
at 126.
A motion for new trial is addressed to the trial court’s discretion and its ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion.
Director, State Employees Workers’ Compensation Div. v. Evans
, 889 S.W.2d 266, 268 (Tex. 1994), citing
Cliff v. Huggins
, 724 S.W.2d 778, 778-89 (Tex. 1987). However, a trial court abuses its discretion by not granting a new trial when all three
Craddock
elements are met.
Evans
, 889 S.W.2d at 268, citing
Bank One Texas, N.A. v. Moody
, 830 S.W.2d 81, 85 (Tex. 1992).
When conclusions of law are neither requested
(footnote: 2) nor filed, we must presume that the trial court found all facts in favor of its order overruling the motion and are bound by such findings if there is any evidence of probative force to support the judgment,
Lewkowicz v. El Paso Apparel Corp.
, 625 S.W.2d 301, 303 (Tex. 1981), and we must uphold the court’s denial of the motion under any legal theory that finds support in the evidence,
Strackbein v. Prewitt
, 671 S.W.2d 37, 38 (Tex. 1984).
Appellant contends he established each of the
Craddock
elements. Appellee argues he established none of them. We find the trial court’s denial of the motion is supportable on the theory appellant did not set up a meritorious defense. We do not reach the question whether appellant established the first or third elements.
(footnote: 3)
A meritorious defense for
Craddock
purposes has been described as one that, if proven, would cause a different result on retrial of the case.
See Miller v. Miller
, 903 S.W.2d 45, 48 (Tex.App.–Tyler 1995, no writ). To set up a meritorious defense, the movant must allege facts that in law would constitute a defense, and must support the motion with affidavits or other evidence proving prima facie that the movant has such a defense.
See Estate of Pollack v. McMurrey
, 858 S.W.2d 388, 392 (Tex. 1993);
Ivy v. Carrell
, 407 S.W.2d 212, 214 (Tex. 1966). Appellant’s brief argues he met the meritorious defense requirement through his assertion the divorce decree wrongly divested him of a separate property contribution claim against the community estate. He contends he repeatedly made the assertion in his testimony and affidavit. The record does not support the argument.
As noted, appellant’s amended motion for new trial asserted he had a meritorious defense “in that the community property was not divided equally.” His testimony and argument at the hearing on the motion made the same complaint. Appellant neither alleged to the trial court he held a claim based on his contribution of separate property to benefit the community estate, nor presented any evidence that would support an assertion he held such a claim. Appellee acknowledged at the hearing appellant had made improvements to the residential property, but there is no suggestion in the record those improvements involved a contribution of appellant’s separate property. Appellant cites
Talley v. Talley
, No. 05-02-0753-CV, 2002 WL 31647096 (Tex.App.–Dallas, Nov. 25, 2002 no pet.) (not designated for publication), in which the court found a similar contention set up a meritorious defense. In
Talley
, the movant wife testified she had a reimbursement claim, and the record showed the divorce decree awarded to the husband “all of the parties’ and each party’s community and/or separate property interest” in the residence.
Id.
at 12. The divorce decree entered in this case contains no language suggesting the court awarded either party’s separate property to the other, and, as noted, appellant can point to no testimony or other evidence by which he prima facie set up a separate property contribution or reimbursement claim. The trial court did not abuse its discretion in denying the motion for new trial. We overrule appellant’s second issue.
By appellant’s first issue challenging the property division, he argues the division is “unfair and inequitable” in violation of Section 7.001 of the Family Code (Vernon 1998). He also argues the decree deprived him of property without due process of law.
Appellant’s argument recognizes a trial court has wide discretion in making a just and right division of community property and its discretion will not be disturbed on appeal unless a clear abuse is shown.
See Jacobs v. Jacobs
, 687 S.W.2d 731, 733 (Tex. 1985). An equal division of the community property is not required.
Murff v. Murff
, 615 S.W.2d 696, 698 (Tex. 1981). When reviewing the division of community property the ultimate or controlling issue is whether the division was just and right.
Hill v. Hill
, 971 S.W.2d 153, 155 (Tex.App.–Amarillo 1998, no pet.).
In order to overcome the presumption the trial court correctly exercised its discretion in dividing community property, an appellant bears the burden to show from the evidence in the record that the division was so disproportionate as to constitute an abuse of discretion.
Finch v. Finch
, 825 S.W.2d 218, 221 (Tex.App.–Houston [1st Dist.] 1992, no writ).
Although no reporter’s record was made of the final hearing, the docket sheet indicates appellee testified at the hearing. Reviewing such a record, an appellate court generally must presume the evidence supported the trial court’s findings.
See Guthrie v. Nat’l Homes Corp.
, 394 S.W.2d 494, 495 (Tex. 1965).
(footnote: 4)
See also Mosolowski v. Mosolowski
, 562 S.W.2d 24 (Tex.Civ.App.–Tyler 1978, no writ) (in absence of statement of facts, appellate court could not pass on question whether trial court abused its discretion in property division).
Appellant, relying on the evidence heard at the hearing on his motion for new trial and that contained in the affidavit attached to his motion, contends evidence showed “there was substantial positive equity in the house.” Assuming, arguendo, that we are permitted to consider for this purpose the evidence appellant presented in support of his motion for new trial, we cannot agree that it demonstrates an abuse of discretion in the division of property. No exhibits were admitted at the hearing and no witness testified to the value of any of the community property. The evidence regarding equity in the residence to which appellant refers consists of the following exchange during his counsel’s cross-examination of appellee at the hearing:
Q: [Appellant] has done a lot of improvements to that house?
A: Yes.
You have built quite a bit of equity in that house, haven’t you?
Yes.
It’s worth more now than it was when you bought it, isn’t that right?
Yes, it is.
Having no quantification of “quite a bit” of equity and having no evidence of the values of other assets of the community estate, or the amounts of the debts assigned to either party, we cannot agree the record before us demonstrates the property division was disproportionate, much less that it constituted an abuse of the court’s discretion.
See Deltuva v. Deltuva
, 113 S.W.3d 882, 887 (Tex.App.–Dallas 2003, no pet) (op. on rehearing) (absence of evidence on values precluded showing of unjust division).
Appellant also argues the divorce decree deprived him of property without due process of law. However, t
he contention was not made to the trial court, either in appellant’s motion for new trial or at the hearing. It therefore has not been preserved for appellate review. Tex. R. App. P. 33.1.
See Dreyer v. Greene,
871 S.W.2d 697, 698 (Tex. 1993);
In re Vega
, 10 S.W.3d 720, 722 (Tex.App.–Amarillo 1999, no pet.);
Miller Paper Co. v. Roberts Paper Co.
, 901 S.W.2d 593, 600 (Tex.App.–Amarillo 1995, no writ).
We overrule appellant’s first issue and affirm the judgment of the trial court.
James T. Campbell
Justice
FOOTNOTES
1: Letticia Gutierrez’ relationship to the parties is not clear from this record.
2:The record reflects a request for findings of fact and conclusions of law but not a notice of past due findings.
See
Tex. R. Civ. P. 297.
See also
Las Vegas Pecan & Cattle Co., Inc. v. Zavala County
, 682 S.W.2d 254, 255-56 (Tex. 1984)
.
3:See
Tex. R. App. P. 47.1.
4:In re Marriage of Taylor
, 992 S.W.2d 616, 620 (Tex.App.–Texarkana 1999, no pet.), cited by appellant, is thus inapposite, because the court there had before it the reporter’s record of testimony concerning values of community assets. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3450022/ | Affirming.
This action was brought by the appellees, Ella Layman and her husband, Chester Layman, against the appellants, Asa Harned individually, and as executor of the estate of his deceased brother, Mark, Martine Harned, the wife of the deceased, and Cliff Harned, another brother of Asa. Appellees alleged that Asa, Cliff and Mark had agreed to pay them $25 a month from June, 1929, to care for and support an invalid sister of theirs; that only $200 had been paid on the contract and there was a balance due of $2,026; that the house in which they (appellees) lived with the invalid in Grayson County, rent free, belonged to Asa and Mark; that Mark's interest went to his wife under his will, *Page 461
that Asa fraudulently and in contemplation of insolvency and with the design to prefer Martine, to whom he was indebted, as well as to them, conveyed his interest in the property to her in February, 1938; and that the estate of Mark had no personal property out of which to pay their claim. They prayed judgment on their alleged contract and also that the aforementioned deed be set aside and the property subjected to their claim.
The appellants by appropriate pleadings raised the question of jurisdiction, since they were residents of Jefferson County and the action was filed in Grayson. They also denied that a contract had been made for the care and support of the invalid, Anna May Harned. The parties to the land transaction denied that it was fraudulently made. The issues were joined after further pleadings were filed and oral proof was heard. Thereafter the following plea of limitation was made:
"Comes the defendants Asa Harned, Cliff Harned and Asa Harned as Executor of the estate of Mark Harned and plead the Statute of Limitations against any and all claims of Twenty-Five Dollars per month which became due prior to five years before the commencement of this action to-wit: On Feb. 25th, 1938."
The appellees' demurrer to this plea of limitation was overruled, and they now insist that the plea was insufficient. It is our view, however, under the circumstances, that the plea was good. Judgment was entered in favor of the appellees directing that they recover $25 per month with interest at 6 per cent from February 25, 1933, until December 25, 1936, subject to a credit of $355. It was further adjudged that the deed from Asa Harned to Martine Harned was preferential as to her and against the other creditors of Asa, and it was set aside. It was directed also that the creditors of Asa Harned could subject his interest in the land to the payment of his debts. The Harneds are appealing from so much of the judgment as was rendered against them. The appellees have filed a cross appeal from that part of the judgment sustaining the plea of limitation.
The appellants urge reversal on several grounds; but counsel for the appellees have called attention to the fact that no bill of exceptions was filed. This leaves only the question of whether the pleadings support the *Page 462
judgment. Harp v. Prudential Insurance Company, 261 Ky. 295,87 S.W.2d 595, and cases cited therein. We are of the opinion that they do support it. The pleadings raise the question of jurisdiction, but the Grayson circuit court had jurisdiction as to Asa Harned and Martine Harned because the land in question was located there. Magic City Coal Feed Co. v. Lewis, 164 Ky. 454, 175 S.W. 992; Williams v. Davenport, 181 Ky. 496,205 S.W. 551. Under the circumstances that court also had jurisdiction as to all of the alleged joint obligors. Objection was raised also to the action of the trial court in striking from the answer of Asa Harned, as executor of the estate of Mark Harned, the allegation that he had settled his accounts and had been discharged from that office. That action was proper, since there was no allegation as to the time when the settlement was made nor as to the time of the alleged discharge.
It follows from what has been said that it is our conclusion that the judgment should be and it is affirmed on both the appeal and the cross appeal. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3450023/ | Reversing.
Appellant was convicted in the Harlan circuit court on the charge of murder and his punishment fixed at life imprisonment in the penitentiary. James Fee, a deputy sheriff of Harlan county, was the victim of assassination *Page 223
in August, 1926. He lived at a mining town about six or seven miles from Harlan. He was assassinated by some one in ambush about 9 o'clock at night with a shotgun. He had just walked from a room of his home onto his porch when he was fired upon twice in immediate succession. He was mortally wounded and died after having been taken to a hospital in Harlan.
Later investigation developed that the assassin had concealed himself under a house occupied at the time by Josh Taylor. This house was built on the side of the hill and the lower side thereof rested on pillars several feet above the ground, leaving a space under the floor amply sufficient for the assassin to conceal himself. The Taylor house was 60 feet from the house of James Fee and on a higher elevation. There was a garden between the two houses and in the garden corn was planted which tended to obstruct the view between the two houses. Investigation on the part of the officers disclosed that the loads of shot from the gun of the assassin cut through the corn leaving traces on the stalks and blades as they sped on their way towards James Fee on his porch. The assassin had moved a rock weighing 40 or 50 pounds from one location under the floor to another, which rock he had used for a seat. The sheriff and several of his deputies went immediately to the community where the assassination took place and there they saw Fee as he was carried on a stretcher preparatory to sending him to the hospital. He there told the sheriff in the presence of the deputies that he knew he was killed, and that Jack Stevens, the appellant, killed him. He also said to the sheriff that he should arrest Jack Stevens and no one else. The sheriff, with his deputies, went to the home of Fee and following the signs of the shots through the cornfield he located the place where the assassin had been concealed. He found tracks there which were carefully measured by those who were with him and the peculiarity of the tracks noted. An effort was made to follow the tracks but it was difficult for a distance of 50 or 100 feet from the Taylor house, but when the sheriff and his deputies reached the road they found a track corresponding to the one which they had measured under the floor of the Taylor house. This track, with the peculiarities caused by patching of the shoe or placing thereon heel taps, was plainly discernible, and the officers followed it to the home of appellant. It is unnecessary to go into detail as to what occurred at the home of appellant, other than to say that he denied *Page 224
all knowledge of the assassination. His wife was absent, and an examination was made of his premises. His overalls were found wet and muddy and on their seat was indication of dust similar to that found on the rock under the floor of Taylor's house. His shoes were wet and had been washed clean of mud in a pan of water which was left sitting on the floor with the sediment in its bottom. His shotgun, of the same caliber as that used in the assassination of Fee, was in his house and showed that it had recently been fired. Empty hulls were found as well as loaded hulls. The shoes found by the officers were calculated to make a track corresponding with the track found under the Taylor house and on the trail leading to the house of appellant. There had been a considerable rain about the time of the assassination. Appellant stated to the sheriff and his posse that he had been out in a calf pasture when the rain came up and in that way he accounted for the condition of his clothes.
The testimony disclosed that appellant had been to the house of Taylor on the day of the assassination. It further disclosed that the deputy sheriff who was assassinated had arrested appellant on that day. There was some proof that appellant had made threats against Fee and had used language showing that he would like to see Fee removed from activities in the community. On his trial appellant showed by his evidence and the evidence of others in his behalf that no ill feeling had ever existed between him and Fee. He further showed by much testimony that at the time of the killing he had gone across the mountain five miles to ascertain whether his wife had reached the home of their son. He claimed that he was at the home of his son five miles across the mountain about the time of the assassination, and this he established by proof. He testified that he was caught in a heavy rain as he returned home and in that way accounted for the condition of his clothes at the time of his arrest.
Two grounds only are urged for reversal by appellant. The first is that the verdict is flagrantly against the weight of the evidence, and that he should have been granted a new trial for that reason. We cannot say that the verdict of the jury is flagrantly against the weight of the evidence. There was enough evidence to take the case to the jury and to uphold its verdict.
The complaint about the evidence relates to the dying declaration of James Fee. It is abundantly proven that *Page 225
Fee recognized his impending dissolution. He said to the sheriff and those present at the time: "I am killed; Jack Stevens killed me." He also told the sheriff to arrest Jack Stevens. That statement was withdrawn from the jury by the court with proper admonition. Others testified that later Fee said: "I am killed; I believe Jack Stevens shot me." The court withdrew this evidence from the jury with proper admonition. That which was left for consideration of the jury was the statement made to the sheriff in the presence of his deputies: "I am killed; Jack Stevens killed me."
Appellant argues with much force that this evidence should not have been admitted. Fee offered no reason to support his statement that Jack Stevens killed him. Such evidence as a dying declaration ordinarily, is competent; but it is argued in this case that the physical facts and surrounding circumstances as developed by the testimony show conclusively that Fee could not have known whether Jack Stevens fired the fatal shots. All of the witnesses testified that it was dark at the time of the assassination, and there is no evidence tending to show that Fee could have seen the assassin under the floor of the Taylor house at the time the shots were fired. In addition to the darkness the corn growing in the garden obstructed the view. If the evidence discloses that he could not have seen the assassin at the time he was shot and that he could not have recognized appellant as the man who fired the fatal shots, then his statement that Jack Stevens killed him was an expression of an opinion and the expression of an opinion is not competent as a dying declaration. The statements of a dying person can be admitted as his dying declaration only when the statements relate to the manner and circumstances of the infliction upon him by another of injuries resulting in his death. Wagner v. Commonwealth, 108 S.W. 320, 32 Ky. Law Rep. 1185.
The instant case falls within the rule announced in Green v. Commonwealth, 18 S.W. 515, 13 Ky. Law Rep. 897. In that case one Davidson had been shot from ambush and immediately after he was shot he made the statement that he did not know who shot him, but later he said to his daughter: "Your Uncle George shot me." His statement was admitted by the trial court as his dying declaration, but this court held the evidence incompetent. This court in that case took occasion to say that a trial court should be careful in admitting such testimony *Page 226
when it is doubtful whether the statement was one of fact known to the dying person or an attempt to establish a fact upon the mere belief that the crime must have been committed by a particular person. It was there held that, if the statement was the mere opinion of the dying person, it would be incompetent, and that such a statement should not be allowed as evidence if there was doubt as to whether the declarant was expressing an opinion or attempting to state a fact. If the facts and circumstances in this case showed that Fee had an opportunity to know whether appellant fired the shots, his statement in the form made would be admissible; but where it is shown by all of the surrounding circumstances that he could not have known whether it was the appellant who fired the shots, it follows that his statement was merely his opinion, and it should not have been admitted.
It is insisted by the Attorney General that, although the dying declaration may have been incompetent, it was not prejudicial, as the evidence tending to show the guilt of appellant was amply sufficient without the dying declaration. We cannot agree with this argument. The evidence against appellant was wholly circumstantial and the admission of the statement made by the dying man who had been assassinated, that appellant had killed him, was prejudicial. The court will not allow the statement of Fee on another trial, unless it should be shown that he had an opportunity to know as a matter of fact that appellant fired the fatal shots.
No other errors are complained of, but the error as to the admission of the evidence is sufficient to compel a reversal of the judgment of the lower court.
Judgment reversed, and cause remanded for proceedings consisted with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3450024/ | Reversing.
J.T. Estes sued K.D. Gatliff, Jellico Coal Mining Company and Nancy Marie White for $9,700 damages for breach of contract, a lease. He was required to elect whether he would prosecute the suit against Gatliff or *Page 95
the other defendants. Electing to proceed against Gatliff, his petition was dismissed without prejudice against the other parties. A demurrer to the petition as against Gatliff was sustained. The plaintiff suffered its dismissal by failing to plead further, and has brought an appeal from both orders.
Material portions of the lease, which is dated June 20, 1939, may be thus summarized: The Jellico Coal Mining Company (stated to be the owner) leased a certain parcel of land in the village of Mountain Ash to Estes for ten years for the purpose of constructing a bulk distributing station of gasoline and other petroleum products. Improvements were to be completed within four months. At the expiration of the lease the lessee had the right to remove the improvements and all property placed on the premises by him. The company "now has" a general filling station adjoining the lot called the "Blue Bird Tea Room." The consideration for the lease was an amount equal to 1 cent on each gallon of gasoline sold at the Tea Room station until the bulk station should be completed. Thereafter the rent should be the equivalent of 1 1/4 cent a gallon. It was further provided that Estes had the right to name the brand of gasoline to be sold there. This clause was to be effective against the coal company and "all its assigns, lessees and agents."
On August 17, 1939, Nancy Marie White executed and delivered to Estes a paper which recited that she was the legal owner of the premises described as the "Blue Bird Tea Room," and in consideration of $5 cash and $5 a year thereafter she agreed to the terms of the above contract "in their entirety and in every respect, and do hereby covenant that I am bound by the terms of said contract as is the said Jellico Coal Mining Company."
The petition sets up these contracts and alleges, among other things, that on September 13, 1939, the defendants, Jellico Coal Mining Company and Nancy Marie White, and E.F. White and wife, conveyed the leased premises and the Blue Bird Tea Room property to the defendant Gatliff. At that time the plaintiff was in the open and notorious possession of the premises and engaged in the construction of the bulk station and improvements provided for in the contract, of which the defendant Gatliff had actual notice. The plaintiff did not know and could not by the exercise of ordinary care have known of Gatliff's intention to buy the property. On *Page 96
September 19, 1939, the plaintiff notified the parties that the "Texaco" brand of petroleum products should be sold at the Tea Room filling station. On the same day, it is charged, the defendant Gatliff repudiated the lease; notified the plaintiff he would not be bound by it; ordered him to desist from further construction of the improvements; notified him to remove all his property from the premises; and forced him to give up possession thereof. Since that time, it is alleged, the defendant has refused to permit plaintiff to have possession of the leased premises and has refused to recognize the agreement relating to the sale of "Texaco" products at the Tea Room filling station. The plaintiff averred that he had fully complied with each and every obligation imposed upon him by the contract up to the time the defendant Gatliff had repudiated it and forced him to vacate the premises. He further alleged that the Jellico Coal Mining Company and Nancy Marie White had breached the implied covenant that he should have the quiet enjoyment of the premises during the term of the lease by having sold the same to Gatliff, knowing that he was plaintiff's competitor and that he would damage and destroy plaintiff's possession. This, it is charged, was a breach of contract and an intentional wrong.
The motion to require the plaintiff to elect was based upon the concept that he was endeavoring to join an action ex delicto against the Coal Company and Miss White with an action ex contractu against Gatliff, which is not permissible. Section 83, Civil Code of Practice; Little v. Consolidation Coal Co.,169 Ky. 514, 184 S.W. 873, 874. While the petition does contain some allegations of a tortious nature, it is essentially an action based on the violation of covenants and agreements contained in the lease by all the parties, from which it is alleged plaintiff suffered damages. Cf. Ocean Acc. Guar. Corp. v. Milford Bank, 236 Ky. 457, 33 S.W.2d 312. The pleader was endeavoring to charge that the original lessors had broken the terms of their agreement by selling the property, with the knowledge that the plaintiff's implied rights would be interfered with. But the dismissal of his petition against these two parties was without prejudice. That is not a final judgment from which an appeal lies. Magill v. Mercantile Trust Co., 81 Ky. 129; Cf., Long v. Reiss, 290 Ky. 198, 160 S.W.2d 668. Therefore, it is necessary that we dismiss the appeal in *Page 97
so far as it is against the Jellico Coal Mining Company and Nancy Marie White.
While the petition is not scientifically drawn, it seems to us to state a cause of action against Gatliff. The grounds upon which the appellee bases his contention that the demurrer was properly sustained appear in their disposition.
Although it is not expressly pleaded that the Coal Company was the owner of the property covered by the lease, the two contracts are sufficient to show that it had leased the premises. The relation of landlord and tenant does not depend upon the landlord's title but upon the agreement. 35 C. J. 1211. If the Coal Company had no such right, that is a matter of defense. The same is true as to the point that the petition does not allege that E.F. White, who signed the lease as president of the Coal Company, had authority to do so. Gatliff, as the vendee of the premises, took title subject to plaintiff's lease, of which he had notice. Everidge v. Martin,164 Ky. 497, 175 S.W. 1004. The lease was not recorded until September 19, the same day Gatliff recorded his deed. But the allegations of actual notice and open and public construction of the improvements, of which he had knowledge, were sufficient to charge him with notice. Russell's Ex'r v. Moore's Heirs,60 Ky. 436, 3 Metc. 436; Mitchell v. First National Bank, 203 Ky. 770, 263 S.W. 15; Sentry Safety Control Corporation v. Broadway Fourth Avenue Realty Co., 276 Ky. 648,124 S.W.2d 1051. Gatliff assumed the relation of landlord by his purchase of the property and was bound by the terms of the lease. Section 2304, Kentucky Statutes; Ventura Hotel Co. v. Pabst Brewing Co., 109 S.W. 354, 33 Ky. Law Rep. 149; Hall-Watson Furniture Co., v. Cumberland Telephone Telegraph Co., 203 Ky. 90, 261 S.W. 883.
The appellee insists there was no lawful eviction of the appellant as tenant, since constructive eviction is not recognized in this jurisdiction, citing in support of the argument cases involving a breach of warranty of title. We do not think the strictness of that rule applies to the relation of landlord and tenant. To evict a tenant is to deprive him of the possession of the leased premises or disturb him in their beneficial enjoyment so as to cause the tenant to abandon the premises. This amounts to a constructive eviction. It is not necessary that there *Page 98
should have been an actual, physical ejection or even a lawsuit. There is an eviction if the acts of the landlord are such as will justify or warrant the tenant in leaving the premises and he does in fact abandon them. 32 Am. Jur., Landlord and Tenant, Sections 246, 479.
A failure to allege that the plaintiff had paid the stipulated rents is assigned as reason for sustaining the demurrer to the petition. In the absence of a provision to that effect in the contract or a declaration of a statute, the nonpayment of rent does not operate as a forfeiture of the lease; but there is no question that a provision in the contract for a forfeiture upon such default is valid and binding. Wender Blue Gem Coal Co. v. Louisville Property Co.,137 Ky. 339, 125 S.W. 732; Elliott v. Marrs, 222 Ky. 642, 1 S.W.2d 1049; Dean v. Stillwell, 284 Ky. 639,145 S.W.2d 830; 32 Am. Jur., Landlord and Tenant, Section 852; 35 C. J. 1065. The lease involved in this case did contain a provision that upon default in payment of rent for more than a month the lessor would cancel the lease "by written notice, to become effective in ten days." The plaintiff's allegation that he had complied fully with all the terms of the contract is a conclusion of the pleader and not sufficient as an affirmative allegation that he had paid the rents. We are of opinion, however, that it was incumbent upon the defendant to plead and establish that he had given the proper written notice of cancellation. Some provisions for forfeiture, as in the cases cited, are self-executing, but the right of forfeiture in this lease was dependent upon a written notice. The landlord's right of entry or to dispossess the tenant did not accrue until he had exercised the option to cancel the lease according to its terms. 36 C. J. 608, 610.
The appeal from the orders requiring an election and dismissing the petition without prejudice as to Jellico Coal Mining Company and Nancy Marie White is dismissed. The judgment dismissing the petition as against the appellee K.D. Gatliff is reversed. *Page 99 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/131174/ | 540 U.S. 801
MILLERv.McCAUGHTRY, WARDEN.
No. 02-10724.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 7th Cir.
2
Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court's Rule 39.8. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3445000/ | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 772
Reversing.
The appellant, King, filed two suits against the appellee, seeking to recover upon policies of insurance; the suits were heard together, resulted in judgments for the insurance company, and King has appealed. The policy sued on in the first action was No. D14623, and insured against loss by fire a one and one-half story house at 112 Mulberry street, Owensboro, Ky., and its contents. It was a $4,000.00 policy, $3,000.00 being upon the building and $1,000.00 on the contents. The policy sued on in the second action was No. D14621. It insured against loss by fire a one story house at 120 Mulberry street. It was also a $4,000.00 policy, $2,000.00 being upon the building *Page 773
and $2,000.00 on the contents. These two houses were located on the same side of Mulberry street, and were not more than 10 or 12 feet apart. Both of these buildings were vacant at the time the fire occurred, and had been so for about 60 days. They were situated in what is known as the red light district. The fire in these houses was discovered about 12:45 in the early morning of July 27, 1922. The fire department reached the fire one and one-half minutes thereafter. They found both houses afire upon the inside. All the doors were locked and the windows nailed down. The window shades were pulled down. In No. 112, the dresser and furniture drawers had been pulled out and filled with paper. The sheets and bedding had been taken from the beds and tied together in a sort of chain. The inside doors of the building were propped open with chairs. The lace curtains had been taken down and tied in a chain. The bedclothing and the chains made by the bedclothing and curtains were strung over the chairs leading from room to room, through the house and up the back stairway. The odor of gasoline was prevalent. The house at 120 was in practically the same condition, except there was a lot of junk piled on the stairway. The odor of coal oil or gasoline was prevalent. Both houses were afire on the inside all over. Firemen testified that they would get the fire knocked out and in a few minutes gas would rise up and the fire would flash up again. The defendant resisted these actions and plead: First, that it was not liable at all because the plaintiff represented that these houses were occupied as dwellings, whereas they were in fact used as bawdy houses, which was unknown to the defendant. Second, it was not liable at all because the fire was caused to happen and was brought about by the intentional and wilful procurement and acts of the plaintiff himself. The first trial was had April 11, 1924. The jury failed to agree. The second was had June 19, 1924. In each case the jury returned a verdict for defendant. The plaintiff moved for a new trial, and assigned as reasons therefor: (1) Error of the court in overruling demurrer to the answer of the insurance company. (2) Error in admission and rejection of evidence. (3) Error in refusing to peremptorily instruct the jury to find for the plaintiff. (4) Error in refusing instructions offered by plaintiff. (5) Error in instructing the jury. We will discuss these alleged errors in this same order. *Page 774
(1) In each of these policies there appears immediately after the description of the property, this expression: "Occupied as a dwelling house." In its answers, defendant alleges they were not so occupied, but were used for other purposes as stated above, and that on account thereof, the policies were void. Insurance contracts are not different from other contracts, and it is well known that insurance rates vary according to the use made of the insured property, and that there are purposes for which property may be used that render it so hazardous that insurance companies will not insure it at all. Whether or not this property was used for such a purpose and whether or not if so used, it would have been rejected or only accepted at a higher rate by a reputable insurance company acting reasonably and naturally, according to the usage and custom prevailing among such companies, was a legitimate defense, properly presented by the answer, and King's demurrer thereto was properly overruled.
One of the essential elements of a contract, if not the most essential element, is the requirement that there be an agreement between the parties.
Dixie Fire Ins. Co. v. Wallace, 153 Ky. 677, 156 S.W. 140; Ann. Cas. 1915C 409.
"An insurer is at liberty to select the character of risk it will assume and it is not liable except upon proof that the loss occurred within the terms of the policy. . . . A bawdy house and saloon is not a dwelling house."
Allen v. Home Ins. Co., 133 Calif. 29, 65 P. 138. Defendant should not be held for this loss if this was a bawdy house when it had insured a dwelling house.
(2) The agent, McKinney, who wrote these policies, in the course of his testimony, was asked this question: "Tell the jury what you had heard about these properties prior to the issue of the policies." The plaintiff's objection to the question was overruled. The witness answered: "The houses were not then used for bawdy houses; all the girls had been run out of town." King insists that this was hearsay, and the evidence incompetent. If this evidence had been offered directly upon the question of the use of the property for immoral purposes, King's objection would have been well taken, but the matter under inquiry at the time was whether or *Page 775
not the insurance agent, McKinney, at the time he wrote these policies knew the purpose for which the property was used, and while he may not have had direct evidence of the purpose for which the property was used, still, he may have received information sufficient to put him on inquiry, and upon that feature, this evidence was competent, even though it would otherwise be hearsay. When it was admitted, however, the court should have told the jury to not consider that evidence as bearing upon the question of whether or not the property was used for immoral purposes, but solely upon the question whether or not McKinney knew it was being so used, if it was. Further, in his evidence, he was asked: "Would your company have issued those policies or you as agent, have issued those policies, if you had known that they were bawdy houses, if that was a fact?" He answered: "No, sir," after the court had overruled plaintiff's objection to the evidence.
Where there has been a concealment or misrepresentation of a fact in an insurance contract and the company is defending because of that concealment or misrepresentation, the temptation for the individual insurance company or individual agent to say that if the truth had been known, the policy would not have been issued is so great that the courts require this matter to be reached in a different way. The witness should have been asked whether or not he knew the usage and practice prevailing among reputable fire insurance companies making premium rates and accepting or rejecting risks and whether or not he knew the usage and practice among reputable fire insurance agents in making rates and accepting or rejecting risks and if he said he did, he should then have been asked whether or not a reputable fire insurance company or fire insurance agent, acting reasonably and naturally, in the usual course of the fire insurance business, would have accepted the risk at a dwelling house rate under the circumstances, if the truth had been known. The witness was asked further: "State to the jury if you know what is the custom of fire insurance companies in Owensboro, Ky., about insuring houses that are used and occupied as bawdy houses." After the court had overruled the defendant's objection, he answered, "They do not like to issue policies on them." This question was pretty near the proper form, but still, was not entirely correct. *Page 776
J.H. Williams, a police officer, was asked if he had occasion to visit those houses. He said that he did. He was then asked, "Tell the jury what you saw there." He answered, "Whenever it was reported to me, I would go there." The plaintiff objected to this answer and moved the court to exclude it. The court overruled his motion. This was correct. The witness did not say what was reported to him. He merely explained what caused him to go there. Further along in his testimony, he said that he was down there about the 19th or 20th of December and saw some men and women in their night clothing. The plaintiff objected to that, but his objection was properly overruled, as this evidence tended to show the purpose for which the property was being used. The witness, J.C. Cox, told about making a raid on these places and getting six women out of them, who plead guilty to fornication, and were fined. He was then asked what was the business of those women in Owensboro, Ky. Plaintiff objected, and the court properly overruled his objection. He was asked what was the reputation of those women in Owensboro, Ky., for chastity and virtue and he said it was bad. This evidence was properly admitted, as those policies were issued shortly after that and this evidence tended to show the purpose for which the property was being used. Some court records were introduced over King's objection, that showed this property had been used for immoral purposes. Plaintiff's counsel says that all this evidence about the use of this property was prejudicial to his client and should not have been admitted. We agree that it was prejudicial, but still it was competent.
The chief of the fire department in the course of his testimony was asked to tell the jury the nature of the fire and to describe how it acted. He said: "The thing looked suspicious, and I could smell gasoline and on investigating, we found the fire had been laid by somebody." The plaintiff contends that those things were conclusions of the witness, and that he should merely have described the odor, and should not have given his conclusion that he could smell gasoline. Technically, perhaps, that should have been done, but the average man would have great difficulty in telling just how coal oil or gasoline smells, though acquainted with their odors, and perhaps the best description the witness could give was to say he knew their odors, and he could smell coal *Page 777
oil, or he could smell gasoline. His statement that he found the fire had been laid by somebody was objectionable. He should tell what he found and let the jury draw the conclusion. Some photographs were introduced by this witness, and he testified that they were photographs of this property, that he was present when the photographs were taken, and that they correctly represented the burned buildings. The plaintiff objected to this evidence. The rule is well settled that the correctness of photographs need not be proved by the one who took them, and they may be used when shown by any person that they are photographs of the thing in question. Dillar v. Northern Calf. P. Co., 162 Calf. 531, 123 P. 359, Ann. Cas. 1913D 908; McKarrent v. Boston N. S. R. Co., 194 Mass. 179, 80 N.E. R. 477, 10 Ann. Cas. 961.
Whether these photographs show the correct situation or not is a question for the jury to determine, and either party may introduce evidence on that question. The question was how much of these houses was burned, and these photographs were properly admitted to assist the jury in determining that. The jury may believe they are only partially correct and may believe that the evidence of no witness is entirely correct and yet from all the evidence discover the truth.
(3) Unquestionably there was enough evidence here to submit this case to the jury and the plaintiff's motion for a peremptory instruction was properly overruled.
(4) The court refused to give the seven instructions offered by plaintiff and on its own motion gave six instructions to which plaintiff objected. We cannot approve the plaintiff's instructions because they submitted to the jury's determination from its own judgment, the question of the materiality of the matters which it is claimed the plaintiff concealed. The materiality of the matters misrepresented or concealed is not a question directly for the jury's determination. The question for the jury to determine is, acting reasonably and naturally in accordance with the usual practice and custom among fire insurance companies making premium rates and in accepting and rejecting risks, what would the defendant have done, had it known the truth? In a sense, the jury passes on the materiality of the misrepresentation made, but they measure that materiality, not by the importance the jury attaches to the matters misrepresented, but by *Page 778
the importance those engaged in the insurance business attach to them. To those not in the insurance business a bawdy house may not appear to be any more liable to burn than a dwelling, and the misrepresentation appear immaterial, but those engaged in that business may from their vast experience, have learned that there is quite a difference in the fire hazard, from that experience they have learned and know whether this misrepresentation if made, was material, and whether they regard it as material or not is determined by what they do under similar circumstances. The instructions given by the court were in the main, correct, but we cannot approve them because they submit to the jury for determination what the defendant would have done had it known the truth, whereas the question that should have been submitted was: If it had known the truth, what would the defendant have done, acting reasonably and naturally in accordance with the practice usual among fire insurance companies?
This case was tried before the publication of this court's opinion in the case of Modern Woodmen of America v. Shields,202 Ky. 795, 261 S.W. 594. The same error was made by the trial court in that case, and if the trial court in this case had had an opportunity to see the opinion in the Shields case, it would not have made the error it did.
Upon a retrial of this case, the court will modify the instructions given so as to comply with the rule in the Shields case, and will further modify them so that, if plaintiff is entitled to recover, he can recover for the damages done by the fire and the efforts to extinguish the fire.
The judgment is reversed and the cause remanded for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3996292/ | Appellant was found guilty by a jury of the crime of having intoxicating liquor in his possession, and from judgment and sentence upon the verdict, this appeal is taken. *Page 287
On the 14th day of October, 1923, three deputy sheriffs called at the home of appellant, near Tekoa, Washington, and searched his buildings and premises. They found some empty barrels and jugs in the cellar containing the smell of liquor. In a field near the home they found a barrel containing liquor buried in the ground. At the time the barrel was being removed, one of the deputy sheriffs remarked that "The barrel feels like it is empty." The appellant replied: "Yes, you are too late this time, boys." Soon after the barrel was removed, the appellant tried to empty the liquor upon the ground, but a portion was saved, introduced into evidence, and shown to contain fifty-two per cent alcohol.
Appellant claims that the court erred in giving certain instructions to the jury. The record fails to disclose, however, that appellant excepted to the instructions given by the court, and these instructions will therefore not be reviewed. An error must be called to the attention of the trial court and an opportunity given to correct the error. State v. Engstrom,86 Wn. 499, 150 P. 1173; State v. Macleod, 78 Wn. 175,138 P. 648; State v. Neis, 74 Wn. 280, 133 P. 444; State v.Andrews, 71 Wn. 181, 127 P. 1102; State v. Peeples,71 Wn. 451, 129 P. 108.
It is also the contention of the appellant that this barrel in question had been placed there by his enemies in order to bring about his arrest and punishment. This theory was supported by the testimony of appellant and two other witnesses. The jury by their verdict evidently found against this contention, and the truth of this defense was a question for the jury.
It is claimed that the testimony fails to connect appellant with the possession of the liquor further than to show that this barrel was buried upon his premises, *Page 288
and under the rule laid down in State v. Aplin, 128 Wn. 36,221 P. 989, the evidence is insufficient to support the conviction.
Appellant was the owner of the premises, was residing in the house near where the liquor was found, empty barrels and kegs having the smell of liquor were found in his house, and at the time the barrel of liquor was discovered, appellant made a statement that might tend to lead the jury to believe that he had knowledge of the amount of liquor contained in the barrel, and thereafter endeavored to empty its contents. We are satisfied that the facts were sufficient to take the case to the jury, and this being true, we should not disturb the verdict upon the facts. State v. Smith, 95 Wn. 271, 163 P. 759; State v.Newall, 86 Wn. 75, 149 P. 324; State v. Pacific AmericanFisheries, 73 Wn. 37, 131 P. 452.
The case of State v. Aplin, supra, claimed by appellant to be similar to this case, in our judgment, is not supported when an investigation is made of that case. In that case the owner of the property had leased it to a Mrs. Wright, who occupied it with her family as her home, and Alpin was rooming and boarding with Mrs. Wright. The liquor was found under the chicken house and Aplin denied knowledge of it. There was nothing to indicate that he had knowledge of the presence of the liquor and he was not in charge of the premises. While in this case appellant was the owner and in charge of the premises, and the other facts and circumstances tend to connect him with the possession of the liquor.
The judgment will be affirmed.
MAIN, C.J., BRIDGES, TOLMAN, and MITCHELL, JJ., concur. *Page 289 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3110874/ | 02-12-267-CV
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00267-CV
In re Kelly Media Group, Inc. and Jason Cardiff
RELATORS
------------
ORIGINAL PROCEEDING
------------
MEMORANDUM
OPINION[1]
------------
The
court has considered relators’ petition for writ of mandamus and is of the
opinion that relief should be denied. Accordingly, relators’ petition for writ
of mandamus is denied.
This
court’s stay order issued July 3, 2012, is hereby lifted.
PER CURIAM
PANEL:
GABRIEL, WALKER, and MEIER, JJ.
DELIVERED:
July 20, 2012
[1]See
Tex. R. App. P. 47.4, 52.8(d). | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3814837/ | George F. Dusbabek and wife appeal to this court from the judgment of the district court of Garfield county, Okla., granting an interlocutory, and later, a permanent mandatory injunction to them to restore to certain real estate certain attachments taken therefrom. The action of the district court was taken in response to an application filed by the Local Building Loan Association, a corporation, plaintiff in a foreclosure action wherein the Dusbabeks were defendants.
A statement of the course of the lawsuit will aid in understanding the controversy and issues. The association instituted an action against Dusbabeks et al. to foreclose a mortgage upon certain residence real estate in Enid. During the pendency of the action a receiver for the property was appointed, who took charge thereof. Judgment was rendered in the action establishing the mortgage lien and ordering a sale of the property in the manner prescribed by law. Dusbabek thereafter applied to a judge of the court for the discharge of the receiver, fraudulently representing to the judge that he was arranging to refinance the mortgage debt, and that it was necessary for him to be in possession of the property to accomplish this plan. The judge entered such an order, and in August, 1935, Dusbabek got possession of the real estate. August 27, 1935, the property was sold by the sheriff and the association, as judgment creditor, purchased. Dusbabek made objection to the confirmation of the sale, and when the same was denied he made and preserved a record for an appeal. However, on Sunday, September 22, 1935, Dusbabek detached from the real estate the following: The sliding doors from the garage, a kitchen sink and the faucets and traps thereon, the electric light fixtures from the living room, dining room, and front porch, a stove, lavatory, hot water heater and pipes attached from the bathroom, and a hot air furnace and control chains from the basement (which was, attached to the various rooms of the house by hot air vents); and moved these attachments to an adjoining county. The association learned of this, and on September 26, 1935, filed its verified application setting forth these facts and asking for injunctive relief. The court entered instanter a temporary injunction, mandatory in nature, and set the same for hearing at a later date. When notice of this application and order had been served on Dusbabek, they moved to quash and when this was denied, they demurred, and when the demurrer was overruled, they responded to the application. At the hearing, Dusbabek admitted detaching these attachments and taking them to another county, and said he did so on his own volition, but that his defense to the order of the court was on advice of counsel. The trial judge found that all of said attachments, except the stove taken from the bathroom, were permanent additions to the real estate and integral parts thereof, and further *Page 593
found that they were yet in Dusbabek's possession and could be restored to the premises; and ordered Dusbabek to restore them at his own cost. The trial judge premised his action upon the facts developed at the hearing and in consideration (1) of Dusbabek's insolvency; and 2d the lack of an adequate, plain, and speedy remedy at law for the association.
The Dusbabeks raised several contentions, but in our opinion they may be grouped and discussed in two groups.
The first group will cover the contentions relating to the power of the district court over the Dusbabeks in view of the fact that it is plain that the district court had exhausted the relief it was authorized to grant in the foreclosure action pending before it. The Dusbabeks say that this power was exhausted and they had taken up their residence in another county, and that they could only be brought to bar again by a new action in the county of their residence.
In the logical sequence of a foreclosure action the last thing to be done is to place the purchaser in the possession of the property. A general real estate mortgage covers the real estate described, which necessarily includes attachments of the character and status of those herein involved. The judgment establishing the lien and the sale thereunder likewise cover the same property, in the absence of adjudicated exceptions. Therefore the purchaser at a judicial sale buys what the mortgage covered, no more or less, unless specified. Therefore, the association, as the purchaser, was entitled to be put in possession of the property which was sold and confirmed to it. This is done by a writ of assistance. For a discussion of this ancient writ, see 5 C. J. 1315, 42 C. J. 272, and 19 Rawle C. L. 637, sec. 454. This court said In Richmond v. Robertson,50 Okla. 635, 151 P. 203:
"This right has been exercised by courts of chancery in England since the reign of James I and followed in this country for so long a period that such practice has become the settled law of the land, and the doctrine is upheld upon the theory that the power to apply a remedy is coextensive with the jurisdiction of the subject-matter. It would be absurd to say that a court with equity powers, having exclusive authority to foreclose the equity of redemption of a mortgage, to call all the interested parties before it, and to decree a sale of the mortgaged property, does not have the power to put the purchaser in possession against one of the very parties to the suit."
As a necessary corollary, the district courts of this state do not lose jurisdiction of the parties to a foreclosure action, nor of its power to enter binding orders and decrees on them relating to the relief involved in the action until it has placed the purchaser at the judicial sale in possession; and it necessarily follows that any party to the action may be brought before the court, upon written notice not rising to the dignity of a summons, irrespective of removal from the county of venue and irrespective of time, for a hearing relating to some step to be taken by the court necessary to the completion of the relief awarded. There is no merit in this group of contentions.
The second group of contentions deny the power of the court to grant the injunction, first, upon general principles, and, second, upon the ground that there existed a plain, speedy, and adequate remedy at law. Our discussion of these contentions will cover both of these grounds at the same time.
It would serve no useful purpose to undertake an academic discussion of the injunctive power of courts of equity. It is generally recognized that an injunction may be either preventative (prohibitory), to restrain the commission or the continuance of an act; or mandatory, to require the doing or undoing of an act. See 14 Rawle C. L. 305, sec. 2. It is this last phase of injunctive relief with which we are to deal. Because of the drastic nature of the command, and largely out of consideration of the vexation attendant upon the enforcement thereof, the courts are less likely to exercise their sound discretion in favor of granting mandatory injunctions than they are in relation to preventive injunctions. It is with these considerations in mind that we approach the determination of this matter. The modern rule is well stated in the case of Fredericks v. Huber, 180 Pa. 572, 37 A. 90, as follows:
"Equity regards the substance rather than the form of things, and will not allow itself to be baffled by a wrongful change while its aid is being invoked. The modern cases, therefore, have established the rule that the status quo which will be preserved by preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy, and equity will not permit a wrongdoer to shelter himself behind a suddenly or secretly changed status, though he succeeded in making the change before the chancellor's hand actually reached him. The doctrine is not new — only its application in practice to meet the efforts of those who endeavor to be swifter than justice and the law."
This court has had occasion to discuss the *Page 594
principles which cause a court of equity to issue injunctive relief, mandatory in nature. In Woodruff v. Wallace,3 Okla. 355, 41 P. 357, we said:
" 'An injunction for possession is not a new thing in a court of equity. It has long been used in England; it is directed in certain cases by the aforesaid act of assembly, and it would disgrace our laws and administration of justice if, after title to land has been established by the adjudication of a court, there could be no way of obtaining possession but after obtaining judgment in ejectmcnt. * * *' " (High on Injunctions, sec. 360.)
" 'And it is said by an eminent jurist that: "Courts of equity also interfere and effectuate their own decrees in many cases by injunctions, in the nature of a judicial writ or execution, for the possession of the property in controversy; as, for example, by injunctions to yield up, deliver, quiet, or continue the possession. Indeed, they have been distinctly traced black to the reigns of Elizabeth, and Edward the Sixth, and even to Henry the Eighth. In some respects they bear an analogy to sequestrations'." * * * (2 Story's Eq., sec. 959.)"
And in the case of Sproat v. Durland, 2 Okla. 24, 35 P. 682, we quoted from High on Injunctions, as follows:
"A writ of injunction may be said to be a process capable of more modifications than any other in law; it is so malleable that it may be moulded to suit the various circumstances and occasions presented to a court of equity. It is an instrument in its hands capable of various applications, for the purpose of dispensing complete justice between the parties. It may be special, preliminary, temporary, or perpetual; and it may be dissolved, reviewed, continued, extended or contracted. In short, it is adapted and used by courts of equity as a process for preventing wrong between and preserving the rights of the parties before them."
The use of mandatory injunctions is recognized in several instances of specific equitable relief. They are proper in aid of writs of assistance. 42 C. J. 273, sec. 1934. In fact, a writ of assistance is essentially a mandatory injunction, since its effect is to bring about a change in the possession of real estate — it dispossesses the occupant and gives possession to one adjudged entitled thereto by the court. It is often used to place a receiver in possession of property over which he is given charge. Severns v. English, 19 Okla. 567, 101 Rawle 750, and authorities cited therein. It is used in many instances in controversies over the possession of real estate. 32 A. L. R. 894, and cases therein annotated.
In Territorial days, when the government of the United States threw open to settlement the lands in certain portions of what is now Oklahoma, many controversies arose over tracts of this land which were claimed by more than one settler. When these adverse claims had been passed upon by the land office of the federal government and one of the claimants had been given a proper certificate of entry, the Territorial Supreme Court sanctioned the issuance of mandatory injunctions in favor of successful claimants to oust the unsuccessful claimants from possession. This was done although it was recognized that the successful claimants had plain, speedy, and adequate remedies at law. Sproat v. Durland, supra, Woodruff v. Wallace, supra, Barnes v. Newton, 5 Okla. 428, 48 P. 190, and other cases. Later on, the scope of cases in which this relief was proper was limited, but this was upon considerations other than the lack of power of the court to act.
No case was cited to us analogous to the one under consideration, and we have found only one in which the question of mandatory injunctive relief was involved — Verner v. Betz,46 N.J. Eq. 256, 19 A. 206, 7 L. R. A. 630, 19 Am. St. Rep. 387. In that case the mortgagor moved from the real estate the dwelling house located thereon when the mortgage was executed; placed the house on another lot, and then sold it to a third person who claimed to be an innocent purchaser. Upon trial the trial court ordered the house restored to the mortgaged realty or the assumption of a portion of the mortgage debt by the third person. Upon appeal this was reversed, and although the appellate court discussed the power of trial courts to issue mandatory injunctions in such cases, and the propriety thereof, it nevertheless set aside the judgment more out of consideration for the rights of the purchaser than anything else.
There are numerous cases similar to the one under consideration found under the head of waste committed on mortgaged premises. In some of those cases equitable relief was sought by receivership, or by seizure of the property as personalty where found and the extension of the lien thereon. In the vast majority of such cases, however, the complaining parties pursued a legal remedy only, seeking either to seize the property removed or to recover a money judgment for the damage sustained.
Upon the issue of whether the association had a plain, speedy, and adequate remedy at law, we are of the opinion that it had not such a remedy. We will concede that its *Page 595
legal remedy was plain. But at the same time we must recognize the willful disposition of Dusbabek to thwart the association, and to disregard and evade the lawful orders of a court of this state. Under such circumstances no remedy strictly in rem would be adequate, even if it were speedy. Nothing short of a summary and drastic action by a court of equity authorized to act in personam would be adequate.
Therefore, upon full consideration of the principles which guide courts of equity in the exercise of their discretion in such matters, and especially in view of the willfully fraudulent conduct of Dusbabek, we are of the opinion that the trial court arrived at a correct decision in this matter, and did not abuse its discretion.
The judgment of the trial court is affirmed.
McNEILL, C. J., and WELCH, CORN, and GIBSON, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3814838/ | This action was commenced by the defendants in error against the plaintiff in error to recover the sum of $600, alleged to be due to the defendants in error by reason of the failure of the plaintiff in error to pay a lumber bill due by the defendants in error to a lumber company, and which defendants in error alleged was a part of the consideration for the sale by the defendants in error of certain real estate to the plaintiff in error. The parties will hereinafter be refrred to as plaintiffs and defendant, as they appeared in the trial court.
The defendant complains of the action of the trial court in overruling a demurrer to the petition and in overruling a motion for a directed verdict, and in admitting certain testimony. All of these assignments of error present for consideration the same question and will be disposed of together.
It was alleged by the plaintiffs, and proof was introduced tending to support the same, that the plaintiffs were indebted to the defendant and agreed to execute to the defendant a deed to certain lands belonging to the plaintiffs, and that as a part of the consideration it was agreed that the defendant would pay to the Stephenson-Browne Lumber Company, a corporation, the sum of $600 which was then due and owing by the plaintiffs to the lumber company; that plaintiffs refused to execute the deed unless the defendant would deliver a check to the lumber company for the said sum of $600, which was evidenced by a note of the plaintiffs; that the defendant advised the plaintiffs that instead of delivering the check at that time it would deliver to the plaintiffs a written statement whereby the defendant would bind itself to pay the lumber company the sum of $600, and that under such agreement the defendant executed and delivered to plaintiffs a written agreement, which written agreement was in the following language:
"Know all men by these presents, That whereas Lottie L. McGrew find J.E. McGrew have this day conveyed by warranty deed to the Lindsay State Bank the following land, to wit: (land described) and all improvements for the sum of $3,800, and assumption of $1,200 to Clement Mortgage Company, and any other valid lien superior to the lien heretofore had against said land. Dated this 17th day of November, 1920.
"Lindsay State Bank.
"By J. Fitch, Act Cashier."
That at the time the instrument was delivered, the plaintiffs believed that the statement contained the agreement which was made, that is, that the bank bound itself to pay the lumber company the sum of $600, and that the cashier of the bank represented to the plaintiffs that the statement was sufficient to bind the defendant to make such payment, and that, relying upon such representations, the plaintiffs executed and delivered the deed; that the agreement failed to specifically provide that the bank would pay the $600 due the lumber company, and, contrary to the agree ment, the defendant prepared the written statement so as to provide for the payment of all valid liens against the land; that the plaintiffs believed at the said time that there was a lien on the land and that the agreement of the defendant bound it to pay the lumber company the sum due it.
It is contended by the defendant that the deed and the written statement signed by the bank showed the agreement made between the parties and that this agreement cannot be varied or modified by parol evidence.
It is well settled that the execution of a contract in writing supersedes all the oral negotiations or stipulations concerning its terms and subject-matter which proceeded or accompanied the execution of the instrument, in the absence of accident, fraud, or mistake of fact; and any representation made prior to or contemporaneous with the execution of the written contract is inadmissible to contradict, change, or add to the terms plainly incorporated into and made a part of the written contract.
In the instant case, the instrument which we have set out above was not a contract between the parties, but amounted to nothing more than a written statement by the bank as to the agreement which had been *Page 76
made, and as such was evidence of the agreement, and there was nothing to prevent the oral evidence from being introduced to show what the actual agreement was as to the consideration for the execution of the deed. In Tayiah v. Bunnell, 77 Okla. 40,186 P. 240, this court said:
"The consideration clause in a deed of conveyance is conclusive for the purpose of giving effect to the operative words of the deed, but for very other purpose it is open to explanation by parol proof, and is prima facie evidence only of the amount, kind, and receipt of the consideration."
It was therefore proper to admit the evidence to show what the actual consideration for the execution of the deed was, and we are of the opinion that the trial court did not err in overruling the demurrer to the petition or in refusing to direct a verdict for the defendant, or in the admission of the evidence.
The judgment of the trial court is affirmed.
JOHNSON, C. J. and KENNAMER, NICHOLSON, BRANSON, HARRISON, and MASON, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3063056/ | [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. 09-14848 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00279-CR-CAP-38-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL MAGANA-SAGRERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 26, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Manuel Magana-Sagrero appeals his conviction for conspiracy to possess
with intent to distribute at least 5 kilograms of cocaine. 21 U.S.C. §§
841(b)(1)(A)(ii), 846. Magana-Sagrero also was convicted of possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), being
an alien in unlawful possession of a firearm, id. §§ 922(g)(5), 924(a)(2), and
conspiracy to launder money, id. § 1956, but he does not challenge these
convictions. Magana-Sagrero argues for the first time on appeal that the evidence
is insufficient to support his conviction for conspiracy. We affirm.
When a defendant fails to move for a judgment of acquittal, “‘we may
reverse the conviction only to prevent a manifest miscarriage of justice.’” United
States v. Tagg, 572 F.3d 1320, 1323 (11th Cir. 2009) (quoting United States v.
Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)). To satisfy this standard, we must
“find that the evidence on a key element of the offense is so tenuous that a
conviction would be shocking.” Id. (quoting Bender). Magana-Sagrero cannot
satisfy this standard.
To establish that Magana-Sagrero was guilty, the government was required
to “prove beyond a reasonable doubt that: 1) an illegal agreement existed to
possess with the intent to distribute cocaine; 2) [Magana-Sagrero] knew of this
agreement; and 3) [Magana-Sagrero] knowingly and voluntarily joined the
agreement.” United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002).
2
Magana-Sagrero argues that the government proved he was “involved with the
[drug] proceeds” but failed to establish that he possessed cocaine with intent to
distribute. We disagree.
The government introduced ample evidence from which a jury could have
found that Magana-Sagrero conspired to possess with intent to distribute cocaine.
The evidence established that Magana-Sagrero knew of the conspiracy and made
deliveries of cash and drugs on behalf of the drug organization. In 1991 and 1997,
Magana-Sagrero was convicted of the “possession or purchase for sale of
narcotics.” Later, agents of the Drug Enforcement Agency discovered that
Magana-Sagrero worked for Jose Tapia-Corneso, also known as “Tigre,” who was
a mid-level distributor in a large-scale drug organization. On at least five
occasions, Magana-Sagrero delivered for Tigre suitcases that contained between
$150,000 and $500,000. In October 2007, an agent observed an unidentified
Hispanic man, who was driving a gold Nissan Sentra, arrive at a residence in
Fairburn, Georgia, ostensibly to deliver cocaine to a confidential informant. The
Hispanic man walked into and left the residence in a manner that suggested he was
carrying a package. On November 20, 2007, another agent observed the same gold
Nissan Sentra arrive at a residence on Harbin’s Ridge Way in Lawrenceville,
Georgia, ostensibly to collect 20 kilograms of cocaine from another member of the
3
conspiracy who drove a red Ford Sport Truck. After the truck left the residence,
agents followed the Nissan Sentra to a car wash, where an agent was able to
identify the driver as Magana-Sagrero. Agents recorded telephone conversations
between Angel Haro Perez, a leader of the drug conspiracy, and Tigre about the
timing of the delivery and receipt of cocaine at the Harbin’s Ridge residence, and
agents later seized a ledger stating that Tigre received 20 kilograms of cocaine on
November 20, 2007.
Physical evidence also tied Magana-Sagrero to the conspiracy. In December
2007, agents searched the Harbin’s Ridge residence and discovered a table and
knife with white residue and drug-processing equipment, including devices used to
press and package cocaine. Agents installed a global positioning device on the
gold Nissan Sentra and tracked the vehicle to a home on Luther Way in
Lawrenceville, Georgia, where Magana-Sagrero answered the door and consented
to a search of the residence. Agents discovered on the property two firearms, two
ledgers, a lease in Magana-Sagrero’s name for a residence on Clinton Place in
Lawrenceville, two receipts for rent for the residence on Clinton Place, a garage
door opener for that residence, and four cellular telephones. One of the cellular
telephones listed the name “Tigre” in its contacts list and ascribed to that name a
number that Tigre had used in his conversations with Perez. Agents later obtained
4
a warrant to search the residence on Clinton Place and discovered devices used to
package cocaine, cellophane wrap, a digital scale, latex gloves, and colored
sheathes to affix to keys to identify locations by color instead of by address.
Magana-Sagrero has not established that upholding his conviction would
result in a miscarriage of justice. Reasonable jurors have found that Magana-
Sagrero joined the conspiracy. We affirm Magana-Sagrero’s conviction for
conspiracy to possess with intent to distribute at least 5 kilograms of cocaine.
Magana-Sagrero’s conviction is AFFIRMED.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063057/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14064 ELEVENTH CIRCUIT
MARCH 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00053-CR-T-26-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARIA BARRIOS-IPUANA,
a.k.a. Chema Bala,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 26, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Jose Maria Barrios-Ipuana (“Barrios-Ipuana”) appeals from his 240-month
concurrent sentences for (1) conspiracy to distribute and to possess with intent to
distribute 5 kilograms or more of cocaine on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a),
21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 3238; (2) aiding and abetting the
possession with intent to distribute 5 kilograms or more of cocaine on board a
vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§
70503(a), 70506(a), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 3238; and (3)
conspiracy to distribute 5 kilograms or more of cocaine into the United States, in
violation of 21 U.S.C. §§ 960(b)(1)(B)(ii), 963, and 18 U.S.C. § 3238. On appeal,
Barrios-Ipuana argues that his sentences are procedurally and substantively
unreasonable. After thorough review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)). In reviewing sentences for reasonableness, we perform two steps.
Pugh, 515 F.3d at 1190. First, we must “‘ensure that the district court committed
no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence -- including an
2
explanation for any deviation from the Guidelines range.’” Id. (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)).1 The district court is not required to
discuss each § 3553(a) factor. United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005). Rather, “[t]he sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.” Rita, 551 U.S. at
356. Nonetheless, when a judge decides simply to apply the Guidelines to a
particular case, such as the case is here,
doing so will not necessarily require lengthy explanation.
Circumstances may well make clear that the judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence is
a proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge has found that the
case before him is typical.
Id. at 356-57.
If we conclude that the district court did not procedurally err, we must
consider the “‘substantive reasonableness of the sentence imposed under an abuse-
of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
3
F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring
us to determine “whether the sentence imposed by the district court fails to achieve
the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788.
There is a “range of reasonable sentences from which the district court may
choose,” and the burden is on the defendant to show that the sentence was
unreasonable in light of the record and the § 3553(a) factors. Id. While a sentence
within the guideline range is not per se reasonable, we ordinarily expect such a
sentence to be reasonable. Id.
“The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court, and we will not substitute our judgment
in weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832
(11th Cir. 2007) (internal quotation and brackets omitted). We will remand for
resentencing only if we are “left with the definite and firm conviction that the
district court 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.” Pugh, 515 F.3d at 1191 (citation and internal quotation
omitted).
In the context of binding Guidelines, we have said that “the fact a
defendant’s status as an alien renders him ineligible to serve any part of his
4
sentence in a halfway house [or minimum security facility] does not justify a
downward departure.” United States v. Maung, 320 F.3d 1305, 1308 (11th Cir.
2003); United States v. Veloza, 83 F.3d 380, 382 (11th Cir. 1996), overruled on
other grounds by United States v. Campbell, 181 F.3d 1263, 1264 (11th Cir. 1999).
In Maung we noted that we were not aware of any case in which we have “upheld a
downward departure based upon collateral consequences related directly or
indirectly to the defendant’s status as an alien.” See Maung, 320 F.3d at 1308.
Here, the district court did not procedurally err by failing to consider his
argument with respect to the need to avoid unwarranted sentencing disparities and
by failing to adequately explain its sentence. As the record shows, the court
indicated that it had read Barrios-Ipuana’s sentencing memorandum, which
contained the sentencing disparity argument, listened to his argument at
sentencing, and recognized that “the need to avoid unwarranted sentence
disparities between Defendants with similar records who have been found guilty of
similar conduct” was a factor it needed to consider. The court then found that
“[t]aking into account everything, including his age, in my judgment . . . a sentence
of 20 years, 240 months, is more than a reasonable sentence.” The record,
therefore, indicates that the court listened to and considered Barrios-Ipuana’s
5
argument regarding sentencing disparities, and simply found his argument
insufficient to warrant a downward variance. See Rita, 551 U.S. at 356-58.
Moreover, all that is required is that the court set forth enough to show that it
considered the parties’ arguments and had a reasoned basis for its sentence. See id.
at 356. The district court found that this was a crime of great magnitude given the
massive amount of drugs involved, it found that Barrios-Ipuana did not present
unique circumstances in terms of the other defendants from Colombia who had
appeared before it, and it was primarily concerned with promoting respect for the
law, providing just punishment, and deterring others from criminal conduct. The
court also stated that the sentence was reasonable and sufficient, but not greater
than necessary, to comply with the statutory purposes of sentencing. Because the
court determined that Barrios-Ipuana’s case was typical and sentenced him within
the guideline range, a lengthier explanation was not necessary. Id. at 356-57.
Barrios-Ipuana’s sentence also is substantively reasonable. Barrios-Ipuana
has not shown that the court committed a clear error in judgment in weighing the §
3553(a) factors by arriving at a sentence that lies outside the range of reasonable
sentences given the facts of his case. See Pugh, 515 F.3d at 1191. Indeed, the
court determined that Barrios-Ipuana’s history and characteristics were not unique
compared to other defendants from Colombia who appeared before it. In addition,
6
the court took into account the need to avoid unwarranted sentence disparities, but
found that this factor actually cut against Barrios-Ipuana. Moreover, given our
precedent regarding departures based upon collateral consequences related to a
defendant’s alien status, the court did not commit a clear error in judgment in
failing to give this factor more weight than it did, nor would it have been an abuse
of discretion if the court chose to give this factor no weight. See Maung, 320 F.3d
at 1308. In short, based on the amount of drugs involved in this case and Barrios-
Ipuana’s admitted aggravated role, a within-range sentence of 240 months’
imprisonment was not outside the range of reasonable sentences.2
Accordingly, we affirm his sentences.
AFFIRMED.
2
With respect to the argument in Barrios-Ipuana’s reply brief that the offense facts in the
PSI, as repeated in the government’s brief, were unfair and overrepresented his role, he did not make
this argument in his initial brief and, therefore, has waived the issue. United States v. Curtis, 380
F.3d 1308, 1310 (11th Cir. 2004). In any case, Barrios-Ipuana waived all factual objections at
sentencing, even after the government made an equally aggressive factual argument.
7 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3236374/ | Petition of Ray Sanders for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Sanders v. State (Ala.App.) 114 So. 130. Writ denied.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and BROWN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2986116/ | August 27, 2013
JUDGMENT
The Fourteenth Court of Appeals
IN THE INTEREST OF J.J.J., M.J.J., AND M.J.J., CHILDREN
NO. 14-13-00429-CV
________________________________
This cause, an appeal from a judgment terminating parental rights signed
April 12, 2013, was heard on the transcript of the record. We have inspected the
record and find no error in the judgment. We order the judgment of the court below
AFFIRMED.
We further order this decision certified below for observance.
We further order the mandate be issued immediately. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/131198/ | 540 U.S. 806
SOUTH FLORIDA WATER MANAGEMENT DISTRICTv.MICCOSUKEE TRIBE OF INDIANS ET AL.
No. 02-626.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 11th Cir. [Certiorari granted, 539 U. S. 957.]
2
Motion of National Hydropower Association for leave to file a brief as amicus curiae granted. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/131203/ | 540 U.S. 806
JONES ET AL., ON BEHALF OF HERSELF AND A CLASS OF OTHERS SIMILARLY SITUATEDv.R. R. DONNELLEY & SONS CO.
No. 02-1205.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 7th Cir. [Certiorari granted, 538 U. S. 1030.]
2
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/131216/ | 540 U.S. 808
HARRISv.SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN'S SERVICES.
No. 02-10471.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the Ct. App. Cal., 4th App. Dist.
2
Motions of petitioners for leave to proceed in forma pauperis denied. Petitioners are allowed until October 27, 2003, within which to pay the docketing fee required by Rule 38(a) and to submit petitions in compliance with Rule 33.1 of the Rules of this Court. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3228343/ | From a final order of the Judge of the Circuit Court of Montgomery County, denying the petition of Louis Pike for a writ of habeas corpus, this appeal is taken.
The facts in this case are substantially the same as in Pinkerton v. State, 29 Ala. App. 472, 198 So. 157.
This appellant, at the time his parole was revoked by the Board of Pardons and Paroles, had already served his full sentence under the law. Part of that sentence had been endured within and a part outside of prison walls under parole, but the sum total of that servitude equalled that fixed by the original sentence. Consequently, he was not under the jurisdiction or supervision of the Board of Pardons and Paroles, and the purported revocation of his parole and his rearrest were without legal warrant.
Upon authority of the Pinkerton case, supra, the appellant is ordered discharged and the cause is reversed and rendered.
Reversed and rendered. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2854974/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-165-CR
DAVID LEE SWAIM, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
------------
OPINION ON APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
------------
Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our
March 13, 2008 opinion and judgment and substitute the following. Tex. R.
App. P. 50.
A jury convicted Appellant David Lee Swaim, Jr. of murder and assessed
his punishment at life imprisonment. In two points, Swaim argues that the trial
court committed harmful error by failing to include a jury charge instruction on
sudden passion and that his trial counsel was ineffective for failing to request
an instruction on sudden passion. We will affirm.
Early in the morning on August 16, 2005, Joshua Hall knocked on
Swaim’s door looking for someone to drink and socialize with. They had never
met before, but Swaim let Hall enter his residence. Both had consumed alcohol
during the day, and both either were or soon became intoxicated. Sometime
later, an altercation occurred, and Swaim stabbed Hall nine times, killing him.
In his first point, Swaim argues that the trial court reversibly erred by
failing to include a sudden passion instruction in its charge to the jury because
there was evidence of a heated, verbal exchange between Swaim and Hall.
At the punishment stage of a murder trial, the defendant may raise the
issue of whether he caused the death under the immediate influence of sudden
passion arising from an adequate cause. Tex. Penal Code Ann. § 19.02(d)
(Vernon 2003). If the defendant proves the issue in the affirmative by a
preponderance of the evidence, the offense is a felony of the second degree.
Id.
In Trevino v. State, the court of criminal appeals clarified that sudden
passion is a “punishment issue” and that “a sudden passion charge should be
given if there is some evidence to support it, even if that evidence is weak,
impeached, contradicted, or unbelievable.” 100 S.W.3d 232, 238 (Tex. Crim.
2
Ohio App. 2003). The court clearly pointed out, however, that Trevino had
“requested the judge to instruct the jury pursuant to Penal Code Section
19.02(d),” but “[t]he judge rejected the proposed charge.” Id. at 236. Trevino
therefore addressed the propriety of giving an instruction on sudden passion at
punishment when such an instruction has been requested by the defendant; it
did not address the issue of whether a trial court is required to include an
instruction on sudden passion at punishment when there is no request for such
an instruction by a defendant who claims some evidence exists to support the
instruction. See id.; Fair v. State, No. 03-05-00348-CR, 2006 WL 2032489,
at *3 (Tex. App.—Austin July 21, 2006, pet. ref’d) (mem. op., not designated
for publication) (citing Trevino and stating in parenthetical that “assuming
defendant requests charge, charge must be given if ‘evidence raises the issue’”
(emphasis added)). In this case, Swaim did not assert an objection to the
absence of a sudden passion instruction nor did he request that the instruction
be included in the charge. Consequently, neither Trevino nor the other case law
cited by Swaim supports his argument that the trial court was required to sua
sponte include a sudden passion instruction in its charge to the jury. 1 See
1
In his brief to this court, Swaim cites Mims v. State, 3 S.W.3d 923,
928 (Tex. Crim. App. 1999), for the holding that “if raised by the evidence, the
sudden passion issue should be submitted in the punishment phase of an
attempted murder prosecution.” Like Trevino, Mims is inapposite.
3
Trevino, 100 S.W.3d at 236–38; Fair, 2006 WL 2032489, at *3 (“For sudden
passion mitigation to apply, the defendant at the punishment phase must
(i) raise the issue as to whether he caused the death under the immediate
influence of sudden passion arising from adequate cause and (ii) prove the issue
in the affirmative by a preponderance of the evidence.” (emphasis added)).
Recognizing that he did not request a sudden passion instruction, Swaim
argues in his petition for discretionary review that “[t]here are certain issues
upon which a trial court has the duty to instruct the jury without an objection
or request from either party.” 2 [Emphasis added.] Swaim cites Huizar v. State,
12 S.W.3d 479, 483–485 (Tex. Crim. App. 2000) (op. on reh’g), for the
proposition that a “jury must be instructed at punishment that extraneous
offenses must be proved beyond [a] reasonable doubt” and Tubert v. State,
875 S.W.2d 323 (Tex. Crim. App. 1994), for the proposition that it is “error to
omit [a] sentencing option that would allow [the] jury to send [the] defendant
to [a] community correctional facility rather than prison.” Swaim also cites
code of criminal procedure article 36.14, which “places the legal duty and
responsibility on the trial judge to prepare for a jury a proper and correct charge
on the law.” (quoting Doyle v. State, 631 S.W.2d 732, 738 (Tex. Crim. App.
2
Swaim did not assert this argument on appeal.
4
(1980)). Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Swaim then
concludes that “[t]he trial judge therefore had the responsibility of instructing
the jury on the proper range of punishment in light of the evidence of sudden
passion.” Neither Huizar, nor Tubert, nor any other court of criminal appeals
case that we have located, nor article 36.14 hold or require that a trial court
must include an instruction at punishment on sudden passion in the absence of
a request by the defendant. Accordingly, we overrule Swaim’s first point.
Although Swaim’s second point in his brief to this court states that his
trial counsel “was ineffective for not presenting mitigating evidence during the
sentencing phase,” his argument under the point is that his trial counsel was
ineffective for failing to request an instruction on sudden passion.
To establish ineffective assistance of counsel, the appellant must show
by a preponderance of the evidence that his counsel’s representation fell below
the standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v.
State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
5
The following witnesses testified on Swaim’s behalf at punishment: Hal
Farmer, Swaim’s friend; Jesse Carreon, Swaim’s friend and the father of
Swaim’s boss; Douglas Swaim, Swaim’s cousin; Don Christian, a probation
supervisor; Scott Allen Tony, Swaim’s brother-in-law; Denise Tony, Swaim’s
sister; and Barbara Swaim, Swaim’s mother. With the exception of Christian,
who explained the probation process to the jury, Swaim’s witnesses recounted
and opined that Swaim was not a violent person, either when sober or
intoxicated, and that they were surprised or shocked to learn that he had been
charged with murder. Swaim argues that this evidence called for an instruction
on sudden passion. But none of the evidence “raise[d] the issue as to whether
[Swaim] caused [Hall’s] death under the immediate influence of sudden passion
arising from an adequate cause.” See Tex. Penal Code Ann. § 19.02(d) (stating
that a defendant may raise the issue as to whether he caused the death under
sudden passion), § 19.02(a)(1) (providing “adequate cause” means cause that
would commonly produce a degree of anger, rage, resentment, or terror in a
person of ordinary temper, sufficient to render the mind incapable of cool
reflection), § 19.02(a)(2) (providing “sudden passion” means passion directly
caused by and arising out of provocation by the individual killed or another
acting with the person killed which passion arises at the time of the offense and
6
is not solely the result of former provocation). The evidence that Swaim directs
us to merely detailed his nonviolent character.
In his petition for discretionary review, Swaim argues that contrary to our
analysis in the memorandum opinion issued March 13, 2008, the evidence
raised the issue of sudden passion. Swaim points to evidence that he testified
Hall said he “knew how to get ahold of” his daughter and that he was “in
complete shock” when Hall brought up his daughter and his girlfriend. Swaim
also points to the testimony of an investigator who testified that Swaim told
him Hall “began talking about [his] daughter” and that Swaim “went into a
rage.” In his brief to this court, however, Swaim did not argue that any of this
evidence—which was elicited at the guilt phase, not the punishment
phase—supported an instruction on sudden passion; instead, he relied only on
the testimony of the individuals who testified on his behalf at punishment,
which we set forth above. See Marlo v. State, 720 S.W.2d 496, 500 n.7 (Tex.
Crim. App. 1986) (declining to address argument asserted for the first time in
petition for discretionary review); Lambrecht v. State, 681 S.W.2d 614, 616
(Tex. Crim. App. 1984). Even considering this evidence along with the
evidence that Swaim relied on in his brief, Hall’s statement that he knew how
to get in touch with Swaim’s daughter is not, alone, “adequate cause” as
defined by the penal code. See Tex. Penal Code Ann. § 19.02(a)(1). The
7
evidence that Swaim argues raised the issue of sudden passion—identified in
both his brief and in his petition for discretionary review—does not rebut the
strong presumption that his trial counsel’s decision not to request an instruction
on sudden passion fell within the wide range of reasonable professional
assistance. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson,
9 S.W.3d at 814. We overrule Swaim’s second point.
Having overruled both of Swaim’s points, we affirm the trial court’s
judgment.
DIXON W. HOLMAN
JUSTICE
PANEL: DAUPHINOT and WALKER, JJ.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).
DAUPHINOT, J. filed a dissenting opinion.
WALKER, J. concurs without opinion.
PUBLISH
DELIVERED: December 17, 2009
8
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-165-CR
DAVID LEE SWAIM, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
------------
DISSENTING OPINION ON APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
------------
Sudden passion arising from an adequate cause is neither a defense nor
an affirmative defense. 1 It is an odd duck that arose from courts being faced
with the absurd conundrum of a sufficiency claim based on the fact that the
1
See Tex. Penal Code Ann. §§ 2.03, 2.04, 19.02(a), (d) (Vernon
2003).
lesser included offense of voluntary manslaughter contained an essential
element not found in the greater offense of murder. 2
Sudden passion now is actually a mitigation issue at punishment in
murder cases. The statute places the burden on the defense to prove sudden
passion by a preponderance of the evidence. 3 The Texas Court of Criminal
Appeals has addressed the trial court’s obligation to include a mitigation
instruction in the context of a capital murder trial, comparing the capital murder
mitigation issue to the sudden passion mitigation issue:
[T]he mitigation special issue for death penalty cases is
neither embedded within elements the State must prove nor is it
set up as an exception. Instead, the mitigation special issue is
framed as a stand-alone punishment mitigation issue, a
characteristic it shares with a number of punishment mitigating
factors that are clearly defensive issues, including temporary
insanity caused by intoxication, unsuccessful renunciation of an
inchoate offense, the current sudden passion issue in a murder
case, release in a safe place under both the older and newer
versions of the aggravated kidnapping statute, and mental
retardation in a death penalty case.
....
We conclude that the mitigation special issue is a defensive
issue that cannot be forfeited by inaction but can be waived, and
because it is a defensive issue, the defendant has a right to insist
upon its waiver. The trial judge in this case erred in refusing to
2
See Sanchez v. State, 275 S.W.3d 901, 907 (Tex. Crim. App. 2009)
(Keller, P.J., concurring) (citations and references omitted).
3
Tex. Penal Code Ann. § 19.02(d).
2
allow appellant to waive submission of the issue to the jury, and as
a result, erred in admitting victim-impact and victim-character
evidence that would have otherwise been excluded. 4
This holding from the Texas Court of Criminal Appeals supports
Appellant’s contention that the sudden passion mitigation issue before us
cannot be forfeited. That is, contrary to the majority’s holding in overruling
Appellant’s first point, Appellant’s failure to request a sudden passion
instruction does not negate his right to the instruction triggered by the presence
of evidence raising the issue.
I note that the majority’s holding, in overruling Appellant’s second point,
that Appellant failed to raise the issue of sudden passion by a preponderance
of the evidence, if correct, would moot the majority’s discussion of the first
point. A careful review of the record, however, shows that Appellant did
sufficiently raise the issue to be entitled to the instruction.
Although there are contradictions in the testimony, Appellant testified
that Hall came to his door at 1:14 a.m. and made a point of saying that he
knew Appellant’s girlfriend and that he knew Appellant’s daughter and “how
to get ahold of” her. Such threats, implied though they are, are the stuff
suspense thrillers are made of for a reason—they’re scary. The evidence shows
4
Williams v. State, 273 S.W.3d 200, 222, 224–25 (Tex. Crim. App.
2008) (citations omitted).
3
that after Appellant let Hall into his home, he realized that Hall was the local
drug dealer. Hall attacked Appellant from behind, and they fought. Appellant
testified that he was terrified. From the record before us, I conclude that
Appellant clearly raised the issue of sudden passion arising from adequate
cause.
The jury charge properly instructed the jury that they might consider “all
of the facts shown by the evidence admitted before [them] in the full trial of
this case.” And in deciding whether the evidence raises the issue of sudden
passion, we also must consider the entire record that was before the jury. 5 As
the Murphy court points out, if, at sentencing, the jury does not consider the
evidence admitted in the guilt phase of the trial, how can the jury make the
punishment fit the crime? 6
Following the precedent of the Texas Court of Criminal Appeals, the
sudden passion instruction “is a defensive issue that cannot be forfeited by
inaction but can be waived, and because it is a defensive issue, the defendant
5
See Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988) (op.
on reh’g) (“It is axiomatic, for example, that punishment should fit the particular
crime. Accordingly, the trial court routinely instructs the jury it may consider
all evidence admitted at the guilt phase in making its punishment
determination.”), superseded on other grounds by Tex. Code Crim. Proc. Ann.
art. 37.07, § 3(a) (Vernon Supp. 2009).
6
See Murphy, 777 S.W.2d at 63.
4
has a right to insist upon its waiver.” 7 In the case before this court, Appellant
did not affirmatively waive the instruction; the instruction was never mentioned
below.
I would hold that the evidence raised the issue of sudden passion, that
Appellant could not and did not forfeit the right to a sudden passion instruction
by his inaction, and, consequently, that the trial court was obligated to give the
instruction sua sponte. The harm that Appellant suffered is readily apparent
and egregious: the range of confinement Appellant faced as a result of the
error was five to ninety-nine years instead of two to twenty years. 8
I would sustain Appellant’s first point, not reach his second point, and
reverse and remand this case for a new trial on punishment. Because the
majority does not, I must respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: December 17, 2009
7
Williams, 273 S.W.3d at 224.
8
See Tex. Penal Code Ann. §§ 12.32(a), 12.33(a) (Vernon Supp.
2009), 19.02(c), (d).
5 | 01-03-2023 | 09-04-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1396542/ | 108 S.W.3d 213 (2003)
Tracy KESTER, now Myers, Appellant/Respondent,
v.
David Lynn KESTER, Respondent/Cross-Appellant, and
Kester Sales, Inc., Respondent/Cross-Appellant.
Nos. 24992, 24993.
Missouri Court of Appeals, Southern District, Division One.
June 30, 2003.
*216 Mark C. Fels & Gregory J. Smith, Smith & Fels, P.C., Springfield, for Appellant.
*217 F. William Joyner, Lowther Johnson, LLC, Springfield, for Respondent.
Before MONTGOMERY, P.J., GARRISON and BARNEY, JJ.
PER CURIAM.
Appellant, Tracy Kester, now Meyers ("Wife"), appeals from an amended judgment and decree of dissolution of marriage entered by the trial court. She raises one point of trial court error premised on the trial court's erroneous failure to classify as marital property the reduction on a mortgage debt paid from rental income. Respondent/Cross-Appellant, David Lynn Kester ("Husband"), raises three points of trial court error in his cross-appeal premised on the trial court's erroneous classification of certain rental incomes and tax refunds as marital property; erroneous classification of his sole property as marital property; and improper division of marital property.
During litigation, the trial court consolidated an action brought by Respondent/Cross-Appellant, Kester Sales, Inc. ("Kester Sales"), against Wife with the dissolution of marriage action and entered summary judgment against Wife in favor of Kester Sales in the amount of $24,406.37.
In its sole point on appeal, Kester Sales maintains the trial court erred in failing to award it attorney fees against Wife because it was intended by the parties' antenuptial agreement that Kester Sales was a third-party beneficiary of the agreement and was entitled to enforce the agreement's attorney fee provisions against Wife.
Husband and Wife married on May 6, 1995, in Taney County, Missouri. The parties entered into an antenuptial agreement in which they agreed that certain individual assets held prior to their contemplated marriage would remain separate property. The agreement also directed how new property obtained during the marriage would be classified as marital or separate property. Neither party contests the validity of the antenuptial agreement.
Prior to and throughout the marriage, Husband was the sole shareholder of Kester Sales, a furniture company located in Springfield, Missouri, which does business as "The Furniture Broker." Husband also separately owned the commercial property upon which the business is located ("Sunshine property"). During the marriage, Husband began renting the Sunshine property to Kester Sales for $15,000 per month, which sum he deposited into the parties' joint checking account. Husband then made the monthly mortgage payment on the Sunshine property. At the time of the marriage, the Sunshine property was encumbered by a $642,000 mortgage. This amount had been reduced to $428,223.01 at the time of the dissolution.
The parties also maintained a joint checking account throughout their marriage. In October 1997, the parties transferred their account from another bank to Metropolitan National Bank, where they opened a joint checking account and a money market account. The parties used this joint checking account for most of their financial transactions. At this same time, Husband restructured the mortgage on the Sunshine property to reduce the monthly mortgage payments from $7,500 to $5,950.
On October 17, 1999, the parties separated. Husband continued to receive $15,000 per month in rent from Kester Sales and continued to make the monthly mortgage payment of $5,950 on the Sunshine property. Husband also continued to make payments on the parties' marital residence, an unsecured note, boat-related expenses, income taxes, and other expenses.
*218 After a hearing by a court-appointed Special Master followed by a trial, the trial court ruled, in pertinent part, that the $213,776.99 reduction of the mortgage debt on the Sunshine property was not marital property and, therefore, was not an asset subject to division. However, the trial court classified as marital property the "net rental income" received from Kester Sales during the parties' separation and certain income tax refunds received by Husband during that time period. The trial court then awarded Wife one-half of the amount respectively received from each such source, i.e. $117,650 and $18,516. The court also classified a Colorado condominium and two boats as marital property.
"In a court-tried case, the decree of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Rivers v. Rivers 21 S.W.3d 117, 121 (Mo.App.2000). The trial court has broad discretion in identifying and valuing marital property. Farley v. Farley 51 S.W.3d 159, 164 (Mo.App.2001); Beckham v. Beckham 41 S.W.3d 908, 911 (Mo.App.2001). The trial court also is given broad discretion in dividing property and we will interfere with its decision only if the division is so unduly weighted in favor of one party that it amounts to an abuse of discretion. Kirkwood v. Kirkwood, 77 S.W.3d 675, 680 (Mo.App.2002); King v. King 66 S.W.3d 28, 32-33 (Mo.App.2001). The resulting division of marital property need not be equal, although it must be equitable after taking into account the factors enumerated in section 452.330.1 and any other relevant factors.[1]Kirkwood 77 S.W.3d at 680. The trial court abuses its discretion only when its ruling is "clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration." In re Marriage of Holden 81 S.W.3d 217, 225 (Mo.App.2002).
Furthermore, we review the evidence and inferences in the light most favorable to the trial court's decision and disregard all contrary evidence and inferences. Kirkwood 77 S.W.3d at 680; Love v. Love 72 S.W.3d 167, 171 (Mo.App.2002). "Judging credibility and assigning weight to evidence and testimony are matters `for the trial court, which is free to believe none, part, or all of the testimony of any witnesses.'" Love 72 S.W.3d at 171 (quoting In re Marriage of Haugh 978 S.W.2d 80, 82 (Mo.App.1998)). We presume that the trial court took into account all evidence and believed such testimony and evidence that is consistent with its judgment. Kirkwood 77 S.W.3d at 680. The party challenging the trial court's judgment in a dissolution of marriage has the burden of demonstrating error. Id.; King 66 S.W.3d at 33.
"In Missouri, to be valid and enforceable an antenuptial agreement must ... be entered into freely, fairly, knowingly, understandingly, and in good faith with full disclosure...." Rivers 21 S.W.3d at 122. "Prenuptial agreements will be upheld and will dispose of issues of property division unless found to be unconscionable." Sprock v. Sprock 882 S.W.2d 183, 186 (Mo.App.1994).
We first consider Wife's claim that the trial court erred when it classified as a non-marital asset the total pay-down amount of $213,776.99, which represented the amount the mortgage debt on the Sunshine property was reduced during the marriage.
Preliminarily, we observe there is a statutory presumption that all property *219 acquired by either spouse during the marriage and before a legal decree of separation or dissolution is marital property, regardless of how that property is titled. § 452.330.3.[2] The presumption of marital property may be overcome and property will remain separate, however, by a showing that the property was obtained under one of the following exceptions set forth in section 452.330.2:
(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid written agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.
Wife contends that section 452.330.2(4) does not apply because Husband deposited the $15,000 monthly rent payments into the parties' joint checking account. Wife claims this act co-mingled those payments with marital funds and when Husband made the monthly mortgage payment with funds drawn from that account, he did so with marital property. Wife argues that paragraph 8 of the parties' agreement allows for such co-mingling when it sets out that "[i]ncome derived from the parties' separate property shall be marital property only if said income is deposited to joint accounts of the parties or converted into or used to acquire jointly held property...." Therefore, Wife argues the amount constituting the reduction of the mortgage debt resulting from those payments should be classified as marital property.
In a divorce proceeding on appeal, this Court must view the evidence in the light most favorable to the trial court's decision. King 66 S.W.3d at 33.
The record shows the Sunshine property was acquired prior to the marriage and remained in Husband's name alone thereafter. The antenuptial agreement designated the property as a separate asset belonging to Husband.
While Wife correctly sets out that paragraph 8 of the parties' agreement provides that "Income derived from the parties' separate property shall be marital property only if said income is deposited to joint accounts of the parties," she fails to acknowledge the remaining portions of paragraph 8 defining what type of income can be considered marital property. Paragraph 8 also specifically provides that "[n]otwithstanding the foregoing, the parties agree that all ... net rental income," which the agreement defines as "gross rental income less any debt service payments or other obligations of either of the parties as lessor under any lease agreement" (emphasis added), is to be considered marital property. In this instance the more limited and specific clause acts to modify the more general clause. Tri-County Retreading, Inc. v. Bandag, Inc. 851 S.W.2d 780, 784 (Mo.App.1993). Accordingly, the debt service payment Husband made to pay down the mortgage is *220 excluded from the definition of marital property.
As previously set out, Husband used a portion of the $15,000 monthly rental payment received from Kester Sales to make the monthly mortgage payment on that property. At trial, Husband testified that the $9,050 difference between the $15,000 in rent received from Kester Sales and the $5,950 paid each month for the mortgage on the Sunshine property was net rental income.
Wife's testimony indicates that she understood that the antenuptial agreement specifically distinguished funds applied to debt service payments under a lease agreement and that, under the agreement, these funds were not to be considered as marital property. When questioned by Husband's trial counsel, Wife acknowledged that the marital estate only included the amount beyond the mortgage payments Husband paid for the Sunshine property:
A: All right. My understanding of that document is that [Husband] is obligated as lessee to pay any obligation by that lease and that anything after that is marital. So his obligation in his lease with Kester Sales is what I understand would be his liability. I am not qualified to go into it any further than that.
Q: You understand that [Husband] had a mortgage on the property; is that correct?
A: Yes.
Q: All right. And [Husband] was obligated to pay the mortgage to the bank
A: Yes.
Q: correct? And so you're saying the differencethe amount of the rent less that mortgage payment is marital property?
A: Less his obligation as lessor is as far as I would feel comfortable asserting.
Q: You understand the agreement specifically refers to his debt obligations?
A: As a lessor, yes. That is my understanding that's what it says.
(emphasis added). The record also reveals Wife understood the term "net rental income" as used in the agreement:
Q. And how much does the corporation pay each month on rent?
A. $15,000.
Q. So anything different between the mortgage payment and the amount of the rental payment by Kester Sales is what, in your opinion?
A. That would be net rental income.
Q. All right. And that's provided for, I believe in Paragraph 8?
A. That's my understanding.
Q. Of the prenuptial agreement?
A. Yes.
Such evidence sufficiently indicates that the parties intended that the Sunshine property and the assets used to pay down the mortgage on that property were to remain separate assets of Husband. Because neither party challenges the validity of the antenuptial agreement, we are bound to enforce the agreement according to that intent. See, e.g., King, 66 S.W.3d at 35.
Furthermore, while Wife presented evidence regarding the total pay-down amount on the Sunshine property she failed to show that funds from the joint checking account were used to make payments on the property. Husband acknowledged making payments on the mortgage every month but testified that he was uncertain as to whether all of the payments on the Sunshine property originated from the joint checking account.
*221 Q: And all of the payments and that paydown came out of a joint checking account of yours and [Wife's]?
* * *
A: I don't know that for sure.
Q: Okay. You don't know either way?
A: No. I don't know that they all came out of a joint checking account.
A trial court may judge credibility and assign weight to evidence and testimony, and is free to believe none, part, or all of a witness's testimony. Love 72 S.W.3d at 171. From Husband's uncertainty of where the funds originated, the trial court could also conclude that no marital assets were applied as payments toward the Sunshine property.
We determine the trial court did not abuse its discretion when it determined that the amount by which the mortgage debt on the Sunshine property was reduced remained a separate asset of Husband. Wife's point is denied.
In the first point of his cross-appeal against Wife, Husband contends that the trial court erred when it classified $235,300 in post-separation net rental income and $37,032 in post-separation tax refunds as marital property. Husband argues that the antenuptial agreement does not provide for the division of these assets, that there was no evidence that such assets existed at the time of the trial, and that there was no evidence he secreted or squandered either asset.
Reiterating, the record reveals that during the 26 months the parties remained separated, Husband received $15,000 per month in rent from Kester Sales and paid $5,950 paid toward the debt payment on the Sunshine property, which resulted in $9,050 per month of "net rental income" subject to division as marital property.[3] The trial court concluded this net rental income is "defined by the Agreement as marital property and is to be divided equally between the parties." Because Wife had not received any share of this income during the separation, the court found her entitled to one-half of the net rental income from that date, or $117,650.
Husband argues the antenuptial agreement does not specify that net rental income must be divided among the parties. He argues that property owned as joint tenants with right of survivorship, property owned as tenants by the entirety, or tangible personal property acquired during the marriage is to be divided equally between the parties. We find no merit to this portion of Husband's point.
As discussed above, a trial court has broad discretion in identifying marital property. Beckham 41 S.W.3d at 911. We presume that, subject to certain exceptions, all property acquired by either spouse during the marriage is marital property. § 452.330.3. While section 452.330.2(4) allows a party to rebut this presumption via a written agreement of the parties, the agreement between the parties in this case fails to do so and, in fact, specifically provides that the parties would divide any net rental income received. As previously, partially set out, the pertinent part of that agreement states at paragraph 8:
Notwithstanding the foregoing, the parties agree that all net income in any form derived after the date of marriage from any business operated by either or both of the parties, including Kester Sales ... shall be considered to be marital property, including salaries, bonuses, *222 dividends, and net rental income (gross rental income less any debt service payments or other obligations of either of the parties as lessor under any lease agreement).
Similarly, the record shows that while the parties were separated Husband received $37,032.00 in refunds on his 1999 and 2000 tax returns. In our review of the antenuptial agreement, we find no reference to the classification of tax refunds as either marital or separate property. Proceeds from federal and state tax refunds are presumed to be marital property and subject to division by the trial court. Fornachon v. Fornachon 748 S.W.2d 705, 708 (Mo.App.1988). Because the antenuptial agreement does not rebut this presumption, the tax refunds received during the marriage are considered marital property.
Because the trial court properly classified the net rental income and income tax refunds as marital property, it lies within the trial court's broad discretion to determine how to divide those assets. Kirkwood 77 S.W.3d at 680; King 66 S.W.3d at 32-33. The record reflects that the trial court divided this marital property equally and without undue weight in favor of either party. Point is denied in part.
However, Husband next contends there was no evidence that any such funds existed at the time of the trial, or that the funds were secreted or squandered. Rather, he maintains that these assets were "completely consumed by the parties' joint obligations, taxes, and [Husband's] living expenses." As a result, Husband asserts no such assets remained for the trial court to divide.
A trial court in a dissolution proceeding must have evidence of the value of the marital property subject to division before it can order a just division of that property. "`Only by having evidence from which a fair and accurate valuation of the marital property can be made can a just division of the property be achieved.'" Shipp v. Shipp 59 S.W.3d 647, 649 (Mo. App.2001) (quoting Frame v. Frame 696 S.W.2d 332, 336 (Mo.App.1985)). Any valuation of marital property is prohibited unless supported by the evidence at trial. Morse v. Morse 80 S.W.3d 898, 905 (Mo. App.2002). As a general rule, the appropriate date used by the trial court when valuing marital property in a dissolution proceeding is the date of the trial. Conrad v. Conrad 76 S.W.3d 305, 314 (Mo.App. 2002); Wright v. Wright 1 S.W.3d 52, 62 (Mo.App.1999). "[U]nder this rule, if a marital asset does not exist at the time of trial, the trial court cannot value and include that asset in its division of marital property." Conrad 76 S.W.3d at 314; see also Kirkwood 77 S.W.3d at 681. The logic behind this approach is straightforward because a trial court considering property in a dissolution proceeding "cannot consider an asset for distribution as marital property, unless and until there is evidence that there is a marital asset subject to distribution." Conrad 76 S.W.3d at 315.
An exception to this rule exists that provides that a trial court may hold a party liable for the value of marital assets that no longer exists when that spouse is found to have secreted or squandered marital assets in anticipation of divorce. Id. at 314. However, marital property used by a spouse for his or her living expenses after separation and prior to the dissolution is a legitimate expenditure of marital assets. Kirkwood 77 S.W.3d at 681; Conrad 76 S.W.3d at 315; Wright 1 S.W.3d at 62.
The trial court found that during the time the parties were separated the marital estate received $235,300 in net rental income and $37,032 in tax refunds. The trial court acknowledged that it "did not *223 have sufficient evidence presented to it at trial to make any findings that certain post-separation expenses incurred by the parties were extraordinary or in fraud of the other party's marital rights," and Wife has not alleged any such conduct.
However, Husband correctly asserts there is nothing in the record to indicate that the net rental income and tax refunds received while the parties were separated existed at the time of the dissolution proceeding. The evidence presented at trial also suggests that at least a portion of that income was expended toward the parties' living expenses and marital debts. Absent evidence that this income existed at the time of trial, the trial court could not value or include that asset in its division of marital property.
As the court in Conrad recognized, the better course is to remand the issue for the trial court to fully develop the record and then rule on whether all or any part of the marital assets in question existed at the time of the dissolution proceeding or whether such assets were legitimately expended on living expenses and marital debts. Conrad 76 S.W.3d at 317. Point well taken in part.
In the second point of his cross-appeal against Wife, Husband argues, in the alternative, that in the event this reviewing Court determines that post-separation income was subject to classification and division of marital property, the trial court nevertheless erred when it divided the net rental income and tax refunds equally between the parties.
Husband argues the antenuptial agreement did not require an equal division of the net income and tax refunds, and he maintains the judgment did not account for Husband's living expenses and payment toward the parties' marital debts. Husband also claims that the trial court failed to award him a share of Wife's post-separation income, failed to consider tax consequences on the net rental income received before awarding an equal share of that asset to Wife, and incorrectly awarded Wife a share of both the income and the income tax refund paid on that income.
We note that in paragraph 11 of its judgment, the trial court recognized that net rental income from Kester Sales was defined in the agreement as marital property. In paragraph 15 of its judgment, the trial court stated the agreement did not require that marital income be divided equally. The trial court is correct in this analysis. However, absent an agreement to the contrary, pursuant to section 452.330.1, the trial court in a dissolution proceeding is to divide marital property and debts in such proportions the court deems just after considering all relevant factors therein set out.[4]See Rivers 21 S.W.3d at 122-23. The factors listed in section 452.330.1 are not exclusive, and the trial court has "great flexibility and far-reaching power in dividing the marital property." Farley 51 S.W.3d at 165.
*224 There is no formula respecting the weight to be given by the trial court to the relevant factors set out in section 452.330.1, and while the statute requires a fair and equitable division of marital property given the individual circumstances of the case, it does not require an equal division of marital property. Id.; see also Holden 81 S.W.3d at 225. That one party receives a higher percentage of marital assets does not per se constitute an abuse of the trial court's discretion. Farley 51 S.W.3d at 165.
On appeal, we presume the correctness of the trial court's division of marital property, and interfere with its judgment only if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. Id.; King 66 S.W.3d at 32-33.
We have discussed at length the trial court's decision to award Wife a portion of the net rental income and tax refunds and have found no error in its decision. However, the trial court must determine on remand whether such assets still exist or if they were otherwise expended for living expenses and payment of marital debts and taxes. After such determination is made, the trial court can determine how to "fairly and equitably" divide between the parties these contested assets. Husband's point in the alternative is denied.
In the third point of his cross-appeal against Wife, Husband contends that the trial court erred when it classified as marital property certain jointly-held assets including a condominium, a houseboat, and a fiberglass boat. Husband argues that he purchased these assets with separate, non-marital property and that the antenuptial agreement ensured that each asset remained separate property.
Husband maintains the antenuptial agreement at paragraph 3(a) specifically provides that each spouse would retain a separate interest in "[a]ll real and personal property ... owned by each of the parties at the time of the marriage." He also asserts that the agreement at paragraph 3(d) sets out that the parties retain their respective, separate property regardless of "whatever nature, tangible or intangible, into which any of the items of property described in [the agreement] are transferred or converted." Husband claims that these provisions expressed the parties' intent that their separate property, and any assets subsequently obtained using proceeds from that separate property, would remain separate property regardless of how titled.
We observe, however, that paragraph 4(d) of the antenuptial agreement provides that:
Any assets owned by [Husband] and [Wife] as joint tenants with rights of survivorship or tenants by the entirety shall, upon termination of the marriage by divorce or dissolution of marriage, be divided equally between them.
We are, of course, aware that a court may not selectively enforce part and reject part of a prenuptial agreement. Brennan v. Brennan 955 S.W.2d 779, 785 (Mo.App.1997). While it is clear that in general terms paragraph 3 recognizes the right of each party to maintain his or her own separate property during the course of the marriage, it is our view that the provisions of paragraph 3 of the antenuptial agreement did not prevent either party from placing his or her property into the marital estate.[5] Furthermore, paragraph *225 4(d) specifically addresses the disposition of the properties in the event of divorce or dissolution of marriage of the parties and requires an equal division between the parties in that event.
The record reflects that the condominium was jointly titled in both parties' names. Under the express terms of paragraph 4(d), this asset is to be considered marital property subject to equal division by the trial court at the time of the dissolution of the parties' marriages.
The record also indicates that the houseboat and the 1998 Crownline boat were purchased with funds from the parties' joint bank account.[6] Because the boats are not titled assets,[7] paragraph 4(d) of the parties' agreement does not control. However, paragraph 8 also states, in pertinent part:
Income derived from the parties' separate property shall be marital property only if said income is deposited to joint accounts of the parties or converted into or used to acquire jointly held property, provided, however, that all tangible personal property which is not subject to being registered or titled by written instrument shall be presumed to be marital property, to be divided equally between them.
The evidence supported a finding that the boats were marital property subject to equal division by the trial court at the time of the dissolution of the parties' marriage. Husband's Point Three is denied.
In the final point under review, Kester Sales contends the trial court erred when it failed to award it attorney fees incurred in defending against Wife's claims. It argues that Kester Sales was an intended third-party beneficiary of the antenuptial agreement and, therefore, was entitled to enforce that agreement against Wife.
We shall not disturb a trial court's decision to award attorney fees or the amount of any such an award absent an abuse of discretion or if the amount awarded was so arbitrarily arrived at or so unreasonable as to indicate indifference and a lack of proper consideration by the trial court. See King 66 S.W.3d at 39; Vaughn v. Willard 37 S.W.3d 413, 417 (Mo.App.2001). However, when a party requests attorney fees under a provision of a contract, the trial court must comply with the terms set forth in that contract. Vaughn 37 S.W.3d at 417. This requirement applies to attorney fees provisions in antenuptial agreements. See Brennan 955 S.W.2d at 785.
In this case, the antenuptial agreement entered into between Husband and Wife set out that if either party unsuccessfully challenged or attempted to void the contractual effect of the agreement, that party would be liable for the attorney fees and costs incurred by the other party in the *226 defense and enforcement of the agreement. In its judgment, the trial court concluded that Wife "attempted to avoid the contractual effect of the Agreement on several occasions and has at times refused to recognize its existence and controlling effect on her pleadings."
Consistent with the terms of the antenuptial agreement, the trial court found that Husband was entitled to recover attorney fees incurred in defending the antenuptial agreement and awarded him $2,812.50. The trial court further concluded that because Kester Sales was not a party to the antenuptial agreement, it had no contractual right to recover such fees from Wife.
Kester Sales now argues that this provision should also apply to Kester Sales and claims that the company was an intended third-party beneficiary to the agreement.
"A third-party beneficiary is one who is not privy to a contract or its consideration, but who may nonetheless maintain a cause of action for breach of the contract." Trout v. General Security Services Corp. 8 S.W.3d 126, 132 (Mo.App. 1999); see also L.A.C. v. Ward Parkway Shopping Center Co. 75 S.W.3d 247, 260 (Mo. banc 2002). Only a third party for whose primary benefit the parties contracted may maintain an action to enforce a contract; a third party may not recover if that party "is only incidentally, indirectly or collaterally benefited by the contract." Trout 8 S.W.3d at 132. The terms of a contract must clearly and directly express the contracting parties' intent for the third party to benefit from the contract. L.A.C. 75 S.W.3d at 260; Trout 8 S.W.3d at 132.
In this case, substantial evidence exists upon which the trial court could conclude that Husband and Wife did not intend for the antenuptial agreement to benefit Kester Sales. Only Husband and Wife were parties to the agreement. The agreement grants no express rights to Kester Sales, but merely refers to the company in the "Schedule of Assets" and other sections that address Husband's assets. Kester Sales has no express right under the parties' agreement to recover attorney fees, but instead the agreement merely states that should a spouse not prevail in a challenge to the agreement, that spouse shall pay attorney fees and costs "incurred by the other party" in the action. While the company may receive some incidental or indirect benefit from the agreement, we find no clear and direct expression of the parties' intent that Kester Sales benefit from the agreement. Therefore, the trial court's decision not to award attorney fees to Kester Sales was not in error. L.A.C. 75 S.W.3d at 260; Trout 8 S.W.3d at 132. Kester Sales' point is denied.
The judgment of the trial court is affirmed in part and reversed in part and the cause remanded for further proceedings consistent with this opinion. To this end, the trial court is authorized to receive further evidence.
NOTES
[1] Unless otherwise indicated, all statutory references are to RSMo 2000.
[2] Section 452.330.3 states:
All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property.
[3] The trial court apparently arrived at $235,300 by multiplying the $9,050 in monthly net rental income by the number of whole months from the date of separation, November 1999, through the date of the trial, December 2001.
[4] Section 452.330.1 requires marital property and marital debts to be divided in proportions the trial court deems just after considering all relevant factors, including:
(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(3) The value of the non-marital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.
[5] A spouse's act of titling separate property into the joint names of both parties creates a presumption that the property transferred was a gift and was transmuted into marital property. See Shipp 59 S.W.3d at 649, n. 1; Montgomery v. Montgomery 18 S.W.3d 121, 124 (Mo.App.2000); Williams v. Williams 965 S.W.2d 451, 454 (Mo.App.1998); Stephens v. Stephens 842 S.W.2d 909, 913 (Mo.App.1992).
[6] The Special Master concluded that the "boats were purchased with funds which came from joint accounts...." The Special Master also found that Husband "wholly failed to establish what portion of the value [of the Crownline boat] is attributable to the trade-in" of his separate property, thus it was not possible to set aside any value as separate. Similarly, the Special Master concluded that the "money to purchase [the houseboat] came from a joint account of the parties which had $80,101.42 in it on January 5, 1996, so that there was more than enough money in the account to pay the $70,000 purchase price of the houseboat before [Husband] got the fire loss proceeds or sale proceeds from his separate property."
[7] The houseboat, while without a certificate of title, "is a Coast Guard documented vessel[] and is registered as joint." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3063058/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 25, 2010
No. 09-14772
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00279-CR-CAP-25
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN MAGANA-BERNAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 25, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Martin Magana-Bernal appeals his sentence of 121 months of imprisonment
following his plea of guilty to conspiracy to possess with intent to distribute at
least five kilograms of cocaine, 21 U.S.C. §§ 841(b)(1)(A)(ii), 846; 18 U.S.C. § 2,
and money laundering, id. § 1956(h). Magana-Bernal argues that he was entitled
to a two-level reduction for his minor role in the conspiracy. We affirm.
The presentence investigation report stated that Magana-Bernal guarded one
of several stash houses used by a large-scale drug organization that imported into
Georgia more than 8000 kilograms of cocaine and exported to Mexico more than
155 million dollars in proceeds. The report attributed to Magana-Bernal the 70
kilograms of cocaine received at the stash house while he worked for the
organization. The report listed a total offense level of 34 and, because Magana-
Bernal had a criminal history of I, the report provided a sentencing range between
151 and 188 months of imprisonment.
Magana-Bernal objected to the report on two grounds. Magana-Bernal
argued that he was entitled to a reduction for a minor role because he was a
“caretaker” instead of a guard of the stash house. Magana-Bernal also argued that
he was responsible only for 46 kilograms of cocaine because he was incarcerated
when 24 kilograms of cocaine were received at the stash house.
2
The district court overruled Magana-Bernal’s objection about the minor role
but sustained his objection about the amount of cocaine. The district court
calculated Magana-Bernal’s total offense level at 32 and a guideline range
between 121 and 151 months of imprisonment. The district court imposed a
sentence at the low end of the guideline range and five years of supervised release.
Magana-Bernal was not entitled to a minor role reduction. Although
Magana-Bernal was not a leader of the conspiracy, his role was not minor. See
U.S.S.G. § 3B1.2, cmt. n.5. Magana-Bernal willingly joined a large-scale
conspiracy to distribute cocaine; he was responsible for guarding a stash house
that received 70 kilograms of cocaine for distribution and processed
approximately $818,500 in drug proceeds; and he participated in at least two
transfers of drug proceeds.
Magana-Bernal argues the district court reduced the amount of drugs for
which he was held responsible from 70 to 46 kilograms to “fit a preconceived
sentencing formula,” but we disagree. The district court reduced the amount of
drugs attributable to Magana-Bernal to reflect the actual quantity processed at the
stash house while he was “in charge.” The district court did not clearly err by
finding that Magana-Bernal did not qualify for a reduction in his sentence.
Magana-Bernal’s sentence is AFFIRMED.
3 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063059/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13816 ELEVENTH CIRCUIT
MARCH 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 01-06244-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD SAPP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 25, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Leonard Sapp, a federal prisoner convicted of conspiracy to possess with
intent to distribute at least 50 grams of crack cocaine, in violation of 21 U.S.C.
§ 846, and possession with intent to distribute at least 5 grams of crack cocaine, in
violation of 21 U.S.C. § 841, appeals the district court’s denial of his motion to
reduce his sentence under 18 U.S.C. § 3582(c)(2). He contends that Amendment
706 to the sentencing guidelines provides a basis for a reduction of his sentence,
even though he was sentenced as a career offender. Recognizing that this
argument is squarely foreclosed by our opinion in United States v. Moore, 541
F.3d 1323 (11th Cir. 2008), Sapp requests that we overturn prior precedent in order
to provide him his requested relief. We decline to do so.1
We review de novo a district court's conclusions about the scope of its legal
authority under 18 U.S.C. § 3582(c)(2). Moore, 541 at 1326. Once it is
established that 18 U.S.C. § 3582 applies, a district court's decision to grant or
deny a sentence reduction is reviewed only for abuse of discretion. United States
v. James, 548 F.3d 983, 984 n.1 (11th Cir. 2008). A district court may modify a
term of imprisonment in the case of a defendant who was sentenced based on a
sentencing range that subsequently has been lowered by the Sentencing
1
We need not address this argument because our opinion in United States v. Moore
can only be overruled by the en banc court. See United States v. Woodard, 938 F.2d 1255, 1258
(11th Cir. 1991).
2
Commission. 18 U.S.C. § 3582(c)(2). Here, however, the district court lacked
such authority.
Any sentencing reduction must be “consistent with applicable policy
statements issued by the Sentencing Commission.” Id. A reduction of a term of
imprisonment is not “consistent with applicable policy statements issued by the
Sentencing Commission”—and is, therefore, not authorized under § 3582(c)(2)—if
the retroactive amendment does not have the effect of lowering the defendant’s
applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B). “The effect of
Amendment 706 is to provide a two-level reduction in base offense levels for crack
cocaine offenses.” Moore, 541 F.3d at 1325. Because Sapp’s career offender
status, not his base offense level, determined his sentencing range, he cannot show
that Amendment 706 had the effect of lowering his applicable guidelines range.
See Moore, 541 F.3d at 1330 (“Where 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.”).2 See also U.S.S.G. § 1B1.10, cmt. n.1(A)
2
We note the unanimous agreement of our sister circuits on this issue as applied to
defendants like Moore who were sentenced as career offenders. United States v. Wesson, 583
F.3d 728, 729 (9th Cir. 2009); United States v. Perdue, 572 F.3d 288, 291-93 (6th Cir. 2009);
United States v. Martinez, 572 F.3d 82, 84-85 (2d Cir. 2009) (per curiam); United States v.
Mateo, 560 F.3d 152, 154-56 (3d Cir. 2009); United States v. Forman, 553 F.3d 585, 589-90 (7th
Cir. 2009) (per curiam); United States v. Caraballo, 552 F.3d 6, 9-12 (1st Cir. 2008); United
States v. Sharkey, 543 F.3d 1236, 1238-39 (10th Cir. 2008); United States v. Tingle, 524 F.3d
3
(stating that a reduction under § 3582(c)(2) is not authorized where “the
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”). As in Moore, although
Amendment 706 would reduce his base offense level, it would not affect [his]
guideline range because he was sentenced as a career offender under § 4B1.1. 541
F.3d at 1330. Therefore, Amendment 706 provides no basis for a sentencing
reduction.
Moreover, Clark's argument that, irrespective of the Sentencing
Commission’s policy statements regarding sentencing reductions, see U.S.S.G.
§ 1B1.10(a)(2)(B), the district court had the discretion to reduce his sentence under
§ 3582 in light of Booker is unavailing. We have held that Booker is inapplicable
to proceedings under § 3582(c)(2) because they are not full resentencing hearings.
United States v. Melvin, 556 F.3d 1190, 1193 (11th Cir. 2009).
In sum, because the record shows that Sapp’s sentencing range was
determined by application of the career-offender guideline in § 4B1.1 and not
839, 839-40 (8th Cir. 2008) (per curiam). See also United States v. Davis, No. 09-7727, 2010
WL 331458, at *1 (4th Cir. Jan. 27, 2010); United States v. Clark, No. 08-20375, 2009 WL
4057163, at *1 (5th Cir. Nov. 24, 2009).
4
under § 2D1.1, the district court properly determined that it lacked authority under
§ 3582(c)(2) to modify Sapp’s 360-month term of imprisonment in light of
Amendment 706. Accordingly, we affirm.
AFFIRMED.3
3
Appellant’s request for oral argument is denied.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892758/ | NO. 07-02-0528-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 14, 2005
______________________________
IN THE MATTER OF THE MARRIAGE OF
MARY BECKY GONZALEZ AND EUSEBIO RAMIREZ GONZALEZ
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-517,360; HONORABLE DRUE FARMER, JUDGE
_______________________________
Before JOHNSON, C.J., and CAMPBELL, J., and BOYD, S.J.
MEMORANDUM OPINION
Eusebio Ramirez Gonzalez brings this appeal from a default decree of divorce
terminating his marriage to appellee Mary Becky Gonzalez and dividing the community
estate. He challenges the trial court's division of property and denial of his motion for new
trial. We affirm.
The parties were formally married in 1996 and separated in March 2002. On March
27, 2002, appellee filed a petition for divorce alleging the marriage had become
insupportable. The petition was signed by an attorney from the Legal Aid Society of
Lubbock and was served on appellant April 4, 2002. Appellant was born in Mexico and
does not read English. He did not file an answer or appear at the temporary orders hearing
held in April 2002 or the final hearing held in September 2002. No reporter's record was
made of the final hearing. The trial court signed a final decree of divorce the day of the
hearing.
The community estate divided in the decree included the parties' homestead
occupying two adjacent lots in the City of Lubbock, seven vehicles, and other personal
property described only by category. The decree awarded appellant five vehicles, the
newest being a 1999 Ford Expedition, household and personal items in his possession and
funds and accounts subject to his sole control. It awarded appellee the homestead, two
vehicles, household and personal items in her possession and funds and accounts subject
to her sole control. The decree assigned to appellant debts of unspecified amounts owed
to Ford Motor Credit, an MBNA Charge Card, half of a medical debt incurred for appellee,
and all tax liability prior to the 2002 tax year. It assigned to appellee the remaining debt for
her medical care and all medical bills for Letticia Gutierrez. (1) It made no mention of any
debt on the real property but a proposed deed attached to the decree included a provision
that appellee would assume liability on "the note."
Acting through counsel appellant filed a motion for new trial. His amended motion
asserted he did not file an answer because he thought the parties had agreed on a property
settlement and he was operating under the "mistake of fact and law" that the final decree
would reflect the division of property agreed upon by the parties. He asserted he had a
meritorious defense "in that the community property was not divided equally."
The trial court orally denied the motion after a hearing at which both parties and one
of appellee's counsel testified. Appellant testified his failure to hire an attorney was based
on appellee's representation that he did not need an attorney and the court would divide
the real property in accordance with an agreement they had made whereby appellee would
receive the "front" house on the property and appellant would keep the "back" house in
which he had sometimes lived since their separation. Appellant recounted receiving a letter
from his wife's attorney concerning a court date. He did not retain the letter or recall the
exact date but said he went to the courthouse and asked for help in locating the courtroom.
He testified he was told by an unidentified person at the courthouse that he did not need
to appear.
Appellee denied that she tried to "trick" her husband. Her testimony was to the
effect she never advised appellant not to get his own attorney and had encouraged him
"numerous times" to seek legal assistance. She said he told her in response that he did
not want to spend any money. She denied ever having an agreement with her husband
on the property division. The attorney who represented appellee at the time of the
temporary orders hearing testified that appellant did not appear at the hearing but he called
her later that day and told her he was working and could not attend the hearing.
Appellant presents two issues for our review. The first challenges the division of
community property; the second asserts the trial court abused its discretion in denying his
motion for new trial. We address his second issue first.
Appellant correctly recites the elements a defendant must establish to show
entitlement to a new trial after a no-answer default judgment. Those elements, set out in
Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), require the
movant to (1) show the failure to answer was not intentional or the result of conscious
indifference, but due to accident or mistake, (2) set up a meritorious defense and (3) file
the motion at a time "when the granting thereof will occasion no delay or otherwise work
an injury to the plaintiff." Id. at 126.
A motion for new trial is addressed to the trial court's discretion and its ruling will not
be disturbed on appeal in the absence of a showing of an abuse of discretion. Director,
State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994),
citing Cliff v. Huggins, 724 S.W.2d 778, 778-89 (Tex. 1987). However, a trial court abuses
its discretion by not granting a new trial when all three Craddock elements are met. Evans,
889 S.W.2d at 268, citing Bank One Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992).
When conclusions of law are neither requested (2) nor filed, we must presume that the
trial court found all facts in favor of its order overruling the motion and are bound by such
findings if there is any evidence of probative force to support the judgment, Lewkowicz v.
El Paso Apparel Corp., 625 S.W.2d 301, 303 (Tex. 1981), and we must uphold the court's
denial of the motion under any legal theory that finds support in the evidence, Strackbein
v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).
Appellant contends he established each of the Craddock elements. Appellee argues
he established none of them. We find the trial court's denial of the motion is supportable
on the theory appellant did not set up a meritorious defense. We do not reach the question
whether appellant established the first or third elements. (3)
A meritorious defense for Craddock purposes has been described as one that, if
proven, would cause a different result on retrial of the case. See Miller v. Miller, 903
S.W.2d 45, 48 (Tex.App.-Tyler 1995, no writ). To set up a meritorious defense, the movant
must allege facts that in law would constitute a defense, and must support the motion with
affidavits or other evidence proving prima facie that the movant has such a defense. See
Estate of Pollack v. McMurrey, 858 S.W.2d 388, 392 (Tex. 1993); Ivy v. Carrell, 407 S.W.2d
212, 214 (Tex. 1966). Appellant's brief argues he met the meritorious defense requirement
through his assertion the divorce decree wrongly divested him of a separate property
contribution claim against the community estate. He contends he repeatedly made the
assertion in his testimony and affidavit. The record does not support the argument.
As noted, appellant's amended motion for new trial asserted he had a meritorious
defense "in that the community property was not divided equally." His testimony and
argument at the hearing on the motion made the same complaint. Appellant neither alleged
to the trial court he held a claim based on his contribution of separate property to benefit
the community estate, nor presented any evidence that would support an assertion he held
such a claim. Appellee acknowledged at the hearing appellant had made improvements
to the residential property, but there is no suggestion in the record those improvements
involved a contribution of appellant's separate property. Appellant cites Talley v. Talley,
No. 05-02-0753-CV, 2002 WL 31647096 (Tex.App.-Dallas, Nov. 25, 2002 no pet.) (not
designated for publication), in which the court found a similar contention set up a
meritorious defense. In Talley, the movant wife testified she had a reimbursement claim,
and the record showed the divorce decree awarded to the husband "all of the parties' and
each party's community and/or separate property interest" in the residence. Id. at 12. The
divorce decree entered in this case contains no language suggesting the court awarded
either party's separate property to the other, and, as noted, appellant can point to no
testimony or other evidence by which he prima facie set up a separate property contribution
or reimbursement claim. The trial court did not abuse its discretion in denying the motion
for new trial. We overrule appellant's second issue.
By appellant's first issue challenging the property division, he argues the division is
"unfair and inequitable" in violation of Section 7.001 of the Family Code (Vernon 1998). He
also argues the decree deprived him of property without due process of law.
Appellant's argument recognizes a trial court has wide discretion in making a just
and right division of community property and its discretion will not be disturbed on appeal
unless a clear abuse is shown. See Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985).
An equal division of the community property is not required. Murff v. Murff, 615 S.W.2d
696, 698 (Tex. 1981). When reviewing the division of community property the ultimate or
controlling issue is whether the division was just and right. Hill v. Hill, 971 S.W.2d 153, 155
(Tex.App.-Amarillo 1998, no pet.).
In order to overcome the presumption the trial court correctly exercised its discretion
in dividing community property, an appellant bears the burden to show from the evidence
in the record that the division was so disproportionate as to constitute an abuse of
discretion. Finch v. Finch, 825 S.W.2d 218, 221 (Tex.App.-Houston [1st Dist.] 1992, no
writ).
Although no reporter's record was made of the final hearing, the docket sheet
indicates appellee testified at the hearing. Reviewing such a record, an appellate court
generally must presume the evidence supported the trial court's findings. See Guthrie v.
Nat'l Homes Corp., 394 S.W.2d 494, 495 (Tex. 1965). (4) See also Mosolowski v.
Mosolowski, 562 S.W.2d 24 (Tex.Civ.App.-Tyler 1978, no writ) (in absence of statement
of facts, appellate court could not pass on question whether trial court abused its discretion
in property division).
Appellant, relying on the evidence heard at the hearing on his motion for new trial
and that contained in the affidavit attached to his motion, contends evidence showed
"there was substantial positive equity in the house." Assuming, arguendo, that we are
permitted to consider for this purpose the evidence appellant presented in support of his
motion for new trial, we cannot agree that it demonstrates an abuse of discretion in the
division of property. No exhibits were admitted at the hearing and no witness testified to
the value of any of the community property. The evidence regarding equity in the
residence to which appellant refers consists of the following exchange during his counsel's
cross-examination of appellee at the hearing:
Q: [Appellant] has done a lot of improvements to that house?
A: Yes.
You have built quite a bit of equity in that house, haven't you?
Yes.
It's worth more now than it was when you bought it, isn't that right?
Yes, it is.
Having no quantification of "quite a bit" of equity and having no evidence of the
values of other assets of the community estate, or the amounts of the debts assigned to
either party, we cannot agree the record before us demonstrates the property division was
disproportionate, much less that it constituted an abuse of the court's discretion. See
Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex.App.-Dallas 2003, no pet) (op. on
rehearing) (absence of evidence on values precluded showing of unjust division).
Appellant also argues the divorce decree deprived him of property without due
process of law. However, the contention was not made to the trial court, either in
appellant's motion for new trial or at the hearing. It therefore has not been preserved for
appellate review. Tex. R. App. P. 33.1. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.
1993); In re Vega, 10 S.W.3d 720, 722 (Tex.App.-Amarillo 1999, no pet.); Miller Paper Co.
v. Roberts Paper Co., 901 S.W.2d 593, 600 (Tex.App.-Amarillo 1995, no writ). We
overrule appellant's first issue and affirm the judgment of the trial court.
James T. Campbell
Justice
1. Letticia Gutierrez' relationship to the parties is not clear from this record.
2. The record reflects a request for findings of fact and conclusions of law but not a
notice of past due findings. See Tex. R. Civ. P. 297. See also Las Vegas Pecan & Cattle
Co., Inc. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984).
3. See Tex. R. App. P. 47.1.
4. In re Marriage of Taylor, 992 S.W.2d 616, 620 (Tex.App.-Texarkana 1999, no pet.),
cited by appellant, is thus inapposite, because the court there had before it the reporter's
record of testimony concerning values of community assets. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2893880/ | NO. 07-04-0565-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 2, 2006
______________________________
CLOVIS CORPORATION d/b/a LLANO
PERMIAN ENVIRONMENTAL,
Appellant
v.
LUBBOCK NATIONAL BANK and
DIVERSIFIED LENDERS, INC.,
Appellees
_________________________________
FROM THE 237
TH
DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-522,192; HON. SAM MEDINA, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Clovis Corporation d/b/a Llano Permian Environmental (Llano) appeals from a final summary judgment denying it recovery against Lubbock National Bank (the Bank) and Diversified Lenders, Inc. (Diversified). In turn, the Bank and Diversified appeal from an order denying them attorney’s fees. According to the record, Llano sued the Bank and Diversified for breach of contract, tortious interference with contract, breach of fiduciary duty, and fraudulent inducement. The claims arose from a factor transaction. That is, Diversified agreed to buy and Llano agreed to sell various accounts receivable. To effectuate that purpose, the two executed a document entitled “Security and Factoring Agreement.” Shortly after the document was executed, Diversified assigned its interest in the contract to the Bank. The dispute before us concerned the Bank’s decision to increase the amount of reserve it retained under the contract from 12.75% to 17.75%. In so raising the reserve, the Bank and/or Diversified allegedly breached the agreement, engaged in tortious interference with contract, breached various fiduciary duties owed Llano and committed fraud. After being sued, both the Bank and Diversified filed traditional and no evidence motions for summary judgment. So too did they request attorney’s fees and court costs. Though the summary judgment motions were granted, those seeking fees and costs were denied.
Through four issues, Llano contends that 1) the trial court erred in granting the motions for summary judgment, 2) a fact issue exists concerning whether the Bank and Diversified acted in bad faith, 3) the Bank and Diversified were not entitled to enforce the contract’s early termination penalty provisions due to their bad faith, and 4) the Bank and Diversified may not invoke the contract to bar prosecution of its fraudulent inducement claim. The Bank and Diversified posit that the trial court should have awarded them fees and costs. We affirm the judgment in part and reverse and remand it in part.
Llano Issue Two – Some Evidence of Bad Faith
We initially address issue two because Llano’s remaining issues are dependent upon its successful disposition. Through it, Llano alleges that there existed some evidence of material fact sufficient to deny the Bank and Diversified judgment as a matter of law. The evidence purportedly illustrated that Llano’s opponents acted in bad faith when raising the reserve from 12.75% to 17.75%. And, this evidence was of import because they had an implied obligation to act in good faith when modifying the reserve. We overrule the issue.
According to paragraph 18 of the contract, the factor (Diversified or the Bank)
may reserve and withhold an amount in a reserve account equal to twelve and three quarters percent (12 3/4%) of the gross face amount of all accounts purchased. Said reserve account may be held by FACTOR and applied by FACTOR against charge-backs or any obligations of [Llano], and said reserve account is not due and payable . . . until any and all potential obligations owing by and satisfied [sic]. [Llano] gives to FACTOR a security interest in this reserve account, which secures all obligations and indebtedness arising under this factoring agreement.
In paragraph 48, the parties also agreed that
. . . between [Llano] and FACTOR . . . FACTOR will fund eighty-seven and one quarter percent (87 1/4%) of the face value of each invoice [and] . . . [a]t the time of purchase FACTOR will deduct the initial factoring fee/discount and the reserve as stated in Section 16 & 18 of the Security Agreement. Additional fees/discounts will be taken by FACTOR from the reserve as described in Provision 48(B).
Additional reserve may be taken when deemed necessary by FACTOR
.
(Emphasis added). It is the italicized verbiage in paragraph 48 that is pivotal here. While it permitted the factor to increase the percentage of reserve, Llano reads into it an implied term obligating the factor to act in good faith. That is, it believes that the factor could not raise the rate unless it did so in good faith. That Llano attempts to imply this restriction into the agreement is beyond dispute for it appears nowhere in the written document. Yet, our Supreme Court cautioned against implying terms into contracts.
Universal Health Serv., Inc. v. Renaissance Women’s Group, P.A.
, 121 S.W.3d 742, 747 (Tex. 2003) (stating that in “rare circumstances, . . . a court may imply a covenant in order to reflect the parties’ real intentions” but “courts must be quite cautious in exercising this power”). Indeed, a term “will not be implied simply to make a contract fair, wise, or just.”
Id.
at 748. Rather, they can be declared to exist “‘only when there is a satisfactory basis in the express contract[] . . . which makes it necessary to imply duties and obligations . . . to effect the purposes of the parties in the contract[ ] made.’”
Id.
at 747-48,
quoting Freeport Sulphur Co. v. American Sulphur Royalty Co.
, 117 Tex. 439, 6 S.W.2d 1039 (1928);
accord Snyder v. Eanes Indep. Sch. Dist.
, 860 S.W.2d 692, 697 (Tex. App.–Austin 1993, writ denied) (stating that implied covenants are permitted only on the grounds of necessity). As can be seen, necessity is the triggering agent, and that agent does not exist if the subject encompassed by the supposed implied term is already within the scope of an express term. So, where there already exists an express term covering a particular subject, no implied term can exist encompassing the same subject.
Freeport Sulphur Co. v. American Sulphur Royalty Co.
, 6 S.W.2d at 1043;
Snyder v. Eanes Indep. Sch. Dist.
, 860 S.W.2d at 697. And, there lies the deficiency in Llano’s contention.
Nothing was said about acting in good faith when the parties to the agreement before us addressed the topic of increasing the reserve. Rather, they expressly agreed that the reserve could be raised when “deemed necessary by [the] FACTOR.” Necessity being the expressed triggering factor, good faith cannot be substituted in its stead. In other words, since there already existed an express provision encompassing when and how the reserve could be modified, neither we nor Llano may imply a covenant involving the same topic. So, we reject the invitation to burden, through implying omitted terms, the factor’s right to alter the reserve since the parties had expressly acknowledged the factor’s authority to act when it deemed the action necessary.
Next, in urging its point on appeal, Llano focused upon evidence of its opponents’ lack of good faith. No effort went into explaining why the increase was not “necessary” from the viewpoint of either Diversified or the Bank. Given this, the fact that Llano’s appellate issue lives or dies on our imposition of an implied term of good faith, and our refusal to read such a requirement into paragraph 48, we hold that the trial court did not err in awarding Diversified and the Bank summary judgment as a matter of law.
Llano’s Remaining Issues
As previously alluded to, the viability of Llano’s remaining issues are dependent upon its success on issue two. Having overruled issue two, we overrule issues one, three and four as well.
Issue One of Diversified and the Bank
Through this issue, Diversified and the Bank allege that the trial court erred in denying them attorney’s fees. This is so because they were contractually entitled to such fees as prevailing parties. We overrule the contention.
Via paragraph 34 of the agreement, the signatories provided that the “losing party will pay any and all legal expenses and reasonable attorney’s fees that the prevailing party may incur as a result of either CLIENT or FACTOR enforcing this Agreement one against the other.” As can be seen, this provision entitles a prevailing party to attorney’s fees. Yet, it also requires that the fees be “reasonable.” And, assuming
arguendo
, that Diversified and the Bank were prevailing parties, we have been cited to (and found) no evidence illustrating that the $35,860.55 in fees incurred were reasonable. No affidavit purporting to supply the requisite information accompanied their request. Nor did the unsworn statement appearing in the motion regarding the reasonableness of the fees suffice because unsworn statements in pleadings, as well as motions, are not evidence.
In re J.N.F.,
116 S.W.3d 426, 436 (Tex. App.–Houston [14
th
Dist.] 2003, no pet.).
(footnote: 1) Consequently, we hold that the trial court did not err in denying the motion for attorney’s fees.
Issue Two – Costs
In their last issue, Diversified and the Bank claim that the trial court erred in failing to award them court costs. We sustain the contention.
Rule 131 provides that “[t]he successful party to a suit shall recover of his adversary all costs incurred therein . . . .” However, a trial court may assess costs differently for good cause.
Tex. R. Civ. P.
141;
Furr’s Supermarkets, Inc. v. Bethune,
53 S.W.3d 375, 376 (Tex. 2001). And, if it opts to assess them differently, then it must memorialize on the record the purported good cause allowing it to do so; otherwise, it abuses its discretion.
Marion v. Davis,
106 S.W.3d 860, 869 (Tex. App.–Dallas 2003, pet. denied). Finally, these rules apply to summary judgment proceedings.
Texas River Barges v. City of San Antonio,
21 S.W.3d 347, 358 (Tex. App.–San Antonio 2000, pet. denied).
Here, it cannot be denied that Diversified and the Bank were the successful parties in the suit. Thus, they were entitled to their court costs unless the trial court found good cause to deny them same. While the trial court denied their request, it provided no reasons to justify its decision. Thus, it abused its discretion.
In summary, we affirm the take-nothing summary judgment and order denying Diversified and the Bank attorney’s fees. We reverse the order denying those two parties their court costs and remand that issue for further proceedings.
Brian Quinn
Chief Justice
FOOTNOTES
1:Reference by Diversified and the Bank to §38.004 of the Texas Civil Practice and Remedies Code and
Budd v. Gay
, 846 S.W.2d 521 (Tex. App.–Houston [14
th
Dist.] 1993, no writ) is unavailing. Those authorities concern effort to recover fees incurred while prosecuting the type of claims itemized in §38.001 of the Civil Practice and Remedies Code. Yet, neither Diversified nor the Bank argue that their defense against the claims of Llano fell within any of the categories specified in §38.001. Nor do we find that they do. Consequently, neither §38.004 nor
Budd
applies.
Coward v. Gateway Nat. Bank
, 525 S.W.2d 857, 858-59 (Tex. 1975) (holding that the predecessor of §38.001
et seq
. applied solely to claims mentioned in the statute);
Southwest Bell Mobile Sys., Inc. v. Franco
, 951 S.W.2d 218, 226 (Tex. App.–Corpus Christi 1997),
rev’d on other grounds
, 971 S.W.2d 52 (Tex. 1998) (holding that §38.001
et seq
. applies only to the attempt to recover upon the claims itemized in §38.001). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3006866/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3528 & 14-3729
CATERPILLAR INC.,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner,
and
UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTUR-
ING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS IN-
TERNATIONAL UNION, AFL-CIO CLC, *
Intervening Respondent.
____________________
Petition for review and cross-application
for enforcement of an order of the
National Labor Relations Board.
No. 30-CA-064314
____________________
*This is the official name of the union commonly referred to as the Unit-
ed Steelworkers union.
2 Nos. 14-3528, 14-3729
ARGUED SEPTEMBER 9, 2015 — DECIDED OCTOBER 2, 2015
____________________
Before POSNER, MANION, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. We are asked to review an order by
the National Labor Relations Board requiring Caterpillar Inc.
to allow a union official to investigate the site of a fatal acci-
dent to a worker represented by a local of the union.
An Illinois company, Caterpillar is one of the world’s
largest manufacturers of construction and mining equip-
ment, diesel and natural gas engines, industrial turbines,
and diesel-electric locomotives. In July 2011 it bought from
Bucyrus International a factory in South Milwaukee that
manufactures large strip-mining equipment. As a result of
the purchase Caterpillar replaced Bucyrus as the employer
party to a collective-bargaining agreement that Bucyrus had
made with a local of the United Steelworkers union.
The factory has a weld shop where employees manufac-
ture “crawlers,” which resemble the tracks of a bulldozer or
tank. Giant cranes lift the crawlers and move them to speci-
fied locations in the shop. Just two months after Caterpillar
acquired the factory, a crane operator who was a member of
the bargaining unit represented by the local union was killed
when a 36-ton crawler crushed him after shifting unexpect-
edly while being rotated by the crane. He had been lying on
the ground underneath the crawler in order to be able to un-
hook one of the chains attaching it to the crane. (The compa-
ny’s brief analogizes an investigation of the cause of the ac-
cident to an investigation of a “leaky faucet.” That was in the
poorest possible taste—an insult to the memory of the dead
man.)
Nos. 14-3528, 14-3729 3
The company promptly reported the death to the local
police department and to the federal Occupational Safety
and Health Administration. Police officers, and agents of
OSHA, along with company executives and officials of the
local union, converged within hours on the accident scene.
The local union’s officials who visited the scene were not,
however, safety specialists. The statement in the company’s
brief that “multiple local union officials participated in a
comprehensive post-accident investigation, including assist-
ing with a videotaped reenactment,” is culpably misleading.
The local union’s president called the national union’s
emergency response team at its headquarters in Pittsburgh
and spoke to an experienced health and safety specialist
there named Sharon Thompson, who has investigated a
number of fatal accidents; at oral argument the company’s
lawyer told us the company doesn’t question her credentials
as an investigator of fatal accidents to workers represented
by the steelworkers union.
The president of the local union informed Caterpillar’s
manager for the region that includes the factory in which the
accident had taken place that a member of the national un-
ion’s emergency response team would be coming to inspect
the accident site. The manager promised to cooperate with
that person but changed his mind later that evening and told
the local union’s president that the proposed inspection
would have to be cleared with the company’s legal depart-
ment.
The accident had occurred in the afternoon, and that
evening the company had one of its crane operators partici-
pate in a videotaped reenactment of the accident. The offi-
cials of the local who had been present at the accident scene
4 Nos. 14-3528, 14-3729
were not at the reenactment because they were not notified
of it. The crane operator, though a member of the local un-
ion, participated in the reenactment solely in his capacity as
an employee told what to do by the company, rather than as
an observer on behalf of the union.
Thompson arrived at the factory the day after the acci-
dent, but the regional manager who had promised to coop-
erate with her refused to allow her to enter the factory with-
out “permission from Cat[erpillar] legal to be on the premis-
es.” When that permission was denied, the union com-
plained to company officials, but was rebuffed; the company
took the position that because it was cooperating with the
police and with OSHA, no further investigation of the acci-
dent was warranted. The company was however willing to
allow Thompson to view the videos of the reenactment, pro-
vided that the union would sign a confidentiality agreement.
It did so and received the videos, but deemed them an inad-
equate substitute for an on-site investigation by Thompson.
She testified that none of the other materials offered to her
by the company—standard work protocols, a letter describ-
ing some aspects of the crane procedure, and the police re-
port—were adequate substitutes either. Caterpillar contends
that the Board’s order that Thompson be permitted to in-
spect the weld shop, where the accident occurred, en-
croached on “Caterpillar’s legitimate rights to control its op-
erations and property.” Not so; Thompson’s site inspection
would not have interfered with the operations, or the com-
pany’s control, of the plant.
OSHA fined Caterpillar for contributing to its employee’s
death by failing to “furnish employment and a place of em-
ployment which were free from recognized hazards … likely
Nos. 14-3528, 14-3729 5
to cause death or serious physical harms to employees from
crashing hazards.”
The cause of the accident has never been determined. The
union (which continues to represent the employees in the
weld shop) hopes that even now, years later, an investiga-
tion by Thompson or some other members of the national
union’s emergency response team might ascertain the cause
and by doing so be able to suggest changes in equipment or
operation that would reduce the likelihood of a future such
accident. But the company has steadfastly adhered to its re-
fusal to allow her or any other union investigator onto the
premises. It argues that passage of time has mooted its disa-
greement with the union over allowing Thompson to inves-
tigate. That’s false. Because the cause of the accidental death
of the crane operator has never been determined, no serious,
reliable measures to avoid a recurrence have been taken, or
can be until the cause of the accident is determined—
something the company appears to have no interest in. Alt-
hough Caterpillar claims to have made safety improve-
ments, no one can know whether they will prevent future
accidents because no one knows what caused this accident.
Even if an investigation of the accident at this late date
would be bound to be fruitless, the case would not be moot,
because rescinding the Board’s order would allow the com-
pany to continue to deny the union access to future accident
sites. The company’s choice to clean up such sites quickly
cannot be allowed to defeat judicial review. For the issue is
not (or not only) whether exactly this sort of accident is like-
ly to happen. The issue is whether Caterpillar will deny ac-
cess to union safety investigators in future accidents of any
kind. The company does not claim to have changed its poli-
6 Nos. 14-3528, 14-3729
cy—it stands by it steadfastly—and so its denial of union in-
spection rights will be bound to recur if and when there is
another accident. Imagine a case in which the company con-
ducts its own, superficial investigation, quickly decides to
blame the accident on carelessness by the victim, and then
denies access to a union investigator on the ground that
there is no need for further investigation. That sounds more
like a violation of the union’s, and their members’, rights
than like a moot case.
The company’s obduracy resulted in the union’s com-
plaining to the National Labor Relations Board, which ren-
dered the decision challenged by Caterpillar in this court,
ordering the company to allow Thompson (or some other
investigator designated by the union) to conduct an on-site
investigation.
Employees have the right to “engage in … concerted ac-
tivities for the purpose of collective bargaining or other mu-
tual aid or protection,” 29 U.S.C. § 157, and an employer’s
violation of that right is an unfair labor practice. § 158(a)(1).
It is also an unfair labor practice for an employer to refuse to
bargain collectively with the union representatives,
§ 158(a)(5)—and “bargaining” includes providing infor-
mation that the bargaining representative needs. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–36 (1967). The Board
held that Caterpillar had violated these rights, Caterpillar
Inc., et al., 361 N.L.R.B. No. 77 (Oct. 30, 2014), and the com-
pany’s petition for review of the Board’s order followed.
Were Thompson allowed to conduct an on-site investigation,
and in the course of it discovered lax safety practices that
might have caused or contributed to the accident, the correc-
Nos. 14-3528, 14-3729 7
tion of those practices would be a proper matter for collec-
tive bargaining.
Yet the company stands on its property rights. It’s the
owner of the factory in which the accident occurred and it
allowed police and OSHA staff in and videotaped the reen-
actment and showed the videos and the police reports to the
union’s investigator, and it says that’s good enough. It might
have been good enough if, on the basis of what the police
and the OSHA staff learned and the videos revealed, the
company had discovered the cause of the fatal accident and
taken measures to prevent any repetition of it. But the cause
was not discovered, and a union is not required to accept
company data as being the last word on a safety issue. Her-
cules, Inc. v. NLRB, 833 F.2d 426, 429 (2d Cir. 1987).
The cause of the accident remaining to this day un-
known, the chances that Thompson or some other member
of the national union’s emergency response team will suc-
ceed, where OSHA failed, in determining the cause this long
after the accident may well be small. But they are not zero.
And Thompson may discover safety problems that could
have contributed to the accident even if she proves unable to
determine a single definitive cause.
At the oral argument Caterpillar’s lawyer admitted that
allowing Thompson to conduct an on-site investigation,
which would last only a few hours and would not interfere
with the factory’s production, would cause “no actual harm”
to the company. And the company has abandoned the ar-
gument that it made to the Board that if allowed to conduct
an on-site investigation Thompson might come across confi-
dential materials—and anyway the union has as we noted
signed confidentiality agreements with the company. More-
8 Nos. 14-3528, 14-3729
over, Caterpillar and its predecessor, Bucyrus, had permitted
politicians, customers, dealers, civic groups, and high school
students to tour the factory—including the weld shop, in
which the fatal accident occurred—without requiring them
to sign confidentiality agreements.
The balance between the company’s and the union’s in-
terests favors upholding the Board’s order that the union be
permitted to conduct such an investigation. See Holyoke Wa-
ter Power Co., et al., 273 N.L.R.B. 1369 (1985). The cost to the
company would be negligible, and the benefit to the union
would not be limited to the probability that Thompson’s in-
vestigation would uncover the cause of the accident, though
such a discovery might well lead to changes in the weld
shop that would reduce the likelihood of a future accident.
The union would also be demonstrating its right and ability
to look out for the safety of the employees whom it repre-
sents, rather than leaving their safety entirely at the mercy of
the employer. So “absent access to the accident site the Un-
ion could not fulfill its obligation to represent the employ-
ees.” ASARCO, Inc. v. NLRB, 805 F.2d 194, 198 (6th Cir.
1986).
We can’t exclude the possibility that the company’s un-
explained, unjustified refusal of access to Thompson was in-
tended not only to prevent the union from investigating
safety issues and perhaps discovering negligence by Cater-
pillar but also to demonstrate to its employees that the union
can do nothing to enhance their safety. The union’s duty to
attend to the safety of the employees whom it represents en-
titles it to insist on performing its own investigation of safety
issues, rather than relying entirely on data given it by the
company. See Hercules, Inc. v. NLRB, supra, 833 F.2d at 429.
Nos. 14-3528, 14-3729 9
The superficially strongest plank in the company’s ar-
gument is the videos. Given them, it argues, what more
could Thompson need by way of information on which to
base her advice for preventing a similar accident in the fu-
ture? But one has only to view the videos, as we have done,
to realize the shallowness of the argument. The videos have
no text and no voice or other sound except unexplained
background noise. They are very brief, and of course two-
dimensional. They show—from one side only—a crawler
hanging from a chain and being lowered slowly to the floor
or raised from it, while being moved slowly from side to
side. No one (human or dummy) is under the crawler. Alt-
hough a worker occasionally appears in the videos, that is
the only indication of scale, and as his height is not indicat-
ed, or the angle from which the videos were shot, it is diffi-
cult to estimate the dimensions of the objects shown in them.
Apt here is the famous (if strangely titled) article by David
Foster Wallace, “Federer as Religious Experience,” New York
Times, August 20, 2006, explaining that much is lost in at-
tempts to translate a three-dimensional scene into a two-
dimensional photograph or video of a scene.
Nothing in Caterpillar’s videos so much as hints at an ac-
cident. To say that they depict a reenactment of the accident
is absurd. Given the absence of text and sound it is impossi-
ble to understand what, relative to the accident, the videos
demonstrate. Although the accident appears to have oc-
curred because the crawler shifted a few inches unexpected-
ly when it was already resting partially on the ground, no
such shift is visible in the videos. They provide no clue to a
possible cause of the accident—as confirmed by the fact that
the cause of the accident remains to this day undiscovered.
10 Nos. 14-3528, 14-3729
A second reenactment was staged about a week after the
first. One might have expected the company to invite
Thompson to the reenactment, as it would provide more in-
sight than the videos. Needless to say, she was not invited
and therefore not present. That second reenactment, by the
way, vitiates the company’s argument that “after the day of
the accident, there was no additional information to be
gleaned from on-site review of the scene, because the
equipment had been moved, the area cleaned, and opera-
tions resumed.” Why moving the equipment, cleaning up,
and resuming operations would have rendered on-site in-
spection worthless is left unexplained—and if there was no
information that could be obtained about the accident after
the first day, why did the company conduct a reenactment a
week later? Besides, if an on-site review by the union would
have been doomed to futility, why did the company make
such efforts to prevent the inspection?
Earlier we cited the Second Circuit’s decision in the Her-
cules case. The Labor Board’s decision upheld in that case
contains some pungent observations that are pertinent to the
present one: “In no sense then, is there merit to Respond-
ent’s argument that whatever rights the Union has to access
are to be nullified because OSHA conducted an investiga-
tion.” Hercules Inc., 281 N.L.R.B. 961, 964 (1986). “It defies all
reason to maintain that the cause of the accident could be
analyzed without a physical examination of the premises … .
Although witness reports, production reports, and operating
manuals no doubt are quite valuable in compiling a com-
prehensive investigation, these are independent of, and sup-
plementary to, a site inspection.” Id. at 967. “The potential
for controlling the results by controlling the investigator
simply is so obvious that we need not dwell on the claim
Nos. 14-3528, 14-3729 11
that Respondent’s air sampling reports are a viable alterna-
tive to the Union’s independent inspection. It is elementary
that here, as with the accident investigation, a verifiable, fair,
accurate, and complete investigation necessitates the Union
having access to conduct its own air monitoring. The need
for such live study by the Union is compelling.” Id. at 968.
“The Union is not obligated to rely solely on reports and in-
formation obtained by others. It is entitled to its own inde-
pendent examination of the facilities and this entitlement is
unrelated to the Respondent’s contention that its own stud-
ies and examinations are performed with such accuracy and
expertise that no independent verification is required. Such
position amounts to an absolute, closed-door policy and
renders irrelevant the balancing test that is required to be
done. Moreover, it would appear that the circumstances cre-
ate a presumption not only of relevancy and need, but of ac-
cess as well.” Id. at 970.
And finally: “Respondent’s final argument [is] that its
proprietary interest and the need to protect the secrecy of its
operation are paramount to the Union’s need for firsthand
information and justify exclusion of the Union. Whatever
appeal that contention arguably might have, fades in face of
the fact that Respondent does not maintain or implement an
absolute exclusionary policy in order to assure secrecy of its
operations, but indeed invites nonemployees on to its prem-
ises. … However, the condition for access that it readily af-
fords to other nonemployees and employees was not ten-
dered to the Union. It appears from that fact alone that Re-
spondent’s secrecy argument is disingenuous.” Id. at 970–71.
Caterpillar counters with Lechmere, Inc. v. NLRB, 502 U.S.
527 (1992)—a manifestly inapt reference. The issue was the
12 Nos. 14-3528, 14-3729
right of access to company property of nonemployees who
wanted to organize a union of the company’s employees.
That obviously would have a distracting, perhaps disrup-
tive, effect on the company’s operations, and could not be
defended by reference to a collective bargaining representa-
tive’s obligation to bargain for work practices consistent
with preserving the health and safety of the bargaining
unit’s members, because there was as yet no bargaining unit.
It’s no surprise, therefore, that neither the Labor Board nor
any court has applied Lechmere to safety and health inspec-
tions on behalf of employees represented by a union that has
a collective bargaining agreement with their employer.
What could be disruptive of Caterpillar’s operations at
the Milwaukee plant would be the union’s insisting on con-
tinuous inspections of the weld shop by members of the
emergency response team. But the Board made clear in its
opinion that the company need only permit reasonable in-
spections, properly spaced and timed and so forth.
The company admits and indeed asserts that there must
be a balance between the union’s interest in protecting the
health and safety of the workers whom it represents and the
company’s interest in avoiding disruptive intrusions on its
operations. What it fails to recognize is that after a fatal acci-
dent the union has a compelling interest in site access and
therefore the company faces a high hurdle in trying to
demonstrate that its property interests outweigh the union’s
need.
Here is a classic image of a balance: Two identical pans
are weighed against each other, and one sinks lower because
Nos. 14-3528, 14-3729 13
it contains heavier material. Caterpillar’s counsel admits that
the “pan” that holds the burden to the company of allowing
access to a member of the emergency response team is emp-
ty (because there is “no actual harm”), but we know that the
“pan” that holds the burden to the union and the workers of
being denied access is not empty. The balance thus unequiv-
ocally—as Caterpillar’s counsel in effect conceded—favors
the Labor Board’s ruling. He conceded himself out of court.
Since it is apparent that the materials shown Thompson
were not an adequate substitute for an on-site investigation,
and it is admitted that the investigation would have im-
posed trivial costs on the company unless the investigation
revealed safety problems that were expensive to fix, the chal-
lenge to the Board’s order has no merit. We therefore enforce
the order and deny the company’s petition for review.
14 Nos. 14-3528, 14-3729
MANION, Circuit Judge, concurring in the judgment.
We must enforce the Board’s order and deny Caterpillar’s
petition for review because both the Board and the ALJ
properly balanced the parties’ rights under Holyoke Water
Power Co., 273 N.L.R.B. 1369 (1985). The ALJ found that the
union’s right to responsible representation on the issues of
health and safety required an onsite inspection and that the
materials Caterpillar provided to the union were a poor sub-
stitute. Thus, the ALJ found that the union’s right to access
outweighed Caterpillar’s property rights. Caterpillar Inc., 359
N.L.R.B. No. 97 (Apr. 23, 2013). The Board affirmed these find-
ings. 361 N.L.R.B. No. 77 (Oct. 30, 2014). The Board’s decision
was supported by substantial evidence and its legal conclu-
sions have a reasonable basis in law. See Sears, Roebuck & Co.
v. NLRB, 349 F.3d 493, 502 (7th Cir. 2003).
The balance weighed is between the parties’ respective
rights, not the harms or burdens. Ante at 8; cf. ante at 12–13. To
determine whose right prevails, the Board balances the com-
pany’s property rights, which include the right to exclude oth-
ers, against the union’s right to responsible representation,
which requires information on health and safety conditions.
In so doing, the Board must consider whether the union’s
needs can be met by alternate means other than entering the
employer’s premises. Holyoke Water Power, 273 N.L.R.B. at
1370.
The Supreme Court has recognized that “[o]rganization
rights are granted to workers by the same authority, the Na-
tional Government, that preserves property rights,” and that
employers have the “right to exclude from property.” N.L.R.B.
v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). Caterpillar’s
lack of an “actual harm” from Thompson’s inspection does
Nos. 14-3528, 14-3729 15
not render its side of the scale empty. Caterpillar still retains
the right to exclude others from its property. The lack of harm,
however, shows in this case that Caterpillar’s property rights
can be sufficiently accommodated even if it is forced to allow
union access.
That said, even union access that results in “no actual
harm” still infringes on an employer’s property rights, requir-
ing the Board to determine whether the union has an actual
need for access. This was the point of Caterpillar’s reference
to a leaky faucet. Caterpillar did not analogize the accident
investigation sought by the union to an investigation of a
leaky faucet to trivialize the unfortunate man’s death. See ante
at 2. Rather, Caterpillar stressed that access must be granted
only where alternative means are insufficient:
The severity—indeed, the tragedy—of the acci-
dent is not in dispute. But, the touchstone of the
Holyoke standard is not the relative severity of
the accident that precipitated the Union’s de-
mand for access, it is the necessity of access as
the only means of carrying out the union’s rep-
resentational function. Again, that the Union
may seek access for a legitimate representa-
tional purpose is only the threshold question in
the analysis. Holyoke, 273 N.L.R.B. at 1370. The crit-
ical inquiry is whether access is required in or-
der for the union to undertake its investigation.
Id. If not, the employer’s competing property in-
terests prevail, whether the underlying issue
that the union seeks to investigate [is] an indus-
trial accident or a leaky faucet.
16 Nos. 14-3528, 14-3729
Appellant Br. 31. While “a leaky faucet” is perhaps not the
best comparison, the Board used the same comparison during
oral argument to explain why the relevance of the information
sought from an investigation must be established before Ho-
lyoke’s balancing test is applied. The Board did so to explain
why the ALJ discussed information cases when the union
sought access.
The ALJ found, by substantial evidence, that the alterna-
tive means to investigate were insufficient, so the union re-
quired access. It is the union’s need for access, rooted in the
employees’ right to responsible representation, that weighs
heavier on the scale than Caterpillar’s property rights. What-
ever benefit the union derives from demonstrating to its mem-
bers that it is not impotent is not weighed in the balance. 1 See
ante at 8. The right to responsible representation does not in-
clude the right to flex union muscle.
1Although we cannot exclude the possibility that Caterpillar refused
access to Thompson to prevent the union from “perhaps discovering neg-
ligence” or “to demonstrate to its employees that the union can do nothing
to enhance their safety,” ante at 8, there is no evidence in the record to
suggest that it was so. | 01-03-2023 | 10-02-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2828809/ | Filed 8/18/15
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
THE PEOPLE, ) No. BS 153534
)
Petitioner, ) Central Trial Court
)
v. ) No. 4EA06331
)
THE SUPERIOR COURT OF )
LOS ANGELES COUNTY, )
)
Respondent; ) OPINION
)
MARIA SANCHEZ-FLORES, )
)
Real Party in Interest. )
____________________________________________)
Petition for Writ of Mandate from an Order of the Superior Court of Los Angeles
County, Central Trial Court, Rupa Searight Goswami, Judge. Granted.
Jackie Lacey, District Attorney of Los Angeles County, by Phyllis C. Asayama,
Deputy District Attorney, and Beth L. Widmark, Deputy District Attorney, for petitioner.
Ronald L. Brown, Public Defender of Los Angeles County, by Albert Menaster,
Deputy Public Defender, for real party in interest.
* * *
1
The issue presented in this petition for a writ of mandate is whether, in deferring
sentence under Penal Code section 1001.94, respondent trial court abused its discretion
by not ordering real party to “complete the same obligations that would have been
imposed had judgment been entered.” (§ 1001.94, subd. (f).)1 We find an abuse of
discretion and accordingly grant petitioner relief.
BACKGROUND
Petitioner, the People of the State of California, charged real party in interest,
Maria Sanchez-Flores, with violating section 330.1, subdivision (a), by unlawfully
possessing or permitting the operation of a slot machine. The complaint also alleged real
party, within the meaning of subdivision (e) of the same statute, possessed more than one
slot machine. Real party, who was represented by counsel at all times, pled not guilty to
the charges2 and the cause was eventually placed on respondent’s trial calendar.
On the date set for trial, real party changed her plea to no contest and requested
diversion. Respondent, petitioner and real party were in agreement that petitioner met the
requirements of section 1001.94. Petitioner sought to have respondent require real party
to pay what she would have been required to pay had judgment been entered—a
mandatory minimum fine of $2,000 plus all mandated penalty assessments. Instead,
respondent obtained a waiver from real party to sentence her outside the statutory period,
and placed her on “formal diversion.” The court ordered real party to perform 150 hours
of community service, to complete 75 of the required hours within six months and the
balance within one year, to obey all laws and orders of the court, and to not incur any
“new convictions” during the one-year period. Respondent informed real party that if she
failed to complete the 150 hours of community service, she would be placed on probation
for three years and ordered to pay a fine of $2,000 plus penalty assessments. Petitioner
objected to respondent’s order on the ground it was inconsistent with subdivision (f) of
section 1001.94. This timely petition followed the court’s order.
DISCUSSION
1
All unspecified statutory references are to the Penal Code.
2
Although not reflected in the record, the parties agree that real party admitted she was in
possession of two slot machines.
2
The issue before this court is one of statutory interpretation. We commence our
analysis by first setting forth the standard of review, followed by an examination of the
statutes at issue—sections 330.1 and 1001.94.
“Our fundamental task involving statutory interpretation ‘“is to determine the
Legislature’s intent so as to effectuate the law’s purpose.” [Citation.] “We begin with
the plain language of the statute, affording the words of the provision their ordinary and
usual meaning and viewing them in their statutory context, because the language
employed in the Legislature’s enactment generally is the most reliable indicator of
legislative intent.” [Citations.] The plain meaning controls if there is no ambiguity in the
statutory language. [Citation.]’ [Citation.] ‘If there is no ambiguity in the language of
the statute, “then the Legislature is presumed to have meant what it said, and the plain
meaning of the language governs.” [Citation.] “Where the statute is clear, courts will not
‘interpret away clear language in favor of an ambiguity that does not exist.’ [Citation.]”’
[Citation.] ‘“If the statutory language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose, legislative history, and
public policy.”’ [Citation.]” (Ballpark, LLC v. Scull Simplon (2015) 235 Cal.App.4th
660, 667.)
Section 330.1, subdivision (a), makes it a misdemeanor offense to unlawfully
possess slot machines or devices. The statutory scheme provides for escalating fines
and/or imprisonment based on the defendant’s prior convictions for the same crime and
the number of machines or devices possessed at the time of the charged crime. For a first
conviction, the statute provides the defendant shall pay a fine not exceeding $1,000
and/or serve no more than six months in custody. (§ 330.1, subd. (b).) However, when a
defendant is convicted of possessing more than one slot machine, the statute requires a
mandatory minimum fine of at least $1,000 and no more than $5,000 for each machine or
device. (§ 330.1, subd. (e).) Thus, a person such as real party who is convicted for the
first time of unlawfully possessing two slot machines would face a mandatory minimum
fine of $2,000 and/or a jail sentence not exceeding six months. All fines are subject to
various state-mandated penalty assessments, fines and fees.
Section 1001.94 established a three-year Deferral of Sentencing Pilot Program in
Los Angeles County. (§§ 1001.94, subd. (a), 1001.99.) Under the statutory scheme, the
court, over the objection of the prosecutor, may defer sentencing for a first-time
misdemeanor defendant who has admitted guilt and who is not otherwise ineligible due to
the existence of any disqualifying condition. (§§ 1001.94, subds. (b) & (d), 1001.98,
subds. (a)-(h).) Sentencing may be deferred for a maximum of one year (§ 1001.94,
subd. (b)), and the defendant is required to complete all conditions ordered by the court,
3
to make full restitution, and to comply with any protective, stay-away or do not possess
any firearm orders (§ 1001.95). A defendant who successfully complies with the
conditions of deferred entry is entitled to have his/her plea stricken and the action
dismissed. (§ 1001.96, subd. (a).) With the exception of an application by the defendant
to become a peace officer (§ 1001.96, subd. (c)), the arrest record and deferred sentencing
are deemed to have never occurred. (§ 1001.96, subd. (b).) If, however, during the
deferral period, the defendant fails to comply with the conditions or reoffends, “the court
shall sentence the defendant as if deferral had not occurred.” (§ 1001.97.)
The purpose of the statutory scheme is to “reduce the stigma that is often
associated with a criminal record and to increase the likelihood that a defendant will be
able to obtain employment.” (§ 1001.94, subd. (d).) In enacting the Deferral of
Sentencing Pilot Program, the Legislature declared it was its intent “that no new
diversion programs are created, and that judges shall order a defendant, for whom
judgment is deferred, to complete the same obligations that would have been imposed
had judgment been entered.” (§ 1001.94, subd. (f), italics added.)
Here, the legislative intent has been codified. The Legislature clearly and
unequivocally stated its intent—namely, that the court shall order the defendant to
complete the same obligations as though judgment had not been deferred. No ambiguity
is present. Therefore, we are required to follow the literal meaning of the statute unless
doing so would create absurd consequences not intended by the Legislature. (Sierra Club
v. Superior Court (2013) 57 Cal.4th 157, 165-166.) The Legislature sought for
defendants to avoid the moral obloquy, but not the obligations, attached to a criminal
record, especially as it hinders access to employment.
Contrary to real party’s argument, reversing the trial court order will not
undermine the Legislature’s intent. The clearly stated intent was to provide relief from
conviction but not from the other obligations. Moreover, real party’s interpretation of the
statute gives no meaning to the words “judges shall order a defendant, for whom
judgment is deferred, to complete the same obligations that would have been imposed
had judgment been entered.”
“It is a maxim of statutory interpretation that courts should give meaning to every
word of a statute and should avoid constructions that would render any word or provision
surplusage. [Citations.] ‘An interpretation that renders statutory language a nullity is
obviously to be avoided.’ [Citation.]” (Tuolumne Jobs & Small Business Alliance v.
Superior Court (2014) 59 Cal.4th 1029, 1038.) The parties are in agreement that, had
judgment been entered and not deferred, respondent would have been required to order
4
defendant to pay a minimum $2,000 fine along with any required assessments, fines and
fees. There is no other obligation the court was required to impose. Because the court’s
order did not comply with the statutory scheme, it cannot stand.
We do not find compelling real party’s argument the order can be upheld on the
theory it falls within the scope of the court’s section 1385 discretionary power, as
articulated in People v. Hernandez (2000) 22 Cal.4th 512, 522, to strike the fine in the
absence of a “clear legislative directive to the contrary.” This argument can be dismissed
without resolving whether real party is correct that the mandatory minimum fine is
subject to the court’s discretionary power to not impose. Any exercise of discretion
under section 1385 must be accompanied by a minute order which sets forth the reasons
for the court’s use of this extraordinary power. (People v. Bonnetta (2009) 46 Cal.4th
143, 150-151.) Here, because the court’s actions were not pursuant to section 1385, there
is no concomitant minute order.
DISPOSITION
A writ of mandate shall issue directing respondent Superior Court of Los Angeles
County to vacate its January 7, 2015 deferred sentencing order.
_________________________
P. McKAY, P. J.
We concur:
_______________________ _________________________
B. JOHNSON, J. DYMANT, J.*
*Retired judge of the Los Angeles Superior Court sitting under assignment by the
Chairperson of the Judicial Council.
5 | 01-03-2023 | 08-19-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063060/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14553 ELEVENTH CIRCUIT
MARCH 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00174-CR-T-26-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTINIANO CALLES-GOMEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 25, 2010)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Justiniano Calles-Gomez appeals his sentence of 60 months’ imprisonment,
imposed after he pled guilty to reentry of a deported alien, in violation of 8 U.S.C.
§§ 1326(a) and (b)(1) (Count One), and unlawful entry by an alien, in violation of
8 U.S.C. §§ 1325(a)(1) and 1329 (Count Two). After review, we affirm.
I. BACKGROUND FACTS
A. Offense Conduct
Calles-Gomez is a Mexican citizen who works on shrimp vessels. Although
Calles-Gomez has never lawfully been admitted to the United States, he repeatedly
has been found either inside this country or attempting to enter.
In 1992, Calles-Gomez was arrested in Brownsville, Texas and convicted in
state court of driving while intoxicated. Although it does not appear Calles-Gomez
was deported after this conviction, at some point Calles-Gomez returned to Mexico
because, between October 1997 and February 1999, Calles-Gomez was
apprehended at the U.S. border four times and returned to Mexico.
In August 2002, the U.S. Coast Guard discovered Calles-Gomez on a shrimp
boat in the Brownsville area and turned him over to Border Patrol agents. This
time, Calles-Gomez was convicted in federal court of illegally entering the United
States, sentenced to time-served and deported to Mexico on September 23, 2002.
Calles-Gomez again illegally re-entered the United States. In April 2005,
Calles-Gomez came to the attention of authorities when he assaulted his wife, who
2
lives in Brownsville with their five children. In Texas state court Calles-Gomez
was convicted of misdemeanor assault and sentenced to a six-month jail term.
When his state jail term ended, Calles Gomez was turned over to federal
immigration authorities. On October 11, 2005, Calles-Gomez was convicted in
federal court of being an alien unlawfully found in the United States after
deportation. Calles-Gomez was given a 118-day sentence, after which he was
again deported to Mexico.
On March 13, 2009, an enforcement officer with the U.S. Customs and
Border Protection Office encountered Calles-Gomez at the Port of Tampa, Florida.
The officer determined that Calles-Gomez was a prior deported alien who had
previously been convicted of a felony and detained him. This last entry into the
United States is the basis for the instant offenses.
B. Sentencing
Calles-Gomez pled guilty to both counts in the indictment. The presentence
investigation report (“PSI”): (1) assigned Calles-Gomez a base offense level of
eight, pursuant to U.S.S.G. § 2L1.2(a); (2) added four levels because he previously
was deported after his 2005 felony conviction for being an alien unlawfully found
in the United States after deportation, pursuant to U.S.S.G. § 2L1.2(b)(1)(D); and
(3) subtracted two levels for his acceptance of responsibility, pursuant to U.S.S.G.
3
§ 3E1.1(a). A total offense level of 10 and a criminal history category of III
yielded an advisory guidelines range of 10 to 16 months’ imprisonment. The
statutory maximum term was ten years for Count One and two years for Count
Two. Calles-Gomez did not object to the PSI’s facts or guidelines calculations.
At sentencing, the district court adopted the PSI and found that Calles-
Gomez’s advisory guidelines range was 10 to 16 months. Calles-Gomez asked for
a sentence within the advisory range. Calles-Gomez stressed that his two previous
sentences for his federal immigration offenses were short (time-served in 2002 and
four months in 2005) and that a guidelines sentence would be considerably more
time than he had ever served before. He also argued that he re-entered the United
States for work purposes and for better opportunities. Calles-Gomez personally
apologized for his crimes and stated that he was not aware that he would face such
a long prison sentence or he would not have returned to the United States.
The district court reviewed Calles-Gomez’s criminal history. The district
court opined that sending Calles-Gomez back to Mexico and giving him short
sentences did not deter him given that he continued to come back to the United
States. The district court also noted that it had just sentenced another, very similar
defendant for immigration offenses. The district court stated that it had heard the
parties’ arguments and considered the § 3553(a) factors. The court explicitly
4
noted: (1) the nature and circumstances of the immigration offenses, which it
described as serious, and that a serious illegal immigration problem exists in the
United States; (2) Calles-Gomez’s history and characteristics, which indicated that
“[h]e just will not be deterred from coming into this country illegally”; (3) the need
for the sentence imposed “to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense, to afford adequate
deterrence for criminal conduct and protect the public from further crimes of the
Defendant”; and (4) the sentences the court had imposed in other illegal
immigration cases, including the case it had heard immediately before Calles-
Gomez’s, and the need to avoid unwarranted sentencing disparities among similar
defendants.
The district court stressed that Calles-Gomez had been ordered to leave the
United States on seven occasions and told not to return. The court stated that it
considered the other § 3553(a) factors, but that, “in [the court’s] mind, the
emphasis should be on the factors [the court] just identified in fashioning a
reasonable sentence in this case.” The court imposed a 60-month sentence for
Count One and a concurrent 24-month sentence for Count Two. The total 60-
month sentence was 44 months above the high end of the advisory guidelines range
of 10 to 16 months. The court found that the sentence was “fair and reasonable,
5
and is sufficient but not greater than necessary to comply with the statutory
purposes of sentencing.” Calles-Gomez objected to the court’s upward variance.
This appeal followed.
II. DISCUSSION
On appeal, Calles-Gomez argues that his 60-month sentence is unreasonable.
We review the reasonableness of a sentence for abuse of discretion using a two-
step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We
look first at whether the district court committed any significant procedural error
and then at whether the sentence is substantively reasonable under the totality of
the circumstances. Id. The party challenging the sentence bears the burden to
show it is unreasonable in light of the record and the § 3553(a) factors. United
States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).1
“If, after correctly calculating the guidelines range, a district court decides
that a sentence outside that range is appropriate, it must ‘consider the extent of the
deviation and ensure that the justification is sufficiently compelling to support the
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the
need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
6
degree of the variance.’” United States v. Williams, 526 F.3d 1312, 1322 (11th
Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 597
(2007)). Likewise, although “[s]entences outside the guidelines are not presumed
to be unreasonable, . . . we may take the extent of any variance into our calculus.”
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.
2847 (2009). However, we “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Here, Calles-Gomez has not met his burden to show his 60-month sentence
was procedurally or substantively unreasonable. Procedurally, there is no dispute
the district court correctly calculated the advisory guidelines range. The record
belies Calles-Gomez’s claims that the court failed to consider the § 3553(a) factors
or Calles-Gomez’s mitigation arguments and failed to explain its decision to
impose an upward variance. To the contrary, the district court explicitly
considered the § 3553(a) factors and the parties’ arguments, explained that the
majority of the factors outweighed Calles-Gomez’s arguments in mitigation and
provided a thorough rationale for its choice of sentence. Although Calles-Gomez
is correct that the district court did not explicitly discuss the need for him to
receive education or vocational training, the sentencing court is not required to
7
discuss each factor; rather an acknowledgment that it has considered all the factors
is sufficient. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Finally, the fact that the district court took into account Calles-Gomez’s
prior illegal re-entries in calculating the advisory guidelines range and in deciding
to impose an upward variance does not make the sentence unreasonable. See
United States v. Williams, 526 F.3d 1312, 1323-24 (11th Cir. 2008) (stating that
district court may consider the defendant’s prior offenses under the § 3553(a)
factors in deciding to impose an upward variance even though they had also been
used to calculate the defendant’s criminal history score). Nothing in § 3553(a) or
our binding precedent suggests that a district court should ignore those § 3553(a)
factors that have some overlap with the Sentencing Guidelines. See United States
v. Amedeo, 487 F.3d 823, 833-34 (11th Cir. 2007) (rejecting argument that
because conduct was considered in imposing guidelines enhancement, it could not
be considered under the § 3553(a) factors in imposing an upward variance).
Calles-Gomez also has not shown that his 60-month sentence is
substantively unreasonable. Calles-Gomez repeatedly defied orders not to re-enter
the United States. The record documents at least seven entries or attempted entries.
Calles-Gomez committed the instant re-entry offenses in 2009 despite already
having been prosecuted and convicted for illegal re-entry offenses in 2002 and
8
2005. Clearly, the shorter imprisonment sentences Calles-Gomez served had not
had a deterrent effect. Additionally, apart from his immigration offenses, Calles-
Gomez committed other crimes while in the United States.
Based on these facts, the district court concluded that a significant upward
variance was needed to reflect the seriousness of the offense, promote respect for
the law, protect the public and deter Calles-Gomez from again re-entering the
country and committing future crimes here. The district court’s stated concerns
over Calles-Gomez’s recidivism and criminal history in the United States were
sufficiently compelling to support the degree of the variance. See, e.g., Shaw, 560
F.3d at 1240-41 (affirming an 83-month upward variance based in large part on
district court’s concern over defendant’s long criminal history that was undeterred
by shorter sentences). Under the totality of the circumstances, we cannot say the
district court’s decision to impose a 60-month sentence was an abuse of discretion.
AFFIRMED.
9 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063061/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14246 ELEVENTH CIRCUIT
MARCH 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 90-00127-CR-J-20
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH AUSTRALIA BOWDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 25, 2010)
Before BARKETT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Joseph Australia Bowden appeals his sentence of imprisonment of 360
months imposed after the district court reduced Bowden’s original sentence of
imprisonment for 480 months for his drug crimes. 18 U.S.C. § 3582(c)(2).
Bowden argues that his sentence is unreasonable. We affirm.
In 1990, Bowden was convicted of conspiracy to distribute cocaine base, 21
U.S.C. § 846, possession with intent to distribute cocaine base, id. § 841(a)(1); 18
U.S.C. § 2, and six counts of distributing cocaine base, id.; 21 U.S.C. § 841(a)(1).
The presentence investigation report provided a base offense level of 36 because
Bowden’s crimes involved at least 500 grams of cocaine base, United States
Sentencing Guidelines § 2D1.1(a)(3) (Nov. 1987), and the report increased that
level by 4 points for Bowden’s possession of a firearm, id. § 2D1.1(b)(1), and his
substantial role in the conspiracy, id. § 3B1.1(c). With a criminal history of IV, the
report provided a sentencing range between 360 months and life imprisonment.
The district court sentenced Bowden to 480 months of imprisonment.
In January 2008, Bowden moved to reduce his sentence. 18 U.S.C. §
3582(c)(2). Bowden requested a two point reduction of his base offense level,
which provided an amended guideline range between 324 and 405 months of
imprisonment. See U.S.S.G. App. C, Amend. 706 (Supp. Nov. 1, 2007). Bowden
requested that the district court sentence him to 324 months of imprisonment.
After the district court appointed counsel for Bowden, he requested a sentence
2
below the guideline range based on the sentencing factors, 18 U.S.C. § 3553(a),
and the disparity among sentences imposed for offenses involving cocaine
hydrochloride and cocaine base.
The district court granted Bowden’s motion and reduced his sentence to 360
months of imprisonment. The district court explained that, except for the two level
reduction of Bowden’s base offense level, “all provisions of the judgment imposed
on February 18, 1991, . . . remain[ed] in effect . . . .” Bowden moved for
reconsideration. Bowden requested a “sentence not more than 324 months,” or
“[i]n the alternative,” for the district court to “state its reasons for declining to do
so.” The district court denied Bowden’s motion summarily.
We review “de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. Jones, 548 F.3d
1366, 1368 (11th Cir. 2008). A district court may reduce a term of imprisonment
when the guideline range is lowered by the Sentencing Commission. 18 U.S.C. §
3582(c). When the district court recalculates the sentence under the amended
guidelines, “all original sentencing determinations remain unchanged with the sole
exception of the guideline range that has been amended since the original
sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). The
district court must decide, in the light of the statutory sentencing factors, 18 U.S.C.
3
§ 3553(a), “whether, in its discretion, it will elect to impose the newly calculated
sentence under the amended guidelines or retain the original sentence.” Bravo, 203
F.3d at 781.
The district court did not err in reducing Bowden’s sentence. Bowden
argues that the district court failed to “consider and articulate” the sentencing
factors, 18 U.S.C. § 3553(a), and the court failed to account for his background and
rehabilitation, but the record refutes these arguments. The district court stated that
it had reviewed Bowden’s motion and “considered the supplemental presentence
report[,] . . . the parties responses,” and “the 18 U.S.C. § 3553(a) factors before
determining what was an appropriate sentence . . . .” See United States v.
Williams, 557 F.3d 1254, 1256–57 (11th Cir. 2009). After it considered Bowden’s
arguments, the district court reduced Bowden’s sentence to 360 months of
imprisonment. See 28 U.S.C. § 3553(a); Bravo, 203 F.3d at 781. Bowden also
argues that district court had discretion to reduce his sentence below the amended
range under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and
Kimbrough v. United States, 522 U.S. 85, 128 S. Ct. 558 (2007), but those
decisions do not apply to a motion to reduce a sentence. See United States v.
Melvin, 556 F.3d 1190, 1191–93 (11th Cir. 2009). Although Bowden asks that we
reconsider our decision in Melvin, the holding of a prior panel “is binding on all
4
subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by this court sitting en banc.” United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
Bowden’s modified sentence is AFFIRMED.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063062/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14283 ELEVENTH CIRCUIT
MARCH 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 05-00352-CR-JTC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMIE KITCHEN,
a.k.a. Fats,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 25, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Jimmie Kitchen appeals his eighteen-month sentence imposed upon
revocation of supervised release. After review, we affirm.
I. BACKGROUND
In November 1998, Kitchen was convicted of one count of conspiracy to
distribute and to possess with intent to distribute crack cocaine, in violation of 21
U.S.C. § 846, and two counts of distribution of crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced Kitchen to 262
months’ imprisonment and 5 years of supervised release. After the government
moved for a Federal Rule of Criminal Procedure 35(b) substantial assistance
reduction, the district court reduced Kitchen’s sentence to 90 months’
imprisonment and 5 years of supervised release.
A. Modification to Halfway House
During 2008, Kitchen violated the terms of his supervised release multiple
times and could have had his supervised release revoked. However, in May 2008,
Kitchen’s probation officer petitioned the district court to modify Kitchen’s
supervised release conditions to require that Kitchen reside at Dismas Charities, a
halfway house, to participate in a drug/alcohol treatment program for up to 120
days. The probation officer stated that: (1) Kitchen’s urine samples tested positive
for cocaine in April 2005 and March 2008; (2) Kitchen failed to provide urine
specimens seven different times between June 2005 and December 2005; (3)
2
Kitchen failed to maintain full-time verifiable employment for approximately
eleven months; (4) in 2007, Kitchen moved without notifying the probation officer;
and (5) Kitchen failed to submit monthly supervision reports for April through
October 2007 and January and February 2008. The district court granted the
modification.
B. Revocation of Supervised Release
In July 2008, the probation officer petitioned for a warrant and order to show
cause why Kitchen’s supervised release should not be revoked. The show-cause
petition charged that Kitchen failed to: (1) report to Dismas Charities on July 15,
2008, as instructed; (2) report to the U.S. Probation Office as instructed; (3)
provide urine specimens eight different times between May 2008 and July 2008;
and (4) submit monthly supervision reports as instructed for April, May, and June
2008. The district court issued a warrant for Kitchen’s arrest. In June 2009,
Kitchen was arrested in Dade County, Florida and the U.S. Marshal’s Service
executed the warrant.
At his supervised release revocation hearing, Kitchen admitted the
allegations in the show-cause petition. The government stated that Kitchen
committed a Grade C violation and had a criminal history category of II, and thus
the recommended guidelines range was four to ten months.
3
The government recommended that the district court sentence Kitchen to ten
months’ imprisonment. The government noted that in 2008, Kitchen had a
significant number of problems in his supervision and “then finally ended up
basically absconding last summer.” The government recommended no supervised
release because it believed additional supervision would not benefit Kitchen. The
district court stated:
[T]his appears to me, at first glance, to be one that may even warrant a
sentence above the guideline range, because of not just Mr. Kitchen’s
criminal history, but the number of violations, the fact he got such a
tremendous benefit in his last – on the sentence of conviction. I think
the judge knocked off, oh, he had an original sentence of 262 months,
and the judge reduced that to 90 I believe?
....
. . . And then to abscond from supervision, and – there seems to be a
continuing indication of no interest in following the rule of law, and
no respect for the law.
Kitchen responded that, although he received a significant sentence
reduction, it was irrelevant to the imposition of sentence upon revocation of
supervised release. Kitchen explained that he provided cooperation valuable
enough for the government to move for a Rule 35(b) sentence reduction and,
hence, his reduction was for services previously rendered, not a “down payment on
future behavior.”
Kitchen explained that he absconded to Miami after he missed his report
date to Dismas Charities because he knew that, by failing to report there, the next
4
time he reported to the probation office he would likely be arrested and sent back
to prison. Kitchen noted that while he was in Miami he was not committing
crimes. He worked at a car wash and sent money back to his family in Georgia.
He was arrested during a traffic stop when officers discovered he had an
outstanding bench warrant for an unresolved traffic violation in Miami. The
officers discovered the July 2008 federal arrest warrant and transferred him back to
Atlanta.
Kitchens requested an advisory guidelines sentence because the “guidelines
deal with the nature of the violations here,” which Kitchens stated were technical
violations. Although he admitted that absconding was “about the most severe
technical violation you could have,” nevertheless a sentence at the “top end of the
guidelines would be sufficient” to satisfy the court’s concerns about his
absconding. Kitchen requested that no supervised release follow his incarceration.
Kitchen personally addressed the district court and apologized. He
explained that, at the time, he thought it would be best if he stayed out of jail and
supported his family. He stated that while he was in Miami he washed cars every
day and sent money back home. He pointed out that when he was arrested on the
traffic violation, he gave the officers his real name and “told them I was wanted for
a warrant out of Atlanta as well.”
5
The district court revoked Kitchen’s supervised release and sentenced him to
eighteen months in prison, with no supervised release to follow since Kitchens did
not “appear to be amenable to supervision.” The district court explained the basis
for its sentence:
In considering the guideline range, and also considering the factors
under [18 U.S.C. §] 3553 such as the need to promote respect for the
law and provide just punishment, and to adequately deter further
criminal conduct, I do note that, not only did you not follow the rules
of supervised release, and particularly the number of drug tests that
you simply did not meet, I note that much of your previous criminal
record involves things like obstruction of police, resisting an officer,
failure to appear, obstruction, resisting arrest, failure to appeal.
Kitchen objected to the sentence because it was “not reasonable,” but raised no
procedural objection to it. Kitchen appealed to this Court.
II. DISCUSSION
“Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”
United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).1 The district
1
The relevant § 3553(a) factors that the court must consider are: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need to
afford adequate deterrence; (3) the need to protect the public; (4) the need to provide the
defendant with educational or vocational training or medical care; (5) the Sentencing Guidelines
range and pertinent policy statements of the Sentencing Commission; (6) the need to avoid
unwanted sentencing disparities; and (7) the need to provide restitution to victims. See 18 U.S.C.
6
court must also consider the policy statements in Chapter 7 of the Sentencing
Guidelines, one of which provides recommended, non-binding ranges of
imprisonment. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).
We review sentences imposed upon revocation of supervised release for
reasonableness. Sweeting, 437 F.3d at 1106-07. The party challenging the
sentence bears the burden of showing that it is unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
A reasonableness review is synonymous with the abuse-of-discretion
standard and uses a two-step process. Gall v. United States, 552 U.S. 38, 46, 128
S. Ct. 586, 594 (2007); United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.
2008). We look first at whether the district court committed any significant
procedural error and then at whether the sentence is substantively reasonable under
the totality of the circumstances. Pugh, 515 F.3d at 1190.2
When a sentencing judge decides to impose a sentence outside the advisory
§ 3583(e)(cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7)).
2
The parties agree that because Kitchen did not raise his procedural unreasonableness
argument below, plain error review applies. Cf. United States v. Bennett, 472 F.3d 825, 831
(11th Cir. 2006) (reviewing for plain error defendant’s objections to sentencing calculations
raised for first time on appeal). Under plain error review, “a defendant must show there is (1)
error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, we
may exercise our discretion to recognize a forfeited error, but only if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” United States v. Sanchez,
586 F.3d 918, 930 n.30 (11th Cir. 2009) (brackets omitted).
7
guidelines range, “he must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.” Gall,
552 U.S. at 50, 128 S. Ct. at 597. “Sentences outside the guidelines are not
presumed to be unreasonable, be we may take the extent of any variance into our
calculus.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied,
129 S. Ct. 2847 (2009).
Here, the sentence was procedurally reasonable. The district court correctly
calculated the advisory guidelines range, considered the § 3553(a) factors and,
contrary to Kitchen’s claims, gave an adequate explanation for the chosen
sentence. The district court expressly reviewed Kitchen’s criminal history of
obstruction, resisting officers, and failing to appear. The district court also noted
Kitchen’s multiple supervised release violations and year-long abscondence from
supervision. In doing so, the district court adequately explained the basis for its
chosen sentence.3
3
This case is distinguishable from United States v. Livesay, 525 F.3d 1081 (11th Cir.
2008), which Kitchen cites, because here the district court supported its recitation of the
§ 3553(a) factors with specific facts regarding Kitchen and his case that explained the factors’
application. See Livesay, 525 F.3d at 1093. We also reject Kitchen’s argument that the district
court erred by failing to explain, when it pronounced sentence, how its concern regarding
Kitchen’s substantial assistance reduction in his original sentence impacted the new sentence.
As reasonably construed, the record indicates the district court did not mention Kitchen’s
substantial assistance reduction when it finally pronounced sentence (after hearing Kitchen’s
argument as to why the reduction was irrelevant) because the district court did not consider it in
imposing sentence.
8
Kitchen also has not carried his burden to show his eighteen-month sentence
was substantively unreasonable. Kitchen argues the district court abused its
discretion when it imposed an upward variance because (1) Kitchen committed
only common technical violations, (2) he did not commit any new crimes while on
supervised release, (3) for two years he was “mostly” successful in observing the
supervised release conditions, and (4) an eighteen-month sentence would create an
unwarranted disparity between Kitchen’s sentence and those of similar offenders.
The facts show that Kitchen violated the terms of his supervised release
provisions twenty times, in 2005, 2007, and 2008. Nevertheless, the probation
office and the district court modified Kitchen’s supervised release terms to require
drug/alcohol treatment at a halfway house to avoid revocation. Kitchen responded
by immediately refusing to comply with the modification and then absconding
from supervision for a year. He did not return willingly. As the district court
noted, Kitchen also had a general criminal history of thwarting the law-
enforcement process. Under the totality of the circumstances, we cannot say the
district court abused its discretion when it imposed an eighteen-month sentence in
Kitchen’s case.
AFFIRMED.
9 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4350383/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1026
LARRY MCDOUGALD,
Plaintiff - Appellant,
v.
QUAD/GRAPHICS MARKETING, LLC, d/b/a Quad Graphics;
QUAD/GRAPHICS, INC., d/b/a Quad Graphics; QG PRINTING II, LLC, d/b/a
Quad Graphics, f/k/a QQ Printing II, Inc.,
Defendants - Appellees,
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; QUAD GRAPHICS,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:16-cv-01554-CMH-TCB)
Submitted: November 21, 2018 Decided: December 13, 2018
Before KING and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Matthew B. Kaplan, THE KAPLAN LAW FIRM PLLC, Arlington, Virginia, for
Appellant. Kevin M. Kraham, Cori K. Garland, LITTLER MENDELSON, P.C.,
Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Larry McDougald appeals the district court’s order granting Quad/Graphics
Marketing, LLC, d/b/a/Quad Graphics; Quad/Graphics, Inc., d/b/a/ Quad Graphics; QG
Printing II, LLC, d/b/a Quad Graphics, f/k/a QQ Printing II, Inc. (referred to collectively
herein as Quad/Graphics), summary judgment on McDougald’s race discrimination and
retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. §§ 2000e to 2000e-17 (West 2012 & Supp. 2018), and 42 U.S.C. § 1981
(2012). McDougald asserts that the district court erred in granting Quad/Graphics
summary judgment because he established prima facie cases for his race discrimination
and retaliation claims, and because he presented enough evidence to present his case to a
jury. We discern no reversible error and affirm.
We have reviewed the record and have considered the parties’ arguments and
agree that McDougald failed to demonstrate that similarly situated non-African American
employees were treated more favorably under similar circumstances. Thus, McDougald
failed to establish a prima facie case of race discrimination. See Coleman v. Md. Ct. of
App., 626 F.3d 187, 190 (4th Cir. 2010). We also agree that McDougald’s evidence
failed to establish the causation prong of his prima facie case of retaliation. See, e.g.,
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006) (“The actions
that led to Francis’ probation and termination began before her protected activity, belying
the conclusion that a reasonable factfinder might find that [the employer’s] activity was
motivated by Francis’ . . . complaints.”).
3
Based on the foregoing, we affirm the district court’s order. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
4 | 01-03-2023 | 12-13-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/131260/ | 540 U.S. 810
TEXASv.JACKSON.
No. 02-1094.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the Ct. App. Tex., 11th Dist.
2
Certiorari denied. Reported below: 75 S. W. 3d 653. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/131262/ | 540 U.S. 810
BLACKMANv.CITY OF DALLAS, TEXAS.
No. 02-901.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 5th Cir.
2
Certiorari denied. Reported below: 33 Fed. Appx. 704. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2892773/ | NO. 07-05-0021-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY11, 2005
______________________________
JEREMIAH BRYAN BLEEKER, APPELLANT
V.
LOGAN ANDREWS, APPELLEE
_________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-523,419; HONORABLE MACKEY HANCOCK, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
By letter dated January 20, 2005, this Court directed appellant Jeremiah Bryan
Bleeker to pay the required filing fee of $125 by January 30, 2005, noting that failure to do
so might result in dismissal of the appeal. Unless a party is excused from paying a filing
fee, the Clerk of this Court is required to collect filing fees set by statute or the Supreme
Court when an item is presented for filing. See Tex. R. App. P. 5 and 12.1(b). Although
the filing of a notice of appeal invokes this Court's jurisdiction, if a party fails to follow the
prescribed rules of appellate procedure, the appeal may be dismissed. Tex. R. App. P.
25.1(b). Thus, because the filing fee of $125 remains unpaid, we must dismiss the appeal.
Accordingly, the appeal is dismissed for failure to comply with the Texas Rules of
Appellate Procedure and with a notice from the Clerk requiring payment of the filing fee.
Tex. R. App. P. 42.3(c).
Don H. Reavis
Justice
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NO. 07-07-0016-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 22, 2009
______________________________
DOMINIC RYAN AYON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 17,860-B; HON. JOHN BOARD, PRESIDING
_______________________________
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
Memorandum Opinion
Appellant Dominic Ryan Ayon appeals from his conviction of the offense of
possession of a firearm by a felon and his resulting sentence of six years imprisonment in
the Institutional Division of the Texas Department of Criminal Justice. Via four issues,
appellant challenges the legal and factual sufficiency of the evidence to support his
conviction. We find the evidence sufficient and affirm.
Background
Appellant’s indictment for possession of a firearm by a felon
also set forth
appellant’s 2004 felony conviction of the offense of burglary of a habitation.
Following
appellant’s plea of not guilty, this matter proceeded to trial by jury.
At trial, the evidence established that Amarillo CrimeStoppers received a tip that
appellant had a sawed-off shotgun and two hand grenades in an apartment. When officers
went to the apartment identified in the tip,
appellant answered the door. When officers
told him of the anonymous tip, appellant laughed and said he didn’t have any hand
grenades. He told the officers his girlfriend had a shotgun.
At the officers’ request, appellant read and signed a consent to search form that
repeatedly described the premises to be searched as “my premises.” One of the officers
asked appellant where the shotgun was located and he pointed into the bedroom and told
him it was on the bed. Officers located the shotgun underneath the sheets on the bed.
The barrel and stock of the gun had been shortened by sawing. Appellant accurately told
officers there was one “round” in the chamber of the gun. After obtaining consent to
continue searching the apartment, officers located boxes of 9 mm rounds and additional
shotgun shells.
After officers returned to their vehicles, they learned appellant had previously been
convicted of a felony. As a result, the officers returned to the door of the apartment and
appellant allowed them to reenter. The officers explained to appellant that they were
taking custody of all of the items they had located in their search. In response, appellant
told one of the officers that the shotgun was there because someone had tried to break
into his apartment on several occasions.
At the close of the evidence, the jury returned a verdict of guilty as alleged in the
indictment. The court assessed punishment at six years imprisonment and this appeal
followed.
Analysis
In reviewing issues of legal sufficiency, an appellate court views the evidence in the
light most favorable to the verdict to determine whether, based on that evidence and
reasonable inference therefrom, a rational jury could have found each element of the
offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95
(Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The
standard for legal sufficiency review “gives full play” to the jury’s responsibility to fairly
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Sanders v. State,
119 S.W.3d 818, 820 (Tex.Crim.App. 2003). If, given all of the evidence, a rational jury
would necessarily entertain a reasonable doubt of the defendant’s guilt, due process
requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at
95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507
U.S. 975,113 S.Ct. 1422, 122 L. Ed. 2d 791 (1993). Circumstantial evidence is as probative
as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient
to do so. Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007), citing Guevara v. State,
152 S.W.3d 45, 49 (Tex.Crim.App. 2004).
A factual sufficiency review of the evidence is “barely distinguishable” from the legal
sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618, 625
(Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence
supporting guilt, though legally sufficient, is so weak that the jury’s verdict seems clearly
wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury’s
verdict is against the great weight and preponderance of the evidence. Id.; Watson v.
State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11
(Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the evidence,
but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414.
Pursuant to Penal Code § 46.04(a), a person who has been convicted of a felony
commits an offense if he possesses a firearm: (1) after conviction and before the fifth
anniversary of the person’s release from confinement following conviction of the felony or
the person’s release from supervision under community supervision, parole, or mandatory
supervision, whichever date is later; or (2) after the period described by Subdivision (1), at
any location other than the premises at which the person lives. Tex. Penal Code Ann. §
46.04(a) (Vernon 2003).
The State must show appellant (1) exercised actual care, control, or custody of the
firearm; (2) he was conscious of his connection with the firearm; and (3) he possessed the
firearm knowingly or intentionally.
We analyze the sufficiency of the evidence to prove
possession of a firearm by a felon under the rules adopted for determining the sufficiency
of the evidence in cases of possession of a controlled substance. Bates v. State, 155
S.W.3d 212, 216 (Tex.App.–Dallas 2004, no pet.); Smith v. State, 118 S.W.3d 838, 841
(Tex.App.–Texarkana 2003, no pet.); Nguyen v. State, 54 S.W.3d 49, 52
(Tex.App.–Texarkana 2001, pet. ref’d).
The State was not required to prove that appellant had exclusive possession of the
firearm; joint possession is sufficient to sustain a conviction. Cude v. State, 716 S.W.2d
46, 47 (Tex.Crim.App. 1986). The State can meet its burden with direct or circumstantial
evidence, but it must establish that the defendant's connection with the firearm was more
than fortuitous. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005);
Grantham v. State, 116 S.W.3d 136, 143 (Tex.App.–Tyler 2003, no pet.); Davis v. State,
93 S.W.3d 664, 667 (Tex.App.–Texarkana 2002, pet. ref’d).
When the firearm is not found on the accused's person or is not in the accused's
exclusive possession, additional facts must link the accused to the firearm. Jones v. State,
963 S.W.2d 826, 830 (Tex.App.–Texarkana 1998, pet. ref’d). In determining whether
sufficient links exist, we examine factors such as whether the firearm was in plain view,
whether appellant owned the residence where the firearm was found, whether he was in
close proximity to the firearm and had ready access to it or whether it was found on him,
whether he attempted to flee, whether his conduct indicated a consciousness of guilt,
whether he had a special connection to the firearm, whether the firearm was found in an
enclosed space, and whether he made incriminating statements. The number of factors
present is not as important as the logical force or the degree to which the factors, alone or
in combination, tend to link the accused to the contraband. Smith v. State, 176 S.W.3d
907, 916 (Tex.App.–Dallas 2005, pet. ref’d); Hawkins v. State, 89 S.W.3d 674, 677
(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d); Corpus v. State, 30 S.W.3d 35, 38
(Tex.App.–Houston [14th Dist.] 2000, pet. ref’d). No set formula of facts exists to dictate
a finding of links sufficient to support an inference of knowing possession. Taylor v. State,
106 S.W.3d 827, 830 (Tex.App.–Dallas 2003, no pet.); Nguyen, 54 S.W.3d at 53.
Officer testimony and a defense exhibit presented at trial established that the
identified address, along with another address, was associated with appellant’s name.
Officer testimony also established that a car matching the description provided was
observed at the apartment and appellant answered the door. On that occasion, appellant
was the only individual present at the apartment. Appellant also referred to the apartment
as “his” and signed a consent form that repeatedly referenced the premises to be searched
as “my premises.” Appellant knew exactly where the shotgun was located in the bedroom
of the apartment and knew there was one “round” in the chamber. Further, when officers
executed the outstanding warrant for appellant’s arrest about two weeks after their initial
visit, appellant again answered the door at the apartment.
The logical force of this evidence together is legally sufficient to link appellant to the
firearm. And, when viewed in the light most favorable to the prosecution, a rational trier
of fact could have found the requisite elements of this offense. Thus, the evidence is
legally sufficient to support appellant’s conviction.
Finding the evidence legally sufficient, we turn to the factual sufficiency of the
evidence to support appellant’s conviction. Appellant presented evidence contrary to the
verdict of guilt. A palm print lifted from the shotgun matched neither appellant nor his
girlfriend. During cross-examination of one of the police officers, appellant introduced his
driver’s license as evidence his listed address was different from the apartment’s address.
One of the officers did not recall what address was in the department’s computer system
for appellant and admitted he had no physical evidence tying appellant to the shotgun or
the boxes of ammunition. The officer also acknowledged he did not know who owned the
gun and acknowledged they did not locate hand grenades. During cross-examination of
another officer, appellant introduced a lease for the apartment. The lease listed appellant’s
girlfriend as the lessee and did not list any other occupants. The officer also testified that
he believed that someone “ran the tag” to the black Lexus and found it belonged to
appellant’s girlfriend.
Appellant also emphasizes evidence that the shotgun was owned by his girlfriend.
Evidence supporting that assertion came only from appellant. It was appellant who told
officers that the shotgun belonged to his girlfriend. He also told officers the gun was given
to her by her father. When an officer suggested appellant might obtain an affidavit from
the father, however, appellant responded he “wasn’t sure that’s how it happened, but that’s
possibly what happened.” Moreover, the statute does not require ownership of the firearm;
it requires only care, custody, control or management of it. Tex. Penal Code Ann. §
46.04(a) (Vernon 2003); Knight v. State, No. 07-07-0099-CR, 2008 WL 3824003
(Tex.App.–Amarillo Aug. 15, 2008, pet. stricken) (mem. op., not designated for publication);
Good v. State, No. 01-05-00639-CR, 2007 WL 274526 (Tex.App.–Houston [1st Dist.] Feb.
1, 2007, pet. ref’d) (mem. op., not designated for publication).
Viewing the entire record in a neutral light, and giving due consideration to the
evidence contrary to the verdict of guilt, we find no objective basis on which to conclude
the evidence is so weak that the jury’s verdict seems clearly wrong and manifestly unjust
or that, given the evidence to the contrary, the great weight and preponderance of all the
evidence contradicts the jury’s verdict. We therefore overrule appellant’s issues on appeal
and affirm his conviction and sentence.
James T. Campbell
Justice
Do not publish. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2987374/ | March 26, 2013
JUDGMENT
The Fourteenth Court of Appeals
FELICIA WILLIAMS, INDIVIDUALLY AND D/B/A IN THE URBAN CITY
INVESTMENT GROUP, Appellant
NO. 14-12-00691-CV V.
DESTRY C. BELL, SR. AND CHRIST TEMPLE OF DELIVERANCE CHURCH
OF GOD IN CHRIST, INC., Appellees
____________________
This cause, an appeal from the judgment in favor of appellees, Destry C.
Bell, Sr. and Christ Temple of Deliverance Church of God in Christ, Inc., signed
April 30, 2012, was heard on the transcript of the record. We have inspected the
record and find the trial court erred in finding that usurious interest had been
charged by appellant, Felicia Williams, individually and d/b/a In the Urban City
Investment Group, imposing statutory damages, and granting summary judgment
on grounds not asserted in the appellees’ motion for summary judgment. We
therefore order that the portions of the judgment that concern these errors are
REVERSED and ordered severed and REMANDED for proceedings in
accordance with this court's opinion.
Further, we find no error in the remainder of the judgment and order it
AFFIRMED.
We order each party to pay their own costs incurred in this appeal. We
further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8541096/ | PER CURIAM:
I
El 16 de diciembre de 2008, la Sra. Eileen Domenech Rodríguez presentó una queja contra el Ledo. Jaime Rodríguez Cora ante este Foro. En ésta, alegó que había contratado los servicios del licenciado para que diligenciara los trámites relacionados con la liquidación y adjudicación de un caudal relicto que pertenecía a sus dos hijas menores de edad. Según surge de la queja presentada, el padre de las menores, Sr. Luis Alfredo Vélez Acevedo, también mante*450nía una póliza de seguro de vida en la cual las dos menores de edad y la señora Domenech Rodríguez figuraban como beneficiarías. En su queja, la señora Domenech relató que, a pesar de que no medió un contrato escrito entre las partes, se acordó una comisión por los servicios legales del licenciado Rodríguez Cora, la cual fluctuaría entre un 7% y un 10%. La señora Domenech Rodríguez sostuvo que, aun existiendo ese acuerdo verbal, el licenciado Rodríguez Cora había facturado una cuantía mucho mayor e, incluso, había cobrado honorarios por garantizar el pago de la póliza de seguro de vida, para la cual tanto ella como las menores eran beneficiarías. En su querella, la señora Domenech Rodríguez argüyó que la referida póliza no formaba parte del caudal relicto sujeto a liquidación, por lo que era improcedente que el licenciado Rodríguez Cora cobrara por tramitar su pago. Además, la señora Domenech Rodríguez alegó que, ante su insatisfacción con los servicios prestados por el licenciado, se vio obligada a advertirle a éste que cualquier factura adicional relacionada con los bienes de las menores tendría que ser canalizada mediante un tribunal, puesto que ella no tenía dinero para pagarle.
Así las cosas, el licenciado Rodríguez Cora presentó una moción ante el Tribunal de Primera Instancia, sala de Aguadilla, para el pago de honorarios de abogado por los servicios prestados. En su queja, la señora Domenech Rodríguez indicó que, una vez el Tribunal de Primera Instancia se percató de la ausencia de un contrato de servicios legales escrito entre las partes, comenzó a investigar más a fondo los pormenores del caso. Relató la señora Domenech Rodríguez que, ante la inminente investigación por parte del foro primario, el licenciado Rodríguez Cora renunció a la representación legal.
La señora Domenech Rodríguez procedió entonces a contratar los servicios del Ledo. Sergio Radinson Carabalio, quien se encargó de realizar todos los trámites conducentes a liquidar y adjudicar el caudal relicto de las *451menores. No empece la renuncia del licenciado Rodríguez Cora, el Tribunal de Primera Instancia procedió a citarlo para dilucidar si este había cobrado indebidamente por las gestiones que realizó para asegurar el pago de las pólizas a favor de las menores. Ante esta situación, el licenciado Rodríguez Cora, representado por la Leda. Norma Brignoni Serrano, se reunió con el licenciado Radinson Caraballo en aras de llegar a un acuerdo en torno al pago de honorarios. En la reunión se acordó que el licenciado Rodríguez Cora devolvería a la señora Domenech Rodríguez la suma de $10,547.89 en un término de cuatro meses. Este acuerdo fue concertado en octubre de 2005.
Según se desprende de la queja, no fue hasta el 13 de marzo de 2008 que la licenciada Brignoni Serrano remitió a la señora Domenech Rodríguez un cheque por la cantidad de $3,000. Tras recibir ese cheque, la señora Domenech Rodríguez, por vía de su representante legal, continuó intentando cobrar el remanente de la deuda conforme al acuerdo pactado. Sin embargo, luego de varios intentos infructuosos, la señora Domenech Rodríguez anuló el acuerdo y devolvió los $3,000 al licenciado Rodríguez Cora.(1) Consiguientemente, la señora Domenech Rodríguez presentó la queja que nos ocupa y solicitó que el licenciado Rodríguez Cora fuera desaforado y que se le ordenara pagar una suma ascendente a $21,095.89 por el cobro de lo indebido.
El 28 de enero de 2009 se le concedió un término de diez días al licenciado Rodríguez Cora para que compareciera y reaccionara por escrito a la queja presentada en su contra. Ante su incomparecencia, el 20 de marzo de 2009 se le concedió un término adicional improrrogable de cinco días para comparecer. El licenciado Rodríguez Cora no compa*452reció nuevamente, por lo que el 18 de junio de 2009 se le concedió, mediante resolución, un término final de diez días y se le apercibió de que el incumplimiento con la resolución podría conllevar sanciones disciplinarias, incluyendo la suspensión de la práctica de la abogacía.
El 24 de junio de 2009, el licenciado Rodríguez Cora compareció mediante una Moción en Solicitud de Prórroga. En ésta adujo que los reclamos contenidos en la queja estaban siendo atendidos por el Tribunal de Primera Instancia de Aguadilla, por lo que procedía esperar a que ese foro aquilatara la prueba y emitiera una resolución.(2) En la alternativa, solicitó que se le concediera un periodo de treinta días para tramitar la contratación de representación legal y estar en mejor posición de defenderse de la queja instada en su contra.
El 30 de junio de 2009 se le concedió al licenciado Rodríguez Cora un término de veinte días para contestar la queja. Posteriormente, el 21 de julio de 2009, el licenciado Rodríguez Cora presentó una Moción informativa y en oposición a queja, mediante la cual alegó que: (1) el acuerdo verbal establecía honorarios de un 10% de lo que recibieran las menores de edad; (2) no medió incertidumbre con relación a los trabajos que habrían de realizarse en la liquidación y adjudicación del caudal, y (3) los honorarios cobrados no fueron por gestionar el pago de las pólizas a favor de las menores, sino por asegurar que la casa aseguradora remitiera este pago directamente a la señora Domenech Rodríguez. Además, alegó que no se configuró el cobro de lo indebido y que técnicamente pudo haber cobrado más. *453No obstante, indicó que ante el Tribunal de Primera Instancia había afirmado que estaría dispuesto a devolver lo cobrado con relación a la póliza. Por último, explicó que se vio imposibilitado de continuar pagando la cuantía acordada extrajudicialmente, puesto que el foro primario no había aprobado tal transacción ya que no se había consultado a la Procuradora de Menores ni al Defensor Judicial de las menores involucradas. Aun así, el licenciado Rodríguez Cora reiteró que estaba dispuesto a devolver todo el dinero cobrado en aras de prevenir los posibles perjuicios a su reputación que resultarían de la queja presentada.
El 23 de julio de 2009 referimos el expediente de la queja a la Oficina de la Procuradora General para la presentación del informe correspondiente, el cual fue presentado el 2 de noviembre de 2009. En éste se concluyó que el licenciado Rodríguez Cora había incurrido en posibles violaciones a los Cánones 18, 24 y 38 del Código de Ética Profesional, 4 LPRAAp. IX. Según este informe, el 15 de enero de 2010, emitimos una resolución mediante la cual se le ordenó a la Oficina de la Procuradora General presentar una querella contra el licenciado Rodríguez Cora. La querella fue presentada el 26 de abril de 2010, por lo que el 28 de abril de 2010 se le ordenó al licenciado presentar su contestación en un término de quince días. Así las cosas, el 3 de noviembre de 2010, mediante resolución, referimos la querella a la Comisionada Especial, Hon. Eliadís Orsini Zayas, quien procedió a presentar su informe el 3 de julio de 2012. En éste se concluyó que, en lo relativo a los dineros cobrados por el licenciado Rodríguez Cora en concepto de honorarios de abogado “no medió nunca autorización judicial previo a recibir las cantidades y que dichos honorarios provenían de una masa común de dinero que contenía los dineros de doña Eileen Domenech y los de sus hijas menores de edad”. Informe de la Comisionada Especial, pág. 56. Además, la Comisionada determinó que la versión de la señora Domenech Rodríguez, a los efectos de que dis*454puso indebidamente del patrimonio de las menores de edad con el asesoramiento legal del licenciado Rodríguez Cora, no merecía credibilidad. Esto, puesto que la señora Domemenech Rodríguez continuó disponiendo indebidamente del dinero perteneciente a las menores aun luego de la renuncia del licenciado Rodríguez Cora “pues ese era su deseo y convencimiento desde el inicio”. íd., pág. 65.(3)
II
En nuestra jurisdicción, las actuaciones de los abogados y abogadas deben ceñirse al Código de Etica Profesional, cuyos cánones constituyen las normas de conducta que regulan su desempeño, tanto en el ámbito profesional como en otras actividades en las que se desenvuelven. Véase In re Izquierdo Stella, 154 DPR 732 (2001). En el caso que nos ocupa, se le imputan al licenciado Rodríguez Cora, en el descargo de sus responsabilidades profesionales, violaciones a los Cánones 18, 24 y 38 de ese Código, supra. Pro-cede, pues, evaluar la procedencia de tales cargos. Por en-tender que las actuaciones del licenciado Rodríguez Cora constituyen violaciones a los Cánones 18 y 24 y son sancionables según éstos, consideramos superfino, en este caso, acudir al Canon 38 al imponer la medida disciplinaria correspondiente.
*455A
El Canon 18 del Código de Ética Profesional, supra, regula lo relativo al deber de competencia del abogado al cliente. El referido canon establece, en lo pertinente, que “[e]s deber del abogado defender los intereses del cliente diligentemente, desplegando en cada caso su más profundo saber y habilidad y actuando en aquella forma que la profesión jurídica en general estima adecuada y responsable”. Además, el Canon 18 establece que el abogado debe desempeñarse de forma capaz y diligente, siempre actuando en los límites de la ley. Véase id.
En la querella presentada contra el licenciado Rodríguez Cora, se le imputa no haber desplegado la diligencia debida en su representación de las menores, cuyos bienes la señora Domenech Rodríguez administraba. Esto es, el licenciado Rodríguez Cora, al realizar los trámites relacionados con la liquidación del caudal relicto en cuestión, y cobrar honorarios por esas diligencias, debió haber procurado que la señora Domenech Rodríguez solicitara la debida autorización judicial previo al pago de los honorarios, conforme al Art. 159 del Código Civil, 31 LPRA see. 616.
En ocasiones anteriores, hemos sido inequívocos al afirmar que el Canon 18 del Código de Ética Profesional, supra, impone a los miembros de la profesión legal el deber ineludible e indelegable de defender los intereses de sus clientes, desplegando su máximo conocimiento de manera adecuada y responsable. Véanse: In re Pizarro Colón, 151 DPR 94, 105 (2000); In re Mundo Rodríguez, 146 DPR 639 (1998); In re Cardona Ubiñas, 146 DPR 598 (1998); In re Osorio Díaz, 146 DPR 39 (1998); In re Vélez Valentín, 124 DPR 403 (1989); In re Arana Arana, 112 DPR 838 (1982). Como adelantamos, es una norma claramente establecida en nuestro ordenamiento que cualquier transacción que involucre bienes de menores que exceda los $2,000 requiere autorización judicial. Véase Art. 159 del Código Civil, supra. *456El referido articulado exige una autorización previa del tribunal cuando un padre o una madre que ostente patria potestad se proponga enajenar o gravar bienes pertenecientes a un menor cuyo valor exceda los $2,000 y estén bajo su administración.
De los hechos se desprende que, en ningún momento durante la relación contractual, el licenciado Rodríguez Cora procuró que la señora Domenech Rodríguez solicitara la autorización del Tribunal para desembolsar fondos pertenecientes a las menores. Evidentemente, las cuantías desembolsadas por la señora Domenech Rodríguez en concepto de honorarios de abogado por las gestiones realizadas a favor de las menores no cumplen con el requerimiento del Art. 159 del Código Civil, supra. Por lo tanto, es altamente reprensible que el licenciado Rodríguez Cora haya cobrado por los honorarios de abogado cuantías que le fueron desembolsadas de manera ilegal y sin tomar en consideración los intereses de las menores de edad a quienes representaba. El licenciado Rodríguez Cora, conforme a los preceptos legales aplicables, sabía o debía saber que tales transacciones eran ilegales, dado el hecho de que la señora Domenech Rodríguez no contaba con la autorización judicial correspondiente.
Por último, en lo que respecta al Canon 18, es importante recabar que la cuantía que recibe un beneficiario de una póliza de seguro de vida no forma parte del caudal relicto. Véanse: In re Barlucea Cordobés, 155 DPR 284, 291 (2001); Méndez v. Morales, 142 DPR 26, 39 (1996). En atención a esto, hemos resuelto que un miembro de la profesión legal infringe el citado Canon 18 cuando pretende cobrar honorarios contingentes por cuantías recibidas por su cliente en concepto de beneficios de una póliza de seguros que no es parte del caudal sujeto a adjudicación y liquidación. Véase In re Barlucea Cordobés, supra, pág. 291. Según se desprende del expediente, el licenciado Rodríguez Cora hizo entrega a la señora Domenech Rodrí*457guez de una factura “[p]or servicios profesionales y tiempo invertido en gestionar el pago del producto de una póliza de vida para beneficio de [las menores]” ascendente a $12,755.80. Apéndice, pág. 30. Dos facturas posteriores en concepto de tramitación del desembolso de la prima ascienden a los $4,169.99 por menor. En éstas, se detalla que la cuantía cobrada es en concepto del 10% de la cuantía desembolsada a favor de cada una de las menores por la compañía aseguradora. Véase Apéndice, pág. 31. Estas actuaciones por parte del licenciado Rodríguez Cora no solo demuestran falta de competencia en su desempeño profesional sino que, además, constituyen una violación al Canon 24 del Código de Ética Profesional, 4 LPRAAp. IX, el cual regula lo relativo a los contratos de servicios profesionales y el cobro de honorarios de abogado. Veamos.
B
En repetidas ocasiones hemos afirmado que un contrato de servicios profesionales suscrito entre un abogado y un cliente es distinguible de otros contratos típicos de arrendamiento de servicios, pues “[l]a relación entre abogado y cliente responde en gran medida a las inexorables exigencias éticas, muy particulares de esta profesión”. Nassar Rizek v. Hernández, 123 DPR 360, 369 (1989). Esta naturaleza sui géneris exterioriza, a su vez, la responsabilidad social que ostentan los miembros de la profesión legal en nuestro sistema de justicia. A tales efectos, el Canon 24 del Código de Ética Profesional, supra, regula lo relativo a los contratos de servicios profesionales y los honorarios de abogados al disponer, en lo pertinente, que la fijación de éstos “debe regirse siempre por el principio de que nuestra profesión es una parte integrante de la administración de la justicia y no un mero negocio con fines de lucro”. íd.
Asimismo, el Canon 24 preceptúa los factores que deben tomarse en consideración al momento de fijar los *458honorarios de abogado y establece que “[e]s deseable que se llegue a un acuerdo sobre los honorarios a ser cobrados por el abogado al inicio de la relación profesional y que dicho acuerdo sea reducido a escrito”. Id. Por último, el Canon 24 prescribe que, cuando un abogado acepta representar a un cliente, “debe considerar que le debe a éste un máximo de esfuerzo profesional en la medida de su talento y preparación”. íd. Sin duda, esta disposición está estrechamente relacionada al deber de diligencia y competencia que encarna el Canon 18 del Código de Etica Profesional, supra.
Constantemente, hemos expresado que es la mejor práctica que el abogado reduzca a escrito un contrato de servicios profesionales en aquellos casos en que la extensión y el valor de sus servicios no sean fácilmente calculables al inicio de la relación contractual. Este contrato, una vez reducido a escrito, deberá contener los términos de la relación obligacional, libre de ambigüedades y haciendo constar las contingencias previsibles que pudieran surgir durante el transcurso del pleito. Véanse: In re Rodríguez Mercado, 165 DPR 630, 642 (2005); Pérez v. Col. Cirujanos Dentistas de P.R., 131 DPR 545 (1992); Ramírez, Segal & Látimer v. Rojo Rigual, 123 DPR 161 (1989); Colón v. All Amer. Life & Cas. Co., 110 DPR 772 (1981). Una vez un contrato se reduce a escrito, además, se evitan potenciales controversias con los clientes relacionadas con la compensación por los servicios profesionales prestados. Véanse: In re Rodríguez Mercado, supra, pág. 643; Méndez v. Morales, supra.
Según los hechos, en el presente caso no medió un contrato escrito entre el licenciado Rodríguez Cora y la señora Domenech Rodríguez. Por lo tanto, resulta difícil determinar los términos que regirían la relación obligacional entre ambos. Cabe destacar, sin embargo, que el licenciado Rodríguez Cora, en el despliegue de sus responsabilidades como representante legal de la señora Domenech Rodríguez y sus dos hijas menores de edad, no presentó un des*459glose de las horas trabajadas para justificar la cantidad de dinero que cobró por los servicios prestados a las menores. Tratándose de honorarios por la liquidación de un caudal perteneciente a dos menores de edad y específicamente cuando se pretendía cobrar honorarios por la tramitación del pago de una póliza de seguros, este desglose debía ser presentado ante un defensor judicial o la Procuradora de Relaciones de Familia, puesto que la cuantía cobrada excedía el límite que dispone el Art. 159 del Código Civil, supra.
El licenciado Rodríguez Cora, en su Moción en oposición al informe del Procurador General, admitió no tener una relación del tiempo invertido ni de los gastos en los que incurrió, toda vez que los honorarios fueron pactados en base a un por ciento y no se llevó una bitácora del tiempo invertido en el trámite del caso. En ausencia de un contrato escrito y en atención al hecho de que las cuantías cobradas serían pagadas con el patrimonio de las menores, resultaba recomendable que el licenciado Rodríguez Cora presentara un informe de las gestiones realizadas y las horas trabajadas en beneficio de éstas. Solo de esa manera el Tribunal de Primera Instancia hubiese estado en posición de autorizar el desembolso de los fondos en exceso de $2,000 pertenecientes a las menores.
III
Hemos establecido que, al determinar la sanción disciplinaria aplicable a un abogado querellado, podemos tomar en consideración factores tal y como su historial profesional, si se trata de una primera falta o conducta aislada, el ánimo de resarcir al cliente y cualquier otra consideración que sirva de atenuante o agravante conforme a los hechos. Véase In re Vélez Barlucea, 152 DPR 298, 311 (2000). Evaluado el expediente personal del licenciado Rodríguez Cora, notamos que éste no ha sido objeto de procedimiento disciplinario previo. Además, el licenciado Rodrí*460guez Cora ha reiterado su disposición de devolver los honorarios que la señora Domenech Cruz alega fueron cobrados indebidamente. Sin embargo, entendemos que la falta de índole ético-profesional en la que incurrió el licenciado Rodríguez Cora es muy seria, máxime al tratarse de dos menores de edad cuyos intereses debía representar.
Conforme a los hechos reseñados y los fundamentos esbozados, procede decretar la suspensión inmediata del Ledo. Jaime Rodríguez Cora del ejercicio de la abogacía y la notaría en nuestra jurisdicción por un término de tres meses. Se le apercibe de que, de incurrir en violaciones similares en el futuro, la sanción disciplinaria será más severa. El licenciado Rodríguez Cora tiene el deber de notificar a todos sus clientes de su inhabilidad de seguir representándolos, devolver honorarios recibidos por trabajos no realizados e informar prontamente de su suspensión a los foros judiciales y administrativos del País. Deberá presentar una certificación a esos efectos en los treinta días siguientes a la notificación de esta opinión per curiam, notificando asimismo al Procurador General. El Alguacil de este Tribunal incautará inmediatamente la obra y el sello notarial del abogado de epígrafe para el trámite correspondiente por la Directora de la Oficina de Inspección de Notarías.
Se dictará sentencia de conformidad.
Los Jueces Asociados Señores Martínez Torres y Feliberti Cintrón hacen constar que “sancionarían al abogado Jaime Rodríguez Cora por violación al Canon 38 de Etica Profesional, 4 LPRAAp. IX, y que además impondrían una suspensión de seis meses y no meramente de tres”. El Juez Asociado Señor Rivera García desea hacer constar la expresión siguiente: “Estoy conforme con la determinación de suspender al Sr. Jaime Rodríguez Cora del ejercicio de la abogacía y la notaría, pero entiendo que esta suspensión debió ser por un término no menor de seis meses”. El Juez Asociado Señor Estrella Martínez concurrió sin opinión escrita.
El licenciado Rodríguez Cora alega que se vio imposibilitado de continuar realizando los pagos, según acordados en la transacción, toda vez que el Tribunal de Primera Instancia, Sala de Aguadilla, no aceptó la estipulación transaecional suscrita por las partes. El foro primario razonó, al no aceptar el acuerdo, que no se había consultado previamente con la Procuradora de Menores ni con el Defensor Judicial de éstas.
Inicialmente, las partidas relacionadas con la póliza fueron cuestionadas por la Procuradora de Relaciones de Familia ante el Tribunal de Primera Instancia. Una vez el foro primario supo de esas partidas, salió a relucir que habían sido utilizadas por la señora Domenech Rodríguez para pagar los honorarios de abogado. Conforme a esto, el Tribunal de Primera Instancia investigó más a fondo, percatándose de que la señora Domenech Rodríguez también había utilizado el dinero de la póliza perteneciente a las menores para adquirir un inmueble, el cual luego fue gravado con una hipoteca, e invertir en el mercado de valores. Estas transacciones se realizaron sin solicitar autorización judicial.
La Comisionada, al determinar inconsistencias en la versión de los hechos presentada por la señora Domenech Rodríguez, aludió a una declaración jurada del Ledo. Yamil M. Caro Pérez, quien refirió a la señora Domenech Rodríguez al licenciado Rodríguez Cora y participó de la primera reunión entre ambos. Por lo tanto, este presenció el acuerdo verbal suscrito entre ellos. En su declaración jurada, el licenciado Caro explica cómo el licenciado Rodríguez Cora informó a la señora Domenech Rodríguez que la póliza no formaba parte del caudal y que, para utilizar los fondos de las menores en exceso de $2,000, era necesario solicitar una autorización judicial. Además, indica que las partes convinieron, a solicitud de la señora Domenech Rodríguez, que el licenciado haría las gestiones conducentes a que el pago de la póliza a favor de las menores se le hiciera directamente a ella y que, de tener éxito, cobraría honorarios por éstas. No obstante, al momento del acuerdo, el licenciado Rodríguez Cora desconocía si la compañía de seguros podría expedir el cheque a nombre de la señora Domenech Rodríguez, por lo que no había certeza en que esas gestiones rindieran fruto. Véase la Declaración jurada del Ledo. Yamil M. Caro Pérez, en Moción en oposición a Informe del Procurador General, Anejo 4. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3802674/ | After receiving permission from the court, a second petition for rehearing has been filed and this matter further presented and argued to the court.
We have again carefully reviewed the record in this case and are unable to find any evidence which is sufficient in our opinion to show that the trial court abused *Page 393
its discretion in refusing the request of the defendant to withdraw his plea of guilty.
It is, therefore, ordered that the judgment of the county court of Garvin county be affirmed.
After the denial of the petition for rehearing and pursuant to the rules of this court, the mandate was issued. The Clerk of the Criminal Court of Appeals is hereby directed to recall the mandate and substitute this per curiam opinion for the opinion heretofore rendered in said case. 72 Okla. Crim. 384,115 P.2d 270.
It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2971524/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0136n.06
Filed: November 30, 2004
No. 03-6204
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CAMBRIDGE-LEE INDUSTRIES, INC., )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
WESTLAKE VINYLS, INC., ) WESTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
Before: MOORE and GIBBONS, Circuit Judges; and EDMUNDS, District Judge.*
PER CURIAM. Dixie Arc, Inc. (“Dixie Arc”), contracted with defendant-appellant
Westlake Vinyls, Inc. (“Westlake”), to construct an electrical system to be installed on Westlake’s
property in Calvert City, Kentucky. Plaintiff-appellee Cambridge-Lee Industries, Inc. (“Cambridge-
Lee”) provided materials to Dixie Arc for construction of the electrical system. Dixie Arc did not
pay all it owed to Cambridge-Lee for these materials, so Cambridge-Lee brought suit to enforce a
materialman’s lien on the improvements to Westlake’s property in the amount of what Dixie Arc
owed Cambridge-Lee. The parties filed cross-motions for summary judgment. The district court
granted Cambridge-Lee’s motion and denied Westlake’s, ordering that Cambridge-Lee holds an
enforceable lien on Westlake’s property in the amount of $650,553.91, plus prejudgment and
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 03-6204
Cambridge-Lee Indus., Inc. v. Westlake Vinyls, Inc.
postjudgment interest. Westlake appeals, arguing that the district court erred in: (1) determining that
Dixie Arc was a contractor and not a materialman, and that Cambridge-Lee could thus enforce its
lien against Westlake under Kentucky law; and (2) awarding prejudgment interest to Cambridge-
Lee.
Having had the benefit of oral argument, and having studied the record on appeal and the
briefs of the parties, we are not persuaded that the district court erred in holding that Cambridge-Lee
had an enforceable materialman’s lien against Westlake. Nor are we persuaded that the district court
erred in awarding prejudgment interest to Cambridge-Lee. Because the reasons for these
determinations have been fully articulated by the district court, the issuance of a detailed opinion
by this court would be duplicative and would serve no useful purpose. Accordingly, we affirm the
judgment of the district court on the basis of the reasoning set out by that court in its opinion and
order entered on July 2, 2003.
-2- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2971568/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0108n.06
Filed: November 18, 2004
No. 03-6338
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY )
COMMISSION, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
ROBERTSON CHEATHAM FARMER’S ) MEMORANDUM
COOPERATIVE, ) OPINION
)
Defendant-Appellant. )
BEFORE: NORRIS, BATCHELDER and ROGERS, Circuit Judges.
PER CURIAM. Defendant, Robertson Cheatham Farmer’s Cooperative, appeals from a
jury verdict awarding back pay in an action brought by the Equal Employment Opportunity
Commission on behalf of a former employee of defendant, based on the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. Defendant contends that the district court erred
when it denied its motions for judgment as a matter of law, new trial, or remittitur.
Having had the benefit of oral argument and having carefully considered the record on
appeal, the briefs of the parties, and the applicable law, we are not persuaded that the district court
erred in denying defendant the relief it sought.
Because the reasoning which supports the district court’s rulings has been articulated by the
district court, the issuance of a detailed written opinion by this court would be duplicative and serve
No. 03-6338
EEOC v. Robertson Cheatham
no useful purpose. Accordingly, the judgment of the district court is affirmed upon the reasoning
employed by that court in its Memorandum Opinion dated September 5, 2003.
-2- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3993026/ | This action was brought by appellant Tomlinson, a creditor of Martin Hansen, to set aside a deed and bill of sale from Hansen to respondents as being made to hinder, delay and defraud the creditors of Hansen. Hansen died intestate just prior to the commencement of this action and a niece, Elfreda Jensen, was appointed administratrix of his estate. She filed a cross-complaint against respondents seeking the same relief on behalf of creditors of the estate. From an adverse judgment, both join in appealing to this court. Respondents will be mentioned in the singular number, since the husband conducted all of the transactions.
The expressed consideration in the deed was two thousand dollars and also in the bill of sale, but in the bill of sale was a contract wherein it was provided that this sum should be paid at the rate of forty dollars per month as rental while Hansen was in the hospital at Seattle; that, if he died from that illness, his funeral expenses should be paid; that then Howard Reser should be paid $136 in full and Mrs. W.C. Smith, another creditor, should be paid her debt of one hundred dollars; that, after those payments, appellant Tomlinson should be paid; and that anything left should go to general creditors. The funeral expenses were to be paid by respondent at once when incurred, but the rest of the indebtedness at the rate of forty dollars per month. At the time of the execution of the deed and bill of sale, Hansen was indebted to appellant Tomlinson in a sum approximating $2,014. He was also indebted to Dr. R.W. Smith for $150, as well as some other debts.
Simultaneously with the execution of the deed and bill of sale, respondent and Hansen executed an additional written agreement whereby respondent agreed to reconvey all property to Hansen within one year *Page 35
upon Hansen paying to respondent such money as he had paid for or to Hansen and for taxes and improvements; and provided that, if such payments did not amount to forty dollars a month, then respondent should pay enough to make up a rental of such amount.
The deed and bill of sale were executed in Seattle on July 7, 1933, and the deed was recorded the next day in Walla Walla county.
At the time those instruments were executed, Hansen owed the following other debts which were secured by mortgages or liens:
Federal Land Bank, as of June 1, 1933 .........
$5,913.25 Federal Land Bank, delinquent interest ........ 704.72
Taxes, 2 1/2 years ............................ 894.75
Mortgage to Walla Walla Dairymen's Association
on equipment ................................ 273.13
Conditional Sales Contract, Ford car .......... 90.51
V.E. Brown, cow mortgage ...................... 1,347.52
_________
Total mortgage indebtedness ............... $9,223.88
In January, 1933, Hansen, because of his physical condition, was forbidden to care for his milk, and thereupon entered into an agreement with the dairymen's association whereby it was to place on the Hansen ranch certain cattle, which it owned and had no place for, and in consideration of the pasturage and use of the ranch, would care for Hansen's cows, milk them, purchase the milk at market price, and, in addition, pay him seventy-five cents per month per cow for each cow it pastured on his ranch. Any feed purchased by the association to care for Hansen's cows was to be charged to Hansen. That agreement was to run for one year, but it was still in operation at the time of the trial of this case, late in 1934. During that time, the association kept an average of *Page 36
twenty cows on the Hansen place; and from February, 1933, to February, 1934, the proceeds of the milk sold from Hansen's cows amounted to $1,524.
Among other material findings, the trial court found:
"That the value of the grantor's equity in the real and personal property, that is the difference between its value and the incumbrances thereon at the time of said sale was the sum of $1,948.27 and the consideration for the equity was the sum of $2,000.
"That on or about January 18, 1933, about six months before said sale, owing to the cancerous condition of the face of the grantor Martin Hanson, the public health authorities required him to discontinue handling the dairy cows and milk therefrom and on or about said time he entered into the agreement with Walla Walla Dairymen's association, of which the defendant Halsey W. Burgess was manager, whereby the association took over the handling of his cows and milk, and thereafter, though Mr. Hanson remained on the place, he was not permitted to care for the cows or go about the milk house and from then on the dairy herd were handled by said association under said agreement.
"That a short time prior to July 7, 1933, . . . he suddenly left the farm and went to a hospital in Seattle without funds for his care, that while he was in the Seattle hospital defendant Burgess visited him and arranged for the purchase of the property and upon defendant's return to Walla Walla the instruments evidencing the sale were prepared and forwarded to Hanson for execution; and that defendant Burgess had no knowledge of Hanson's indebtedness to plaintiff until the terms of sale were discussed with Hanson in Seattle a short time prior to the execution of the instruments.
"That the plaintiff and cross-complainant have failed to sustain the material allegations of the complaint and cross-complaint except as to such inferences in their favor that may be drawn from the foregoing facts." *Page 37
All findings are supported by competent documentary evidence and testimony of witnesses before him which the trial judge believed credible. The sale price was adequate and the contracts fair for both parties, under the findings.
Respondent also admitted at the trial that he now has about $750 which, by the terms of his contract, he is obligated to pay to appellant Tomlinson.
The argument by counsel for both parties takes a much wider range than is necessary.
We shall assume for the purposes of this decision that the indebtedness owing by decedent to appellant was the amount above stated, and that he also owed Dr. Smith the amount stated; that both debts were not paid except in the manner provided by the bill of sale and contract.
[1] Appellants cite Rem. Rev. Stat., § 5824 [P.C. § 7744], which reads:
"All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the existing or subsequent creditors of such person."
Appellants then assert that, under that statute, such conveyances are uniformly held void, citing Adams v. Dempsey,35 Wn. 80, 76 P. 538; Butler v. Arnold, 115 Wn. 204,196 P. 582; and Siegel v. Kracower, 144 Wn. 609, 258 P. 493.
In the first case cited, we held that there was sufficient evidence to require the good faith of the transaction to be submitted to a jury upon the facts there stated.
The second case cited was a case where an absolute transfer of real property by an insolvent debtor had been made to his daughter, in consideration of moneys advanced by her to protect the property from *Page 38
sale under a judgment. We there held that it was not good as an absolute conveyance, but would be deemed one in trust to secure her for her advances. That was a case involving a transaction between a father and daughter, or, in other words, near kin, or one where the good faith of the parties is always to be carefully scrutinized.
The third case above cited was one where the transaction was between relatives in anticipation of a judgment and in fraud of creditors, for it appeared that the grantee was in sympathy with the grantor's effort to defeat enforcement of the judgment, and that the debtor's property was to be sold, and after certain payments, the balance was to be turned over to the debtor. We also there held that the party seeking to set aside a transfer on the ground of fraud has the burden of proving the fraud which vitiates the transaction; that an insolvent's preference of a creditor must be free from concealment or bad faith and will not be upheld where the creditor had notice that the debtor's intent in the transfer of all his property was to forever defeat the payment of an anticipated judgment.
None of the cases cited is in any way similar to the instant case.
There was no relationship between appellant Tomlinson and respondent. There was no fiduciary or trust relationship. They dealt entirely at arm's length. There is no evidence of a secret trust between them, nor can one be imputed from the fact asserted by appellants that the additional agreement provided for a reconveyance to Hansen which, of itself, bound respondent to hold the real estate for Hansen. The agreement to reconvey to Hansen was nothing but an executory contract to sell the real and personal property for a given sum, provided the conditions of the *Page 39
agreement were complied with within a period of one year, or, in case of the death of Hansen, the contract to be entirely null and void. Hansen could not have asked for a reconveyance to him except by making the payments and performing the conditions specified in the agreement for conveyance. There is no evidence in the record of any secret interest, intent or understanding between respondent and Hansen to hinder, delay or defraud any creditor.
[2] However, this court has always held that it is no badge of fraud for an insolvent, personal debtor to prefer one or more of his creditors over others, even if it exhausts the whole of his property, where the debt is real and the payment actual and adequate. Samuel v. Kittenger, 6 Wn. 261, 33 P. 509; HoltManufacturing Co. v. Bennington, 73 Wn. 467, 132 P. 30;Merrick v. Pattison, 85 Wn. 240, 147 P. 1137; Meakim v.Ludwig, 99 Wn. 180, 169 P. 24; Marinovich v. Newton,126 Wn. 22, 216 P. 876; Puget Sound National Bank v. More,159 Wn. 5, 291 P. 1081; Essig v. Collier, 159 Wn. 172,292 P. 414; Putnam v. Peterson, 162 Wn. 130, 297 P. 1076. (The last four cases were not cited by counsel for respondent, although texts to the same effect were cited from Ruling Case Law and Corpus Juris.)
In the Marinovich case, supra, it was held that a discrepancy in sale of nine hundred dollars for a diamond ring, the value of which was not to exceed twelve hundred dollars, did not show such a discrepancy between the price and the value as to suggest a conveyance in fraud of creditors; and that the sale would not be set aside when the purchaser had no knowledge of fraudulent intent on the part of the debtor. To the same effect are the two cases in 159 Washington, cited above.
In the Merrick case, supra, after holding that a *Page 40
debtor may prefer a creditor, although it involved a transaction between parent and child, the facts that the debt preferred was for past indebtedness and the new consideration was the assumption of a mortgage debt and taxes on the property, were held not to avoid the transaction. In the Puget Sound NationalBank case, supra, we held that the fact that the deed was not promptly recorded was not controlling.
As to the value of the property transferred by Hansen to Burgess, there is considerable range of opinion, but we cannot, on the record before us, discover that it preponderates against the finding of the trial court. The cases above cited control this case.
The judgment is affirmed.
MAIN, BLAKE, BEALS, and STEINERT, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2971855/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0156n.06
Filed: February 25, 2005
Case No. 04-1069
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRUCE GERSHENSON, as trustee of the )
William Gershenson Trust; WILLIAM )
WILLIAM GERSHENSON TRUST; )
BERNICE GERSHENSON, Co-trustee of the ) ON APPEAL FROM THE
Aaron H. Gershenson Trust; IRA J. JAFFE, ) UNITED STATES DISTRICT
Co-trustee of the Aaron H. Gershenson ) COURT FOR THE EASTERN
Trust; AARON H. AARON H. ) DISTRICT OF MICHIGAN
GERSHENSON TRUST, )
)
Plaintiffs-Appellants, )
)
v. )
)
UNITED CAPITAL CORPORATION,
Defendant-Appellee.
_______________________________________
BEFORE: BATCHELDER and DAUGHTREY, Circuit Judges; O’KELLEY,* District Judge.
ALICE M. BATCHELDER, Circuit Judge. Plaintiffs-Appellants Bruce Gershenson and
other trustees of the William Gershenson Trust (collectively, “the Gershensons”) appeal the district
court’s grant of summary judgment to Defendant-Appellee United Capital Corporation in this
diversity action raising issues under Michigan state law. Specifically, the Gershensons argue that
the district court erred in the following ways: 1) by ruling that the Gershensons did not provide
*
The Honorable William C. O’Kelley, United States District Judge for the Northern District of Georgia, sitting
by designation.
1
legally operative notice of their intention to exercise an option to extend the primary lease at issue
in this case; 2) by declining to equitably renew the Gershensons’ option to extend the primary lease;
and 3) by denying the Gershensons’ claim of unjust enrichment.
After carefully reviewing the record, the applicable law, the parties’ briefs, and counsels’
arguments, we are convinced that the district court did not err in its conclusions. As the district
court’s opinion carefully and correctly sets out the law governing the issues raised, and clearly
articulates the reasons underlying its decision, issuance of a full written opinion by this court would
serve no useful purpose. Accordingly, for the reasons stated in the district court’s opinion, we
AFFIRM.
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3074790/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00069-CR
Charles Arthur WARREN,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR9856B
Honorable Ron Rangel, Judge Presiding
BEFORE CHIEF JUSTICE MARION, JUSTICE ANGELINI, AND JUSTICE ALVAREZ
In accordance with this court’s opinion of this date, the trial court’s order is AFFIRMED.
SIGNED July 1, 2015.
_____________________________
Patricia O. Alvarez, Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/131340/ | 540 U.S. 816
SINGLETONv.CANNON, SHERIFF, CHARLESTON COUNTY, SOUTH CAROLINA.
No. 02-1688.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 4th Cir.
2
Certiorari denied. Reported below: 46 Fed. Appx. 151. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3051996/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 14 2008
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
CENTER FOR BIOLOGICAL No. 07-16892
DIVERSITY; NATURAL RESOURCES
DEFENSE COUNCIL, INC.; SIERRA D.C. No. CV-05-00205-MCE
CLUB; THE WILDERNESS SOCIETY,
Plaintiffs - Appellants OPINION
SIERRA FOREST LEGACY,
Intervenor - Appellee
v.
MARK REY, in his official capacity as
Under Secretary of Agriculture; ABIGAIL
KIMBELL, in her official capacity as
Chief of the United States Forest Service;
BERNARD WEINGARDT, in his official
capacity as Regional Forester, United
States Forest Service Region 5; ALICE
CARLTON, in her official capacity as
Forest Supervisor, Plumas National Forest,
Defendants - Appellees
TUOLUMNE COUNTY ALLIANCE
FOR RESOURCES & ENVIRONMENT;
CALIFORNIA FOREST COUNTIES
1
SCHOOLS COALITION; REGIONAL
COUNCIL OF RURAL COUNTIES;
WESTERN COUNCIL OF INDUSTRIAL
WORKERS; KLAMATH ALLIANCE
FOR RESOURCES & ENVIRONMENT;
COARSE GOLD RESOURCE
CONSERVATION DISTRICT/EASTERN
MADERA COUNTY FIRE SAFE
COUNCIL; TULARE COUNTY
RESOURCE CONSERVATION
DISTRICT; SIERRA RESOURCE
CONSERVATION DISTRICT;
STRAWBERRY PROPERTY OWNERS’
ASSOCIATION; HUNTINGTON LAKE
ASSOCIATION; HUNTINGTON LAKE
BIG CREEK HISTORICAL
CONSERVANCY; CALIFORNIA
EQUESTRIAN TRAILS & LANDS
COALITION; CALIFORNIA
FORESTRY ASSOCIATION;
CALIFORNIA LICENSED FORESTERS
ASSOCIATION; CALIFORNIA/
NEVADA SNOWMOBILE
ASSOCIATION; AMERICAN FOREST
& PAPER ASSOCIATION; AMERICAN
FOREST RESOURCE COUNCIL;
BLUERIBBON COALITION;
CALIFORNIA SKI INDUSTRY
ASSOCIATION; CALIFORNIA
CATTLEMEN’S ASSOCIATION;
QUINCY LIBRARY GROUP; PLUMAS
COUNTY,
Defendant-intervenors -
Appellees
2
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted March 10, 2008
San Francisco, CA
Filed
Before: REINHARDT, NOONAN, FISHER, Circuit Judges
Opinion by Judge Noonan
NOONAN, Circuit Judge:
Sierra Forest Legacy (Sierra Forest) appeals the decision of the district court
denying a preliminary injunction against the United States Forest Service (the
USFS or the Forest Service) in a suit challenging its decision to permit logging in
accordance with changes made in 2004 by the USFS in the relevant forest plan.
Other parties, noted in the caption, have intervened on each side. The Attorney
General of California, Edmund G. Brown, Jr., has filed an amicus brief in support
of Sierra Forest.
We hold that the district court abused its discretion. We reverse and remand.
PROCEEDINGS
Sierra Forest is comprised of the Sierra Nevada Forest Protection Campaign,
Center for Biological Diversity, Natural Resources Defense Council, Sierra Club,
3
and The Wilderness Society, many of whose members enjoy and are educated by
the affected forests and the wildlife dependent on habitats within them. This suit
was begun in 2005 in response to the Supplemental Environmental Impact
Statement (SEIS) issued by the USFS in January of 2004 as a supplement to the
Final Environmental Impact Statement (FEIS), issued by the USFS in 2001 in
implementation of the Sierra Nevada Forest Plan Amendment.
Under the SEIS, the USFS approved logging in three specific sites: Basin,
Empire, and Slapjack. On September 10, 2007, the USFS announced that it
intended to advertise and award logging contracts for these sites. On September
21, 2007, Sierra Forest moved for a preliminary injunction. On October 15, 2007,
the district court denied the motion.
Sierra Forest appeals, raising several claims under the National Forest
Management Act (NFMA), 16 U.S.C. §§ 1600-1614, and the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370f. In light of our
disposition, we do not reach all of the arguments raised by Sierra Forest.
ANALYSIS
The Standard
Our review is a review of a motion preliminary to a trial. As the district
court’s decision is preliminary, so must our decision be preliminary. It is not on
4
the merits. We need not address all aspects of the projects. Our decision must
defer to the discretion of the district judge who has had to act with some dispatch.
See Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007) (citation omitted).
When a preliminary injunction is sought, there is a sense of urgency on each side –
to go ahead expeditiously with the project; to stop what is seen as harm that cannot
be undone. Deferential as we are, we cannot default in reviewing de novo the law
binding on the judge who has discretion but not carte blanche. See Sports Form,
Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir. 1982). We state only
the facts relevant to the result.
A district court abuses its discretion if it bases its decision on an erroneous
legal standard or clearly erroneous finding of fact. See Earth Island Inst. v. U.S.
Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003) (citation omitted). The familiar
criteria to be met to obtain the issuance of an injunction before the trial are a strong
likelihood of success on the merits; the possibility of irreparable harm; a balance of
hardships favoring the plaintiffs; and advancement of the public interest. See id. at
1297-98 (citation omitted).
Probability of Success on the Merits
There is no disagreement that USFS is authorized to take action to prevent
the occurrence of forest fires. One necessary step is the clearing of brush,
5
including the removal of small trees. Doing so involves the expenditure of funds.
The USFS does not assert, however, that it is necessary as a preventive measure to
cut down the larger trees that provide the habitat in which various species thrive.
These trees constitute a desirable prize for loggers who seek to convert them into
lumber for commercial purposes. The USFS acknowledges that its reason for
selling the forest trees to commercial loggers is to raise funds to carry on its fire
prevention duties. Sierra Forest and the State of California seek to preserve the
larger trees and so to preserve the habitat that supports various species. We need
decide here a limited and narrow issue: Does the 2004 SEIS prepared by USFS
regarding its plans to sell off the forest trees comply with the requirements of
NEPA?
Sierra Forest argues that USFS violated NEPA’s requirement to
“[r]igorously explore and objectively evaluate all reasonable alternatives” to a
proposed plan that has significant environmental effects. 40 C.F.R. § 1502.14(a)
(2000). USFS cannot rely on its discussion of alternatives in the 2001 FEIS to
satisfy this requirement for the 2004 SEIS. “[W]here changed circumstances affect
the factors relevant to the development and evaluation of alternatives,” USFS
“must account for such change in the alternatives it considers.” Natural Res. Def.
6
Council v. U.S. Forest Serv., 421 F.3d 797, 813-14 (9th Cir. 2005) (citation
omitted).
Such changed circumstances plainly exist here. First, USFS altered its
modeling techniques between the issuance of the 2001 FEIS and the 2004 SEIS
and failed to update its analysis of the 2001 FEIS alternatives under these new
techniques. Second, the 2004 SEIS introduced substantively new objectives from
those contained within the 2001 FEIS. A primary purpose of the new framework
adopted by the SEIS is the provision of funds for the reduction of fuel, that is, for
the reduction of the risk of fire in the forests. This goal has become an imperative
after the catastrophic fires that have devastated forests in the northwest. Severe
wildfires have increased dramatically in the Sierra Nevada from an average of
43,000 acres per year ten years ago to an average of 63,000 acres per year. Control
of wildfires is an imperative for the inhabitants of land bordering the forests. It is
an imperative for defenders of the habitat and the wildlife within them. Fire is a
force that must be managed if the environment is to be protected.
The SEIS proposes a simple solution:
Opportunities for Leveraging Appropriated Funds to Accomplish
Fuels Treatments
Under Alternative S2, revenues from the sale of commercial
forest products could be obtained from some fuels treatments. This
would increase the likelihood of accomplishing the projected acres of
7
treatment, an essential first step in achieving the desired reductions in
acres burned. Where consistent with desired conditions, area
treatments would be designed to be economically efficient and meet
multiple objectives.
Timber sale contracts provide a mechanism for the efficient
removal of commercially-valuable sawtimber. Contracts that have
sufficient value offer capabilities for funding the accomplishment of
additional resource management goals. Records from recent timber
offerings indicate that sales with higher volumes per acre attract
higher bids. Sales yielding an average 4.5 mbf/acre provide
approximately $112/mbf, compared to only $38/mbf for 1.5 mbf/acre
(Lamdram, pers comm).
The size of tree made available for harvest has a significant
influence on sale volume per acre averages and thus, per unit bid
values. Assuming typical heights, the board foot volume for a 12-inch
dbh tree is 39, compared to 317 for a 20 inch tree and 710 for a 24
inch tree. Using these assumptions, 77 twelve-inch dbh tress would
be needed to reach the minimum economically feasible sale volume
(estimated at 3 mbf/acre). This compares to 9 trees of 20-inch dbh
and 4 trees of 24-inch dbh. In summary, including only a few
medium-sized trees can make an impact on the economic viability of a
given project.
A number of options are available for deriving commercially-
valuable wood products from fuels treatments. Where wood-fired
electrical generation facilities exist and sufficient sawtimber value is
present, small trees, e.g. biomass, can be removed. Bids in excess of
required collections may also be made available for fuel reduction
treatments within the sale area boundary. These may include:
1) Shredding of ladder fuels, i.e. small trees, woody shrubs, and
surface fuel,
2) Prescribed fire treatment following timber harvest, or
3) Fuel reduction treatment outside timber sale units (within the
time sale area boundary).
Alternatively, a stewardship contract package (a service
contract, not a timber sale contract), that includes commercially-
valuable sawtimber, may provide for cost-effective implementation of
multiple fuels reduction projects within the contracted area.
8
In amplification, the USFS replied to the following public comment:
9.2.4. Public Concern: The Final SEIS should not claim that
increased logging levels will increase forest protection, or it should
scientifically justify that assertion.
Response: Alternative S2 in the SEIS was developed to provide
opportunities for increasing available funds for fuels reduction work
on the national forests. This alternative increases revenues by
permitting the removal of some medium-sized trees from some areas.
The SEIS does not suggest that removing these trees will alter stand
structure in ways that significantly enhance fire protection. It is the
increase in available funds from logging that can be used to increase
fuels reduction work. But the work would be done on other lands.
See the discussion on fuels treatment economics in the SEIS (Chapter
4, Economics of Fuels Treatments) for more information about
treatment costs and the value of additional timber harvest to fuels
reduction work. The Final SEIS (Chapter 4, Fire and Fuels
Management) has an expanded discussion regarding the economics of
fuels treatments.
Sell trees to loggers. Use the money to clear areas of what is potential fuel
for fire. The solution has a secondary benefit: what the loggers cut can, at least in
part, be timber that was potential for fire. In one sale, a fire hazard can be removed
and the USFS paid so that it can remove the fuel of future fires.
Two for one always has an attractive ring. But are there no alternative ways
of getting money to do the clearing that is imperative? Obviously, there may be.
First of all, there is the USFS’s own budget. Does that budget contain any funds
that could be devoted to fuel removal? Is every one of its activities so necessary
9
and so tightly allocated that no money could be shifted? We do not know the
answer because this alternative has not been explored.
Suppose that the USFS and its parent, the Department of Agriculture, cannot
spare a dime. What then? Appropriate appropriations come from Congress. The
work of fire prevention is work of the first importance. If the USFS does not have
enough, why should not Congress be asked to give it more? Surely the avoidance
of catastrophic fire in the national forests must rate a high priority among the needs
of the nation.
Alternatives considered in the 2001 FEIS address the critical problem of fuel
reduction. Several of them (F3, F4, F6, and F7) are projected as achieving an
acreage reduction of over 30% in the first five decades as opposed to a 22%
reduction that is projected in the adopted Alternative S2. These alternatives do not
appear to have been reexamined in the light of the new urgency of fire prevention.
The Attorney General of California raised several alternative methods to
fund USFS’s fire reduction objectives, including requesting a special appropriation
from Congress, re-prioritizing other funding, and altering its fuel treatment
program. USFS failed to consider these alternatives in its implementation of the
2004 SEIS. So long as all these alternatives remain unexamined or unreexamined,
so long does the SEIS fail to conform to the law. The district court abused its
10
discretion in concluding that USFS complied with NEPA’s requirement to
“[r]igorously explore and objectively evaluate all reasonable alternatives.” 40
C.F.R. § 1502.14(a) (2000).
Balancing of Equities
The legal merits of the Sierra Forest’s case, at this stage of the litigation,
are strong. To justify a preliminary halt to the projects the real possibility of
irreparable harm is still required. It is not necessary to canvass all the species that
may be affected and all the environmental harm that might ensue. It suffices in this
case to take account of the status of the spotted owl whose range relates to the
affected forests. True, the species exists in southern California as well as in the
northwest; but the species as a whole has been classified as “sensitive” by the
Forest Service. The proposed logging will not destroy the species. What it will do
is reduce its established habitat. The possibility that this reduction in its range will
irreparably damage the sensitive species cannot be dismissed.
Postponement of the Forest Service plans may increase the danger posed by
fires; but the Forest Service and Congress do not appear helpless to find the funds
to decrease the dangers. The question we address here is whether USFS’s choice
of funding for fire reduction – rather than fire reduction itself – outweighs
California’s preservation interests. We conclude that it does not, given that
11
“special solicitude” should be afforded California’s stake in its natural resources
and that the Forest Service did not consider alternatives to its choice of funding.
Massachusetts v. Envtl. Prot. Agency, 127 S. Ct. 1438, 1454-55 (2007).
Public interests are further implicated: the importance of preserving the
environment and of enforcing the law intended to preserve it. See Amoco Prod.
Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).
For the reasons stated, the judgment of the district court is REVERSED and
the three proposed projects are preliminarily enjoined to the extent that they are
inconsistent with the 2001 FEIS. The case is REMANDED for further proceedings
in accordance with this opinion.
12
FILED
MAY 14 2008
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
NOONAN, Circuit Judge, concurring:
Impaired Impartiality. That judges cannot supplement their salaries,
however inadequate they may be, by imposing fines provided by law on those
convicted of lawbreaking seems to be a pretty elementary principle of justice. Yet
the civilized state of Ohio and the Supreme Court of that state saw nothing to
object to in the practice until the Supreme Court of the United States unanimously
held it to be a deprivation of due process for a municipal officer to get $12 out of a
$100 fine that he had legally imposed. Tumey v. Ohio, 273 U.S. 510 (1927).
Almost as elementary is the extension of this principle to administrative
adjudicators. See Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (citation omitted).
The bias created need not be personal, that is, the adjudicator to be found
biased need not be paid off by his decision. The bias can arise from his decision
being a way of raising money for the municipality he serves. Ward v. Vill. of
Monroeville, 409 U.S. 57 (1972). Once again, the civilized state of Ohio and its
Supreme Court had to be corrected by the United States Supreme Court finding a
denial of due process when fines imposed by the mayor were “a substantial
portion” of the municipality’s income, although the mayor’s own salary was fixed
13
and independent of the fines. Id. at 59. The test, failed by Ohio’s statutory
scheme, was whether “a possible temptation” was offered the mayor acting as
judge “not to hold the balance nice, clear, and true.” Id. at 60 (quoting Tumey, 273
U.S. at 532).
It would not seem to require a Euclid to draw appropriate inferences from
the governing principle of impartiality. Yet it has not been easy. Two justices
dissented in Gibson, asserting that only personal gain disqualified the decider. 411
U.S. at 84 (White, J. and Rehnquist, J., dissenting). Forty years after Tumey, three
states still used the statutory scheme of a judge supporting himself by his own
judgments that was condemned as unconstitutional in Tumey. See K. Davis,
Administrative Law Text § 12.04 (1972). In many instances the necessity of having
a judge has been allowed to trump the necessity of a judge who is impartial. Id. at
§ 12.05. A distinction has also been drawn between a judicial or quasi-judicial role
and a legislative role where impartiality is not a requisite. Id. at § 12.04. A
financial interest may also be so slight as to be discounted as a disqualifier.
Marshall v. Jerrico, Inc., 446 U.S. 238, 245-46 (1980).
Custom or indifference cannot legalize a departure from what is required by
the criterion of impartiality. Necessity may make an inroad, and it might be argued
that the USFS is necessitous; it says it doesn’t have the money it needs unless it
14
sells the forests. That argument takes too narrow a view of the position of the
USFS. It has a budget that may be malleable. It exists within a department that
may have discretionary funds. It is the arm of a nation whose credit, not
inexhaustible, is strong enough not to require supplementation by sales of the
nation’s timber. Necessity, in a word, has not been established.
We do not need, on the facts of this case, more information on the budget of
the Forest Service. It has been suggested in earlier litigation concerning similar
timber sales by the Forest Service that this information should be furnished. See
Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1178 (9th Cir. 2006)
(Noonan, J., concurring); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291,
1309 (9th Cir. 2003) (Noonan, J., concurring). In this case, the Forest Service
makes no secret of the importance of the sales to its approval of the projects.
Fund-raising for fuel-reduction is a substantial purpose.
The Forest Service has a final argument, unfurled as its lead argument in
oral argument. It is that its approval of the three contested projects denies no
person the right to life, liberty or property. Hence due process of law is not
required and nothing but due process requires impartiality. This bold claim calls
for careful consideration.
15
Undisputed is the standing of Sierra Forest to assert the interest of those
individual members affected by the destruction of the environment and its species.
“Aesthetic and environmental well-being, like economic well-being, are important
ingredients of the quality of life in our society,” important enough to confer
standing under the Administrative Procedure Act, 5 U.S.C. § 702, to redress an
injury in fact. Sierra Club v. Morton, 405 U.S. 727, 734 (1972). These are
elements of the liberty enjoyed by a citizen. An injury in fact inflicted by a
decision of the USFS must necessarily be the denial of a result to which the
plaintiffs were legally entitled. If the plaintiffs were entitled to the result, were the
plaintiffs not entitled to an unbiased decision-maker? The injury asserted here is
alleged to arise under NEPA. Invoking the federal law, Sierra Forest was entitled
to seek its application by an agency which was without an interest of its own in a
result contrary to the law.
Why is there a case before us if no person’s rights were at stake? We do not
sit to adjudicate general policy disputes but to decide controversies. A controversy
calls for two parties, each asserting an interest and a right that protects that interest.
So here, Sierra Forest is not a plaintiff without an interest and a right. We do not
need to dismiss the case for want of a controversy. Nor do we need to find that no
right is at issue. The right Sierra Forest seeks to vindicate here did not arise with
16
the USFS’s decision. The right was what Sierra Forest sought to vindicate before
the USFS.
It is possible that a crucial distinction here may be made between rulemaking
and adjudicating, if it is meaningful to separate administrative action into these two
tight compartments. Rulemaking by an administrative agency, like legislation by a
legislature, seems exempted from scrutiny for conflict of interest. When the Forest
Service develops a forest plan it is engaged in rulemaking and it needs only to
provide for the kind of notice and comment that rulemaking requires. See 36
CF.R. § 219.9. Forest plans “do not grant, withhold, or modify any contract,
permit, or other legal instrument, subject anyone to civil or criminal liability, or
create any legal rights.” Id. at § 219.3(b). A forest plan in itself “does not give
anyone a legal right to cut trees, nor does it abolish anyone’s legal authority to
object to trees being cut.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,
733 (1998).
Rights enter the picture when the Forest Service moves to site-specific
projects. In this step, the Forest Service implements the plan in a specific location
by selecting a timber sale area, preparing an environmental assessment in
accordance with NEPA, allowing public comment, and awarding a timber
harvesting contract to the highest bidder. See id. at 729-30; Sierra Club v.
17
Peterson, 228 F.3d 559, 562 (5th Cir. 2000); 36 C.F.R. § 223.1. Each site-specific
project and timber sale contract must be consistent with the applicable forest plan.
36 C.F.R. § 219.8(e), § 223.30.
The Forest Service introduces its bias at the stage of making the forest plan,
while case law prohibits bias only at the stage of awarding contracts. This delay in
the bite of the bias should not insulate it from judicial review. The financial
incentive of the Forest Service in implementing the forest plan is as operative, as
tangible, and as troublesome as it would be if instead of an impartial agency
decision the agency was the paid accomplice of the loggers.
That the difference between judicial and legislative functions makes a
difference as to the impropriety of monetary benefit to the decision-makers is a
fallacy. The bribery of a congressman is a crime. See 18 U.S.C. § 201; United
States v. Brewster, 408 U.S. 501 (1972). It would not make a difference if the
bribe came from a trade association on behalf of a whole industry. See, e.g.,
United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999). In the
instant case the decision-makers are influenced by the monetary reward to their
agency, a reward to be paid by a successful bidder as part of the agency’s plan.
Independently of the grounds set out in my opinion for the court, I would
hold this defect in the process to vitiate entirely the ultimate decisions, without the
18
necessity of balancing, and to require judicial setting aside of the implementation
of the process.
19
Counsel List
David Edelson, Berkeley, California, for plaintiffs-appellants.
Jennifer Scheller, Washington, D.C., for defendants-appellees.
20 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/131365/ | 540 U.S. 818
BELL ET UX.v.IRWIN ET AL.
No. 02-1728.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 7th Cir.
2
Certiorari denied. Reported below: 321 F. 3d 637. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1029026/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8389
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARREN LEONARD IZARD, a/k/a Sld Dft 5:02CR37-4, a/k/a Twin,
a/k/a Fat Boy,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:02-cr-00037-RLV-4)
Submitted: April 22, 2009 Decided: June 3, 2009
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Darren Leonard Izard, Appellant Pro Se. Matthew Theodore
Martens, Assistant United States Attorney, Charlotte, North
Carolina; Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darren Leonard Izard appeals the district court’s
order granting his motion for reduction of sentence under 18
U.S.C. § 3582(c)(2) (2006). 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.
Izard, No. 5:02-cr-00037-RLV-4 (W.D.N.C. Oct. 15, 2008).
Further, as this court has recently issued its opinion in United
States v. Hood, 556 F.3d 226 (4th Cir. 2009), we deny Izard’s
motion to place this appeal in abeyance for Hood as moot. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2854886/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-216-CV
DANIEL L. FOSTER, D.O. APPELLANT
V.
MARY RICHARDSON APPELLEE
------------
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
In this interlocutory appeal concerning the adequacy of an expert report
filed in a health care liability claim under chapter 74 of the civil practice and
remedies code (chapter 74),1 appellant Daniel L. Foster, D.O. contends in one
issue that the trial court erred by denying his motion to dismiss. We affirm in
part and reverse and remand in part.
1
… See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001–.507 (Vernon
2005 & Supp. 2009).
Background Facts
Facts alleged in Richardson’s petition
Appellee Mary Richardson injured her left leg while working for an airline
in December 2006. Hospital personnel immobilized her knee, initially told her
that she had sustained a knee sprain, and instructed her to see her primary
physician for treatment. Richardson’s primary physician referred her to Dr.
Angelo Otero for an orthopedic consultation.2 On January 22, 2007, Dr. Otero
diagnosed Richardson with tears of her anterior cruciate ligament (ACL) and
lateral meniscus in her left knee. On February 15, Dr. Otero surgically
reconstructed that knee; he then released her for light duty at work on February
26 and for full duty on May 14.
On June 21, because she was still experiencing pain in her leg,
Richardson saw Dr. Foster,3 who diagnosed her as having complex regional pain
syndrome in her left leg and recommended that she participate in physical
therapy. However, on July 27, Richardson saw an orthopedic surgeon whose
2
… “Orthopedics” (or “orthopaedics”) is the “medical speciality concerned
with the preservation, restoration, and development of form and function of the
musculoskeletal system, extremities, spine, and associated structures by
medical, surgical, and physical methods.” Stedman’s Medical Dictionary 1383
(28th Ed. 2006).
3
… The record does not indicate who referred Richardson to Dr. Foster.
2
diagnostic tests revealed that Richardson had a partially-healed ankle fracture.
To treat the fracture, the surgeon had to rebreak Richardson’s ankle and insert
metal hardware into it. Richardson asserts that her leg is disfigured and that
her ankle will never function normally because of Dr. Otero’s and Dr. Foster’s
failures to timely diagnose and treat the fracture.
Procedural history
Dr. Foster and Dr. Otero 4 answered Richardson’s allegations, and then
Richardson served both defendants with the expert report and curriculum vitae
of Bryan S. Drazner, M.D. concerning their alleged deficiencies in providing
Richardson’s care, as required by section 74.351 of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Dr. Foster
filed a motion to dismiss under chapter 74, claiming that Dr. Drazner’s report
is deficient. After the trial court heard arguments from the parties, it denied Dr.
Foster’s motion. Dr. Foster filed his notice of this interlocutory appeal. See id.
§ 51.014(a)(9) (Vernon 2008); Lewis v. Funderburk, 253 S.W.3d 204, 207–08
(Tex. 2008).
4
… The claims against Dr. Otero are still pending and are not at issue in
this appeal.
3
The Adequacy of Dr. Drazner’s Expert Report
In one issue, Dr. Foster asserts that the trial court erred by denying his
motion to dismiss and concluding that Dr. Drazner’s expert report complies with
chapter 74.
Standard of review
We review a trial court’s denial of a motion to dismiss under section
74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Collini v. Pustejovsky, 280
S.W.3d 456, 461 (Tex. App.—Fort Worth 2009, no pet.) (op. on remand);
Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet.
denied) (op. on remand). We also review a trial court’s decision on whether a
physician is qualified to offer an expert opinion in a health care liability claim
under an abuse of discretion standard. Collini, 280 S.W.3d at 461; Moore, 269
S.W.3d at 139.
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–
42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986); see Collini, 280 S.W.3d
at 461. Merely because a trial court may decide a matter within its discretion
4
in a different manner than an appellate court would in a similar circumstance
does not demonstrate that an abuse of discretion has occurred. Downer, 701
S.W.2d at 242; Collini, 280 S.W.3d at 461. A trial court does not abuse its
discretion if it commits a “mere error in judgement.” See E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Collini, 280
S.W.3d at 461.
The statutory requirements of expert reports
A plaintiff must serve an expert report that addresses liability and
causation on each defendant no later than the 120th day after the plaintiff files
a health care liability claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (j).
If an expert report has not been served on a defendant within the 120-day
period, then on the motion of the affected defendant, the trial court must
dismiss the claim with prejudice and award the defendant reasonable attorney’s
fees and costs. Id. § 74.351(b). A report “has not been served” under the
statute when it has physically been served but a court finds it deficient. See
id. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008); Lewis,
253 S.W.3d at 207–08.
A report is deficient (therefore subjecting a claim to dismissal) when it
“does not represent an objective good faith effort to comply with the [statute’s]
definition of an expert report.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l);
5
Collini, 280 S.W.3d at 461–62. While the expert report “need not marshal all
the plaintiff’s proof,” it must provide a fair summary of the expert’s opinions as
to the applicable standards of care, the manner in which the care rendered by
the physician failed to meet the standards, and the causal relationship between
that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878; Collini, 280 S.W.3d at
462.
To qualify as a good faith effort, the report must “discuss the standard
of care, breach, and causation with sufficient specificity to inform the
defendant of the conduct the plaintiff has called into question and to provide
a basis for the trial court to conclude that the claims have merit.” Palacios, 46
S.W.3d at 875; Benish v. Grottie, 281 S.W.3d 184, 194 (Tex. App.—Fort
Worth 2009, pet. denied). A report does not fulfill this requirement if it merely
states the expert’s conclusions or if it omits any of the statutory requirements.
Palacios, 46 S.W.3d at 879; Benish, 281 S.W.3d at 194.
The information in the report “does not have to meet the same
requirements as the evidence offered in a summary-judgment proceeding or at
trial.” Palacios, 46 S.W.3d at 879. The expert report must “contain
sufficiently specific information to demonstrate causation beyond mere
6
conjecture.” Farishta v. Tenet Healthsystem Hosps. Dallas, Inc., 224 S.W.3d
448, 453 (Tex. App.—Fort Worth 2007, no pet.).
The facts alleged in Dr. Drazner’s report
According to his report, Dr. Drazner physically evaluated Richardson on
July 26, 2007, and he became concerned about aspects of her prior care at
that time. During his examination of Richardson, he noticed a “profound range
of motion deficit of the left ankle, left ankle edema, and left calf pain prior to
the receipt of diagnostic testing.” He also reviewed Dr. Foster’s and Dr.
Otero’s records of Richardson’s treatment.
Dr. Drazner’s report recites that after Richardson’s initial injury in
December 2006, hospital personnel examined her left foot, ankle, and knee,
and they “inexplicably opined” that she had a knee sprain or strain, without
“any positive findings about the knee objectively.” Dr. Otero examined
Richardson about a month later by taking x-rays that, although resulting
negative, led Dr. Otero to conclude that there was an “acute tear of the [ACL].”
Dr. Otero ordered an MRI scan, but the scan did not reveal signs of an ACL
tear, and it only showed minor abnormalities about the knee’s meniscus that
existed because of knee surgery that Richardson had previously received. Thus,
the report alleges that Dr. Otero operated on Richardson’s knee without an
7
adequate medical basis and despite Richardson’s complaints to him about pain
in her ankle.
The report continues by describing Richardson’s attempt to get a second
opinion about her pain from Dr. Foster after Dr. Otero’s surgery. It states in
relevant part,
Although Dr. Foster noted that Ms. Richardson’s left calf was
smaller than her right calf, and superficial tenderness to palpation,
Dr. Foster did not perform a range of motion on Ms. Richardson’s
left ankle or identify the ligaments that he examined. Dr. Foster
diagnosed Ms. Richardson’s problem as “complex regional pain
syndrome of the left lower extremity.” Dr. Foster arrived at his
opined diagnosis, failing to document the hallmarks of the
condition, well delineated in the [American Medical Association]
Guide, Fifth Edition, to include hypersensitivity to light touch,
withdrawal behavior, hyperhidrosis, hyperfusion, mottling and hair
and nail bed changes.
The Standard of Care Applicable to both Dr. Otero and Dr. Foster:
It is the standard of care for a physician who is examining a
patient’s leg injury to perform a thorough [orthopedic] examination
in order to determine the nature and extent of the injury. It is also
the standard of care when examining a leg injury, to perform full
range of motion testing regarding the injured leg, including the
knee, the ankle, and the foot, and to detail the findings of the
examination. . . .
Breach of Standard of Care:
From their records, neither Dr. Otero nor Dr. Foster performed
a thorough examination of Ms. Richardson’s left leg, including her
ankle and foot. . . . Without a complete [orthopedic] examination,
including full range of motion testing, and the obtainment of
appropriate objective diagnostic tests on Ms. Richardson’s ankle
8
and foot, an accurate diagnosis was not possible. . . . Although
Ms. Richardson may have sprained her knee, it was later
discovered (not by Dr. Otero or Dr. Foster) that Ms. Richardson had
fractured her left distal fibula. Nevertheless, . . . Dr. Foster had
ignored the patient’s complaints of calf pain and tenderness, . . .
attributing her complaints as a complication of the knee surgery
performed by Dr. Otero.
Results of Defendants’ Breach of the Standard of Care:
. . . If Dr. Otero and Dr. Foster had performed a complete
examination of Ms. Richardson’s left leg, including her tibula/fibula,
ankle and foot, and/or if they had referred Ms. Richardson for a
second opinion, while treating her conservatively to determine the
true nature of her injury, an unnecessary knee surgery would not
have been performed. Moreover, due to the physicians’ failure to
correctly diagnose Ms. Richardson’s injury, her fracture went
completely undetected for over seven months and the patient was
subjected to . . . a prolonged period of pain and requirement for
exhaustive narcotic enalyens, usage of a bone growth stimulator
and another surgery to remove painful surgical hardware, a
prolonged period of disability, and . . . loss of hind foot motion, . . .
as well as moderate chronic pain. As a result, it is my opinion that
Ms. Richardson will suffer from impairments that could have been
prevented had her injury been properly and timely diagnosed and
treated before the fracture had healed incorrectly failed to heal,
moved to non-union, and required further exhaustive care. 5
5
… The words “failed to heal, moved to non-union, and required further
exhaustive care” are hand written.
9
The adequacy of Dr. Drazner’s report as to causation
In the first part of his only issue, Dr. Foster contends that Dr. Drazner’s
report is deficient because Dr. Drazner’s statements related to the cause of
Richardson’s injuries are factually unsupported and inadequately explained and
because the report does not differentiate Dr. Foster’s and Dr. Otero’s actions
that allegedly contributed to Richardson’s injuries. 6
The factual explanation of causation
Dr. Foster asserts that Richardson’s allegedly unnecessary knee surgery
cannot have any causal link to Dr. Foster’s diagnosis because Richardson’s
petition and Dr. Drazner’s report establish that Dr. Foster first saw Richardson
about four months after the surgery. Dr. Foster also argues that Dr. Drazner’s
report “makes no attempt to explain how Dr. Foster’s alleged breach—the one
month delay in diagnosis that occurred six months after the injury—had any
causal relationship with the corrective [ankle] surger[ies] performed a little over
one month later.”
6
… Some of Dr. Foster’s contentions during oral argument regarded the
alleged vagueness of Dr. Drazner’s statements regarding Dr. Foster’s standards
of care. But Dr. Foster’s argument in his brief concerns the adequacy of Dr.
Dranzer’s report as to causation, not standards of care, and we will not
consider whether the report was adequate as to standards of care. See Tex.
R. App. P. 39.2 (explaining that the purpose of oral argument is to clarify the
written arguments in briefs); El Paso Natural Gas Co. v. Strayhorn, 208 S.W.3d
676, 681 (Tex. App.—Texarkana 2006, no pet.).
10
Richardson says that these arguments misunderstand “the nature of the
claims brought against Foster” and represents in her brief that her claims
against Dr. Foster are based on “other injuries caused by his negligence,”
specifically referring to her pain caused by Dr. Foster’s failure to properly
diagnose and treat the ankle injury. Undoubtedly, Dr. Foster is correct that he
could not have caused Richardson’s knee surgery, and Richardson has
acknowledged this fact. However, while Richardson’s petition alleges that both
doctors’ acts, “singularly or in combination, were a proximate cause” of her
damages that include expenses for medical care that could relate to the knee
surgery or the ankle surgeries (to initially treat the ankle fracture and to remove
the surgical hardware), the petition also asks for damages related to physical
pain and mental anguish suffered in the past and to be suffered in the future
and physical disability and disfigurement suffered in the past and to be suffered
in the future.
Dr. Drazner’s report explains that Dr. Foster’s alleged misdiagnosis caused
Richardson to suffer “a prolonged period of pain” and “a prolonged period of
disability.” Thus, assuming that Dr. Drazner correctly concluded that Dr.
Foster’s diagnosis of complex regional pain syndrome was erroneous and that
he should have diagnosed her with an ankle fracture, Dr. Drazner’s report links
11
Richardson’s continued pain and disability related to the fracture 7 to Dr. Foster’s
erroneous diagnosis for as long a period—here, more than a month—until her
condition was correctly diagnosed and treated.
Nonetheless, Dr. Foster relies on a recent San Antonio Court of Appeals
opinion to argue that Dr. Drazner’s report is still insufficient in explaining
causation even if it shows that Dr. Foster’s misdiagnosis induced Richardson’s
continued pain and disability. See Jones v. King, 255 S.W.3d 156 (Tex.
App.—San Antonio 2008, pet. denied) (mem. op.). In Jones, King, who
suffered from chronic pain, alleged that Dr. Jones’s allegedly improper
treatment—the placement of a morphine pump—caused her to develop several
health problems, including meningitis. Id. at 158. Dr. Jones, an
anesthesiologist, alleged that the expert report written by Dr. Gregory Powell
did not adequately address the causal connection between breaches of
standards of care and King’s injuries. Id. The San Antonio court explained that
the report contained “little more than a series of repetitious conclusory
statements” such as, “the failure to timely detect the meningitis and treat it for
more than forty-eight hours caused it to become worse and resulted in
7
… Dr. Drazner’s report alleges that Richardson complained of pain when
she saw Dr. Foster in June 2007.
12
numerous additional complications and injuries including decreased vision,
diabetes insipidus, and pain.” Id. at 159. The majority opinion said,
[A] close reading of the relevant portions of the report confirms
Powell’s failure to link any delay in diagnosis to any additional pain
and suffering or exacerbation of the meningitis than what would
have occurred in the face of an earlier diagnosis.
Stated another way, while it may be facially appealing to
infer additional pain and suffering resulted from the alleged delay
in diagnosis, the trial court is not permitted to rely on such
speculation in determining the adequacy of the report. While
Powell clearly states King suffered “extra” or “additional” pain and
suffering due to the 48-hour delay in diagnosis, he fails to provide
any baseline from which the trial court could conclude the delay
caused the results. Powell does not explain what facts led him to
his conclusions. His report does not indicate the normal or
expected course of meningitis once treatment has begun. Does
meningitis become more difficult to treat or take longer to resolve
if treatment is delayed? Does the disease become more virulent
due to lack of treatment? While Powell also states King was
“hospitalized twice,” “lost over thirty days at work,” and “incurred
a substantial amount of medical bills during the hospitalizations,”
he does not attempt to explain how these results would not have
occurred if the diagnosis of meningitis had occurred 48 hours
earlier. . . .
. . . Here, Powell offered no medical explanation about
whether earlier treatment would have been effective in shortening
the duration of the meningitis, precluding additional pain and
suffering, or preventing other alleged injuries and damages.
Id. at 159–60 (citations omitted and italic emphasis added).
However, unlike the expert report at issue in Jones, which, according to
the majority opinion, did not explain how a delay in diagnosis lengthened King’s
13
pain by delaying the resolution of her meningitis, Dr. Drazner’s report does
explain how Dr. Foster’s alleged failure to “determine the true nature of
[Richardson’s] injury” left her ankle fracture untreated and subjected Richardson
to prolonged pain. Thus, we conclude that the facts in Jones are
distinguishable from those involved here.
However, even if the Jones opinion could be read to render a report
inadequate on causation when the report sufficiently links a misdiagnosis to
pain that is prolonged until a correct diagnosis is made and the correct
treatment is given, we disagree with the opinion. Cf. Moore v. Sutherland, 107
S.W.3d 786, 791 (Tex. App.—Texarkana 2003, pet. denied) (holding that an
expert report based on a doctor’s misdiagnosis is sufficient as to causation
when it specifically states what the defendant “should have done and what
happened because he failed to do it”); see also Sullivan v. Methodist Hosps. of
Dallas, 699 S.W.2d 265, 274–75 (Tex. App.—Corpus Christi 1985) (holding
that the failure to diagnose the presence of a sponge in an abdomen sufficiently
caused the plaintiff’s injury when the plaintiff suffered from “additional physical
suffering”), writ ref’d n.r.e., 714 S.W.2d 302 (Tex. 1986). For these reasons,
we hold that, to the extent that Richardson’s claim against Dr. Foster concerns
her prolonged pain because of his alleged misdiagnosis, the trial court did not
abuse its discretion by denying Dr. Foster’s motion to dismiss based on his
14
allegation that Dr. Drazner’s causation opinion is factually unsupported or
inadequately explained. See Palacios, 46 S.W.3d at 875.
However, to the extent that Richardson’s claim against Dr. Foster asserts
that his alleged misdiagnosis caused her to require ankle surgeries and caused
the other alleged harmful conditions related to the surgeries,8 we conclude that
Dr. Drazner’s report provides a deficient explanation of causation. See Farishta,
224 S.W.3d at 453, 455 (indicating that an expert report must provide an
adequate explanation of causation as to each injury claimed by a plaintiff and
affirming the trial court’s dismissal of particular damage theories that the expert
report had not adequately addressed); see also Benson v. Vernon, No.
10-08-00271-CV, 2009 W L 2462657, at *3 (Tex. App.—Waco Aug. 12,
2009, no pet.) (citing Farishta and holding similarly). Dr. Drazner’s report says
that Richardson required “narcotic enalyens” and “usage of a bone growth
stimulator and another surgery to remove painful surgical hardware” and
suffered “loss of hind foot motion and injury to the superficial peroneal nerve,
as well as moderate chronic pain” because her ankle had “failed to heal, moved
8
… Despite Richardson’s statement in her brief that Dr. Foster
misunderstands the nature of her claims, Richardson claimed at trial in her
response to Dr. Foster’s dismissal motion and also claimed at oral argument on
appeal that the delay caused by Dr. Foster’s alleged misdiagnosis contributed
to the need for her two ankle surgeries. Dr. Drazner’s report also asserts such
a conclusion.
15
to non-union, and required further exhaustive care.” But Dr. Drazner’s report
does not identify how Dr. Foster’s alleged misdiagnosis in June 2007, which
caused about one month’s delay in correctly diagnosing the ankle injury after
the correct diagnosis had already been delayed for about six months since the
initial injury in December 2006, contributed to the requirement of such
exhaustive care. In other words, the report does not explain beyond mere
conjecture how the condition of Richardson’s ankle worsened from June 2007
to July so that Dr. Foster’s failure to give a correct diagnosis in June caused
the requirement of further treatment in July that would not have otherwise been
required if Dr. Foster had correctly diagnosed the injury. See Farishta, 224
S.W.3d at 453, 455. Thus, we hold that the trial court abused its discretion
to the extent that it found that Dr. Drazner’s report provided a sufficient
explanation about Dr. Foster’s actions causing Richardson’s ankle treatment.
See Palacios, 46 S.W.3d at 875. We sustain Dr. Foster’s sole issue as to that
limited basis.
The report’s collective referrals to Dr. Foster and Dr. Otero
Next, Dr. Foster argues that Dr. Drazner “failed to explain how each
defendant specifically and individually caused or contributed to Richardson’s
injury” and that the report’s alleged “collective assertions of negligence” are
inadequate because Dr. Drazner “merely prefaces every sentence regarding
16
causation with both doctors[‘] names.” He cites several cases to propose that
expert reports must differentiate the conduct of multiple defendants. See, e.g.,
Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d 913, 917 (Tex.
App.—Texarkana 2006, no pet.) (holding that a report was deficient because
it did not contain “specific information concerning how [one doctor] breached
the standard of care apart from [another doctor’s] conduct” when the plaintiff’s
complaint concerned the doctors’ joint treatment decision while the patient
suffered from bacterial meningitis); Taylor v. Christus Spohn Health Sys. Corp.,
169 S.W.3d 241, 244–46 (Tex. App.—Corpus Christi 2004, no pet.) (holding
that a report was deficient because it did not “present the standards of care
relevant” to each defendant or distinguish among several defendants concerning
how breaches of their standards of care contributed to an alleged failure to
diagnose and treat a heart condition). 9
Here, unlike in Longino and Taylor, the report explained that Dr. Otero’s
treatment of Richardson was independent of and attenuated in time from Dr.
9
… Dr. Foster also relies on the El Paso Court of Appeals opinion in
Murphy v. Mendoza, 234 S.W.3d 23, 29 (Tex. App.—El Paso 2007, no pet.).
That case is inapposite because the report did not even identify the defendants
by name when referring to their allegedly incorrect evaluations of a bladder
biopsy, so it could not have discussed the standards of care related to both
doctors “if the roles and responsibilities differed.” Id.
17
Foster’s diagnosis. Dr. Drazner’s report connects Dr. Foster’s actions to
Richardson’s delay in receiving proper treatment for her ankle fracture by
stating (in a paragraph that is independent from any discussion of Dr. Otero),
Although Dr. Foster noted that Ms. Richardson’s left calf was
smaller than her right calf, and superficial tenderness to palpation,
Dr. Foster did not perform a range of motion [test] on Ms.
Richardson’s left ankle or identify the ligaments he examined. . . .
Dr. Foster arrived at his opined diagnosis, failing to document the
hallmarks of the [complex regional pain syndrome] condition.
The report further states in its standard of care section of “both Dr. Otero and
Dr. Foster” that (1) orthopedic examinations should include a full range of
motion test regarding the knee, ankle, and foot, and that a doctor should detail
the results of the test, and (2) if a doctor cannot objectively diagnose the
source of pain, the doctor should refer the patient for a second opinion.
The report then alleges that both doctors breached the standard of care
through their separate treatment of Richardson’s injury. The report refers to the
doctors collectively, in part, by stating that “neither Dr. Otero nor Dr. Foster
performed a thorough examination” because they both did not complete full
range of motion testing and they therefore failed to diagnose the ankle fracture.
It also refers to the doctors collectively by stating as to causation, “[D]ue to the
physicians’ failure to correctly diagnose Ms. Richardson’s injury, . . . [she] was
subjected to . . . a prolonged period of pain.”
18
However, we cannot agree with Dr. Foster’s assertion that the report was
required to say in a separate sentence within its standard of care section that
Dr. Foster needed to and failed to perform the range of motion test (rather than
alleging that same fact within a sentence that also mentioned Dr. Otero)
because the report had previously independently explained why Dr. Foster
should have performed the test. We also cannot agree that the report needed
to use a separate sentence to explain how Dr. Foster’s conduct delayed the
correct diagnosis of Richardson’s ankle injury and thus prolonged her pain when
that was adequately indicated by the rest of the report. Thus, we conclude
that Dr. Drazner’s report is not deficient merely because it contains some
collective statements regarding actions that both doctors should have taken
while they independently cared for Richardson. See Barber v. Dean, No.
02-07-00353-CV, 2009 WL 3490952, at *10 (Tex. App.—Fort Worth Oct. 29,
2009, no pet. h.) (holding that a report is not deficient for grouping defendants
together when it specifically states that they all owed the same duty of care);
Livingston v. Montgomery, 279 S.W.3d 868, 873 (Tex. App.—Dallas 2009, no
pet.) (explaining that “the fact that [the report] identifies one standard of care
for more than one defendant does not render [the report] deficient”); Sanjar v.
Turner, 252 S.W.3d 460, 466–67 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (holding the same and noting that nothing “forbids applying the same
19
standard of care to more than one physician if . . . they all owed the same duty
to the patient”).
Thus, we hold that the trial court also did not abuse its discretion by
denying Dr. Foster’s motion to dismiss Richardson’s claim on the basis that
portions of Dr. Drazner’s report referred to the doctors’ conduct collectively.
See Palacios, 46 S.W.3d at 875.
Dr. Drazner’s qualifications
In the final part of his sole issue, Dr. Foster contends that Dr. Drazner is
not qualified to submit an expert report on causation. An expert report
authored by a person who is not qualified to testify cannot constitute an
adequate report. Collini, 280 S.W.3d at 462; see Ehrlich v. Miles, 144 S.W.3d
620, 624–26 (Tex. App.—Fort Worth 2004, pet. denied). The proper inquiry
concerning whether a doctor is qualified to testify is not his area of practice but
his familiarity with the issues involved in the claim before the court. Collini,
280 S.W.3d at 464; see Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston
[14th Dist.] 1999, no pet.).
To be qualified to submit a report on the causal relationship between the
breach of a physician’s standard of care and harm, the reporting physician must
be “otherwise qualified to render opinions on such causal relationship under the
Texas Rules of Evidence.” Tex. Civ. Prac. & Rem. Code Ann.
20
§ 74.351(r)(5)(C); see Tex. R. Evid. 702 (explaining that if “specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an
opinion”); Collini, 280 S.W.3d at 465.10
To be so qualified under rule 702, an expert must have knowledge, skill,
experience, training, or education regarding the specific issue before the court
that would qualify the expert to give an opinion on that particular subject.
See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Thomas
v. Alford, 230 S.W.3d 853, 857, 860 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (holding that because the doctor who submitted an expert report did
not demonstrate knowledge of cancer treatment, he was not qualified to offer
an opinion that an earlier diagnosis could have produced a better outcome for
10
… The parties discuss sections 74.351(r)(5)(A) and 74.401(a) of the
civil practice and remedies code, which relate to the expert qualifications to
submit an opinion “regarding whether a physician departed from accepted
standards of medical care.” See Tex. Civ. Prac. & Rem. Code Ann. §§
74.351(r)(5)(A), 74.401(a). However, Dr. Foster has not directly challenged
Dr. Drazner’s qualifications in that regard—the heading on his qualification
challenge in his brief is “Drazner is Not Qualified to Provide Adverse Causation
Opinions,” and the analysis in his brief also focuses on causation. Thus, we
will focus on the qualification standards under section 74.351(r)(5)(C), although
we acknowledge that there may be some overlap between those standards and
the standards related to qualifications for duty of care and breach.
21
the plaintiff) (citing Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996));
Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 762–63 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (deciding that a doctor was qualified
to opine about causation because his report demonstrated direct experience
with treating decubitus ulcers, which was the condition at issue). In other
words,
there is no validity, if there ever was, to the notion that every
licensed medical doctor should be automatically qualified to testify
as an expert on every medical question. . . . [T]he proponent of
the testimony has the burden to show that the expert ‘possesses
special knowledge as to the very matter on which he proposes to
give an opinion.’
Ehrlich, 144 S.W.3d at 625 (quoting Broders, 924 S.W.2d at 152–53).
“A medical expert who is not of the same school of medicine, however, is
competent to testify if he has practical knowledge of what is usually and
customarily done by a practitioner under circumstances similar to those
confronting the defendant.” Id.
Dr. Foster argues that Dr. Drazner is not qualified as an expert on
causation in this case because although Dr. Foster is an orthopedic surgeon,
Dr. Drazner “is an internist who specializes in Physical Medicine and
Rehabilitation” and has not demonstrated “that he has had education or
experience in the diagnosis, care, or treatment of an orthopedic surgery
22
patient.” Dr. Foster relies on Ehrlich and Collini. In Ehrlich, we held that a
neurologist, although skilled in the treatment of issues related to the nervous
system, was not qualified to submit an expert report on the validity of surgical
procedures used during the plaintiff’s face lift and implants. Id. at 625–26. In
Collini, we concluded that a doctor was not qualified to submit a report about
whether the prolonged prescription of a drug caused the plaintiff’s condition
because the doctor did not show that he had any knowledge, experience,
education, or training on that causal relationship or about the specific drug or
condition involved in the case. Collini, 280 S.W.3d at 465–66.
This case is different from Ehrlich and Collini because Dr. Drazner has
shown experience with the exact issue involved in Richardson’s claim against
Dr. Foster. Dr. Drazner’s report assigns blame to Dr. Foster for failing to follow
orthopedic diagnostic procedures (such as failing to complete a range of motion
test and failing to document hallmarks of the complex regional pain syndrome)
that would have allowed him to correctly diagnose Richardson’s broken ankle
and thus avoid (among other results) the continued pain associated with an
incorrect diagnosis; it does not assess blame on Dr. Foster for processes
involved with an orthopedic surgery.
Rather, our case is more akin to Barber v. Mercer, where we determined
that an anesthesiologist was qualified to give an expert report on a surgeon
23
during orthopedic surgery regarding the proper positioning and padding of the
patient. No. 02-08-00079-CV, 2009 WL 3337192, at *8 (Tex. App.—Fort
Worth Oct. 15, 2009, no pet.). Dr. Drazner’s report and curriculum vitae
establish his qualifications to submit a report about orthopedic diagnostic
procedures; they show that he obtained his medical degree in 1986 and that at
the time he submitted his report, he had practiced medicine in Texas for
eighteen years with a specialty in physical medicine and rehabilitation and a
secondary specialty in occupational medicine. He primarily treats patients who
have suffered orthopedic injuries, and he has “treated approximately 20,000
patients with [orthopedic] injuries and performed several hundred thousand
[orthopedic] examinations.” Since 1995, he has practiced in the area of
“Physical Medicine and Rehabilitation, Pain Management.”
Dr. Drazner has served as a featured speaker on several topics, including
one on “Multidisciplinary Approaches to the Management of Complex Regional
Pain Syndrome,” which is the particular condition that Dr. Foster diagnosed
Richardson as having. Dr. Drazner has also lectured on the management of
knee injuries.
Therefore, we hold that the trial court did not abuse its discretion by
denying Dr. Foster’s motion to dismiss on the basis that Dr. Drazner is not
24
qualified to provide an opinion on the causal relationship between Dr. Foster’s
actions and Richardson’s harm. See Palacios, 46 S.W.3d at 875.11
11
… Dr. Foster contends that Dr. Drazner was required to establish that
he is qualified to provide an opinion on the length of time it takes a bone to set
so that he could show that Richardson’s ankle fracture worsened between Dr.
Foster’s diagnosis and the later diagnosis of Richardson’s broken ankle.
Because we have already sustained Dr. Foster’s issue about the expert report’s
adequacy to establish a causal relationship between Dr. Foster’s actions and
Richardson’s ankle treatment, we will not address Dr. Drazner’s qualifications
to provide an opinion on that same issue. See Tex. R. App. P. 47.1.
25
Conclusion
Having overruled the majority of Dr. Foster’s sole issue regarding
Richardson’s assertion that his alleged misdiagnosis caused her additional pain,
we affirm the trial court’s order denying his motion to dismiss as to that issue.
Having sustained a portion of Dr. Foster’s sole issue concerning Richardson’s
assertion that his alleged misdiagnosis caused her need for ankle surgeries and
having found Dr. Drazner’s report deficient as to that causal relationship, we
reverse the trial court’s decision regarding the sufficiency of the report in that
regard and remand this case to that court to consider the issue of whether to
grant Richardson a thirty-day extension to cure that deficiency. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(c); Leland, 257 S.W.3d at 207; Collini, 280
S.W.3d at 468.
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
CAYCE, C.J. not participating.
DELIVERED: December 31, 2009
26 | 01-03-2023 | 09-04-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052000/ | Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL EMERSON CORRELL, No. 03-99006
Petitioner-Appellant, D.C. No.
v. CV-87-01471-PHX-
SMM
CHARLES L. RYAN, Warden, Acting
Director, Arizona Department of ORDER AND
Corrections; DORA B. SCHRIRO, AMENDED
Director, OPINION AND
Respondent-Appellee. AMENDED
DISSENT
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
September 26, 2005—San Francisco, California
Filed May 14, 2008
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
Dissent by Judge O’Scannlain
5409
CORRELL v. RYAN 5413
COUNSEL
Thomas Phalen and Jon M. Sands, Phoenix, Arizona, for the
appellant.
James P. Beene, Kent E. Cattani, and Terry Goddard, Phoe-
nix, Arizona, for the appellee.
ORDER
In response to the petition for rehearing, the panel has
elected to file an amended opinion and amended dissent. The
amended opinion and dissent are filed concomitantly here-
5414 CORRELL v. RYAN
with. With the filing of the amended opinion and dissent,
Judges Schroeder and Thomas voted to deny the petition for
rehearing and rehearing en banc. Judge O’Scannlain voted to
grant the petition for rehearing and rehearing en banc.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.
The petition for rehearing and rehearing en banc is
DENIED. The Court will entertain a further petition for
rehearing and rehearing en banc as to the amendments made
to the opinion. See Ninth Circuit General Order 5.3(a).
All pending motions are DENIED.
Judge Callahan’s dissent from rehearing en banc follows:
CALLAHAN, Circuit Judge, with whom KOZINSKI, Chief
Judge, and O’SCANNLAIN, KLEINFELD, TALLMAN, and
BEA, Circuit Judges, join, in dissenting from the denial of
rehearing en banc:
I respectfully dissent from our denial of rehearing en banc
because the panel majority fails to give deference to the dis-
trict court’s factual findings as required by Hovey v. Ayers,
458 F.3d 892, 900 (9th Cir. 2006), and improperly interprets
the test for ineffective assistance of counsel set forth in Strick-
land v. Washington, 466 U.S. 668 (1984), so as to create an
almost irrebutable presumption of prejudice.
Over twenty years ago, Michael Correll was convicted of
three counts of first-degree murder, with four aggravating cir-
cumstances, and sentenced to death. State v. Correll, 148
CORRELL v. RYAN 5415
Ariz. 468, 471, 478-81 (1986). The Arizona Supreme Court
affirmed the convictions, three of the aggravating circum-
stances, and the sentence. Id. at 485. In his federal habeas
petition Correll contends that he was denied the effective
assistance of counsel at trial as guaranteed by the Sixth
Amendment. On remand from this court, the district court
conducted a nine-day evidentiary hearing. The district court
concluded that although the performance of Correll’s attorney
at sentencing was deficient, Correll was not prejudiced.
The panel majority’s opinion reweighs the evidence before
the district court and reverses its conclusion by ignoring the
district court’s factual findings as well as the second prong of
the Strickland test for ineffective assistance of counsel. The
majority opinion collapses the two Strickland prongs into one
prong. The opinion implies that if counsel makes a strategic
decision not to investigate or present what it calls “classic
mitigating circumstances” that would nonetheless open the
door to more damaging aggravating evidence, prejudice will
be presumed. It compounds this mistake by failing to appreci-
ate that in this case even if a presumption of prejudice arises,
the presumption was, as the district court found, rebutted.
Moreover, if the facts in this case do not rebut the majority’s
presumption of prejudice, the presumption in effect becomes
irrebutable. For these reasons, I dissent from our decision not
to rehear this matter en banc.
I
Although it is not clear from the panel majority opinion, the
district court in its 109-page opinion found that trial counsel’s
performance had been deficient on only two matters. First, the
district court held:
Notwithstanding Strickland’s recognition that
defense counsel’s duty to investigate, develop and
present mitigating evidence can be reasonably based
on a judge’s sentencing tendencies, the Court reluc-
5416 CORRELL v. RYAN
tantly and narrowly concludes that [counsel’s] per-
formance was deficient because he failed to review
Petitioner’s mental health records . . . before making
sentencing strategy decisions.
Second, the district court again narrowly concluded that given
the overwhelming aggravating circumstances that Correll
faced, counsel “should have obtained the medical treatment
records” concerning Correll’s head injury when a wall fell on
him when he was seven years old.
The district court, however, rejected a number of other
challenges to the attorney’s performance. For example, the
district court noted:
The Court specifically finds that [counsel] did main-
tain regular contact with Petitioner prior to sentenc-
ing and rejects Petitioner’s allegation that [counsel]
only spent five minutes with him between conviction
and sentence. . . . Petitioner did provide names of
persons for [counsel] to contact prior to sentencing,
including Susan Curry. [Counsel] followed-up and
interviewed or tried to interview the persons Peti-
tioner suggested. . . . The witnesses were not able to
provide relevant useful mitigation information. In
fact, in many instances, the witnesses only pro-
vided inculpatory and non-mitigating informa-
tion.
(Emphasis in original.) The district court rejected the conten-
tion that counsel had improperly failed to present mitigating
evidence concerning drug use. It also found that counsel’s
performance was not deficient in failing to present expert tes-
timony on methamphetamine intoxication at the time of the
crime because “there was no lay witness testimony to support
Petitioner’s intoxication at the time of the crimes.” In addi-
tion, the district court rejected challenges to counsel’s limited
investigation of Correll’s family background. It concluded
CORRELL v. RYAN 5417
that information concerning incest in the family was not avail-
able to counsel because neither Correll nor any of the family
members that counsel interviewed provided him with any
information. The district court also concluded that counsel
“was not deficient in failing to present evidence corroborating
the child abuse allegations because such corroborating testi-
mony was not reasonably available to, and thus could not
have been obtained by [counsel] at sentencing.” As to the
charge that Correll suffered from his mother’s religious fanat-
icism, the district court concluded that counsel had the avail-
able information regarding Petitioner’s mother being a
Jehovah’s Witness, but reasonably chose to present such evi-
dence as an abandonment issue.
Thus, as indicated by Judge O’Scannlain’s dissent, a review
of the district court’s 109-page memorandum of decision and
order, although confirming that counsel provided deficient
representation when he failed to seek documents relating to
Correll’s mental health and medical conditions, also shows
that counsel’s efforts on behalf of his client were considerably
more nuanced than implied by the panel majority.
II
The panel majority alleges that defense counsel basically
abandoned his client at sentencing because Arizona law, as it
then existed, mandated the death penalty when a defendant
had a qualifying prior conviction, and there was no mitigating
evidence. Indeed, this would be a much easier case if this
assertion were true. However, it misstates the law in a critical
manner, and implies the existence of clearly mitigating evi-
dence where no clearly mitigating evidence exists.
The Arizona Supreme Court affirmed Correll’s conviction,
the presence of three aggravating circumstances, and his sen-
tence.1 The Arizona Supreme Court did not find that counsel
had abandoned Correll. Rather it held:
1
It should be noted that the majority does not suggest that any investiga-
tion or effort by counsel could have prevented the Arizona courts’ finding
three aggravating factors.
5418 CORRELL v. RYAN
The trial court found no mitigating circumstances
which called for leniency. Defendant offered five
mitigating circumstances: upbringing, cooperation in
preparation of the pre-sentence report, psychological
problems such that he did not understand the wrong-
fulness of his conduct, his minor participation in the
murders, and age. A.R.S. § 13-703(G) provides that
any relevant mitigating circumstance proffered must
be considered in determining whether to impose the
death penalty. We find that none of these factors,
alone or in combination, are sufficiently substantial
to call for leniency.
State v. Correll, 148 Ariz. at 482. Later in its opinion, after
affirming the existence of three aggravating factors, the Ari-
zona Supreme Court noted that it had “also considered the
mitigating circumstances offered by defendant, and [ ] con-
clude[d] that even in combination the mitigating circum-
stances are not sufficiently substantial to call for leniency.”
Id. at 483. Thus, it appears that Arizona law did not mandate
the death penalty, but required that the courts determine
whether there were factors that were “sufficient to call for
leniency.” Furthermore, the Arizona Supreme Court’s opinion
rebuts the panel majority’s suggestion that counsel had aban-
doned Correll at the sentencing hearing.
In addition, much of the majority’s criticism of counsel’s
performance fails to recognize the critical difference between
raising reasonable doubt as to the prosecutor’s case for the
death penalty and presenting affirmative evidence of mitigat-
ing circumstances. In Williams v. Woodford, 384 F.3d 567
(9th Cir. 2004), we recognized the validity of the lingering-
doubt defense at the penalty phase, particularly as it “did not
require introduction of mitigating evidence that would open
the door to damaging rebuttal evidence.” Id. at 624. We
wrote:
based upon our review of the reasons underlying
[counsel’s] penalty-phase strategy, we cannot fault
CORRELL v. RYAN 5419
[counsel’s] sound tactical decision to present a
lingering-doubt defense in lieu of a defense based
upon mitigating evidence of Williams’s family and
life history, drug use, or mental state. We note in this
regard that the defense of “ ‘residual doubt has been
recognized as an extremely effective argument for
defendants in capital cases.’ ” Lockhart v. McCree,
476 U.S. 162, 181, 106 S.Ct. 1758, 90 L.Ed.2d 137
(1986) (quoting Grigsby v. Mabry, 758 F.2d 226,
248 (8th Cir. 1985) (en banc) (Gibson, J., dissent-
ing)). A comprehensive study on the opinions of
jurors in capital cases concluded:
‘Residual doubt’ over the defendant’s guilt
is the most powerful “mitigating fact.” . . .
[T]he best thing a capital defendant can do
to improve his chances of receiving a life
sentence has nothing to do with mitigating
evidence strictly speaking. The best thing
he can do, all else being equal, is to raise
doubt about his guilt.
Stephen P. Garvey, Aggravation and Mitigation in
Capital Cases: What Do Jurors Think?, 98 Colum.
L. Rev. 1538, 1563 (1998) (footnote omitted);
accord William S. Geimer & Jonathan Amsterdam,
Why Jurors Vote Life or Death: Operative Factors
in Ten Florida Death Penalty Cases, 15 Am. J.
Crim. L. 1, 28 (1988) (“The existence of some
degree of doubt about the guilt of the accused was
the most often recurring explanatory factor in the life
recommendation cases studied.”).
Williams, 384 F.3d at 624.
Here counsel represented a client who insisted on his inno-
cence.2 Under such circumstances, a lingering-doubt defense
2
The district court noted:
Based on Petitioner’s continuing claim of innocence and Petition-
5420 CORRELL v. RYAN
was not only reasonable, but in light of then existing Arizona
law and the double-edged nature of the so-called “classic mit-
igating evidence,” perhaps the only reasonable approach
available.
III
It follows that because Arizona law did not mandate the
entry of the death penalty and counsel did not abandon Cor-
rell, the second prong of the Strickland test for ineffective
assistance of counsel cannot be presumed. Indeed, the pur-
poses of the district court’s nine-day evidentiary hearing was
to determine whether the evidence that counsel failed to dis-
cover could possibly have been “sufficiently substantive to
call for leniency.” What the district court found, and the
majority does not really dispute, is that there was no evidence
that might humanize Correll or portray Correll as sympa-
thetic. Rather, the evidence concerning Correll’s sociopathic
or antisocial personality disorder, drug use, and troubled fam-
ily was double-edged. Although the evidence might offer
some explanation for Correll’s criminal acts, the evidence
would also shed light on his prior criminal acts, violent ten-
dencies, and unremorseful attitude. The Supreme Court has
held that evidence of a troubled upbringing and mental issues
can be mitigating. See Rompilla v. Beard, 545 U.S. 374, 392-
93 (2005); Wiggins v. Smith, 539 U.S. 510, 534-35 (2003).
However, such evidence is also recognized to be double-
edged, and it can be a reasonable strategic choice not to pre-
sent such evidence. Williams, 384 F.3d at 619-20.3 This case
er’s failure to prove otherwise, the Court concludes that Peti-
tioner did not discuss or attempt to help [counsel] prove that he
was intoxicated when he committed the crime or that his condi-
tion at that time of the crimes would mitigate his sentence.
3
In Williams, we stated:
The Supreme Court and this court have consistently held that
counsel’s performance is not deficient for the failure to present
CORRELL v. RYAN 5421
requires a determination of whether the mitigating evidence
could have been sufficiently substantial to call for leniency.
In other words, whether there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694.
This question must be asked in the context of Arizona law
as it then existed. When Correll was tried, the death penalty
was not the province of a jury, but the responsibility of the
trial judge and the Arizona Supreme Court. Accordingly, the
inquiry is not whether a juror might possibly have been
moved to alter his or her view of the case, but whether there
is a reasonable possibility that any of the mitigating evidence
would have changed the trial judge’s or the Arizona Supreme
Court’s positions.
IV
By not asking this question, the panel majority fails to
appreciate that Correll has not, and cannot, meet the second
prong of the Strickland test for ineffective assistance of coun-
sel. Instead the majority (a) improperly substitutes its view of
the evidence for the district court’s findings, (b) fails to appre-
evidence in mitigation at the penalty phase when counsel’s deci-
sion is based upon a reasonable tactical determination that the
mitigating evidence would allow for the introduction of rebuttal
evidence ‘that might be literally fatal.’ Burger [v. Kemp], 483
U.S. [776,] at 791-94, 107 S.Ct. 3114 [(1987)] (counsel’s failure
to present any mitigating evidence, including the defendant’s
own testimony or the testimony of the defendant’s mother that he
had an exceptionally unhappy and physically abusive childhood,
or the expert testimony of a psychologist, was reasonable profes-
sional judgment because the testimony would risk bringing
before the jury evidence of the defendant’s unremorseful attitude,
violent tendencies, and prior criminal acts).
384 F.3d at 619-20.
5422 CORRELL v. RYAN
ciate Arizona’s death penalty provisions that were in exis-
tence when Correll was tried, and (c) ignores the fact that
presentation of the alleged “classic mitigating evidence”
would have opened the door to overwhelmingly damaging
rebuttal evidence.
A. The panel majority’s improper substitution of its inde-
pendent analysis of the record is well presented in Judge
O’Scannlain’s dissent; however, its treatment of two issues —
Correll’s alleged brain injury and the allegation that he was
under the influence of drugs at the time of the crimes — illus-
trates the extent to which the majority’s conclusions differ
from the evidence in the record and the district court’s per-
spective.
Addressing Correll’s alleged brain injury, the panel stated:
When Correll was seven, a brick wall collapsed on
his head. Although he was unconscious for some
time after the accident, his parents did not seek med-
ical treatment until several days later when he was
still not back to normal. Several experts testified that
this type of accident and the symptoms Correll
exhibited then and now indicate a high likelihood of
brain impairment.
The district court, however, made the following findings:
Petitioner received a head injury on April 8, 1967,
when he was 7, at which time his parents took him
to see their family doctor. Four days later, Petitioner
was vomiting and again taken to the family doctor
where an X-ray was taken and an EEG scheduled.
On April 14, 1967, an EEG was done. On April 15,
in response to more vomiting, Petitioner’s parents
took him to the emergency room at Children’s Hos-
pital of Los Angeles. At the hospital, he was seen by
a treating physician, who diagnosed a subgaleal
CORRELL v. RYAN 5423
hematoma, which is a bruise or collection of blood
under the scalp, but above the skull. The treating
physician recommended a neurosurgery consulta-
tion, which was done. The doctor in the neurosur-
gery clinic also diagnosed Petitioner with a subgaleal
hematoma. On May 3, 1967, Petitioner was brought
back to the neurosurgery clinic for a follow-up visit.
The follow-up visit noted that Petitioner’s hematoma
cleared in 5 days and that Petitioner was alert and
well.
In addition, the record indicates that when Correll was
examined by experts around 2000, his brain functioned at a
high level, although there was some evidence of impairment
in the prefrontal lobe.4 Also, there was little in the record to
connect the alleged impairment in 2000 to the 1967 accident.
The district court, having had the benefit of hearing from both
parties’ neuropsychologists, concluded that Correll did not
suffer any brain injury from the 1967 accident.
The majority, however, chastises the district court for mak-
ing such a finding asserting that it should “have decided only
whether there existed a ‘reasonable probability’ that ‘an
objective fact-finder’ in a state sentencing hearing would have
concluded that Correll had a brain injury that impaired his
judgment at the time of the crimes.” But the majority’s cor-
rection of the standard cannot change the fact that the district
court determined that there was no reasonable probability that
a fact-finder would find that Correll had a brain injury that
impaired his judgment, and that the majority, rather than defer
to this reasonable perspective, improperly substitutes its view
of the record for that of the district court.
4
The district court noted that Dr. Martell, a neuropsychologist, testified
that this mild impairment did not “have a lot of import for [Correll’s]
everyday behavior” and that “of all the capital defendants he has tested,
[Correll] is one of the highest functioning defendants.”
5424 CORRELL v. RYAN
The majority’s myopic view of the record also allows it to
conclude that “the evidence of Correll’s methamphetamine
use on the night of the crimes, had it been fully presented,
could have risen to the level of a statutory mitigator.” The
majority states that there was undisputed evidence induced
that Correll was addicted to methamphetamine and had used
it on the day of the crime, and further relies on expert testi-
mony “that gross methamphetamine intoxication, unlike gross
alcohol intoxication, is not necessarily apparent to outside
observers.”
The majority’s conclusion cannot be reconciled with Ari-
zona law at the time of the crimes and the evidence in the
record. As noted by Judge O’Scannlain, Arizona law provided
“[a] defendant’s intoxication or alcoholism at the time of the
offense is a mitigating circumstance if the evidence shows
that it significantly impaired the defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law.” State v. Zaragoza,
659 P.2d 22, 30 (Ariz. 1983) (emphasis added).
The district court, after holding a nine-day evidentiary
hearing, found:
* due to Correll’s continued maintenance of his
innocence, Correll did not discuss his mental state
with counsel and did not attempt to help counsel
prove that he was intoxicated when he committed the
crimes;
* counsel interviewed the persons Correll indicated
he was with prior to when the crimes were commit-
ted and they did not indicate that he was grossly
intoxicated by alcohol abuse or drug abuse on the
day of the crimes, but did indicate that Correll had
been using methamphetamine prior to the day the
crimes were committed;
CORRELL v. RYAN 5425
* “none of the witnesses could have testified that
they observed Petitioner injecting methamphetamine
in close proximity to the time the crimes occurred”;5
* the first thing that Correll and Nabors asked
Snelling when they gained entry into his trailer home
was whether he had any speed;
* Correll had spent the vast majority of his life
incarcerated in prison where his access to drugs was
limited;6
* Correll’s self-reporting of drug use was severely
limited due to the lack of corroboration;7
5
The district court noted that at the evidentiary hearing, Robin Correll,
petitioner’s sister, testified that on the morning before the crimes she wit-
nessed Correll inject some amount of methamphetamine. However, Robin
did not testify at the trial. The district court explained:
Had Robin testified about Petitioner’s use of methamphetamine
the day prior to the crimes, she could have been cross-examined
about her knowledge of Petitioner’s whereabouts at the time of
the crimes. Had Robin testified concerning Petitioner’s conversa-
tions about his need to leave town quickly, she would have dis-
closed that Petitioner was with John Nabors and had wanted an
immediate ride out-of-state very soon after the murders occurred.
Such testimony would have totally eliminated any mitigating
weight from Petitioner’s claim of innocence and residual doubt
(i.e., the guilt phase misidentification defense).
6
The district court noted that except for 229 days, Correll had been
incarcerated for the 9-year period between October 1975 and March 1984,
a month before the crimes.
7
The district court concluded:
The court does not credit Petitioner’s unsubstantiated self-report
that he abused methamphetamine every day before the crimes
were committed. Petitioner chose not to testify at the evidentiary
hearing; Petitioner chose not to fully cooperate with Dr. Mat-
thews’s examination regarding the issue of drug abuse. Because
of the obvious motive to fabricate, Petitioner’s self-serving state-
ments about his drug usage prior to the crimes is unreliable and
subject to searching skepticism.
5426 CORRELL v. RYAN
* Correll’s expert’s testimony was “thoroughly
impeached” because he admitted that he only mini-
mally considered the facts of the crimes before
reaching his conclusion, he admitted that the facts
did not necessary establish that Correll had promi-
nent hallucinations or delusions, and the facts of the
crimes show that Correll “was involved in deliberate
acts, planning, conspiring, avoiding detection,
awareness of wrongdoing, and that he was oriented
to time, place and reality.”
* the determination by Arizona’s expert in addic-
tion that Correll was not in a substance abuse psy-
chosis was credible because “he utilized the facts of
the case to support his opinion and tied his opinion
to the facts of the case;”
* “the evidence shows that it was Petitioner who
remained calm when the gun misfired as Nabors was
trying to kill Robin Cady. It was Petitioner who
encouraged Nabors to remain calm as there were no
cars coming, to get a shell chambered and shoot
Cady. Such behavior at the time of the crime does
not demonstrate intoxication and, in fact, undercuts
an assertion of intoxication.”
Accordingly, the majority’s assertions that there is a rea-
sonable probability that a fact-finder could have found that
Correll had a brain injury or that he was intoxicated by drugs
at the time of the crimes are not supported by the record.
More importantly, the majority’s reweighing of the evidence
violates our established law of deferring to the district court’s
findings. Hovey, 458 F.3d at 900 (“[F]actual findings made by
the district court are reviewed under the ‘significantly defer-
ential’ clearly erroneous standard, in which we accept the dis-
trict court’s findings of fact absent a ‘definite and firm
CORRELL v. RYAN 5427
conviction that a mistake has been committed.’ ”) (citations
omitted).8
Here, the district court held a nine-day evidentiary hearing
and made detailed findings of fact on remand from this court.
We abuse our role as an appellate court when we cavalierly
ignore the findings that a district court makes on remand.
Again, the question is not whether reasonable minds might
differ, but whether a review of the record creates “a definite
and firm conviction that a mistake has been committed.”9 The
majority, in pursuing “some mitigating evidence [that] could
have spared Correll’s life,” fails to appreciate — as it is
required to — that the district court’s contrary position is rea-
sonable and entitled to deference.
B. Although counsel’s decision not to investigate Cor-
rell’s medical and psychiatric records fell below an acceptable
level of competence, his underlying reasons may be relevant
to a determination of whether the failure to investigate was
prejudicial. The district court explained defense counsel’s per-
spective as follows:
8
Our deference to the district court’s factual findings did not arise in
Hovey, 458 F.3d at 900, but is of a longstanding principle of habeas
review. See Silva v. Woodward, 279 F.3d 825, 835 (9th Cir. 2002) (“[O]ur
review for clear error is ‘significantly deferential,’ in that we must accept
the district court’s factual findings absent a ‘definite and firm conviction
that a mistake has been committed.’ ”); United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000) (“Clearly erroneous review is ‘significantly defer-
ential,’ requiring that the appellate court accept the district court’s findings
absent a ‘definite and firm conviction that a mistake has been commit-
ted.’ ”); McMillan v. United States, 112 F.3d 1040, 1044 (9th Cir. 1997)
(quoting Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers
Pension Trust, 508 U.S. 602 . . . (1993).).
9
In Hayes v. Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002), we
noted that “[t]o be clearly erroneous, a decision must strike us as more
than just maybe or probably wrong; it must, as one member of this court
recently stated during oral argument, strike us as wrong with the force of
a five-week-old, unrefrigerated dead fish.” (internal quotation omitted).
5428 CORRELL v. RYAN
[Counsel] estimated that Petitioner had one chance
in twenty for a life sentence if he did not present the
psychological diagnosis but only one chance in fifty
if he presented Petitioner’s psychological diagnosis
to Judge Howe [the trial judge]. . . . Rather than
argue Petitioner’s personality disorder to Judge
Howe, [counsel] decided that Petitioner had a better
chance to avoid the death penalty if he portrayed that
Petitioner was involved in a drug ripoff which had
gone terribly wrong, that Petitioner had only been a
follower in the matter, that he had not been the
trigger-man as to the three people who died, that
Gary Snelling had reported to police that Petitioner
was under the influence of drugs and/or alcohol at
the time of the crimes, and that he should be shown
sympathy because his family abandoned him at the
age of 14. . . . [Counsel] concluded that any psycho-
logical diagnosis of Petitioner could not be presented
and argued without producing witnesses and other
evidence that might destroy any residual doubt aris-
ing from the presentation of his misidentification
defense at trial and the mitigation theory [counsel]
intended to present regarding Petitioner being only a
follower in the drug mishap and not the trigger-man.
The district court further explained:
[Counsel] acknowledged that Judge Howe would
consider and give effect to constitutionally relevant
mental health evidence, but believed that once Judge
Howe knew Petitioner’s diagnosis, he would find it
easier not to show sympathy and sentence him to
death. . . . Likewise, [counsel] did not believe that
Judge Howe would give substantial mitigating
weight to antisocial personality disorder evidence.
. . . On the other hand, [counsel] did believe that
there was some possibility that Judge Howe might
CORRELL v. RYAN 5429
give Petitioner a break for not being the trigger-man
in the murders.
Although the panel majority opines that defense counsel
“was afraid of the sentencing judge,” a review of the record
indicates that counsel’s evaluation of Judge Howe’s outlook
was probably accurate and definitely reasonable. Furthermore,
the panel majority’s criticism of counsel’s focus on Judge
Howe ignores that under existing Arizona law, it was Judge
Howe who was responsible for sentencing Correll. If Judge
Howe imposed the death sentence, the Arizona Supreme
Court would review that decision. However, if Judge Howe
had declined to impose the death sentence, it is doubtful that
Arizona or the Arizona Supreme Court could have, or would
have, sought to change that decision.10
C. Perhaps the most critical factor, which is not really
denied by the majority, is that the introduction of the “classic
mitigating circumstances” would open the door to the admis-
sion of overwhelming negative evidence. The district court
explained:
Although the Court has attempted to recount the mit-
igation evidence presented at Petitioner’s evidentiary
hearing in detail, the bottom line is clear: a strategy
of presenting Petitioner’s emotional and mental
10
The majority dismisses counsel’s perspective concerning Judge Howe
by labeling it a presumption that “the judge would not follow the law.”
The district court, however, specifically rejected the suggestion that Judge
Howe would not follow the law. Rather, counsel thought that if Judge
Howe found out that Correll was a sociopath or psychopath, he was more
likely to sentence him to death. The district court found counsel’s perspec-
tive to be credible. Moreover, Judge Howe’s alleged perspective does not
appear to be either irrational or illegal. In Strickland, the Supreme Court
recognized that the trial judge’s known views could be considered by
counsel. 468 U.S. at 699. The trial judge’s views were particularly impor-
tant in Correll’s case as three aggravating circumstances were established
beyond dispute and a life sentence depended on Judge Howe finding suffi-
cient mitigating circumstances to warrant leniency.
5430 CORRELL v. RYAN
problems, his condition at the time of the crime, or
as a victim of an abusive and tragic upbringing,
would have required the following additional disclo-
sures of facts, none of which are “mitigating:” (i)
Petitioner’s rape of a female psychotic patient while
he was undergoing mental health treatment for his
antisocial personality disorder and mild depression
. . . ; (ii) Petitioner’s numerous escapes from mental
health treatment facilities and rejections of institu-
tional efforts to provide him with mental health treat-
ment . . . ; (iii) Petitioner’s hostage taking and armed
aggression against mental health workers in an
escape attempt from a mental health treatment facil-
ity . . . ; (iv) the underlying factual basis of Petition-
er’s prior conviction for armed robbery . . . ; (v) the
revelation that, shortly after the murders were com-
mitted, Petitioner and Nabors woke up Robin Correll
and informed her that they needed a ride out-of-state
right away . . . ; (vi) Petitioner’s lack of effort to
seek any type of treatment for his substance abuse
problem . . . ; (vii) Petitioner’s acts of regularly
molesting his sister Robin . . . ; (viii) the conclusion
of the social evaluation at age 18 that Petitioner was
not a candidate for probation and was a danger to the
community . . . ; (ix) additional information showing
the efforts of Petitioner’s parents to deal with his
drug abuse problem and obtain psychological treat-
ment for him following his armed threat against a
teacher at school . . . ; (x) that Petitioner had no
desire to work but only wished to enjoy himself . . . ;
and (xi) Petitioner’s statement that when he commit-
ted the 1978 armed robberies that it gave him a
strong sense of power and excitement . . . .
The district court also agreed with counsel that the prosecutor
“had a reputation of excellent preparation and that she would
have left no stone unturned in her opportunity to rebut any
mitigation evidence presented.”
CORRELL v. RYAN 5431
The panel majority seeks to minimize the negative impact
of this evidence by suggesting that a “significant portion” of
the “damaging rebuttal evidence was already available
through the pre-sentence report.” This is a misleading over-
statement. Such facts as Correll’s molestation of his sister, his
use of minors to facilitate armed robberies, and his rape of a
psychotic female patient were not set forth in the pre-sentence
report. Moreover, as has already been noted, there is a world
of difference between raising questions as to the sufficiency
of the State’s presentation and introducing “mitigating evi-
dence that would open the door to damaging rebuttal evi-
dence.” Williams, 384 F.3d at 624.
Regardless of how much of the negative evidence was
already before the trial court, the inquiry remains whether fur-
ther presentation of the evidence would have been substantial
enough to mitigate a death sentence.11 The majority does not
really take issue with the district court’s determination that
Correll, at most, had an antisocial personality disorder, and
that there was “insufficient evidence to support that [Correll]
has ever suffered from any major mental illness, whether
PTSD, a major depressive disorder, or a bipolar disorder.”
Instead, the panel majority opines that the damaging rebuttal
evidence “could, in the hands of a competent attorney, have
been used to support Correll’s claims of dysfunctional
upbringing and continuing mental disorder.” This may be true
in the abstract, but in light of the horrific nature of the crimes,
Correll’s defense of innocence, the extant standard for the
imposition of the death penalty, and the damaging rebuttal
evidence, the majority engages in wishful thinking.
Here we are concerned with the possible impact of damag-
ing rebuttal evidence on Judge Howe and the Arizona
11
Ironically, the panel majority’s suggestion that the evidence was in the
pre-sentence report would appear to weigh against its conclusion that the
presentation of the evidence would have made a difference.
5432 CORRELL v. RYAN
Supreme Court. The district court properly noted that the stan-
dard is high:
Based on both the horrific facts surrounding these
murders and [Correll’s] prior criminal history, this is
the type of case that demands powerful mitigation
before it may be said that confidence in the outcome
at sentencing has been undermined. See Bonin v.
Calderon, 59 F.3d 815, 836 (9th Cir. 1995); see also
Gerlaugh v. Stewart, 129 F.3d 1027, 1042-43 (9th
Cir. 1997) (horrific crime facts require substantial
mitigation before it may be said that the balance of
aggravating factors did not warrant death); Campbell
[v. Kincheloe], 829 F.2d [1453,] 1464 [(9th Cir.
1987)] (overwhelming aggravating factors and the
heinous nature of the crime required more than
insubstantial mitigation to establish prejudice).
Also, Arizona argues that under Arizona law:
Correll’s personality disorder, his alleged drug
addiction, his past psychological and medical his-
tory, and his dysfunctional family, as non-statutory
mitigators, are not entitled to any significant mitigat-
ing weight, because Correll failed to demonstrate
any causal nexus between these mitigators and the
crimes he committed. [State] v. Murdaugh, 209 Ariz.
19, 35 . . . (2004) (drug impairment, personality dis-
order, and paranoia not entitled to significant miti-
gating weight because there was no proven causal
nexus between them and the defendant’s crimes);
[State] v. Hoskins, 199 Ariz. 127, 151-53 . . . (2000)
(antisocial or borderline personality disorder, and
dysfunctional family, not mitigating in absence of
causal link to crime.).
Furthermore, even the panel majority does not question that
the state proved three aggravating factors. In light of the hor-
CORRELL v. RYAN 5433
rific nature of the murders, the reasonably perceived nature of
the trial judge’s jurisprudence, and the incredibly damaging
nature of some of the rebuttal evidence, it is not reasonable to
conclude that the admission of the evidence would have had
any mitigating impact on either Judge Howe or the Arizona
Supreme Court.
V
This case presents an instance in which counsel’s instinct
that an investigation into Correll’s medical and mental history
would not yield any positive evidence, although an unaccept-
able reason for not conducting an investigation, turns out after
17 years, a full investigation, and a 9-day evidentiary hearing,
to have been correct. The panel majority does not really deny
that there is no positive evidence, but argues that evidence
concerning Correll’s alleged brain damage, sociopathic or
antisocial personality disorder, drug use, and troubled family,
constitute “classic mitigating circumstances.” The second
prong of the Strickland test, however, does not call for an
abstract analysis of what might be mitigating evidence, but a
determination of whether there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694.
The Supreme Court reiterated this standard in Woodford v.
Visciotti, 537 U.S. 19, 22 (2002), when it reversed this court
for failing to defer to the California Supreme Court’s determi-
nation that trial counsel’s inadequacy was not prejudicial.12
12
The Supreme Court’s description of the California Supreme Court’s
determination — that it held we had improperly failed to accept — bears
an uncanny resemblance to the district court’s determination in this case.
The Supreme Court noted:
The California Supreme Court concluded that despite the failure
to present evidence of respondent’s “troubled family back-
ground,” which included his being “berated,” being “markedly
5434 CORRELL v. RYAN
Moreover, in Allen v. Woodford, 395 F.3d 979 (9th Cir.
2005), we first found that “counsel’s failure to prepare for the
sentencing phase until a week before that phase began, and
his resulting failure to thoroughly investigate and present
Allen’s mitigation case, was constitutionally deficient,” id. at
1002, but denied relief because we could not “conclude that
there is a reasonable probability, had trial counsel presented
the potential mitigation evidence developed during habeas,
that the jury would have weighed the evidence in favor of a
life sentence.” Id. at 1005. Although Allen presented a very
different factual situation, it does require that we look beyond
the fact of counsel’s deficient performance to determine
whether it had any effect on the result.
The record in this case clearly shows that the presentation
of evidence of Correll’s alleged brain damage, sociopathic or
antisocial personality disorder, drug use, and troubled family
would not have made any difference to the trial judge or the
Arizona Supreme Court. This conclusion is solidly based on
the horrific nature of the murders, the applicable constitu-
tional and state law as it existed when Correll was tried, the
perceived nature of the trial judge’s jurisprudence, and the
incredibly damaging nature of the rebuttal evidence. It is one
lacking in self-esteem and depressed,” having been “born with
club feet,” having “feelings of inadequacy, incompetence, inferi-
ority,” and the like, moving “20 times” while he was growing up,
and possibly suffering a “seizure disorder,” the aggravating fac-
tors were overwhelming. In the state court’s judgment, the cir-
cumstances of the crime (a cold-blooded execution-style killing
of one victim and attempted execution-style killing of another,
both during the course of a preplanned armed robbery) coupled
with the aggravating evidence of prior offenses (the knifing of
one man, and the stabbing of a pregnant woman as she lay in bed
trying to protect her unborn baby) was devastating. The Califor-
nia Supreme Court found these aggravating factors to be so
severe that it concluded respondent suffered no prejudice from
trial counsel’s (assumed) inadequacy.
Woodford, 537 U.S. at 26 (citations omitted).
CORRELL v. RYAN 5435
thing to cast about for alternate theories after the imposition
of the death penalty, and an entirely different thing to argue
that a defendant who has been convicted by a jury of first-
degree murder should not receive the death penalty because
he is a sociopath who cannot control himself. Correll’s coun-
sel thought that there was a one in twenty chance that Judge
Howe would not impose the death penalty if the murders were
presented as the result of a “routine robbery, drug rip off that
went bad.” The presentation of further evidence of Correll’s
mental and medical records, antisocial behavior, and prior
crimes — far from eliciting sympathy — would have ren-
dered a death sentence a certainty rather than a probability.
The panel majority’s opinion is not only factually wrong,
but more importantly for Ninth Circuit law, fails to follow the
standard for ineffective assistance of counsel mandated by the
Supreme Court and followed in our prior cases. First, instead
of fairly asking separately whether counsel’s performance
was deficient and whether the deficient performance was prej-
udicial, the opinion collapses the two standards into a single
inquiry of whether counsel’s performance was deficient. In
other words, it in effect allows a finding of a deficient strate-
gic decision to carry an irrebutable presumption of prejudice.
Second, it fails to recognize that even assuming that a pre-
sumption of prejudice may arise from a determination of defi-
cient performance, here the presumption was rebutted. It does
this by insisting that there were “classic mitigating circum-
stances,” without acknowledging the seriously damaging
nature of this evidence.13
The panel majority’s opinion makes it almost impossible
for defense counsel in a death penalty to render effective
assistance of counsel. Where, as here, defense counsel recog-
nizes that what might arguably be mitigating evidence is also
13
As previously noted, we have held that the double-edged nature of
arguably mitigating evidence may justify a decision not to present such
evidence. Williams, 384 F.3d at 619-20.
5436 CORRELL v. RYAN
damaging, he or she faces an impossible decision. If counsel
decides to forego presentation of the evidence, counsel’s per-
formance may be subsequently determined to be ineffective
because the choice was prejudicial (the client received the
death penalty). If defense counsel proffers the controversial
evidence, and the client gets the death penalty, counsel will be
chastised for introducing evidence that was prejudicial to the
client. Moreover, every criminal defendant who persuades a
court that his or her counsel was ineffective will argue that if
the deficiency was prejudicial in this case, it must be prejudi-
cial in his or her case. Because the panel majority miscon-
ceives the Strickland standard for ineffective assistance of
counsel and then applies it in such a way as to suggest an irre-
butable presumption of prejudice from a counsel’s deficient
strategic decision, I dissent from our decision not to rehear
this matter en banc.
OPINION
THOMAS, Circuit Judge:
Michael Emerson Correll, an Arizona inmate sentenced to
death, appeals the district court’s denial of his petition for writ
of habeas corpus following our remand for an evidentiary
hearing. We reverse.
I
This capital case arises under a federal habeas corpus pro-
visions that have been supplanted by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (“AEDPA”), and a state capital sentencing
statute that has since been repealed.
The factual history of this case was detailed in our earlier
opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir.
CORRELL v. RYAN 5437
1998) (“Correll I”). Briefly, Correll was convicted by an Ari-
zona jury in 1984 of first degree murder, attempted first
degree murder, kidnapping, armed robbery, and first degree
burglary, all for his role in a triple homicide. Id. at 1408. He
was sentenced to death by the trial judge, id. at 1410, and the
Arizona Supreme Court upheld his conviction, State v. Cor-
rell, 715 P.2d 721 (Ariz. 1986). The Supreme Court, however,
modified his death sentence as to one of the victims and inval-
idated one aggravating factor. Id. at 730-31; 734-35.
In 1987, Correll timely filed a petition for post-conviction
relief pursuant to Arizona Rule of Criminal Procedure 32. In
this petition, Correll asserted multiple violations of his consti-
tutional rights, including his right to the effective assistance
of counsel during the guilt and penalty phases of his trial, his
right to confrontation, and his right to reliability in capital
sentencing. Correll later filed five supplements to his petition,
adducing evidence of his mental impairment and his attor-
ney’s ineffectiveness. The Arizona trial court summarily dis-
missed Correll’s petition and subsequently denied Correll’s
motion for rehearing. The Arizona Supreme Court denied
review without comment.
Correll subsequently filed a petition for writ of habeas cor-
pus in federal district court under 28 U.S.C. § 2254. Correll
alleged fifty-three constitutional violations at trial, at sentenc-
ing, and during the appellate process. The district court deter-
mined that twenty-six of Correll’s claims were procedurally
barred, then granted summary judgment against Correll on his
remaining constitutional claims.
On appeal, we affirmed all of the district court’s order
except as to Correll’s contention that he was entitled to an
evidentiary hearing on his claim of ineffective assistance of
counsel at sentencing. Correll I, 137 F.3d at 1420. We
remanded that issue to the district court with instructions to
hold an evidentiary hearing. Id.
5438 CORRELL v. RYAN
On remand, the district court conducted a nine day eviden-
tiary hearing. Applying the standards set forth in Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny, the district
court concluded that the performance of Correll’s attorney at
sentencing was deficient but that Correll had suffered no prej-
udice. The district court therefore granted judgment against
Correll on his federal habeas corpus petition. This timely
appeal followed.
Because Correll’s petition for a writ of habeas corpus was
filed before the effective date of AEDPA, pre-AEDPA law
governs our consideration of the merits. Lindh v. Murphy, 521
U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494
(9th Cir. 1997) (en banc). Under pre-AEDPA law, we con-
sider a claim alleging ineffective assistance of counsel as a
mixed question of law and fact, which we review de novo.
Rios v. Rocha, 299 F.3d 796, 799 n.4 (9th Cir. 2002). We
review the district court’s denial of Correll’s habeas petition
de novo and the district court’s factual findings for clear error.
Id.
II
[1] As the Supreme Court has long instructed, the Sixth
Amendment right to counsel in a criminal trial includes “the
right to the effective assistance of counsel.” McMann v. Rich-
ardson, 397 U.S. 759, 771 n.14 (1970). This right extends to
“all critical stages of the criminal process,” Iowa v. Tovar,
541 U.S. 77, 80-81 (2004), including capital sentencing, Silva
v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). “Because of
the potential consequences of deficient performance during
capital sentencing, we must be sure not to apply a more
lenient standard of performance to the sentencing phase than
we apply to the guilt phase of trial.” Mak v. Blodgett, 970
F.2d 614, 619 (9th Cir. 1992).
Under the familiar Strickland standard, to prevail on his
claim of ineffective assistance of counsel during the penalty
CORRELL v. RYAN 5439
phase of his trial, Correll must demonstrate first that the per-
formance of his counsel fell below an objective standard of
reasonableness at sentencing and, second, that “there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” 466 U.S. at 694. Under Strickland, we measure an attor-
ney’s performance against an “objective standard of
reasonableness,” calibrated by “prevailing professional
norms.” Id. at 688.
There are two aspects of Correll’s penalty phase defense
that are at issue in this appeal: the investigation of possible
defenses and the presentation of valid ones.
A
[2] Counsel has a duty at penalty phase “to conduct a thor-
ough investigation of the defendant’s background.” Williams
v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). “To perform effectively in the penalty phase of
a capital case, counsel must conduct sufficient investigation
and engage in sufficient preparation to be able to ‘present[ ]
and explain[ ] the significance of all the available [mitigating]
evidence.’ ” Mayfield v. Woodford, 270 F.3d 915, 927 (9th
Cir. 2001) (en banc) (quoting Williams, 529 U.S. at 399)
(alterations in original). When it comes to the penalty phase
of a capital trial, “[i]t is imperative that all relevant mitigating
information be unearthed for consideration.” Caro v. Calde-
ron, 165 F.3d 1223, 1227 (9th Cir. 1999), as amended.
The ABA Standards for Criminal Justice provide guidance
as to the obligations of criminal defense attorneys in conduct-
ing an investigation. Rompilla v. Beard, 545 U.S. 374, 387,
125 S.Ct. 2456, 2466 (2005); Williams, 529 U.S. at 396. The
standards in effect at the time of Correll’s capital trial clearly
described the criminal defense lawyer’s duty to investigate,
providing specifically:
5440 CORRELL v. RYAN
It is the duty of the lawyer to conduct a prompt
investigation of the circumstances of the case and to
explore all avenues leading to facts relevant to the
merits of the case and the penalty in the event of
conviction. The investigation should always include
efforts to secure information in the possession of the
prosecution and law enforcement authorities. The
duty to investigate exists regardless of the accused’s
admissions or statements to the lawyer of facts con-
stituting guilt or the accused’s stated desire to plead
guilty.
ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982
Supp.).
As measured against these prevailing professional norms,
there can be little doubt that Correll’s penalty phase counsel
fell below an objective standard of reasonableness.
[3] First, Correll’s attorney did little to counsel Correll
about potential mitigating arguments, even though
“[a]dequate consultation between attorney and client is an
essential element of competent representation of a criminal
defendant.” United States v. Tucker, 716 F.2d 576, 581 (9th
Cir. 1983) (citation omitted). Correll alleges that defense
counsel met with him only once, for five minutes, between
trial and sentencing. Correll I, 137 F.3d at 1412. At the evi-
dentiary hearing, his attorney contradicted that allegation, tes-
tifying that he met with Correll “[p]robably two or three
times.” Based on the attorney’s testimony, the district court
rejected Correll’s assertion of minimal consultation, specifi-
cally finding that Correll’s attorney “did maintain regular con-
tact with Petitioner prior to sentencing.”
The record, however, reveals that the district court’s find-
ing of adequate consultation was clearly erroneous. Even if
counsel’s efforts to communicate with Correll exceeded one
five-minute meeting, his penalty phase consultation was
CORRELL v. RYAN 5441
unreasonably limited. Indeed, Correll’s attorney was not even
confident that he had met with Correll more than once; he tes-
tified, “I know definitely one time that I can recall, but I think
probably two or three times.” His hand-written notes from the
time period confirm only two meetings. More importantly, the
attorney’s notes make clear that Correll failed to grasp the sig-
nificance of the sentencing hearing and that his attorney
made, at best, minimal efforts to explain it to him. In fact,
Correll asked to be sentenced as soon as possible so that he
could go to the Department of Corrections in time to pick up
a Christmas package, and his attorney acquiesced in that
request. At no point did Correll’s counsel explain to Correll
the possibility of a mitigation defense arising from Correll’s
drug use, brain damage, family history, or psychiatric record,
and at no point did counsel ask Correll for information or con-
tacts specifically related to those issues. We therefore con-
clude that the district court’s factual finding on this issue was
clearly erroneous and that the district court’s legal conclusion
was in error. Correll’s attorney did not maintain constitution-
ally adequate contact or engage in constitutionally adequate
consultation with Correll in between conviction and sentenc-
ing.
[4] Second, penalty phase investigations in capital cases
should include inquiries into social background, including
investigation of any family abuse, mental impairment, physi-
cal health history, and substance abuse history. Summerlin v.
Schriro, 427 F.3d 623, 630 (9th Cir. 2005) (en banc). That
investigation should include examination of mental and physi-
cal health records, school records, and criminal records. Id.
“Defense counsel should also personally review all evidence
that the prosecution plans to introduce in the penalty phase
proceedings, including the records pertaining to criminal his-
tory and prior convictions.” Id. (citing Rompilla, 125 S.Ct. at
2465). In this case, although defense counsel was aware that
potential mitigating evidence existed, he did not explore any
avenues that might lead to development of that evidence.
5442 CORRELL v. RYAN
[5] The district court excused defense counsel’s failure to
investigate many of these mitigating factors on the ground
that Correll “had not informed” his attorney of the various
“allegations” that amounted to classic mitigating circum-
stances. On that basis, the district court apparently concluded
that defense counsel was unaware of — and could not investi-
gate — many of the mitigating factors that Correll proffered
during the evidentiary hearing. Although the district court was
apparently right to conclude that Correll did not specifically
inform his counsel of some mitigating factors, the court’s
implicit conclusion that the attorney was ignorant of those
factors is clearly erroneous. When questioned during the miti-
gation hearing, Correll’s trial counsel explicitly confirmed
that he was aware of Correll’s mental health disorders, psy-
chiatric commitments, drug abuse history, brain injury, and
family dysfunction. Defense counsel testified as follows:
Q. Were you aware that [Correll] had spent nearly
his entire teen life, from ages 14 to 18, as a
ward of the State of California and an inmate of
the California Youth Authority?
A. Yes.
...
Q. [T]hese [referring to exhibit] are notes from
your first interview and your first meeting with
Mr. Correll?
A. Yes.
Q. And you see there noted, don’t you, that you
learned of mental disorders. You checked the
mental disorders box, and that he had been
committed twice, and “in joint.” Do you see
that?
CORRELL v. RYAN 5443
A. Yes.
Q. So you knew from the inception of this case that
Mr. Correll had a couple of commitments to
psychiatric or mental institutions?
[Objection colloquy omitted.]
THE WITNESS: Yes, I definitely knew that.
[Colloquy omitted.]
Q. You also learned, during the course of your rep-
resentation of Mr. Correll, that he had a rather
lengthy drug abuse history, didn’t you?
A. Yes.
Q. Did you also learn, during the course of your
representation, that other of the Correll brothers
had criminal records and themselves had been
incarcerated in the Youth Authority?
A. Yes.
Q. Did you learn that his sister Robin was residing
in a foster home?
A. I believe I was aware of that. I don’t recall at
this point.
Q. Did you then, conclude that there were prob-
lems of some description within the Correll
household that may have contributed to the Cor-
rell childrens’ [sic] poor record of success?
A. Oh, it was obviously an extremely dysfunc-
tional family.
5444 CORRELL v. RYAN
This testimony makes perfectly clear that Correll’s trial coun-
sel was aware of many if not all relevant mitigating factors.
The district court’s implicit conclusion to the contrary was
clearly erroneous.
Indeed, in light of the abundance of classic mitigation evi-
dence of which counsel was aware, his almost complete fail-
ure to investigate is startling. Despite his knowledge that
Correll was a drug user with an extremely troubled childhood,
defense counsel did not interview witnesses about these issues
or obtain records concerning these matters. The district court
found that Correll’s attorney “interviewed or tried to inter-
view” about forty or fifty witnesses but that “[t]he witnesses
were not able to provide relevant useful mitigation informa-
tion.” On that basis, the district court found that counsel’s
investigative efforts, at least with respect to the interviews,
were adequate. Once again, the district court’s factual finding
and legal conclusion are clearly erroneous.
Admittedly, counsel did meet with some witnesses during
the trial phase, including those members of Correll’s family
who would cooperate. But counsel testified that he met only
once with Correll’s father, sister, and brother, “around the
kitchen table at the same time,” and probably spent only “[a]
couple hours” with them. Furthermore, Correll’s counsel
admitted that he interviewed witnesses only during the guilt
phase, not during the sentencing phase. Although the attorney
testified that he was looking for mitigation information as
well as exculpatory information during those pre-trial inter-
views, he failed to ask any direct questions or to conduct any
direct investigation related to the mitigating factors that are
now at issue. When counsel was asked at the evidentiary hear-
ing whether he had questioned the interviewees about Cor-
rell’s drug abuse, head injury, psychiatric history, or family
dysfunction, counsel testified that he asked no such specific
questions but, rather, asked the interviewees simply to “tell
[him] anything [they could] tell [him] that would help.” As a
result, counsel’s interviews were substantively worthless.
CORRELL v. RYAN 5445
Thus, his failure to gather mitigating information did not
result from its unavailability; it resulted from counsel’s com-
plete failure to ask any relevant questions. The district court’s
conclusion to the contrary was clearly erroneous.
Additionally, trial counsel did not obtain records from Cor-
rell’s schools or from psychiatric institutions, even though
counsel admitted that those records may have contained miti-
gating evidence. Counsel also failed to obtain police reports
on prior convictions and records regarding the time that Cor-
rell was in the custody of the California Youth Authority.
Counsel did not obtain Correll’s medical records, and he
made no inquiry into whether an X-ray or other diagnostic test
was performed to determine whether Correll suffered any
brain injury following an incident in which a wall fell on Cor-
rell’s head.
During the evidentiary hearing, counsel could not recall
what efforts he made to gather Correll’s psychiatric records,
though he did remember that he failed to obtain records from
Correll’s stays at various mental health centers.1 As the dis-
trict court correctly concluded, counsel’s failure to obtain
these relevant records constituted deficient performance.
In sum, defense counsel’s investigation into classic mitiga-
tors was extremely limited. Two of the district court’s conclu-
sions were clearly erroneous: that counsel was unaware of
some mitigators and that counsel conducted sufficient inter-
views to investigate the mitigators of which he was aware.
The district court correctly concluded that counsel failed to
obtain relevant records that were available at the time. Taken
together, this evidence demonstrates that counsel’s investiga-
tion into classic mitigators was unreasonably limited — that
counsel’s penalty phase representation was constitutionally
inadequate.
1
As the district court found, some of these records were destroyed
between the time of the trial and the time of the habeas investigation.
5446 CORRELL v. RYAN
Of course, Correll’s attorney was not wholly without a mit-
igation strategy. But the limited strategy that he developed
was unreasonably constricted, and even with respect to that
anemic strategy, counsel’s investigative efforts were unrea-
sonably weak.
Defense counsel testified that the principal mitigation evi-
dence he sought was information that would show Correll as
a “good person” and one who had “done good deeds.” Such
a limitation on the scope of the mitigation investigation was,
in and of itself, unreasonable given the extreme unlikelihood
that any testimony about Correll’s character would have been
sufficient to “humanize[ ] him during the time frame of the
murder conspiracy at issue.” Allen v. Woodford, 366 F.3d 823,
851 (9th Cir. 2004). Rather, as Correll’s attorney knew at the
time, the most likely type of evidence available was the type
that would portray Correll as a “person whose moral sense
was warped by abuse, drugs, [or] mental incapacity.” Id.
Even assuming, however, that reliance on a character
defense was a reasonable strategy in this case, counsel’s
investigation into character evidence was inadequate. For
example, Correll’s attorney was aware that a chaplain with the
California Youth Authority, Reverend Curry, might have been
willing to testify on Correll’s behalf, but the attorney never
even attempted to contact Reverend Curry.2
[6] Based on the foregoing, we conclude that Correll’s
counsel provided constitutionally deficient representation dur-
2
The district court concluded that this failure was not prejudicial
because Reverend Curry’s employer did not permit him to testify on Cor-
rell’s behalf. The district court, however, completely misunderstood Rev-
erend Curry’s testimony. The California Youth Authority prohibited
Reverend Curry from initiating contact with Correll’s attorney, but it did
not prohibit him from appearing on Correll’s behalf at the hearing. Rever-
end Curry testified repeatedly that he would have been happy to speak on
Correll’s behalf if Correll’s attorney had initiated contact (which, again,
he never did).
CORRELL v. RYAN 5447
ing his investigation into possible mitigation defenses. The
district court was correct in its limited holding that defense
counsel failed to seek and obtain mental health and other
medical records, and we further conclude that the rest of
defense counsel’s investigative efforts, including his contact
and consultation with Correll, his interviews with relevant
witnesses, and his development of a character-based mitiga-
tion strategy, were also constitutionally inadequate. Defense
counsel’s failure to investigate falls far short of any objective
standard against which we might measure reasonable attorney
performance under the Sixth Amendment.
B
Compounding his errors during the investigative phase of
sentencing, Correll’s attorney then presented to the court vir-
tually none of the little mitigating evidence that he had devel-
oped. “There is no more important hearing in law or equity
than the penalty phase of a capital trial.” Gerlaugh v. Stewart,
129 F.3d 1027, 1050 (9th Cir. 1997) (Reinhardt, J., concur-
ring and dissenting). At the penalty phase, a capital defendant
has a “constitutionally protected right [ ] to provide the jury
with . . . mitigating evidence.” Williams, 529 U.S. at 393.
“Failure to present mitigating evidence at the penalty phase of
a capital case constitutes ineffective assistance of counsel.”
Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998).
[7] As anemic as the defense counsel’s investigation was,
his presentation of mitigating evidence at the penalty phase
was worse. In fact, defense counsel put on no affirmative pen-
alty phase defense whatsoever. He did not call a single wit-
ness to testify. He did not introduce any evidence. The state
trial court record states: “Defendant waives presentation of
mitigating evidence.”
Indeed, the only proactive effort that Correll’s attorney
made at sentencing was to write a short response to the pre-
sentence report. In that written submission, he included a list
5448 CORRELL v. RYAN
of mitigating arguments, but he did not support those argu-
ments with any evidence, affidavits, or testimony. The
entirety of the written submission in mitigation reads as fol-
lows:
A. Defendant was under the influence of alcohol
and drugs at the time the offenses were commit-
ted.
Guy Snelling stated in an interview with police
officers on April 12, 1984, that there was alco-
hol on the breath of Defendant at the time the
offenses were committed. It is obvious from
this and the conduct of the perpetrators, that
they were under the influence of alcohol or
drugs or both at the time the offenses were com-
mitted.
B. Defendant was only a follower in the commis-
sion of the crimes.
Guy Snelling stated in an interview with
defense counsel on August 14, 1984 that it was
clear that John Nabors was the leader of the two
perpetrators and was making the decisions. This
is further corroborated by the fact that it was
John Nabors who knew Guy Snelling would
have illicit drugs and money and therefore, John
Nabors must have done the planning of the rob-
bery.
C. Prior to the robbery, there was no reason to
believe that anyone would be present other than
Guy Snelling, and therefore, there was no prior
plan to kill Debra Rosen, Robin Cady or Shawn
Di’Brito.
CORRELL v. RYAN 5449
D. Defendant has cooperated with the Adult Proba-
tion Office in the preparation of his presentence
report.
E. Defendant’s age.
Predictably, the Arizona Supreme Court and the federal dis-
trict court concluded that this mitigation argument was not
sufficiently significant to call for leniency.
[8] The anemia of counsel’s mitigation presentation was a
critical error, certainly rising to the level of constitutionally
deficient representation. “The failure to present mitigating
evidence during the penalty phase of a capital case, where
there are no tactical considerations involved, constitutes defi-
cient performance, since competent counsel would have made
an effective case for mitigation.” Smith v. Stewart, 189 F.3d
1004, 1008-09 (9th Cir. 1999).
[9] The error’s full magnitude, however, does not become
apparent until we consider the effect it had under Arizona law
in particular. At the time of the penalty phase proceedings,
Arizona law mandated the death penalty if the trial judge
found any one of the enumerated aggravating factors and
determined that there were no mitigating factors that were
sufficiently substantial to call for leniency. Ariz. Rev. Stat.
§ 13-703 (1984). One of the enumerated aggravating circum-
stances is a previous violent felony, for which Correll unques-
tionably qualified. State v. Correll, 715 P.2d at 731. In
Correll’s case, therefore, the failure to present any evidence
in mitigation “all but assured the imposition of a death sen-
tence under Arizona law.” Summerlin, 427 F.3d at 640; see
also Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (not-
ing that in Arizona, once an aggravating circumstance like a
prior aggravated felony was found, death was inevitable with-
out mitigating evidence, and thus holding that the failure to
pursue psychiatric evidence constituted prejudicially deficient
performance).
5450 CORRELL v. RYAN
In fact, the State argued five aggravating factors, and Cor-
rell’s defense counsel disputed only a few of them. He dis-
puted that the crimes were cruel, heinous, and depraved, and
he argued that convictions for more than one homicide could
not be used as an aggravating factor because the statute autho-
rizing this factor was not in effect on the offense date. At the
evidentiary hearing in the district court, he conceded that he
thought “it was a veritable certainty” that the court would find
“at least two, and probably all five of [the] aggravating fac-
tors.” The court found four.
Defense counsel’s sentencing memo does not even attempt
to rebut three of the five aggravating factors urged by the
State. In his oral presentation at sentencing, counsel men-
tioned the aggravating factors, but in form only, without any
substantial legal position or evidentiary support. The entirety
of his oral argument at the penalty phase consists of approxi-
mately 7 pages of transcript.
Given counsel’s virtual concession of most of the aggravat-
ing factors argued by the State and his waiver of the presenta-
tion of mitigation evidence, the outcome was obvious:
imposition of the death penalty. The Arizona Supreme Court,
in re-weighing the aggravating and mitigating factors, found
no mitigating factors “sufficiently substantial to call for
leniency.” State v. Correll, 715 P.2d at 735. The Court high-
lighted the lack of evidence presented in mitigation and noted
that the “defendant has offered no evidence or expert testi-
mony on which we could base a finding that he was unable
to appreciate the wrongfulness of his conduct.” Id. The Court
was particularly dismissive of his attempt to count coopera-
tion in the pre-sentence investigation as a mitigating factor,
noting “[i]t is in defendant’s interest to cooperate at sentenc-
ing; defendant should not be rewarded for self-serving acts.”
Id.
[10] In sum, Correll’s counsel was constitutionally defi-
cient in failing to investigate and present mitigating evidence.
CORRELL v. RYAN 5451
Particularly in light of Arizona’s death penalty regime, the
failure to develop a robust mitigation defense — and the fail-
ure to defend against the State’s aggravation case — was
unreasonable, falling below any objective standard of ade-
quate representation.
C
The State contends that the failure to put on penalty phase
evidence was a strategic choice, protected under Strickland.
To be sure, under Strickland, we must defer to trial counsel’s
strategic decisions. “A reasonable tactical choice based on an
adequate inquiry is immune from attack under Strickland.”
Gerlaugh, 129 F.3d at 1033. However, to be considered a
constitutionally adequate strategic choice, the decision must
have been made after counsel has conducted “reasonable
investigations or [made] a reasonable decision that makes par-
ticular investigations unnecessary.” Strickland, 466 U.S. at
691. In addition, “[e]ven if [a] decision could be considered
one of strategy, that does not render it immune from attack —
it must be a reasonable strategy.” Jones v. Wood, 114 F.3d
1002, 1010 (9th Cir. 1997) (emphasis in original). In this case,
because of defense counsel’s failure to investigate potential
mitigation evidence, he had too little information to make any
informed strategic decision. Furthermore, when considered
objectively, his purported “strategy” cannot be considered
reasonable.
1
[11] A decision by counsel not to present mitigating evi-
dence cannot be excused as a strategic decision unless it is
supported by reasonable investigations. See Williams, 529
U.S. at 394 (recognizing a constitutional right to present miti-
gating evidence to the jury); Silva, 279 F.3d at 843 (recogniz-
ing “the breadth of a criminal defendant’s constitutional
protection against his attorney’s failure to investigate mitigat-
ing evidence when defending his client against a capital sen-
5452 CORRELL v. RYAN
tence”). In Wiggins, the Supreme Court held that the
traditional deference owed to the strategic judgments of coun-
sel is not justified where there was not an adequate investiga-
tion “supporting those judgments.” 539 U.S. at 521.
Here, as we have discussed, defense counsel failed to make
a reasonable investigation into potential mitigating evidence.
Therefore, his decision not to put on a mitigation case cannot
be considered to be the product of a strategic choice. An unin-
formed strategy is not a reasoned strategy. It is, in fact, no
strategy at all. Cf. Strickland, 466 U.S. at 690-91 (holding that
“strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable profes-
sional judgments support the limitations on investigation”).
In Silva, for example, we held that in the absence of dili-
gent investigation, counsel cannot make a reasoned tactical
decision regarding whether or not to present mitigating evi-
dence. 279 F.3d 846-47. Indeed, we determined that even if
a client forecloses certain types of mitigation evidence, “it
arguably becomes even more incumbent upon trial counsel to
seek out and find alternative sources of [mitigating evi-
dence].” Id.
[12] Here, an abundance of classic mitigation evidence
existed. However, counsel failed to investigate these potential
avenues and was therefore unable to make an informed deci-
sion as to whether to present the evidence and arguments that
were available. His choice not to present mitigation evidence,
therefore, cannot be justified as strategic.
2
To the extent that there was any strategy involved in the
penalty phase presentation, it cannot be considered a reason-
able strategy by any objective measure.
Defense counsel chose to rely on the pre-sentence report
prepared by a state probation officer, despite his own charac-
CORRELL v. RYAN 5453
terization of that report as “one-sided.” During his short sen-
tencing argument, defense counsel criticized the author of the
pre-sentence report for failing to interview several people who
could have provided mitigating statements. The irony, of
course, is that defense counsel could have introduced during
the penalty phase the very mitigating evidence that he felt the
probation officer should have gathered.
The sentencing report described the crimes as “particularly
heinous” and speculated that “the murder scene in the desert
must have been particularly gruesome.” The probation officer
concluded that, given the circumstances of the crime, “[t]hey
obviously planned the murders ahead of time and then cal-
culatingly and unemotionally carried out their plans.” The
pre-sentence report described Correll’s history as “a text book
of psychopathology,” and “riddled with instances of violent
behavior and armed aggression.” The probation officer deter-
mined that Correll “was not capable of functioning in soci-
ety.” The report concluded with the observation that “[h]e is
a threat, a menace, and in my opinion, the community at large
should never again be subjected to the risk of recurrence of
this type of behavior.” These statements are hardly the words
of mitigation, and no competent capital defense counsel
would have relied upon such a report as providing mitigation
evidence, much less as the sole source of mitigation evidence.
[13] Defense counsel testified at the evidentiary hearing
that he “was basically hoping [the judge] would think it was
a one-time incident and want to give Mr. Correll a break and
find a mitigating factor.” However, the pre-sentence report
contained explicit references to an extensive criminal history
that belied this theory. Indeed, the page and a half of criminal
convictions reported is longer than defense counsel’s entire
mitigation presentation in his sentencing memorandum. It was
not a reasonable strategy to rely on the pre-sentence report to
prove that the crime was a “one-time incident” when the
entire report drew the opposite conclusion.
5454 CORRELL v. RYAN
When asked at the evidentiary hearing, “what was your
sentencing strategy,” trial counsel responded that it was “hop-
ing that [the judge] liked Mr. Correll” and hoping that the
judge found that the crime “was a drug ripoff that went bad[,]
that Michael was under the influence,” and that “he wasn’t the
leader in the crimes.” When pressed, however, defense coun-
sel was forced to admit that portraying the crime as a one-
time drug ripoff gone bad was not something that would con-
stitute a mitigating factor.
Throughout the evidentiary hearing, defense counsel
revealed a fundamental misconception of mitigation evidence.
He referred to the sentencing hearing as “a dog and pony
show” and “so much smoke.” He said he felt that the judge
would not have been receptive to mitigation evidence that was
“touchy-feelly [sic] fuzzy-headed kind of stuff.” When asked
about the classic mitigation evidence that was available, such
as potential brain injury,3 a history of drug addiction, and
abuse suffered as a child, counsel testified that he didn’t think
of the evidence as favorable evidence. However, it is pre-
cisely this type of evidence that the Supreme Court has
deemed “powerful.” Wiggins, 539 U.S. at 534.
It appears clear from examination of his testimony that
defense counsel was afraid of the sentencing judge. In fact, he
forewent psychological testing because he feared that the
judge would learn of it, and he testified that he might have
presented evidence of Correll’s history of drug addiction had
he been before a different judge.4 He believed that the judge
3
As the district court noted, the Arizona Courts place significant weight
on brain injuries as mitigating evidence. Similarly, “[w]e have repeatedly
held that counsel may render ineffective assistance if he is on notice that
his client may be mentally impaired, yet fails to investigate his client’s
mental condition as a mitigating factor in a penalty phase hearing.” Caro
v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (internal quotations
omitted).
4
The dissent characterizes this decision not to present psychological evi-
dence as strategic because it would “make it easier for the judge to sen-
CORRELL v. RYAN 5455
would use mitigating evidence as an aggravating factor, in
violation of the mandatory language of Ariz. Rev. Stat. § 13-
703(E). When asked in a pre-hearing interview about his deci-
sion not to introduce evidence of Correll’s psychological dis-
orders, counsel responded:
[A]s a practical matter, and certainly with Judge
Howe [the trial judge], once he found out that this
man was a sociopath or psychopath, whichever term
you want to use, he didn’t have a chance in a hun-
dred of keeping from getting the death penalty.
‘Cause even though he can claim that this is a miti-
gating factor the reality is that when you tell some-
one in society and certainly Judge Howe, the man is
a sociopath, that dictates that he’s the kind of person
who should get the death penalty, that’s what the
thinking’s going to be.
This entire line of reasoning, however, presumes that the
judge would not follow the law5—speculation that is never
appropriate and that is not supported by the record here.
tence Correll to death because it would cause him to view Correll as
permanently psychologically damaged.” However, counsel’s failure to
investigate Correll’s psychological history for fear of the trial judge cannot
be termed “strategic.” Counsel worried that the trial judge would presume
that any psychological evaluation portrayed Correll in a negative light if
he granted a contact visit order for such an evaluation and the results were
never submitted to the court. This fear presumes that the trial judge would
act inappropriately by considering evidence outside of the record in mak-
ing his sentencing decision, and it fails to recognize the importance of cre-
ating a record for review, even if the trial judge likely would be
unsympathetic. Psychological injury is the type of evidence the Supreme
Court has viewed as classic mitigating evidence. Wiggins, 539 U.S. at 534.
5
See State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315, 324 (1981)
(holding that personality disorders, while they do not qualify as statutory
mitigators, must be considered as potential mitigators, particularly where
there is evidence that the personality disorder influenced the defendant’s
behavior).
5456 CORRELL v. RYAN
Fear of a particular sentencing judge’s reaction also ignores
the fact that, in capital cases, the Arizona Supreme Court con-
ducts an independent review of the aggravating and mitigating
factors, re-weighing them afresh. See State v. Johnson, 710
P.2d 1050, 1055 (Ariz. 1985) (“Whenever the trial court
imposes the death sentence we must conduct an independent
review of the facts that established the aggravating and miti-
gating circumstances in order to determine for ourselves if the
latter outweigh the former and justify the sentence.”); see also
State v. Richmond, 560 P.2d 41, 51 (Ariz. 1976) (“[T]he grav-
ity of the death penalty requires that we painstakingly exam-
ine the record to determine whether it has been erroneously
imposed.”). At the time of Correll’s appeal, the Arizona
Supreme Court was also required to conduct an independent
proportionality review. State v. Correll, 715 P.2d at 737-38.
Therefore, even if defense counsel’s fears about the judge
were legitimate, there is no strategic excuse for failing to put
on evidence in support of statutory mitigating factors that the
Arizona Supreme Court could have considered in its indepen-
dent re-weighing of aggravating and mitigating factors.
[14] In short, to the extent that defense counsel had a strat-
egy at all, it cannot be considered an objectively reasonable
strategy.
3
Counsel’s ineffective assistance at sentencing cannot be
excused as strategic. He failed to conduct an investigation suf-
ficient to make an informed judgment. To the extent that his
decisions reflected any tactical considerations, his approach of
not putting on a mitigation case cannot be considered an
objectively reasonable strategy, even when viewed under the
highly deferential Strickland standard.
CORRELL v. RYAN 5457
Volume 2 of 2
5458 CORRELL v. RYAN
III
[15] It is, of course, not enough for Correll to establish that
his counsel’s performance at sentencing fell below an objec-
tive standard of reasonableness. He must also “show that there
is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A reasonable probabil-
ity is a probability sufficient to “undermine confidence in the
outcome.” Id.
In considering this question, we have recognized that defi-
cient performance and prejudice questions may be closely
related. See Summerlin, 427 F.3d at 643 (“[W]e conclude that
the failure of trial counsel to investigate, develop, and present
mitigating evidence at the penalty phase hearing has under-
mined our confidence in the sentence of death imposed by the
trial judge.”); Smith, 189 F.3d at 1011 (“Because of [coun-
sel’s] failure to provide competent representation, our confi-
dence in the outcome of Smith’s sentencing has been
undermined.”). In establishing prejudice under Strickland, it
is not necessary for the habeas petitioner to demonstrate that
the newly presented mitigation evidence would necessarily
overcome the aggravating circumstances. Williams, 529 U.S.
at 398. Accordingly, even where the facts discovered on
habeas review do not rise to the level of statutory mitigation,
we have held that a reasonable probability existed that this
information could have affected the sentence. Smith, 140 F.3d
at 1270; see also Rompilla, 125 S. Ct. at 2469 (noting that “al-
though we suppose that [the sentencer] could have heard it all
and still have decided on the death penalty, that is not the
test”).
Here, there was a substantial amount of classic mitigating
evidence that could have been presented, but was not.
Correll had endured an abusive childhood. His mother was
a Jehovah’s Witness, whose commitment to her church came
CORRELL v. RYAN 5459
before her commitment to her family. She spent most of her
time with the church, often neglecting her six children’s basic
needs. The children were required to attend adult bible study
class with her three nights a week, for three hours per night.
If they misbehaved or indicated that they were confused or
did not understand the religious doctrine, they were punished.
Correll’s father was largely absent but sometimes aided his
wife in physically punishing their children. There was evi-
dence of incest in the family.
When Correl was seven, a brick wall collapsed on his head.
Although he was unconscious for some time after the acci-
dent, his parents did not seek medical treatment until several
days later when he was still not back to normal. Several
experts testified that this type of accident and the symptoms
Correll exhibited then and now indicate a high likelihood of
brain impairment.6
Against this backdrop, Correll began experimenting with
alcohol and drugs around age ten. He was using marijuana,
LSD, and amphetamines regularly by age twelve, behavior
that can be characterized as self-medication for the everyday
6
The district court dismissed evidence of Correll’s brain injury, con-
cluding that any organic brain injury played no role in Correll’s crimes.
The district court’s conclusion was based on the judge’s own evaluation
of two conflicting experts. But in the procedural context of this case, the
district court’s role was not to evaluate the evidence in order to reach a
conclusive opinion as to Correll’s brain injury (or lack thereof). The dis-
trict court should have decided only whether there existed a “reasonable
probability” that “an objective fact-finder” in a state sentencing hearing
would have concluded, based on the evidence presented, that Correll had
a brain injury that impaired his judgment at the time of the crimes. Sum-
merlin, 427 F.3d at 643. Because the competing neuropsychologists who
testified at the evidentiary hearing agreed that the evidence of brain injury
was at least strong enough to deserve presentation at a sentencing hearing,
we conclude that Correll’s evidence had at least a “reasonable probability”
of persuading an objective fact-finder. The district court clearly erred
when it concluded that Correll presented insufficient evidence of organic
brain damage.
5460 CORRELL v. RYAN
trauma of his life and for the mental health illnesses that were
later diagnosed when he became a ward of the state.
It is notable that each of the six Correll children reported
that they had or have had substance abuse problems beginning
in childhood or adolescence. Further, at least five of the six
children spent time in juvenile correctional facilities, and all
four of the boys in the family have spent time in adult correc-
tional facilities.
In response to Correll’s obvious substance abuse problems,
his parents intervened with beatings and threats of kicking
him out of the house. Further, the state failed to recommend
drug or alcohol treatment despite Correll’s frequent contact
with the juvenile authorities.
After Correll was shot in the arm at age 14, the hospital
asked his parents to let him come home. They allowed him to
recuperate at home for three or four days before asking the
state to sever their parental rights. At that time, they cut off
all communication with their son and considered him dead, as
required by their church’s teachings.
Correll became a ward of the state at age 14 and spent his
teenage years in various state institutions described as “gladi-
ator schools,” which were characterized as cruel and inhu-
mane, even by those who worked there. He was placed in
programs for low-performing students, which were referenced
as “dummy shacks.” Within months of becoming a ward of
the state, 14-year-old Correll became addicted to heroin.
Correll was committed to psychiatric institutions at least
twice during his teen years and was described at age 16 as
“severely psychologically impaired.” He was treated with a
tranquilizer/anti-psychotic drug while institutionalized, and he
attempted suicide on two occasions. However, there is no evi-
dence that Correll continued to receive treatment after these
stays.
CORRELL v. RYAN 5461
Methamphetamine eventually became Correll’s drug of
choice, which he used whenever he could. Correll offered
expert testimony during the evidentiary hearing of the effect
of high methamphetamine use, including brain damage,
blackouts, and methamphetamine-induced psychosis, all of
which may be compounded by sleep deprivation.
At the time of the murders, Correll was injecting a quarter
gram to a gram of methamphetamine in one shot, and he was
injecting three to four shots a day. According to expert testi-
mony at the evidentiary hearing, Correll was in the top 1% of
methamphetamine users in terms of quantity. During the
period of time in which the crimes were committed, Correll’s
typical pattern was to go seven to ten days without sleep, fol-
lowed by one to two days of continuous sleep. He was
observed injecting methamphetamine shortly before the
crimes were committed. Expert testimony indicated that he
was likely having impulse control problems, judgment impair-
ment, and aggressiveness at the time of the crime and that he
may have been experiencing drug-induced paranoia.7
In sum, there was a substantial amount of mitigating evi-
dence available,8 which, taken together, is sufficient to raise
7
The district court discounted much of this evidence on the ground that
it was based on Correll’s self-reported drug habits, which the court con-
cluded were not credible. The conclusion that Correll’s reports were not
credible, however, is clearly erroneous in light of the substantial corrobo-
rating evidence introduced at the evidentiary hearing. Two witnesses,
Dawn Day and Reverend Curry, testified as to their own observations of
Correll’s drug habits, and their observations fully comported with Cor-
rell’s self reports. Medical and prison records indicated that Correll had
issued identical self reports at times when he had no incentive to exagger-
ate the extent of his drug abuse. Furthermore, Correll’s reports of his drug
use have never varied, over the course of several decades. In short, there
was no reason for the district court to doubt the veracity of Correll’s self
reports. On the contrary, there was significant evidence tending to corrob-
orate Correll’s account, including several records showing consistency
over time of Correll’s story.
8
The government argues that much of this evidence was already before
the sentencing court in the pre-sentence report. While the bare facts of
5462 CORRELL v. RYAN
a presumption of prejudice under the Supreme Court’s stan-
dard in Wiggins, 539 U.S. at 534-38.
But we need not rest on presumption. All of the available
evidence constituted classic mitigation evidence that certainly
had the potential to persuade “an objective fact-finder” that
Correll was, at the time of the crimes, incapable of appreciat-
ing the wrongfulness of his conduct. Summerlin, 427 F.3d at
643. To use the Supreme Court’s words, “[h]ad [a] jury been
able to place petitioner’s excruciating life history on the miti-
gating side of the scale, there is a reasonable probability that
at least one juror would have struck a different balance.” Wig-
gins, 539 U.S. at 537.
[16] Indeed, in this case, the evidence of Correll’s “excruci-
ating” history could have provided an alternative — and much
more sympathetic — context for the horrific observations and
conclusions that were before the judge in the presentence
report. While the presentence report characterized Correll as
a “threat” and a “menace,” the evidence of Correll’s family
history, personality disorder, and brain injury could have col-
ored Correll as an organically diseased and injured person
who, through no fault of his own, lacks the ability to compre-
hend the immorality of his conduct. Correll’s full history also
had the potential to convince an objective fact-finder that his
criminal behavior has, throughout his life, been his means of
gaining the negative and destructive attention that he was
taught to seek from a very young age. As the Supreme Court
has consistently instructed, these kinds of claims constitute
classic mitigation, which a fact-finder must consider when
deciding between life imprisonment and death.
Correll’s troubled past were indeed presented to the court, without further
investigation and presentation of contextual evidence and argument, such
facts served only to demonize Correll rather than to mitigate the appropri-
ateness of imposing the death penalty for his actions.
CORRELL v. RYAN 5463
Perhaps more compellingly, the evidence of Correll’s
methamphetamine use on the night of the crimes, had it been
fully presented, could have risen to the level of a statutory
mitigator. Under Arizona law, gross intoxication at the time
of the crime constitutes a statutory mitigator if that intoxica-
tion impaired the defendant’s “capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law.” A.R.S. § 13-703(G)(1). There was
undisputed evidence adduced at the evidentiary hearing that
Correll was addicted to methamphetamine, that Correll used
some methamphetamine on the day of the crime, that Correll
habitually used methamphetamine in astonishingly and unusu-
ally high dosages, and that drug addicts generally are incapa-
ble of using their drug of choice in any dosage that is lower
than their usual dosage. Thus, the evidence strongly indicated
that Correll used an extremely high dosage of methamphet-
amine on the day of the crime.
The district court, however, concluded that there was no
evidence of gross intoxication at the time of the crimes
because certain witnesses indicated that Correll was oriented
during the commission of the crimes. This conclusion rests on
a critical misunderstanding of the evidence.
At the evidentiary hearing, expert testimony made it clear
that gross methamphetamine intoxication, unlike gross alco-
hol intoxication, is not necessarily apparent to outside observ-
ers. The experts described a state known as
“methamphetamine blackout,” during which the user would
be capable of performing complex tasks but would be incapa-
ble of understanding or remembering his behavior. One of the
experts, a recovered methamphetamine addict, specifically
confirmed the possibility that “those observing a person in a
methamphetamine blackout [wouldn’t] know that the person
is in a methamphetamine blackout.” This evidence severely
undermines the propriety of the district court’s reliance on
witness observation in concluding that Correll was not intoxi-
5464 CORRELL v. RYAN
cated on the night of the crimes. Those witnesses might not
have known whether Correll was intoxicated or not.
Furthermore, the experts also testified that gross metham-
phetamine intoxication impairs a person’s inhibition and judg-
ment, rendering the intoxicated person incapable of measuring
and understanding the consequences of his actions. A person
in a methamphetamine blackout, the experts implied, would
not be capable of understanding the “wrongfulness of his con-
duct.”
[17] Thus, the district court was clearly wrong to conclude
that there was no available evidence that Correll was grossly
intoxicated — to the point of being unable “to appreciate the
wrongfulness of his conduct” — on the night of the crime.
Expert testimony at the evidentiary hearing clearly established
that methamphetamine use, in the quantities that Correll
undisputably used the drug on a regular basis, would signifi-
cantly impair judgment and consciousness without causing
perceptible symptoms of intoxication. We conclude that this
evidence — had it been developed and presented — could
reasonably be expected to persuade an objective fact-finder
that Correll was incapable of understanding the wrongfulness
of his conduct on the night of the murders.
The dissent argues that Correll was not prejudiced by the
failure to investigate and present mitigation evidence and
argument because the presentation of such evidence and argu-
ment “would have enabled the prosecution to present very
damaging evidence in rebuttal.” However, a significant por-
tion of that damaging rebuttal evidence was already available
through the pre-sentence report. For example, the “numerous
escapes from mental health treatment facilities” and the “hos-
tage taking and armed aggression against mental health work-
ers” were both clearly delineated in the pre-sentence report.
Furthermore, all of the so-called “damaging rebuttal evi-
dence” could, in the hands of a competent attorney, have been
CORRELL v. RYAN 5465
used to support Correll’s claims of dysfunctional upbringing
and continuing mental disorder. For example, Correll’s state-
ment that he felt “a strong sense of power and excitement”
when he committed armed robbery could show either that
Correll is dangerous — as the presentence report concluded
— or that Correll has a diseased perception of social interac-
tion, which prevents him from conforming his conduct to the
law. Indeed, all of the facts on which the dissent relies could
be either dehumanizing or mitigating, depending on the con-
text and history given for each cited fact.9
In view of the record developed at the evidentiary hearing,
we conclude that there is a reasonable probability that the out-
come of Correll’s sentencing would have been different had
he received competent representation. This was an unusual
case in the capital context because it involved a defendant
who had not killed any of the victims, although he certainly
attempted to kill one person who fortunately survived. The
actual murders were committed by another person. The failure
to present a mitigation case was particularly indefensible
under Arizona law that existed at the time, which required the
imposition of the death penalty absent a case in mitigation.
Given all of these factors, there is a significant possibility that
the introduction of some mitigating evidence could have
spared Correll’s life.
IV
[18] Correll was constitutionally entitled to the presentation
of a mitigation defense. He did not receive one, although sub-
stantial mitigation evidence existed. Most importantly,
because Arizona law required the imposition of a death sen-
tence if aggravating factors were proven and no mitigating
9
That some of the defense witnesses at sentencing might have presented
inculpatory testimony is not particularly significant, given that counsel had
abandoned at sentencing any claims of actual innocence or misidentifica-
tion.
5466 CORRELL v. RYAN
factors presented, the failure to present any mitigation defense
constituted ineffective assistance of counsel under the stan-
dards set forth in Strickland. The fear of a trial judge cannot
be considered strategic justification for forgoing the presenta-
tion of a mitigation defense, particularly given that (1) Ari-
zona law required imposition of the death penalty when no
mitigating factors were found, and (2) the Arizona Supreme
Court was required to re-weigh the aggravating and mitigating
factors. Furthermore, the evidence adduced at the evidentiary
hearing revealed several classic mitigators that a reasonable
attorney could have used to contextualize Correll’s violent
past and to mitigate Correll’s current culpability.
[19] We conclude the Correll is entitled to relief in the form
of a new penalty phase trial. We reverse the judgment of the
district court and remand with instructions to issue a writ of
habeas corpus.
REVERSED.
O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s conclusion that Cor-
rell has met the “highly demanding and heavy burden of
establishing actual prejudice” in the pursuit of his claim of
ineffective assistance of counsel during the penalty phase of
the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.
2005) (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000))
(internal quotation marks omitted). The majority ignores the
mountain of precedent which requires us, in assessing preju-
dice, to consider not only the likely benefits of the mitigating
evidence Correll’s counsel failed to present, but also its likely
drawbacks. In addition, the majority substitutes its indepen-
dent analysis of the record for that of the district court, relying
on its own view of the evidence rather than considering, as we
must, the effect the evidence would have had on an Arizona
CORRELL v. RYAN 5467
sentencing judge 23 years ago. Because I do not believe that
Correll has met his burden “affirmatively [to] prove preju-
dice,” I would affirm the judgment of the district court deny-
ing the petition for writ of habeas corpus. See Strickland v.
Washington, 466 U.S. 668, 693 (1984).
I
The facts of Correll’s brutal crimes are disturbing, but must
be recounted to illustrate the unlikelihood that Correll’s new
evidence would have convinced the sentencing judge not to
impose the death penalty.1
A
On the night of April 11, 1984, as Guy Snelling and his
girlfriend Debra Rosen were getting ready to go to sleep, a
knock came at the door. Snelling answered the door and
found John Nabors, his co-worker, and Correll, whom he had
not met.
After Snelling let the two men into his home, Nabors pulled
a gun and demanded money. Correll secured Snelling and
Rosen with duct tape. When Robin Cady and Shawn D’Britro,
two friends of Snelling, unwittingly arrived at the house, Cor-
rell secured them with duct tape as well. Then Correll and
Nabors escorted Snelling throughout his home to search for
money and valuables.
After raiding the house for approximately 45 minutes,
Nabors and Correll exited with Cady, D’Brito, and Snelling,
whom they forced into Cady’s car. Nabors briefly went back
inside to secure Rosen. While holding the gun on the three
1
Although it is normally not necessary to restate the facts and proce-
dural history in a dissenting opinion, the reader will understand that this
exercise is necessary due to the sharp divergence between the majority’s
presentation of the facts and the district court’s factual findings.
5468 CORRELL v. RYAN
victims, Correll drove to a deserted area where Nabors’s truck
was parked. Nabors took his truck and followed Correll, who
was still driving Cady’s car with the three victims, to a desert
area north of Phoenix. There, they forced the three victims out
of the car and made them lie face down on the ground. Correll
shot Snelling in the back of the head. Nabors then shot and
killed D’Britro, and then tried to shoot Cady. The gun mis-
fired a couple of times and Correll said “hurry up, hurry up,
. . . okay, it’s cool, no cars coming, get a shell chambered.”
After reloading the gun, Nabors was finally successful in
shooting and killing Cady. After Correll and Nabors left,
Snelling, who miraculously did not die, reported the crime.
Rosen, whom Nabors and Correll had left in the house when
they drove the other three victims into the desert, was later
found in the house, killed by strangulation.
B
At trial, Correll’s sole defense was misidentification—
namely, that Snelling, who was under the influence of drugs
and alcohol when the crimes occurred, had wrongly identified
Correll as one of his assailants, and that it was reasonably
likely that Correll’s brother Terry, who resembled Correll,
had committed the crimes instead. Unpersuaded by this
defense, a jury convicted Correll of three counts of first
degree murder, one count of attempted first degree murder,
one count of armed robbery, one count of first degree bur-
glary, and four counts of kidnaping.
At sentencing, the government urged the court to impose
the death penalty. The government asserted that five statutory
aggravating factors were present: (1) a previous violent felony
conviction;2 (2) grave risk of death to others in addition to the
persons murdered;3 (3) commission of the murders in antici-
2
Ariz. Rev. Stat. § 13-703(F)(2).
3
Id. § 13-703(F)(3).
CORRELL v. RYAN 5469
pation of pecuniary gain;4 (4) commission of the murders in
an especially heinous, cruel or depraved manner;5 and (5) con-
victions for multiple murders during the offense.6
In response, Correll’s attorney argued that the prosecution
had failed to prove, as required by Enmund v. Florida, 458
U.S. 782 (1982), that Correll intended to kill Rosen, Cady,
and D’Brito. Although the sentencing court did not accept this
argument, Correll’s attorney preserved it for appeal and the
Arizona Supreme Court later modified one of Correll’s death
sentences to life imprisonment on this ground. See State v.
Correll, 715 P.2d 721, 730-31 (Ariz. 1986). Correll’s attorney
also countered each of the government’s proffered aggravat-
ing factors.7 He argued—and the sentencing court agreed—
that the “grave risk of death to others” aggravating factor did
not apply. He also argued that the multiple murder aggravat-
ing factor could not be considered. Although the sentencing
court did not accept this argument, Correll’s attorney pre-
served it for appeal and the Arizona Supreme Court later
invalidated this aggravating factor. See id. at 734-35. Correll’s
attorney further argued, unsuccessfully, that the evidence did
not support the remaining aggravating factors.
4
Id. § 13-703(F)(5).
5
Id. § 13-703(F)(6).
6
Id. § 13-703(F)(8).
7
The majority unduly discounts defense counsel’s attack of the govern-
ment’s asserted aggravating factors. See Maj. Op. at 5450-51. Both the
Arizona Supreme Court and the state trial court disagreed with the majori-
ty’s assessment of counsel’s performance with respect to the “grave risk
of death to others” and the “multiple murders” aggravating factors, agree-
ing with counsel’s assertion that the first factor was unsupported and the
second was unconstitutional in this case. The Arizona Supreme Court also
found persuasive defense counsel’s argument that the government failed
to prove beyond a reasonable doubt that Correll intended to kill one victim
and therefore the death penalty could not be imposed on that count. Fur-
thermore, counsel made compelling substantive legal and factual argu-
ments with respect to the other aggravating factors.
5470 CORRELL v. RYAN
In addition to challenging the government’s aggravating
factors, Correll’s attorney also presented substantial mitigat-
ing evidence.8 First, counsel emphasized that it was John
Nabors, not Correll, who actually shot the three victims who
died. Second, counsel endeavored to present Nabors as the
“leader” and “planner” of the criminal endeavor, accentuating
the facts that “Mr. Nabors was the one that knew Guy Snell-
ing was a drug dealer,” and that “Snelling would have money
and drugs [when] the robbery occurred. In addition, counsel
drew the court’s attention to Snelling’s statement that “it
appeared to him that John Nabors was the leader, was the one
calling the shots, so to speak.” Finally, counsel pointed out
that, prior to the robbery, it was impossible for Correll reason-
ably to have anticipated that anyone would be present in the
home other than Snelling, and that, consequently, Correll
could not have planned the three deaths.9
Third, Correll’s attorney also argued for mitigation, both in
his sentencing memorandum and at oral argument, on the
grounds that Correll was under the influence of drugs and
alcohol at the time of the murders.10 Counsel specifically drew
the sentencing judge’s attention to Snelling’s statement to the
police that he smelled alcohol on Correll’s breath during the
crimes.
8
The majority quotes the state trial court record, which reads that “De-
fendant waive[d] presentation of mitigating evidence.” Maj. Op. at 5447.
This excerpt, however, was merely the conclusion of the court clerk. In the
district court proceedings, defense counsel adamantly maintained that
“[w]e didn’t waive” the presentation of mitigating evidence.
9
At the time of sentencing, Arizona state law explicitly provided that
such inability reasonably to foresee that one’s conduct would cause death
to another person was a statutory mitigating factor. Ariz. Rev. Stat. § 13-
703(G)(4).
10
A defendant’s inability to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of law is a statutory mitigat-
ing factor. See Ariz. Rev. Stat. § 13-703(G)(1).
CORRELL v. RYAN 5471
Fourth, counsel presented Correll’s troubled family history,
explaining that “the reason that Mike [Correll] has had prob-
lems is the fact that when he was 14 years old, that both of
his parents abandoned him and what can be expected when
someone is abandoned by their parents at such an early age?”
Finally, Correll’s attorney also argued that Correll’s age—24
—was mitigating.11
Although Correll’s attorney knew that Correll had received
psychological counseling, he declined to develop psychologi-
cal evidence because he believed, based on his conversations
with Correll, that the only possible diagnosis was antisocial
personality disorder. As counsel explained at the evidentiary
hearing, he believed such a diagnosis would carry little, if
any, mitigating weight with the sentencing judge and would,
in fact, make it easier for the judge to sentence Correll to
death because it would cause him to view Correll as perma-
nently psychologically damaged.12
C
The sentencing judge ultimately found four statutory aggra-
vating circumstances.13 Determining that the mitigating evi-
11
A defendant’s age is a statutory mitigating factor. See Ariz. Rev. Stat.
§ 13-703(G)(5).
12
As the district court summarized the evidence presented at the sen-
tencing hearing:
Rather than argue Petitioner’s personality disorder to Judge
Howe, [counsel] decided that Petitioner had a better chance to
avoid the death penalty if he portrayed that Petitioner was
involved in a drug ripoff which had gone terribly wrong, that
Petitioner had only been a follower in the matter, that he had not
been the trigger-man as to the three people who died, that Guy
Snelling had reported to police that Petitioner was under the
influence of drugs and/or alcohol at the time of the crimes, and
that he should be shown sympathy because his family abandoned
him at the age of 14.
13
The Supreme Court has since held that Arizona’s practice of judges
finding aggravating factors violates the Sixth Amendment right to a jury.
5472 CORRELL v. RYAN
dence did not outweigh these factors, the judge sentenced
Correll to death on each of the murder counts. The Arizona
Supreme Court affirmed Correll’s convictions, with the modi-
fications previously mentioned. It then re-weighed the aggra-
vating and mitigating factors and determined that the death
penalty was appropriate. Correll, 715 P.2d at 736.
In his state petition for postconviction relief, Correll
alleged that his counsel rendered ineffective assistance at sen-
tencing. He contended that during the month that elapsed
between the jury verdict and the sentencing hearing, his attor-
ney met with him for just five minutes. He also contended that
his attorney failed to investigate and to develop available evi-
dence relating to his psychiatric history and condition at the
time of the crimes. The state trial court summarily dismissed
Correll’s petition, concluding that Correll raised “no colorable
issues” relating to ineffective assistance of counsel. The court
went on to explain that “the Court specifically recalls that the
trial work of defense counsel was precise, careful, and compe-
tent, and manifested strategic and tactical judgments of the
same high quality.” The Arizona Supreme Court denied
review without comment.
Correll later filed a federal petition for writ of habeas cor-
pus and the district court entered summary judgment against
him. On appeal (“Correll I”), we held that Correll’s ineffec-
tive assistance allegations, which had not been fully explored
in state court, entitled him to an evidentiary hearing. We held
that Correll had established (1) that the state court trier of fact
had not conducted a full and fair hearing to find the relevant
facts, and (2) that his allegations, if proven, might constitute
a colorable ineffective assistance claim. Correll v. Stewart,
137 F.3d 1404, 1411-12 (9th Cir. 1998).
See Ring v. Arizona, 536 U.S. 584 (2002). Ring does not apply, however,
to cases such as this one that were already final on direct review. See
Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
CORRELL v. RYAN 5473
D
Pursuant to our instructions on remand, the district court
conducted an evidentiary hearing on Correll’s ineffective
assistance of counsel claim. The evidentiary hearing lasted
nine days. The district court heard testimony from 17 wit-
nesses, 14 called by Correll (who waived his appearance), and
three called by the government. In addition, the district court
reviewed reams of documents, including Correll’s attorney’s
notes, which were nearly a quarter-century old, and Correll’s
childhood medical records, which were two decades older.
After outlining all the evidence in a detailed 109-page dis-
position, the district court made several findings. First, as to
the sufficiency of counsel’s consultation with Correll, the
court rejected Correll’s allegation that counsel spent only five
minutes with him between conviction and sentence. Instead,
the district court found that “[p]rior to sentencing, [counsel]
had multiple face-to-face meetings and phone calls with Peti-
tioner” in which he “discuss[ed] with Petitioner the overall
mitigation case and the specific reasons he would present to
the court in favor of a life sentence rather than the death pen-
alty.”
Second, as to the sufficiency of counsel’s investigation of
possible mitigating evidence, the district court found that
counsel spoke to between 40 and 50 witnesses, including
every member of Correll’s family who would cooperate. The
district court further found that, unfortunately, “[t]he wit-
nesses were not able to provide relevant useful mitigation
information.” In fact, “in many instances, the witnesses only
provided inculpatory and non-mitigating information.”
The district court did find that counsel’s performance was
constitutionally deficient in two respects: (1) counsel’s failure
to obtain medical treatment records relating to the head injury
Correll suffered at seven years old and (2) counsel’s failure to
thoroughly review Correll’s mental health records. The court
5474 CORRELL v. RYAN
determined that a reasonable attorney would have investigated
these matters for possible mitigating evidence rather than
relying on his own impression, based on his interaction with
the defendant, that the defendant had no intellectual or psy-
chological deficits that could serve as mitigating evidence.
Nevertheless, the district court found that Correll was not
prejudiced by these errors. After Correll’s postconviction
counsel developed all the evidence relating to Correll’s head
injury and mental health history, the district court still found
Correll to be a “highly functioning adult” who never suffered
from brain damage or a major psychological disorder. Thus,
the district court found that Correll’s medical and mental
health records provided no substantial evidence of mitigation.
Furthermore, the district court found that much of the new
evidence Correll offered would have been counterproductive
if put before the sentencing judge because it would have
“opened the door for the prosecution to come forward with
strong damaging rebuttal information to counter its mitigating
effect.”
II
In reversing the district court’s judgment, the majority con-
cludes that the district court committed “clear error” in find-
ing that counsel’s investigation and presentation of possible
mitigating defenses was constitutionally sufficient. Under the
clearly erroneous standard of review, our scrutiny of a district
court’s factual findings must be “significantly deferential, in
that we must accept the district court’s factual findings absent
a definite and firm conviction that a mistake has been com-
mitted.” Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006)
(quoting Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.
2002)) (internal quotation marks omitted).14 In other words, as
14
Because Correll’s petition for a writ of habeas corpus was filed before
the effective date of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, pre-AEDPA law
governs our review. Lindh v. Murphy, 521 U.S. 320, 327 (1997).
CORRELL v. RYAN 5475
long as the district court’s account of the evidence “ ‘is plau-
sible in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the evi-
dence differently.’ ” Phoenix Engineering and Supply Inc. v.
Universal Elec. Co., Inc., 104 F.3d 1137, 1141 (9th Cir. 1997)
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74
(1985)).
Unfortunately, the majority ignores these instructions and
embarks on its own independent examination of the facts
presented to the district court. By contrast, as indicated by its
exhaustive 109-page disposition, the district court’s findings
were well-supported by the facts and reached only after a
thorough review of all available evidence. I simply cannot
agree that the district court’s findings were erroneous at all,
let alone clearly erroneous.
More alarming than its reconstruction of the record, how-
ever, the majority jumps with startling speed from its new fac-
tual determination that Correll received ineffective assistance
of counsel to its ultimate conclusion that his habeas petition
must be granted. In so doing, the majority ignores Strick-
land’s second requirement, that even if Correll proves ineffec-
tive assistance of counsel, he must also prove that the result
was actually prejudicial. Wiggins, 539 U.S. at 534 (citing
Strickland, 466 U.S. at 692). As the Supreme Court has made
clear, we do not presume prejudice from counsel’s ineffective
assistance. Strickland, 466 U.S. at 693. Rather, even if coun-
sel’s performance was deficient, Correll still bears the “highly
demanding and heavy burden of establishing actual preju-
dice.” Allen, 395 F.3d at 1000 (internal quotation marks omit-
ted) (emphasis added). This burden “affirmatively [to] prove
prejudice” requires Correll to show more than the mere possi-
bility that counsel’s performance prejudiced the outcome.
Strickland, 466 U.S. at 693. Instead, Correll must demonstrate
“a reasonable probability” that, but for counsel’s constitution-
5476 CORRELL v. RYAN
ally deficient performance, he would have received a lesser
sentence. Id. at 695.
In assessing prejudice in this case, it is important to remem-
ber that “we are not asked to imagine what the effect of cer-
tain testimony would have been upon us personally,” Stewart
v. Smith, 140 F.3d 1263, 1270 (9th Cir. 1998), or even to
imagine the effect of such testimony on an abstract juror.
Instead, we must determine what the effect of Correll’s new
evidence would have been upon the Arizona sentencing judge
at the time of Correll’s sentencing hearing 23 years ago. Id.
As discussed below, none of the evidence unearthed during
the district court’s evidentiary hearing creates a “reasonable
probability” that Correll would have received a lesser sen-
tence had it been presented at the sentencing phase of his trial.
Accordingly, I cannot conclude that Correll has met the heavy
burden required to establish prejudice.
A
First, Correll’s attorney’s failure to obtain the medical
records relating to Correll’s childhood head injury was not
prejudicial because these records did not, in fact, demonstrate
any brain damage. After receiving testimony from neuropsy-
chologists, the district court found that Correll “did not suffer
any brain injury from the block wall that fell on him when he
was 7 years old.” Quite to the contrary, the district court cred-
ited a neuropsychologist’s testimony that “of all the capital
defendants he has tested, Petitioner is one of the highest func-
tioning.”
The medical records from the incident support this assess-
ment. After his childhood injury, Correll was diagnosed with
a subgaleal hematoma, which is a bruise or collection of
blood under the scalp, but above the skull. The hematoma
cleared in five days, at which time a doctor described the
seven-year-old Correll as alert and well. I accordingly cannot
agree with the majority’s conclusion that Correll has carried
CORRELL v. RYAN 5477
his burden to establish a reasonable probability that he would
have received a lesser sentence if the records relating to his
childhood head injury had been before the sentencing judge.
Indeed, as we have suggested before, counsel’s failure to
present “mitigating evidence may be irrelevant when no sub-
stantial mitigating evidence is available.” Smith v. Stewart,
189 F.3d 1004, 1013 n.4 (9th Cir. 1999) (citing Gerlaugh v.
Stewart, 129 F.3d 1027, 1042 (9th Cir. 1997)). The medical
records, which led the district court to conclude that Correll
was a “highly functioning adult,” presented no opportunity for
mitigation.
B
In assessing the remainder of Correll’s mitigating evidence,
it is important to emphasize that the majority’s conclusion
that Correll has met the heavy burden of demonstrating actual
prejudice ignores a mountain of precedent which requires us
to consider not only the benefits of the ostensibly mitigating
evidence counsel failed to present, but also its potential draw-
backs. In Darden v. Wainwright, 477 U.S. 168, 186 (1986),
trial counsel’s failure to present any mitigating evidence did
not constitute deficient performance because the presentation
of such evidence would have opened the door to damaging
rebuttal evidence. Similarly, in Burger v. Kemp, 483 U.S. 776
(1987), trial counsel’s failure to present psychological records
did not amount to ineffective assistance because the records
were “by no means uniformly helpful to petitioner,” as they
suggested “violent tendencies” that would have undermined
counsel’s strategy of portraying petitioner’s actions as the
result of another person’s “strong influence upon his will.” Id.
at 793. Based on these cases, we have held that an attorney
who failed to present psychological testimony relating to the
defendant’s antisocial personality disorder was not ineffective
because such testimony “would have allowed the prosecution
during cross-examination and rebuttal to rehash the horrific
details of [the] crimes.” Bonin v. Calderon, 59 F.3d 815, 836
(9th Cir. 1995). Most recently, the Supreme Court, in Wiggins
5478 CORRELL v. RYAN
v. Smith, 539 U.S. 510 (2003), repeatedly emphasized that the
Darden-Burger line of cases remains in effect. In Wiggins, the
Court held that the petitioner had met his heavy burden of
proving actual prejudice because “Wiggins d[id] not have a
record of violent conduct” that the State could have intro-
duced to offset the mitigating evidence his attorney failed to
offer. Id. at 537. The majority fails to realize that unlike Wig-
gins, much of the new mitigating evidence Correll offers
would have enabled the prosecution to present very damaging
evidence in rebuttal. Indeed, Correll’s mitigating evidence
presents precisely the type of “double edge” the Supreme
Court found lacking in Wiggins’s case. Id. at 535 (distin-
guishing the mitigating evidence presented by Wiggins from
the double-edged evidence presented in Burger, 483 U.S. 776,
and Darden, 477 U.S. 168).
1
I begin with Correll’s new psychiatric evidence, which
would not have significantly helped his case. The district
court found that “there is insufficient evidence to support that
Petitioner has ever suffered from any major mental illness,
whether PTSD [post traumatic stress disorder], a major
depressive disorder, or a bipolar disorder.” The district court
reached this factual finding after two psychological experts
testified that there was no evidence Correll has ever suffered
from these disorders. The sole witness who speculated that
Correll might have suffered from post traumatic stress disor-
der acknowledged that such a diagnosis was “only a possibili-
ty.” The district court found Correll’s self-reporting of bipolar
disorder and severe depression incredible in light of Correll’s
obvious motive to fabricate and in light of the fact that these
diagnoses do not appear in his records and Correll indicated
that he was never given medication to treat them.
The district court also found that the evidence did not sup-
port Correll’s contention that he was given anti-psychotic
medications while in custody. In reaching this factual finding,
CORRELL v. RYAN 5479
the district court noted that the mental health experts for both
parties scrutinized Correll’s medical records from the Califor-
nia Department of Corrections (“CDC”) and reported the
absence of any indication that anti-psychotic medication was
ever prescribed. Although it appears that Correll was given
Mellaril for a period of time as a juvenile, the government’s
mental health expert, Dr. John Scialli, M.D., testified without
opposition that the dosage—25 milligrams—would have
served as a mild tranquilizer and was far lower than the dos-
age that would be utilized to counteract psychosis (approxi-
mately 625 milligrams).
Accordingly, had Correll’s attorney thoroughly reviewed
Correll’s mental health records, he would have only had cred-
ible evidence for the diagnosis he already suspected: antiso-
cial personality disorder accompanied by mild depression. As
we have repeatedly acknowledged, a diagnosis of antisocial
personality disorder may be “potentially more harmful to [a]
petitioner than [helpful].” Gerlaugh, 129 F.3d at 1035. We
have explained that, because of its “obvious countervailing
tactical dangers,” such evidence “[i]n its best possible light,
it is a basket of cobras.” Id. Accordingly, in a prior case, “we
c[ould] identify no prejudice flowing from counsel’s failure to
develop” psychiatric testimony relating to a defendant’s anti-
social personality disorder. Id.; see also Darden, 477 U.S. at
186-87 (counsel’s decision not to present mitigating character
or mental-state evidence was sound trial strategy because it
would have opened the door to damaging rebuttal evidence,
including a psychiatric opinion that the defendant had a socio-
pathic personality); Daniels v. Woodford, 428 F.3d 1181,
1204, 1210 (9th Cir. 2005) (indicating that testimony suggest-
ing that a capital defendant is a “sociopath” is aggravating
rather than mitigating); Beardslee v. Woodford, 358 F.3d 560,
583 (9th Cir. 2004) (acknowledging that an antisocial person-
ality diagnosis can be damaging to a capital defendant); Caro
v. Woodford, 280 F.3d 1247, 1257 (9th Cir. 2002) (concluding
that a psychologist’s testimony did not help the defendant’s
mitigation case because it tended “to paint him as a violent
5480 CORRELL v. RYAN
psychopath”); Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th
Cir. 1995) (noting that mental health records omitted from the
sentencing hearing “hardly turned out to be helpful” because
they indicated that the defendant had “an antisocial personali-
ty”); Williams v. Calderon, 52 F.3d 1465, 1472 (9th Cir.
1995) (“We have no doubt that . . . statements [suggesting that
the defendant is sociopathic] did nothing to advance Wil-
liams’s cause.”).
Furthermore, had counsel presented Correll’s mental health
records at sentencing, he would have opened the door for the
prosecution to present extremely damaging rebuttal evidence
that would have likely eviscerated the minimal mitigating
impact these records carried. The district court “credit[ed
counsel’s] testimony that the prosecutor, Sidney Davis, had a
reputation for excellent preparation and that she would have
left no stone unturned in her opportunity to rebut any mitiga-
tion evidence presented.” Accordingly, the district court
found that, had Correll’s attorney presented mental health evi-
dence, this “highly skilled” prosecutor would have presented
a great deal of aggravating evidence that was not already
before the sentencing judge, specifically: (1) Correll’s rape of
a female psychotic patient while being treated for his antiso-
cial personality disorder and mild depression; (2) Correll’s
numerous escapes from mental health treatment facilities and
numerous rejections of institutional efforts to provide him
with mental health treatment; (3) an incident where Correll
took hostages in an armed attempt to escape from a mental
health treatment facility; (4) the underlying factual basis of
Correll’s prior convictions for armed robbery; (5) the conclu-
sion of a social evaluation at age 18 that Correll was a danger
to the community and was not a candidate for probation; (6)
additional information showing the efforts of Correll’s parents
to deal with his drug abuse problem and to obtain psychologi-
cal treatment for him following his armed threat against a
teacher at school; (7) Correll’s statement that he had no desire
to work but only wished to enjoy himself; and (8) Correll’s
CORRELL v. RYAN 5481
statement that when he committed the 1978 armed robberies
that it gave him a strong sense of power and excitement.
Finally, presentation of Correll’s antisocial personality dis-
order at sentencing would have severely undermined coun-
sel’s strategy of arguing that Correll was merely following
Nabors’s lead during the commission of the crimes. Had
counsel introduced evidence of Correll’s antisocial personal-
ity disorder diagnosis, the prosecution would have almost cer-
tainly responded by pointing out that Correll, at age 18,
instigated the armed robbery of three convenience stores at
gunpoint, an effort in which he enlisted the assistance of his
13-year-old brother and 15-year old girlfriend. We have pre-
viously held that counsel’s failure to present psychological
evidence is not prejudicial where it would have distracted the
fact-finder from counsel’s main mitigation theory and other
mitigation evidence. See Bonin, 59 F.3d at 836 (finding that
counsel’s failure to present expert psychological testimony
was not prejudicial because it “would have distracted jurors
. . ., reduced [the defendant’s] credibility with the jury, and
opened the door to powerful cross-examination and rebuttal”);
see also Burger, 483 U.S. at 793 (holding that a petitioner
failed to prove ineffective assistance where the affidavits
detailing the defendant’s behavioral history his attorney failed
to present “are by no means uniformly helpful to petitioner
because they suggest violent tendencies that are at odds with
the defense’s strategy of portraying petitioner’s actions on the
night of the murder as the result of [another person’s] strong
influence upon his will”).
In sum, the psychological evidence, if presented, would
have demonstrated only that Correll has an antisocial person-
ality with mild depression. Such evidence has tremendous
potential to be more harmful than helpful. Further, such evi-
dence would have opened the door for the prosecution to
introduce a laundry list of extremely damaging information
not already before the sentencing judge and would have crip-
pled Correll’s chances of convincing the sentencing judge that
5482 CORRELL v. RYAN
he was merely following Nabors’s lead during the crimes.15
Accordingly, contrary to the majority’s conclusion, Correll
cannot prove a reasonable probability that he would have
received a lesser sentence if the available psychological evi-
dence had been before the sentencing judge.
2
Given the lack of substantial mitigation found in Correll’s
medical and psychiatric records, Correll cannot claim to have
been prejudiced by counsel’s failure to offer further evidence
of Correll’s drug use beyond what he already presented to the
sentencing judge. The district court found that there was no
evidence—other than Correll’s self-serving statements—that
Correll was significantly impaired at the time of the crimes.
Arizona law at the time provided that “[a] defendant’s intoxi-
cation or alcoholism at the time of the offense is a mitigating
circumstance if the evidence shows that it significantly
impaired the defendant’s capacity to appreciate the wrongful-
ness of his conduct or to conform his conduct to the require-
ments of the law.” State v. Zaragoza, 659 P.2d 22, 30 (Ariz.
1983) (emphasis added). The district court specifically found
that Correll’s behavior during the murders indicated he was
not intoxicated:
[I]t was Petitioner who remained calm when the gun
15
While the majority concludes that “a significant portion of that dam-
aging rebuttal evidence was already available through the pre-sentence
report,” Maj. Op. at 5464, it fails to acknowledge what Correll’s counsel
realized, that the introduction of some potentially mitigating evidence
would open the door to a parade of horribles. For example, while the pre-
sentence report summarily discloses Correll’s conviction of three counts
of armed robbery in 1978, Correll’s attorney understandably wanted to
preclude damning rebuttal evidence revealing that Correll enlisted his 13-
year-old younger brother and his 15-year-old girlfriend in these crimes.
Furthermore, the pre-sentence report is silent regarding other extremely
damaging information that the prosecutor would have surely brought to
light in rebutting certain potentially mitigating evidence.
CORRELL v. RYAN 5483
misfired as Nabors was trying to kill Robin Cady. It
was Petitioner who encouraged Nabors to remain
calm as there were no cars coming, to get a shell
chambered and shoot Cady. Such behavior at the
time of the crime does not demonstrate intoxication
and, in fact, undercuts an assertion of intoxication.
See Williams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004)
(reasoning that there is little basis for believing that drugs
materially affected the defendant’s behavior at the time of the
crimes when the facts of the crimes reflect deliberate and
methodical action).
Furthermore, no witnesses could have established that Cor-
rell was intoxicated on the date of the crimes. The best evi-
dence Correll can point to would have come from his sister,
who could have testified that Correll used methamphetamine
in the morning on the day before the crimes. Correll was not
prejudiced by counsel’s decision not to present his sister’s tes-
timony, however, because cross-examination would have
eviscerated any remaining residual doubt in the sentencing
judge’s mind as to Correll’s guilt. Correll maintained his
innocence throughout the sentencing proceedings. However,
Correll’s sister knew he was with Nabors at the time of the
crimes and that they had sought a ride out of the state very
soon after the murders occurred. Accordingly, as the district
court found, her testimony would have “totally eliminated any
mitigating weight” and residual doubt from Correll’s assertion
at the guilt phase of his trial that it was his brother, not he,
who had committed the murders. See Allen, 395 F.3d at 1004
(explaining that “mitigation witnesses proffered by [the
defendant] would not have proved helpful given their own
involvement in [the defendant]’s criminal enterprise.”); Wil-
liams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004) (“[T]he
best thing a capital defendant can do to improve his chances
of receiving a life sentence has nothing to do with mitigating
evidence strictly speaking. The best thing he can do, all else
being equal, is to raise doubt about his guilt.”).
5484 CORRELL v. RYAN
The only other witness Correll’s postconviction counsel
presented relating to drug use was Dawn Day, who testified
that she used methamphetamine with Correll during a four
month period from November 1982 until February 1983. We
cannot consider Day’s testimony, however, because Correll
failed to establish that Day was available to testify at his sen-
tencing hearing. See Douglas v. Woodford, 316 F.3d 1079, at
1086 n. 2 (9th Cir. 2003) (explaining that testimony presented
at a district court evidentiary hearing that was not available to
counsel at the sentencing hearing may not be considered for
prejudice purposes). Furthermore, even if Correll had estab-
lished that Day would have been available, Day’s testimony
that Correll used methamphetamine more than one year
before the crime would have provided little support for Cor-
rell’s argument that, at the time of the crime, he was so
impaired that he was unable “to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements
of the law.” Zaragoza, 659 P.2d at 30.16
The majority attempts to minimize counsel’s complete
inability to present any corroborating evidence that Correll
either used methamphetamine on the date of the crimes or
appeared intoxicated to anyone he encountered that day by
instead pointing to expert testimony that “gross methamphet-
amine intoxication, unlike gross alcohol intoxication, is not
necessarily apparent to outside observers.” Maj. Op. at 5463.
Consequently, the majority appears content to rely exclusively
on Correll’s self-serving statement that he was intoxicated at
the time of the crimes to reach the conclusion that counsel’s
failure to present further evidence of his drug use was prejudi-
cial. I, on the other hand, would prefer to rely on the credibil-
ity findings made by the district court. Those findings bear
repeating in full:
16
Indeed, there was evidence in the record that suggested that Correll
was not intoxicated at the time of the crimes. Specifically, when Correll
and Nabors entered Snelling’s trailer home, the first thing they asked
Snelling was “whether he had any speed.”
CORRELL v. RYAN 5485
The Court does not credit [Correll’s] unsubstantiated
self-report that he abused methamphetamine every
day before the crimes were committed. Petitioner
chose not to testify at the evidentiary hearing; Peti-
tioner chose not to fully cooperate with [the govern-
ment’s drug abuse expert’s] examination of him
regarding the issue of drug abuse. Because of the
obvious motive to fabricate, Petitioner’s self-serving
statements about his drug usage prior to the crimes
is [sic] unreliable and subject to searching skepti-
cism. See, e.g., [State v.] Medrano, 914 P.2d [192,]
227 [(Ariz. 1996) (“the defendant provided most of
the information concerning his use of cocaine in the
past and on the night of the murder, as well as the
drug’s effect on him. Because of the obvious motive
to fabricate, such self-serving testimony is subject to
skepticism and may be deemed insufficient to estab-
lish mitigation.”)]; see also Bernard Smith [v. Stew-
art], 140 F.3d [1263,] 1270 [1998] (evaluating
evidence based on impartial sentencing judge apply-
ing Arizona law); see generally, Strickland, 466 U.S.
at 695 (“The assessment of prejudice should proceed
on the assumption that the decision maker is reason-
ably, conscientiously, and impartially applying the
standards that govern the decision.”). The Court’s
searching skepticism toward Petitioner’s self report
is corroborated by Respondent’s drug abuse expert,
Dr. Matthews, who opined as follows: “Antisocial
personality disorder is characterized by malingering
and deceit; instances of [Petitioner’s] lifelong pattern
of deceptiveness abound throughout his penal and
other records. He has been deceitful about a great
many matters, including his history of substance
abuse. Because of [Petitioner’s] history of deceit, it
is a major clinical error to accept [Petitioner’s] self-
serving view of his condition at the time of the
offense as accurate.
5486 CORRELL v. RYAN
Because there was no other evidence to establish that Cor-
rell was intoxicated at the time of the crimes, I cannot agree
with the majority that Correll was prejudiced by counsel’s
failure to present expert testimony regarding the effects of
methamphetamine addiction at the sentencing hearing. Con-
versely, I agree with the district court that counsel’s decision
reflects a reasonable strategic choice. First, the district court
found that “any expert would have to take into account the
underlying facts of the crimes, which show that [Correll] was
involved in deliberative acts, such as planning, conspiring,
avoiding detection, . . . awareness of wrongdoing,” and the
fact that he was “generally orientated [as] to time, place, and
reality.” This would have materially undermined counsel’s
strategy of portraying Correll as merely following Nabor’s
lead. Second, the district court acknowledged that any expert
“would have been forced to utilize hypothetical supposition
regarding [Correll’s] conduct at the time of the crimes,” and
that “[s]uch hypothetical supposition would have opened the
door for contrary rebuttal argument and reiteration by the
prosecution regarding the lack of factual support and incredu-
lity of [Correll’s] alleged intoxicated condition at the time of
the crimes.”
Yet it is solely on the strength of such “hypothetical suppo-
sition” that the majority now declares that the district court
was “clearly wrong” to conclude that there was no evidence
to support Correll’s assertion that, on the night of the crimes,
he was “grossly intoxicated—to the point of being unable to
appreciate the wrongfulness of his conduct,” as required for
mitigation. Maj. Op. at 5464. The majority points to the testi-
mony of two drug abuse experts presented by Correll’s post-
conviction counsel at the evidentiary hearing. The district
court, however, reasonably declined to credit these experts’
opinions because they were not based on an examination of
Correll but instead were based on a hypothetical set of facts
provided by Correll’s postconviction counsel. As the district
court explained:
CORRELL v. RYAN 5487
Dr. Sullivan did not examine Petitioner nor did he
look at Petitioner’s Arizona Department of Correc-
tions or CDOC records. Rather, Dr. Sullivan was
asked to assume [a set of] hypothetical facts [that] do
not accurately or reliably portray Petitioner’s alleged
drug abuse. . . . [H]is opinion was based on unsub-
stantiated and unreliable assumptions.
In addition, Correll’s other expert witness on drug addic-
tion, Dr. Shaw, whom the majority quotes for the proposition
that Correll “may have been experiencing drug-induced para-
noia” at the time of the murders, Maj. Op. at 5461, was “thor-
oughly impeached” at the evidentiary hearing. As the district
court explained, “Dr. Shaw admitted that he only minimally
considered the facts of the crime before reaching his conclu-
sion.” The district court found Dr. Shaw’s opinion “entirely
not credible and wholly speculative” because, like Dr. Sulli-
van’s opinion, it was “based upon hypothetical drug usage at
the time of the crimes that was not established.”
In stark contract to the hypothetical assumptions on which
Drs. Sullivan and Shaw based their opinions, the district court
found that, except for 229 days, Correll was incarcerated
throughout the nine-year period between October 1975 (when
he was first incarcerated, at age 14) and March 1984 (one
month before the murders) and that Correll “was not a
methamphetamine addict or a long-term abuser of metham-
phetamine during the time he was incarcerated.”
Consequently, I agree with the district court that counsel’s
failure to present further evidence of Correll’s drug use was
not prejudicial. Counsel had already stated that Correll had
been using alcohol and drugs and presented Snelling’s state-
ment that he smelled alcohol on his captor’s breath. I agree
with the district court that if Correll’s attorney had called an
expert to testify, “it is highly likely any lay witness basis for
the expert’s opinion could have been cross-examined at sen-
tencing and impeached by virtue of the fact that no lay wit-
5488 CORRELL v. RYAN
ness could testify that Petitioner was intoxicated at the time
of the crimes.” I also credit the district court’s observation
that “if an expert had testified based solely on Petitioner’s
self-reporting . . . it is very likely that the expert’s opinion
would have been severely undermined by undisputed evi-
dence that Petitioner had spent almost 9 of the last 10 years
incarcerated with little or no access to drugs.”
Nevertheless, the majority’s independent review of the
expert testimony leads it to conclude that the evidence
“clearly established that methamphetamine use, in the quanti-
ties that Correll indisputably used the drug on a regular basis,
would significantly impair judgment and consciousness with-
out causing perceptible symptoms of intoxication.” Maj. Op.
at 5464 (emphasis added). I do not quarrel with the notion that
severe use of methamphetamine may significantly impair
judgment and consciousness. Whether the symptoms of
methamphetamine intoxication are perceptible or not, how-
ever, it is quite disputable that Correll used the drug “on a
regular basis” and it is entirely unproven that Correll used the
drug on the date of the crime.
Accordingly, I share the district court’s inability to find that
Correll was prejudiced by counsel’s decision not to present
additional evidence of drug use beyond what he already had.17
17
I would further note that a drug defense likely would have evoked less
sympathy from an Arizona sentencing judge 22 years ago than it does
from the court today. See Mayfield v. Woodford, 270 F.3d 915, 931 (9th
Cir. 2001) (crediting testimony that there were “no death penalty cases
tried in San Bernardino County prior to 1983 where a drug defense had
been successful in gaining either an acquittal or in reducing the sentence
from death to life without parole.”). The sentencing judge very likely
would have taken note of the fact that Correll never sought treatment for
his substance abuse problem and repeatedly secured his removal from the
mental health programs in which he was placed either by escaping or by
violently assaulting the staff.
CORRELL v. RYAN 5489
3
Finally, Correll has presented no credible evidence about
his childhood that his attorney could have placed before the
sentencing judge other than the evidence the sentencing judge
already had before him. The district court, who is in the best
position to determine credibility, found Correll’s uncorrobo-
rated allegation that his mother banged his head against a
kitchen table incredible. In regard to the head injury Correll
suffered at age seven when a cinder block wall fell on him,
the district court expressly found that Correll’s parents were
not negligent in securing medical care. After reviewing the
medical records presented at the evidentiary hearing, the dis-
trict court found that Correll’s parents took him to the family
doctor the same day the accident occurred and “acted reason-
ably in caring for Petitioner, which included two visits to their
family doctor, one emergency room visit and a follow-up visit
for additional specialized testing.”
The majority cites evidence of Correll’s family history pro-
vided by Reverend Curry, whom the district court found “was
not an available witness” for counsel at the time of the sen-
tencing hearing. The district court found “that if [Reverend
Curry] had been contacted by [counsel] prior to sentencing, he
would have informed him that he would not discuss informa-
tion about Petitioner or appear at sentencing because it was
against California law for him to discuss former residents of
the CYA.”18 Accordingly, Reverend Curry’s testimony cannot
18
While the majority quotes Reverend Curry’s testimony that he “would
have unhesitatingly come to help” Correll, see Maj. Op. at 5446 n.2, I
credit the district court’s finding that at the time of the sentencing hearing
he was unavailable to help. Reverend Curry testified that he “cannot offer
testimony or assertions regarding people who have been in California
Youth Authority [because] [i]t is forbidden by law.” Reverend Curry testi-
fied that while others could contact him, he “could not make contact with”
counsel and when he “talked with [his] supervisors about it, . . . they said
no.” Furthermore, defense counsel testified that when he contacted Rever-
end Curry’s wife, she informed him that the Reverend “didn’t really want
to be involved.”
5490 CORRELL v. RYAN
factor into the prejudice analysis. See Douglas, 316 F.3d at
1086 (explaining that testimony presented at a district court
evidentiary hearing that was not available to counsel at the
sentencing hearing may not be considered for prejudice pur-
poses).
The majority suggests that counsel should have presented
evidence of Correll’s parents’ religious fanaticism as Jeho-
vah’s Witnesses, specifically their decision, “[a]fter Correll
was shot in the arm at age 14,” to “cut off all communication
with their son and consider[ ] him dead, as required by their
church’s teachings.” Maj. Op. at 5460. Of course, the majori-
ty’s analysis ignores the district court’s finding that, by age
14, Correll had “already been arrested several times,” that his
parents had responded by providing him with “extensive psy-
chological treatment,” and that only after “another arrest” did
his parents allow him to become a ward of the state.
Similarly, the majority suggests that counsel should have
presented evidence that Correll’s parents used corporal pun-
ishment “in response to his obvious substance abuse prob-
lems.” Maj. Op. at 5460. Once again, the majority ignores the
district court’s finding that, had counsel emphasized such evi-
dence, the prosecution would have countered with evidence
that Correll’s parents took him to a private psychologist and
participated in a six-month treatment program with him after
Correll was expelled from the eighth grade for threatening a
teacher with a knife.
Finally, the majority indicates that evidence of incest in the
family could have served as mitigating evidence. Maj. Op. at
5459. At the evidentiary hearing, Correll’s sister Patty testi-
fied that their father had been arrested and convicted of child
molestation. Correll’s sister Robin testified that she suffered
“repeated and continual” sexual molestation at the hands of
her father and her brothers, specifically Correll himself.
Because the prosecution almost certainly would have pres-
ented such evidence in rebuttal, Correll cannot claim that he
CORRELL v. RYAN 5491
was prejudiced by counsel’s failure to present evidence of
incest as a mitigating fact.
Accordingly, on balance, presentation of family history evi-
dence would have been counterproductive. I cannot agree
with the majority’s conclusion that Correll has met his burden
to prove that, had counsel presented more detailed evidence
about his childhood, he would have received a lesser sen-
tence.
III
The sum of the majority’s analysis in this case simply evis-
cerates the requirement that a habeas petitioner demonstrate
actual prejudice in order to prevail on a claim for ineffective
assistance of counsel. See Wiggins, 539 U.S. 510. Not satis-
fied with merely reconstructing the facts, the majority also
reinvents Supreme Court authority, asserting that Correll pre-
sented evidence sufficient to establish a presumption of preju-
dice under Wiggins, and that this “classic mitigation evidence
. . . certainly had the potential to persuade at least one fact-
finder that Correll was, at the time of the crimes, incapable of
appreciating the wrongfulness of his conduct.” Maj. Op. at
5462. These statements, of course, are patently absurd, as
even a cursory review of the facts in Wiggins reveals that Cor-
rell fell drastically short of carrying the demanding burden of
proving actual prejudice the Supreme Court found sufficient
in that case.
In holding that Wiggins had met his burden to prove actual
prejudice, the Supreme Court explained that Wiggins “experi-
enced severe privation and abuse in the first six years of his
life while in the custody of his alcoholic, absentee mother,”
that he suffered “physical torment, sexual molestation, and
repeated rape” during his subsequent years in foster care, and
that he spent time homeless. Id. at 512. Perhaps most criti-
cally, Wiggins was mentally retarded. Id.
5492 CORRELL v. RYAN
In stark contrast, Correll’s history, which reveals that he
was “a highly functioning adult” at the time of his crimes,
comes nowhere close to the “powerful mitigating narrative”
present in Wiggins. Id. at 513. Furthermore, the Supreme
Court noted that Wiggins lacked a “record of violent con-
duct,” id. at 537, and found no evidence “suggest[ing] that a
mitigation case, in its own right, would have been counterpro-
ductive.” Id. at 525. Correll’s history, on the other hand, lit-
tered with numerous examples of his violent and destructive
lifestyle, stands at the very opposite end of the spectrum.
Indeed, the district judge, who was in the best position to
evaluate all the evidence, concluded that, after considering
both the positive and negative repercussions of Correll’s new
evidence, the balance of aggravation and mitigation had
“barely been altered.”
Viewed against the standard set forth by Strickland and
rearticulated in Wiggins, the majority’s conclusion that the
insubstantial mitigating evidence Correll now offers was suf-
ficient to meet the “highly demanding and heavy burden of
establishing actual prejudice” not only misapplies the test
these cases impose, it essentially writes the prejudice require-
ment out of our circuit jurisprudence altogether.
Accordingly, I must respectfully dissent. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052028/ | FILED
CORRECTED August 9, 2011 + JUL 14 2011
MOLLY C. DWYER, CLERK
NOT FOR PUBLICATION U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL HOLTSINGER, No. 10-16076
Plaintiff-Appellant, D.C. No. 2:03-cv-00732-MCE-
CMK
vs.
MEMORANDUM *
Tonya Voros; T. Nolan,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted June 16, 2011 **
San Francisco, California
Before: BYBEE and MURGUIA, Circuit Judges, and EZRA, District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, District Judge for the U.S. District
Court for Hawaii, sitting by designation.+
California state prisoner Michael Holtsinger appeals the district court’s grant
of summary judgment in favor of Defendant T. Nolan on Holtsinger’s 42 U.S.C. §
1983 action alleging deliberate indifference to his serious medical needs in violation
of the Eighth Amendment. Holtsinger also appeals the district court’s award of $500
in compensatory damages in his favor and against Defendant Tonya Voros. Upon
consideration of the law, arguments, and record, we affirm on both counts. Because
the history of this case is familiar to the parties, we need not recount it here.
We have reviewed the record de novo, as we must, see Gordon v. Virtumundo,
Inc., 575 F.3d 1040, 1047 (9th Cir. 2009), and agree with the district court that no
genuine issue of material fact exists regarding whether Defendant Nolan was
deliberately indifferent to Holtsinger’s medical needs in violation of the Eighth
Amendment. The undisputed facts show that Nolan, in his position as a psychologist,
did not have the authority to diagnose medical needs or prescribe treatment for such,
nor did he have the authority to order medical treatment and thus could not ensure that
Holtsinger receive emergency medical treatment. See Cunningham v. Gates, 229 F.3d
1271, 1289 (9th Cir. 2000) (explaining that a defendant can be held liable for failure
to intercede to prevent constitutional violation only if he had a realistic opportunity
to do so). Accordingly, the district court did not err in granting summary judgment
to Defendant Nolan.
2
The court reviews the district court’s damages determination following a bench
trial for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843
(9th Cir. 2004). Although Holtsinger considers the $500 in compensatory damages
awarded to him for Voros’s indifference to be inadequate, a review of the record does
not indicate that the district court clearly erred in making such award.
AFFIRMED.
3 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052033/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYSZARD KAZIMIENZ REBILAS, a.k.a. No. 05-76988
Richard Rebilas, Agency No.
Petitioner, A13-935-483
v.
ORDER
MICHAEL B. MUKASEY,* Attorney AMENDING
General, OPINION AND
Respondent. AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 15, 2007—San Francisco, California
Filed November 2, 2007
Amended May 16, 2008
Before: Michael Daly Hawkins, Sidney R. Thomas, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
5691
REBILAS v. MUKASEY 5693
COUNSEL
Sarnata Reynolds, Esq., Berkeley, California, David Assar,
Esq., Asser Law Group, Phoenix, Arizona, and Ali Saidi,
Esq., Berkeley, California, for the petitioner.
Peter D. Keisler, Esq., John C. Cunningham, Esq., Norah
Ascoli Schwarz, Esq., Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for the respondent.
ORDER
The motion to amend the opinion is granted in part. The
opinion issued on November 2, 2007, Rebilas v. Keisler, 506
F.3d 1161 (9th Cir. 2007), is amended as follows:
We delete the paragraph on page 1164 that currently reads:
5694 REBILAS v. MUKASEY
Not only is ARS § 13-1403(B) broader than the fed-
eral definition of sexual abuse of a minor, but Arizo-
na’s definition of attempt under ARS § 13-1001 is
broader than the federal definition of attempt. While
the federal definition of attempt requires the defen-
dant to commit an overt act constituting a substantial
step towards the crime, United States v. Morales-
Perez, 467 F.3d 1219, 1222 (9th Cir. 2006), Arizo-
na’s definition of attempt is satisfied if the defendant
“[i]ntentionally does or omits to do anything which
. . . is any step” in the crime. ARS § 13-1001(A)(2)
(emphasis added); see State v. Fristoe, 135 Ariz. 25,
658 P. 2d 825, 829-30 (App. 1982). Thus, attempted
public sexual indecency to a minor under Arizona
law is broader than attempted sexual abuse of a
minor under § 1101(a)(43)(A) and (U).
Rebilas, 506 F.3d at 1164. In its place, we substitute the fol-
lowing paragraph:
To hold that Rebilas’s conviction was categorically
a conviction for attempted sexual abuse of a minor
under 8 U.S.C. § 1101(a)(43)(A) and (U), we would
have to hold not only that Arizona’s definition of
public sexual indecency to a minor under ARS § 13-
1403(B) was categorically sexual abuse of a minor,
but also that Arizona’s definition of attempt under
ARS §§ 13-1001 was a categorical match with the
federal definition of attempt. This would require a
second Taylor analysis, comparing the elements of
attempt under Arizona law and the elements of
attempt under 8 U.S.C. § 1101(a)(43)(U). Because
we hold that public sexual indecency to a minor
under ARS § 13-1001 is not categorically sexual
abuse of a minor under 8 U.S.C. § 1101(a)(43)(A),
we need not engage in that analysis here.
No further filings will be accepted in this closed case.
REBILAS v. MUKASEY 5695
OPINION
BEA, Circuit Judge:
Petitioner Ryszard Kazimienz Rebilas (“Rebilas”), a native
and citizen of Poland, petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision denying petitioner’s
motion for reconsideration of the BIA’s earlier holding that
petitioner’s conviction for two counts of “attempted public
sexual indecency to a minor” under Arizona Revised Statutes
(“ARS”) §§ 13-1001 and 13-1403(B) constituted sexual abuse
of a minor and attempted sexual abuse of a minor under 8
U.S.C. § 1101(a)(43)(A) and (U). As such, petitioner was
found by the BIA to be removable as an aggravated felon
under 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii). Petitioner
was ordered removed and is in custody awaiting removal.
We grant the petition for review, and hold that Arizona’s
statutory definition of attempted public sexual indecency to a
minor under ARS §§ 13-1001 and 13-1403(B) includes con-
duct that falls outside the federal definition of attempted sex-
ual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and
(U). See Taylor v. United States, 495 U.S. 575, 600-02
(1990).
Because Rebilas has raised a colorable legal question as to
whether his conviction constitutes an aggravated felony, we
have jurisdiction under the REAL ID Act, 8 U.S.C.
§ 1252(a)(2)(D), to resolve the issue. Parrilla v. Gonzales,
414 F.3d 1038, 1040-41 (9th Cir. 2005).
We review the BIA’s denial of a motion to reconsider for
abuse of discretion, see Cano-Merida v. INS, 311 F.3d 960,
964 (9th Cir. 2002), and we review the BIA’s determination
of issues of law de novo, deferring to the BIA’s interpretation
of an immigration statute where that interpretation is “based
on a permissible construction of the statute.” Parrilla, 414
F.3d at 1041. This includes the definition of “sexual abuse of
5696 REBILAS v. MUKASEY
a minor” for purposes of 8 U.S.C. § 1101(a)(43)(A) and (U).
Id.
Under the Taylor categorical approach, this court must look
to “the ordinary case” that is prosecuted by the state, not some
extreme hypothetical. James v. United States, 127 S. Ct. 1586,
1597 (2007). Here, there was no evidence submitted, nor
cases cited, about what types of conduct are ordinarily prose-
cuted under ARS § 13-1403(B). See Gonzales v. Duenas-
Alvarez, 127 S. Ct. 815, 822 (2007) (explaining that an
offender “must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the spe-
cial (nongeneric) manner for which he argues.”).
Rather than speculate about what conduct Arizona prose-
cutes under this statute, we examine Arizona cases where an
offender’s conviction under ARS § 13-1403(B) for sexual
contact was upheld to see if any of these convictions were
based on conduct that would not violate the federal generic
crime. Arizona v. Malott, 821 P.2d 179 (Ariz. App. 1991) falls
in that category.
[1] First, under ARS § 13-1403(B), the minor involved
does not need to be touched, nor does the minor even need to
be aware of the offender’s conduct. The minor simply needs
to be present. When the minor is unaware of the offender’s
conduct, the minor has not been “abused” as that term is com-
monly or generically defined, because the minor has not been
physically or psychologically harmed. See United States v.
Baza-Martinez, 464 F.3d 1010, 1012-16 (9th Cir. 2006)
(defining abuse as “physical or psychological harm”). Thus,
where the minor is not touched by the defendant and is
unaware of a defendant’s indecent conduct, that conduct may
not fall within the federal generic definition of sexual abuse
of a minor because the minor’s ignorance may obviate any
psychological harm. See id. at 1015-17; see also Stubbs v.
Attorney General, 452 F.3d 251, 255-56 (3d Cir. 2006).
Malott, where the children slept through the entire encounter
REBILAS v. MUKASEY 5697
between the offender and their mother, is the textbook exam-
ple of a conviction for attempted public sexual indecency to
a minor that demonstrates this principle. Malott, 821 P.2d at
180-81.
In Malott, the defendant’s conviction for public sexual
indecency to a minor under ARS § 13-1403(B) by sexual con-
tact was upheld where a woman woke to find the defendant
in her bedroom naked and masturbating.1 The woman’s two
children were also in the room, but they did not wake during
the incident. Although a minor must be in the presence of the
offender, the minor need not be aware of the offender’s
actions for the statute to apply. See Arizona v. Jannamon, 819
P.2d 1021, 1023-25 (Ariz. App. 1991) (affirming defendant’s
conviction under ARS § 13-1403(B), where the defendant
masturbated in a movie theater while sitting next to a girl,
who did not realize what she had witnessed until after defen-
dant left).
The court in Malott held that a violation of ARS § 13-
1403(B) for public sexual indecency to a minor “is committed
if the defendant is reckless about whether a minor under 15
is ‘in view or at hand’ regardless of whether the minor actu-
ally witnesses the act.” 821 P.2d at 181.
[2] Second, ARS § 13-1403(B) requires only that the
offender have been “reckless” about whether a minor under
the age of fifteen years is present. The offender does not need
to know for certain that another person is present. Therefore,
the offender’s actions do not need to involve “the employ-
ment, use, persuasion, inducement, enticement, or coercion of
a child.” See Parrilla, 414 F.3d at 1041 (deferring to the
BIA’s permissible definition of sexual abuse of a minor where
the BIA adopted the definition contained in 18 U.S.C.
§ 3509(a)(8)).
1
Under ARS § 13-1403(B), masturbation constitutes sexual contact. The
offender need not touch the minor to violate ARS § 13-1403(B). See Ari-
zona v. Williams, 99 P.3d 43, 45 (Ariz. App. 2004).
5698 REBILAS v. MUKASEY
In Parrilla, this court held that a petitioner’s conviction
under Washington Revised Code § 9.68A.090 for communi-
cating with a minor for immoral purposes was not categori-
cally sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A) because the Washington law “was not lim-
ited to only abusive offenses.” Parrilla, 414 F.3d at 1043.
This court found that under the Washington law, a defendant
could be guilty simply by inviting a minor to watch an erotic
performance. Such conduct would not categorically constitute
sexual abuse of a minor.
To hold that Rebilas’s conviction was categorically a con-
viction for attempted sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A) and (U), we would have to hold not only
that Arizona’s definition of public sexual indecency to a
minor under ARS § 13-1403(B) was categorically sexual
abuse of a minor, but also that Arizona’s definition of attempt
under ARS §§ 13-1001 was a categorical match with the fed-
eral definition of attempt. This would require a second Taylor
analysis, comparing the elements of attempt under Arizona
law and the elements of attempt under 8 U.S.C.
§ 1101(a)(43)(U). Because we hold that public sexual inde-
cency to a minor under ARS § 13-1001 is not categorically
sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), we
need not engage in that analysis here.
In cases where, as here, the full range of conduct covered
by the statute of conviction includes conduct that does not fall
within the generic meaning of sexual abuse of a minor, we
then employ the modified categorical approach. Shepard v.
United States, 544 U.S. 13, 25 (2005) (plurality opinion);
Estrada-Espinoza v. Gonzales, 498 F.3d 933, 935 (9th Cir.
2007) (per curiam). Under this approach, a court may gener-
ally consider only “the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea
was confirmed by the defendant, or to some comparable judi-
cial record of this information.” Shepard, 544 U.S. at 26
REBILAS v. MUKASEY 5699
(majority opinion). Here, the only relevant documents of con-
viction in the record are the indictment, the plea agreement
and the judgment of conviction.
[3] The indictment charges Rebilas with committing two
counts of public indecency to a minor. Both counts state that
“Rebilas, on or about the 21st day of June, 2003, in the pres-
ence of [a minor], intentionally or knowingly engaged in an
act of sexual contact and was reckless about whether a minor
under the age of fifteen years was present.” As stated above,
a defendant who violates ARS § 13-1403(B) by “sexual con-
tact” may do so with conduct that does not meet the generic
definition of sexual abuse of a minor. Therefore, the informa-
tion contained in the indictment does not change the analysis.
[4] Neither the judgment of conviction nor the plea agree-
ment contains the factual basis for the crime. The plea collo-
quy was not admitted into this record. The pre-sentence
report, which does appear in the record, contains factual alle-
gations of the crime, but the pre-sentence report is not one of
the documents we can consider when conducting a modified
categorical approach. United States v. Corona-Sanchez, 291
F.3d 1201, 1212 (9th Cir. 2002) (en banc) (holding that the
pre-sentence report alone may not be used to determine the
facts supporting a petitioner’s guilty plea under the modified
categorical approach if the sources of the facts therein are not
“identified, acceptable” sources). Therefore, there are no rele-
vant documents of conviction which provide facts establish-
ing Rebilas was convicted of an offense constituting
attempted sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A) and (U).
[5] We hold Rebilas’ conviction for attempted public sex-
ual indecency to a minor under ARS §§ 13-1001, 13-1403(B)
does not constitute an attempt to commit the sexual abuse of
a minor under 8 U.S.C. § 1101(a)(43)(A) and (U), under
either the categorical or modified categorical approach.
5700 REBILAS v. MUKASEY
Accordingly, we grant the petition for review, and order the
government to release Rebilas.
PETITION GRANTED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052036/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ADKINS,
Plaintiff,
and
BERNARDO ALVAREZ; RAUL
ALVAREZ; DANIEL ATENCIO; ROBERT
AUXIER; ERNESTO BARRAZA; JAMES
BENTSON; DANIEL BLACK; VIRGINIA
BRANDON; BRYANT; ARMANDO
BUSTAMENTE, JR.; EDWARD CESENA,
JR.; ARTHUR CENA; CALLEN
CAMPBELL; LILA DIAZ; DORENE
DORIC; JEFF DUNNE; JOSE ESPINOZA;
ANDREW FINLEY; MICHAEL No. 06-56005
FORNASERI; DANIEL GALLEGOS;
DAVID GARCIA; DARVEY GUIDRY; D.C. No.
CV-98-00979-AHS
MARTIN GONZALEZ; FERNANDO
GONZALEZ; RICHARD HEITZWEBEL; OPINION
CHARLES HEARN; ROSEMARY JAIME;
PATRICK KING; KENNETH LAMMON;
JACKIE LOPEZ; CECILIA LOZANO;
BARBARA LUTE; FRANCISCO MARIN;
RAUL MATA; KATHARINE MIRANDA;
PETER MILLER; LINDA MORALES;
WILLIAM MUELLER, JR.; MATTHEW
MONTGOMERY, JR.; EARL PEDFORD;
VICTOR PAZ; JOSE PEREZ; SEFO
PURCELL; MARTIN RAMOS; LEO RUIZ
MICHAEL RODRIGUEZ; MARIE RILEY;
BLAINE ROSKELLEY; RITCH SMITH;
SAMUEL SALDANA;
5701
5702 ALVAREZ v. MIRELES
RICHARD SARMAST; THOMAS SERVIA;
MARTIN SEPULVEDA; KATHY
SEWARD; RICHARD SHERMAN; RITA
SLAGLE; JULIE TOONE; HIRAM
TRAVIS; JOHN VANDYKEN; JOSE
VARGAS; TED WIGHTMAN; DARRYL
WILLIAMS; GERALD WILDERMUTH;
ALBERT ZAMORA,
Plaintiffs-Appellants,
v.
ED MIRELES; HARRY ASHLEY;
TEAMSTERS LOCAL 952, a labor
organization,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted
February 13, 2008—Pasadena, California
Filed May 16, 2008
Before: Betty B. Fletcher, Daniel M. Friedman,* and
N. Randy Smith, Circuit Judges.
Opinion by Judge B. Fletcher
*The Honorable Daniel M. Friedman, United States Senior Circuit
Judge for the Federal Circuit, sitting by designation.
ALVAREZ v. MIRELES 5705
COUNSEL
Lee A. Wood (argued), Raymond E. Brown, Lee A. Wood &
Associates, P.C., Santa Ana, California, for the plaintiffs-
appellants.
Fern M. Steiner (argued), Thomas Tosdal, Tosdal, Smith,
Steiner & Wax, San Diego, California, for the defendants-
appellees.
OPINION
B. FLETCHER, Circuit Judge:
This appeal arises out of a union-negotiated collective bar-
gaining agreement (“CBA”) governing employees of Lucky
Stores, Inc.’s (“Lucky”) general merchandise warehouse.
David Adkins and other former employees at Lucky’s Fuller-
ton, California warehouse (collectively, “Appellants”), all
members of Teamsters Local 952 (“the Union”), appeal the
district court’s judgment, following a partial summary judg-
ment and jury trial, in favor of the Union, Ed Mireles,
secretary-treasurer of the Union, and Harry Ashley, president
of the Union (collectively, “Appellees”).
5706 ALVAREZ v. MIRELES
Appellants allege breach of the duty of fair representation,
breach of contract, negligent misrepresentation, fraud &
deceit, intentional infliction of emotional distress, violation of
the Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961-1968 (“RICO”), and conspiracy to commit
RICO violations. The district court granted summary judg-
ment in favor of Appellees on all but one claim, finding the
other claims preempted by federal law. The remaining claim,
for breach of the duty of fair representation, was decided after
an 8-day jury trial.1 Appellants contend the district court erred
by finding preemption as to the dismissed claims and as to the
claim that went to trial by granting a motion in limine to
exclude evidence of a 1985 incident in which two or more of
the Appellants burned their teamster jackets. We have juris-
diction under 28 U.S.C. § 1291. We affirm.
We hold that the district court did not err in holding that
federal law preempts Appellants’ breach of contract, breach
of covenant of good faith and fair dealing, misrepresentation,
and intentional infliction of emotional distress claims because
each implicates the duty of fair representation. See Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) (holding that
a union acting in its representative capacity owes a duty of
fair representation to those on whose behalf it acts). The dis-
trict court did not err in finding that the Labor Management
Relations Act (“LMRA”) § 301, 29 U.S.C. § 185 preempts
Appellants’ fraud and deceit claim, because the claim cannot
be maintained without the court interpreting the provisions of
the CBA. The Appellants’ RICO claims are preempted under
San Diego Building Trades Council v. Garmon, 359 U.S. 236,
244-45 (1959), because Appellants alleged an unfair labor
practice—bargaining in bad faith—which is prohibited by the
National Labor Relations Act (“NLRA”) §§ 7 and 8, 29
U.S.C. §§ 157 and 158, and thus under the exclusive jurisdic-
tion of the National Labor Relations Board (“NLRB”). Lastly,
1
This claim too is governed by federal law but may be tried in federal
court. See Vaca v. Snipes, 386 U.S. 171, 179 (1967).
ALVAREZ v. MIRELES 5707
the Appellants failed to perfect their challenge to the district
court’s evidentiary decision to exclude evidence regarding the
jacket-burning incident: while Appellants proffered this evi-
dence in limine, they did not attempt to introduce the evidence
at trial.
I. Factual Background and Procedural History
In 1985, a strike by Lucky employees, including members
of the Union, led to a settlement which left some warehouse
employees unsatisfied. In response to the settlement of that
strike, some employees at the Fullerton warehouse, including
at least two of the Appellants in this case, burned their team-
ster jackets in protest on national television. Appellants allege
that as a result of this incident, Mireles harbored animosity
toward the Fullerton warehouse employees for the next
decade, then exacted revenge during a September 1994
Union-initiated negotiation with Lucky over the terms of a
CBA, which was to cover the Fullerton warehouse, as well as
others in Buena Park and Irvine, for the years 1994 to 1998.
Appellants sought protective language in the CBA that
would allow them to “follow their product,” that is, to obtain
an assurance from Lucky that if the Fullerton warehouse was
closed and the product transferred, Appellants would continue
to be employed by Lucky and transferred to the warehouse
that received the transferred product. Mireles negotiated with
Lucky—in the absence of other Union business agents who
were present at prior negotiations—and secured this protec-
tive language in the CBA for employees of the Buena Park
and Irvine warehouses but not for employees of the Fullerton
warehouse. Lucky planned to close down the Fullerton facil-
ity in 1998 without allowing transfers to the larger planned
replacement warehouse. Lucky gave the Union jurisdiction
over this new warehouse, which opened in La Habra, near the
old Fullerton facility, in 1996. Appellants claim Mireles rep-
resented to them, contrary to the actual terms of the CBA, that
they could follow their product, and that when Appellants
5708 ALVAREZ v. MIRELES
were terminated from their employment at the Lucky ware-
house in Fullerton in September 1998, Mireles refused to pur-
sue their grievances. In October 1998, Appellants filed the
present complaint in Orange County Superior Court; it was
later removed to federal district court.
Appellants alleged that Appellees colluded with Lucky to
persuade the Appellants to accept a CBA that was substan-
tially less protective of Appellants’ rights than was repre-
sented to them. Appellants further maintained that Appellees
were motivated by the Union’s desire to secure Lucky’s pro-
spective cooperation in becoming the labor representative of
a larger number of Lucky’s employees, and by Mireles’s
long-harbored animosity toward Appellants. Appellants con-
tended that the Union negotiated a secret deal with Lucky,
which was not disclosed to them; that they ratified the 1994-
98 CBA because they relied on material misrepresentations by
the Union that Fullerton workers would be allowed to follow
their product; and that the Union failed to properly represent
them both in the 1994 CBA negotiations and 1998 negotia-
tions about Lucky’s closure of the Fullerton facility at which
they worked.
In response to Appellees’ motion for summary judgment,
the district court dismissed with prejudice the breach of the
duty of fair representation claim to the extent it was asserted
against individual Appellees. It reasoned that LMRA § 301
exempts union agents from claims of any nature related to the
CBA and the collective bargaining process.2 Atkinson v. Sin-
clair Refining Co., 370 U.S. 238, 249 (1962). Appellants do
not challenge this portion of the district court’s order. The dis-
trict court held that the other claims save one were preempted
by federal labor laws and dismissed them with prejudice.
Appellants appeal these rulings.
2
LMRA § 301 provides that “Suits for violation of contracts between an
employer and a labor organization representing employees in an industry
affecting commerce . . . may be brought in any district court of the United
States having jurisdiction of the parties[.]” 29 U.S.C. § 185.
ALVAREZ v. MIRELES 5709
The case proceeded to jury trial on Appellants’ remaining
claim that the Union breached its duty of fair representation
by acting in an arbitrary, discriminatory, or bad faith manner
towards the Appellants. The jury returned a verdict for Appel-
lees, finding that they did not breach their duty of fair repre-
sentation.
Appellants allege that their jury trial was prejudiced by the
district court’s grant of a motion in limine to exclude evidence
regarding the 1985 jacket-burning incident. In arguing against
the motion in limine, Appellants’ counsel represented to the
court that a number of Appellants were going to testify that
Mireles thought that this incident, which was shown nation-
ally on television, set back the Union’s effort and was a major
embarrassment to him. Appellants allege that this incident
along with others in the early 1990s motivated Mireles and
the Union to act against them. Unpersuaded by Appellants’
argument, the court granted the motion without prejudice,
prohibiting reference to the jacket burning incident without
further leave of the court, but allowing Appellants to develop
a written offer of proof, outside the presence of the jury, to
include evidence regarding the incident. Appellants did not
make an offer of proof. Appellants timely appealed this evi-
dentiary ruling and the partial summary judgment.
II. Preemption
A ruling on a motion for partial summary judgment merges
with the final judgment and is reviewable on appeal from the
final judgment. Stewart Title & Trust of Phoenix v. Ordean,
528 F.2d 894, 897, fn.1 (9th Cir. 1976). We review an order
granting summary judgment de novo. See Universal Health
Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.
2004). On review, we must determine, viewing the evidence
in the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.
5710 ALVAREZ v. MIRELES
See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922
(9th Cir. 2004).
In Garmon, the Court held that states may not regulate
activity that is actually or arguably protected or prohibited by
the NLRA: “When it is clear or may fairly be assumed that
the activities which a State purports to regulate are protected
by § 7 of the [NLRA], or constitute an unfair labor practice
under § 8, due regard for the federal enactment requires that
state jurisdiction must yield.” Garmon, 359 U.S. at 244. The
Garmon doctrine holds that the national interest in having a
consistent body of labor law requires that the NLRB have
exclusive jurisdiction to regulate activity that could arguably
constitute unfair labor practices.3
The district court explained, however, that in cases where
it cannot be fairly inferred that Congress intended exclusive
jurisdiction to lie with the NLRB, the Garmon doctrine has
not been rigidly applied. Vaca v. Snipes, 386 U.S. 171, 179
(1967). Some causes of action have been found cognizable in
court despite technically implicating NLRA § 7 or § 8, includ-
ing actions under LMRA § 301 for breach of collective bar-
gaining agreements and actions by workers against their
unions for breach of duty. However, both of these recognized
exceptions also implicate separate preemption principles
because they displace state law by federal law.
[1] LMRA § 301 preempts state-law claims that are “sub-
stantially dependent upon analysis of the terms of an agree-
ment made between the parties in a labor contract[.]” Allis-
Chalmers Corp. v. Luack, 471 U.S. 202, 220 (1985). More
3
As the district court observed, among the several types of preemption
commonly found in the labor-law arena, the preemption of state and fed-
eral judicial power to adjudicate claims arguably encompassed by § 7 or
§ 8 of the NLRA is even more “dramatic” than the routine displacement
of state law by federal law through the operation of the Supremacy clause.
Dist. Ct. Op. at 3-4.
ALVAREZ v. MIRELES 5711
specifically, LMRA § 301 will operate to preempt a state-law
claim whose resolution depends upon the meaning of a CBA.
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-
406 (1988) (“If the resolution of a state-law claim depends
upon the meaning of a [CBA], the application of state law . . .
is pre-empted and federal labor-law principles—necessarily
uniform throughout the Nation—must be employed to resolve
the dispute.”) LMRA § 301 extends not only to “claims
founded directly on rights created by collective bargaining
agreements, [but] also [to] claims which are substantially
dependent on analysis of a collective bargaining agreement.”
Hyles v. Mensing, 849 F.2d 1213, 1215-16 (9th Cir. 1988)
(internal citations omitted). This interpretation minimizes the
danger that contract terms “might have different meanings
under state and federal law[,] . . . inevitably exert[ing] a dis-
ruptive influence upon both the negotiation and administra-
tion of collective agreements.” Allis-Chalmers 471 U.S. at
210-11.
[2] The federal statutory duty which unions owe their mem-
bers to represent them fairly also displaces state law that
would impose duties upon unions by virtue of their status as
the workers’ exclusive collective bargaining representative.
State law may “constitute an impermissible obstacle to the
accomplishment of purposes of Congress by regulating con-
duct that federal law has chosen to leave unregulated.” Con-
don v. United Steelworkers of Am., 683 F.2d 590, 594 (1st
Cir. 1982). The doctrine of fair representation serves both as
a limited check on the arbitrary exercise of union power and,
through its limitations, allows unions wide latitude in effec-
tively serving the interests of the bargaining unit. See United
Steel Workers of Am. v. Rawson, 495 U.S. 362, 374 (1990).
To bring a successful state law action, aggrieved workers
must make a showing of additional duties, if they exist,
beyond the normal incidents of the union-employee relation-
ship. Id. Such duties must derive from sources other than the
union’s status as its members’ exclusive collective bargaining
5712 ALVAREZ v. MIRELES
representative, such as an express provision of the collective
bargaining agreement or a collateral contract. Id.
In challenging the district court’s holding that their claims
were preempted by federal labor laws,4 Appellants maintain
that because the Union secretly entered into a side-deal with
Lucky, it infringed substantive rights which gave rise to sev-
eral state law claims. We address each claim in turn.
1) BREACH OF CONTRACT CLAIM
[3] The district court held that the breach of contract claim
was preempted as it implicated the statutory duty of fair repre-
sentation. It concluded that Appellants sought to enforce
duties that Appellees owed as union representatives, namely
the duty to represent them in good faith as their exclusive bar-
gaining representative. Appellants’ complaint was indeed that
Appellees breached their promise, as expressed in the Team-
sters International Constitution and in Union by-laws, to rep-
resent them in good faith as their exclusive bargaining
representative. Appellants made no showing of additional
duties beyond the normal incidents of the union-employee
relationship. United Steel Workers, 495 U.S. at 374. They did
not show, for example, an express provision of the CBA or a
collateral contract that imposed additional enforceable duties
upon the Union. Id. Accordingly, we conclude that the district
4
Appellants also argue, relying on Lingle, 486 US at 405-6, that these
claims are not preempted because they can be resolved without interpreta-
tion of the labor contract itself. They assert that the Union breached its
duty of fair representation because those actions were so far outside the
“wide range of reasonableness” generally afforded to a union’s collective
bargaining performance that they are wholly “arbitrary, discriminatory, or
in bad faith.” Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 67 (1991)
(internal quotation omitted). We do not reach this argument because we
conclude that each one of Appellants’ claims is directly preempted
because each implicates the duty of fair representation or is preempted by
statute. Appellants may not escape federal labor law preemption by “art-
fully” pleading their claims, avoiding references to preemptive federal
law. See Hyles v. Mensing, 849 F.2d 1213, 1215 (9th Cir. 1988).
ALVAREZ v. MIRELES 5713
court did not err in finding that the statutory duty of fair repre-
sentation displaces state law that would impose duties upon
unions by virtue of their status as the workers’ exclusive col-
lective bargaining representative. Id.
2) BREACH OF IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING CLAIM
[4] Appellants claim that Appellees tortiously breached
their contractual obligation to represent them fairly by failing
to exercise their discretion with complete good faith and hon-
esty. The district court concluded that this claim was in effect
a claim for breach of duty of fair representation, as defined in
Vaca. Accordingly, it found that this claim was also pre-
empted. See Vaca, 386 U.S. at 177. We conclude the district
court did not err in finding preemption because we also con-
clude that this state law claim seeks to enforce duties that
Appellees owe in their capacity as union representatives. Ford
Motor Co.; 345 U.S. at 337; United Steel Workers, 495 U.S.
at 374.
3) NEGLIGENT MISREPRESENTATION CLAIM
[5] Appellants claim that Appellees negligently misrepre-
sented to them that Appellants would be able to follow their
work under the terms of the CBA if the Fullerton warehouse
closed down. The district court held that this claim was also
preempted under LMRA § 301 as a claim involving the duty
of fair representation. It reasoned that Appellees’ alleged fail-
ure to accurately describe the provisions of the CBA did not
violate a general duty of care and that if Appellees breached
any duty at all, it was one grounded in their special status as
union representatives. Id. We also so conclude. Because
Appellants failed to show a separate, independent duty upon
which to base this claim, we conclude that the district court
did not err in its finding of preemption.
5714 ALVAREZ v. MIRELES
4) FRAUD AND DECEIT CLAIM
Appellants’ fraud and deceit cause of action stems from the
same facts as their negligent misrepresentation claim and adds
the charge that the erroneous representations were knowingly
made with an intent to deceive. The district court concluded
that this fraud and deceit claim was preempted by LMRA
§ 301. It reasoned that in order to assess the truthfulness of
the Appellees’ alleged representations concerning the content
of the CBA, the court would have to interpret provisions of
the CBA itself. Appellants argue that LMRA § 301 preemp-
tion should not apply to this or any of their state law claims
because those claims do not depend on the meaning of the
CBA, but rather depend on whether Appellees engaged in
wrongdoing with respect to the negotiation and ratification of
the CBA.
[6] Not every dispute concerning a provision of a collective
bargaining agreement is preempted by LMRA § 301. Allis-
Chalmers, 471 U.S. at 211. Preemption analysis should take
place on a case by case basis. Lingle, 486 U.S. at 405-406. In
this case, however, we conclude that resolution of Appellants’
claim depends upon the meaning of the CBA because the cen-
tral factual allegation relates to whether Appellees represented
falsely the CBA itself, regardless of the negotiation or ratifi-
cation process. Accordingly, we conclude the district court
did not err in its finding of preemption. Atkinson, 370 U.S. at
249. We do not reach the question of whether this claim
would also be preempted by the duty of fair representation.
5) INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS CLAIM
Appellants’ intentional infliction of emotional distress
claim asserts that Appellees’ alleged betrayal constituted
extreme and outrageous conduct calculated to cause severe
emotional harm. The district court found that this conduct was
inseparable from Appellees’ performance of their role as col-
ALVAREZ v. MIRELES 5715
lective bargaining representatives. The district court noted
that the duty of fair representation “occupies the field” of reg-
ulation affecting how a union must relate to its members in
the process of carrying out its representational functions. It
reasoned that a great risk exists that a federal court’s grant of
relief under a state-law tort claim designed to enforce minimal
standards of decency would regulate the manner in which a
union interacts with its members in the course of performing
its duties as collective bargaining representative in a way
“that federal law has chosen to leave unregulated.” Condon,
683 F.2d at 594 (citing Teamsters v. Morton, 377 U.S. 252,
261 (1964)).
[7] We also conclude that Appellants’ intentional infliction
of emotional distress claim is inextricably linked to Appel-
lee’s performance of duties owed in their capacity as union
representatives. Because the duty of fair representation occu-
pies the field of regulation of union-member relations when
a union carries out its representational functions, we conclude
that the district court did not err in its holding of preemption.
6) RICO CLAIMS
[8] Appellants sought damages based on alleged violations
of 18 U.S.C. §§ 1341 and 1342, for mail and wire fraud, and
a conspiracy to commit the relevant predicate acts. The dis-
trict court held that although these civil RICO causes of action
arise under federal law and are not displaced by federal labor
law, the claims were nonetheless preempted under Garmon.
359 U.S. at 244-5. Under Garmon, state and federal courts are
deprived of the power to grant relief against conduct that is
arguably prohibited by NLRA § 7 or § 8 provisions governing
unfair labor practices, unless redress is sought under one of its
recognized exceptions (e.g. LMRA § 301 or the duty of fair
representation). The district court concluded that because
Appellees’ allegedly fraudulent conduct is arguably an unfair
labor practice—bargaining in bad faith—that a civil RICO
action was an improper vehicle for seeking redress.
5716 ALVAREZ v. MIRELES
Appellants argue that Garmon preemption should not apply
to this or any of the state law claims for the same reason they
argue that LMRA § 301 preemption should not apply:
because those claims do not depend on the meaning of the
CBA. Appellants maintain that their state law claims do not
concern conduct arguably subject to NLRA § 7 or § 8 provi-
sions. We conclude, however, that Appellants’ RICO claims
rest on their allegation that the Union had bargained in bad
faith with Lucky. Because bargaining in bad faith is an unfair
labor practice prohibited by NLRA §§ 7 and 8, and a consis-
tent body of labor law requires that the NLRB has exclusive
jurisdiction to regulate activity that could arguably constitute
unfair labor practices, we defer to the exclusive competence
of the NLRB to adjudicate the matter. Garmon, 359 U.S. at
244-45. Accordingly, the district court did not err in finding
that Appellants’ civil RICO claims were preempted.
III. Evidentiary Ruling
[9] Appellants challenge the district court’s exclusion of
certain evidence regarding an incident involving the burning
of union jackets. After the court granted the motion to exclude
the evidence without prejudice, it made clear the ruling was
tentative and allowed Appellants to make a later request, out-
side the presence of the jury, to include evidence regarding
the incident. The court explained that it would allow Appel-
lants to develop a written offer of proof because it still lacked
specific facts to support a finding that the incident was as sig-
nificant as Appellants claimed. The court added that in the
absence of additional evidence, the incident sounded too
remote and insignificant to allow. Appellants failed to make
the solicited offer of proof. So, while Appellants proffered
evidence in limine, they did not attempt to make an offer of
proof or introduce evidence at trial. The district court did not
have the opportunity to issue a final order.
[10] Rulings on in limine motions are not final appealable
orders under 28 U.S.C. § 1291. See Coursen v. A.H. Robins
ALVAREZ v. MIRELES 5717
Co., Inc., 764 F.2d 1329, 1342 (9th Cir. 1985). Thus, in order
to appeal an issue on which the district court ruled in limine,
a party must first receive a final ruling on the issue. “[W]here
a district court makes a tentative in limine ruling excluding
evidence, the exclusion of that evidence may only be chal-
lenged on appeal if the aggrieved party attempts to offer such
evidence at trial.” Tennison v. Circus Circus Enterprises, Inc.,
244 F.3d 684, 689 (9th Cir. 2001) (quoting Walden v.
Georgia-Pac. Corp., 126 F.3d 506, 518 (3rd Cir. 1997)).
Because Appellants failed to make an offer of proof, they can-
not challenge the exclusion of that evidence on appeal. Id.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052045/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WASHINGTON STATE NURSES
ASSOCIATION,
No. 06-74917
Petitioner,
v. NRLB No.
19-CA-29150
NATIONAL LABOR RELATIONS
OPINION
BOARD,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted
March 10, 2008—Seattle, Washington
Filed May 20, 2008
Before: Betty B. Fletcher, Richard A. Paez, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Paez
5813
WASHINGTON STATE NURSES v. NRLB 5815
COUNSEL
Timothy Sears, Washington State Nurses Association, Seattle,
Washington, for the petitioner.
David A. Seid, National Labor Relations Board, Washington,
D.C., for the respondent.
Michael B. Love, Paine Hamblen LLP, Spokane, Washington,
for the amicus.
OPINION
PAEZ, Circuit Judge:
Petitioner Washington State Nurses Association (“WSNA”)
seeks review of the National Labor Relations Board’s
(“NLRB” or “Board”) decision that Sacred Heart Medical
Center’s (“Sacred Heart”) ban on union buttons bearing the
message “RNs Demand Safe Staffing,” did not constitute an
unfair labor practice in violation of the National Labor Rela-
tions Act (“NLRA” or “Act”).1 This case calls on us to reaf-
1
We granted leave to Sacred Heart to file an amicus curiae brief in sup-
port of the Board’s decision.
5816 WASHINGTON STATE NURSES v. NRLB
firm the cardinal principle of agency review: an agency’s
decision must be supported by substantial evidence in the
record. Because the Board’s decision here was not, we grant
WSNA’s petition and remand to the Board with directions to
reinstate the Administrative Law Judge’s (“ALJ”) Decision
and Order.
I. FACTS
Sacred Heart is an acute care hospital in Spokane, Wash-
ington; WSNA is a union that represents approximately 1200
registered nurses employed there. In the fall of 2003, WSNA
and Sacred Heart began negotiations for a new collective bar-
gaining agreement (“CBA”) to replace the then-existing
agreement, set to expire in January 2004. Negotiations contin-
ued past the agreement’s expiration, well into 2004.
During the CBA negotiations that fall and winter, nurses at
Sacred Heart wore a number of union buttons without inci-
dent. The buttons read: “Together Everyone Achieves More”;
“WSNA SHMC RNs Remember 98”; “Staffing Crisis —
Nursing Shortage — Medical Errors — Real Solutions”; and
“RNs Demand Safe Staffing.” See Sacred Heart Med. Ctr.
and Washington State Nurses Ass’n, ___ N.L.R.B. ___, 347
NLRB No. 48, 2006 WL 1875747, at *1 (June 30, 2006). On
February 27, 2004, Sacred Heart issued a memorandum ban-
ning the nurses from wearing the “RNs Demand Safe Staff-
ing” buttons “in any areas on our campus where they may
encounter patients or family members.” Id. at *2.
The memorandum explained:
We know that staff have worn a variety of buttons
over the years for different purposes, and we have no
objection to most messages. This message, however,
disparages Sacred Heart by giving the impression
that we do not have safe staffing. We cannot permit
the wearing of these buttons, because patients and
WASHINGTON STATE NURSES v. NRLB 5817
family members may fear that the Medical Center is
not able to provide adequate care.
It is difficult for us to understand why nurses would
wear these pins at the risk of upsetting their patients,
particularly since we have come to agreement with
[the Union] at the bargaining table on issues related
to staffing and how staff will be involved when staff-
ing issues arise.
To assure that patients do not become alarmed or
fearful about patient care at Sacred Heart, effective
immediately, it is our expectation that no staff mem-
ber will wear these buttons in any area on our cam-
pus where they may encounter patients or family
members.
Id. at *1-*2.
After the hospital issued the ban, several nurses were told
to remove their buttons; no nurse was disciplined for wearing
the button. Id. at *2.
On March 2, 2004, WSNA filed an unfair labor practice
charge with the NLRB. An ALJ conducted an evidentiary
hearing, and on March 24, 2005, issued a decision concluding
that Sacred Heart engaged in an unfair labor practice under
Section 8(a)(1) by “promulgating, maintaining, and enforc-
ing” the button prohibition. Id. at *13. In a June 30, 2006
decision and order, a divided three-member panel of the
Board (with member Liebman dissenting) reversed, finding
that although the button prohibition was presumptively
invalid because it extended beyond immediate patient care
areas, it was justified by “special circumstances” because
Sacred Heart had demonstrated that the button’s message
would disturb patients. Id. at *1. On October 10, 2006,
WSNA timely filed a petition for review of the Board’s deci-
sion and order.
5818 WASHINGTON STATE NURSES v. NRLB
II. ANALYSIS
A. Standard of Review
We may overturn the Board’s findings of fact only when
they are not supported by substantial evidence in the record,
or the Board has not correctly applied the law. Cal. Pac. Med.
Ctr. v. NLRB, 87 F.3d 304, 307 (9th Cir. 1996). “ ‘[T]he sub-
stantial evidence test requires a case-by-case analysis and a
review of the whole record,’ and requires a reviewing court
to ‘take into account whatever in the record fairly detracts’
from the Board’s conclusions.” Healthcare Employees Union
v. NLRB, 463 F.3d 909, 918 (9th Cir. 2006) (internal citations
omitted). Findings that are not supported by “substantial evi-
dence on the record considered as a whole,” must be set aside.
NLRB v. Baptist Hosp., 442 U.S. 773, 782 (1979) (quoting 29
U.S.C. § 160(e)). We defer to the Board’s interpretation of the
NLRA where that interpretation is “reasonably defensible.”
Cal. Pac. Med. Ctr., 87 F.3d at 307.
B. Unfair Labor Practice
[1] Section 8(a)(1) of the National Labor Relations Act
makes it “an unfair labor practice for an employer . . . to inter-
fere with, restrain, or coerce employees in the exercise of the
rights guaranteed in [Section 7 of the Act].” 29 U.S.C.
§ 158(a)(1). Section 7, in turn, provides that employees have
“the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activ-
ities for the purpose of collective bargaining or other mutual
aid or protection.” 29 U.S.C. § 157.
[2] The Board has long recognized that under Section 7,
union members have a protected right to wear union insignia
in the workplace. London Mem’l Hosp., 238 N.L.R.B. 704,
708 (1978); see also Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945); Pay’n Save Corp. v. NLRB, 641 F.2d 697,
WASHINGTON STATE NURSES v. NRLB 5819
700 (9th Cir. 1981). In the healthcare context, restrictions on
the wearing of union insignia in “immediate patient care”
areas are presumptively valid; by contrast, restrictions on
union insignia in other areas of a hospital are presumptively
invalid. Casa San Miguel, 320 N.L.R.B. 534, 540 (1995);
Mesa Vista Hosp., 280 N.L.R.B. 298, 299 (1986). An
employer may rebut the presumption of invalidity by showing
that “special circumstances” justify the restriction. Special cir-
cumstances exist where the restriction is “necessary to avoid
disruption of health-care operations or disturbance of
patients.” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 507
(1978); see also NLRB v. Los Angeles New Hosp., 640 F.2d
1017, 1020 (9th Cir. 1981). The employer bears the burden of
proving an adverse impact on patient care. Baptist Hosp., 442
U.S. at 781; Mesa Vista Hosp., 280 N.L.R.B. at 298-99.
[3] The Board’s determination that special circumstances
justified Sacred Heart’s “RNs Demand Safe Staffing” button
ban is not supported by substantial evidence in the record. In
fact, it is not supported by any evidence. The record reveals
that the buttons were worn for several months without inci-
dent. Sacred Heart claims that the button’s message would
disturb patients. That assertion is speculative at best. More-
over, Sacred Heart’s speculative concern is contradicted by
actual evidence in the record that there was never any distur-
bance involving the button. There is no evidence in the record
that supports the Board’s special circumstances finding.
Sacred Heart hangs its hat on an “offer of proof” that it
presented during the hearing:
[I]f called as a witness, the vice president of human
resources, Diana Eickhoff would testify that hospital
administration was approached by certain nurse
managers expressing their concern as to the impact
of the demand safe staffing button on patients and
their families; and thereby inquired as to how to
respond.
5820 WASHINGTON STATE NURSES v. NRLB
The ALJ accepted the offer of proof, contingent on the par-
ties’ rights to later brief the relevance and weight that should
be accorded to it. On the basis of the offer of proof, the ALJ
made the following finding: “The parties also agreed that
Respondent’s human resources personnel were approached by
certain nurse managers expressing their concern as to the
impact of the ‘Safe Staffing’ button on patients and their fam-
ilies.” Sacred Heart Med. Ctr., 2006 WL 1875747, at *11.2
The ALJ further found that the offer of proof did not amount
to evidence that “any of Respondent’s patients were actually
disturbed.” Id. at *12.
In reversing the ALJ’s decision, the Board explained that
an employer need not show actual disturbance of patients
before prohibiting union activities. Id. at *3. The Board con-
cluded that the button’s “inherently disturb[ing]” message
was enough to support a special circumstances finding. The
Board also pointed to the offer of proof, establishing that
nurse supervisors “expressed concern over the impact the but-
ton may have on patients.” Id.
The Board’s approach was contrary to its established prece-
dent, to our sister circuit’s precedent, and to the basic adjudi-
catory principle that conjecture is no substitute for evidence.
Mt. Clemens General Hospital v. NLRB, 328 F.3d 837 (6th
Cir. 2003), is on point and persuasive. In that case, the nurses
union and the Hospital were engaged in a dispute over “staff-
ing levels at the Hospital. The RN’s [sic] assert[ed] that not
enough full-time nurses [were] hired which force[d] incum-
bent staff to work inordinate amounts of forced overtime.”
Mt. Clemens Gen. Hosp., 335 N.L.R.B. 48, 49 (2001). The
union distributed buttons reading “FOT” with a line drawn
2
The ALJ may have overstated the parties’ positions, in that the parties
did not stipulate to the factual basis of the offer of proof. Neither party,
however, has disputed the ALJ’s characterization of that evidence before
the Board or this court.
WASHINGTON STATE NURSES v. NRLB 5821
through the letters, which was meant as a “silent protest of ‘no
forced overtime.’ ” Id. The Hospital ordered the nurses not to
wear these buttons anywhere in the Hospital, including non-
patient care areas. Mt. Clemens Gen. Hosp., 328 F.3d at 847.
The Hospital argued that special circumstances justified the
ban, because the buttons would lead patients to “be concerned
about the quality of care at the Hospital.” Id.
[4] Both the Board and the Sixth Circuit rejected the Hospi-
tal’s argument because “[t]he Hospital’s efforts to justify [the]
ban . . . depend[ed] primarily on speculation about the possi-
ble effect of the buttons.” Id. To meet its burden, the Hospital
was required to “produc[e] evidence pertaining to each non-
patient care area affected by the [ban]” that established “either
that the buttons cause problems or that they were more likely
to cause problems than any other Union buttons worn by RNs
at the Hospital.” Id. According to the Sixth Circuit, the testi-
mony of two doctors and an administrator that the buttons
might cause concern among patients did not constitute sub-
stantial evidence of special circumstances justifying a
Hospital-wide ban on the buttons.3
3
In its opinion on review, the Board methodically listed the types of evi-
dence that could have established special circumstances—all missing from
the record in Mt. Clemens, as well as from the record in this case:
[The testifying administrator] did not know of any complaints
from patients or their families that the wearing of the FOT button
was disruptive or caused a dialogue to take place with the RN’s
[sic]. Moreover, [he] admitted that no hospital administrator
made an official report that the wearing of the FOT button caused
any disruption or interfered with patient care or safety . . . .
[Another administrator] admitted that the wearing of the FOT
button did not cause a work stoppage or sit-down strike and she
did not have any evidence that the RN’s [sic] discussed the FOT
button with patients. Likewise, she acknowledged that the
Respondent did not conduct a survey or make any inquiries of
patients or their families that the wearing of the FOT button inter-
fered with patient care or safety.
Mt. Clemens Gen. Hosp., 335 N.L.R.B. at 50-51
5822 WASHINGTON STATE NURSES v. NRLB
The Board’s attempt to distinguish Mt. Clemens from the
instant case is unavailing. In its decision, the Board explained
that the “RNs Demand Safe Staffing” button conveys a drasti-
cally different message than the button in Mt. Clemens. In
fact, the messages conveyed by the buttons are almost
identical—they advocate for adequate staffing levels. We
agree with dissenting member Liebman’s observation that
“[w]hether a button protests ‘forced overtime’ or demands
‘safe staffing,’ both messages obviously relate to the impact
of inadequate staffing levels on the hours RN’s [sic] are
required to work and the conditions they labor under.” Sacred
Heart Med. Ctr., 2006 WL 1875747, at *8 (Liebman, dissent-
ing) (“Anyone viewing the ‘RNs Demand Safe Staffing’ but-
ton, which bears the union’s insignia, would likely identify it
for what it really is: a garden-variety union button, with a slo-
gan related to staffing concerns, worn by RNs during the
course of labor negotiations with management over the terms
and conditions of their employment.”). Consistent with this
view, both the courts and the Board have long recognized that
nurses’ working conditions are directly related to patient care
and safety. Indeed, in Beth Israel, the seminal healthcare-
sector labor case, the Supreme Court focused its analysis of
the National Labor Relations Act in hospital settings on the
close correlation between hospital working conditions and
patient safety. Beth Israel Hosp., 437 U.S. at 497-98
(“Congress determined that the extension of organizational
and collective-bargaining rights would ameliorate [poor
healthcare-industry working] conditions and elevate the stan-
dard of patient care.”); see also Misericordia Hosp. Med. Ctr.
v. NLRB, 623 F.2d 808, 813 (2d Cir. 1980) (noting the rela-
tionship between hospital staffing levels, nurses’ working
conditions, and patient care); Waters of Orchard Park, 341
N.L.R.B. 642, 644 (2004) (acknowledging that “nurses’
concerns—staffing levels and the number of patients to be
cared for—[are] directly related to . . . nurses’ working condi-
tions”).
Mt. Clemens simply reaffirms the uncontroversial principle
that special circumstances justifying a restriction on union
WASHINGTON STATE NURSES v. NRLB 5823
insignia must be established by substantial evidence in the
record. Similarly, in St. Luke’s Hospital, 314 N.L.R.B. 434
(1994), the Board rejected the ALJ’s special circumstances
finding because it was based on mere conjecture: “Although
the judge found that some patients might be upset by the [but-
ton’s message], the record is devoid of any evidence to sup-
port this supposition . . . . [T]here is no evidence that any
patient complained of, or even noticed, the stickers and but-
tons at issue in this case.” Id. at 435; see also Mesa Vista
Hosp., 280 N.L.R.B. at 299 (holding that Respondent must
introduce evidence demonstrating an adverse impact); London
Mem’l Hosp., 238 N.L.R.B. at 708 n.11 (“Respondent con-
ceded that there had been no complaints by patients concern-
ing Erickson’s wearing of the button on September 24 and
there is no evidence that any patient was affected adversely
by, or had even taken note of, her button.”); cf. Beth Israel
Hosp., 437 U.S. at 502 (“Especially telling is the fact that . . .
petitioner, who logically is in the best position to offer evi-
dence on . . . point, was unable to introduce any evidence to
show that solicitation or distribution was or would be harm-
ful.”) (emphasis in original).
NLRB v. Baptist Hospital, 442 U.S. 773 (1979), upon
which the Board relies, is not to the contrary. At issue in Bap-
tist Hospital was a rule adopted by the hospital, in response
to a union campaign to organize its employees, that prohibited
“solicitation by employees at all times in any area of the Hos-
pital which is accessible to or utilized by the public.” Id. at
775 (internal quotations marks omitted). The Hospital
attempted to justify this broad prohibition with testimony that
the patients’ recovery is more successful in a tranquil environ-
ment, and that solicitation disturbed that tranquility. Id. at
783. Applying its set of presumptions—that restrictions on
union activities in immediate patient care areas were pre-
sumptively valid, whereas restrictions outside those areas
were presumptively invalid—the Board issued an order pro-
hibiting the Hospital from applying the solicitation ban in
areas other than immediate patient care areas. Id. at 777. The
5824 WASHINGTON STATE NURSES v. NRLB
Sixth Circuit refused to enforce the Board’s order, finding that
the Hospital had justified the ban with respect to all areas of
the Hospital accessible to the public. Id.
The Supreme Court concluded that the evidence called for
a resolution in between the Court of Appeals’ and Board’s
decisions. The Court first noted that the Board’s definition of
“immediate patient care areas” was limited to “patients’
rooms, operating rooms, and places where patients receive
treatment, such as x-ray and therapy areas.” Id. at 780 (quot-
ing St. John’s Hosp. & Sch. of Nursing, Inc., 222 N.L.R.B.
1150, 1150 (1976), enf. granted in part and denied in part,
557 F.2d 1368 (10th Cir. 1977)). The Court then went on to
conclude that the extensive testimony presented by the Hospi-
tal established that solicitation in the corridors and sitting
rooms on patients’ floors also might have an adverse effect on
patients’ recovery because “[p]atients in the most critical and
fragile conditions” can often be found in them. Id. at 784.
Substantial evidence therefore justified the Hospital’s ban on
solicitation in these areas. Id. at 785-86. The same could not
be said for “the cafeteria, gift shop, and [first-floor] lobbies,”
however, as the Hospital had failed to present “clear evidence
of the frequency with which patients” visited those areas. Id.
at 786. Special circumstances did not justify the ban on solici-
tation in those areas. See id. at 786-87.
Despite the Court’s careful attention to the factual record,
the Board misreads Baptist Hospital, maintaining that it
stands for the broad proposition that any testimony by a hos-
pital administrator about potential harm to patients and their
family members is entitled to deference and is therefore suffi-
cient to establish special circumstances. Sacred Heart Med.
Ctr., 2006 WL 1875747, at *3 & n.9.4 It stands for no such
4
Although both Sacred Heart and the Board stress potential “unease”
and “disturbance” to family members as justifying the ban, see Sacred
Heart Med. Ctr., 2006 WL 1875747, at *2, *3, the law is clear that the
Board must focus on disturbances to patients, not their relatives, when
assessing whether special circumstances exist. See, e.g., Baptist Hosp.,
442 U.S. at 786-87.
WASHINGTON STATE NURSES v. NRLB 5825
principle. To the contrary, the basis for the Court’s determina-
tion in Baptist Hospital was the “extensive evidence,” offered
“through the testimony of doctors and a hospital administra-
tor.” Baptist Hosp., 442 U.S. at 782. Their testimony tied the
need for tranquility to past experiences with patients and
established where patient care occurred. Id. at 783-84, 786.
To the extent that the Court afforded any deference to the
administrator and doctors, it was with respect to their opinion
that the Hospital needed to maintain a tranquil environment.
Significantly, the Court concluded that this testimony was
insufficient to establish that patients would be disturbed in
several areas of the Hospital, including the cafeteria, gift
shop, and first-floor lobbies.
Notably, the witnesses in Baptist Hospital expressly con-
nected the solicitation prohibition to patient well-being. See,
e.g., id. at 783. By contrast, the limited offer of proof in this
case set forth no basis for the Hospital’s concern. Sacred
Heart’s speculation about the potential effects of the safe
staffing button is not, for example, substantiated by testimony
about how similar buttons caused patient disturbances in the
past. To the contrary, the record shows that the arguably more
controversial “Staffing Crisis—Medical Errors” button, worn
for months, caused no ill effects. See Mt. Clemens Gen.
Hosp., 328 F.3d at 848 (noting that there was no evidence that
more controversial buttons had caused disturbances); cf. Beth
Israel Hosp., 437 U.S. at 502 (noting that the fact that hospital
had previously allowed union solicitation “apparently without
untoward effects,” supported the Board’s determination that
solicitation would not disturb patients).
The Board argues that Sacred Heart need not wait for
patient complaints before taking preventative action. But
every case must be judged on its own record. The speculation
as to potential harm in this case is far outweighed by the
record evidence establishing that there was no actual harm or
likelihood of harm. The record reveals that nurses wore both
the “RNs Demand Safe Staffing” button and the “Staffing
5826 WASHINGTON STATE NURSES v. NRLB
Crisis—Medical Errors” button for months without incident.
There were no patient complaints. Indeed, there were not even
any patient questions about the button’s message. Evidence of
what actually occurred is far more telling than unsubstantiated
conjecture about what might occur.
[5] “ ‘[T]he substantial evidence test requires a case-by-
case analysis and a review of the whole record,’ and requires
a reviewing court to ‘take into account whatever in the record
fairly detracts’ from the Board’s conclusions.” Healthcare
Employees Union, 463 F.3d at 918 (internal citations omit-
ted). Examining the record as a whole, substantial evidence
simply does not support the Board’s finding that Sacred Heart
met its burden of establishing special circumstances.
[6] WSNA’s petition for review is GRANTED and the
matter is REMANDED to the National Labor Relations
Board with directions to reinstate the ALJ’s Decision and
Order. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052050/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-30349
Plaintiff-Appellee,
v. D.C. No.
CR-04-00171-WFN
KENNETH ROY DALLMAN,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Submitted April 7, 2006*
Withdrawn From Submission August 29, 2006
Resubmitted April 15, 2008
Seattle, Washington
Filed May 19, 2008
Before: William C. Canby, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)
5747
UNITED STATES v. DALLMAN 5749
COUNSEL
Gordon R. Stoa, Spokane, Washington, for the defendant-
appellant.
Joseph H. Harrington, Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.
5750 UNITED STATES v. DALLMAN
OPINION
GOULD, Circuit Judge:
Kenneth Dallman appeals the 33-month sentence he
received following his convictions for possession and impor-
tation of marijuana and conspiracy to possess marijuana. Dall-
man and two other individuals were arrested by United States
Border Patrol agents after the agents observed the men carry-
ing six large duffle bags along an abandoned logging road just
south of the U.S.-Canada border. The bags contained about
142 pounds of marijuana. Dallman contends that his sentence
is unreasonable because the district court erroneously found
that he was accountable for the aggregate quantity of mari-
juana that the three men carried into the United States and
denied his request for a downward departure based on aber-
rant behavior.1 We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
I
Early in the morning on August 16, 2004, two U.S. Border
Patrol agents patrolled an abandoned logging road that crosses
the U.S.-Canada border near Danville, Washington. At
approximately 4:15 a.m., while the agents walked northward
along the road, they noticed Dallman, Michael Thistlewaite,
and John Souza carrying large bundles and walking south-
ward. After seeing or hearing the agents, Thistlewaite ducked
under a tree on one side of the road, and Dallman and Souza
ran to the opposite side of the road and took cover in the
brush.
The agents arrested Thistlewaite after observing that he was
tangled in two large duffle bags that were tied together so that
1
We address Dallman’s appeal of his convictions in a separately-filed
and unpublished memorandum disposition, and address only his sentenc-
ing issues in this Opinion.
UNITED STATES v. DALLMAN 5751
they could be carried with one bag hanging in front and one
in back. The agents then approached Dallman and Souza who
were lying in the brush with two pairs of duffle bags, both of
which were tied together in the same manner as the bags
found with Thistlewaite.
After arresting Dallman and Souza, the agents searched one
of the duffle bags and found twenty-five individually-
packaged one-pound bags of marijuana. A subsequent search
of the other five duffle bags revealed that they each contained
twenty-five similarly-packaged bags of marijuana. Together,
the six duffle bags contained approximately 142.69 pounds of
marijuana.
An agent at the scene of the arrest looked at the soles of the
suspects’ boots and noticed that they had a different sole pat-
tern than the pattern on the agents’ standard-issue Danner
boots. Agents Harbert and Smith then backtracked the three
sets of boot prints of the suspects from the location of their
arrest to the U.S.-Canada border, across a barbed wire fence,
and 30 yards into Canada.
A jury convicted Dallman of possession with intent to dis-
tribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2; conspiracy to possess with intent to distribute
marijuana in violation of 21 U.S.C. § 846; and importation of
marijuana in violation of 21 U.S.C. §§ 952, 960(b)(3), and 18
U.S.C. § 2.2
At Dallman’s sentencing hearing, the district court first
determined that Dallman and the other men acted as co-
conspirators to transport marijuana into the United States.
Accordingly, Dallman was accountable for the entire 142.69
2
Thistlewaite pled guilty to conspiracy to possess with intent to distrib-
ute marijuana and importation of marijuana and received a 30-month sen-
tence. Souza pled guilty to conspiracy with intent to distribute marijuana
and received a 41-month sentence.
5752 UNITED STATES v. DALLMAN
pounds of marijuana that the three men collectively carried
across the border, rather than for merely the fifty pounds of
marijuana that he personally carried. The district court then
reduced Dallman’s base offense level by two levels due to his
minor role in the offenses, denied Dallman’s motion for a
two-level adjustment for acceptance of responsibility, and
denied his motion for a downward departure based on aber-
rant behavior. These decisions resulted in a Sentencing
Guidelines range of 33 to 41 months.
The district court next noted that, although the Guidelines
are advisory, “unless there’s some very unusual situation
involved in a case, a sentence that’s within the advisory
guidelines . . . is probably going to be considered to be rea-
sonable.” The district court also considered the sentences
imposed on Dallman’s co-conspirators and noted the need to
deter conduct similar to that for which Dallman was con-
victed. It then imposed a 33-month term of imprisonment.
This appeal followed.
II
In reviewing a sentence, we first determine whether the dis-
trict court correctly calculated the Guidelines range. The
Supreme Court has made clear that “district courts must treat
the Guidelines as the ‘starting point and the initial bench-
mark[.]’ ” Kimbrough v. United States, ___ U.S. ___, 128
S. Ct. 558, 574 (2007); see also Gall v. United States, ___
U.S. ___, 128 S. Ct. 586, 596 (2007); United States v. Can-
trell, 433 F.3d 1269, 1279 (9th Cir. 2006). To make this
assessment, we review the district court’s interpretation of the
Guidelines de novo and review the district court’s application
of the Guidelines to the facts of the case for abuse of discre-
tion. Cantrell, 433 F.3d at 1279. We review factual findings,
including a determination of the quantity of drugs involved in
an offense, for clear error. United States v. Asagba, 77 F.3d
324, 325 (9th Cir. 1996). If the district court correctly calcu-
UNITED STATES v. DALLMAN 5753
lated the Guidelines range, we then review the sentence for
reasonableness. Cantrell, 433 F.3d at 1280.
III
[1] Dallman contends that the district court erred in calcu-
lating the Guidelines range because the court incorrectly
found that he was accountable for the aggregate amount of
marijuana carried by all three men. The base offense level
under the Guidelines for a defendant convicted of drug traf-
ficking depends on the quantity of drugs involved in the
offense. U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(a)(3)
(2005). For a defendant convicted of a jointly undertaken drug
offense, this quantity may include “all reasonably foreseeable
quantities of [drugs] that were within the scope of the criminal
activity that he jointly undertook.” U.S.S.G. § 1B1.3 cmt. n.2;
see United States v. Becerra, 992 F.2d 960, 966 (9th Cir.
1993). The scope of the jointly undertaken criminal activity
“may depend on whether, in the particular circumstances, the
nature of the offense is more appropriately viewed as one
jointly undertaken criminal activity or as a number of separate
criminal activities.” See U.S.S.G. § 1B1.3 cmt. n.2(c)(8).
[2] The district court did not err in viewing the conspiracy
in which Dallman, Souza, and Thistlewaite participated as a
joint undertaking rather than as several separate criminal
activities and, as a result, basing its calculation of Dallman’s
Guidelines range on the aggregate amount of marijuana that
the three men carried. Dallman and the others coordinated
their importation effort, likely aided each other in crossing a
barbed wire fence at the border, and together sought to hide
from Border Patrol agents. See U.S.S.G. § 1B1.3 cmt.
n.2(c)(8). United States v. Palafox-Mazon, 198 F.3d 1182,
1187 (9th Cir. 2000) is not to the contrary. There, we affirmed
the district court’s finding that defendants who were led
across the U.S.-Mexico border carrying backpacks of mari-
juana were accountable at sentencing for only the amount of
marijuana each man carried because the record did not show
5754 UNITED STATES v. DALLMAN
that the defendants “intended to, would have, or did in any
way coordinate their importation efforts for their mutual assis-
tance and protection or aid and abet each other’s actions.” Id.
(internal quotations and alterations omitted). By contrast, the
cooperative and coordinated conduct of Dallman, Souza, and
Thistlewaite rendered Dallman responsible, for sentencing
purposes, for the contraband carried by all.
IV
[3] Dallman next asserts that the district court erred when
it denied his motion for a downward departure based on aber-
rant behavior. Before United States v. Booker, 543 U.S. 220
(2005), we held that, absent an allegation of legal error, a dis-
trict court’s discretionary denial of a downward departure
request was unreviewable. See United States v. Morales, 898
F.2d 99, 102 & n.2 (9th Cir. 1990). We based this determina-
tion on our conclusion that in enacting 18 U.S.C. § 3742(a),
“Congress did not intend to allow for appellate review of dis-
cretionary refusals to depart downward from the guidelines.”
Id. at 102; see also United States v. Ruiz, 536 U.S. 622, 627
(2002) (recognizing that 18 U.S.C. § 3742(a)(1) “does not
authorize a defendant to appeal a sentence where the ground
for appeal consists of a claim that the district court abused its
discretion in refusing to depart”).
[4] After Booker, the departure Guidelines are still opera-
tive, and an accurate guideline range calculation may still
properly require consideration and correct application of the
departure Guidelines. Because Booker left intact 18 U.S.C.
§ 3742(a) and did not overrule Ruiz, the district court’s denial
of Dallman’s motion for a downward departure based on
aberrant behavior remains unreviewable. See United States v.
Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (holding that a dis-
trict court’s decision not to grant a defendant’s motion for
downward departure is still unreviewable after Booker);
United States v. Winingear, 422 F.3d 1241, 1245-46 (11th
Cir. 2005) (same); United States v. Puckett, 422 F.3d 340, 345
UNITED STATES v. DALLMAN 5755
(6th Cir. 2005) (same); United States v. Frokjer, 415 F.3d
865, 874-75 (8th Cir. 2005) (same); United States v. Sierra-
Castillo, 405 F.3d 932, 936 (10th Cir. 2005) (same).
V
[5] This is not, however, the end of our review. Rather,
Booker requires that we review the overall reasonableness of
Dallman’s sentence and directs that our review be guided by
the sentencing factors set forth in 18 U.S.C. § 3553(a).3 543
U.S. at 261; see also Gall, 128 S. Ct. at, 594, 596-97 & n.6.
To comply with Booker’s mandate, a district court need not
discuss each factor listed in § 3553(a), but must “set forth
enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita v. United
States, 551 U.S. ___, 127 S. Ct. 2456, 2468 (2007); see also
United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.
2006). “The district court may not presume that the Guide-
lines range is reasonable. Nor should the Guidelines factor be
given more or less weight than any other[;] . . . they are one
factor among the § 3553(a) factors that are to be taken into
account in arriving at an appropriate sentence.” United States
v. Carty, 2008 WL 763770 at *4 (9th Cir. 2008) (en banc)
(citations omitted).
Here, the district court, by its language, clearly presumed
that a sentence within the Guidelines range of 33 to 41
months was reasonable. Dallman did not object to this pre-
3
These factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed; (3) the kinds of sentences available; (4) the kinds of
sentences and the sentencing range established by the Sentencing Guide-
lines; (5) pertinent policy statements issued by the Sentencing Commis-
sion; (6) the need to avoid unwarranted sentencing disparities among
defendants who have similar criminal records and have been found guilty
of similar conduct; and (7) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
5756 UNITED STATES v. DALLMAN
sumption, and thus to warrant relief the district court’s action
must constitute plain error. United States v. Ameline, 409 F.3d
1073, 1078 (9th Cir. 2005) (en banc). “Plain error is ‘(1)
error, (2) that is plain, and (3) that affects substantial rights.’ ”
Id. (quoting United States v. Cotton, 535 U.S. 625, 631
(2002)). If these three conditions are met, we may then exer-
cise our discretion to grant relief if the error “seriously affects
the fairness, integrity, or public reputation of judicial proceed-
ings.” Id. (quoting Cotton, 535 U.S. at 631); see also United
States v. Olano, 507 U.S. 725, 732 (1993).
[6] In light of our precedent in Carty, the district court
plainly erred by presuming that a sentence within the Guide-
lines range is reasonable. See Ameline, 409 F.3d at 1078 (not-
ing that “[a]n error is plain if it is contrary to the law at the
time of appeal” (internal quotation marks and citation omit-
ted)). Dallman did not, however, show a reasonable probabil-
ity that he would have received a different sentence if the
district court had not concluded that a sentence within the
Guidelines range is presumptively reasonable. See id.; see
also Olano, 507 U.S. at 734 (“It is the defendant rather than
the Government who bears the burden of persuasion with
respect to prejudice.”). Because Dallman did not satisfy the
third prong of the plain error test, we conclude that the district
court’s apparent presumption that a sentence within the
Guidelines range was reasonable does not warrant relief under
the circumstances of this case.4
[7] In sentencing Dallman, the district court correctly cal-
culated the Guidelines range of 33 to 41 months and recog-
nized that the Guidelines were advisory. The court then
weighed several of the § 3553(a) factors, observing that
because the offense required planning, Dallman’s behavior
4
Because we conclude that the third prong of the plain error test is not
satisfied, we do not reach the fourth prong — whether the error “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Olano, 507 U.S. at 736 (internal quotation marks and citations omitted).
UNITED STATES v. DALLMAN 5757
was not aberrant; noting that the offense conduct was serious;
and stating that it was considering the need to avoid unwar-
ranted disparities between Dallman’s sentence and the sen-
tences imposed on Thistlewaite and Souza.5 We conclude that
the district court did not commit an error that caused substan-
tial prejudice to Dallman’s rights in concluding that the 33-
month sentence was warranted.
AFFIRMED.
5
Although we do not have jurisdiction to review the district court’s
denial of Dallman’s motion for a downward departure, the district court’s
determination that Dallman’s offense conduct was not aberrant behavior
and did not merit a downward departure could be encompassed within the
district court’s assessment of Dallman’s “history and characteristics” as
set forth in 18 U.S.C. § 3553(a)(1). Booker’s mandate that we review a
sentence for reasonableness permits us to consider the district court’s deci-
sion not to impose a lesser sentence on Dallman due to his alleged aber-
rant behavior, among other relevant factors. See United States v. Chavez-
Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006) (holding that a defendant’s
challenge to the reasonableness of his sentence “necessarily requires that
we take into account the defendant’s asserted grounds for departure when
reviewing the sentence for reasonableness”); see also United States v.
Vaughn, 433 F.3d 917, 924 (7th Cir. 2006) (same). | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052053/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT F. KENNEDY MEDICAL
CENTER,
Plaintiff-Appellant, No. 06-56367
v.
D.C. No.
CV-05-01628-AG
MICHAEL O. LEAVITT, Secretary of
the Department of Health and OPINION
Human Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
April 11, 2008—Pasadena, California
Filed May 19, 2008
Before: Alfred T. Goodwin, Harry Pregerson, and
Dorothy W. Nelson, Circuit Judges.
Opinion by Judge Goodwin
5735
ROBERT F. KENNEDY MEDICAL v. LEAVITT 5737
COUNSEL
Patric Hooper, Hooper, Lundy & Bookman, Los Angeles,
California, for the plaintiff-appellant.
Michael S. Raab, Joel McElvain, U.S. Department of Justice,
Washington, D.C., for the defendant-appellee.
OPINION
GOODWIN, Circuit Judge:
Robert F. Kennedy Medical Center (“RFK”) appeals the
district court’s summary judgment, which affirmed the denial
of RFK’s Medicare reimbursement request by the Secretary of
Health and Human Services (“Secretary”). RFK contends that
the Secretary must reimburse it for depreciation losses result-
ing from its disposal of assets through a statutory merger. The
district court held that RFK is not eligible for reimbursement
because this merger did not qualify as a “bona fide sale”
under 42 C.F.R. § 413.134(f). We agree, and affirm the judg-
ment.
I
Title XVIII of the Social Security Act establishes Medi-
care, a federally funded health insurance program for the
5738 ROBERT F. KENNEDY MEDICAL v. LEAVITT
elderly and disabled. 42 U.S.C. §§ 1395 et seq. The Centers
for Medicare and Medicaid Services (“CMS”), formerly cal-
led the Health Care Financing Administration (“HCFA”),
administers the Medicare program on behalf of the Secretary.
Providers of Medicare services are eligible for reimburse-
ment of “the reasonable cost of such services.” Id.
§ 1395f(b)(1). The statute defines “reasonable cost” as “the
cost actually incurred” by providers. Id. § 1395x(v)(1)(A).
Under regulations promulgated by the Secretary, providers
may claim reimbursement for “depreciation on buildings and
equipment used in the provision of patient care.” 42 C.F.R.
§ 413.134(a). The depreciation reimbursement amount is cal-
culated by taking the “cost incurred by the present owner in
acquiring the asset,” id. § 413.134(b)(1), and prorating it
“over the estimated useful life of the asset,” usually using the
“straight-line method” of depreciation. Id. § 413.134(a)(2)-
(3). Medicare reimburses providers for the percentage of
depreciation attributable to treatment of Medicare patients.
Depreciation only approximates an asset’s decrease in
value. To ensure that Medicare providers are reimbursed for
actual costs, 42 C.F.R. § 413.134(f) requires an adjustment
when “gains” or “losses” result from certain disposals of
depreciable assets: “If disposal of a depreciable asset . . .
results in a gain or loss, an adjustment is necessary in the pro-
vider’s allowable cost. . . . The treatment of the gain or loss
depends upon the manner of disposition of the asset, as speci-
fied in paragraphs (f)(2) through (6) of this section.”
The only disposition that is relevant in this case is (f)(2),
which governs gains and losses resulting from a “bona fide
sale” of depreciable assets. See id. § 413.134(f)(2). When
Medicare providers dispose of assets in a “bona fide sale” and
receive a “lump sum sale price,” the regulations require them
to “allocat[e] the lump sum sales price among all the assets
sold, in accordance with the fair market value of each asset
. . . .” Id. § 413.134(f)(2)(iv). If providers receive consider-
ROBERT F. KENNEDY MEDICAL v. LEAVITT 5739
ation that is less than the net book value of the depreciable
asset, Medicare reimburses the provider for Medicare’s share
of the “loss.” See id. § 413.134(f); Via Christi Reg’l Med.
Ctr., Inc. v. Leavitt, 509 F.3d 1259, 1262 (10th Cir. 2007). If
the consideration exceeds the asset’s net book value, the pro-
vider must reimburse Medicare for Medicare’s share of the
“gain.” See 42 C.F.R. § 413.134(f); Via Christi Reg’l Med.
Ctr., 509 F.3d at 1262.
Regulations also address the effect of a statutory merger
involving a Medicare provider. See 42 C.F.R. § 413.134(k)(2).1
First, a gain or loss resulting from disposal of depreciable
assets is not allowed when the parties to a statutory merger
are “related.” Id. § 413.134(k)(2)(i)-(ii); see also id.
§ 413.17(b)(1) (defining “related”). Second, § 413.134(k)
(2)(i) states that merged providers are “subject to the provi-
sions of paragraphs (d)(3) and (f) of this section concerning
recovery of accelerated depreciation and the realization of
gains and losses.” Thus, the regulation on statutory mergers
incorporates 42 C.F.R. § 413.134(f), which specifies the cir-
cumstances in which gains or losses are allowable following
a disposal of depreciable assets.
The Secretary interprets these regulations as allowing an
adjustment for gains or losses resulting from a statutory
merger only if the provider’s depreciable assets were trans-
ferred through one of the categories of disposal listed in
§ 413.134(f). See Principles of Reimbursement for Provider
Costs and for Services by Hospital-Based Physicians,
44 Fed. Reg. 6912, 6913 (Feb. 5, 1979); Program Memoran-
dum A-00-76, at 3 (Oct. 19, 2000), available at http://
www.cms.hhs.gov/transmittals/downloads/A0076.pdf. Under
the Secretary’s interpretation, Medicare will not recognize a
gain or loss on a disposal of depreciable assets through a stat-
1
At the time of the statutory merger in this case, 42 C.F.R. § 413.134(k)
was codified at 42 C.F.R. § 413.134(l). The provision was originally codi-
fied at 42 C.F.R. § 405.415(l).
5740 ROBERT F. KENNEDY MEDICAL v. LEAVITT
utory merger unless the merger qualifies as a “bona fide sale”
under § 413.134(f)(2). See Program Memorandum A-00-76,
at 3.
The Secretary also has interpreted the meaning of the term
“bona fide sale.” In 1996, the HCFA revised the Medicare
Provider Reimbursement Manual to state that “[a] bona fide
sale contemplates an arm’s length transaction between a will-
ing and well informed buyer and seller, neither being under
coercion, for reasonable consideration.” Provider Reimburse-
ment Manual § 104.24; see also Via Christi Reg’l Med. Ctr.,
509 F.3d at 1267. In 2000, the HCFA stated that “in evaluat-
ing whether a bona fide sale has occurred in the context of a
merger or consolidation between or among non-profit entities,
a comparison of the sales price with the fair market value of
the assets acquired is a required aspect of such analysis.” Pro-
gram Memorandum A-00-76, at 3. In the context of a statu-
tory merger between Medicare providers, “a large disparity
between the sales price (consideration) and the fair market
value of the assets sold indicates the lack of a bona fide sale.”
Id.
II
Prior to the statutory merger at issue in this case, RFK and
St. Francis Medical Center (“St. Francis”) operated separate
hospitals in California. Catholic Healthcare West (“CHW”)
was the sole corporate member of St. Francis. All entities
were non-profit public benefit corporations. RFK provided
hospital services to Medicare patients under a contract with
the Secretary.
In January 1996, RFK began negotiating with CHW
regarding a potential merger with St. Francis. RFK and CHW
both were represented by their own counsel and negotiating
teams. The negotiations included discussion on “post-merger
governance and operational issues and the price to be paid for
the non-hospital assets.” The parties agreed that RFK would
ROBERT F. KENNEDY MEDICAL v. LEAVITT 5741
merge into St. Francis, and that RFK would cease to exist.
The statutory merger occurred on May 30, 1996. As the sur-
viving corporation, St. Francis changed its name to Catholic
Healthcare West Southern California (“CHW-SC”).
Under the merger agreement, CHW-SC became the new
corporate owner of RFK’s assets and liabilities. RFK trans-
ferred approximately $29 million in current assets (including
cash and cash equivalent) and approximately $21 million in
fixed assets (including land, buildings and equipment). In
exchange, CHW-SC assumed approximately $30.5 million of
RFK’s net liabilities. Thus, RFK transferred assets with a
value of approximately $50 million in exchange for $30.5
million in “consideration” from CHW-SC.
RFK then filed a terminating cost report with Medicare’s
fiscal intermediary, claiming that the merger resulted in a
reimbursable loss from RFK’s disposal of depreciable assets.
In calculating the effect of the merger, the cost report allo-
cated CHW-SC’s consideration (the assumption of liabilities)
to the current assets transferred by RFK (cash and cash equiv-
alent). After this initial allocation, there was no consideration
left to allocate to the depreciable fixed assets transferred by
RFK, including buildings and equipment. RFK claimed a total
loss on these depreciable assets, and sought reimbursement
for Medicare’s share of the loss.
The fiscal intermediary audited RFK’s cost report and
denied the claim. The intermediary gave three reasons for dis-
allowing the loss. First, the intermediary concluded that 42
C.F.R. § 413.17 barred the claim because RFK and St. Francis
were related parties prior to the merger. Second, the interme-
diary stated that the merger was not a “bona fide sale” under
42 C.F.R. § 413.134(f)(2). Third, the intermediary found that
the merger was a “pooling of interests” under accepted
accounting principles, with no resulting gain or loss.
RFK appealed to the Provider Reimbursement Review
Board (“PRRB”), which reversed the fiscal intermediary’s
5742 ROBERT F. KENNEDY MEDICAL v. LEAVITT
determination. The PRRB found no evidence that the parties
were related prior to the merger. It also concluded that the
merger qualified as a “bona fide sale” because “RFK deter-
mined on its own initiative that it should seek affiliation with
a larger health system” and “RFK requested and considered
[merger] proposals from various interested parties.” The
PRRB rejected the fiscal intermediary’s “pooling of interests”
rationale because “[t]he treatment afforded a transaction for
financial statement and Internal Revenue Service purposes
does not control the treatment required for Medicare pur-
poses.”
The CMS Administrator reversed the PRRB’s decision.
First, the Administrator concluded that RFK was related to
CHW-SC, the surviving entity, and that no reimbursable loss
occurs when assets are transferred in a related-party transac-
tion. Second, the Administrator found that the statutory
merger did not qualify as a “bona fide sale”:
[T]he record shows that the Provider transferred
“current assets” valued at approximately $29 million
and “fixed assets” valued at $21 million in
exchanged [sic] for approximately $30.5 million in
net liabilities. This resulted in assets with a net book
value of $50 million being transferred for a total of
$30.5 million in “consideration.” The Administrator
finds that the large disparity of approximately $20
million, between the asset values and the consider-
ation received, reflects the lack of arm’s length bar-
gaining, and thus the lack of a bona fide sale.
As a result, the Administrator concluded that RFK’s loss did
not qualify for reimbursement under 42 C.F.R. § 413.134(f).
RFK appealed to federal district court, which affirmed the
CMS Administrator’s decision. Under Thomas Jefferson Uni-
versity v. Shalala, 512 U.S. 504 (1994), the district court
deferred to the agency’s interpretation of the Medicare regula-
ROBERT F. KENNEDY MEDICAL v. LEAVITT 5743
tions. The court held that the statutory merger was not a “bona
fide sale” because RFK did not receive fair market value for
its assets. Because the district court concluded that RFK was
not entitled to reimbursement, it did not reach the “related
parties” issue.
This appeal followed.
III
RFK contends that the district court erred by affirming the
final agency decision, which held that RFK could not claim
a “loss” on its disposal of assets because its statutory merger
did not qualify as a “bona fide sale.” RFK argues that the Sec-
retary’s decision was arbitrary, and that the “bona fide sale”
requirement does not apply to disposals of assets in the con-
text of statutory mergers. The Secretary contends that the
“bona fide sale” requirement is consistent with the text and
purposes of Medicare statutes and regulations.
[1] The Administrative Procedure Act requires courts to
“hold unlawful and set aside” agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.” 5 U.S.C. § 706(2)(A). We also must set
aside an agency action that is “unsupported by substantial evi-
dence.” Id. § 706(2)(E). Courts must give “substantial defer-
ence” to the Secretary’s interpretation of Medicare
reimbursement regulations. Thomas Jefferson Univ., 512 U.S.
at 512. Under this standard of review,
the agency’s interpretation must be given controlling
weight unless it is plainly erroneous or inconsistent
with the regulation. In other words, we must defer to
the Secretary’s interpretation unless an alternative
reading is compelled by the regulation’s plain lan-
guage or by other indications of the Secretary’s
intent at the time of the regulation’s promulgation.
5744 ROBERT F. KENNEDY MEDICAL v. LEAVITT
Id. (internal quotation marks and citations omitted). This
“broad deference” is especially warranted because Medicare
regulations are “complex and highly technical” and determi-
nations in this area “necessarily require significant expertise
and entail the exercise of judgment grounded in policy con-
cerns.” Id. (internal quotation marks and citations omitted).
[2] The Secretary’s interpretation that the realization of
gains or losses on a statutory merger requires a “bona fide
sale” is a reasonable construction of the Medicare regulations.
The regulation governing statutory mergers, 42 C.F.R.
§ 413.134(k)(2), incorporates 42 C.F.R. § 413.134(f), which
lists the categories of asset disposal that trigger readjustment
for gains or losses. See 42 U.S.C. § 413.134(k)(2)(i) (stating
that merged providers are “subject to the provisions of para-
graph[ ] . . . (f) of this section concerning . . . the realization
of gains and losses.”). A “bona fide sale” is the only category
listed in § 413.134(f) that arguably applies to a disposal of
assets through statutory merger. See id. § 413.134(f)(2)-(6);
Via Christi Reg’l Med. Ctr., 509 F.3d at 1275. Thus, the Sec-
retary reasonably interpreted these regulations as allowing
gains or losses on the disposal of depreciable assets only
when the statutory merger qualifies as a “bona fide sale.”
[3] The Secretary’s interpretation that a “bona fide sale”
requires “reasonable consideration” and a “comparison of the
sales price with the fair market value of the assets” also is
supported by the text and purpose of the Medicare statutes.
Providers are entitled to reimbursement only for the “cost
actually incurred” in servicing Medicare patients. 42 U.S.C.
§ 1395x(v)(1)(A). As the Secretary noted when promulgating
42 C.F.R. § 413.134(f), “if a gain or loss is realized from [a]
disposition, reimbursement for depreciation must be adjusted
so that Medicare pays the actual cost the provider incurred.”
See Principles of Reimbursement for Provider Costs and for
Services by Hospital-based Physicians, 44 Fed. Reg. 3980
(Jan. 19, 1979) (emphasis added). The Secretary’s require-
ments of “reasonable consideration” and “fair market value”
ROBERT F. KENNEDY MEDICAL v. LEAVITT 5745
ensure that Medicare reimburses actual costs, instead of pro-
viding a windfall to providers.
In a case with similar facts, the Tenth Circuit recently
upheld the Secretary’s interpretation of these Medicare regu-
lations. In Via Christi Regional Medical Center, the court
analyzed the Secretary’s “bona fide sale” requirement in the
context of a consolidation between Medicare providers. See
509 F.3d at 1274-77. The Tenth Circuit held that the Secre-
tary’s interpretation was reasonable, and noted that “[e]ven if
a consolidation or statutory merger is not a ‘sale’ per se, treat-
ing it as a sale pursuant to § 413.134(f)(2) ensures that any
depreciation adjustment will represent economic reality,
rather than mere ‘paper losses.’ ” Id. at 1275. The Tenth Cir-
cuit’s reasoning is persuasive.
RFK contends that the “bona fide sale” requirement for
statutory mergers contradicts the Secretary’s intent at the time
of the regulation’s promulgation. RFK argues that a document
known as the “Wolkstein Letter”2 states that statutory mergers
are to be treated as if they are bona fide sales. This argument
misses the point that the Wolkstein Letter merely clarifies
that, unlike purchase of capital stock, statutory mergers effect
a change in asset ownership. The letter does not address
whether statutory mergers also must meet the “bona fide sale”
requirement to qualify for gains or losses under 42 C.F.R.
§ 413.134(f). Thus, the Wolkstein Letter does not contradict
the Secretary’s interpretation, which is reasonable and entitled
to deference. See Thomas Jefferson Univ., 512 U.S. at 512.
[4] In this case, substantial evidence supports the Secre-
tary’s determination that RFK’s statutory merger was not a
“bona fide sale.” First, the transaction lacked “reasonable con-
sideration.” See Via Christi Reg’l Med. Ctr., 509 F.3d at 1267.
2
The letter is dated January 24, 1974, and was written by Irwin Wolk-
stein, Deputy Director for Program Policy at the Department of Health,
Education and Welfare’s Bureau of Health Insurance.
5746 ROBERT F. KENNEDY MEDICAL v. LEAVITT
The CMS Administrator noted that RFK transferred approxi-
mately $50 million in assets for $30.5 million in “consider-
ation” from CHW-SC. As the Secretary argues, CHW-SC
paid almost nothing for RFK’s hospital buildings and equip-
ment despite their appraised value of approximately $12 mil-
lion.
[5] Second, the Administrator concluded that RFK did not
attempt to obtain “fair market value” for its assets. See id. at
1276 (“In the ‘bona fide sale’ context, the reasonable consid-
eration inquiry involves determining whether the provider
received fair market value for its assets.”). RFK gave several
reasons for seeking a merger, none of which involved the
receipt of fair market value. Similarly, none of RFK’s criteria
for selecting a merger partner involved receiving a fair price
for its assets.
[6] The district court correctly concluded that substantial
evidence supports the Secretary’s determination. RFK is ineli-
gible for reimbursement under 42 C.F.R. § 413.134(f) because
its statutory merger with CHW-SC does not qualify as a
“bona fide sale.” Because this issue is dispositive in this case,
we do not reach the “related parties” issue.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3052057/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIA DUARTE, No. 06-56808
Plaintiff-Appellant,
v. D.C. No.
CV-06-00158-TJW
HECTOR BARDALES,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued November 6, 2007
Submitted January 11, 2008
Pasadena, California
Filed May 20, 2008
Before: Myron H. Bright,* Harry Pregerson, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bright;
Dissent by Judge Bea
*The Honorable Myron H. Bright, Senior Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
5785
5788 DUARTE v. BARDALES
COUNSEL
Beverly Baker-Kelly, Oakland, California, and Howard
Moore, Jr., Berkeley, California, for the appellant.
Victor Mordey, Chula Vista, California, for the appellee.
OPINION
BRIGHT, Circuit Judge:
On January 23, 2006, Emilia Duarte (“Duarte”) filed in
United States District Court for the Southern District of Cali-
fornia a petition for the return of her children pursuant to the
Hague Convention on the Civil Aspects of International Child
Abduction (“Hague Convention”), as implemented by the
International Child Abduction Remedies Act, 42 U.S.C.
§§ 11601-11610 (“ICARA”). After Duarte failed to appear
before the court for a scheduled hearing, the district court
entered judgment denying Duarte’s Hague Petition. Duarte
DUARTE v. BARDALES 5789
timely filed a motion to vacate the judgment under Fed. R.
Civ. P. 59(e) (“Rule 59(e)”), which the district court denied.
Duarte now appeals the district court’s order denying her
motion to set aside judgment. We reverse and remand, ruling
that the district court abused its discretion by denying
Duarte’s Rule 59(e) motion.1
Because the district court must decide the merits of
Duarte’s petition on remand, we also address whether equita-
ble tolling of time requirements under the Hague Convention
is available to Duarte. We hold that it is available and there-
fore the district court may consider whether to apply equitable
tolling to Duarte’s Hague Petition.
I.
A. Factual Background
Emilia Duarte and Hector Bardales (“Bardales”) entered
the United States from Mexico in 1990. Together they have
four children—age 17, age 16, age 11, and age 9.2 Duarte and
Bardales never married. In January 2000, they separated and
Duarte returned to Mexico with their four children. In 2002,
the two oldest children visited Bardales in California. After
expressing that they did not want to live with Duarte, they
established residency with Bardales in San Diego, California.
The two youngest children remained with Duarte in Mexico.
1
The primary issue in this case is whether the district court properly
denied Duarte’s Rule 59(e) motion to vacate judgment. Footnotes 1 and
2 in Judge Bea’s dissent refer to issues that are not before us. The district
court made no findings on the matters referred to in those extraneous
footnotes—matters that might prove to be harmful to the children.
2
The birthdays of the children from oldest to youngest are: October 16,
1990, October 25, 1991, October 26, 1996, and June 6, 1998. Because the
Hague Convention does not apply once a child reaches the age of sixteen,
the two older siblings were dropped from the case in December 2006. See
Hague Convention art. 4.
5790 DUARTE v. BARDALES
On July 8, 2003, Duarte brought the two youngest children
to visit with Bardales in Tijuana, Mexico. While there, Bar-
dales removed them from Mexico and brought them to Cali-
fornia to live with him. It is undisputed that Bardales took the
two youngest children without Duarte’s knowledge or permis-
sion. Bardales then immediately filed petitions in California
Superior Court for emergency child custody and to establish
paternity. The state court awarded Bardales sole custody until
Duarte appeared in state court.
In September 2003, Duarte filed a Hague Petition with the
Central Authority in Mexico, which was transmitted to the
Central Authority in the United States a month later.3 In
December 2003, Duarte’s petition was turned over to the San
Diego District Attorney’s Office and in August 2004 was
assigned to a Deputy District Attorney. For reasons unknown,
Duarte’s petition was not filed in California state court until
nearly a year later in April 2005.
Duarte’s state Hague Petition was consolidated with Bar-
dales’s paternity petition, and the case was set for a hearing
in California Superior Court on April 25, 2005. Duarte
appeared at that hearing without counsel. The court granted a
continuance to permit Duarte to retain counsel. Duarte, how-
ever, failed to show up at two subsequent court dates and as
a result, the court removed Duarte’s petition from the calendar
without prejudice and awarded Bardales sole custody of the
children. Duarte appealed this decision to the California Court
of Appeal.
While her appeal was pending, Duarte filed the present
Hague Petition in federal court.4 The California Court of
3
Article 6 of the Convention requires every “Contracting State [to] des-
ignate a Central Authority to discharge the duties which are imposed by
the Convention upon such authorities.” Hague Convention art. 6.
4
The federal and state courts have concurrent jurisdiction under ICARA.
42 U.S.C. § 11603(a).
DUARTE v. BARDALES 5791
Appeal stayed Duarte’s appeal pending adjudication of her
Hague Petition in federal court.
B. Proceedings Before the Federal District Court
The district court scheduled a hearing on Duarte’s Hague
Petition for September 1, 2006. At the hearing, Duarte’s coun-
sel requested a continuance because Duarte could not enter
the United States. Her counsel explained that two days prior
to the scheduled hearing date, her bag, containing her passport
and visa, was stolen as she was leaving a train station in Mex-
ico. The district court denied the request for a continuance on
the grounds that Duarte’s counsel failed to offer sufficient
proof that Duarte’s purse was stolen, and Duarte had a “re-
cord of non-appearance” before both the federal and state
courts. The district court tentatively denied Duarte’s Hague
Petition because she was not present to establish a prima facie
case of unlawful removal or retention. The court stayed entry
of judgment for two weeks to give Duarte an opportunity to
file with the court a certified police report. If Duarte failed to
provide a certified police report by September 15, 2006, the
court would enter judgment denying Duarte’s petition.
On September 15, 2006, Duarte filed, as proof that her
purse was stolen, a declaration from a Transit Authority
Agent and a copy of the police report. Duarte also indicated
that it was not possible to obtain a certified police report in
Mexico because transit authority agents are not permitted to
have such documents notarized. Duarte requested that the dis-
trict court accept the declaration and copy of the police report
in lieu of a certified police report. The district court rejected
Duarte’s offer of proof finding the declaration and traffic
report insufficient because: (1) there was no evidence that an
agency generated the written report; (2) Duarte’s counsel rep-
resented to the court that obtaining a certified police report
would be “no problem”; and (3) it was highly improbable that
the report was filed on the day of the theft. The district court
5792 DUARTE v. BARDALES
lifted the stay on September 15, 2006 and entered final judg-
ment denying Duarte’s petition.5
On September 29, 2006, Duarte timely filed a motion to
alter or amend the judgment of the district court pursuant to
Rule 59(e). Duarte argued that the district court committed
manifest error in entering judgment denying Duarte’s petition.
Specifically, Duarte claimed that it was impossible for her to
comply with the court’s order to provide a certified police
report because such reports are not issued in Mexico. In sup-
port of her motion, Duarte presented evidence from several
attorneys and government officials in Mexico declaring that
Duarte reported to the police that her purse was stolen on
August 29, 2006, and that the Transit Authority in Mexico
does not issue certified or non-certified police reports.
In a written order, the district court practically conceded
that it may have committed clear error when, as a result of
Duarte’s failure to submit a certified police report, it entered
judgment against her. The court, however, did not grant
Duarte’s Rule 59(e) motion on that basis, but instead ruled on
the merits of Duarte’s Hague Petition. The court concluded
that because Duarte’s Hague Petition did not entitle her to any
relief, the production and acceptance into evidence of a police
report would not have affected the outcome of the case.
Accordingly, the court denied Duarte’s Rule 59(e) motion.
This appeal followed.
II.
“A denial of a motion for reconsideration under Rule 59(e)
is construed as one denying relief under Rule 60(b) and will
not be reversed absent an abuse of discretion.” Pasatiempo v.
Aizawa, 103 F.3d 796, 801 (9th Cir. 1996) (citing Barber v.
5
The order denying Duarte’s offer of proof and entering judgment was
entered on the court’s docket on Monday, September 18, 2006.
DUARTE v. BARDALES 5793
Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); Fuller v. M.G.
Jewelry, 950 F.2d 1437, 1441 (9th Cir. 1991)).
[1] It is appropriate for a court to alter or amend judgment
under Rule 59(e) if “(1) the district court is presented with
newly discovered evidence, (2) the district court committed
clear error or made an initial decision that was manifestly
unjust, or (3) there is an intervening change in controlling
law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th
Cir. 2001). After reviewing the record, we determine that the
court’s denial of the motion was clear error or manifestly
unjust and thus an abuse of discretion.
[2] First, in denying Duarte’s Rule 59(e) motion, the dis-
trict court seemed to recognize that it was a mistake to enter
judgment against Duarte because she failed to provide a certi-
fied police report when it was impossible for her to obtain
such certification. Once the court acknowledged that the basis
underlying its original judgment was wrong, it was error not
to set aside the judgment.
[3] Second, it was clearly improper for the district court not
to follow through with its representation that if Duarte sub-
mitted proof that her purse was stolen it would reschedule the
hearing. At the September 1, 2006 hearing, the court stated,
“Failure to supply me with a certified copy of that report will
result in the entry of that judgment which I just indicated as
a [sic] tentative.” Sept. 1, 2006 Hr’g Tr. at 5. The district
court went on to state, “And so if we see that on the 15th, if
you’ve got that on the 15th, then I’ll put the matter back on
the calendar for a status [sic] and we’ll address any deposi-
tions or anything else that you want to address.” Id. at 9. In
our view, the district court could not have been any clearer:
If Duarte provided sufficient proof that her purse was stolen,
the court would not enter judgment and would place the Sep-
tember hearing back on the calendar. At the very least, to pre-
serve the fairness and the integrity of the judicial proceedings,
the district court should have followed its own representations
5794 DUARTE v. BARDALES
and put the case back on the calendar once Duarte provided
a certified copy of the police report (or its equivalent). At the
time the court denied Duarte’s Rule 59(e) motion, it was
apparent that the proof submitted by Duarte served the pur-
pose of providing a certified copy of the police report.
[4] Finally, it was error for the district court to decide the
merits of Duarte’s petition when the only issue before it was
whether, under Rule 59(e), the court should vacate the previ-
ously entered final judgment.
With respect to the merits of Duarte’s Hague Petition, the
record was incomplete. Specifically, a significant dispute
existed between the parties as to whether the filing period for
Duarte’s Hague Petition should be tolled.6 This was a critical
issue in determining the merits of Duarte’s petition. If tolling
did not apply, Duarte had filed her petition more than a year
from wrongful removal, and Bardales could assert the affir-
mative defense that the children are well settled and should
not be returned. See infra Part III. If, however, tolling did
apply then the “well settled” affirmative defense was not
available to Bardales.
[5] In denying Duarte’s Rule 59(e) motion, the district
court determined that Bardales did not hide the children from
Duarte and therefore equitable tolling did not apply. In so
doing, the court disregarded the fact that the record was
incomplete on the issue of tolling. Indeed, Duarte provided
6
Duarte contended that the court should toll the period between Septem-
ber 1, 2003 and June 2, 2005, because during that time Bardales hid the
children from her. She claims that she did not know their whereabouts or
have any contact with them until Bardales’s attorney contacted her on
June 2, 2005 and gave her Bardales’s phone number. Duarte argues that
during this period she made genuine efforts to locate Bardales and the
children to no avail. Bardales contended that he did not hide the children
from Duarte. He argued that because he and the children continued to
reside at the same address where Bardales and Duarte lived prior to their
separation in 2000, Duarte could have easily located the children.
DUARTE v. BARDALES 5795
the district court with the names of witnesses and a list of
exhibits she intended to introduce at the September hearing on
the issues of tolling and removal. Because the court ruled on
the merits sua sponte and without notice to the parties when
it denied the Rule 59(e) motion, Duarte was never given the
opportunity to introduce this additional evidence and com-
plete the record on tolling. This, we hold, was error.
[6] Accordingly, Duarte is entitled to relief from the judg-
ment.
On remand the district court will have to decide whether to
toll the one-year filing period. Therefore, we must now
address whether equitable tolling is available under the Hague
Convention and ICARA, an issue of first impression in this
Circuit.
III.
[7] “The Hague Convention on the Civil Aspects of Inter-
national Child Abduction is an international treaty among the
United States and fifty other countries. . . . [and] only applies
when both countries are parties to it.”7 Gonzalez v. Gutierrez,
311 F.3d 942, 944 (9th Cir. 2002) (citing Hague Convention
art. 35). The Convention is intended to “secure the prompt
return of children wrongfully removed or retained.” Hague
Convention art. 1. “It is designed to restore the ‘factual’ status
quo which is unilaterally altered when a parent abducts a child
and aims to protect the legal custody rights of the non-
abducting parent.” Feder v. Evans-Feder, 63 F.3d 217, 221
(3d Cir. 1995) (citing Hague International Child Abduction
Convention, 51 Fed. Reg. 10,494, 10,505 (Dep’t of State
March 26, 1986) (Pub. Notice)). In addition, the Convention
is intended to “deprive parties of any tactical advantages
7
Mexico became a party to the Convention on October 1, 1991. See
http://travel.state.gov/family/abduction/country/country_508.html (last
visited Jan. 28, 2008).
5796 DUARTE v. BARDALES
gained by absconding with a child to a more favorable
forum.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.
2004). “[A] judicial proceeding under the Convention is not
meant, however, to inquire into the merits of any custody dis-
pute underlying the petition for return.” Gonzalez, 311 F.3d
at 945; Hague Convention art. 19.
[8] Article 12 requires the judicial or administrative author-
ity to “order the return of the child” who has been wrongfully
removed or retained within the meaning of the Convention if
“at the date of the commencement of the proceedings . . . a
period of less than one year has elapsed from the date of the
wrongful removal or retention.” Hague Convention art. 12. A
person seeking the return of a child under the Convention may
do so by filing a petition in a court where the child is located.
42 U.S.C. § 11603(b). The petitioner has the burden of prov-
ing by a preponderance of the evidence that “the child has
been wrongfully removed or retained within the meaning of
the Convention.” § 11603(e)(1)(A). Removal is wrongful
when:
(a) it is in breach of rights of custody attributed to
a person, an institution or any other body, either
jointly or alone, under the law of the State in which
the child was habitually resident immediately before
the removal or retention; and
(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.
Hague Convention art. 3.
“Return is not required, however, if the abductor can estab-
lish one of the Convention’s narrow affirmative defenses,”
Gaudin v. Remis, 415 F.3d 1028, 1034-35 (9th Cir. 2005),
which includes the “well settled” affirmative defense under
DUARTE v. BARDALES 5797
Article 12. Article 12 provides that return will not be required
if the abductor establishes by a preponderance of the evidence
that the petition for return was filed more than a year from the
wrongful removal and the child is well settled in her new
environment. Hague Convention art. 12; § 11603(e)(2)(B).
[9] This one-year filing period is of particular importance
under the Convention because the “well settled” affirmative
defense is only available if the petition for return was filed
more than a year from wrongful removal. The potentially
prejudicial effect of failing to file within a year from removal
has led courts to apply equitable principles to toll the one-year
period, notwithstanding the fact that both the Convention and
ICARA are silent as to whether such principles apply. See
Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.), cert. denied,
543 U.S. 978 (2004); Giampaolo v. Erneta, 390 F. Supp. 2d
1269, 1282 (N.D. Ga. 2004); Belay v. Getachew, 272 F. Supp.
2d 553, 562-64 (D. Md. 2003); Bocquet v. Ouzid, 225 F.
Supp. 2d 1337, 1348 (S.D. Fla. 2002); Mendez Lynch v.
Mendez Lynch, 220 F. Supp. 2d 1347, 1362-63 (M.D. Fla.
2002); but see Anderson v. Acree, 250 F. Supp. 2d 872, 875
(S.D. Ohio 2002) (holding equitable tolling does not apply to
petitions filed under the Hague Convention); Toren v. Toren,
26 F. Supp. 2d 240, 244 (D. Mass. 1998), vacated on other
grounds, 191 F.3d 23 (1st Cir. 1999) (same).
[10] The Eleventh Circuit is the only Circuit to have
decided whether equitable tolling is applicable under the Con-
vention. Furnes, 362 F.3d at 723. In Furnes, the court held
that the one-year filing requirement could be tolled under cir-
cumstances where the abducting parent took steps to conceal
the whereabouts of the child. Id. In so holding, the court
adopted the district court’s reasoning in Mendez Lynch. Id.
(“We agree . . . that equitable tolling may apply to ICARA
petitions for the return of a child where the parent removing
the child has secreted the child from the parent seeking
return.”) (citing Mendez Lynch, 220 F. Supp. 2d at 1362-63)).
5798 DUARTE v. BARDALES
In Mendez Lynch, the court reasoned that “[i]f equitable
tolling does not apply to ICARA and the Hague Convention,
a parent who abducts and conceals children for more than one
year will be rewarded for the misconduct by creating eligibil-
ity for an affirmative defense not otherwise available.” Id. at
1363. On the other hand, courts rejecting equitable tolling
have reasoned that there is nothing in the Convention or
ICARA to suggest that the one-year period is a statute of limi-
tations subject to tolling principles. Anderson, 250 F. Supp.
2d at 875. And furthermore, tolling the one-year period would
defeat the purpose of the “well settled” affirmative defense,
to “put some limit on the uprooting of a settled child.” Toren,
26 F. Supp. 2d at 244.
[11] We agree with Furnes and hold that equitable princi-
ples may be applied to toll the one-year period when circum-
stances suggest that the abducting parent took steps to conceal
the whereabouts of the child from the parent seeking return
and such concealment delayed the filing of the petition for
return. While we recognize the serious concerns with uproot-
ing a child who is well settled regardless of whether the
abducting parent hid the child, and that both the Convention
and ICARA are silent on whether equitable tolling applies, we
must give significant consideration to the overarching inten-
tion of the Convention—deterring child abduction. See Young
v. United States, 535 U.S. 43, 49-50 (2002) (“It is hornbook
law that limitations periods are customarily subject to equita-
ble tolling unless tolling would be inconsistent with the text
of the relevant statute. Congress must be presumed to draft
limitations periods in light of this background principle.”)
(internal quotations and citations omitted).
Logic and equity dictate that awarding an abducting parent
an affirmative defense if that parent hides the child from the
parent seeking return would not only encourage child abduc-
tions, but also encourage hiding the child from the parent
seeking return. See Belay, 272 F. Supp. 2d at 561 (“[C]ourts
must be wary of rewarding an abductor for concealing the
DUARTE v. BARDALES 5799
whereabouts of a child long enough for the child to become
‘well settled’; to reward the abductor as such would be to con-
done the exact behavior the Convention seeks to prevent.”).
Indeed, this concern was reflected in the State Department’s
public notice on the Hague Convention, which states, “If the
alleged wrongdoer concealed the child’s whereabouts from
the custodian necessitating a long search for the child and
thereby delayed the commencement of a return proceeding by
the applicant, it is highly questionable whether the respondent
should be permitted to benefit from such conduct absent
strong countervailing considerations.” Hague International
Child Abduction Convention, 51 Fed. Reg. 10,494, 10,505
(Dep’t of State March 26, 1986) (Pub. Notice).
[12] We therefore hold that equitable tolling is available
under the Hague Convention and ICARA because applying
equitable principles to toll the one-year filing period in cir-
cumstances where the abducting parent hides the child is con-
sistent with the purpose of the Convention to deter child
abduction.
IV.
For the reasons stated above, the district court abused its
discretion in denying Duarte’s Rule 59(e) motion. We also
hold that equitable tolling is available under the Hague Con-
vention and ICARA to toll the one-year filing period. In so
holding, we express no opinion on whether the one-year filing
period should be tolled in this case. We leave that determina-
tion to the district court after conducting further proceedings
and finalizing the record on this issue.
As we read the record, it appears that Duarte has not seen
or visited her children for an extended period of time. Should
Duarte seek temporary visitation rights pending final resolu-
tion of this case, we suggest that the district court take such
action as may be appropriate.
5800 DUARTE v. BARDALES
REVERSED and REMANDED.
BEA, Circuit Judge. dissenting:
It always presents a sad case when children are removed
from their mother.1 It seems an even worse case when the
mother has not had her day in court to testify why the children
should be with her.
But here, in a federal court of appeals, it is still a legal case.
A case must be decided by the rules of our law; we must
apply the correct standard of review and we must remember
the procedural posture of the case. With respect, the majority
fails to do so.
The question in this case: Is a litigant deprived of due pro-
cess by not being heard in court when she has already shown
through her offer of proof she has no relevant evidence to
present? Rather than look at whether the mother should have
been given a hearing, the majority should have focused on
whether the mother’s motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e) put forth any evi-
dence that, had it been presented at the hearing, likely would
have changed the hearing’s result. Had the majority done that,
it would have seen that the mother proved herself out of court:
She offered to prove only such evidence as would have lost
for her at the hearing she claims she was unjustly denied.
Absent suffering any prejudice by the denial of a hearing, the
judgment of the trial court should be affirmed. In today’s
argot: “No harm; no foul.” See Fed. R. Civ. P. 61 (a judgment
will not be set aside for harmless error). Accordingly, I must
respectfully dissent.
1
Though it is arguably less sad when the mother’s boyfriend, and father
of her latest child, stands accused of sexually molesting the children, and
the mother fails to deny such charge.
DUARTE v. BARDALES 5801
I agree with the majority’s holding regarding equitable toll-
ing of the one-year period in which to commence actions to
recover possession of children. Where the abductor hides the
location of the children, and the parent or guardian does not
know where to file a petition under the Hague Convention,
the one-year period should not run.
But those are not the facts of this case. All the evidence
offered to the district court by the father (Bardales) showed
the mother (Duarte) knew perfectly well where the children
were located—indeed, in the same house Duarte and Bardales
had purchased in San Diego and in which they lived with the
children until 2000 when Duarte took the children to Mexico.
The children were in the same public schools which they had
always attended.
I
Article 12 of the Hague Convention provides:
Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judi-
cial or administrative authority of the Contracting
State where the child is, a period of less than one
year has elapsed from the date of the wrongful
removal or retention, the authority concerned shall
order the return of the child forthwith.
The judicial or administrative authority, even where
the proceedings have been commenced after the
expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of
the child, unless it is demonstrated that the child is
now settled in [his] new environment.
Hague Convention, art. 12 (emphasis added). The United
States adopted the Hague Convention when it enacted the
5802 DUARTE v. BARDALES
International Child Abduction Remedies Act (ICARA). 42
U.S.C. §§ 11601-11610. Under ICARA, “commencement of
proceedings,” as used in article 12 of the Hague Convention,
means the filing of a petition in “any court which has jurisdic-
tion of such action and which is authorized to exercise its
jurisdiction in the place where the child is located at the time
the petition is filed.” 42 U.S.C. § 11603(b) and (f) (emphasis
added).
Duarte filed her petition for the return of her children in the
San Diego Superior Court on June 2, 2005, almost two years
after Bardales took the two youngest children from her on
July 8, 2003. The majority’s discussion of Duarte’s previous
efforts to commence an action is to no avail. Even Duarte
does not contend her filing of a Hague Convention application
with the Protection of Human Rights Department in Tijuana,
Mexico on September 14, 2003, or the subsequent receipt of
her application by the San Diego District Attorney’s Office,
commenced proceedings under article 12. The only case to
address the issue holds that filing an application with an
administrative authority, as opposed to filing a petition with
a court of competent jurisdiction, does not commence pro-
ceedings under ICARA. Wojcik v. Wojcik, 959 F. Supp. 413,
418 (E.D. Mich. 1997).
Where, as here, an ICARA petition is not filed in a court
of competent jurisdiction within one year of a child’s wrong-
ful removal, the respondent can raise the affirmative defense
“that the child is now settled in [his] new environment” and
thus any custody proceeding should take place in the venue
where the children now live. Hague Convention art. 12; 42
U.S.C. § 11603. This is known as the “well-settled” exception
or defense. The respondent must establish the children are
well-settled by a preponderance of the evidence. 42 U.S.C.
§ 11603.
Thus, the merits of this case involve three questions: First,
did Bardales wrongfully remove the children from Duarte’s
DUARTE v. BARDALES 5803
custody? Yes; this is the “prima facie” case Duarte must
prove, and Bardales concedes this first point.2 If Duarte had
filed her petition within one year after July 8, 2003—the day
Bardales took the children—this would end our inquiry: The
children would be returned to Duarte, and the parties would
have to litigate the custody dispute in Mexico. See Hague
Convention art. 12. Because Duarte did not file her petition
until June 2, 2005, however, we proceed to the second ques-
tion.
Did Bardales hide the whereabouts of the children such that
Duarte did not know where to file her petition under the
Hague Convention? If so, then equitable tolling applies and
Duarte wins. If not, Bardales is entitled to show the children
are well-settled in their new environment and we proceed to
the third and final question. Are the children well-settled in
San Diego?
Both parties in this case filed numerous declarations in
response to the district court’s order to show cause, and were
given the opportunity to brief the issues of whether Bardales
hid the children and whether the children are “well-settled” in
San Diego. The district court, acting as the trier of fact, found
Bardales did not attempt to hide the children’s whereabouts
from Duarte, and the children are well-settled in San Diego.
2
Although Bardales concedes he removed the two youngest children
from Duarte’s custody, he asserts it was necessary for their safety. During
2001, Duarte and the children lived with Duarte’s boyfriend, Oscar Nunes,
and Nunes’s son in Mexico. In March 2002, Bardales and Duarte’s two
oldest daughters came to stay with Bardales in San Diego. They told Bar-
dales that Nunes sexually molested them and they overheard Nunes con-
fess the abuse to Duarte. They have been treated by a psychologist since
that time. Bardales believed Duarte still was living with Nunes in 2003
when this action was filed, and was pregnant with Nunes’s child. Accord-
ing to Bardales, he took the two youngest children because he feared
Nunes would sexually abuse them. Although Duarte claimed she no longer
lived with Nunes, she has not denied that Nunes sexually abused the two
oldest girls, nor that she had Nunes’s child, which means Nunes may be
in regular contact with Duarte and any children living with her.
5804 DUARTE v. BARDALES
The district court declined to give Duarte a hearing because
Duarte’s declarations affirmatively showed she had no per-
sonal knowledge regarding whether the children are well-
settled in San Diego. Therefore, Duarte’s presence at a hear-
ing would be immaterial. The record contains ample evidence
to support the district court’s findings, set forth below.
II
The majority uses an incorrect standard for a Rule 59(e)
motion based on new evidence.
In evaluating the district court’s rulings, the majority cites
the general standard for granting a motion to alter or amend
the judgment under Federal Rule of Civil Procedure 59(e),
without delving further into the Rule’s requirements.
Duarte’s Rule 59(e) motion was based on a claim of newly
discovered evidence. While it is true that newly discovered
evidence is one basis for granting a Rule 59(e) motion, not
just any evidence will do. To prevail on a Rule 59(e) motion
because of newly discovered evidence, the movant must show
the evidence (1) existed at the time of the trial or proceeding
at which the ruling now protested was entered; (2) could not
have been discovered through due diligence; and (3) was of
such magnitude that production of it earlier would have been
likely to change the disposition of the case. Coastal Transfer
Co. v. Toyota Motor Sales, 833 F.2d 208, 211 (9th Cir. 1987);
see also Fed. R. Civ. P. 61 (holding a judgment will not be
set aside for harmless error).
Furthermore, we must remember our standard of review,
which is not de novo. We are to review the denial of a motion
to alter or amend a judgment under Rule 59(e) for abuse of
discretion. See Pasatiempo v. Aizawa, 103 F.3d 796, 801 (9th
Cir. 1996).
The new evidence Duarte presented was evidence that she
could not obtain a certified report from the Mexican Transit
DUARTE v. BARDALES 5805
Authority showing she reported the theft of her handbag to
them. The new evidence explained why Duarte could not pro-
duce the evidence required by the district court for the contin-
uance of the hearing, but it did nothing to prove that, had she
appeared, Duarte could have presented evidence that would
have been likely to change the outcome of the case.
The district court acknowledged that Duarte’s new evi-
dence was sufficient to show she had reported the theft of her
handbag. Nevertheless, the district court denied Duarte’s
motion to alter or amend the judgment. It did so because even
if Duarte were given a hearing and proved her prima facie
case—that Bardales wrongfully took the children from her
and brought them to the United States—the district court still
would have granted judgment for Bardales on the merits,
because Bardales did not hide the children from Duarte, and
the children are well-settled in their home with Bardales.
Duarte’s evidence that her purse was stolen had nothing to do
with whether Bardales hid the children from her, nor with
whether the children were well-settled. Therefore, it would
not have “been likely to change the disposition of the case.”
Coastal Transfer Co., 833 F.2d at 211. The majority fails to
analyze this point. The majority, it seems, would require dis-
trict courts to grant a Rule 59(e) motion whenever new evi-
dence is presented, no matter how meaningless the evidence
is to the end result of the case.
Not only does the majority apply the wrong standard of
review, it also disregards crucial evidence in the record.
III
The district court had already given Duarte an opportunity
to present evidence on the merits.
The majority asserts the evidence in the record on the issue
of equitable tolling was incomplete and the district court
abused its discretion when it failed to give the parties a hear-
5806 DUARTE v. BARDALES
ing on this issue. See Maj. Op. at 5794-95. The record belies
the majority’s assertion.
On June 29, 2006, the district court issued an order to show
cause “why equitable tolling should, or should not, apply
from the date of the alleged wrongful retention” of the chil-
dren. The court required both parties to present briefing and
evidence on the only issue that was not conceded3 in the case
—whether Bardales hid the children from Duarte, ordering
that:
Plaintiff is directed to provide further details con-
cerning Defendant’s alleged ‘secreting’ of the four
children, including Plaintiff’s attempts at locating
the children. Defendant is directed to provide the
Court with specific information as to [the two oldest
children’s] whereabouts from January 1, 2003 until
June 2, 2005, and [the two youngest children’s]
whereabouts from July 8, 2003 until June 2, 2005.
June 29, 2006 Order to Show Cause.
Duarte filed a 90-page response to the order to show cause
that included various charts showing Duarte’s attempts to find
the children and fifteen declarations by people who helped
Duarte in those attempts. As the majority notes, Duarte gave
the court a list of witnesses and exhibits she intended to call
at the hearing. Maj. Op. at 5794-95. Had Duarte provided
only a list, we might not know what evidence those witnesses
could proffer. But Duarte went further. She filed declarations
from these witnesses stating the substance of their knowledge,
and she presented an offer of proof in the form of a chart, that
describes the substance of each witness’s proposed testimony.
3
Bardales conceded he wrongfully removed the children, and Duarte
conceded she had no evidence as to whether the children were well-settled
in San Diego. Thus, the only possible contested issue in the case was
whether Bardales hid the children from Duarte, thus preventing her from
knowing where to file her petition.
DUARTE v. BARDALES 5807
Glaringly absent from any of these declarations or descrip-
tions is a statement that anyone looked for the children at the
home which was purchased by Duarte and Bardales, and
where Duarte, Bardales and their children lived together for
years in San Diego, and where Bardales and the children still
reside. Nor is there any evidence that anyone checked with
the local public schools. Additionally, Duarte conceded she
had no evidence regarding whether the children are well-
settled in San Diego.
In contrast, Bardales filed seventeen affidavits in support of
his response to the order to show cause. These declarations
were from: a family member who lives in San Diego; Bar-
dales’s new wife; teachers of all four children along with
school records showing the children consistently were
enrolled in the local public schools near the home Duarte
shared with Bardales; friends of the family; Bardales’s
employer; a neighbor; the family doctor; the children’s psy-
chiatrist; and a declaration from the San Diego Deputy Dis-
trict Attorney that its investigator was able to verify
Bardales’s current address as the home he and Duarte pur-
chased. Bardales’s evidence establishes the following:
Evidence Bardales Did Not Hide the Children
Duarte should have known exactly where to find Bardales
and the children. In 1990, Duarte and Bardales moved from
Mexico to San Diego, where they purchased a home together.
They lived at that address in San Diego for several years, dur-
ing which time they had their four children. As of the date of
the district court hearing, Bardales and the children were still
living in this same home in San Diego.
Furthermore, Duarte was personally served on July 9, 2003
with the San Diego Superior Court order that granted custody
of the children to Bardales and granted a temporary restrain-
ing order against Duarte. Duarte also was served with Bar-
dales’s petition to be awarded custody of the children, and his
5808 DUARTE v. BARDALES
ex parte application for a temporary restraining order. That
petition listed Bardales’s attorney’s address. Duarte could
have served Bardales’s attorney with her petition for the
return of the children, and the San Diego Superior Court
would have had jurisdiction to decide the merits of Duarte’s
petition.
In its order denying the motion to alter or amend the judg-
ment, the district court denied Duarte the benefit of equitable
tolling based, in part, on the fact that Bardales’s petition gave
Duarte actual notice of the whereabouts of the children as of
July 9, 2003. Because Duarte first filed her petition in the San
Diego Superior Court, California law controls the service of
process. Under California law, service of process or pleading
upon a party’s attorney is valid to effect service on the party
the attorney represents. See Reynolds v. Reynolds, 134 P.2d
251, 21 Cal.2d 580, 584 (1943) (“service of papers on the
attorney of record, where service upon the attorney is proper,
binds the client until the attorney is discharged or substituted
out of the case in the manner provided by law”). Because
Duarte had Bardales’s attorney’s address at all times, she did
not need Bardales’s address.
Bardales’s petition for custody of the children also alleged
that the San Diego Superior Court had jurisdiction to deter-
mine the custody dispute. Because Bardales filed his petition
for custody in the San Diego Superior Court, that court
already had personal jurisdiction over Bardales to adjudicate
the custody of the children. Thus, Duarte knew exactly which
court would have jurisdiction to adjudicate her claims. See
Cal. Code Civ. Proc. § 410.50(b) (“Jurisdiction of the court
over the parties and the subject matter of an action continues
throughout subsequent proceedings in the action.”).
Not only were Bardales and the children living in the same
house, but the children were enrolled at all times in the local
public schools near their house, and attended the local Catho-
lic Cathedral.
DUARTE v. BARDALES 5809
Finally, Duarte conceded she spoke to the children on the
telephone by calling the house in San Diego from the date of
service, July 9, 2003 up until September 23, 2003, when Bar-
dales changed his number. Duarte also telephoned the two
oldest children at their house in San Diego from the time they
came to live with Bardales in 2001. Duarte does not contend
she did not know the location of the two youngest children
from July 8, 2003 until September 23, 2003, nor does she
explain why she did not file her petition before September 23,
2003. This evidence is more than enough to support the dis-
trict court’s finding that Bardales did not hide the children
from Duarte, and thus she is not entitled to equitable tolling
of the one year time period to file the petition.
Evidence the children are well-settled in San Diego
The district court found the children are well-settled in their
new home with Bardales, and Duarte does not dispute this
finding. Although the district court did not give Duarte a hear-
ing on the issue whether the children are well-settled, she
does not raise this issue on appeal, and has waived it. All
Pacific Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427,
1434 (9th Cir. 1993). Further, Duarte never asserts that if she
were granted a hearing, she would have any relevant evidence
to present on this issue. Furthermore, there was sufficient evi-
dence in the record to support the district court’s finding the
children are well-settled in San Diego.
To determine whether a child is settled in his new environ-
ment, a court may consider any factor relevant to a child’s
connection to his living environment. These factors generally
include: (1) the age of the child; (2) the stability of the child’s
residence in the new environment; (3) whether the child
attends school or day care consistently; (4) whether the child
attends church regularly; (5) the respondent’s employment
and financial stability; (6) whether the child has friends and
relatives in the new area; and (7) the immigration status of the
child and the respondent. Lops v. Lops, 140 F.3d 927, 945-46
5810 DUARTE v. BARDALES
(11th Cir. 1998); Koc v. Koc, 181 F. Supp. 2d 136, 152-54
(E.D.N.Y. 2001).
The two youngest children have lived in San Diego for a
majority of their lives. The family has lived in the same
house, and the children have attended the same schools the
entire time, allowing them to build friendships. The two youn-
gest children have done well in school, as have their older sis-
ters, and their grades have steadily improved each year.
The children have regular contact with extended family,
including aunts, uncles, cousins, and their paternal grandpar-
ents who live with them. The two youngest children are close
to their older sisters, who are themselves settled in San Diego
and who are staying in San Diego because Duarte voluntarily
dismissed her petition as to these two children.
Bardales is financially stable; he has held the same job
since April 2002 and received a good recommendation from
his manager. Bardales and his children all attend the local
Catholic Cathedral. Medical records demonstrate the children
received regular vaccinations and medical care. The children
are all U.S. citizens, and Bardales is a legal permanent resi-
dent. Finally, the San Diego Superior Court’s custody order
awarded sole custody to Bardales.
The majority overlooks the filings by the parties in
response to the district court’s order to show cause. Duarte
did not set forth any further evidence she would be able to
produce at a hearing on the sole relevant issues: (1) equitable
tolling and (2) whether the children are well-settled. As the
district court found, Bardales did not hide the children from
Duarte; they were living at the same house where the family
had always lived. Nor was there any showing either Duarte or
any of her witnesses have proffered any evidence on the issue
whether the children are well-settled in San Diego. Thus, any
further hearing will be a waste of everyone’s time and money.
The district court did not abuse its discretion in failing to con-
DUARTE v. BARDALES 5811
duct a hearing at which no further relevant evidence would be
presented. The district court already had all the relevant evi-
dence before it that the parties had to offer.
Finally, the majority implies the district court might have
the power to set aside the state court’s custody order and
allow Duarte to visit the children. Federal courts do not have
jurisdiction to overrule state custody orders. For the district
court to attempt to overrule the state court’s custody order
would raise issues under claim and issue preclusion, not to
mention the full faith and credit clause, 28 U.S.C. § 1738.4
Duarte’s remedy lies in the California Court of Appeal, not
the federal district court, if she wants the custody order modi-
fied.
Because it cannot be said that the district court abused its
discretion in denying Duarte a hearing, I respectfully dissent.
4
Under 28 U.S.C. § 1738, “[f]ederal courts must give the same preclu-
sive effect to state court judgments that those judgments would be given
in that state’s own courts.” Clements v. Airport Auth. of Washoe County,
69 F.3d 321, 326 (9th Cir. 1995); see also Allen v. McCurry, 449 U.S. 90,
96 (1980) (“Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts of the State
from which the judgments emerged would do so”). | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3447936/ | Reversing.
The appellant, Etta Alford, was indicted in the Clark circuit court for a second violation of the prohibition *Page 733
laws, and upon her trial was convicted and her punishment fixed at confinement in the penitentiary for a period of three years. As grounds for reversal, it is urged that the indictment is duplictous, and that the court erred in admitting evidence of crimes other than the one submitted to the jury.
The indictment charges that appellant sold intoxicating liquors to one Robert Clark on eight different days during January and February, 1927, the exact dates being set out in the indictment. The appellant demurred to the indictment, and also filed a motion to require the commonwealth to elect upon which one of the charges it would prosecute her. Both the demurrer and the motion to elect were overruled, but, when the commonwealth introduced the witness, Robert Clark, he first testified to a sale on January 13, 1927, and, when the commonwealth offered to prove other sales, the court ruled that it had elected to try the appellant for the sale made on January 13, 1927, and the instructions were limited to that sale. The motion to require the commonwealth to elect should have been sustained, but the ruling of the court, that the sale, concerning which evidence was first introduced by the commonwealth, was the one for which appellant was being prosecuted, cured this error. McCreary v. Commonwealth, 163 Ky. 206, 173 S.W. 351; Sanders v. Commonwealth, 176 Ky. 228,195 S.W. 796; Richardson v. Commonwealth, 166 Ky. 570,179 S.W. 458.
The court permitted the commonwealth, however, to introduce evidence tending to show that appellant had sold liquor to the prosecuting witness on other days than January 13, 1927. This was error. It is insisted for the commonwealth that this evidence was admissible under one of the exceptions to the general rule that, when one is being tried for a crime, evidence of other crimes is inadmissible. The exceptions to the general rule disallowing such testimony are where proof of other crimes is necessary to show (1) the identity of the accused as the person who committed the crime proved: (2) guilty knowledge; (3) particular criminal intent; (4) malice or motive; (5) that the crime of which he is accused, and for which he is being tried, is a part of a plan or system of criminal actions. The facts of this case bring it within none of these exceptions. Proof of the other sales was unnecessary to identify the accused or to show guilty knowledge in her or particular criminal intent or malice or motive, and it certainly did not tend to show that she *Page 734
had any peculiar plan or system of selling whisky. Kirby v. Commonwealth, 206 Ky. 535, 267 S.W. 1094; Eagle v. Commonwealth, 223 Ky. 178, 3 S.W.2d 212.
There is another exception to this general rule in cases of unlawful sexual intercourse, where it is held that proof of other acts of the parties indicating illicit relations may be admitted as corroborative of the testimony offered to prove the particular offense charged in the indictment. Cases in which such an exception to this general rule has been approved are: Smith v. Commonwealth, 109 Ky. 685, 60 S.W. 531; Newsom v. Commonwealth, 145 Ky. 628, 140 S.W. 1042; McCreary v. Commonwealth, 158 Ky. 612, 160 S.W. 981; Earl v. Commonwealth,202 Ky. 726, 261 S.W. 239; Render v. Commonwealth, 206 Ky. 1,266 S.W. 914. The theory upon which this exception is based is that proof of other similar offenses tends to show the adulterous disposition of the accused, and thus to corroborate the complainant's account of the acts alleged in the indictment as constituting the crime. In McCreary v. Commonwealth, 163 Ky. 206, 173 S.W. 351, the reason for this exception to the general rule, that evidence of other offenses committed by the accused is incompetent, was stated as follows: "While in many jurisdictions acts of sexual intercourse previous to the one relied upon for conviction are allowed to be given in evidence in explanation of, and in corroboration of the evidence given to prove the principal offense, subsequent acts of a similar character are excluded, as not tending in any way to prove the principal offense, and while as a general rule in criminal cases, the commission by the defendant of other and similar offenses are not permitted to be proven in corroboration of the principal offense for which he is on trial nor as corroborating the testimony relating to such offense, but in the case of crimes consisting of illicit sexual intercourse, such as incest, adultery, and sexual intercourse with girls of tender years, similar offenses committed by accused with the same persons are permitted to be proven in corroboration of the principal offense, because such acts as these are the concurrent acts of two persons of opposite sex, and the evidence of such corroborative acts tends necessarily to show the design of the accused, and his disposition to indulge his criminal desires as opportunity may offer, and in this jurisdiction proof of subsequent acts to the principal offense are admissible, as well as previous acts of similar kind." *Page 735
However, the reason for this exception is limited to cases involving unlawful sexual intercourse, and it should not be extended to other classes of cases. In Herring et al. v. Commonwealth, 200 Ky. 304, 254 S.W. 906, appellants were convicted of the unlawful possession of intoxicating liquor, and the judgment was reversed because of the admission of evidence of other similar offenses. Also see Bullington v. Commonwealth, 193 Ky. 529, 236 S.W. 961; Little v. Commonwealth, 221 Ky. 696, 299 S.W. 563.
It follows that the admission of the evidence complained of was prejudicial error, and the judgment is reversed, and cause remanded for a new trial consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/8541097/ | per curiam:
En esta ocasión nos corresponde suspender inmediata e indefinidamente a un miembro de la profesión legal de la práctica de la abogacía y la notaría por su incumplimiento con los requerimientos de la Oficina de Inspección de Notarías (ODIN) y de este Tribunal, y por no haber actualizado su información en el Registro Unico de Abogados (RUA).
I
El Ledo. César Cabrera Acosta fue admitido al ejercicio de la abogacía el 4 de febrero de 2009 y al ejercicio de la notaría el 8 de mayo de 2009. El 31 de octubre de 2014, el Director de la ODIN envió al licenciado Cabrera Acosta una carta por correo certificado con acuse de recibo a la dirección que constaba en el RUA. En ésta notificó al notario que adeudaba un total de treinta Indices mensuales de actividad notarial correspondientes a los meses de abril a diciembre de 2012, enero a diciembre de 2013 y enero a septiembre de 2014. Además, le informó que adeudaba los Informes estadísticos anuales de actividad notarial correspondientes a los años naturales 2011 a 2013.
En la misiva se orientó al licenciado Cabrera Acosta sobre las disposiciones legales aplicables y se le advirtió sobre la gravedad de su incumplimiento y de las posibles consecuencias disciplinarias que éste acarrearía. Así, se le concedió al licenciado Cabrera Acosta un término de diez días para presentar los documentos que adeudaba. Por último, se le apercibió de la posibilidad de acudir ante este Foro para la evaluación disciplinaria correspondiente conforme a los Artículos 12 y 13-A de la Ley Notarial de Puerto Rico, 4 LPRA see. 2023 y 2031a. El servicio postal federal, sin embargo, devolvió la carta.(1)
Así las cosas, el 16 de enero de 2015, el Director de la ODIN envió una segunda comunicación al licenciado Ca*464brera Acosta, esta vez, por correo certificado y correo electrónico. En este segundo apercibimiento se le indicó al licenciado que tendría hasta el 6 de febrero de 2015 para cumplir con lo requerido y se le apercibió nuevamente de las consecuencias de su incumplimiento. Esta segunda carta fue devuelta igualmente por el servicio de correo,(2) por lo que el 13 de febrero de 2015 se envió una tercera comunicación. Una vez más se utilizó el correo electrónico y la dirección postal de notificaciones que constaban en el RUA. En esta tercera misiva, además, se le informó al licenciado Cabrera Acosta que una actualización del sistema reflejó que adeudaba los índices mensuales de actividad notarial hasta diciembre de 2014, así como el índice anual de actividad notarial para ese mismo año. En la carta se le concedió al licenciado un término final hasta el 25 de febrero de 2015 para cumplir con lo requerido por la ODIN. Esta comunicación, al igual que las previas, fue devuelta.(3)
Ante el reiterado incumplimiento del licenciado Cabrera Acosta y la imposibilidad de establecer contacto mediante correo postal y electrónico, el 5 de marzo de 2015 la ODIN intentó comunicarse por vía telefónica. Sin embargo, el número telefónico que constaba en el RUA estaba fuera de servicio.
El 16 de marzo de 2015, el Director de la ODIN, Ledo. Manuel E. Avila de Jesús, presentó ante este Foro un Informe especial sobre incumplimiento de la Ley Notarial y su Reglamento; solicitando incautación preventiva e inmediata; y otros remedios. En este informe detalló el incumplimiento del licenciado con la entrega de los índices mensuales de actividad notarial y los informes estadísticos anuales. Además, señaló que desde el 2010 el licenciado Cabrera Acosta no ha renovado su fianza notarial y que tampoco ha *465presentado informe alguno durante el año en curso. Mediante el informe se le solicitó a este Tribunal que: (1) ordenara la incautación preventiva e inmediata de la obra notarial del licenciado Cabrera Acosta; (2) le concediera un término de cinco días laborables para presentar los índices mensuales y los informes anuales adeudados; (3) ordenara al licenciado la actualización de su información personal en el RUA; (4) requiriese al licenciado la presentación de evidencia acreditativa del pago de la fianza notarial a partir del 2010; (5) evaluara el suspender inmediata e indefinida al licenciado, y (6) impusiera una sanción económica de $500 por el reiterado incumplimiento con los requerimientos de la ODIN.
Evaluado el Informe presentado por el Director de la ODIN, el 13 de mayo de 2015 emitimos una Resolución mediante la cual ordenamos la incautación preventiva e inmediata de la obra protocolar y el sello notarial del licenciado Cabrera Acosta. Ordenamos también al licenciado Cabrera Acosta a que compareciera, en un término de diez días, para mostrar causa por la cual no debía ser suspendido indefinidamente del ejercicio de la abogacía y la notaría en nuestra jurisdicción. Se ordenó, por último, que se diligenciara la Resolución personalmente al momento de incautar la obra notarial. No obstante, al no localizar al licenciado Cabrera Acosta, el diligenciamiento personal de la Resolución no pudo llevarse a cabo.(4) Aún hoy, el licenciado Cabrera Acosta no ha comparecido. Evaluado detenidamente el expediente, estamos en posición de ejercer nuestra jurisdicción disciplinaria.
*466II
El Artículo 12 de la Ley Notarial de Puerto Rico (Ley Notarial), 4 LPRA see. 2023, impone a todos los miembros de la profesión legal admitidos al ejercicio de la notaría el deber de remitir mensualmente a la ODIN un índice que contenga sus actividades notariales no más tarde del décimo día del mes siguiente al informado. La Regla 12 del Reglamento Notarial, 4 LPRAAp. XXIV, suplementa dicha disposición, detallando los requisitos formales de los índices y reiterando las facultades del Director de la ODIN con relación a las remisiones tardías. Asimismo, la Regla 13 del Reglamento de este Tribunal, 4 LPRAAp. XXI-B, reafirma ese deber de remitir todos los meses un índice informativo de todas las escrituras y testimonios autorizados. La Regla 13 dispone, además, que todo notario está obligado a notificar cualquier cambio de residencia o de oficina notarial, no solo a este Foro, sino también al Director de la ODIN. Véase Id.
Por otro lado, el Artículo 13-A de la Ley Notarial, 4 LPRA sec. 2031a, impone a los notarios la obligación de presentar ante la ODIN informes estadísticos anuales de su actividad notarial. Tal y como ocurre con el Artículo 12, el Reglamento Notarial complementa esa disposición, elaborando los requisitos y las formalidades que éstos deben satisfacer y las facultades del Director de la ODIN con relación a su remisión tardía.
Recientemente, en In re Santiago Ortiz, 191 DPR 950 (2014), inequívocamente afirmamos que apartarse de alguna disposición contenida en la Ley Notarial o en su Reglamento expondría a un notario a sanciones disciplinarias graves. Véase, además, In re Da Silva Arocho, 189 DPR 888, 892 (2013). Esto, en atención a que no acatar rigurosamente las exigencias de la Ley Notarial y su Reglamento constituye una falta grave a los deberes que la fe pública notarial impone al notario. Véase In re Miranda Casasnovas, 175 DPR 774, 778 (2009). Así, el incumplí*467miento con el requisito de presentar los informes notariales que requieren los Artículos 12 y 13-A de la Ley Notarial menoscaba la fe pública investida en los notarios del País. Después de todo, “los índices mensuales e informes anuales de actividad notarial garantizan la certeza de los documentos en [los] que intervienen los notarios y evitan el riesgo de manipulación y fraude”. In re Santiago Ortiz, supra, pág. 961.
Según los hechos reseñados, el licenciado Cabrera Acosta incumplió con las disposiciones de la Ley Notarial y su Reglamento con relación a la remisión de los índices mensuales e informes anuales al Director de la ODIN por un periodo de casi cuatro años.(5) El licenciado Cabrera Acosta también incumplió con el requisito ineludible dispuesto en el Artículo 7 de la Ley Notarial, 4 LPRA see. 2011. Este artículo exige, como requisito para ejercer la notaría en nuestra jurisdicción, la prestación de una fianza no menor de $15,000. Este requisito responde a la necesidad imperiosa de proteger el tráfico jurídico y la confianza que la ciudadanía deposita en los documentos notariales. Véase In re Asencio Márquez, 176 DPR 598, 599 (2009).
Resulta preciso advertir que “[c]uando un notario contraviene una ley, como la Ley Notarial, incurre en una práctica que, al mismo tiempo, constituye una violación del Canon 18 del Código de Ética Profesional [...]”. In re Muñoz Fernós, 184 DPR 679, 685 (2012). En la medida en que la dejadez y el incumplimiento del licenciado Cabrera Acosta con la Ley Notarial inciden sobre su responsabilidad como profesional del Derecho y garante de la fe pública que como Notario se le encomienda, no tenemos otra alternativa que ordenar su suspensión inmediata del ejercicio de la notaría.
*468III
Es importante destacar que la dejadez y la falta de responsabilidad profesional del licenciado Cabrera Acosta trascienden el ámbito de la práctica de la notaría. Como es sabido, la Regla 9(j) del Reglamento del Tribunal Supremo, 4 LPRA Ap. XXI-B, impone la obligación a todo abogado de mantener sus datos actualizados en el RUA. Hemos sido enfáticos en recordar a los miembros de la profesión legal que incumplir con esta obligación obstaculiza el ejercicio de nuestra jurisdicción disciplinaria. In re Arroyo Rosado, 191 DPR 242 (2014). El incumplimiento con esta obligación, además, constituye fundamento suficiente para decretar la separación inmediata del ejercicio de la abogacía. Id.
Por otro lado, el Artículo 7 de la Ley Notarial, supra, al detallar los requisitos para el ejercicio del notariado, establece que el notario está obligado a notificar a la ODIN cualquier cambio en cuanto a la dirección de su residencia física o postal y la dirección de su oficina notarial dentro de los cinco días siguientes al cambio. La actualización de esta información personal facilita que la ODIN notifique requerimientos o deficiencias en la obra notarial.
En este caso, la ODIN intentó infructuosamente, en tres ocasiones distintas, notificar al licenciado Cabrera Acosta su incumplimiento con los requerimientos de la Ley Notarial relacionados con los índices mensuales y los informes anuales. Incluso, al intentar establecer contacto con el licenciado por la vía telefónica, la ODIN se percató de que el número que constaba en el RUA estaba fuera de servicio. Hemos sido categóricos al afirmar que los requerimientos que hace la ODIN a un notario se equiparan a aquellos que hace este Tribunal, por lo que deben atenderse con la misma premura y diligencia. Véase In re Padilla Santiago, 190 D DPR 535, 538 (2014).
De igual manera, hemos sostenido que eludir los *469requerimientos de este Tribunal constituye, de por sí, una falta ética independiente que podría conllevar la imposición de sanciones disciplinarias severas. In re Chardón Dubós, 191 DPR 201, 207-208 (2014) (“los abogados tienen una obligación inexcusable de responder diligentemente a nuestros requerimientos, así como a los de la ODIN y del Procurador General” (énfasis suprimido)). Por no haber actualizado su información en el RUA, la Resolución emitida por este Tribunal el 13 de mayo de 2015 no pudo diligenciarse personalmente. Esto a pesar de los múltiples esfuerzos realizados por los alguaciles de este Tribunal para localizar al licenciado. A esos efectos, su incomparecencia constituye una violación adicional a los preceptos éticos que rigen en nuestro ordenamiento. Específicamente, el Canon 9 del Código de Ética Profesional dispone que todo “abogado debe observar para con los tribunales una conducta que se caracterice por el mayor respeto”. 4 L LPRA Ap. IX. Como anticipamos, al interpretar esta disposición hemos afirmado que un abogado que incumple con las órdenes de este Tribunal demuestra menosprecio hacia nuestra autoridad e infringe el referido canon. Véase In re Chardón Dubós, supra. Consiguientemente, procede la suspensión indefinida e inmediata de la abogacía y la notaría cuando un abogado ignora los requerimientos de la ODIN y de este Tribunal. Véanse: In re Chardón Dubós, supra; In re Montes Díaz, 184 DPR 90, 94 (2011); In re Torres Rodríguez, 163 DPR 144, 148 (2004).
IV
El informe presentado por el Director de la ODIN en este caso apunta a un incumplimiento craso y reiterado por parte del licenciado Cabrera Acosta con distintos preceptos de la Ley Notarial y el Reglamento de este Tribunal. Además, el licenciado no compareció ante este Tribunal cuando se le requirió mediante Resolución. Resulta forzoso, pues, *470ordenar la suspensión inmediata e indefinida del licenciado Cabrera Acosta del ejercicio de la abogacía y la notaría. Además, concedemos un término de quince días al licenciado Cabrera Acosta para certificar su cabal cumplimiento con los requerimientos de la Ley Notarial y con el deber de actualizar sus datos personales en el RUA. El licenciado Cabrera Acosta también deberá acreditar el pago de su fianza notarial para los años 2011, 2012, 2013, 2014 y 2015.
Por último, el licenciado Cabrera Acosta tiene el deber de notificar a todos sus clientes de su inhabilidad de continuar representándolos, devolverles los honorarios recibidos por trabajos no realizados e informar prontamente de su suspensión a los foros judiciales y administrativos del País. Deberá presentar una certificación a esos efectos dentro de los treinta días siguientes a la notificación de esta Opinión per curiam. En atención al hecho de que el licenciado Cabrera Acosta presuntamente se encuentra fuera de Puerto Rico, la notificación deberá, además, enviarse vía correo certificado con acuse de recibo a la dirección obtenida mediante el sistema ROCIC.
Se dictará sentencia de conformidad.
El Juez Asociado Señor Rivera García no intervino.
La razón para la devolución fue: “Unclaimed — Unable to Forward”.
La razón para la devolución fue: “Attempted — Not Known — Unable to Forward”.
Bn esta tercera ocasión, el sobrp fue devuelto con una anotación no oficial en manuscrito con el mensaje siguiente: “El no vive aquí. Se mudó a los Estados Unidos hace alrededor de tres años”.
Según surge del Informe de CasoNúm. TS-17,371 de 22 de mayo de 2015, dos alguaciles de este Tribunal intentaron localizar al licenciado Cabrera Acosta personándose a las distintas direcciones residenciales de éste, según constaban en el Registro Unico de Abogados y Abogadas (RUA). Estos esfuerzos no rindieron frutos. Así las cosas, los alguaciles se dirigieron al Departamento de Justicia para verificar la última dirección registrada del licenciado en el sistema ROCIO (Regional Organized Crime Information Center). La dirección más reciente que refleja ese informe indica que el licenciado Cabrera Acosta actualmente reside en la ciudad de Maple Valley, en el estado de Washington.
Es importante señalar que, conforme al Artículo 60 de la Ley Notarial de Puerto Rico, 4 LPRA see. 2095, los testimonios que no son incluidos en el índice notarial son nulos hasta tanto el notario subsane y certifique fehacientemente su cumplimiento con la remisión de los informes a la Oficina de Inspección de Notarías (ODIN). | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3806554/ | This appeal was filed September 22, 1932, from a judgment of the district court of Oklahoma county granting the cancellation of an oil and gas lease in favor of the defendants in error. On the 13th day of June, 1983, the defendants in error filed their motion to dismiss, and on the same date there was filed a response of plaintiffs in error to the defendants in errors' motion to dismiss.
In that response it is stated:
"It therefore follows that under the rulings and decisions of this court and opinions adhered to in subsequent decisions, that the plaintiffs in error cannot maintain their position in this case, and that said appeal is without merit, and that said plaintiffs in error respectfully filed this, their response to the defendant in error's motion to dismiss, and admits that the matters and things set out in said motion to dismiss, together with authorities cited thereunder, are a true and correct statement of the facts of said case, and the law applicable thereto."
This is signed by the attorney for the plaintiffs in error.
The court has recently held, according to its constant rule, that:
"Where motion to dismiss the appeal is filed and the plaintiff in error files a response admitting that the motion should be granted, it is in fact a confession of error, and the appeal may, at the discretion of the court, be dismissed." Victor Building Loan Ass'n v. State, 162 Okla. 101,19 P.2d 334.
We have carefully examined the record, and in view of the apparent confession contained in the response and the state of the record, we are of the opinion that the appeal should be dismissed, and it is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2971513/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0142n.06
Filed: December 2, 2004
Nos. 03-5327/5328
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, upon the )
relation and for the use of the TENNESSEE )
VALLEY AUTHORITY, )
)
Plaintiff-Appellee, )
Cross-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF TENNESSEE
EASEMENTS AND RIGHTS-OF-WAY )
OVER 6 ACRES OF LAND, MORE OR )
LESS, IN MADISON COUNTY, )
TENNESSEE; WILLIAM JOBE ROBINSON, )
JR.; CHARLES C. EXUM, )
)
Defendants, )
)
STEAM MILL FERRY PARTNERS, )
)
Defendant-Appellant, )
Cross-Appellee. )
Before: KENNEDY, SUTTON, and COOK, Circuit Judges.
PER CURIAM. The Tennessee Valley Authority (“TVA”) and Steam Mill Ferry Partners
(“Steam Mill”) cross-appeal the district court’s judgment awarding Steam Mill just compensation
of $146,000 for an easement (for TVA’s use) on property that Steam Mill purchased for sand
mining. Steam Mill contends that the district court erred by basing the amount of compensation on
the surface area of the easement and not on an amount that included additional acreage that the
Nos. 03-5327/5328
USA v. Easements
easement would purportedly affect. The TVA argues that the district court erred by using the wrong
valuation method to determine Steam Mill’s compensation and by incorrectly calculating the
compensation using that method. Concluding that the record does not support all of the district
court’s conclusions, we remand the case for further factfinding regarding several aspects of the
court’s decision.
In reviewing a district court’s just-compensation determination, we give its legal conclusions
de novo review and its findings of fact clear-error review. United States v. 461.88 Acres, No. 82-
5780, 729 F.2d 1462 (6th Cir. Feb. 6, 1984) (unpublished); United States ex rel. TVA v. Easement
& Right of Way 100 Feet Wide, 447 F.2d 1317, 1320 (6th Cir. 1971). A finding of fact is clearly
erroneous when the reviewing court, based on the entire evidence, is “left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer, N.C., 470 U.S. 564,
573 (1985). “If the district court’s account of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting
as the trier of fact, it would have weighed the evidence differently. When there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at
573–74.
The district court’s analysis contains three flaws. First, the district court did not apply an
accurate measure of compensation. The correct measure of compensation for an easement, as for
any partial taking, is the difference in fair market value of the whole tract before and after the taking.
See United States v. 2,847.58 Acres, 529 F.2d 682, 686 (6th Cir. 1976). In this case, the relevant
-2-
Nos. 03-5327/5328
USA v. Easements
question is what impact the easement would have on the useful life of the mine. Because the life
of the mine will be shorter after the TVA power lines are placed on the easement, the royalty
payments will end sooner than otherwise expected, and the loss of those future payments must be
discounted (by more years than just one) to present value. See Cloverport Sand & Gravel Co. v.
United States, 6 Cl. Ct. 178, 200–01 (Cl. Ct. 1984). The record does not support the district court’s
apparent assumption that Steam Mill would stop mining the next year instead of continuing to mine
other sections of its property.
A correct application of the royalty capitalization method requires that the district court take
the royalties from the life of the mine before the taking and subtract the royalties from the life of the
mine after the taking. For example, assume that 3 acres per year can be extracted and absorbed by
the market and that the impacted area is 9 acres. Because the land consists of 90 acres, the life of
the mine (or Steam Mill’s income stream) before the taking would be 30 years. Since 9 acres are
impacted, 3 years of the mine’s life would be lost as a result of the taking, leaving only a 27-year
income stream. Assuming that Steam Mill can expect to receive a royalty of $0.50 per ton and
320,100 tons (3 acres) can be extracted per year and that we apply a 10% discount rate, the present
value of the 30-year income stream would be $1,508,777, and the present value of the 27-year
income stream would be $1,478,417. Just compensation, being the difference between the two
streams, would be $30,360.
Second, the evidence does not support the annual mining rate of 2.9 acres (320,100 tons)
used by the district court in its calculation. In reaching this conclusion, the court relied on its
-3-
Nos. 03-5327/5328
USA v. Easements
expert’s analysis. But this expert testimony, which itself relied on testimony from an individual (Mr.
Johnson) at Steam Mill, concluded that 2.9 acres could be mined in “one to two years.” JA 130.
Steam Mill’s appraiser, moreover, testified that based on information he had received from Steam
Mill, only one acre per year could be extracted. JA 65. Even assuming that Steam Mill could mine
2.9 acres per year, which the record does not support, the district court also should have considered
whether market demand suffices to absorb this supply of sand. See Cloveport, 6 Cl. Ct. at 199;
United States v. 47.14 Acres, 674 F.2d 722, 726–27 (8th Cir. 1982).
Third, in concluding that only 2.9 acres would be affected by the easement, the district court
also determined that only the land under the surface area of the easement could no longer be mined.
Even the court’s expert, however, admitted on cross-examination that the TVA would require a
slope restriction to ensure the stability of its power-line poles and that this slope restriction would
extend beyond the area covered by the easement. JA 118–19. The TVA’s engineer testified that the
slope-restriction requirement would preclude any mining within a 25-foot radius around the poles
and guys. JA 89. Beyond the 25-foot radius, he added, the TVA would require a two-to-one slope
for the first 25 feet of depth (i.e., for every two feet out, the defendants could mine one foot down).
In addition to these restrictions, the TVA required a four-to-one slope for the remaining 25 feet of
depth. JA 88–90. All told, these restrictions affected an additional 5.825 acres. In response, the
TVA argues that this 5.825-acre figure may be offset by the fact that Steam Mill could mine “areas
in the right-of-way between and to the sides of the poles,” and that there were “areas in the right-of-
way where mining would have been restricted in any event to provide lateral support to an adjoining
-4-
Nos. 03-5327/5328
USA v. Easements
property owner.” TVA Br. at 8–9. Determining whether this offset argument is correct, however,
requires sheer speculation, as the district court never made any such finding on this point.
For these reasons, we remand the case to the district court for further findings and, if
necessary, for further evidence and new conclusions.
-5- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1025341/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1074
YVETTE COLE,
Plaintiff - Appellant,
v.
GRACE B. BENNETT, Magistrate Judge, Hampton County; HAMPTON
COUNTY; STATE OF SOUTH CAROLINA,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Solomom Blatt, Jr., Senior District
Judge. (9:07-cv-03748-SB)
Submitted: March 27, 2008 Decided: April 4, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Yvette Cole, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yvette Cole appeals the district court’s order accepting
the recommendation of the magistrate judge and dismissing her 42
U.S.C. § 1983 (2000) complaint without prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B) (2000). We have reviewed the record and
find no reversible error. Accordingly, we affirm for the reasons
stated by the district court. Cole v. Bennett, No. 9:07-cv-03748-SB
(D.S.C. Dec. 20, 2007). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 2 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2854913/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-356-CV
GARY EARL WALKER APPELLANT
V.
SOUTHWEST BASKETBALL, LLC APPELLEES
AND NBDL FORT WORTH, LLC
------------
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Appellant Gary Earl Walker appeals a take-nothing judgment in favor of
appellees Southwest Basketball, LLC (“Southwest”) and NBDL Fort Worth, LLC
(“NBDL”). We affirm.
NBDL and Southwest planned to place an NBA Development League
basketball franchise, the Fort Worth Flyers, in Fort Worth. The Fort Worth
1
… See Tex. R. App. P. 47.4.
Flyers were to be operated by NBDL which was, in turn, controlled by
Southwest. Southwest owned eighty percent of NBDL. David Kahn founded
Southwest, and is the sole manager of both Southwest and NBDL.
By September of 2005, Walker had made investments in Southwest
totaling $150,000. In August 2006, Walker agreed to invest an additional
$75,000 in NBDL following a conference call with Kahn and Tim Berry, of N3
Texas Hoops, LLC (“N3"), during which the parties discussed financial and
marketing problems NBDL was experiencing in the Fort Worth market. NBDL
continued to experience a lack of progress in the Fort Worth market, and
another conference call was held during which Walker requested that his
August 2006 investment be returned. Kahn promised he would do everything
he could to return Walker’s investment.
In December 2006, Southwest was in the process of bringing in a new
investor who planned to invest $1,400,000 in Southwest, a portion of which
Southwest intended to invest in NBDL. After preparing an amended operating
agreement to accommodate the new investor, Kahn emailed a copy of the
proposed agreement to Walker for execution. On or before December 14,
2006, the following email exchange ensued:
Email from Khan to Walker:
2
[G]ary, if you haven’t already, please send in the signed signature
page from the document distributed to [Southwest] investors on
11/30. [W]e’re aiming to close today. . . .
Reply from Walker to Khan:
Please send in writing confirmation of our conversation, that Tim
[N3] and I will get our money back by [the] end of [the] month.
Then I will find the email tomorrow and execute by [the] end of
[the] day.
Response from Khan to Walker:
Confirmed. Please send the signed signature page to Lainie Dillon
at 503-220-2480. We should be able to send checks to you and
Tim [N3] within 48 hours of the close.
Walker eventually signed the amended operating agreement and the new
investor was brought in.
In January 2007, NBDL informed Walker that before it would return
Walker’s August 2006 investment, he would need to sign an LLC Unit Purchase
Agreement and Release of Claims, which included an offer by NBDL to buy
back the additional units of ownership in NBDL that Walker purchased in August
2006. Walker, however, rejected the offer by making a counter-offer which
changed the language in the release of claims. NBDL would not agree to the
changes and refused to return Walker’s investment.
Walker sued appellees for breach of contract. After a bench trial between
Kahn and Walker, the trial court entered a judgment for appellees that Walker
3
take nothing. Walker then filed a motion for new trial, which was denied by the
trial court. The trial court entered findings of fact and conclusions of law.
Walker filed this appeal.
Walker challenges the legal and factual sufficiency of the trial court’s
finding that no contract was formed between Walker and appellees whereby
appellees would return Walker’s August 2006 investment. Walker argues that
the evidence conclusively establishes that there was such a contract, and, in
the alternative, that the trial court’s failure to find such a contract is against the
overwhelming weight of evidence to the contrary.
Findings of fact entered in a case tried to the court have the same force
and dignity as a jury’s answers to jury questions. 2 The trial court’s findings of
fact are reviewable for legal and factual sufficiency of the evidence to support
them by the same standards that are applied in reviewing evidence supporting
a jury’s answer.3
If a party is attacking the legal sufficiency of an adverse finding on which
the party had the burden of proof, and there is no evidence to support the
finding, we review all the evidence to determine whether the contrary
2
… Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
3
… Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994).
4
proposition is established as a matter of law.4 When reviewing an assertion
that the evidence is factually insufficient to support an adverse finding, we set
aside the finding only if, after considering and weighing all of the evidence in
the record pertinent to that finding, we determine that the finding is so contrary
to the overwhelming weight of all the evidence, that the answer should be set
aside and a new trial ordered.5
Walker contends that the December 2006 email exchange between him
and Kahn conclusively establishes a written agreement on the part of NBDL to
reimburse Walker for his August 2006 investment of $75,000 in exchange for
his execution of the amended operating agreement. There was testimony
offered at trial, however, showing that NBDL did not understand Walker’s email
to mean that he was offering to exchange his signature on the amended
operating agreement for return of his August 2006 investment. In fact, at trial,
Kahn flatly rejected this interpretation of the email exchange:
Q. Did you understand Mr. Walker’s e-mail to mean that you
were agreeing to exchange his signature on the Amended Operating
Agreement in exchange for – – in exchange for [Southwest] paying
Mr. Walker $75,000?
4
… Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner
v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).
5
… Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate,
150 Tex. 662, 664–65, 244 S.W.2d 660, 661 (1951).
5
A. Absolutely not.
Kahn further testified that at the time of the December 2006 email exchange
with Walker, the parties understood that to unwind the August 2006
investment, the purchase agreement and release of claims would need to be
executed. He said that when he wrote in his email to Walker that, “We should
be able to send checks to you and Tim within 48 hours of the close,” he was
simply confirming that Walker’s execution of the amended operating agreement
would put NBDL in a financial position to unwind that investment after the
release of claims was executed. Thus, the evidence does not conclusively
establish an acceptance of Walker’s offer, or a meeting of the minds, to support
either a written or oral contract.6
Because the evidence does not conclusively establish the elements
necessary for the trial court to find a contract between Walker and appellees
for the return of Walker’s August 2006 investment in exchange for his
signature on the amended operating agreement, we overrule appellant’s legal
sufficiency challenge. Moreover, after reviewing all of the evidence in the
record relevant to the trial court’s finding that no contract was formed between
6
… See generally Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex.
App.—Fort Worth 2004, pet. denied) (listing elements for valid contract).
6
Walker and appellees, we cannot say that the trial court’s finding is against the
great weight of the evidence.
We overrule Walker’s four issues. The trial court’s judgment is affirmed.
PER CURIAM
PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
DELIVERED: December 23, 2009
7 | 01-03-2023 | 09-04-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892753/ | NO. 07-04-0251-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 16, 2005
______________________________
JAMES GUTIERREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A15152-0309; HONORABLE ROBERT W. KINKAID, JR., JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following a not guilty plea, appellant James Gutierrez was convicted by a jury of theft and punishment was assessed by the trial court at two years confinement in a state jail facility and a $2,500 fine. In presenting this appeal, counsel has filed an
Anders
(footnote: 1) brief in support of a motion to withdraw. We grant counsel’s motion and affirm.
In support of his motion to withdraw, counsel certifies he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).
Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a
pro se
response if he desired to do so. Appellant did not file a
response. Neither did the State favor us with a brief.
Luis Asebedo and appellant had been roommates in the past, and when appellant needed a place to stay, he moved in with Luis and his live-in girlfriend, Avilda Sanchez. Luis and Avilda made frequent trips to Kansas and left appellant in charge of their home. Appellant was never given a house key and the door was left unlocked when he went out.
Upon returning from a trip to Kansas, Luis noticed numerous items missing from his home. He called the police, but also wanted to talk with appellant before filing a report. When he found appellant at a relative’s house, he picked him up and they returned home. According to Luis, after a confrontation, appellant admitted he took the items because he was sick and needed the money and apologized. Luis called the police a second time to file a report. Luis testified that appellant admitted taking the items in the presence of the responding police officer. Avilda returned from Kansas a day later. She confronted appellant about her jewelry box and its contents and testified that appellant apologized.
Appellant was the only witness in his defense. He testified he was at a friend’s house when he learned that Luis had returned from Kansas and was looking for him. He called Luis and told him to pick him up at his sister-in-law’s house. He denied admitting to Luis, Avilda, or the responding officer that he took the missing items. His sorrow, he claimed, was because the items had been taken while he was in charge of the home. A few days after the incident, he left for Oklahoma. Months later he learned through his family, who was close to Luis, that he had been accused of the theft. He returned to Texas and turned himself in to the sheriff’s office and was arrested.
By the
Anders
brief, counsel does not advance any arguable grounds for appeal. Appellant was indicted for theft of property of the value of $1,500 or more, but less than $20,000. After proper
voir dire
, a jury was empaneled and appellant’s trial commenced. The State presented testimony from Luis and Avilda and then rested. Appellant testified in his own defense, and during cross-examination, the State inquired into prior felony convictions to which defense counsel objected as being prejudicial. After a hearing outside the jury’s presence, the court concluded appellant could be impeached with a prior forgery conviction but not a prior DWI. Defense counsel’s motion for mistrial on the ground that the State violated a motion in limine was overruled and the jury was instructed to disregard the State’s question. The denial of a motion for mistrial is reviewed for abuse of discretion. Trevino v. State, 991 S.W.2d 849, 851 (Tex.Cr.App. 1999); Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.–Amarillo 2002, pet. ref’d). Also, an instruction to disregard is sufficient to cure error when evidence is placed before the jury in violation of a motion in limine. Barney v. State, 698 S.W.2d 114, 125 (Tex.Cr.App. 1985). No reversible error is presented in the trial court’s denial of appellant’s motion for mistrial.
It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004-05); Tex. Pen. Code Ann. § 2.01 (Vernon 2003). In conducting a legal sufficiency review, we examine the verdict, after viewing the evidence in the light most favorable to the prosecution, to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979);
Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Cr.App. 2001). This standard is the same in both direct and circumstantial evidence cases.
Burden
, 55 S.W.3d at 612-13. In measuring the sufficiency of the evidence to sustain a conviction, we measure the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997).
This is done by considering all the evidence that was before the jury—whether proper or improper—so that we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a “mere modicum” of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).
After conducting a legal sufficiency review under
Jackson
, we may proceed with a factual sufficiency review. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). As an appellate court, we view all the evidence without the prism of “in the light most favorable to the prosecution” and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). It is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the record clearly demonstrates a different result is appropriate, we must defer to the jury’s determination.
Id.
at 8.
Theft is the unlawful appropriation of property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a). An appropriation is unlawful if it is without the owner’s effective consent. § 31.03(b)(1). In circumstantial evidence cases it is not necessary that every fact point directly and independently to the accused's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993),
cert. denied
, 511 U.S. 1046, 114 S. Ct. 1579, 128 L. Ed. 2d 222 (1994); Armstrong v. State, 958 S.W.2d 278, 283 (Tex.App.--Amarillo 1997, pet. ref'd).
The evidence showed that appellant was the sole occupant of the home while Luis and Avilda were in Kansas. According to their testimony, when they left for Kansas all the items that were later missing had been in the home. There was no evidence of a break-in. Luis testified that a DVD player, television, video game player, VCR, movies, boots, sandals, clothing, and Avilda’s metal jewelry box and contents were missing. He offered estimates of the value of the items, except for the jewelry box and its contents with which Avilda was more familiar. She testified that three years prior to the incident her jewelry had been appraised at $5,000 and that she had probably added another $4,000 since then.
Although neither victim could confirm that appellant possessed the stolen items, Luis testified that appellant was wearing a pair of his pants and his shirt. Appellant, however, claimed that he took Luis’s pants and shirt because when he went to the house to pack and move out, his personal belongings were gone. The jury, as trier of fact, may believe all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App. 1986). A jury’s decision is not manifestly unjust merely because it resolved conflicting views of evidence in favor of the State, Cain v. State, 958 S.W.2d 404, 410 (Tex.Cr.App. 1997).
In rebuttal to appellant’s testimony, the responding officer testified that when he returned to Luis’s home a second time, Luis and appellant were talking in the front yard. He heard appellant admit to Luis that he had taken the items to buy crack, but did not arrest him at the time because he did not have a warrant. We conclude the evidence was legally and factually sufficient to support appellant’s conviction.
According to the record, appellant was afforded effective assistance of counsel.
See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
See also
Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986)
. Counsel filed numerous pre-trial motions, conducted proper
voir dire
, lodged objections to the State’s questions, vigorously cross-examined witnesses, and moved for mistrial.
Given the presumption that counsel’s conduct falls within the wide range of reasonable and professional representation, no reversible error is demonstrated. Bone v. State
, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002);
see also
Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001).
Appellant was convicted of a state jail felony and sentenced to two years confinement and a $2,500 fine.
See
Tex. Pen. Code Ann. § 31.03(a), (b) & (e)(4)(A). Punishment for a state jail felony ranges from 180 days to two years and a fine not to exceed $10,000. § 12.35(a) & (b). A trial court is vested with a great degree of discretion in imposing an appropriate sentence. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App. 1984). If the punishment assessed is within the statutory range, then it should not be disturbed on appeal. Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App. 1978). Additionally, no objection was made when sentence was pronounced by the trial court. Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Cr.App. 1999).
After our
independent examination of the entire record, we conclude there are no arguable grounds which might support this appeal.
See
Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We agree with counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
FOOTNOTES
1:Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047582/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1258
___________
Archie I. Welch, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Michael J. Astrue, Commissioner of *
Social Security, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: September 4, 2009
Filed: September 9, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Archie Welch appeals the district court’s1 order affirming the denial of
disability insurance benefits and supplemental security income. Following de novo
review, see Casey v. Astrue, 503 F.3d 687, 691 (8th Cir. 2007), we conclude that the
decision is supported by substantial evidence on the record as a whole.
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota, adopting the report and recommendation of the Honorable
Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota.
Welch, born on July 3, 1962, had worked in the past as a gardener, laundry
worker, and housekeeper, and most recently in a factory as a machinist and then as a
stacker. He had a grand mal seizure for the first time in late 2000. In applying for
benefits, Welch alleged he could no longer work after March 2001 as a result of a
seizure disorder and borderline intellectual functioning. An administrative law judge
(ALJ) conducted a hearing in June 2005, and thereafter determined that (1) Welch’s
seizure disorder and borderline intellectual functioning were severe impairments; (2)
the impairments alone or combined did not meet or equal a listed impairment, given
the infrequency of his seizures and his level of adaptive functioning; (3) Welch’s
allegations regarding his limitations were not fully credible; (4) Welch had the
residual functional capacity (RFC) for simple, repetitive, and routine tasks with no
independent multi-tasking, minimal changes in routine, no more than brief and
superficial contact with the public, and no work at unprotected heights or around
unprotected or dangerous machinery; and (5) consistent with the testimony of the
vocational expert, his past relevant work as a housekeeper was not precluded by his
RFC. The ALJ thus concluded that Welch was not disabled within the meaning of
the Social Security Act. After the Appeals Council denied review, Welch brought this
action. The district court granted the Commissioner’s motion for summary judgment,
rejecting Welch challenge to the finding that he was not disabled under Listing
12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1, related to mental retardation.
Upon careful review, we conclude that substantial evidence on the record as a
whole supported the ALJ’s conclusion that Welch’s impairments did not meet the
requirements of Listing 12.05C. See Gonzales v. Barnhart, 465 F.3d 890, 894 (8th
Cir. 2006) (claimant bears burden of establishing impairment meets or equals listed
impairment); Maresh v. Barnhart, 438 F.3d 897, 899-900 (8th Cir. 2006) (to meet
Listing 12.05C, claimant must show valid verbal, performance, or full scale IQ of 60-
70, manifested before age 22, and physical or other mental impairment imposing
additional and significant work-related limitation). In particular, Welch’s past IQ
scores ranged from 70 to 83, and the ALJ did not err in finding Welch’s seizure
-2-
disorder, which was well controlled on medication, did not impose additional and
significant work-related limitation of function. See Schultz v. Astrue, 479 F.3d 979,
983 (8th Cir. 2007) (when impairment is controlled by medication or treatment, it
cannot be considered disabling); Clark v. Apfel, 141 F.3d 1253, 1255-56 (8th Cir.
1998) (ALJ may reject IQ scores that are inconsistent with the record, including daily
activities and behavior, and non-treating psychologist’s one-time evaluation is not
entitled to controlling weight); cf. Maresh, 438 F.3d at 900-01 (claimant’s verbal IQ
of 70 and severe personality disorder, manifested by fighting with other children at
young age and current inability to get along with others, met Listing 12.05C
regardless whether he could perform gainful activity); Keller v. Shalala, 26 F.3d 856,
857-58 (8th Cir. 1994) (claimant’s verbal IQ of 67 and migraine headaches, which
ALJ improperly discredited, constituted work-related impairment that was more than
slight or minimal).
Accordingly, we affirm the judgment of the district court.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047583/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2310
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Simon Anthony White, Jr., *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: March 9, 2009
Filed: September 8, 2009
___________
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Simon Anthony White, Jr., pled guilty to sexual abuse of a minor, in violation
of 18 U.S.C. §§ 1151, 1153, and 2243(a). At sentencing, the district court1 calculated
an advisory guideline range of 108 to 135 months’ imprisonment, and sentenced
White to 144 months’ imprisonment. White appeals his sentence, arguing that the
district court committed procedural error and imposed a substantively unreasonable
sentence. We affirm.
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
I.
In January 2007, White worked as an overnight security guard at Seven Clans
Casino and Hotel in Thief River Falls, Minnesota. After finishing work at 8:00 a.m.
on January 30, he went to a hotel room at the casino where his adult step-niece,
Jennifer Stately, was staying along with a friend and Stately’s fifteen-year-old cousin,
H.S. White and Stately mixed an alcoholic drink and then left the hotel together for
a drive in a car. During the drive, they continued to drink, and White twice asked
Stately what she would do if he touched her. She responded that she would kick him,
run, and call the police.
White eventually dropped Stately back at the hotel, and a few minutes later, he
returned to her hotel room. White asked for more alcohol, but Stately did not have
any, so White just sat down on a chair in the room. Stately left the room to take a
shower, and shortly thereafter, her friend also left the room, leaving White alone with
H.S., who was sleeping on a bed. H.S. then awoke with White laying on top of her,
penetrating her vagina. White remained on top of H.S. for a couple of minutes. He
eventually removed himself from the bed, told H.S. to put her clothes back on, and left
the hotel room.
H.S. reported the incident and underwent a sexual assault examination. DNA
from sperm obtained during the examination matched DNA from a saliva sample that
White provided to law enforcement. A federal grand jury indicted White for sexual
abuse of a minor, in violation of 18 U.S.C. §§ 1151, 1153, and 2243(a). White
remembered that he was in the hotel room drinking, but said that he had no
recollection of the other events of the morning, and could not believe that the
allegations by H.S. were true. After learning of the DNA match, however, he pled
guilty to the charge.
-2-
At sentencing, White did not object to the presentence investigation report
(“PSR”) or to the calculation of the advisory guideline range. The court correctly
determined that the guideline range was 108 to 135 months’ imprisonment,
corresponding to an offense level of 29 and a criminal history category III. After
hearing from White and the mother of H.S., the district court imposed a sentence of
144 months’ imprisonment, which it described as “a departure upward from the
sentencing guideline range, although it is not substantial.” The court acknowledged
that it could not presume the guideline range to be reasonable, and explained that it
thought the 144-month sentence was appropriate because “the community needs” to
have White in custody for “basically ten solid years,” and because “[t]hey need to also
recognize the seriousness of this and the fact that a child ought to be protected.”
The court also emphasized that this offense “is not the first time that [White]
has been engaged in this kind of thing.” The court had elaborated on White’s past
behavior earlier in the hearing:
[W]hile I do not count it as part of your criminal history for sentencing
enhancement purposes, this is not the first time that you have forgotten
a sexual assault. You do not get two bites of this kind of apple. What
you have done is a horrifying, unspeakable crime to somebody who had
no reason to be subjected to it and there is not an excuse for it. You
haven’t offered one – which is fine – but simply to say, “Well, I don’t
remember” doesn’t cut it. This child did not deserve what happened to
her. She never could have, she never did.
The prior “forgotten” sexual assault to which the court referred is described in
paragraph 28 of White’s PSR. In August 1982, when White was eighteen, he pled
guilty in Minnesota state court to false imprisonment arising out of an alleged sexual
assault. He initially had been charged with more serious assault and criminal sexual
conduct charges, but these charges were dismissed as part of a plea agreement.
According to court documents, the victim, who is the mother of one of White’s
-3-
children, alleged that he grabbed her while she was walking alone and pulled her into
a nearby wooded area. There, he struck her many times, threw her to the ground,
pulled down her pants, and threatened to rape and kill her. The victim was able to
escape briefly, but White caught her again and threatened to kill her with a knife that
he produced. The victim struggled to get away and yelled for help until two men
arrived and pulled White away from her. White admitted to holding down the victim
and hitting her in the face, but claimed that he did not remember pulling down her
pants and did not carry a knife. The presentence report did not include this offense
in White’s criminal history calculation because it was outside the applicable time
period under the guidelines. See USSG § 4A1.2(e).
White appeals his sentence, arguing that the district court committed procedural
error and imposed a substantively unreasonable sentence.
II.
Under the framework of Gall v. United States, 128 S. Ct. 586 (2007), we must
first consider whether the district court committed a “significant procedural error”
when imposing sentence. Id. at 597. For the first time on appeal, White points to two
alleged procedural errors. Because he did not raise these objections at sentencing, we
review for plain error. See United States v. Vaughn, 519 F.3d 802, 805 (8th Cir.
2008).
White first contends that the district court erred by departing upward for
underrepresentation of criminal history pursuant to USSG § 4A1.3 without conducting
the appropriate analysis under that section. The record shows, however, that the
district court did not apply § 4A1.3 in calculating the guideline range. Although the
court stated that its sentence was “a departure upward,” it is clear from its explanation
that the court actually calculated an advisory guideline range without a traditional
departure under the guidelines, but then varied from the guideline range based upon
-4-
the factors set forth in 18 U.S.C. § 3553(a). See United States v. Dehghani, 550 F.3d
716, 723 n.4 (8th Cir. 2008). Therefore, the district court was not required to conduct
an analysis under § 4A1.3, and it did not commit procedural error.
White next contends that the district court erred in basing White’s sentence on
its finding that the instant offense was “not the first time that [White] has been
engaged in this kind of thing.” According to White, this was error because the
“district court made no specific findings” regarding White’s previous behavior, and
the information contained in the PSR was unreliable. To the extent that White is
arguing that the court based its sentence on clearly erroneous facts, his claim is
without merit. White did not object to the presentence report, and the district court
was therefore permitted to accept the facts contained in the report as true when
determining an appropriate sentence. United States v. Razo-Guerra, 534 F.3d 970,
975 (8th Cir. 2008). Paragraph 28 of the PSR described White’s previous guilty plea
to the charge of false imprisonment arising out of an alleged sexual assault, and
recounted the factual circumstances of the offense. Therefore, the district court
properly relied on these factual statements, including the victim’s report of the offense
conduct and White’s assertion that he could not recall aspects of the incident. There
was no procedural error.
White also argues that his sentence was substantively unreasonable because it
was greater than necessary to comply with the sentencing factors set forth in
§ 3553(a). We review the reasonableness of the sentence under a deferential abuse-of-
discretion standard. Gall, 128 S. Ct. at 597. The district court imposed a sentence of
144 months’ imprisonment, which was nine months greater than the advisory
guideline range. Giving due deference to the district court’s careful consideration of
the § 3553(a) factors, we see no basis to conclude that White’s sentence is
substantively unreasonable.
For these reasons, the judgment of the district court is affirmed.
______________________________
-5- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047585/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3489
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Julio Garcia-Hernandez, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: September 2, 2009
Filed: September 8, 2009
___________
Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
In this direct criminal appeal, Julio Garcia-Hernandez, who was found guilty
by a jury on a drug-conspiracy count and a firearm count, challenges the
reasonableness of the sentence the district court1 imposed following this court’s
remand for resentencing, see United States v. Garcia-Hernandez, 530 F.3d 657, 664-
66 (8th Cir. 2008) (affirming conviction, but holding that 2-level enhancement under
U.S.S.G. § 3B1.1(c) was based on clearly erroneous finding and that greater
enhancement was warranted). At Garcia-Hernandez’s resentencing hearing, the
1
The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
district court imposed a 3-level enhancement under U.S.S.G. § 3B1.1(b); recalculated
the applicable Guidelines range; considered the factors under 18 U.S.C. § 3553(a); and
imposed a below-Guidelines-range sentence that was greater than the sentence the
court had originally imposed.
Upon careful review, we conclude—contrary to Garcia-Hernandez’s arguments
on appeal—that (1) the district court’s resentencing decision was not improper under
Gall v. United States, 552 U.S. 38, (2007) (rejecting appellate rule
that requires extraordinary circumstances to justify sentence outside Guidelines range
and rejecting use of rigid mathematical formula based on percentages as standard for
determining strength of justifications required for specific sentence), and (2) the
district court did not mistakenly believe it was required on remand to impose a
sentence greater than its original sentence. We thus hold that the district court did not
abuse its discretion in resentencing Garcia-Hernandez. See United States v. Long
Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005) (reasonableness of sentence reviewed
for abuse of discretion; abuse of discretion occurs when sentencing court fails to
consider relevant factor that should have received significant weight, gives significant
weight to improper or irrelevant factor, or considers only appropriate factors but
commits clear error of judgment in weighing those factors); see also 18 U.S.C.
§ 3553(a)(4)(A) (among factors to be considered in imposing sentence is applicable
Guidelines sentencing range).
Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047586/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3767
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
David DeWayne Parson, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: December 8, 2008
Filed: September 8, 2009
___________
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
David DeWayne Parson pled guilty to conspiring to distribute, and to possess
with intent to distribute, 500 grams or more of a mixture or substance containing
methamphetamine, within 1000 feet of a college, between about January 2004 and
August 18, 2005, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 860.
He also pled guilty to possession with intent to distribute 50 grams or more of a
mixture or substance containing methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). On November 20, 2007, the district court sentenced Parson
to 235 months’ imprisonment. On appeal, Parson argues that the district court erred
in calculating the applicable advisory guideline range and by requiring an
“exceptional” showing before it would consider his drug addiction. We conclude that
the district court correctly calculated the advisory guideline range, but that Parson is
entitled to resentencing in light of Gall v. United States, 128 S. Ct. 586 (2007).
Although the federal sentencing guidelines are now advisory, “a district court
should begin all sentencing proceedings by correctly calculating the applicable
Guidelines range.” Id. at 596. In this case, the district court began by considering
Parson’s base offense level under USSG § 2D1.2. Based on the quantity of drugs for
which it found Parson was responsible, the district court determined that Parson’s base
offense level was 39. Id. § 2D1.2(a)(2). Parson challenges this determination,
alleging that the district court made two separate errors in calculating the applicable
drug quantity.
First, Parson argues that the district court erred by including quantities of
methamphetamine that he purchased between 1999 and 2003, prior to the beginning
date of the charged conspiracy to which he pled guilty. We conclude that the district
court did not clearly err by considering these amounts. In calculating a defendant’s
base offense level under the advisory guidelines, a district court must consider not
only the offense of conviction, but also any relevant conduct. Id. § 1B1.3. We find
no error in the district court’s decision to treat Parson’s prior drug transactions as
relevant conduct, because there was sufficient evidence that they formed part of “the
same course of conduct or common scheme or plan” as the conspiracy to which
Parson pled guilty. Id. § 1B1.3(a)(2). According to testimony at sentencing, Parson
maintained the same method of operation before the conspiracy – acting as a
middleman between buyers and sellers and receiving payment for his services in the
form of drugs – as he did during it. The district court was thus justified in concluding
that Parson’s prior drug transactions were sufficiently “close to the charged conduct
in both their similarity and their regularity” to be included in the calculation of
Parson’s base offense level. United States v. Anderson, 243 F.3d 478, 485 (8th Cir.
2001).
-2-
Second, Parson contends that the district court erred by holding him responsible
for drugs he acquired for his own use. This court has held, however, that in the case
of a defendant convicted of conspiracy to distribute a controlled substance, the
defendant is accountable for all drugs that are part of the same course of conduct or
common scheme or plan, including quantities intended for personal use. United States
v. Weiland, 284 F.3d 878, 882 (8th Cir. 2002); United States v. Behler, 100 F.3d 632,
637 (8th Cir. 1996).
Although the district court correctly calculated the advisory guideline range,
Parson argues that the court erred when it determined the ultimate sentence based on
the factors enumerated in 18 U.S.C. § 3553(a). The court did vary downward from
the advisory range, but Parson says the court believed it could not consider Parson’s
drug addiction – an element of the history and characteristics of the defendant, id.
§ 3553(a)(1) – unless Parson was an “exceptional addict.” S. Tr. 156; see United
States v. Hodge, 469 F.3d 749, 757 (8th Cir. 2006) (“We have previously held that
drug addiction is not a proper basis for sentencing a defendant below the advisory
Guidelines range, absent extraordinary circumstances.”). The government concedes
that a requirement of extraordinary circumstances to justify a sentence outside the
advisory range is impermissible in light of Gall, 128 S. Ct. at 595, and that the case
should be remanded for the court to consider whether Parson’s drug addiction would
justify a further downward variance under § 3553(a). Expressing no view on whether
a different sentence is warranted, we agree that a remand is appropriate. See United
States v. Alexander, 556 F.3d 890, 893-94 (8th Cir. 2009).
For these reasons, we vacate Parson’s sentence and remand for resentencing
consistent with this opinion.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7433313/ | Certiorari denied without opinion. 221 So.2d 470. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3222879/ | The defendant was indicted, tried, and convicted of an assault to murder one Mattie Phillips, and from a judgment of conviction he appeals.
On the trial of the case, the evidence being largely circumstantial, the state undertook to prove threats made by the defendant against the party assaulted; and on the direct examination of the witness Skinner, the solicitor asked this question, "What did he say in the nature of a threat?" This question was permissible. It sought to limit the answer of the witness to relevant matter, to the exclusion of an entire conversation, which on direct examination would have been irrelevant. The witness answered:
"I don't know whether you would call it a threat against Mr. Phillips or not; he just remarked, 'If I have to leave the county, I am going to leave for something.' ''
The defendant moved to exclude this answer, the court overruled the motion, and the defendant excepted. This motion was properly overruled. It having been shown that the defendant and Phillips had had a recent difficulty, it became a veiled threat that the jury was warranted in finding referred to Mrs. Phillips.
There was no error in permitting the state to prove the threats made by the defendant during the difficulty between him and Phillips; and it was perfectly proper to permit the state to show that the defendant went into the Phillips house in order to show where the threat was made.
Gilbert Rutherford, a witness for the state who testified one way on the trial and admitted that he had testified contrary at a former trial, was asked who caused him to make the first statement, and answered "Will Frank," who was not shown to be connected with the defendant. The question was perfectly proper, and the answer did not and could not injure the defendant. Brindley v. State, 193 Ala. 43, 69 So. 536, Ann. Cas. 1916E, 177.
It was certainly competent for the state to prove by the witness Phillips that he did not make the statement testified to by the witness Webb. We know of no rule that forbids the contradiction of testimony set out in showings for witnesses, except that the testimony in a showing cannot be impeached by proof that the witness made a different statement at another time and place, unless the proper predicate is set out in the showing.
There is no error in the record, and the judgment is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3074795/ | THE THIRTEENTH COURT OF APPEALS
13-14-00258-CV
The City of Alamo, Texas
v.
Pro-Medic EMS, LLC
On Appeal from the
County Court at Law No. 7 of Hidalgo County, Texas
Trial Cause No. CL-14-0969-G
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion. Costs of the appeal are adjudged against
appellant.
We further order this decision certified below for observance.
February 12, 2015 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3222883/ | Suit on a promissory note by appellant against appellee. The litigated issue of fact was presented by the averments of the seventh plea which interposed the defense that defendant was, with knowledge of plaintiff, only a surety on the note sued upon, and that plaintiff, without the knowledge or consent of the defendant, had agreed, with the principal, for a valuable consideration, paid before the maturity of the note, for an extension of time of payment. Scott v. Scruggs, 95 Ala. 383,11 So. 215; Mobile M. Ry. Co. v. Brewer, 76 Ala. 135.
It is insisted the proof was insufficient for submission to the consideration of the jury the material averments of the plea, and that the affirmative charge, as well as others which would lead to a like result, should have been given. Clearly the evidence was sufficient for the jury's consideration that the defendant was, with knowledge of plaintiff, only surety on the note. The time as to the agreement was alleged under a videlicet, and it was not necessary that it be proven exactly as alleged. Alexander v. W. O. W., 161 Ala. 561, 49 So. 883.
A partial payment made before maturity of the debt is sufficient consideration for the extension thereof, and, if made without the assent of the surety, he will be discharged. Scott v. Scruggs, supra. Whether, therefore, the payment was to be in payment of unaccrued interest, or considered merely as advanced partial payment, was immaterial, *Page 335
as either would constitute a valuable consideration sufficient to support an extension of the debt.
A material variance between the allegations and the proof is not shown. Prestwood v. McGowan, 148 Ala. 475, 41 So. 779; A. C. L. R. Co. v. Dahlberg Brokerage Co., 170 Ala. 617,54 So. 168. The affirmative charge as to plea 7 was properly refused.
The remaining question as to the action of the court in overruling the motion for a new trial is not free from difficulty. The issues of fact presented in this cause have been submitted to two separate juries with a like result upon each trial. We have carefully considered the evidence, but to discuss it would serve no useful purpose. Suffice it to say we have reached the conclusion that the action of the trial judge in denying the motion should not be here disturbed.
Finding no reversible error in the record, the judgment will be accordingly affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3110873/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00298-CV
IN RE JAKE COOK RELATOR
------------
ORIGINAL PROCEEDING
------------
MEMORANDUM OPINION1
------------
The court has considered relator’s petition for writ of mandamus and
motion to stay and is of the opinion that relief should be denied. Accordingly,
relator’s petition for writ of mandamus and motion to stay are denied.
PER CURIAM
PANEL: GARDNER, MCCOY, and GABRIEL, JJ.
DELIVERED: July 25, 2012
1
See Tex. R. App. P. 47.4, 52.8(d). | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2819443/ | Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 21, 2015
The Court of Appeals hereby passes the following order:
A15A1087. WILLIAM GUY WELCH v. NORTHWEST GEORGIA HOUSING
AUTHORITY.
William Guy Welch appeals to this Court from the trial court’s order denying
his motion for interlocutory injunction in this condemnation case. The Georgia
Constitution grants the Supreme Court general appellate jurisdiction over “all equity
cases.” Ga. Const. of 1983, Art. IV, Sec. VI, Par. III (2). “‘[E]quity cases’ are those
in which a substantive issue on appeal involves the legality or propriety of equitable
relief sought in the superior court – whether that relief was granted or denied.”
Durham v. Durham, 291 Ga. 231, 232 (2) (728 SE2d 627) (2012) (citation and
punctuation omitted). Here, the issues on appeal appear to center on the legality and
propriety of the equitable relief that Welch seeks. Moreover, it is well-settled that the
ultimate responsibility for determining appellate jurisdiction is vested in the Supreme
Court. See Saxton v. Coastal Dialysis & Medical Clinic, Inc., 267 Ga. 177, 178 (476
SE2d 587) (1996). For these reasons, this appeal is hereby TRANSFERRED to the
Supreme Court for disposition.
Court of Appeals of the State of Georgia
07/21/2015
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk. | 01-03-2023 | 07-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3447939/ | Affirming.
A number of years prior to 1930, G.L. Leddington was married to Nila Tuttle. This was the second matrimonial venture for Leddington, and he had children by a former marriage. While it appears that Nila Tuttle had not been previously married, she had a son named John Matt Tuttle.
In 1930 Mrs. Leddington instituted an action for divorce and alimony and caused an attachment to issue and be levied upon all property of her husband, including a lot and building in the city of Corbin known as the Leddington Hotel. In addition to this building, furniture and fixtures therein, and an automobile, it appears that the only other property owned by Mr. Leddington was an undivided interest in a small tract of land in Laurel county of comparatively little value.
A reconciliation was effected and the litigation terminated by an agreement entered into between the parties on November 11, 1930, which, among other things, provided that G.L. Leddington would convey to his wife an undivided one-half interest in all the real and personal property above enumerated.
In June, 1934, Mrs. Leddington died as a result of a gunshot wound at the hands of her husband. Counsel for the respective parties go outside the record in a controversy as to whether the shooting was accidental or intentional.
After the death of Mrs. Leddington, G.L. Leddington instituted this action against John Matt Tuttle as her only heir at law, alleging that, pursuant to the agreement in the divorce action, he conveyed to his wife a *Page 131
one-half undivided interest in the Leddington Hotel property, and thereafter as provided in the contract he and his wife lived together as husband and wife and enjoyed the use, occupancy, and profits of the hotel property until her death, when the property passed to defendant as her only heir at law; that since the death of his wife he learned for the first time that defendant was claiming to be sole owner of the entire hotel property under a deed of record in the Whitley county court clerk's office, a certified copy of which was filed with and made a part of the petition; that such instrument was a forgery or a fraud upon the right, title, and interest of plaintiff. He alleged in substance that it was the understanding and agreement that he was to convey to his wife a one-half undivided interest in the property, and that he only conveyed such interest, and by his petition and amended petition he asked that the deed in so far as it purported to convey more than a one-half undivided interest in the property, be declared void and of no force and effect, and that he be adjudged to be the owner of the one-half undivided interest not so conveyed.
By appropriate pleadings the issues were completed, and on final hearing plaintiff was granted the relief sought, and it was adjudged that, in so far as the deed undertook to convey more than a one-half undivided interest in the property, same be canceled, set aside, and held for nought, and adjudged plaintiff was the owner of an undivided one-half interest therein. Defendant is appealing.
To sustain the contention of appellant it is shown by the officer who took the acknowledgment that he was asked to but did not read the deed, but that appellee took it and held it for some minutes as though reading it. There is also evidence of witnesses as to statements made by appellee or by his wife and in his presence to the effect that the entire property was conveyed to her. The attorney who wrote the agreement between the parties in the divorce action and who prepared the deed to the hotel property pursuant thereto testified that he first prepared a deed for a one-half undivided interest in the property, but that Mrs. Leddington refused to sign it, and four or five days later had him prepare a deed conveying the entire property to her. His evidence is so vague, indefinite, and uncertain as to disclose that he in fact remembered very little of the transaction. *Page 132
Appellant was called upon in the suit to produce the original deed, but testified that he was unable to find it, but, after judgment was rendered, found it, and by agreement of parties the deed was made a part of the record on this appeal. It bears the same date as the agreement in the divorce action and conveyed the entire hotel property. There is no indication of changes or erasures on the face of the deed. On the other hand, in addition to the written agreement in the divorce action whereby appellee agreed to convey one-half of the hotel and personal property to his wife and a one-half interest in the tract of land as soon as the title could be perfected, there is evidence for appellee that, pursuant to the agreement, appellee and his wife conducted the hotel, each bearing one-half of the expenses and sharing in one-half of the profits, and there is evidence of witnesses as to statements made by both of them or by one in the presence of the other to the effect that they owned the property and conducted the business on a "50-50" basis. They leased the hotel property to one party for a year, and only the name of appellee appears in the body of the lease, while both signed it. In a lease to another party for a year the names of both appear in the body of the lease, and both signed it. Apparently the attorney who drew the agreement understood that only a one-half interest in the hotel property was conveyed because it appears of record that after the death of Mrs. Leddington he took a mortgage on the property from appellant to secure the payment of a note and also took a mortgage from appellee on same to secure a note. It is further shown that appellant, as administrator of his mother, brought an action for damages against appellee and caused an attachment to be issued and levied upon the hotel property and filed the usual lis pendens notice in the office of the county court clerk. The record shows that the only consideration for the deed was the agreement settling the divorce litigation, and under the contract Mrs. Leddington was only entitled to one-half interest in the property. It is apparent that there was no consideration for the conveyance of the other half, and, as disclosed by the record, the hotel property, which according to the evidence had a value of from $5,000 to $8,000, was practically the entire estate of appellee.
It is a rule of general application that a deed will not be set aside for mistake, or for fraud, or both, unless *Page 133
the evidence is clear and convincing. Farar v. Eli, 195 Ky. 30,241 S.W. 326; Lakes v. Lakes, 222 Ky. 411, 300 S.W. 859; Grigsby v. Draughn, 261 Ky. 717, 88 S.W.2d 964. In the light of the proven facts and circumstances, it cannot be said that the evidence in this case does not sufficiently measure up to these requirements to sustain the chancellor's finding.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2971431/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 04a0060n.06
Filed: November 1, 2004
No. 03-1948
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
LEONARD McCALL, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant )
)
)
BEFORE: MERRITT, DAUGHTREY and SUTTON, Circuit Judges.
PER CURIAM. This appeal from a judgment revoking the federal term of supervised
release of the defendant, McCall, raises the question of whether due process forbids a delay in the
issuance of a warrant for violation of supervised release while the defendant remains in state
custody. McCall concededly violated his federal parole in connection with the state crime of
receiving and concealing stolen property for which he was sentenced to state custody. The U.S.
Probation Office requested issuance of a parole violations warrant on November 8, 2001. The
warrant was not served until June 6, 2003, when McCall was released by the state. A hearing was
conducted thereafter. McCall argues that this delay violates due process. U.S. v. Throneburg, 87
F.3d 851, 853 (6th Cir. 1996), rejects this very argument in a case in which there was a delay of two
No. 03-1948
United States v. McCall
years while the defendant served his state term for a crime which gave rise to the federal parole
violation.
McCall also argues that the record below supports a finding that the District Judge was
unfamiliar with the federal sentencing guidelines and did not know that the guidelines are advisory
only with respect to sentencing for parole violations. To the contrary, McCall’s own lawyer advised
the District Court at Appendix page 69 that the guideline range is advisory only.
Accordingly, the judgment of the district court is AFFIRMED.
-2- | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4198792/ | Case: 16-12784 Date Filed: 08/24/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12784
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00297-VMC-UAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE LEONTAE CARLYLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 24, 2017)
Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.
Case: 16-12784 Date Filed: 08/24/2017 Page: 2 of 3
PER CURIAM:
Jermaine Carlyle appeals his 77-month sentence, imposed within the
advisory guideline range, after pleading guilty to being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Briefly stated, the appeal presents three issues:
1. Whether the district court abused its discretion by denying Carlyle’s
motion to continue his sentencing hearing until after the effective date of
some amended Sentencing Guidelines;
2. Whether U.S.S.G. § 4B1.2(a)’s residual clause is unconstitutionally
vague so that the district court erred by using Carlyle’s prior convictions
for “crimes of violence” to increase his base offense level; and
3. Whether the district court abused its discretion by improperly weighing
the § 3553(a) factors and imposing a substantively unreasonable
sentence.
We see no reversible error.
First, because the district court had the inherent authority to manage its
docket and Carlyle had no right to be sentenced under a future Sentencing
Guidelines amendment, the district court did not abuse its discretion by denying
Carlyle’s motion to continue sentencing until a date after the amendment’s
effective date. Second, because Beckles v. United States, 137 S. Ct. 886 (2017),
forecloses Carlyle’s argument that Johnson v. United States, 135 S. Ct. 2551
(2015), rendered U.S.S.G. § 4B1.2(a)’s residual clause unconstitutionally vague,
2
Case: 16-12784 Date Filed: 08/24/2017 Page: 3 of 3
the district court did not err by increasing his base offense level due to prior
“crimes of violence.” Third, because the district court addressed the § 3553(a)
factors and Carlyle has not identified a specific error in the court’s reasoning; the
district court did not abuse its discretion by imposing a substantively unreasonable
sentence.
AFFIRMED.
3 | 01-03-2023 | 08-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/131393/ | 540 U.S. 820
JONESv.PORT TERMINAL RAILROAD ASSN.
No. 02-1769.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the Ct. App. Tex., 4th Dist.
2
Certiorari denied. Reported below: 82 S. W. 3d 126. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3231371/ | Appellee sued appellant in detinue to recover possession of an original real estate mortgage executed to plaintiff by defendant. Admittedly, the document was in the possession of defendant when suit brought.
Defendant claimed he had paid the mortgage debt; that, thereupon the mortgage was indorsed paid in full by plaintiff, and surrendered to defendant.
Plaintiff claimed the mortgage debt, and no part of it, had been paid; that possession of the instrument had been obtained by defendant without plaintiff's knowledge or consent, and the indorsements of satisfaction, three of them, two purporting to be signed by plaintiff, were in no respect genuine.
This was the issue of fact in the case. The evidence was in sharp conflict. The trial was had before the trial judge without a jury on oral testimony of witnesses in court. His finding for the plaintiff is to be reviewed with all the presumptions indulged in favor of the verdict of a jury. Without a detailed discussion of the evidence, we hold there is no good ground to disturb his finding. It is fully supported by the evidence, direct and circumstantial.
A witness, having knowledge of the fact, may testify to the ownership of a chattel. There was no error in overruling objection to the question: "Does this mortgage belong to you, Mr. Hand?" Rasco v. Jefferson, 142 Ala. 705, 38 So. 246.
There was no dispute as to its ownership, if still unpaid.
The brother of defendant, having testified that he loaned defendant $1,000 in currency to be used in taking up the mortgage, it was permissible to inquire on cross-examination: "How much property is in your name?" The answer, "120 acres" was without injury to defendant. The mortgage was dated December 19, 1939, principal debt $952, payable $100 December 1, 1940, and $100 annually thereafter until paid. Interest from date at 8% on unpaid balance.
One indorsement of satisfaction read: "Paid in full 1020.16, August 19, 1940," being eight months from date of mortgage. An alleged receipt of same date for the same amount was in evidence. Its execution was denied by plaintiff.
Defendant testified that plaintiff calculated the amount of interest, and he paid the amount calculated $1,020.16. On cross-examination defendant said: "I would have to figure up how much was 8% interest on $952.00." Plaintiff then asked: "Suppose you figure it up for us." Objection being overruled, defendant made the following calculation, which was admitted in evidence over defendant's objection:
"952.00 8
--------- 52.1600"
Defendant further testified: "Mr. Hand had the interest figured out, and I figured it out, and we had the same figures and I paid it."
It was within the discretion of the trial court under the circumstances to permit this test of defendant's ability to calculate the interest due at the time of the alleged payment, and to admit the result of his effort. 70 C.J. 488, § 658, 489, § 660.
No writ of seizure was sued out. No statutory bond was given on seizure of property in detinue. The trial court failed to assess the alternative value as per Title 7, § 921, Code of 1940. If such suit were for an ordinary chattel, still in the possession of defendant, non-compliance with this statute would be reversible error. Scott et al. v. Howard, 215 Ala. 590,112 So. 194. *Page 646
But where there is no occasion for assessment of value, for example, where the property is in possession of the successful party when judgment rendered, the losing party suffers no injury by failure to assess alternate value. See Annotation Title 7, p. 783, Code of 1940.
The above statute is to be construed in connection with other provisions of the Detinue Law. If the property be in possession of the officer seizing it on writ of seizure, he must deliver same to the successful party. The successful party is entitled to the specific property sued for, if to be had. Title 7, § 922, Code of 1940. The statute does not clothe an unsuccessful defendant with a right to keep the property, and pay the alternate value instead. Ex parte Vaughan, 168 Ala. 187,53 So. 270; 26 C.J.S., Detinue, § 22, p. 1284.
The instant case presents a different situation from Scott et al. v. Howard, supra.
The original mortgage was offered in evidence on the trial. By order of the trial judge it was sent up as an original document for our inspection, and is now in this court as part of the record on appeal.
By statute, when the cause is finally decided in this court, such document, upon application of either party, is to be returned to the trial court. Title 7, § 749, Code of 1940.
This statute contemplates that on final disposition of a cause, original documents of value to the owner shall be delivered to him. Here such document is the article sued for. The purpose of the suit is to determine who is entitled to its possession. This is now adjudged to be the plaintiff. The clerk of the circuit court, on a return of the document to him, should deliver it to plaintiff or his counsel in keeping with the judgment of the court. Defendant, appellant here, can suffer no injury. He is not entitled to possession of the document until the mortgage debt is paid. This he can do the same as if the mortgage had all the while been in possession of plaintiff, who is, and has been entitled to possession of the instrument until the debt is paid.
Affirmed.
GARDNER, C. J., and FOSTER and LIVINGSTON, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3231373/ | Reversed and remanded on authority of Ex parte Allgood, Auditor (In re Allgood, Auditor, v. State ex rel. Wilson) 104 So. 851. *Page 670 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/131425/ | 540 U.S. 822
RAM ET UX.v.COOPER.
No. 02-1806.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the Ct. App. Cal., 5th App. Dist.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2789754/ | Filed 3/27/15 Martinez v. Cal. Dept. of Corrections CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
MIGUEL MARTINEZ,
Plaintiff and Appellant, C074106
v. (Super. Ct. No.
34201200124397CUWTGDS)
CALIFORNIA DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Defendant and Respondent.
Miguel Martinez appeals from the trial court’s dismissal of his action against the
California Department of Corrections and Rehabilitation (CDCR) for wrongful
termination of employment based on racial discrimination. The trial court concluded
Martinez’s claim was precluded by a prior lawsuit in which he challenged the same
termination of employment. On appeal, Martinez contends this case raises a new claim
of racial discrimination that has not been previously adjudicated and should proceed to
trial. Martinez further argues claim preclusion should not apply because CDCR was
“never solely or directly” sued in the prior case.
1
We conclude the primary rights doctrine precludes Martinez’s present action that
focuses on the same alleged wrongful termination as in his prior case. Moreover,
Martinez’s tort claims are barred by his failure to first overturn the adverse employment
decision by the State Personnel Board. Accordingly, we affirm the trial court’s judgment
of dismissal.
FACTUAL AND PROCEDURAL HISTORY
Martinez was terminated from employment as a correctional sergeant for inducing
a former prison inmate to sign a false statement, inexcusable neglect of duty, dishonesty,
discourteous treatment of the public, and failure of good behavior. Martinez appealed his
dismissal to the State Personnel Board, which denied his appeal. In an effort to overturn
the State Personnel Board’s decision, Martinez filed a petition for writ of mandate in
Martinez v. State Personnel Board et al., Sacramento County Superior Court No. 34-
2010-80000531. The petition named CDCR as real party in interest. The petition
asserted Martinez’s termination was “disparate treatment.” Specifically, the petition
alleged the administrative law judge’s finding sustaining Martinez’s dismissal because of
dishonesty “is disparate in view of the testimony of Correctional Officer Raqueal
Mudrick, and Correctional Sergeant Gregory Knight. Both Witnesses received Notices
of Adverse Action listing dishonesty as an allegation, however the Witnesses were not
dismissed from State Service. Consequently, [Martinez]’s dismissal from State Service is
disparate treatment.” The trial court denied the petition, finding that “not only did
Martinez harm the public trust, he made himself vulnerable to possible extortion by an
ex-inmate and cast a negative mark on all of his fellow officers. The potential
embarrassment to CDCR is palpable. Martinez’ actions clearly caused discredit to his
former employer. [¶] Further, because Martinez was a Correctional Sergeant,
2
responsible for supervising other officers, Martinez set a terrible example for the officers
under his supervision.”1
Martinez did not appeal the trial court’s dismissal of his writ petition. Instead, he
filed a new lawsuit against CDCR in which he alleged his termination reflected racial
discrimination because other correctional officers sustained lesser penalties for
dishonesty. Specifically, the first amended complaint alleged Martinez was discriminated
against by CDCR because his conduct was similar to that of other correctional officers
near the time of his termination and none of the other correctional officers were
terminated. The first amended complaint alleges Correctional Officer Raqueal Mudrick
was suspended for six months for dishonesty and Sergeant Gregory Knight was demoted
because of dishonesty. CDCR filed a demurrer, which the trial court sustained without
leave to amend. The trial court found the previous “decisions rendered with respect to
[Martinez’s] termination satisfy the necessary requirements and operate as res judicata to
bar this separate action challenging the appropriateness of [his] termination from
employment. [Martinez’s] opposition fails to address this legal doctrine, asserting only
the merits of his claim for discrimination, which has already been litigated in the writ
action.” From the ensuing judgment of dismissal, Martinez appeals.
DISCUSSION
Martinez argues his present action is not precluded by his prior litigation due to
the new allegation of racial discrimination. We disagree.
1 The Attorney General’s request for judicial notice of the judgment and notice of
entry of judgment in Martinez v. State Personnel Board et al., Sacramento County
Superior Court No. 34-2010-80000531, is granted. (Evid. Code, §§ 451, subd. (a), 459.)
3
A.
Claim Preclusion
As the California Supreme Court has explained, “ ‘Res judicata’ describes the
preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion,
prevents relitigation of the same cause of action in a second suit between the same parties
or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes
relitigation of issues argued and decided in prior proceedings.’ (Lucido v. Superior Court
(1990) 51 Cal. 3d 335, 341.) Under the doctrine of res judicata, if a plaintiff prevails in an
action, the cause is merged into the judgment and may not be asserted in a subsequent
lawsuit; a judgment for the defendant serves as a bar to further litigation of the same
cause of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 896-897
(Mycogen Corp.), fn. omitted.)
To determine whether a claim is precluded, California courts follow the primary
right theory. (Mycogen Corp., supra, 28 Cal.4th at p. 904.) “ ‘The primary right theory
. . . provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a
corresponding “primary duty” of the defendant, and a wrongful act by the defendant
constituting a breach of that duty. [Citation.] The most salient characteristic of a primary
right is that it is indivisible: the violation of a single primary right gives rise to but a
single cause of action. [Citation.] . . . ‘As far as its content is concerned, the primary
right is simply the plaintiff’s right to be free from the particular injury suffered.
[Citation.] It must therefore be distinguished from the legal theory on which liability for
that injury is premised: “Even where there are multiple legal theories upon which
recovery might be predicated, one injury gives rise to only one claim for relief.”
[Citation.] The primary right must also be distinguished from the remedy sought: “The
violation of one primary right constitutes a single cause of action, though it may entitle
the injured party to many forms of relief, and the relief is not to be confounded with the
4
cause of action, one not being determinative of the other.” [Citation.] ‘The primary right
theory . . . is invoked . . . when a plaintiff attempts to divide a primary right and enforce it
in two suits. The theory prevents this result by either of two means: (1) if the first suit is
still pending when the second is filed, the defendant in the second suit may plead that fact
in abatement [citations]; or (2) if the first suit has terminated in a judgment on the merits
adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar
under the principles of res judicata.’ ” (Mycogen Corp., at p. 904, quoting Crowley v.
Katleman (1994) 8 Cal. 4th 666, 681–682.)
B.
Martinez’s Present Action is Barred by His Prior Lawsuit
The primary right Martinez seeks to vindicate in this case -- namely, the right to be
free of unlawful termination of employment -- is the same as in his petition for writ of
mandate. Martinez’s addition of a new theory to characterize his termination of
employment as unlawful does not separate the primary right in this case from that of his
earlier case. (Mycogen Corp., supra, 28 Cal.4th at p. 904.) Thus, the primary right in
both cases is identical. The parties are the same too. CDCR’s status as a party is
reflected by the trial court’s direction that counsel for CDCR prepare the judgment. The
judgment prepared by CDCR was signed by the trial court and conclusively resolved
Martinez’s claims regarding unlawful termination.2 Consequently, claim preclusion
applies to bar Martinez’s present action. (Id. at pp. 896-897.)
At oral argument, Martinez’s new appellate counsel advanced a new argument that
the primary rights doctrine does not apply to a claim of racially motivated termination of
employment that is litigated in a lawsuit subsequent to the original termination of
employment for cause proceeding. In support, Martinez’s counsel referred to authority
2 We grant the Attorney General’s request to judicially notice the judgment and
notice of entry of judgment in Martinez’s prior case.
5
not cited in the opening brief,3 namely George v. California Unemployment Ins. Appeals
Bd. (2009) 179 Cal. App. 4th 1475 (George) and Henderson v. Newport-Mesa Unified
School Dist. (2013) 214 Cal. App. 4th 478 (Henderson). The new argument may not be
tendered for the first time at oral argument. “Absent a sufficient showing of justification
for the failure to raise an issue in a timely fashion, we need not consider any issue which,
although raised at oral argument, was not adequately raised in the briefs.” (Sunset Drive
Corp. v. City of Redlands (1999) 73 Cal. App. 4th 215, 226.)
In any event, George and Henderson do not help Martinez. George involved a
civil service employee who brought an administrative challenge to her employer’s
disciplinary actions. (George, supra, 179 Cal.App.4th at p. 1480.) Her administrative
challenge, however, did not include any claims of retaliation under the Fair Employment
and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). (George, supra, at p. 1480.)
Her administrative challenge proved to be partially successful in that the trial court found
some of her discipline had been unwarranted. (Id. at pp. 1480-1481.) This mixed result
did not preclude the employee from bringing a subsequent action for the newly asserted
cause of action for retaliation. As the George court explained, “there was no finding that
the agency’s actions as a whole were justified by George’s behavior. Further, there was
no finding to preclude the conclusion that the imposition of the three relatively minor
disciplinary actions was the result of a retaliatory motive.” (Id. at p. 1485.) By contrast,
Martinez did not overturn the State Personnel Board’s decision that he was properly
terminated. As we explain in part C, below, Martinez is thus procedurally barred from
bringing a separate claim for tort damages arising out of the same termination.
In Henderson, a school teacher brought an action to challenge the school district’s
failure to rehire her on a “first priority” basis and for discrimination against her on the
3 Martinez, who filed his opening brief in propria persona, did not file a reply brief.
6
basis of race. (214 Cal.App.4th at p. 484.) The trial court sustained the school district’s
demurrer to her two causes of action, and the Court of Appeal reversed. (Ibid.) The
Court of Appeal noted that “Henderson’s right to be properly classified was the only
individual claim she was allowed to make in the [prior] administrative proceeding.” (Id.
at p. 501.) As a consequence, Henderson was not foreclosed from bringing a later action
for racial discrimination. (Ibid.) Contrary to the situation in Henderson where the school
teacher could not have raised the discrimination claim in the administrative proceeding,
Martinez raised the issue of “disparate treatment” in the writ petition challenging the
State Personnel Board decision upholding his termination for cause. Thus, Martinez is
attempting to relitigate an issue raised in a prior proceeding between the same parties.
Claim preclusion bars his attempt to relitigate the same issue. (Mycogen Corp., supra, 28
Cal.4th at pp. 896-897.)
C.
Martinez’s Failure to Overturn the State Personnel Board’s Decision
As the Attorney General correctly points out, Martinez’s present action is barred
for an additional reason. A litigant must succeed in overturning an adverse
administrative agency action before pursuing a related tort claim for damages. (Johnson
v. City of Loma Linda (2000) 24 Cal. 4th 61, 69.) Thus, “when, as here, a public
employee pursues administrative civil service remedies, receives an adverse finding, and
fails to have the finding set aside through judicial review procedures, the adverse finding
is binding on discrimination claims under [FEHA].” (Id. at p. 76.) For failure to first
overturn the State Personnel Board’s adverse decision, Martinez’s claim for tort damages
arising out of his termination of employment is barred. (Ibid.)
7
DISPOSITION
The judgment is affirmed. The California Department of Corrections and
Rehabilitation shall recover its costs, if any, on appeal. (Cal. Rules of Court, rule
8.278(a)(1) & (2).)
HOCH , J.
We concur:
RAYE , P. J.
ROBIE , J.
8 | 01-03-2023 | 03-27-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2010129/ | 862 N.E.2d 237 (2007)
222 Ill. 2d 616
308 Ill. Dec. 635
PEOPLE
v.
KOZLOWSKI.
No. 103590.
Supreme Court of Illinois.
January Term, 2007.
Disposition of petition for leave to Appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2010141/ | 862 N.E.2d 289 (2007)
Jude Joseph PEREZ, M.D., Appellant,
v.
James D. BAKEL, individually, and as personal representative of the Estate of Alora Bakel, deceased, Appellee.
No. 82A01-0604-CV-144.
Court of Appeals of Indiana.
March 6, 2007.
*291 Christopher P. O'Bryan (pro hac vice), Tracy S. Prewitt, Mark E. Hammond, O'Bryan Brown & Toner, PLLC, Louisville, KY, Attorneys for Appellant.
Terry Noffsinger, Noffsinger Law P.C., Evansville, IN, Attorney for Appellee.
OPINION
BARNES, Judge.
Case Summary
Jude Perez, M.D., appeals the judgment entered against him on James Bakel's complaint alleging medical malpractice that resulted in the death of his wife, Alora Bakel. We affirm in part and reverse in part.
Issues
Dr. Perez raises four issues, which we restate as:
I. whether the trial court properly denied Dr. Perez's motion for judgment on the evidence regarding the element of causation;
II. whether the trial court properly denied his request for a new trial based on the closing argument;
III. whether the trial court properly admitted the testimony of Dr. Herbert Rogove; and
IV. whether the trial court properly granted James's request for prejudgment interest.
Facts[1]
In early April 1999, James and fifty-seven-year-old Alora drove to Florida for a vacation. On the way to Florida, Alora experienced dizziness, pain in her chest, and difficulty breathing. They arrived in Florida on a Friday morning and rested all *292 day. The next morning Alora was still experiencing similar symptoms, and the couple decided to go to a local hospital. The emergency room physician ran some tests and called in a cardiologist. The cardiologist suspected blockage in an artery leading from her heart that could lead to a massive heart attack. Alora remained in the hospital until Monday when a heart catheterization revealed that her arteries were not clogged and that she was not in danger of having a heart attack. Alora was released from the hospital and the two continued their vacation for the remainder of the week.
James and Alora drove home, arriving in Evansville on April 10, 1999. Alora had already scheduled an appointment with her doctor for April 19, 1999. After arriving home, Alora continued to experience shortness of breath. On the morning of April 18, 1999, Alora woke up and told James that she needed to go to the emergency room. They arrived at St. Mary's Medical Center at 8:48 a.m. The treating physicians ran tests and obtained Alora's records from the Florida hospital. After monitoring her and reviewing her test results, an appointment was scheduled for first thing the next morning with a cardiologist. Alora was released from the hospital at 12:40 p.m. that day. When they arrived home Alora laid on the couch. Shortly thereafter, Alora told James to call an ambulance. An ambulance transported Alora to another hospital, and she died that afternoon. An autopsy revealed that the cause of death was a pulmonary embolism.
On December 1, 2004, James, personally and on behalf of Alora's estate, filed an amended complaint alleging St. Mary's Medical Center and the emergency room physician, Dr. Perez, were negligent and caused Alora's death. James made an offer to settle his claim against Dr. Perez for $250,000. Apparently, Dr. Perez rejected this offer, and after a trial, a jury found James suffered damages in the amount of $940,540.88. The trial court entered judgment against Dr. Perez for that amount.
Dr. Perez moved to set aside the entry of judgment and for remittitur. Dr. Perez also filed a motion to correct error and a motion for new trial. After a hearing, the trial court reduced the judgment to $750,000. The trial court entered a judgment against Dr. Perez in the amount of $100,000, with the remainder to be paid by the Patient's Compensation Fund as required by the Medical Malpractice Act.[2] The trial court denied Dr. Perez's motion to correct error and request for a new trial. James moved for an award of prejudgment interest, which the trial court granted after a hearing as to the $100,000 judgment against Dr. Perez. Dr. Perez now appeals.
Analysis
I. Judgment on the Evidence
Dr. Perez argues that the trial court improperly denied his motion for judgment on the evidence regarding the issue of proximate cause. In reviewing a ruling on a motion for judgment on the evidence, we apply the same standard as the trial court. Smith v. Baxter, 796 N.E.2d 242, 243 (Ind.2003). Judgment on the evidence is proper only where an issue is not supported by sufficient evidence. Id. (citing Ind. Trial Rule 50(A)). We consider only the evidence and reasonable inferences most favorable to the non-moving party. Id. A motion should be granted only where there is no substantial evidence *293 supporting an essential issue in the case. Id. "If there is evidence that would allow reasonable people to differ as to the result, judgment on the evidence is improper." Id.
Generally, "a plaintiff must prove each of the elements of a medical malpractice case, which are that: (1) the physician owed a duty to the plaintiff; (2) the physician breached that duty; and (3) the breach proximately caused the plaintiff's injuries." Sawlani v. Mills, 830 N.E.2d 932, 938 (Ind.Ct.App.2005), trans. denied. Proximate cause has two aspects. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243 (Ind.2003). The first aspectcausation in factis established if the plaintiff can show that the injury would not have occurred without the defendant's negligent act or omission. Id. at 1243-44. The second component of proximate cause is the scope of liability, which turns largely on whether the injury is a natural and probable consequence that in the light of the circumstances should have been foreseen or anticipated. Id. at 1244. "Under this doctrine, liability may not be imposed on an original negligent actor who sets into motion a chain of events if the ultimate injury was not reasonably foreseeable as the natural and probable consequence of the act or omission." Id.
Dr. Perez argues that there is insufficient evidence of proximate cause because all of the medical experts agreed that Heparin therapy would not have dissolved the fatal blood clot. "Thus, no action by [Dr. Perez] could have saved [Alora's] live [sic] as the administration of Heparin by [Dr. Perez] would have had no effect on the fatal blood clot that caused [Alora's] death." Appellant's Br. p. 16. Dr. Perez then points to his experts' testimony that Heparin therapy could not have saved Alora's life.
However, as James points out, even if Heparin would not have dissolved the clot, he presented expert testimony that Heparin therapy would have benefited Alora and could have saved her life. For example, Dr. Samuel Kiehl[3] testified that once a pulmonary embolism is highly suspected or diagnosed, it is incumbent on the physician to place the patient in an intensive care setting. He testified that the physician needs to start the patient on "Heparin or a form of Heparin which is a medicine that interrupts clotting." Tr. p. 96. "Heparin will stop the growth of a clot. I[sic] can interrupt the clotting process." Id. James's counsel questioned Dr. Kiehl:
Q: And if someone were to say that because she already had clots that the administration of Heparin would not do any good, would you agree with that?
A: I absolutely would not. . . .
* * * * *
Q: If [Alora's] pulmonary embolism was diagnosed by Dr. Perez, do you have an opinion as to whether there was time to save her?
A: I do.
Q: And what is that opinion?
A: I believe she would have lived.
Id. at 105-113. Dr. Kiehl was later questioned:
Q: Over time after the administration of Heparin and Coumadin what can happen?
*294 A: Well, it depends on how established they are in the legs. Those clots often just stay there unless I give external thombolysis. The newer end of that often will resolve. The older end of it often just remains there.
Q: It's the newer clots that are the risk. Is that correct?
A: Well, new obviously is a relative term. One of the problems that can happen is a new clot forms on a relatively new old clot then that clot, the entirety of the clot, can be destabilized. If I have a weight hanging on the end of this established clot that is getting beaten on by this blood flow going by, it's possible that that established clot can be dislodged and the whole kit and caboodle can go up toward the heart which is what I think happened here.
Q: But the administration of Heparin, how soon can it affect the break off of these clots?
A: Well, as far as formation of any new clot essentially within minutes that new clotting is stopped. It's just dead in its tracks. . . .
Id. at 191-192. Dr. Kiehl also testified:
Q: . . . was there still time and opportunity to a reasonable degree of medical certainty to save [Alora's] life by administering Heparin in Evansville at the time that you said it should have been administered?
A: What I would say is that there was an opportunity to save her life had things been done properly including Heparin.
Q: And that goes back starting with the testing and then treating; correct?
A: It involves making a diagnosis and then administering proper treatment which would include intensive care and Heparin treatment.
Id. at 202.
Dr. Kiehl stated that Alora "had a greater than fifty percent chance" of survival had she received Heparin. Id. at 129. He stated that if Alora had been in the intensive care unit she would have been at rest and "less likely to throw a pulmonary embolus." Id. at 113. He also stated that Heparin would have "been reducing the size of the growing embolus" and that he "could have done rescue measures hopefully before she had a cardiac arrest." Id. at 114. Dr. Kiehl testified that even though the Florida doctors did not do what they should have, there was time to save Alora in Evansville. See Id. at 190.
Despite Dr. Kiehl's extensive testimony, Dr. Perez argues, "Kiehl has agreed in fact that the administration of Heparin by [Dr. Perez] could not have prevented [Alora's] death." Appellee's Reply Br. p. 4. This conclusion simply cannot be drawn from a complete reading of Dr. Kiehl's testimony. Even if Heparin would not have immediately and completely dissolved the existing clot, Dr. Kiehl's testimony shows that Heparin treatment would have provided other benefits to Alora. Dr. Kiehl's testimony alone establishes Dr. Perez's discharge of Alora without administering Heparin was a proximate cause of Alora's death. This evidence would allow reasonable people to differ as to the result, rendering judgment on the evidence improper. See Smith, 796 N.E.2d at 243. The trial court properly denied Dr. Perez's motion for judgment on the evidence and left the question of causation to the jury.
II. Closing Argument
Dr. Perez argues that he was unfairly prejudiced by James's counsel's closing argument. He contends that the closing argument inaccurately portrayed *295 James as being alone in the world even though he had remarried since Alora's death. Dr. Perez concedes that he did not did not object to this line of argument during trial, but argues that the error was so egregious that an objection was not necessary. Dr. Perez likens the closing argument to the fundamental error doctrine used in criminal cases.
It is well-settled that to preserve a ruling with regard to remarks by opposing counsel, a specific objection and a request that the jury be admonished to disregard the remarks are required. Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 682 (Ind.Ct.App.1998), trans. denied. Even if, as Dr. Perez argues, an admonishment would not have cured the problem, we will reverse a judgment due to allegedly improper remarks by counsel during argument only when it appears from the entire record that the remarks, in all probability, formed the basis for securing an incorrect verdict. Id.
First, at the hearing on Dr. Perez's motion to correct error and request for a new trial, the trial court specifically stated that had Dr. Perez objected, it would have told James's counsel, outside of the presence of the jury, to stop that line of argument, minimizing the impact on the jury. More importantly, however, the trial court stated that although the argument may have crossed the line, it did not affect the jury's verdict. Because the line of argument did not affect the jury's verdict, Dr. Perez has not established that a new trial is required.
III. Admission of Dr. Rogove's Testimony
Dr. Perez argues that the admission of Dr. Rogove's videotaped testimony was beyond the scope of that permitted by the trial court when, in a pretrial ruling, it allowed James to belatedly include Dr. Rogove as an expert witness. Dr. Perez argues that "[o]bjection to the introduction of his testimony was overruled by the trial court and the jury was permitted to hear his testimony in full during the trial." Appellant's Br. p. 22. Dr. Perez provides no citations to this objection or the trial court's ruling on it. Our review of the transcript immediately prior to admission of Dr. Rogove's testimony shows that Dr. Perez made no such objection.
Generally, a party must object to evidence at the time it is offered into the record. Everage v. Northern Indiana Pub. Serv. Co., 825 N.E.2d 941, 948 (Ind. Ct.App.2005). The failure to timely object waives the right to have the evidence excluded at trial and the right on appeal to assert the admission of evidence as erroneous. Id. By failing to timely object, the party is, in effect, acquiescing in the admission of the evidence. Id. Because it does not appear that Dr. Perez objected at trial prior to the admission of Dr. Rogove's testimony, this issue is waived.
To the extent that Dr. Perez may be referring to his motion in limine in which he sought the exclusion of Dr. Rogove's testimony as an "objection," the filing of a motion in limine alone does not preserve the issue for appeal. The chronological case summary ("CCS") indicates that on the Friday before the trial began, the trial court held a hearing on Dr. Perez's motion in limine and that it took Dr. Perez's motion under advisement. Although Dr. Perez included his motion in his appendix, he did not provide us with any citation or reference to the trial court's ruling on this motion. Nevertheless, even if we assume that his motion in limine was denied, it is well-settled that in order to preserve error in the denial of a pre-trial motion in limine, the appealing party must object to the admission of the evidence at the time it is offered. Weinberg *296 v. Geary, 686 N.E.2d 1298, 1300 (Ind. Ct.App.1997), trans. denied. "Failure to object at trial to the admission of the evidence results in waiver of the error." Id. Thus, in the absence of a contemporaneous objection to Dr. Rogove's testimony at trial, this issue is waived.[4]
IV. Prejudgment Interest
Dr. Perez argues that the trial court improperly awarded James prejudgment interest on the $100,000 judgment entered against him.[5] A trial court is permitted to award prejudgment interest as part of a judgment for any civil action arising out of tortious conduct. Ind.Code §§ 34-51-4-1, 34-51-4-7. However, this chapter does not apply if "the amount of the offer exceeds one and one-third (1 1/3) of the amount of the judgment awarded."[6] I.C. § 34-51-4-6(3).
James offered to settle the case against Dr. Perez and/or St. Mary's Medical Center for $250,000. Dr. Perez argues that because the judgment against him was capped at $100,000, James's offer exceeded $133,000the maximum permitted by the prejudgment interest statute. James responds that his offer to settle for $250,000 should be compared to the $940,540.88 jury verdict, not the $100,000 judgment that was eventually entered against Dr. Perez based on the Medical Malpractice Act's cap. He contends that the purpose of permitting awards of prejudgment interest is to encourage settlement and to compensate plaintiffs for the lost time value of money.
Our supreme court has addressed the interplay between the Prejudgment Interest Act and the Medical Malpractice Act. Cahoon v. Cummings, 734 N.E.2d 535, 547 (Ind.2000). The court acknowledged that although Indiana Code Section 34-51-4-2 specifically precludes an award of prejudgment interest against the Patient's Compensation *297 Fund, there is no comparable provision immunizing health care providers from prejudgment interest. Id. The court addressed whether the Medical Malpractice Act cap operates to limit the health care provider's exposure to all items, including prejudgment interest and observed that it had previously held, "`a qualified health care provider is responsible for the payment of the collateral litigation expense of pre-judgment interest' even if that brings the provider's total liability over the cap." Id. (quoting litigation Emergency Physicians of Indianapolis v. Pettit, 718 N.E.2d 753, 757 (Ind.1999)). The Cahoon court concluded, "However, each judgment debtor is responsible only for the interest `attributable to [the provider's] individual liability,' i.e., interest on $100,000." Id. (quoting Pettit, 718 N.E.2d at 757) (alteration in original). The Cahoon court also observed:
Accordingly, we have held that prejudgment interest is recoverable from a health care provider on the amount of the judgment against that provider. Because that judgment amount is subject to the statutory cap, and prejudgment interest is not available from the fund, this will not provide the plaintiff with full relief, but it is the balance we conclude the legislature has struck between the competing interests of fairness and encouragement to settle reflected in the prejudgment interest statute and the Medical Malpractice Act's concern for health care cost containment.
Id. at 547-48.
Generally, a jury returns a verdict, and then the trial court enters a judgment in a separate document. See T.R. 58(A). Because the statute says "judgment," we must decline James's request to compare the settlement offer to the jury's verdict. See I.C. § 34-51-4-6(3). Further, as discussed in Cahoon, the legislature has struck a balance between the purposes behind the Prejudgment Interest Act and the Medical Malpractice Act. Accordingly, we also reject the policy arguments urged by James. Here, the amount of the revised judgment entered against Dr. Perez was $100,000, not $940,540.88. $100,000 is the relevant number to compare to the settlement offer for purposes of the Prejudgment Interest Act. That is the full amount for which Dr. Perez personally is or ever could have been liable to James under the Medical Malpractice Act. James's settlement offer of $250,000 was more than one and one-third of the judgment entered against Dr. Perez.[7]
Furthermore, we believe the language of the settlement offer is clear that Dr. Perez was being asked to pay $250,000 to settle this case, with or without any contribution from St. Mary's Medical Center. It was appropriate for Dr. Perez to reject such a settlement offer asking him to pay more than was permitted at the time by the Medical Malpractice Act and the language of the Prejudgment Interest Act should not be read as requiring Dr. Perez to pay prejudgment interest because of that rejection. The trial court improperly awarded James prejudgment interest.
Conclusion
The trial court properly denied Dr. Perez's request for judgment on the evidence. Dr. Perez's failure to timely object waives his arguments regarding James's closing argument and the admission of Dr. Rogove's trial testimony. However, because James's $250,000 settlement offer exceeded *298 the statutory limit, the trial court improperly awarded him prejudgment interest and we reverse that part of the trial court's order.
We affirm in part and reverse in part.
SULLIVAN, J., and ROBB, J., concur.
NOTES
[1] We remind the parties that Indiana Appellate Rule 46(A)(6) requires that the facts be stated in accordance with the standard of review appropriate to the judgment being appealed and that they shall be in narrative form and not a witness by witness summary of the testimony.
[2] At the time of the alleged malpractice in this case, the Medical Malpractice Act capped a health care provider's liability for an occurrence of malpractice at $100,000. This was amended effective July 1, 1999, to increase the cap to $250,000. See Ind.Code § 34-18-14-3(b).
[3] In his reply brief, Dr. Perez argues that James "cites to no other testimony" than that of Dr. Rogove and that he "relies solely upon" Dr. Rogove's testimony to show that Dr. Perez's motion for judgment on the evidence was properly denied. Appellee's Reply Br. pp. 3, 4. To the contrary, however, on page 13 of his Appellee's Brief, James specifically cites Dr. Kiehl's trial testimony.
[4] As to the merits of this argument, the parties focus on the scope of James's pre-trial belated request to add Dr. Rogove as an expert witness. Dr. Perez claims that Dr. Rogove testified beyond the scope of that which was approved by the trial court. In support of this argument, Dr. Perez contends, "Appellant's counsel specifically recalls the Court granting [James] additional time to disclose Rogove as an expert only for purposes of causation." Appellant's Reply Br. p. 11. Dr. Perez fails to provide any support for this recollection, and such is not consistent with James's written motion. In the absence of an order from the trial court confirming such limitation, we cannot and should not reverse based solely on counsel's recollection of the trial court's ruling.
[5] Although Dr. Perez provides us with the James's motion for prejudgment interest and his response, he does not include the trial court's order granting James's motion as required by Indiana Appellate Rule 50(A)(2)(a). The CCS provides in part "Over Deft's objection, the court finds that pursuant to IC XX-XX-X-X, the pltf is entitled to pre-judgment interest on the sum of $100,000 beginning 10/20/04 at the rate of 6 percent per annum. Pltf presented information that 15 months after the cause of action accrued was on 7/18/00; 180 days after the panel convened was on 3/28/00; and 6 months after the claim was filed in court was 10/24/04. Deft submitted evidence that the prime rate in effect in October of 2004 was between 4.75 and 5 percent." App. p. 2.
[6] In Cahoon our supreme court reworded this requirement as prohibiting an award of prejudgment interest where "the plaintiff ha[s] made a written offer . . . to settle for an amount that turns out to be more than seventy-five percent of the judgment ultimately awarded." Cahoon v. Cummings, 734 N.E.2d 535, 546 (Ind.2000). The court noted that this formula "is hopefully a more easily understood description of the statute's mathematically equivalent disqualification of a plaintiff whose `offer exceeds one and one-third (1 1/3) of the amount of the judgment awarded.'" Id. at 546 n. 9 (quoting I.C. § 34-51-4-6(3)). Because this language appears to be dicta and the statutory formula is easier to apply under these facts, we use that formula as the basis for our discussion.
[7] As noted earlier, the Medical Malpractice Act was amended shortly after the events of this case to provide for a per provider/per occurrence cap of $250,000. Regardless, the relevant cap in this case is $100,000 and the settlement offer greatly exceeded that amount. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2854939/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-224-CV
RAFAEL ALVARO PRIETO APPELLANT
V.
ATTORNEY JIM SHAW APPELLEE
------------
FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction and Procedural Background
In one issue, pro se appellant Rafael Alvaro Prieto contends the trial court
abused its discretion by dismissing Prieto’s lawsuit against appellee Attorney
Jim Shaw. We affirm.
1
See Tex. R. App. P. 47.4.
Prieto sued Shaw in July 2000 alleging Shaw breached a contract and
committed various acts of legal malpractice. Prieto filed his first amended
petition on August 10, 2000. The record reflects Prieto took no further action
to prosecute his claims against Shaw before February 28, 2008. 2 On that date,
the trial court issued an order to show cause why the case should not be
dismissed for want of prosecution. Prieto filed a response to the show cause
order on March 24, 2008, but his response did not address why his lawsuit
should not be dismissed for want of prosecution. The trial court then issued an
amended show cause order in which it ordered the parties to show cause why
the case should not be dismissed for want of prosecution, as frivolous inmate
litigation under section 14.003 of the Texas Civil Practice and Remedies Code,
or for failure to comply with section 14.004 of the Texas Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.003(a)(2),
14.004 (Vernon 2002); Tex. R. Civ. P. 165a. Prieto filed another response,
this time addressing sections 14.003 and 14.004 of the civil practice and
remedies code, but again failing to address why his lawsuit should not be
2
Prieto also sued Francisco Hernandez, Jr. in July 2000. The trial court
dismissed Prieto’s claims against Hernandez for want of prosecution on January
8, 2002. Hernandez is not a party to this appeal.
2
dismissed for want of prosecution. Without specifying the grounds for its
order, the trial court dismissed Prieto’s lawsuit on May 2, 2008.
II. Analysis
We review a trial court’s dismissal for want of prosecution under an
abuse of discretion standard. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex.
2003); Sellers v. Foster, 199 S.W.3d 385, 390 (Tex. App.—Fort Worth 2006,
no pet.). To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a
trial court may decide a matter within its discretion differently than an appellate
court would in similar circumstances does not demonstrate an abuse of
discretion. See id. at 242.
When a dismissal order does not specify the ground on which it is based,
we will “affirm the trial court’s judgment on any theory supported by the
record.” Sellers, 199 S.W.3d at 391. Chapter fourteen of the Texas Civil
Practice and Remedies Code authorizes a trial court to dismiss an inmate’s
lawsuit when the suit is frivolous or when the inmate fails to file an affidavit
regarding his litigation history and a certified copy of his trust account
3
statement. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.003, 14.004; see
also Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no
pet.) (stating an inmate’s failure to follow the procedural requirements set forth
in chapter fourteen of the civil practice and remedies code will result in
dismissal of the inmate’s suit). A trial court also has authority to dismiss a case
for want of prosecution under rule 165a of the Texas Rules of Civil Procedure
or its inherent power when a plaintiff fails to prosecute his or her case with due
diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.
1999); Sellers, 199 S.W.3d at 390–91.
In determining whether a party has diligently prosecuted his case, the trial
court “may consider the entire history of the case, including the length of time
the case was on file, the extent of activity in the case, whether a trial setting
was requested, and the existence of reasonable excuses for delay.” Scoville
v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.). Rule
6 of the Texas Rules of Judicial Administration states that civil cases that are
not disposed of within eighteen months of filing may be placed on the court’s
dismissal docket. See Tex. R. Jud. Admin. 6, reprinted in Tex. Gov’t Code
Ann., tit. 2, subtit. F app. (Vernon 2005); see also Maida v. Fire Ins. Exch., 990
S.W.2d 836, 841–42 (Tex. App.—Fort Worth 1999, no pet.).
4
Prieto did nothing to advance his suit against Shaw for more than seven
years between August 10, 2000, when he filed his first amended petition, and
February 28, 2008, when the trial court issued its first show cause order.
Nothing in the record reveals any facts that would support a reasonable excuse
for Prieto’s failure to pursue his case during this time period. Under these
circumstances, we hold that the trial court did not abuse its discretion by
dismissing this cause for want of prosecution. Accordingly, we overrule
Prieto’s sole issue and affirm the trial court’s order of dismissal.
III. Prieto’s Motions for Discovery
Prieto filed with this court a “Motion for Discovery” on November 9,
2009, and a “Second Motion for Discovery” on November 23, 2009. Because
we have affirmed the trial court’s order of dismissal, Prieto’s motions for
discovery are moot. Thus, we deny Prieto’s motions for discovery.
IV. Conclusion
Having overruled Prieto’s sole issue and denied Prieto’s motions for
discovery, we affirm the trial court’s order of dismissal.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: December 17, 2009
5 | 01-03-2023 | 09-04-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3448956/ | Reversing.
The Mayo Arcade Corporation and the Cameron Arcade Company owned a building in the city of Ashland known as the Camayo Arcade. Harry Greenstein, doing business as Rogers Co., leased a room in this building at an agreed monthly rental of $150, payable on the first day of each month. It was provided in the lease contract that, in the event Greenstein should cease doing business in the room rented by him and should vacate the same, or evince any intention of vacating same, the aggregate amount of rent accrued and to accrue under the terms of the lease contract should become due and payable, and the owners might institute proceedings for the recovery of the rent for the entire term.
Alleging a breach of the contract, the Mayo Arcade Corporation and the Cameron Arcade Company on December 5, 1930, instituted suit in the Boyd circuit court against Greenstein to recover the sum of $7,938.07, rent alleged to be due and to become due under the contract. They obtained a general order of attachment, and an attachment was levied on Greenstein's stock of merchandise consisting of jewelry. For the purpose of obtaining a discharge of the attachment, Greenstein executed a bond pursuant to section 221 of the Civil Code of Practice to the effect that he would perform the judgment of the court, and the attachment was discharged. The appellant, United States Fidelity Guaranty Company, *Page 765
signed the bond as surety. So far as this record discloses, no further steps were taken in that proceeding until March 5, 1932, when the case was submitted upon an agreed statement of facts, and a judgment was entered in favor of the Mayo Arcade Corporation and the Cameron Arcade Company against Harry Greenstein for $4,701.73. On August 15, 1932, an execution was issued upon the judgment in the sum of $4,701.73, plus $20.70 court costs, subject to a credit of $760.83. The execution was returned "No Property Found." Thereupon the Mayo Arcade Corporation and the Cameron Arcade Company brought this action against the United States Fidelity Guaranty Company on the bond executed in December, 1930.
The defendant filed an answer in which it pleaded the following affirmative defenses: (1) After the rendition of the judgment in the action wherein the bond sued on was executed, the plaintiffs and Greenstein entered into a written contract which novated the judgment. (2) By reason of the execution of said written contract plaintiffs were estopped from maintaining an action on the bond. (3) The written contract entered into between the plaintiffs and Greenstein extended the time for the payment of the judgment without the knowledge or consent of the surety, and by reason thereof the surety was released. Later an amended answer was filed in which the same defenses were pleaded more elaborately. A demurrer to the answer as amended was sustained, and, the defendant having refused to plead further, judgment was entered for the plaintiffs and the defendant appeals.
The contract which it is claimed novated the judgment and extended the time of payment was entered into on March 15, 1932, the day on which execution might have issued on the judgment, and is in the form of a proposition made by appellees and accepted by Greenstein, the judgment debtor. The contract was filed with the answer, and reads as follows:
"Ashland, Kentucky.
"March 15, 1932.
"Mr. Harry Greenstein, doing business as Rogers
Company.
"Dear Sir: A reference is made to the judgment of the Boyd Circuit Court entered this day in *Page 766
the suit lately depending therein, wherein Mayo Arcade Corporation and Cameron Arcade Company were plaintiffs and you were defendant, and which judgment provides for the payment by you of the sum of $4,701.73, and costs, for which we may have execution on demand as provided by the terms of said judgment.
"In consideration of your having agreed to the entering of this judgment, and for the further consideration that if you shall pay said judgment in equal monthly installments of $150.00 each, payable on the 1st day of each month hereafter, commencing March 1st, 1932, together with the then accrued monthly light bills, we agree not to cause to be issued any execution upon said judgment or any balance thereof remaining unpaid except and until you shall be in default in the payment of any one monthly installment for a period of fifteen [15] days from and after the due date thereof; and we further agree that no interest shall be charged upon said judgment or any installment thereof until there shall be a default as hereinbefore provided, provided however, that no installment hereunder shall be deemed in default until written notice has been transmitted to you by us of your failure to pay upon the first of the month in which said default shall be accrued.
"It is further understood and agreed that this agreement is in no wise to be deemed or construed as a novation of the judgment herein, but to the contrary said judgment shall be in full force and effect as and from the date thereof until satisfied in full. We further agree that if said judgment shall be satisfied as stipulated herein that we will remit to you the amount of the premium of the bond given by you in the aforesaid action to perform the judgment of the court provided said premium does not exceed the sum of $300.00, and if said premium does not exceed the sum of $300.00, we will remit to you the amount of $300.00.
"It is further agreed and understood that your liability under the lease sued on in the aforesaid case is superseded by this judgment to be performed as herein stipulated.
"It is understood that your acceptance of this *Page 767
proposition will be written on the carbon copy accompanying this letter and returned to us.
"Very truly yours,
"Mayo Arcade Corporation,
"Cameron Arcade Company
"By Hannah, VanSant McKenzie, Attorneys
"Accepted this 15th day of March, 1932
"Harry Greenstein, doing business as Rogers
Co."
Whether or not this contract constituted a novation of the judgment or an estoppel against appellees we deem unnecessary to determine since we have concluded that it extended the time for the payment of the judgment without the consent of the surety, and that therefore the trial court erred in sustaining the demurrer to paragraph 4 of the answer which pleaded this as a defense. Counsel for appellees insist that there was no consideration for an extension of time for the payment of the judgment, and therefore the contract was not valid and did not discharge the surety. Before a surety is discharged by an agreement by the creditor to extend the time of the payment, the agreement for extension of time must be a binding enforceable contract supported by a valuable consideration and for a definite period. Bradford v. Union Trust Company, 242 Ky. 709, 47 S.W.2d 536, and cases therein cited.
While mere indulgence of the principal by the creditor will not operate to discharge the surety, yet, if an enforceable contract is entered into between the principal and the creditor which extends the time of payment and suspends the right of the creditor to collect the debt when due and prevents the surety from paying off the debt and subrogating himself to the creditor's rights or taking other steps to save himself from loss, the surety will be released. Daviess County Bank Trust Company v. Wright, 129 Ky. 21, 110 S.W. 361, 33 Ky. Law Rep. 457, 17 L.R.A. (N.S.) 1122. The contract between appellees and Greenstein recited a valid and ample consideration for the extension of time for the payment of the judgment. It contained this clause:
"In consideration of your having agreed to the entering of this judgment and for the further consideration that if you shall pay said judgment in *Page 768
equal monthly installments of $150.00 each, payable on the first day of each month hereafter, commencing March 1, 1932, together with the then accrued monthly light bills, we agree not to cause to be issued any execution upon said judgment or any balance thereof remaining unpaid except and until you shall be in default in the payment of any one monthly installment for a period of fifteen days from and after the due date thereof."
The record in the case of Mayo Arcade Corporation et al. v. Harry Greenstein was ordered to be filed with and made a part of the record in this case in the court below, but it has not been made a part of the record on this appeal, and is not before us, and it is impossible to determine what pleadings were filed or what steps were taken in that case prior to the entry of the judgment on March 5, 1932, but the case remained upon the docket from the time the bond sued upon was executed in December, 1930, until the judgment was entered in March, 1932, and it is apparent from the contract itself that Greenstein consented to the entry of the judgment in consideration for the extension of time for its payment. It appears from appellant's answer that the original contract provided for the payment by Greenstein of the monthly bills for electric current consumed on the premises occupied by him in addition to the rental of $150 a month, but the amounts of the monthly light bills were not embraced by the judgment, and the obligation to pay them thereafter arises only under the contract of March 15, 1932, which extended the time of payment of the judgment.
While the appellant was a paid surety, and may not avail itself of the rule strictissimi juris which controls the liability of a gratuitous surety, yet it was the duty of appellees to refrain from doing anything which in law alters the position or liability of appellant. American Surety Company of New York v. Noe, 245 Ky. 42, 53 S.W.2d 178. When the contract of March 15, 1932, was entered into, the surety had the privilege of paying the judgment and being subrogated to the rights of appellees. Thus it was afforded an opportunity to protect itself from loss. By the contract of March 15, 1932, the appellees for a valid consideration deprived themselves of the right except under certain conditions to enforce the judgment according to its terms. Thus the surety was deprived of its right of subrogation, and *Page 769
it could take no steps for its own protection against loss so long as the principal in the bond complied with the terms of the contract of March 15, 1932, which was entered into by appellees and the principal without the surety's consent. The agreement extending the time of payment of the judgment and preventing its enforcement according to its terms deprived the surety of a substantial right, and therefore released it from liability. Maryland Casualty Company v. Ballard County, 217 Ky. 343, 289 S.W. 316; Pond Creek Coal Company v. Citizens' Trust Guaranty Company, 170 Ky. 601, 186 S.W. 494; Inland Navigation Company v. American Surety Company of New York,190 Ky. 504, 227 S.W. 809; Barker v. Illinois Surety Company,169 Ky. 441, 184 S.W. 377; Lewis' Administrator v. United States Fidelity Guaranty Co., 144 Ky. 425, 138 S.W. 305, Ann. Cas. 1913A, 564.
It is argued that the appellant failed to plead that it had been prejudiced by the contract of March 15, 1932, and that therefore the demurrer to the answer was properly sustained. In an amended answer it was alleged in substance that Harry Greenstein at the time appellees instituted suit against him had the title to and was in the possession of a valuable stock of merchandise of the fair market value of more than $5,000, and when the bond sued on was executed he agreed that the appellant should be subrogated to the rights and liens of appellees on such stock of goods; that after the appellees entered into the contract of March 15, 1932, with Greenstein, and more than four months after the execution of the bond sued on, Greenstein was adjudged a bankrupt and his stock of merchandise was sold and the proceeds distributed among his other creditors. It was further alleged that the extension of time granted by appellees to Greenstein for the payment of the judgment deprived the appellant of its right of subrogation which existed at the time of the rendition of the judgment.
Paragraph 4 of the appellant's answer as amended presented a valid defense, and the court erred in sustaining the demurrer thereto. Wherefore the judgment is reversed for further proceedings consistent herewith. *Page 770 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3110892/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00170-CV
IN THE INTEREST OF G.A.R., A
CHILD
------------
FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION1 AND JUDGMENT
------------
We have considered “Appellant's Motion To Dismiss Appeal.” It is the
court=s opinion that the motion should be granted; therefore, we dismiss the
appeal. See Tex. R. App. P. 42.1(a)(1), 43.2(f).
Costs of the appeal shall be paid by appellant, for which let execution
issue. See Tex. R. App. P. 42.1(d).
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J., and GABRIEL, J.
DELIVERED: July 19, 2012
1
See Tex. R. App. P. 47.4. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4538805/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL VICTOR ARBREE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2199
[June 4, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Rosemarie Scher, Judge; L.T. Case No. 50-2018-CF-
005322-AXXX-MB.
Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
Fourth District, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, 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/2781901/ | IN THE COURT OF APPEALS OF IOWA
No. 14-2144
Filed February 25, 2015
IN THE INTEREST OF R.S.,
Minor Child,
A.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Romonda Belcher,
District Associate Judge.
A mother appeals from termination of her parental rights. AFFIRMED.
Nancy L. Pietz of Pietz Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Jon Anderson,
Assistant County Attorney, for appellee.
Karl Wolle of Juvenile Public Defender’s Office, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
MULLINS, J.
The mother appeals the termination of her parental rights to one child,
R.S., pursuant to Iowa Code section 232.116(1)(b), (d), (e), and (f) (2013). The
mother contends the State failed to prove the statutory grounds for termination,
and the juvenile court should have applied the statutory exceptions under Iowa
Code section 232.116(3)(a) and (c) to forgo termination.
The State asserts it is “not sure” the mother preserved error on her
arguments because she failed to appear at the termination hearing, and her
attorney did not offer or object to any evidence, cross-examine any witness, or
make any argument on her behalf. The district court ruled on the termination
grounds alleged in the petition and found the evidence supported termination
under Iowa Code section 232.116(1)(b), (d), (e), and (f). The court further found
it was in R.S.’s best interest to terminate parental rights. The court also found
the only possible statutory exception to termination was the one set out in section
232.116(3)(a), where a relative has legal custody of the child. The court found
the exception did not apply to prevent termination. The mother did not file a
motion pursuant to Iowa Rule of Civil Procedure 1.904(2) asking the court to
address any additional issue.
Our supreme court has found “the sufficiency of the evidence may be
challenged on appeal even though not raised below” in a termination case. In re
A.R., 316 N.W.2d 887, 888 (Iowa 1982). Thus, so long as the challenge relates
to the sufficiency of the evidence for a finding of the court, we will address it.
Nonetheless, where the court fails to make a finding on an issue properly raised
3
before it, the party is required to make a rule 1.904(2) motion to preserve the
issue for appeal. Id. at 889. Therefore, we will address the mother’s argument
that there was insufficient evidence to support termination on the statutory
grounds. We will also address the mother’s argument that the court erred in
finding the statutory exception under section 232.116(3)(a) did not apply. The
mother did not at any point raise the issue of the statutory exception under
section 232.116(3)(c), nor did the mother file a rule 1.904(2) motion asking the
court to address it. As such, she did not preserve error on that issue.
We review termination of parental rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations
of the juvenile court, especially with regard to witness credibility, but are not
bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary
consideration is the best interest of the child. Id. at 776.
We will uphold an order terminating parental rights where there is clear
and convincing evidence of the statutory grounds for termination. In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). Evidence is clear and convincing when there is
no serious or substantial doubt as to the correctness of the conclusions of law
drawn from the evidence. Id. When the juvenile court orders termination of
parental rights on more than one statutory ground, we need only find grounds to
terminate on one of the sections to affirm. In re J.B.L., 844 N.W.2d 703, 704
(Iowa Ct. App. 2014). Here, we focus on the evidence related to the court’s
termination of the mother’s parental rights under Iowa Code section
232.116(1)(f).
4
To terminate parental rights under section 232.116(1)(f), the State must
show by clear and convincing evidence the child is four years of age or older; has
been adjudicated in need of assistance; has been removed from the physical
custody of the parents for at least twelve of the last eighteen months, or the last
twelve consecutive months; and there is clear and convincing evidence that at
the time of the termination hearing the child could not be returned to the parent’s
custody. The mother’s sole argument with respect to this ground is, “It is clearly
in a child’s best interest to be placed in the custody of a parent when
appropriate.” While this may be true generally, the mother makes no attempt to
argue the child can be returned to her custody at this time.
The child is nine years old. The juvenile court adjudicated him a child in
need of assistance. He has been out of the mother’s care for fifteen consecutive
months. The child was originally removed from the home due to the mother
overdosing on methamphetamine and ecstasy. R.S. was in the home when this
occurred and called 911. The court removed R.S. and placed him with his
maternal grandparents, where he has lived throughout the case. There is also a
history of domestic violence in the home between the mother and her paramour,
which R.S. reported observing. The mother has been diagnosed with post-
traumatic stress disorder (PTSD) due to her deployment as a soldier in the army.
The court ordered the mother to obtain therapy to address her mental
health and domestic violence issues, obtain a substance abuse evaluation and
treatment, submit to drug screening, and attend visitations. The mother
attempted to address her substance abuse problems on multiple occasions and
5
repeatedly failed to complete treatment programs. She has been dishonest
about the efforts she has made to obtain treatment. On multiple occasions she
has declined to take a drug test and admitted it would be positive for illegal
substances. The mother has continued having contact with the paramour,
violating a no-contact order between them that resulted from a domestic violence
incident. She has not sought therapy for her PTSD. She has missed about half
her scheduled visitations with R.S. Because of the mother’s failure to address
any of the issues in her life, the evidence is clear and convincing that R.S. could
not be returned to her care at this time. Therefore, the evidence supports
termination of the mother’s parental rights pursuant to Iowa Code section
232.116(1)(f).
The juvenile court found the only possible statutory exception was the one
set out in section 232.116(3)(a) for when a relative has legal custody of the child.
The court found because of “the mother’s inability or unwillingness to address her
mental health, substance abuse and domestic violence issues, this Court cannot
find that a use of its discretion is warranted.” R.S.’s maternal grandmother has
been caring for him since the original removal and for over a year. On our de
novo review, we agree with the juvenile court that the mother’s lack of progress
or expected progress on her mental health, substance abuse, and domestic
violence issues support a conclusion that it would not be in R.S.’s best interest to
delay his placement in a stable and permanent home because his current
placement is a relative.
6
As discussed above, the mother failed at the termination hearing or in a
rule 1.904(2) motion to raise the argument that the court should apply the
statutory exception under section 232.116(3)(c) to find that termination would be
detrimental due to the closeness of the parent-child relationship. Therefore, she
did not preserve the argument and we need not address it. However, given the
mother’s failure to progress to any degree on her substance abuse, mental
health, and domestic violence issues; her failure to appear for half of her
scheduled visitations; and because R.S. is doing very well in his maternal
grandparents’ home, the mother would not prevail in this argument, even if she
had preserved it.
AFFIRMED. | 01-03-2023 | 02-25-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1107113/ | 981 So. 2d 1208 (2008)
A.C.M.
v.
STATE.
No. 3D07-2638.
District Court of Appeal of Florida, Third District.
May 14, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2789766/ | In the Supreme Court of Georgia
Decided: March 27, 2015
S14A1493. SJN PROPERTIES, LLC v. FULTON COUNTY
BOARD OF ASSESSORS et al.
HUNSTEIN, Justice.
In 2009, John Sherman, a resident and taxpayer of Fulton County, filed
suit, on behalf of himself and all others similarly situated, against the Fulton
County Board of Assessors (hereinafter, “FCBOA”), along with its Chief
Appraiser and each of its members in their official capacities, to challenge the
FCBOA’s method of valuing leasehold estates arising from a sale-leaseback
bond transaction involving the Development Authority of Fulton County
(hereinafter, “DAFC”).1 As described in an earlier appeal arising from this same
case, the sale-leaseback transaction at issue here was structured as follows:
A bond transaction leasehold estate is created when a local
development authority, in accordance with its redevelopment
powers, enters into a bond transaction agreement with a private
developer of certain real property. The local development authority
issues revenue bonds under a financing program to the developer,
1
Shortly after the petition was filed, the DAFC successfully moved to intervene
as a defendant in the case.
who conveys to the authority fee simple title to the property. The
development authority and the developer then enter into a multi-
year lease arrangement whereby the authority, as owner, leases the
property to the developer. The resulting lease payments are used by
the local development authority to make the principal and interest
payments on the revenue bonds. The terms of the agreement allow
the developer to repurchase the fee simple estate for a nominal
amount once the revenue bonds are paid down or retired.
As part of the transaction, the parties enter into a written agreement
that sets forth a specific method for determining the fair market
value of the resulting leasehold estate held by the private developer.
The method estimates the initial fair market value of the leasehold
estate to be 50 percent of the fair market value of the fee simple
estate. The estimated value of the leasehold estate is then “ramped
up” by five percent per year. By the eleventh year, the leasehold
estate is valued at 100 percent of the fair market value of the fee
simple estate.
Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 89 (701 SE2d 472)
(2010) (hereinafter, “Sherman I”). Sherman claims that this so-called “50%
ramp-up” methodology results in the valuation of the developers’ leasehold
estates at less than fair market value, in violation of defendants’ statutory and
constitutional duties to ensure that ad valorem taxes are assessed uniformly and
at fair market value.
In October 2009, the trial court granted the defendants’ motion to
dismiss/motion for judgment on the pleadings, and, on appeal, this Court
2
reversed. Sherman, 288 Ga. at 95. The Court held that the case was not subject
to dismissal because, while there was no dispute as to the valuation
methodology employed, there was no way to conclusively determine at that
stage of the proceedings that such methodology actually resulted in a fair
valuation of the leasehold estate. Id. at 93. This Court reasoned:
[Defendants] argue that their initial valuation of the fee simple
estate follows an authorized appraisal approach and takes into
account some of the factors referenced above, such as similarly
leased properties in the area and the market rents in the area.
However, a valuation of the fee simple estate is just the first step.
[Defendants] will need to offer evidence as to how their method
applied to the leasehold estate incorporates the requisite factors.
They assert that we should just assume that every leasehold estate
is worth 50 percent of its fee simple estate, but offer no evidence to
support this assumption. Without such evidence, and in light of the
affidavit filed by Sherman to the contrary, we are unable to
determine, pursuant to DeKalb County Bd. of Tax Assessors v. W.C.
Harris & Co., supra, that the valuation method used by
[Defendants] is not arbitrary and unreasonable, and therefore the
petition should not have been dismissed pursuant to OCGA §
9–11–12 (b) (6).
Id.
After remand, SJN Properties, LLC (hereinafter, “SJN”) was added as a
plaintiff in the action.2 The plaintiffs filed an amended and restated class action
2
In December 2013, Sherman moved to be dropped as party to the proceedings,
ostensibly for health reasons, leaving SJN as the sole plaintiff in the case.
3
petition, again seeking declaratory, injunctive, and mandamus relief with respect
to the valuation methodology, and adding a claim seeking declaratory,
injunctive, and mandamus relief with respect to a subset of DAFC-owned
properties involved in these bond transactions, which, according to the
plaintiffs, have improperly been treated as tax-exempt. Thereafter, the parties
filed cross-motions for summary judgment, and the trial court granted the
defendants’ motions. Though we find error in the trial court’s striking of two
affidavits submitted by SJN, we nonetheless, for the reasons set forth below,
affirm the grant of summary judgment to the defendants.
1. At the summary judgment hearing, the trial court struck as untimely
two affidavits SJN had filed and served on the day before the hearing. The first
is the affidavit of expert real estate appraiser J. Carl Schultz, Jr., comprised of
16 pages of testimony accompanied by more than 200 pages of supporting
exhibits. The second is the affidavit of John F. Woodham, one of three
attorneys of record for SJN; this affidavit is comprised of nine pages of
testimony and approximately 150 pages of supporting exhibits. SJN filed these
affidavits in the trial court and served them on the defendants on December 19,
2013, the day before the December 20, 2013 summary judgment hearing.
4
Service was effectuated both by U.S. mail and electronically; defendants’
counsel received electronic copies of the affidavits at 5:24 p.m. on December 19.
Concluding that these affidavits were untimely filed, the trial court declined to
consider them.
SJN contends the trial court erred in striking the affidavits, claiming that
they were filed and served in accordance with the Civil Practice Act. Though
we find SJN’s voluminous eleventh-hour filing discourteous, we are constrained
to agree that this filing was technically in compliance with the requirements of
the Civil Practice Act and thus that the trial court erred in striking the affidavits.
OCGA § 9-11-56 (c) authorizes a party against whom a summary judgment
motion has been filed to serve affidavits in opposition to the motion at any time
“prior to the day of hearing.” See also OCGA § 9-11-6 (d) (governing motions
generally, providing that “[o]pposing affidavits may be served not later than one
day before the hearing”); Woods v. Hall, 315 Ga. App. 93 (1) (726 SE2d 596)
(2012) (vacating grant of summary judgment, finding that trial court erred in
striking as untimely plaintiff’s opposing affidavit, filed three days prior to
hearing). Cf. Brown v. Williams, 259 Ga. 6 (4) (375 SE2d 835) (1989)
(opposing affidavit filed on day of hearing was untimely). The Court of
5
Appeals has, in fact, held that opposing affidavits were timely where served on
the day before the hearing only by U.S. mail, such that the movant had not even
received them as of the time of the hearing. See Kirkland v. Kirkland, 285 Ga.
App. 238 (2) (645 SE2d 626) (2007) (opposing affidavit served by mail on day
before summary judgment hearing was timely and properly considered); Martin
v. Newman, 162 Ga. App. 725 (2) (293 SE2d 18) (1982) (same). Though we
find the gamesmanship in such delayed filings distasteful, we cannot ignore the
plain language of OCGA § 9-11-56 (c), which, regrettably, allows parties to
employ such tactics.3 The trial court therefore erred in refusing to consider the
Schultz and Woodham affidavits in its adjudication of defendants’ motions for
summary judgment. In our de novo review of the evidence here, see Jones v.
Kirk, 290 Ga. 220, 221 (719 SE2d 428) (2011), we will thus consider these
affidavits, to the extent they are otherwise “admissible in the evidence [and] . .
. show affirmatively that the affiant is competent to testify to the matters stated
3
We note that the Federal Rules of Civil Procedure, on which our Civil Practice
Act is modeled, see Ambler v. Ambler, 230 Ga. 281 (1) (196 SE2d 858) (1973),
currently require the service of opposing affidavits no later than seven days prior to
a hearing. Fed. R. Civ. P. 6 (c) (2). The current rule is more stringent than the prior
version, which required only that opposing affidavits be served at least one day before
the hearing. See Charles Alan Wright et al., 4B Fed. Prac. & Proc. Civ. § 1170, n.3
(4th ed., updated Jan. 2015).
6
therein.” OCGA § 9-11-56 (e).
2. In reviewing the merits of a trial court’s decision on a motion for
summary judgment, “‘this Court conducts a de novo review of the evidence to
determine whether there is a genuine issue of material fact and whether the
undisputed facts, viewed in the light most favorable to the nonmoving party,
warrant judgment as a matter of law.’” Jones, 290 Ga. at 221. As we stated in
Sherman I,
[t]he overriding issue in this case is whether the valuation method
used by [the defendants] fairly and justly establishes the fair market
value of a bond transaction leasehold estate such that the method is
not “arbitrary or unreasonable.” [Cit.]
Sherman, 288 Ga. at 90. The other issue, raised in the plaintiffs’ amended
petition on remand following Sherman I, is whether certain properties held in
fee simple by the DAFC have been and continue to be unlawfully exempted
from ad valorem taxation.4 In connection with the resolution of these issues,
SJN seeks a declaratory judgment (a) affirming the invalidity of the 50% ramp-
up valuation method, both as employed in connection with the bond transaction
4
Specifically, SJN claims that various properties held by the DAFC fall within
certain categories specified under state law as ineligible for exemption from ad
valorem taxes. See OCGA §§ 36-62-3, 36-62-2 (6) (H) (vi), (J) & (K).
7
leasehold estates here and in general; and (b) establishing DAFC’s liability for
back taxes on various properties as to which it has been unlawfully afforded an
exemption from ad valorem taxes. In addition, SJN seeks “a mandatory
injunction and/or writ of mandamus” to (a) restrain the FCBOA from using the
50% ramp-up valuation method in assessing the value of bond transaction
leasehold estates; (b) compel the FCBOA to re-appraise all existing leasehold
estates at issue here using an appraisal approach that comports with state law
and to issue assessments for the collection of back taxes on such estates to the
extent they have been previously under-appraised; and (c) compel the FCBOA
to issue ad valorem tax assessment notices to the DAFC as to its non-tax-exempt
properties for prior years and to commence such assessments for future years.
(a) We first address SJN’s claims regarding the allegedly non-tax-exempt
status of certain properties held by the DAFC. In support of its claims in this
regard, the only evidence SJN has offered is the affidavit testimony of John
Woodham, its own counsel of record. In his affidavit, Woodham identifies
various properties owned by the DAFC which he claims constitute either office
building or hotel facilities that are specifically excluded from the tax exemption
afforded to most development authority-owned property. See OGCA §§ 36-62-
8
3, 36-62-2 (6) (H) (vi) & (J). Woodham designates these properties via
handwritten notations in the margins of a list of DAFC-owned properties,
purportedly obtained from the FCBOA during discovery, attached as an exhibit
to his affidavit. In the affidavit, Woodham attests that he “personally reviewed
the property record information” regarding the designated properties and opines
on this basis that these properties are not tax-exempt. SJN offers no other
evidence in support of its claims in this regard.
Setting aside the questionable ethics of Woodham’s assumption of the role
as witness in a case he is prosecuting as counsel of record,4 we find that
Woodham’s “testimony” is insufficient to create an issue of material fact on
SJN’s claims in regard to the tax-exempt status of the DAFC-owned properties
at issue. See, e.g., Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2)
(573 SE2d 389) (2002) (once a defendant on motion for summary judgment
exposes an absence of evidence to support the plaintiff’s case, the plaintiff must
then “‘point to specific evidence giving rise to a triable issue’”). Entirely absent
is any factual basis for the conclusion that any of the properties in question
4
See Georgia Rules of Professional Conduct, Rule 3.7 (“[a] lawyer shall not act
as advocate at a trial in which the lawyer is likely to be a necessary witness”).
9
actually possess the characteristics an “office building” or “hotel facility” as
defined in OCGA § 36-62-2 (6) (H) (vi) & (J). Woodham’s “testimony” on this
issue is nothing more than legal arguments lacking in evidentiary support; his
affidavit is simply a legal brief cloaked under the solemnity of an oath. The fact
that SJN could apparently find no witness or documentary evidence that would
substantiate its claims on this issue, other than the self-serving so-called
“testimony” of its own attorney, demonstrates the propriety of summary
judgment on these claims. We therefore affirm the grant of summary judgment
as to these claims.
(b) We now consider SJN’s claims regarding the FCBOA’s use of the
50% ramp-up formula in assessing the value of the bond transaction leasehold
estates held by the private developers who are parties to the bond transactions
here.
(i) Claims for injunctive relief. As an initial matter, the defendants
contend, citing this Court’s recent decision in Georgia Dept. of Natural
Resources v. Ctr. for a Sustainable Coast, 294 Ga. 593 (755 SE2d 184) (2014),
that SJN’s claims for injunctive relief are barred by sovereign immunity. We
agree. In Sustainable Coast, this Court held that sovereign immunity, in its
10
current incarnation under this State’s constitution, may be waived only by an act
of the General Assembly. Id. at 598-601. Accordingly, we overruled precedent
that had previously recognized a common law exception to sovereign immunity
for suits seeking injunctive relief against the State. Id. at 593, 599-602
(overruling Intl. Bus. Machines Corp. v. Evans, 265 Ga. 215 (453 SE2d 706)
(1995)). Thus, after Sustainable Coast, injunction actions against the State,
including those against State employees in their official capacity, see id. at 599,
n.4, may proceed only where such actions are expressly authorized under our
constitution or by a statute evincing the legislature’s express intent to permit
claimants to seek injunctive relief against the State. Accordingly, SJN’s claims
for injunctive relief are barred by sovereign immunity.
(ii) Claims for mandamus relief. Sovereign immunity does not, however,
preclude SJN’s claims for mandamus relief. See Southern LNG, Inc. v.
MacGinnitie, 290 Ga. 204 (719 SE2d 473) (2011).5 Our mandamus statute
expressly authorizes claimants to seek relief against a public official “whenever
. . . a defect of legal justice would ensue from [the official’s] failure to perform
5
Were we to hold otherwise, mandamus actions, which by their very nature may
be sought only against public officials, would be categorically precluded by sovereign
immunity.
11
or from improper performance” of “official duties.” OCGA § 9-6-20. SJN, as
a citizen and taxpayer of Fulton County, clearly has standing to seek the type of
mandamus relief it requests here. See OCGA § 9-6-24 (conferring standing to
seek mandamus relief on any person “interested in having the laws executed and
the duty in question enforced”); Southern LNG, Inc. v. MacGinnitie, 294 Ga.
657 (2) (755 SE2d 683) (2014) (corporate taxpayer had standing to sue for
mandamus to compel State Revenue Commissioner to recognize it as a “public
utility” for ad valorem tax purposes).6
6
We note that we have previously held that OCGA § 9-6-24 and its predecessor
statute confer standing to seek enforcement of public duties not only via mandamus
but also by injunction. See, e.g., Arneson v. Bd. of Trustees of Employers’
Retirement Sys. of Ga., 257 Ga. 579 (2) (b), (c) (361 SE2d 805) (1987) (taxpayers
generally have standing to seek to enjoin public officials from committing ultra vires
acts); Griggs v. Green, 230 Ga. 257 (1) (197 SE2d 116) (1973) (taxpayer had standing
to seek to enjoin taxing authorities from proceeding under allegedly void and illegal
tax digest); Head v. Browning, 215 Ga. 263 (2) (109 SE2d 798) (1959) (taxpayers had
standing to seek to enjoin State Revenue Commissioner from issuing liquor license
to defendant). In none of these cases did we address sovereign immunity, likely due,
at least in part, to their timing in relation to the evolution of our doctrine of sovereign
immunity and whether judicially-created exceptions to the doctrine – such as that for
injunction actions – were recognized as valid. See Sustainable Coast, 294 Ga. at 597-
599 (examining history of sovereign immunity from its adoption in our common law
in 1784, to its constitutionalization in 1974, and subsequent changes with the
adoption of the Georgia Constitution of 1983 and further amendments in 1991).
Insofar as these and similar cases permitted the prosecution of injunction actions
against state officials, they now stand abrogated by Sustainable Coast; however, to
the extent these cases simply confirmed a taxpayer’s standing to seek to enforce a
public duty by way of some viable cause of action, they remain good law.
12
In order to be entitled to mandamus relief, a claimant must establish that
“(1) no other adequate legal remedy is available to effectuate the relief sought;
and (2) the applicant has a clear legal right to such relief.” Bibb County v.
Monroe County, 294 Ga. 730, 734 (2) (755 SE2d 760) (2014). Pretermitting
whether another adequate legal remedy is available here, we conclude, as
explained below, that SJN has failed to come forth with evidence of a clear legal
right to the relief it is seeking.
A clear legal right to the relief sought may be found only
where the claimant seeks to compel the performance of a public
duty that an official or agency is required by law to perform. . . .
Where performance is required by law, a clear legal right to relief
will exist either where the official or agency fails entirely to act or
where, in taking such required action, the official or agency
commits a gross abuse of discretion.
Id. at 735. Here, SJN seeks to compel the FCBOA to fulfill its statutory duty in
relation to the assessment of ad valorem taxes within its jurisdiction. The
essence of this duty is
to see that all taxable property within the county is assessed and
returned at its fair market value and that fair market values as
between the individual taxpayers are fairly and justly equalized so
that each taxpayer shall pay as nearly as possible only such
taxpayer’s proportionate share of taxes.
13
OCGA § 48-5-306 (a); see also Ga. Const. of 1983, Art. VII, Sec. I, Par. III
(requiring uniformity in taxation). As to the fulfillment of this duty, we have
held:
Tax assessors are authorized to fix the fair market value of property
for taxes from the best information obtainable. This does not
require the tax assessors to use any definite system or method, but
demands only that the valuations be just and that they be fairly and
justly equalized among the individual taxpayers . . . according to the
best information obtainable.
(Citations and punctuation omitted.) Colvard v. Ridley, 218 Ga. 490, 490 (1)
(128 SE2d 732) (1962); accord Sherman, 288 Ga. at 91 (“[i]t is clear that county
boards of tax assessors are not required to use any particular appraisal approach
or method when determining the fair market value of property”).
In sum, the FCBOA’s duty is to assess all taxable properties within its
jurisdiction at fair market value, utilizing the “best information obtainable.” In
support of their motions for summary judgment, the defendants have adduced
the testimony of two expert real estate appraisers, both of whom opine that the
50% ramp-up formula is an analytically sound approach that comports with
standard appraisal practice and, in the words of one of these witnesses,
“represents an appropriate, reasonable, and non-arbitrary simplified method of
14
arriving at the fair market value for tax purposes of the leasehold interest[s]” at
issue. This Court has in fact previously endorsed the concept of a formula for
the valuation of leasehold estates in property held in fee simple by a county
development authority. See DeKalb County Bd. of Tax Assessors v. W.C.
Harris &Co., 248 Ga. 277, 280-281 (3) (282 SE2d 880) (1981) (“[w]e do not
find the method of valuation utilized . . . to be an arbitrary or unreasonable one,
and . . . the trial court did not err in approving the formula adopted in these
cases”); see also Coweta County Bd. of Tax Assessors v. EGO Products, Inc.,
241 Ga. App. 85, 87 (1) (526 SE2d 133) (1999) (noting with approval county
board of tax assessors’ “long-standing policy of taxing leasehold interests in real
property that are the subject of a financing agreement . . . at 50 percent of the
appraised value for the term of the lease”).
Not surprisingly, SJN’s expert appraiser disagrees with the defendants’
experts, contending that, because of the structure of the bond transaction and the
terms of the operative agreements, virtually 100% of any leased property’s value
resides in the leasehold at all times during the term of the lease and that use of
the 50% ramp-up formula thus systematically underestimates the value of the
15
leasehold estate.7 However, this witness, while assailing in the abstract the
assumptions underlying the 50% ramp-up formula, admitted at his deposition
that he has not actually appraised any of the leasehold estates involved in this
case. Critically, when this witness was asked point-blank whether the assessed
values of any of the properties at issue here in any given tax year were incorrect,
he replied that he did not know.
In the end, though much ink is spilled in the parties’ debate over whether
the 50% ramp-up formula, in the abstract, is the best – or even a valid –
methodology for valuing the leasehold estates here, SJN’s mandamus claims fail
for the simple reason that it has adduced no evidence that any actual assessment
of any particular property has been or is other than at fair market value. SJN has
thus failed to adduce any evidence that the FCBOA has failed to comply with
its legal duty to “see that all taxable property within the county is assessed and
returned for taxes at its fair market value.” OCGA § 48-5-306 (a). On the
7
We note that the defendants moved in the trial court to exclude the testimony
of SJN’s expert as lacking the prerequisites for admissibility of expert testimony
under OCGA § 24-7-702 (b). As the trial court did not rule on this motion, we have
no occasion to review this issue and thus assume for present purposes that this
testimony would be admissible at trial.
16
evidentiary record presented, SJN’s claims for mandamus relief cannot
withstand summary judgment.
(iii) Claims for declaratory relief. We have previously left unresolved the
question of whether sovereign immunity generally bars claims against the State
for declaratory relief. See Southern LNG, 290 Ga. at 205-206 & n.1 (expressly
sidestepping issue of whether declaratory judgment actions against the State are
generally barred by sovereign immunity, but noting that this Court has in the
past in certain contexts permitted declaratory judgment actions to proceed
against state agencies and officials). But see DeKalb County Sch. Dist. v. Gold,
318 Ga. App. 633, 637 (1) (a) (734 SE2d 466) (2012) (holding that “[o]ur
Constitution and statutes do not provide for a blanket waiver of sovereign
immunity in declaratory-judgment actions”). Under the rationale of Sustainable
Coast, it appears that, absent a statutory provision affording claimants an
express right to seek declaratory relief against the State, sovereign immunity
would bar such claims. See Gold, 318 Ga. App. at 637 (noting that OCGA § 50-
13-10 provides for specific waiver of sovereign immunity for declaratory
judgment actions challenging state agency administrative rules). Because this
17
significant legal issue has received little attention in these proceedings and
because these claims can be disposed of on other grounds, as discussed below,
we decline to definitively resolve it here.
Our Declaratory Judgment Act, OCGA § 9–4–2, provides that
the superior courts may declare rights and other legal relations of
any parties petitioning for declaratory relief in “cases of actual
controversy,” or when “the ends of justice require that the
declaration should be made.” The purpose of the Act is “to settle
and afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations.” OCGA § 9–4–1. The
proper scope of declaratory judgment is to adjudge those rights
among parties upon which their future conduct depends.
Fourth St. Baptist Church of Columbus v. Bd. of Registrars, 253 Ga. 368, 369
(1) (320 SE2d 543) (1984). Accordingly, declaratory relief is proper only where
the party seeking such relief faces some uncertainty or insecurity as to rights,
status, or legal relations, upon which its future conduct depends. See, e.g.,
Baker v. City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999)
(“[w]here the party seeking declaratory judgment does not show it is in a
position of uncertainty as to an alleged right, dismissal of the declaratory
judgment action is proper”); Fourth St. Baptist Church of Columbus, 253 Ga.
at 369 (claims for declaratory relief were properly dismissed, where plaintiffs
18
“face[d] no uncertainty or insecurity with respect to their voting rights, nor any
risk stemming from undirected future action”); Henderson v. Alverson, 217 Ga.
541 (123 SE2d 721) (1962) (declaratory judgment action could not be
maintained where plaintiff failed to allege need for guidance as to his future
conduct but rather merely sought declaration that legislative enactment was
void). Here, SJN faces no uncertainty or insecurity as to any of its own future
conduct, but rather seeks an adjudication only of issues that will impact the
future conduct of the FCBOA. As such, SJN’s claims for declaratory relief
cannot be maintained, and summary judgment was properly granted thereon.
In summary, though we find error in the trial court’s striking of the
Schultz and Woodham affidavits, we nonetheless, for the foregoing reasons,
affirm the grant of summary judgment to the defendants as to all of SJN’s
claims.
Judgment affirmed. All the Justices concur.
19 | 01-03-2023 | 03-27-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2818333/ | STATE OF MICHIGAN
COURT OF APPEALS
TED WHITBY, f/k/a THEODORE WHITBY, UNPUBLISHED
July 16, 2015
Plaintiff-Appellant,
and
TRACEY WHITBY,
Plaintiff,
v No. 321272
Calhoun Circuit Court
DENNIS LEE WRIGHT, a/k/a DENNIS L. LC No. 2013-001578-NO
WRIGHT,
Defendant-Appellee.
Before: O’CONNELL, P.J., and OWENS and M. J. KELLY, JJ.
PER CURIAM.
Plaintiff, Ted Whitby, appeals as of right the trial court’s order granting summary
disposition to defendant, Dennis Lee Wright, under MCR 2.116(C)(10). The trial court
determined that Whitby did not establish that Wright owed him a duty when Whitby was injured
by a cow that had escaped Wright’s pasture. We affirm.
I. FACTUAL BACKGROUND
Ronald Watson testified that at about 6:40 a.m. on September 24, 2011, he struck some
cows that were standing in the road with his car. Whitby testified that Watson knocked on his
door on the morning of the accident. Whitby went outside and determined that the cows
belonged to Wright.
Wright testified at his deposition that he raises Black Angus cattle. According to Wright,
the night before the accident, the cows were in a large lot with a five-strand electric fence and a
double gate. When a police officer came to speak to him, he discovered that the gate had been
knocked down and the cows were gone. Wright testified that he had previously lost calves to
coyotes. He believed a coyote had scared the cows and caused them to break the gate.
-1-
According to Whitby, while trying to get the cows back into Wright’s pasture, he
approached a cow lying in a field and said “whoo cow” to it. The cow stood, dropped its head,
and charged him. Whitby was injured.
In May 2013, Whitby filed a complaint against Wright. Whitby alleged theories of
common-law negligence and breach of MCL 433.12, which prohibits permitting cattle to
wander. Wright moved for summary disposition under MCR 2.116(C)(10). The trial court
granted summary disposition in favor of Wright because it determined there was no evidence
Wright was negligent, and MCL 433.12 did not impose liability for personal injuries. Whitby
now appeals.
II. STANDARDS OF REVIEW
This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Gorman v American Honda Motor Co, Inc, 302 Mich. App. 113, 115; 839 NW2d 223
(2013). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter
of law.” A genuine issue of material fact exists if, when viewing the record in the light most
favorable to the nonmoving party, reasonable minds could differ on the issue. Gorman, 302
Mich. App. at 116.
Once the defendant party has identified issues in which there are no disputed issues of
material fact, the burden shifts to the plaintiff to show that disputed issues exist. Quinto v Cross
& Peters Co, 451 Mich. 358, 362; 547 NW2d 314 (1996). The plaintiff “may not rely on mere
allegations” but must instead “go beyond the pleadings to set forth specific facts showing that a
genuine issue of material fact exists.” Id. at 362. If the plaintiff does not make such a showing,
the trial court properly grants summary disposition. Id. at 363.
III. NEGLIGENCE
Whitby contends that he established sufficient evidence of duty and breach to survive a
motion for summary disposition. We disagree.
To prove negligence, a plaintiff must show that (1) the defendant owed the plaintiff a
duty of care, (2) the defendant breached that duty, (3) the plaintiff was injured, and (4) the
defendant’s breach caused the plaintiff’s injury. Henry v Dow Chem Co, 473 Mich. 63, 71-72;
701 NW2d 684 (2005). “Every person engaged in the performance of an undertaking has a duty
to use due care or to not unreasonably endanger the person or property of others.” Hill v Sears,
Roebuck & Co, 492 Mich. 651, 660; 822 NW2d 190 (2012). If it is not foreseeable that the
defendant’s conduct could pose a risk of injury to a person with whom the defendant has a
relationship, then there is no duty not to engage in that conduct. Id. at 661; In re Certified
Question From the Fourteenth Dist Court of Appeals of Texas, 479 Mich. 498, 508; 740 NW2d
206 (2007). Whether a defendant owed a duty to a plaintiff is a question of law. In re Certified
Question, 479 Mich. at 504.
We agree that Wright owed Whitby a legal duty to use due care to contain his cattle.
Wright attempts to frame the issue as whether it was foreseeable that Whitby would approach an
injured cow, but that frames the issue too narrowly. The issue is not whether the defendant could
-2-
have foreseen the specific injury, but rather, whether the defendant could have foreseen the risks
associated with certain conduct. Id. at 508. The conduct here is allegedly providing inadequate
fencing for his cattle. Wright had a duty to properly contain his livestock. See Aylesworth v
Herrington, 17 Mich. 417, 421-423 (1868) (holding the plaintiff was entitled to recover in
trespass when the defendant’s cattle escaped a fence and destroyed the plaintiff’s corn).
In this case, the parties were not adjacent neighbors, but Wright was a nearby landowner.
It was reasonably foreseeable that, if Wright failed to adequately fence in his cattle, they could
escape and cause injuries or property damage. It was also reasonably foreseeable that Whitby, a
neighbor, would be the type of person injured by this conduct. We conclude that Wright had a
duty to use ordinary care to fence in his cattle.
However, duty is only one element of negligence. At the motion for summary
disposition, Wright also contended that Whitby provided no evidence that Wright breached his
duties. Whitby contends that he provided sufficient evidence of breach under the res ipsa
loquitur doctrine. We disagree.
Generally, a plaintiff proves that a defendant breached his or her duties by establishing
that the defendant’s actions fell below the general standard of care to act reasonably to prevent
harm to others. Case v Consumers Power Co, 463 Mich. 1, 6-7; 615 NW2d 17 (2000). The
doctrine of res ipsa loquitur simply “entitles a plaintiff to a permissible inference of negligence
from circumstantial evidence.” Jones v Porretta, 428 Mich. 132, 147-151; 405 NW2d 863
(1987). To create a valid inference of negligence, the plaintiff must show that (1) the event does
not normally occur absent negligence, (2) the event was caused by an agency or instrumentality
in the defendant’s exclusive control, (3) the event was not “due to any voluntary action or
contribution on the part of the plaintiff,” and (4) evidence of the explanation is more accessible
to the defendant than the plaintiff. Id. at 150-151.
In this case, Whitby contended that “by [Wright] not maintaining his fence properly, the
cows were able to escape.” First, this is an ordinary negligence argument, not a res ipsa loquitur
argument. Whitby simply asserted that Wright did not use ordinary care to keep his cattle
contained. Whitby provided no evidence to support this allegation.
Second, even under the res ipsa loquitur doctrine, a plaintiff may not simply rely on an
assertion in response to a motion for summary disposition. The plaintiff must provide some
circumstantial evidence to support the inference the plaintiff seeks. The first element of res ipsa
loquitur is that “the event does not normally occur absent negligence.” Id. at 150. Whitby failed
to establish this element because he did not present any evidence that cows do not normally
escape enclosures absent negligence. Whitby must establish the elements of res ipsa loquitur in
response to Wright’s motion, he may not simply slap a “res ipsa loquitur” label on his
speculations. We conclude that the trial court properly granted summary disposition to Wright
because Whitby failed to present evidence to establish a disputed issue of material fact regarding
whether Wright breached his duty to contain his cattle.
IV. APPLICATION OF MCL 433.12
-3-
Whitby also contends that MCL 433.12, which concerns animals running at large,
provides him a basis for relief. We disagree.
“The fact that a person has violated a safety statute may be admitted as evidence bearing
on the question of negligence.” Klansek v Anderson Sales & Serv, Inc, 426 Mich. 78, 86; 393
NW2d 356 (1986). MCL 433.12 provides that it is a misdemeanor for a person to allow animals
to run at large:
(2) The owner of an animal shall not permit or enable his animal to run at large in
this state.
***
(4) A person who violates this section is guilty of a misdemeanor.
A person whose property is damaged by an animal running at large is entitled to recover
damages from the animal’s owner. MCL 433.13.
Violation of a statute only creates a presumption for negligence if the statute does not
provide for civil liability. Gould v Atwell, 205 Mich. App. 154, 157-159; 517 NW2d 283 (1994).
The penal statutes for animals running at large provide for both civil and criminal liability, but
limit the civil liability to property damages. Gould, 205 Mich. App. at 159. Accordingly, a party
may not recover personal injury damages on the basis of the animals-at-large statutes. Id.
Gould is directly applicable to the facts in this case. As in Gould, here, Whitby seeks to
recover personal injury damages on the basis that Wright allegedly violated MCL 433.12. But
this statute limits civil liability to property damages. MCL 433.12 provides no presumption of
negligence regarding personal injuries. We conclude that the trial court properly granted
Wright’s motion for summary disposition regarding his MCL 433.12 claims.
We affirm. As the prevailing party, Wright may tax costs. MCR 7.219.
/s/ Peter D. O’Connell
/s/ Donald S. Owens
-4- | 01-03-2023 | 07-20-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3806557/ | This is an action commenced in the county court of Rogers county on the 3d day of December, 1912, by the plaintiff in error against the defendants in error, to recover upon the following promissory note:
$350.00. ST. LOUIS, Mo., Aug. 1, 1903.
"On or before sixty days after date I promise to pay to the order of Gaier Stroh Milly Co. three hundred fifty 00/100 dollars, at St. Louis, Mo. Value received with interest at the rate of six per cent. per annum."
— upon which were certain credits, evidenced by payments, the last of which was made March 8, 1907. Mrs. M. Haas, Jr., the only defendant served with summons, by answer pleaded that the cause of action was barred by the statute *Page 75
of limitations. Upon trial to the court plaintiff offered said note in evidence, and, having pleaded, proved that by the statutes of Missouri action thereon might be commenced at any time within ten years after maturity of said note. The court found the cause of action was barred by the state law, and rendered judgment for defendants.
Plaintiff contends that, the note being payable in Missouri, the laws of that state prescribing the period within which action thereon may be commenced govern as to the time within which such action may be brought in this state. There is no merit in this contention. Defendant was a resident of this state, where the action was commenced. The rule applicable is announced in 25 Cyc. 1018, as follows:
"Statutes of limitation are generally considered as municipal regulations founded on local policy, which have no coercive authority abroad, and with which foreign jurisdictions have no concern, and hence the general rule is that in respect to the limitation of actions the law of the forum governs.
"As a general rule, since statutes of limitation affect the remedy only, an action on a contract is governed by the lexfori, that is, by the statutes of the state or country in which the action is brought and not by the lex loci contractus or thelex domicilii."
While in certain cases enumerated by our statute the laws of other states may restrict the period of limitation, in no event could they enlarge such period.
The judgment of the trial court should be affirmed.
By the Court: It is so ordered. *Page 76 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4538807/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LERBY LABATH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-85
[June 4, 2020]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Barbara R. Duffy,
Judge; L.T. Case No. 12-004995 CF10A.
Lerby Labath, Arcadia, pro se.
Ashley Moody, Attorney General, Tallahassee, and MaryEllen M.
Farrell, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
CIKLIN, 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/2818344/ | STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 16, 2015
Plaintiff-Appellee,
v No. 320592
Washtenaw Circuit Court
DAVID ANTHONY CAMERON, JR., LC No. 11-000123-FH
Defendant-Appellant.
Before: O’CONNELL, P.J., and OWENS and M. J. KELLY, JJ.
PER CURIAM.
Defendant David Anthony Cameron, Jr. appeals by right the trial court’s sentences
imposed on remand from this Court.1 The trial court sentenced Cameron as a fourth-offense
habitual offender, MCL 769.12, to serve concurrent sentences of 108 months to 30 years in
prison for his assault with intent to do great bodily harm less than murder conviction, MCL
750.84, and 77 months to 30 years in prison for his felon in possession of a firearm conviction,
MCL 750.224f. Because we conclude there were no errors warranting resentencing, we affirm.
Cameron first argues the trial court erred when it scored 50 points under Offense Variable
(OV) 7. This Court reviews a trial court’s factual findings under the sentencing guidelines for
clear error. People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). This Court reviews de
novo whether the trial court properly applied the sentencing guidelines to the facts. Id.
Under MCL 777.37(1)(a), the trial court must score OV 7 at 50 points if a “victim was
treated with sadism, torture, or excessive brutality or conduct designed to substantially increase
the fear and anxiety a victim suffered during the offense.” Thus, a trial court properly scores OV
7 at 50 points if the defendant’s conduct amounted to sadism, torture, or excessive brutality, or
was designed to substantially increase the fear and anxiety a victim suffered during the offense.
Hardy, 494 Mich. at 439-440.
1
See People v Cameron, unpublished opinion per curiam of the Court of Appeals, issued
February 26, 2013 (Docket No. 306391).
-1-
In Hardy, our Supreme Court explained that determining whether the defendant engaged
in conduct that was designed to substantially increase fear or anxiety involved a two-step
inquiry: “The relevant inquiries are (1) whether the defendant engaged in conduct beyond the
minimum required to commit the offense; and, if so, (2) whether the conduct was intended to
make a victim’s fear or anxiety greater by a considerable amount.” Id. at 443-444. A
defendant’s intent can be inferred from the facts and circumstances of the case. Id. at 440 n 26.
In Hardy, the Court determined that the defendant’s act of racking a shotgun while pointing it at
the victim was an extra step beyond the minimum necessary to commit carjacking because
“merely displaying the weapon or pointing it at the victim would have been enough . . . .” Id. at
445. The Court similarly held that the nature of the act supported the finding that the defendant
did it with the intent to substantially increase the victim’s fear. Id.
The relevant offense in this case was assault with intent to do great bodily harm less than
murder. Assault with intent to do great bodily harm less than murder requires two elements: “(1)
an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an
intent to do great bodily harm less than murder.” People v Brown, 267 Mich. App. 141, 147; 703
NW2d 230 (2005) (quotation marks, emphasis, and citation omitted). The intent to do great
bodily harm means “an intent to do serious injury of an aggravated nature.” Id. (quotation marks
and citation omitted). Accordingly, the minimum conduct required to commit the crime would
have been for Cameron to point the gun at the victim (an assault) under circumstances that
suggested that he had the intent to do great bodily harm less than murder.
The evidence showed that Cameron assaulted and threatened the victim because he was
upset that the victim had sent eviction notices to some friends. For that reason, he forced the
victim up against a wall, pressed a gun to her face, pulled her head back, and threatened to kill
her and her daughter if he had to come back. He then punctuated his threat by slamming the
victim’s head into the wall, which left her lying on the floor unconscious.
Cameron’s conduct went beyond the minimum necessary to commit assault with intent to
do great bodily harm less than murder and permitted an inference that he took the extra acts with
the intent to substantially increase the victim’s fear and anxiety. MCL 777.37(1)(a); Hardy, 494
Mich. at 440 n 26. When he pressed the gun firmly to her face, he told the victim to “quit f------
with his people.” He also threatened to kill her and her daughter if he had to come back. This
evidence supported by a preponderance that Cameron intended to considerably increase the
victim’s fear and anxiety during the assault so that she would take his threats seriously and not
evict his friends. Therefore, the trial court did not clearly err when it found that Cameron took
acts beyond the minimum necessary to commit the crime and did so to considerably increase the
victim’s fear or anxiety. Id. at 443-445.
Next, Cameron argues the trial court erred when it did not score the variables for his
lower crime class concurrent conviction of felon in possession of a firearm and, in effect,
departed from the guidelines in sentencing him for this conviction. We review de novo whether
the trial court properly applied the sentencing guidelines. People v Mack, 265 Mich. App. 122,
125; 695 NW2d 342 (2005).
-2-
This Court has already determined that a trial court does not need to score the variables
for a lower crime class offense, which is to be served concurrent to the higher crime class
offense; it similarly held that sentencing a defendant within the range calculated for the higher
offense does not constitute a departure. See People v Lopez, 305 Mich. App. 686, 690-692; 854
NW2d 205 (2014). The Court explained that when a defendant is sentenced to concurrent
sentences for multiple offenses, the trial court is not required to calculate the guidelines range for
the lower crime class offense because “there would be no tangible reason or benefit in
establishing guidelines ranges for the lower-crime-class offenses” given that the “the guidelines
range for the highest-crime-class offense would subsume the guidelines range for lower-crime-
class offenses.” Id. at 691-692.
At resentencing, the trial court sentenced Cameron to serve concurrent sentences. The
assault with intent to do great bodily harm less than murder conviction was the higher crime
class conviction. Therefore, because the felon in possession of a firearm conviction was in a
lower crime class and the sentences were concurrent, the trial court did not need to score this
offense and there was no departure. Id.
There were no errors warranting resentencing.
Affirmed.
/s/ Peter D. O'Connell
/s/ Donald S. Owens
/s/ Michael J. Kelly
-3- | 01-03-2023 | 07-20-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2971665/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0162n.06
Filed: December 16, 2004
No. 03-4403
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARCELLUS JOHNSON )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
USG INTERIORS INTERNATIONAL, INC., ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )
Before: DAUGHTREY, COOK, and FARRIS,* Circuit Judges.
PER CURIAM. Marcellus Johnson appeals the district court’s order granting summary judgment
for USG Interiors International, Inc. After reviewing the record, the parties’ briefs, and the
applicable law, this court determines that no jurisprudential purpose would be served by a panel
opinion and affirms the district court’s decision for the reasons stated in that court’s opinion.
*
The Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3449061/ | Affirming.
On August 20, 1925, the city of Henderson enacted an ordinance providing for the improvement of a portion of Elm street at the expense of the abutting property owners, directing that the cost of the improvement of the street, between the rails of the street railway company and twelve inches on the outside of each rail, was to be assessed against the company. The work was done under the ten-year plan, as provided by section 3458, Kentucky Statutes, and was duly accepted on November 9, 1925, and the cost apportioned. The railway company owned a line of railway on Elm street, and also owned a lot on the street on which was situated a building used as a depot. It was never granted a franchise by the city, nor did it have a contract with the city. Following the enactment of the ordinance by the city, it executed a written agreement accepting the ten-year plan and agreeing to pay the assessments levied. It paid three assessments and refused to pay any additional assessments. This suit was brought against the railway company on December 8, 1930, by the owner of some of the unpaid improvement bonds issued by the city under the statute to recover the unpaid assessments, with interest and penalty. In its answer and counterclaim the railway company admitted the execution of the agreement accepting the ten-year payment plan, and alleged that it had no franchise or contract with the city requiring it to pay for the improvement between its track and twelve inches on the outside of the rails, and that the execution of the agreement was done under the mistaken opinion that it was legally liable for the assessment and could be forced to pay it. It pleaded lack of consideration for the agreement as to the improvement between its rails and twelve inches on the outside of the rails and prayed judgment against the city for $105.80, which it alleged was the amount paid by it in excess of the amount due by it to the city on account of the assessment against its depot property. The court sustained appellee's demurrer to the answer *Page 714
and counterclaim, and, upon its refusal to plead further, gave judgment against the railway company. It appeals.
The case turns upon the following provisions of the statute:
"The improvement of public ways and sidewalks [including curbing and guttering], except as hereinafter provided, shall be made at the exclusive cost of the owners of real estate abutting on such improvement, to be apportioned among and assessed upon the lots or parcels of real estate abutting on such improvement according to the number of front or abutting feet, and a tax shall be levied upon such lots or parcels of real estate for the payment of the cost assessed thereon, which tax shall be due and payable at the city treasurer's office upon completion of the work and acceptance thereof by the common council or said board of commissioners, unless otherwise provided in the ordinance ordering such improvement, and no property shall be exempt from such improvement tax. * * *
"When in any such city having therein a street railway, and the railway company is required by its franchise, or by any contract with the city, to pave or improve any part of the streets or alleys of the city, proposed to be improved, the cost of paving such portion of such streets or alleys shall be assessed against such railway company and a tax shall be levied upon all property, assets and franchises of such company in the city for the payment thereof." Section 3450, Ky. Stats.
"The lien provided for in sec. 3450 shall take effect upon the publication of the ordinance making the assessment and levying the tax and shall take precedence over all other liens, whether created prior or subsequent to the publication of such ordinance, except state and county taxes, general municipal taxes and prior improvement taxes, and shall not be defeated or postponed by any private or judicial sale, or by any mortgage or by any error or mistake in the description of the property or in the names thereof. Nor shall any error of the proceedings of the common council or said board of commissioners exempt any property from the lien for or payment of such taxes after the work has been done and accepted as provided in this section; *Page 715
but the common council or said board of commissioners, or the courts in which suits are pending, shall make all corrections, rules and orders to do justice to all parties concerned, and in no event shall the city be liable for any part of the cost of such improvement except as provided in sec. 3450." Section 3457, Ky. Stats.
"Any property owner who desires to exercise such privilege of payment by installments, shall, before the expiration of the said thirty days, enter into an agreement in writing with the city that in consideration of such privilege he will make no objections to any illegality or irregularity with regard to the taxes against his property, and that he will pay the same in the manner herein provided with specified interest." Section 3458, Ky. Stats.
Although the railway company had no franchise or contract with the city requiring it to pay for the improvement of the street between its tracks and twelve inches on the outside of its rails, it duly executed the agreement to pay the assessment made by the city, and so secured ten years' time to pay it under the statute which expressly provided:
"Any property owner entering into such an agreement, or who exercises the option to pay in installments, shall be concluded thereby and shall not be permitted to set up any defense whatever against the payment of such taxes." Section 3458, Ky. Stats.
"After the issue of such bonds no suit shall lie to enjoin or resist the collection of any assessment or tax in anticipation of which the bonds are issued, and the validity of the same shall not be questioned, but all property owners shall be conclusively estopped and precluded from in any manner assailing the effectiveness or validity thereof." Section 3459, Ky. Stats.
After the property owners had signed the agreement, the city issued the bonds and sold them. The bondholders bought the bonds on the credit of the proceeding. The taxpayers had all the time, from the enactment of the ordinance until the bonds were issued, to learn the facts and look into their rights. The railway company took no steps here until after the city had *Page 716
issued the bonds and the rights of innocent third parties had intervened. It was the clear purpose of the statute to prevent such a controversy as this after the bonds were issued. For the statute was intended to enable the city to sell the bonds at a good price. It was incumbent upon every property owner to look into the matter then before the city council took final steps and issued the bonds. This gave everybody a reasonable time to inform himself and protect his rights. The railway company was in no way misled by anybody, it simply failed to inform itself as to its rights and it cannot complain when, by its agreement, it procured the city to issue the bonds and thus secured time to pay the assessment. While the common council may make all corrections, rules, and orders to do justice to all parties concerned, the common council cannot make any such orders affecting the rights of the bondholders after their rights have attached. Under the statute, the railway cannot make the defense here relied on under the facts shown. When time was given appellant to pay the debt, the state had full power to provide on what terms the right might be exercised.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3449063/ | Appeal denied; judgment affirmed.
*Page 1 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/131463/ | 540 U.S. 825
JUDICIAL WATCH, INC.v.ROSSOTTI ET AL.
No. 02-1849.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 4th Cir.
2
Certiorari denied. Reported below: 317 F. 3d 401. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3449054/ | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 778
Reversing.
There were primary elections held in this state on August 6, 1927, at which the Democratic and Republican Parties had candidates for all state offices as well as for certain district officers. James A. Wallace, the appellant, was a candidate at that Republican Primary for the nomination for auditor of public accounts for the state of Kentucky, and one of his opponents was John M. Perkins. The result of the vote was close, and, as the returns came into the office of the secretary of state, first one of these candidates was ahead and then the other. When the returns were all in, the state board of *Page 779
election commissioners met to canvass the returns on Monday, August 22d. In making a comparison of the votes certified in the official certificates with the votes entered on a book in the office of the secretary of state it was discovered by the state board of election commissioners that there was a discrepancy between the certificates and the book kept by the secretary of state.
The proof shows that, when the official returns came in to the secretary of state they were turned over to Mr. Roberts, an employee of that office, who copied the returns in the certificate on a book kept for that purpose. His work was done with great care, and was checked and rechecked before the certificates were placed in the safe where they were kept in the office of the secretary of state. When the state board of election commissioners came to the county of Fulton in its tabulation, they discovered that the vote on the book kept in the secretary of state's office showed 30 votes for the appellant, while the original certificate showed that 130 votes had been cast for him. When they reached Kenton county, they found that the book showed 731 votes for appellant, while the original certificate showed 931. The book showed the vote in Knox county for appellant to have been 572, while the original certificate showed 1,572. The book showed that the vote of Lincoln county was 91 for appellant, and the original certificate showed 191. The book showed 61 votes for appellant in Shelby county, while the original certificate showed 161.
The grand jury of Franklin county returned five indictments against appellant charging that he had made changes in the original certificates. It was charged in one indictment that he placed a figure "1" before the figures "61" shown in the Shelby returns, thus making a change in his favor of 100 votes; that he placed the figure "1" before the figures "30" in the returns in his race from Fulton county, thus increasing his vote by 100; that he placed a figure "1" before the figures "572" in the returns in his race from Knox county, thus increasing his vote, according to the returns, 1,000; that he placed a figure "1" before the figures "91" in the returns in his race from Lincoln county, thus increasing his vote 100; and that he changed the first figure in the returns in his race from Kenton county which showed 731 votes cast for him to a "9," thus making the returns show 931 votes cast for him. The net result of the changes as charged in the indictments was to make the *Page 780
returns show a vote 1,500 greater than he received, which was sufficient to change the result of the election.
By agreement of the appellant and those representing the commonwealth, the five separate indictments were tried before a jury on the same evidence. The jury was instructed separately as to each charge, and returned a verdict finding the appellant guilty on each indictment, and fixing his punishment at 2 1/2 years in the penitentiary for each offense, or 12 1/2 years for the combined offenses.
A demurrer was interposed to each of the indictments, and was overruled. The attack on the indictments constitutes one of the major grounds relied on for a reversal by appellant.
Omitting the caption and the signature of the commonwealth's attorney, one of the indictments is as follows:
"The Grand Jury of the County of Franklin, in the name and by the authority of the Commonwealth of Kentucky, accuse James A. Wallace of the crime of forgery committed as follows, viz: The said James A. Wallace in the said County of Franklin on the 27th day of September, A.D. 1927 and before the finding of this indictment, did unlawfully, willfully, and feloniously alter the certification of returns of the Republican Primary election from Knox County, held on Aug. 6th, 1927, in that in the returns for the race for Auditor of Public Accounts, he did change said returns so that the vote for the defendant in said race appeared as '1,572,' said returns being originally '572,' said change being effected by placing the figure '1' before the figure '5' against the peace and dignity of the Commonwealth of Kentucky."
It is admitted in briefs that all of the five indictments are in the same language except as to the description of the alteration made. It is insisted by counsel for appellant that the indictments are not sufficiently direct and certain to meet the mandatory requirements of section 124 and subsection 2 of section 122 of the Criminal Code of Practice when the two sections are read together. Section 124 requires no more than that the indictment must be direct and certain as regards the offense charged. *Page 781
Subsection 2 of section 122 is as follows:
"The indictment must contain . . . a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such a degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case."
The indictments each charge that the returns from the county mentioned showed a certain number of votes received by appellant, and that appellant so changed the returns as to show that he received a greater number of votes, and the exact change, which it is alleged appellant made, is set out in each indictment. Certainly each indictment contains a statement of acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. We could suggest no language which would be more simple, more direct, and more certain. No individual, unless a mentally defective person, could fail to understand what he was charged with, if proceeded against under such an indictment.
But it is urged that in the accusatory part the indictments charge the crime of forgery, while in the descriptive part they charge the statutory crime of altering a certificate of election as defined in section 1581, Ky. Stats., for which a penalty different from that of the common-law charge of forgery is prescribed.
Section 1581, Ky. Stats., is as follows:
"Any officer or other person who shall wilfully alter, obliterate, or wilfully secrete, suppress or destroy the certified poll book, return or certificate of an election, wilfully and unlawfully alter the poll book before it is certified; or any officer who shall make, or aid in making, or authorize the making up of any false or fraudulent poll book, or certificate of an election return, shall be deemed guilty of forgery, be confined in the penitentiary from one to five years, forfeit any office he then holds, and be disqualified from ever holding any office."
The indictment charges in plain and simple language the alteration of an election return. It therefore *Page 782
charges the offense denounced by section 1581. But it is suggested by counsel for appellant that we have no statute in this state covering specifically the common-law crime of forgery. That is true, as section 1188, Ky. Stats., is not so much a definition of forgery as a provision defining penalties for certain acts of forgery. Appellant was not indicted for the crime of forgery under the common law, or forgery for which a penalty is prescribed by section 1188. He was indicted for a statutory offense which was named forgery by the General Assembly when the statute was enacted.
It is argued that the indictments charge in the accusatory part the common-law crime of forgery, but that is not true, as they charge a statutory offense in the language of the statute which is denominated forgery by the statute. Appellant relies on the case of Elliott v. Commonwealth, 194 Ky. 576,240 S.W. 61, where this court held that, where a statutory offense is given no name, the indictment should, in naming the offense, follow the statute. Counsel for appellant seem to have overlooked the name given the offense in the statute. It is urged that the indictment does not follow the language of section 1581 in naming the offense, but in that counsel are mistaken. It does follow the language of the statute in naming the offense.
Appellant relies on the case of Deaton Boggs v. Commonwealth, 220 Ky. 343, 295 S.W. 167. But the case is not in point. The court held there that section 124 and subsection 2 of section 122 of the Criminal Code of Practice must be considered together, and, when so considered, their requirement is mandatory that the indictment must be direct and certain as to the offense charged. These indictments are direct and certain in the accusatory part in charging the offense of forgery, which is the name given to the crime denounced by section 1581, Ky. Stats. The descriptive part of these indictments contains the required certainty prescribed by the aforesaid sections of the Criminal Code.
It is further contended by counsel for appellant that the indictments are insufficient because facts constituting the necessary and essential elements of common-law forgery are not alleged in the descriptive part of the indictment. They rely on the case of Sanlin v. Commonwealth, 212 Ky. 394, 279 S.W. 648. The indictment considered in that case was for the offense mentioned in section 1188, Ky. Stats. This is not an indictment *Page 783
under that section. If it were an indictment under that section, the contention made by counsel might be upheld. But, since it is an indictment under an entirely different section, the case is not in point.
Another point urged against the validity of the indictments is that the instruments which it is charged were forged are not set out according to their tenor in the indictments. Again counsel are attacking the indictment as if the charge was one of common-law forgery. The statute governing these cases defines a statutory offense and not a common-law offense, and the offense is described substantially in the language of the statute. It was not the intention of the General Assembly in the enactment of section 1581 that anything should be charged in the indictment other than the alteration of the returns in the election if that was the gist of the offense, and these indictments make the specific charges, name the election, the particular returns which were altered, and the county making them.
It is insisted that the indictments do not measure up to the requirements of the opinion in the case of Kinnaird v. Commonwealth, 134 Ky. 575, 121 S.W. 489. The court was there considering an indictment returned under section 1352, Ky. Stats., which provides a penalty against a person who sells, lends, gives away, or shows indecent or obscene literature. The indictment was based upon certain letters which a married man had mailed to a young lady. The letters were not copied in the indictment. A demurrer was sustained to the indictment because it did not contain a copy of the letters and did not show that they were not available. The court there said:
"A person who is charged with the commission of a penal or criminal offense that grows out of a writing, or alteration in a writing, made by him is entitled, under all the rules of criminal procedure, to be informed by an inspection of the indictment of the nature of the charge, so that he may be prepared to meet it; and he can not have this information unless the writing alleged to have been executed or altered is incorporated in the indictment. If, however, the writing is lost, and for this reason it can not be set out in the indictment, it will be sufficient to state the fact, and set out the substance of the writing in words and figures as *Page 784
near as may be done, and so, if the writing is in the possession of the accused, and for this reason can not be obtained by the grand jury."
In that case the defendant was charged with the offense prescribed in section 1352, Ky. Stats., and, unless the letters were set out in the indictment, he had no means of knowing the exact nature of the charge against him. He was entitled to know the alleged contents of the letters, and he was entitled to this information by an inspection of the indictment. The court said that he could not have the information, unless the letters were copied in the indictment. The facts are quite different from the matter we are now considering. When appellant examined the indictments, he obtained exact information as to what he was charged with. He could not be left in doubt if he read the indictments. He was told by the indictments exactly what the charge against him was, even down to informing him of the exact figure which it was alleged, he had altered, or inserted, in a certain election return from a named county.
Another contention is that the indictments are insufficient because they contain no allegation of intention on the part of appellant to defraud. It is true that in the case of Barnes v. Commonwealth, 101. Ky. 556, 41 S.W. 772, 19 Ky. Law Rep. 803, in defining the essential ingredients of forgery which must be alleged in the indictment, this court said:
"It is essential to make out for the Commonwealth three essential ingredients, viz., that the defendant forged the writing; that he did so with fraudulent intent, and that the instrument forged must be apparently capable of effecting a fraud."
It was said, however, by this court in the case of Morse v. Commonwealth, 129 Ky. 294, 111 S.W. 714, 33 Ky. Law Rep. 831, that:
"An evil intent is a necessary ingredient in the commission of arson, burglarly, larceny, murder, and almost every other felony, including embezzlement, and must be charged in the indictment; but the law will imply the intent from the acts of the accused when they are sufficient to establish his guilt, and this upon the ground that every accountable person is responsible for the consequences that flow from his acts." *Page 785
The indictments charge that appellant "did unlawfully, wilfully, and feloniously alter the certification of returns," in that he "did change said returns so that the vote for the defendant in said race appeared as '161,' said returns originally being '61,' said change being effected by placing the figure '1' before the figure '6.' "
He was charged with altering the returns in such a manner as to increase his vote, and we deem it unnecessary for these indictments to specifically state that he did so with a fraudulent intent, as under the circumstances alleged in the indictments the alterations could not have been made other than with a fraudulent intent.
Another point urged against the validity of the indictments is that they do not allege that the alterations were made without authority, and counsel cite and rely on the case of Commonwealth v. Bowman, 96 Ky. 44, 27 S.W. 816, 16 Ky. Law Rep. 222. The charge against Bowman was that he forged, or altered, a note, but contained no allegation that it was done without authority. No one has authority to alter, or change, a certificate of election returns after it has been certified by the county board of election commissioners to the secretary of state. The law would not allow a change in the certification in the manner in which it is alleged in the indictment that it was made. Therefore any change so made must have been without authority. It is suggested that appellant may have altered the certification of returns at the instance and request and with the authority of those who were actually authorized under the law to certify the returns. Those who were authorized under the law to certify the returns could not make alterations such as it is charged by the indictments were made. Therefore they could not authorize some one else to do that which they could not have done themselves.
Still another point is urged against the indictments, in that it is urged that they do not allege the name of the party whom it was intended to defraud. These indictments do not charge the crime of obtaining money or property by false pretenses. The statute is aimed at the alteration of election returns, regardless of whether some person is defrauded. The intention of the Statute is to preserve inviolate the election returns, and that is its primary purpose. Counsel for appellant devote considerable space in their brief to an effort to show that the indictments do not contain definite information showing *Page 786
what certifications of returns were altered. The indictments show that the certifications of returns which were altered were in the race for auditor of public accounts in the Republican primary held on August 6, 1927, and that the alteration was in the number of votes received by appellant.
Counsel rely on the case of Commonwealth v. White, 109 S.W. 324, 33 Ky. Law Rep. 70. In that case the court had under consideration an indictment under section 1308, Ky. Stats., against the drawing of a deadly weapon upon another person, or pointing a deadly weapon at another person. The indictment was held bad because the descriptive part of it was not sufficiently direct and certain, in that it did not describe the kind of weapon which was pointed. The court in that case said:
"The rule is that, 'where the words of the statute are descriptive of the offense, the indictment will be sufficient if it shall follow the language and expressly charge the exact offense of the defendant.' But this rule applies only to offenses which are complete in themselves, when the acts set out in the Statute have been done or performed."
The argument that the indictment might relate as well to the certificate of the precinct officers as to the certificate of the county board of election commissioners is not tenable. The indictments charge the alteration in the returns from a particular county, and not from a particular precinct in a county. The certificate altered as alleged in the indictment is the one certifying the returns of the Republican primary election from a particular county. There is only one such certificate, and that is the certificate made by the county board of election commissioners to the secretary of state for the use of the state board of election commissioners. This court judicially knows that the candidate for auditor of public accounts must be nominated by the Republican Party in a state-wide primary election when there is a primary held for that purpose. The court also judicially knows that it is the duty of the board of election commissioners in each county to certify the returns from that county to the Secretary of State in all of the races where the nominations are made by the Republican voters of the state at large.
Another contention made by counsel for appellant is that the indictments contain no allegation that there *Page 787
were any valid certifications of returns of the Republican primary election from the counties in question. This was unnecessary. If it should be required that an indictment in such a case should allege that the certificates made up by the county board of election commissioners were valid, it would also be necessary to show that the board had been legally appointed, and that the election was legally held under authority of law. When the indictment alleged that the alteration was made in the returns from the counties mentioned, there was no necessity for further allegation on this particular point. The presumption is that the officers did their duty and made up the returns in accordance with the provisions of the laws governing such matters.
Appellant cites the cases of Commonwealth v. Barney, 115 Ky. 475, 74 S.W. 181, 24 Ky. Law Rep. 2352; Farmer v. Com., 91 S.W. 1129, 28 Ky. Law Rep. 1369, where it was held that a construction of a statute that would make a person guilty regardless of the question of intent is not to be preferred to a construction requiring a fraudulent intent. That is the general rule. The alteration of election returns, or anything which is the basis of the returns, is an offense under the provisions of section 1581, Ky. Stats., whether the perpetrator of the offense intended to defraud some person or otherwise. If the alteration is willful, unlawful, and felonious, as alleged in these indictments, it makes no difference whether it was done with the purpose of defrauding some other person. It is the violation of the laws providing for the purity of elections which is denounced by section 1581.
We have examined with care each point urged against the validity of the indictments by appellant, and we find it is without merit. Appellant was deprived of no right under the laws, or the Constitution, when he was placed on trial on the charges found in these indictments.
But counsel for appellant say that, conceding the validity of the indictments, there was not enough competent evidence produced before the jury to authorize the submission of the question of guilt or innocence to the jury. The commonwealth established by the officers in the respective counties making the returns that the correct returns from the counties in question showed as indicated by the book kept in the office of the secretary of state, and that the returns from these counties when *Page 788
they reached the state board of election commissioners had been changed. The change took place between the time when the certifications left the county and the time when they were delivered to the state board of election commissioners. The commonwealth also established that, when the certificates reached the office of the secretary of state, and were entered on the book therein kept, they were as when they left the hands of the county officials who forwarded them to the secretary of state. The commonwealth further established that the returns had been tampered with when they were delivered to the chairman of the state board of election commissioners.
As the evidence was presented, it was made to appear that the returns were altered after they reached the office of the secretary of state and before they were delivered to the state board of election commissioners, although the commonwealth was not precluded by the evidence from relying on any alteration that may have been made after the certificates were delivered to the chairman of the board of election commissioners, and the time when the board actually commenced the canvass an hour or two later. The evidence is conclusive on any reasonable mind that the alterations were made either in the office of the secretary of state or in the office of the chairman of the state board of election commissioners. The jury was not confined in its consideration of the evidence to the oral statements of the witnesses, but it was authorized to deduce from facts and circumstances surrounding the entire transaction. With this general statement in view, we will proceed to examine the evidence to ascertain whether the appellant was sufficiently connected with the offenses charged to authorize the submission of the question of guilt or innocence to the jury.
The certificates from the counties began to come into the office of the secretary of state within a few days after the general election. As they came in, the envelopes containing them were opened by Mrs. Cromwell, secretary of state, and they were turned over to C.D. Roberts, an employee of the office, who entered them on the book described above. The entries on the book and the original certificate were carefully checked by Roberts, assisted by Miss Mary Malloy, another employee in the office. When the entries had been made on the book and had been checked against the certificates, *Page 789
the original certificate was then placed in the safe in the private office of the secretary of state. During the days in which the returns were coming in, many people visited the secretary of state's office, but usually they were satisfied by an examination of the book kept by Roberts. The returns were intact without alteration in the counties in question in the auditor's race on Saturday, August 20th succeeding the primary. We know this to be true, because the appellant himself is authority for the statement that the original returns which he checked on that day indicated the correctness of the book kept by Roberts. We know, therefore, without conjecture or surmise, that the original returns from these counties had not been altered in the race for auditor at the time appellant examined them on Saturday morning August 20th. The changes necessarily took place between about the hour of 11 o'clock a. m. on Saturday, August 20th and about the hour of 10 o'clock a. m. on Monday, August 22d. The question to be determined is whether there is anything in the evidence of a probative nature which directly connects appellant with the unlawful act of making the changes, or were such facts developed in the evidence as would enable the jury to infer beyond a reasonable doubt that the changes were made by appellant? This necessitates a detailed statement of the movements of appellant and his activities on Saturday, Sunday, and Monday, which are the vital days so far as the charges in the indictments are concerned.
He knew that the race between him and Mr. Perkins was very close, with nearly all of the returns in. Probably all of the returns were in by the 20th, except those from Jefferson county. The reports which he had indicated that he was running slightly behind Perkins. He came to Frankfort early Saturday morning from Lexington. Mr. Moore, the mail carrier who delivers mail to the capitol, leaves the post office around 8 o'clock, and delivers mail along the streets until he reaches the capitol, usually about 9 o'clock, and there he delivers mail to the different departments. About 8:45 on Saturday morning he saw the appellant on the streets going towards the state capitol. The appellant arrived there a short time thereafter, and requested some of the attaches of the office of the secretary of state to allow him to examine the returns from the different *Page 790
counties. At that immediate time Mr. Roberts, or some one else was using the book, and he was requested to wait for a few minutes and then he might have access to the book. He asked for a large sheet of paper with the names of the counties on it, but was unable to obtain such a sheet in that office. He crossed the hall to the office of the state tax commission where he obtained a sheet of paper such as he desired.
Upon his return to the office of secretary of state, he examined the book kept by Roberts, and entered upon the sheet of paper with a pencil the returns in the auditor's race opposite each county. He was engaged for some time at the desk, and, when he had completed it, he inquired of Miss Malloy if he could see the original returns from some of the counties. Miss Malloy took him in to the private office of Mrs. Cromwell, and there made known his request, and the privilege of seeing some of the original returns was accorded him. The side of the desk in the private office of Mrs. Cromwell is next the door which opens out into the large office in which the employees work. The door was open. Mrs. Cromwell sat on the opposite side of the desk facing the door, and facing the appellant. Miss Malloy inquired of the appellant the names of the counties from which he desired to examine the returns. He gave her the names of 30 counties, and she wrote the names on a scrap of paper with a pencil making red letters. With the list in her hand, she went to the safe about 15 feet away. The returns from the counties had not been arranged alphabetically, so she was required to take them out of the safe and search for the particular counties desired. As she found the returns from the counties, she checked off the name of the counties from her list, and, when she had a batch of a few counties, she carried the returns to Mr. Wallace and placed them before him on the desk. He examined the returns, and compared them with the entries which he had made on the sheet of paper.
Miss Malloy testified, on direct examination, that, when she delivered one batch of returns, she went back to the safe to search out another batch which she carried to the appellant, and that, when he had finished with the batch he was examining, she returned it to the safe. This method was followed until he had examined the returns from 30 counties. No one was in the private office other than Mrs. Cromwell, Miss Malloy, and the *Page 791
appellant, with one exception, which will be noted later, excluding the mail carrier who entered the office to deliver mail. Nearly all of the time Mrs. Cromwell sat facing the appellant while he was making the examination. The telephone, almost at her back, rang while the appellant was in the office, and she moved over to the telephone, about 6 feet away, and received the message. Her impression is that she was there for a very brief space of time, although, of course, she is not absolutely certain.
Miss Malloy, according to the testimony of appellant, when she handed him a batch of the returns, stood waiting while he checked them against the entries on his paper, and then returned them to the safe before she brought him another batch. She is not entirely clear, taking her evidence as a whole, as to whether she waited for him to finish one batch before she brought him another. It is really not material, and is mentioned because it is the only point of contradiction between Miss Malloy and the appellant as to what took place in the private office. Mrs. Cromwell was observant of what went on. Neither she nor Miss Malloy saw appellant make any change in any return, and nothing took place which aroused their suspicion. When they testified, they did not recall whether he had in his hand a pen or a pencil. He testified that he had in his hand a pencil which he used in checking.
The only other person in the private office during this time was Mrs. Mildred Moss, a newspaper reporter, who came in for the purpose of examining the returns in some of the district races. She saw the appellant sitting at the desk with his back towards the door, and Mrs. Cromwell sitting at the desk facing him, and she saw Miss Malloy at the safe. She went to the safe and asked to examine the returns in which she was interested. In passing by Mr. Wallace she saw that he had either a pencil or a pen in his hand that he was using to check with, but she was not certain whether it was a pen or a pencil, but her impression was that it was a black fountain pen. The only contradictions in the evidence of what took place in the private office is that noted between the evidence of Miss Malloy and the appellant, and the statement of appellant that he had a pencil and the impression of Mrs. Moss that he had a pen in his hand. *Page 792
The returns from the counties on which the alterations were made were included in the list of counties made up by Miss Malloy at the request of appellant. After he completed the examination, he stated in the presence of Miss Malloy and Mrs. Cromwell that he found the returns correct, in that they checked with the entries on the sheet of paper which he copied from the entries on the Roberts book.
Before leaving the office of the secretary of state, there is one other fact to be noted, and that is that John A. Goodman, at the time clerk of the Court of Appeals, came into the office, and he and the appellant had a brief conversation, amounting to little more than a reference to the fact that it appeared that each of them had been defeated in the primary. Goodman was a Democratic candidate for the nomination for auditor, and he desired to examine the Roberts book, and appellant gave way until he could make an examination in some particular.
When appellant left the office of the secretary of state, he went to his house on Capitol avenue, which at the time was vacant. He went into the house and looked around for a while, and from there he proceeded to the offices of the highway department at the old Capitol building, where he saw Mr. De Hart, an employee of that department. At the time appellant was engaged in the construction of a road under the supervision of the state highway department, and he had some conversation with De Hart about the work. After leaving De Hart, he went to the place of business of John M. Perkins, his apparently successful opponent in the Republican primary. He testified that he congratulated Perkins on his victory, and pledged him his support in the coming November election. Perkins did not testify. Therefore the statement of the appellant that he congratulated Perkins on his victory stands uncontradicted.
Saturday afternoon appellant returned to Lexhington, and then went over to his old home at Irvine. Sunday afternoon he secured his mail, and went to the bank of which he was president to examine it. Mr. Clark, the cashier of the bank, was also there at the time, examining his mail. When he opened the mail on Sunday afternoon, he testified that he found a certificate of the election returns from Rockcastle county, which he checked with the sheet of paper on which he had made entries *Page 793
the day before, and learned that the certificate which had come to him by mail showed that he received a thousand more votes than his entries indicated. He proves that he received the certificate through the mail by Mr. Clark, who was present at the time, although Clark does not testify that he saw him open the envelope containing the certificate.
On Sunday nothing happened at the office of the secretary of state, so far as the evidence discloses, except that Senator Gartin, who at the time was a candidate for the nomination for Senator in the districts embracing Boyd county came to Frankfort and sought out Mrs. Cromwell, and asked her to go with him to her office, so that he might examine the original returns from the four counties in his district. She obligingly complied with his request, and, upon their arrival at her office, she opened the safe and showed him the returns called for. None of the counties have anything to do with the charges in these indictments. No one else was present at the time, and, according to the evidence of Mrs. Cromwell and Senator Gartin, no returns were examined except those from the four counties in which he was interested.
Before taking up the evidence of Monday, it is necessary to go back to Saturday so the chronology may be understood. About .11:45 a. m. on Saturday morning, which was about 30 minutes after appellant had left the office of the secretary of state, Seymour Goodman, a son of John A. Goodman, and an employee in the office of the clerk of the Court of Appeals, went to the office of the secretary of state, and demanded the returns from the counties in the state so that he might turn them over to his father, who, by virtue of his office, was chairman of the state board of election commissioners. Saturday was the day fixed by law for the making of the canvass, but the chairman had notified the Democratic state election commissioner and the Republican state election commissioner to come in on Monday, as he did not believe that the work could be finished in one day, and by postponing the count until Monday the necessity of their remaining over Sunday in the capitol would be obviated. When Seymour Goodman requested Mrs. Cromwell to turn these certificates over to him, she refused, stating that it was her idea of the law that she was under the duty of keeping the returns in her custody until she *Page 794
could deliver them to the state board of election commissioners. Seymour Goodman was insistent, and he returned to the office of his father, and reported the refusal of Mrs. Cromwell to him. His father turned to a section of the Ky. Stats. which he thought authorized his obtaining possession of the certificates, and delivered the statutes to Seymour, who brought the book to Mrs. Cromwell and read the law to her. Mrs. Cromwell was not satisfied, and again refused to comply with his request unless she should be directed in writing by the Attorney General to deliver the certificates of the returns to the chairman of the state board of election commissioners. She sought an opinion from the Attorney General, and it appears that both Seymour Goodman and Mrs. Cromwell presented the matter in the office of the Attorney General. The Attorney General, or one of his assistants, agreed with Mrs. Cromwell that she was the proper custodian of the certificates until the state board of election commissioners should meet.
On Saturday Miss Malloy worked overtime. Saturday afternoon is a half holiday at the state capitol, but she remained until 1 o'clock or after arranging the returns from the counties in alphabetical order. When she had completed this work, she left the returns alphabetically arranged locked in the safe in the private office of the secretary of state.
During Saturday afternoon, as appears from the evidence of John A. Goodman, he and appellant had a conversation at some place in the city of Frankfort. Mr. Goodman was not certain about the subject of the conversation or where it took place.
Early Monday morning on the 22d John A. Goodman and his son, Seymour Goodman, reached the capitol, and went immediately to the office of the secretary of state for the purpose of obtaining the certificates of the election returns. Neither Mrs. Cromwell nor Miss Malloy had reached the office, and it is not apparent from the evidence whether other employees were in the office when they called. John A. Goodman used the telephone to call for Mrs. Cromwell, but, when he called, Miss Malloy, who appears to have roomed at the house of Mrs. Cromwell, answered the telephone. She was requested by Mr. Goodman to come to the capitol and deliver to him the official election returns. She came in response to that request, and delivered to Mr. Goodman the complete certifications *Page 795
of election returns, and also turned over to him and his son the Roberts book. They took what they had received to the private office of the clerk of the Court of Appeals. Upon their arrival there, or immediately thereafter, the appellant put in his appearance. The two Goodmans and appellant were present in the private office of John A. Goodman for some time before the arrival of any other person. All of them testified that appellant presented the alleged certificate which he claimed to have received on Sunday showing a greater vote for him in Rockcastle county than had been previously made known. All of them testified that none of the certificates of returns from any of the counties were examined or molested except the certificate of the returns from Rockcastle county was segregated from the others and compared with the certificate which appellant claimed that he had received through the mails on Sunday.
John A. Goodman, according to his testimony and the testimony of appellant and Seymour Goodman, instructed appellant that the certificate which he had received through the mails could not be considered as a substitute for the original certificate sent in from that county. The original certificate from Rockcastle county was not one of those altered after it reached the office of the secretary of state, and it was not one of those for which appellant was indicted, charged with having made the alteration. John A. Goodman, for some reason wholly unexplained, except by the very unsatisfactory reasons given by both the Goodmans and appellant, immediately, without advising with any other person, or without waiting for the two state election commissioners whom he knew would arrive in a few minutes, ordered his son, Seymour, to get in his automobile and go at once to Mt. Vernon in Rockcastle county to find out whether the certificate presented by appellant correctly stated the votes received by him in that county. Seymour Goodman proceeded immediately, but he paused long enough at the east door of the capitol to invite appellant to ride with him as far as Lexington. He left appellant in Lexington with the assurance that he would stop on his return from Rockcastle county and acquaint him with the facts which he should discover.
While he is on his way to Rockcastle county to ascertain whether the certification made by the county *Page 796
board of election commissioners to the secretary of state, as required by law, is a correct certification, or whether it is impeachable by a paper purporting to be a certification mysteriously in the hands of appellant, we will return to the proceedings before the state board of election commissioners. Judge Dysard, the Republican member, was the first to arrive, as we gather from the evidence, although Dr. Stout, the Democratic commissioner, came in about the same time. Neither of them was advised by John A. Goodman at the time that he, through his son, Seymour, was making an independent investigation of the election returns from Rockcastle county. There is one significant fact, that is, it may have been significant to any jury trying the facts, and that is that, when the election returns were delivered to the Goodmans on Monday morning, they were alphabetically arranged, if the testimony of Miss Malloy and Mrs. Cromwell truly reveals the facts in relation to their arrangement.
When Judge Dysard arrived about the time of the departure of appellant and Seymour Goodman, he testified that one of the first things that he and John A. Goodman did was to arrange the certificates in alphabetical order. When this was done, the canvass commenced. The chairman of the commission, who under the law is the presiding officer without a vote except in case of disagreement between the other two, called the figures from the original returns, while Judge Dysard compared the reported figures with the entries in the Roberts book. When they got down to Fulton county, which is the first one from which the returns were altered, it was discovered that the figures then appearing on the certification did not correspond with the figures on the Roberts book. The same thing happened when the counties of Kenton, Knox, Lincoln, and Shelby were reached; that is, it was discovered that the original certificates had been altered after the returns in the Republican race for auditor had been entered on the Roberts book. The returns in that race from the counties mentioned were not considered at the time.
On Monday afternoon John A. Goodman received a telegram from Mr. Nicely, the clerk of the Rockcastle county court, which was to the effect that the returns in the alleged certificate received by Wallace in the mail were correct, or rather he stated that appellant received *Page 797
1,228 votes in Rockcastle county instead of 228 votes, indicated by the official returns received by the secretary of state. The state board of election commissioners adjourned until Tuesday morning.
We are not advised as to the length of time that Seymour Goodman remained in Rockcastle county on Monday, but he returned to Frankfort, stopping on his way home at Lexington to report to appellant what he had found. The substance of his report was that the appearance of things indicated that appellant had received 1,228 votes in Rockcastle county, although there were some suspicious indications of alterations, but his opinion was that the returns were all right. He left the alleged certificate appellant had received through the mails in his possession at that time.
The next morning the state board of election commissioners met again, and appellant was present, as was John M. Perkins, his successful opponent in the primary. Judge O'Rear was acting as attorney for Perkins. Seymour Goodman was present to make his report, and the appellant was present, and it seems that there was an idea prevalent that the state board of election commissioners might hear evidence and determine whether the official returns received by the secretary of state should be considered, or whether there should be substituted for the official returns the certificate received by appellant. There was considerable discussion; Judge O'Rear protesting that the state board had no authority to consider any returns except those officially certified to the secretary of state. It was finally agreed, however, that the county court clerk, Nicely, should be requested to appear before the state board on Thursday morning with the returns from his county. The board adjourned until Thursday morning. Perkins, with one of his friends, expeditiously proceeded to Rockcastle county, and appears to have taken the county clerk and all of his election returns to Louisville. This was on Tuesday afternoon. Appellant consulted with his nephew, an attorney of high standing, and they concluded that they would proceed to Rookcastle county to inquire into the facts, and ascertain, if possible, the true condition of affairs. They arrived there about dark, and, when they got in touch with a deputy county court clerk and were admitted to the office, the appellant testified that they found nothing there that would indicate *Page 798
that an election had been held. The evidence had been taken by the clerk to Louisville.
Appellant returned to Lexington, and finally got in touch with Nicely at the Brown Hotel in Louisville by telephone. He and his nephew went to Louisville Wednesday morning and met Nicely in the lobby of the hotel. Appellant inquired about the election returns, and learned from Nicely that the original certification to the secretary of state was correct, and that the certificate which had been sent to appellant by some one unknown was incorrect. Little more took place other than the statement by appellant to Nicely that he wanted nothing to do with the matter, if there was any suspicion about the correctness of the returns for him in the certificate which he had received through the mails, and he returned the certificate then and there to Nicely. Appellant prepared two letters which appear in the record, one addressed to Perkins, and the other to the state board of election commissioners. He briefly recited that there was some suspicion surrounding the returns from Rockcastle county, and that he did not desire the nomination with a cloud upon it, and for that reason he requested the state board to award the certificate of nomination to his opponent, Perkins, and pledged his support to Perkins in the final election.
The state board of election commissioners made a report of its findings in regard to the Rockcastle county returns to the effect that crime had been committed and a fraud had been perpetrated in an effort to substitute one set of returns for another, but, of course, the board made no attempt to fix the responsibility. The certificate of nomination was awarded to Perkins.
There is one other fact in connection with this mysterious certificate which was sent to appellant that should be stated. It was signed by the county board of election commissioners for Rockcastle county, and an examination of the signatures under a magnifying glass in comparison with the signatures on the original certificate disclosed such a similarity in the signatures as to lead to the conclusion that they were the same. There was evidence to this effect, although Judge O'Rear, who made the examination, did not testify. The certificate had been lost, and could not be produced at the trial.
The returns in the office of the county court clerk in Rockcastle county were criminally changed by some outlaw *Page 799
thoroughly familiar with election machinery and who was learned in the handling of figures so as to obtain a definite and certain total by adding a little here and a little there to unrelated numbers. It is made to appear, beyond all question of doubt, that the votes cast for appellant in that county in all of the precincts aggregated 228 votes, and the votes as indicated on the back of the poll books in the various precincts were changed a little here and a little there so as to make an exact increase of 1,000 votes in the total for appellant. That was not all that was done by the criminal who attempted to perpetrate the fraud. The tally sheet made up by the county board of election commissioners showing the vote received by appellant in each of the precincts of the county was also changed so as to make it correspond with the fraudulent entries in the back of the poll books, so that, when the tally sheet was added, it showed a total, after the alteration, of 1,228 votes for appellant, when he received only 228 votes in the county. Not only was the fraudulent change made in the returns found in the back of the poll books and on the tally sheet, but some one prepared a fraudulent certificate showing the result of the election in that county one thousand votes more favorable to appellant than was shown by the official returns. That there was a deliberate, well thought out and skillful felony committed by one or more persons in Rockcastle county in connection with this matter is not subject even to the slightest doubt.
Omitting from consideration, for the present, the evidence of the fraud in Rockcastle county, we are called upon to determine whether there was enough evidence to justify the submission of the case to the jury on the charges contained in the indictment; that is, that appellant altered the returns from the five counties mentioned. He had the motive to do so, and a discussion of the motive is unnecessary. It is shown that he had the opportunity on two occasions; one in the private office of the secretary of state, and the other in the private office of the clerk of the Court of Appeals. The returns from these counties were certainly shown to have been in his hands in the private office of the secretary of state. The changes were those most easily and quickly made. In four of the counties the figure "1" was entered before the figures appearing on the returns in his race indicating his vote. Such a figure could be made as easily and as quickly as *Page 800
a check mark could be placed opposite the figures. Such a change could be made without those actually present discerning it, unless they were particularly on guard against such a change. The returns from one of the counties were changed by converting a "7" into a "9," and that is so easily done that it could have happened unobserved by others present. We are not saying that it was so done, because that is not the province of the court, but we are trying to determine whether there was evidence from which a jury may have reached the conclusion, beyond a reasonable doubt, that appellant did make the changes. The motive existed, the opportunity was present, and the changes were made. That is not all which a jury may consider in connection with whether appellant was the guilty perpetrator of the offense. Every change which was made purported to increase the vote which he had received.
We not only have motive, opportunity, but we have the further fact that the result was beneficial to appellant. Leaving out of consideration the established fact that appellant was in the private office of the chairman of the board or election commissioners on Monday morning when the returns were there, there was enough evidence to authorize the submission of the cases to the jury. There is no charge of conspiracy in the indictments, and all of the parties testified that appellant did not see the returns from these counties while he was in the private office of the clerk of the Court of Appeals. There are many suspicious and unexplained circumstances surrounding everything while he was there, but the positive testimony of the witnesses introduced by the commonwealth was to the effect that he did not make any change in the certificates in that office. The jury, however, is not confined to the oral statement of witnesses while on the witness stand. The jury may consider circumstances which speak more positively than the expressed words of witnesses.
Counsel for appellant assert that the evidence was not sufficient under the authority of Van Winkle v. Commonwealth,225 Ky. 72, 7 S.W.2d 845, on the ground that it was there held that, when the evidence goes no further than to show that there was a mere opportunity on the part of the person charged to commit a forgery it is not sufficient. In that ease a letter containing a check had passed through the hands of the defendant, *Page 801
and the name of the payee had been indorsed on it. There was nothing to show that the person charged there received any benefit from the forgery, or that he had any greater opportunity to commit it than others. The facts in that case distinguish it from these cases. The evidence here does not show that any other person, unless we consider the officials who had custody of the returns, had such an opportunity, or any opportunity, to make the alteration.
It is argued by counsel for appellant that the facts and circumstances shown by the proof do not reasonably exclude every hypothesis of appellant's innocence. It was a question for the jury whether the evidence excluded every reasonable hypothesis of appellant's innocence. It is true that it was held in Marcum v. Com., 212 Ky. 212, 278 S.W. 611, that, when the circumstances proved, upon the trial of a case to establish the commission of a crime, are as consistent with defendant's innocence as with his guilt, they are insufficient to reasonably exclude every hypothesis of the innocence of the defendant. These cases do not fall within that rule. Of course, it may be that appellant is not guilty of the offenses charged, and it may be that others committed these crimes for him and without his knowledge or consent, but the evidence does not point to any other person so that this court can say, as a matter of law, that the facts and circumstances are calculated to raise a presumption of his innocence as easily as it might be said that they raise a presumption of his guilt. The question was for the jury. An examination of the cases of Denton v. Com., 188 Ky. 30, 221 S.W. 202; Mullins v. Com.,196 Ky. 687, 245 S.W. 285; Jones v. Com., 217 Ky. 427,289 S.W. 676; Johnson v. Com., 217 Ky. 705, 290 S.W. 693; Mitchell et al. v. Com., 217 Ky. 155, 289 S.W. 208; Chambers v. Com.,200 Ky. 295, 254 S.W. 906, discloses that a state of facts in each case was presented to the jury differing from the state of facts presented in the cases under consideration.
It was held in the case of Woolum v. Com., 220 Ky. 836,295 S.W. 1029, that suspicious circumstances do not constitute proof of guilt beyond a reasonable doubt. Such is the general rule, but there is much more in this case than mere suspicious circumstances. *Page 802
We leave the question of evidence sufficient to support the charge with the statement that, if the evidence complained of as incompetent had been excluded, we would be unable to hold that the court erred in overruling the motion of appellant for a peremptory instruction directing the jury to return a verdict in his behalf.
Taking up the points urged against the instructions given by the court, we will first lay to one side the third instruction relating to the purposes for which the evidence as to the crime committed in Rockcastle county was admitted. An instruction was given covering each case, and in substance, they are the same. The instruction in one of the cases is as follows:
"If the jury believe from the evidence beyond a reasonable doubt that in Franklin County, Kentucky, and before the finding of the indictment herein, the defendant, James A. Wallace, did unlawfully, willfully and feloniously alter the certification of returns of the Republican primary election from Fulton County, by changing said returns in the race for Auditor of Public Accounts, by placing the figure '1' before the figures '30' in said certification of returns so that the vote for defendant appeared as 130, said return being originally 30, then you should find the defendant guilty as charged in the indictment and fix his punishment at confinement in the State Reformatory for not less than I year nor more than 5 years."
No complaint appears to be made about that instruction, and, indeed, none could be reasonably made, The issue was clearly submitted to the jury. Did appellant unlawfully, willfully, and feloniously alter the certificate of the Fulton county election returns by placing the figure "1" before the figures "30"? That was the exact question before the jury, and that is precisely what the court submitted to the jury. The entire complaint about the instructions made by appellant relates to instruction No. 3, and no complaint is made about the other instructions. In view of the conclusions we have reached, it is unnecessary to discuss instruction No. 3.
Another complaint is made about the conduct of the commonwealth's attorney in his closing argument to the jury. There were slight objections to the closing argument, but we deem it of sufficient importance, without *Page 803
attempting to lecture the commonwealth attorney, to say, in passing, that his closing speech to the jury was probably more unrestrained than it should have been. It has been often held by this court that the commonwealth's attorney should present to the jury the facts as disclosed by the evidence, and that he may argue to the jury every reasonable deduction which may be made from the facts. It is never proper to admonish a jury that, if it does not convict, the members of the jury violate the oath which they have taken. Vituperation and attacks on the character of the person on trial not specifically justified or authorized by the evidence are not proper. The expression of the personal opinion of the attorney not based solely on the evidence is not permissible. No reference to the station in life, wealth, or poverty of a defendant is in good taste. It is the duty of the commonwealth's attorney to assemble the facts and his inferences in the most formidable array, and in doing so it is not against the rules which have been announced by this court for him to use vigorous language, but he must be careful to deal with the facts and the law and with these only.
It may be that the commonwealth's attorney, in his closing argument, transgressed some of the rules that have been announced by this court which should control under such circumstances, but he had great provocation. He was beginning his term of office, and he was confronted with facts showing that crimes had been committed, and some of the witnesses on whose evidence he was compelled to rely had been reluctant, forgetful, evasive, and uncertain. The crimes that he knew had been committed were revolting in the extreme. His legal brethren on the other side, to whom he was always courteous, and they in turn always courteous to him during the trial, had properly, and as the law allowed them to do, exerted every bit of their knowledge in defense of their client. An examination of the record shows that the commonwealth's attorney was greatly handicapped in getting before the jury the evidence because of objections made to every line of questioning which he pursued. Counsel representing appellant were within their rights in making objections, but it nonetheless sets the teeth of the commonwealth's attorney on edge to labor for days in an effort to get his facts before the jury and find that at every turn he is confronted *Page 804
by an able and experienced lawyer jealously guarding every road. The court was painstaking and careful and patient in the extreme. At the end of the trial, no doubt the commonwealth's attorney was keyed up to a high pitch of nervousness, and that, we are persuaded, accounts somewhat for the rather extravagant language that he used at times. Since we must reverse the case on the ground we will next take up, we would suggest that on another trial the commonwealth's attorney be more restrained in presenting his case to the jury.
There was no evidence in the record which showed, or tended to show, that appellant was in Rockcastle county after the primary election and before the fraud was attempted in that county. There is no proof that he either directly, or indirectly, induced, or attempted to induce, any person to perpetrate that indefensible crime against the Republican voters in Rockcastle county and the state of Kentucky. There is no evidence, therefore, connecting him with the commission of the crime in Rockcastle county. We dismiss, without consideration, the argument of counsel for appellant that the proof does not show that the certification from Rockcastle county to the secretary of state was valid. Roberson's New Kentucky Criminal Law and Procedure, sec. 794, clearly states the rule relating to the admission of evidence of other crimes. It is there stated that such evidence is admissible, if it tends to establish identity or guilty knowledge, or intent or motive for the commission of the crime under trial, or malice, or when other offenses are so connected or interwoven with the one being tried that they cannot well be separated from it in the introduction of relevant testimony, or when the independent offense was perpetrated to conceal the crime for which the accused is on trial, or committed by novel means or any particular manner, or is a part of a plan or a system of criminal actions.
The evidence as to the crime committed in Rockcastle county would have been competent on more than one of these grounds if it had been established that appellant committed the crime in that county, or was connected with it, or had guilty knowledge of it. It is first necessary, before admitting proof of a crime other than the one for which the offender is on trial, to show that he committed, or was connected with, the other crime. It has been held by this court that evidence of other *Page 805
crimes is admissible when such crimes and the one charged constitute a general plan, scheme, or system. Brashear v. Com.,178 Ky. 492, 199 S.W. 21; Clary v. Com., 163 Ky. 48,173 S.W. 171; Morse v. Com., 129 Ky. 294, 111 S.W. 714, 33 Ky. Law Rep. 831. All of the authorities cited by the Attorney General in his brief tend to support the conclusion which he contends is the correct conclusion relating to the admission of such evidence, but nowhere does the Attorney General attempt to justify the admission of evidence of other crimes without proving that the defendant on trial committed the other crimes In the case of Morse v. Com., supra, this court, in dealing with the question of the admission of evidence relating to other crimes, said:
"But it is not often that it is permissible, in order to show intent to introduce evidence of other and distinct crimes; and it may be said to be a rule of general application in the trial of criminal cases that the Commonwealth will not be permitted to introduce evidence showing that the accused has committed other and distinct crimes than the one for which he is being tried. The justice of this rule cannot be denied. Evidence of the commission of other offenses is very prejudicial to the accused, has a tendency to divert the mind of the jury from the case under consideration, and often may find the accused entirely unprepared to meet the new issues presented."
A late case dealing with the admission of evidence of other crimes is that of Eagle v. Com., 223 Ky. 178, 3 S.W.2d 212, where many authorities are cited which announce the general rule in this state governing the admission of that character of evidence. Measured by these rules, the evidence of the distinct crime, or crimes, committed in Rockcastle county, was not admissible, because there was no proof connecting the appellant with such crime. The evidence should have been excluded.
The appellant himself brought into the proof the certificate which he received through the mails on Sunday which evidenced the final culmination of the Rockcastle county scheme. But the mere possession of the certificate explained by the appellant without contradiction was not sufficient to render the evidence as to the crimes in Rockcastle county competent. *Page 806
The minutes of the state board of election commissioners showing the findings of that board were not competent and should not have been admitted. They were no more than the statements of the opinion of the individual members of the board, and at that about a matter where the board had no right to speak.
Since the evidence relating to the crimes in Rockcastle county should not have been admitted, Instruction No. 3 should not have been given.
We cannot close this opinion without commending the officers of the commonwealth in their effort to go to the bottom of this attack on the very basis of free government. Such crimes should not go unpunished. Every person is guaranteed a fair trial under the Constitution and laws of this commonwealth, and, regardless of his station in life, he must have a trial free from prejudicial errors. Such a trial the appellant should have, and a jury of his countrymen should determine whether, with all of his past honors, his successful life, and his reputed high standing, he fell so low in the scale of humanity as to perpetrate the crimes with which he is charged.
Judgment reversed, and cause remanded for proceedings consistent with this opinion.
Whole court sitting. | 01-03-2023 | 07-05-2016 |
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Affirming as to certain appellees and reversing as to others.
These three appeals were taken upon the same record. The cases were tried and determined together in the circuit court, and the appeals from the judgment of that court in the three cases were heard and tried together in this court. The causes of action are the same in each case, the defenses are the same, and the evidence is the same in each case. They grow out of the contests for the offices of park commissioners, aldermen and councilmen, in the city of Louisville, at the election held in November, 1923. At that election the following named appellants were the nominees of the Democratic party, for the offices of councilmen, for the following wards, respectively: For the 1st ward, E. Louis Marilla and Henry W. Kraut; for the 2nd ward, Harry H. Martin and Frank E. Akers; for the 3rd ward, Edward Buckner, and *Page 412
Edward Wunderlin; for the 4th ward, William G. Willen and W.H. Dennes; for the 5th ward, Maurice Horvitz and Frank F. Fleming; for the 6th ward, Ben F. Ewing and John B. Brachley; for the 7th ward, John Hennessey and Peter Mueller; for the 8th ward, Harry E. Myers and E.L. Wright; for the 9th ward, Len Guernsey and Geo. W. Clark, Sr.; for the 10th ward, James M. Donahue and Al Steiger; for the 11th ward, E.G. Harrison and William W. Schackleiter; and for the 12th ward, George Isaac Jones and Karl L. Badger. The following appellees, were the nominees of the Republican party for the offices of councilmen for the following wards of the city, respectively: For the 1st ward, Mrs. Ray G. Ratterman and Edward H. Meyers; 2nd ward, Edward G. Fernow and N.M. Sanders; 3rd ward, William G. Lutz and Henry V. Denzer; 4th ward, William J. Watson and Hubbard R. Petty; 5th ward, Jacob L. Isaacs and Chas. H. Lindley; 6th ward, Cullis A. Carder and Robert H. Lauder; 7th ward, Chas. F. Baird and Don Warren; 8th ward, Chester H. Koch and Chas. I. Jones; 9th ward, J.E. Payton and William J. Fehler; 10th ward, Fred Ohmann and J.L. Awtry; 11th ward, Mrs. Henrietta Sloan and J. Fred Heatkenmeier, Sr., and for the 12th ward, J.E. Sikking and William J. Brown.
The appellants, Mrs. W. Bayse Howell, R. Ray Head and I. Sydney Jenkins, were the nominees of the Democratic party for the offices of park commissioners, while the appellees, Dan Carrell, John E. Heyburn and Alex E. Johnson were the nominees of the Republican party for the same offices.
For alderman, the appellants, Lee Curry, Sr., B.J. Campbell, Jr., Henry J. Rueff, McKay Reed, Robert B. McDowell, W.P. Bradenburg, Benjamin H. Sachs, Mark Beauchamp, S.J. Brownstein, Ed Korb, Carl A. Jackman and John F. Singhiser were the nominees of the Democratic party, while the appellees, Clay McCandless, Robert L. Hawes, Harry A. Voltz, Geo. W. Stege, Ralph S. Towle, Z.T. Miller, E.D. Morton, Sam H. Stone, Henry Kaufman, Edward Schoppenhorst, Ernest F. Horn, and Authur A. Will were the nominees of the Republican party.
The official returns of the election showed the election of each of the Republican candidates for park commissioners, aldermen and councilmen. In due time, the Democratic candidates filed actions against their opponents *Page 413
for the purpose of contesting their elections to the respective city offices, and prayed in the alternative to either declare them elected to the respective offices for which they had been candidates instead of their Republican opponents, or in the event that could not be done, to declare and adjudge that the offices were vacant, and that no one had been elected thereto. In the course of proceedings, a recount was made of the votes cast in 130 precincts of the city. This recount was made by a commissioner of the court, who caused the ballot boxes to be opened, and made and reported to the court a count of all the ballots found in the ballot boxes of these precincts, and a showing of the number of votes, according to the ballots, received by each of the candidates. Upon this recount, each of the Republican candidates received a considerable number of votes, less than they were shown by the official returns to have received, which was caused by the election officers, either incorrectly counting the vote, or by failing altogether to count it, and certifying to returns, which gave to the Republican candidates from 639 to 383 more votes than they received in these precincts and to the Democratic candidates from 22 to 249 less votes, than they received. Adopting the recount as a correct tabulation of the votes received by each candidate in the 130 precincts recounted and deducting from the votes shown by the official returns to have been received by each Republican candidate, the number lost by him upon the recount, and adding to the vote shown by the official returns to have been received by each Democratic candidate, the number of votes gained by him upon the recount, still the contestees each received majorities over the contestants in each of the races and for each office, but reduced in amount from the official returns.
The appellants, who will hereinafter be called the contestants, charged that the officers of the city government, and those desiring and expecting offices, in the event the appellees, who will hereinafter be called the contestees, should be elected to the offices for which they were candidates, and other persons, who were partisans of theirs, previous to the registration of the voters for the election, entered into a conspiracy to procure the election of the contestees by force, fraud, intimidation, illegal voting, and whatever unlawful means might be found necessary to effect that result, and in furtherance of that purpose procured through their agents, the registration *Page 414
of many persons, who are not legal voters, and finally consummated the purpose of the conspiracy, on the day of the election, through the officers of the election and such voters, as would participate in the unlawful procedure, some of whom were illegal voters, and some of whom were lawfully entitled to vote, but, who cast their votes and were permitted to do so, in an illegal manner; that said illegal voters and voting was aided, assisted and instigated by various members of the city government, Republican organization, and employes of the city government and the sheriff, who was the chairman of the board of election commissioners; that the election officers in carrying out the purpose of the conspiracy, made false returns of the results of the voting in the precincts of which they were officers; that they did not observe the requirements of the law, with respect to the preparation, issuing, receiving and counting the ballots; that they, with the assent of the voters, who were not illiterate, blind nor physically disabled, showed such voters how to stencil their ballots; that they permitted many voters to stencil their ballots openly and "upon the table;" that they stenciled the ballots of many voters, for them, who were neither blind nor physically disabled; that they accompanied many voters into the booths and assisted them in stenciling their ballots, or else stenciled them for the voters; they permitted voters to expose their ballots, and then received and counted them as valid; they permitted voters to vote more than once; they permitted persons, who were not voters to vote, and persons to vote, who were impersonating legal and registered voters; they assisted others in voting, who had not been sworn, that they were illiterates; that they indicated to other voters, by making a cross mark, dot, dash or line, upon their ballots with a pen or pencil, when such voters were not illiterate and had not taken an oath, that they were such; that they indicated to many voters "by word of mouth or otherwise" the party affiliations of the candidates, and that all such votes were illegal and void, but, were received, certified and counted, as having been received by contestees. The contestants, also charged, that many Democratic officers of the election and challengers were arrested without legal cause and placed in jail; others of them were threatened with arrest and violence and thereby intimidated from properly performing their duties, and voters, who would otherwise have voted for contestants, were *Page 415
intimidated by these arrests and threats, and thereby caused to refrain from voting; that the Republican officers of the election permitted the workers for contestees, especially the Republican precinct "captains," to remain within the polling places and to go in and out at their pleasure and to indulge in unlawfully instructing the voters, within the polls, how to vote for contestees; that the Republican officers of the election systematically gave out information from the polls to the workers for contestees, on the outside, as to the condition of the balloting and whether certain voters had voted, and thus made themselves partisans of the contestees, rather than impartial election officers; that such officers falsely certified that the contestees, had received more votes at the various precincts than they had actually received, and that contestants had received fewer votes, than they actually received, and thus by the foregoing illegal and fraudulent actions of the Republican election officers, and those acting with them, procured an apparent majority to be returned for contestees, when in fact the majority was in favor of contestants, and they were elected in place of the contestees.
All of the foregoing allegations were denied by contestees, in their answer, and in addition, by way of counterclaim, they pleaded that the contestants did not file their "post election expense statements" with the chairman of the election commission within the time prescribed by law and were therefore ineligible to hold the offices sued for; and, also, that in a great number of precincts the Democratic election officers had made false and incorrect returns, which showed that contestants had received more votes, than they actually had, and that contestees had received fewer votes, than was the fact, and, also, asked for a recount of the ballots in certain precincts. The contestants had, also, prayed for a recount of the ballots.
Before answering, however, the contestees made motions, that the court should require the contestants to make the allegations of their petitions definite and certain by setting out the names of the illegal voters, and votes, who were charged as having voted for contestees and the contestees with having received. These motions were sustained, and the contestants amended their petitions by setting out the names of 144 persons, who had voted illegally for the contestees. This number, if proven, was far insufficient to overcome the majorities *Page 416
which the contestees had received, as appear from the official returns, as modified by the recount in the 130 precincts. The affirmative allegations of the amended petitions were controverted by orders upon the record.
The circuit court adjudged that none of the contestants were elected, but, set aside the apparent election of the contestees, Stege, Horn, Stone, Kaufman, and Meyers, adjudging that neither of them were elected, because of a failure to receive a majority of the votes cast at the election, and that the offices to which they had received certificates were vacant. From this judgment each of the contestants has appealed, but, the contestees, who were adjudged to have failed of election, have not appealed.
Several large volumes of evidence, are in the record and we have given it a careful consideration. The charge of a conspiracy in behalf of contestees to cause persons, not entitled to vote, but to be registered as legal voters, there is no evidence to support. One Mulligan, a deputy sheriff, appears to have brutally arrested and assaulted a crippled man, who was a Democratic challenger, at the registration and put him in jail, for challenging the registration of certain voters, but, this unlawful act occurred away from the polls, and did not in any way affect the registration.
Without going into detail, there does not appear to be any evidence, or any from which it could be concluded, to support the accusation that the members of the city administration, including the mayor, members of the board of safety and the two Republican members of the board of election commissioners, had conspired with any one to secure the election of the contestees, by any unlawful means. There is no evidence that the police officers interfered improperly with the election, except in two isolated instances, in one of which a Democratic election officer was arrested for refusing to put in the ballot box a ballot, which had been unlawfully stenciled by the clerk for a voter; and, in the other instance, a policeman ordered a Democratic challenger out of the polling place, but, this was evidently done by mistake, as he directly thereafter retracted his action, and permitted the challenger to return to his duties. A subordinate in one of the city government departments, while acting as a challenger, participated in unlawfully stenciling ballots for voters "on the table," and another, without lawful reason, caused a warrant to be issued and a Democratic *Page 417
election officer arrested and taken out of the polls upon a charge of obstructing the election. These isolated instances of misconduct, of these subordinates, do not sustain a charge of conspiracy between the members of the city administration, or between them and others, but, rather indicate an exception and not the rule. Several Republican election officers were arrested during the day of election, and several Democratic election officers were, also, arrested, but, these arrests, except in the instance above cited, appear to have been made by deputy sheriffs and constables, and in most instances by virtue of warrants, issued by justices of the peace. The charges against these parties were all dismissed by officers representing the Commonwealth, and the merits of the accusations were never developed. The most unwarranted arrests were those of the constables, who served warrants upon Republican election officers, and the arrests of these constables and their incarceration seems to smack of a purpose to intimidate. The numerous arrests, however, do not appear to have affected the result of the election, except in a few instances, some of which will hereafter be adverted to. It apparent, however, from all the evidence, which relates to the conduct of the election in more than sixty precincts, that in every one of these precincts except one, a similar plan of illegal voting was carried on. There is a similarity in the conduct of the election officers, representing the Republicans, in the manner, in which they received the votes, that very strongly tends to prove the existence of an agreed concert of action among the election officers and precinct workers for contestees to procure all the votes possible for the contestees, either in a legal or illegal manner. This conclusion is borne out by the fact, that in nearly all of these precincts, one of the Republican officers of election or the challenger would immediately inquire if the voter understood or knew how to vote the city ballot, and whether requested or not would proceed to show him, either by pointing a finger to the place where the ballot should be stenciled to vote for the contestees, or by making a cross mark, dot or dash upon the ballot, or else by going into the booth with the voter, or else stencil the ballot for him "upon the table," or else direct the voter to stencil the ballot publicly, and frequently when the voter returned with the ballot, to open and examine it before putting it into the box, and in most instances, when a voter requested assistance, to give it without administering an *Page 418
oath to him to the effect that he was illiterate, blind or physically disabled. Frequently, when a Democratic challenger or officer insisted upon the voter showing by his oath, that he was entitled to assistance, as being of one of the classes to which assistance may be rendered, the oath administered was not that he could not read, but, was that he did not know or understand the ballot sufficiently to vote it intelligently, or some other form of words, which would make a pretense that the voter had been sworn. Acting under the direction of the chairman of the Republican organization the Republican officers of election, whenever fifty ballots had been voted, at which time the names of the candidates changed upon the ballot, sent information out of the booth of the change to the workers for contestees, which, if not in fact, was a violation of the spirit of the law with regard to the secrecy of the ballot. The uniform failure of the officers of election to make a correct count and certification of the votes, and in nearly every precinct which was recounted, the mistake resulted in certifying a greater number received by contestees than they received, and a less number for contestants than they received, is significant. The evidence chiefly relates to precincts, which from accident, design or necessity are so laid off that there are no Democrats, or very few, in them, and in these precincts the election officers, in most instances, were all Republicans. In some of these precincts where a large number of illegal votes were east, from the rendering of unlawful assistance to the voters, it is said that the officers of election agreed upon this course, or the Democratic challenger agreed to have the votes cast in that manner, but, it is clear that no agreement among the officers of the election can render valid an invalid vote, as no precinct officers or party representatives would have authority to set aside the Constitution and laws of the country, as all the people have an interest in the purity and validity of the popular elections. At the time of the election in controversy a statute known as the "Non Emblem law," enacted by the 1922 General Assembly, and relating to elections in cities of the first class, was in force, but this statute made no provision for the voting by illiterate, blind or physically disabled persons, and did not directly repeal section 1475, Kentucky Statutes, relating to the manner of voting of such persons, and did not by implication modify any provision of that statute, except probably in one particular. The "Non Emblem law" has now been repealed, and in *Page 419
view of the conclusions at which we have arrived in this case, it is neither necessary nor profitable to make any construction of that statute or to determine its constitutionality, and in determining the votes, which should be deducted from the polls of the various candidates, we have excluded none who would be legal voters under the provisions of section 1475, Kentucky Statutes.
There are certain principles relating to elections and voting at elections, which are too well established for controversy. Among these are the following, viz:
(1) The essential requirements of a valid election is that it shall be free and equal, and that the ballot shall be secret, and the provisions of the statutes, which are necessary to effect those ends are mandatory, but, mere irregularities of election officers and voters, which do not effect the merits of the case, and do not affect the fairness and equality of the election or the secrecy of the ballot will not vitiate the election nor affect the validity of a vote.
(2) Where an election officer or other person goes into the booth with a voter and assists him in stenciling the ballot, the vote should be rejected whether or not the voter is an illiterate.
(3) To mark the ballot of a voter with a pen or pencil, or to point out on the ballot, where to stencil it, without the voter having been sworn to the effect that he can not read, or is blind or physically disabled, the ballot should be rejected, although the voter may then go into the booth and stencil it.
(4) If an officer of the election or other person stencils the ballot of a voter, it should be rejected, unless the voter is blind or physically disabled, and has taken an oath to that effect.
(5) A ballot, which a voter stencils openly, as is said "upon the table," should be rejected, although the voter may have taken the illiterate oath.
(6) If a voter is blind or physically disabled, so that he cannot stencil his ballot, and having taken an oath to that effect, then his ballot may be lawfully stenciled for him, in the presence of those present.
(7) Voluntary exposure by a voter of his ballot, so that secrecy is destroyed, the vote is invalid and should not be received.
(8) The failure of the clerk to write his name upon the ballot, to remove the secondary stub from the ballot, or the failure of the election officers to take the oath of *Page 420
office, or to make a return in proper form, does not render the election void, but, these omissions may be received as evidence tending to prove some fraud in the election which might vitiate it.
(9) If it can reasonably be done, a court should uphold the validity of an election, and not set it aside for light and trivial causes, and where there have been fraud, intimidations, bribery, illegalities and irregularities, and the results of such sinister influences can be eliminated, and the result clearly ascertained between the legal voters, it is the duty of the court to do so, and to sustain the election, but, if the fraud, intimidation, bribery, irregularities, and illegalities are such, that the court can not with reasonable certainty determine who has received a majority of the legal votes, the election should be set aside, and a candidate can not be declared a victor, unless he can be shown to have received a majority or plurality of the legal votes cast at the election. The foregoing doctrines are supported by the following authorities, viz: Felt v. Edwards, 181 Ky. 299; Varney v. Justice, 86 Ky. 596; Muncy v. Duff, 194 Ky. 303; Snowden v. Flannery, 159 Ky. 568; Potter v. Campbell, 159 Ky. 329; Orr v. Kevil, 124 Ky. 720; Lunsford v. Culton, 15 Ky. L. R. 504; Montgormery v. Chelf, 118 Ky. 772; Anderson v. Likens, 104 Ky. 699; Whitney v. Skinner, 194 Ky. 804; Combs v. Combs, 30 Ky. L. R. 161, 873 and 1005; Stewart v. Rose, 24 K. L. R. 1759; Wilkins v. Bell, 114 Ky. 11; Scholl v. Bell, 125 Ky. 750; Harrison v. Stroud, 33 K. L. R. 653; Allen v. Griffiths,160 Ky. 528; Johnson v. Little, 176 Ky. 509; Frances v Sturgill,163 Ky. 650; Schoomnaker v. Dunlap, 180 Ky. 835; Hall v. Martin, 183 Ky. 120; Pace v. Reed, 138 Ky. 605; Section 1475, Kentucky Statutes.
In accordance with the above doctrines, wherever the evidence has shown an illegal vote, and for whom it was cast and counted, the vote has been eliminated and subtracted from the votes received by the recipient of it. This process has been followed in precincts which have not been entirely thrown out and disregarded, in the tabulation of votes, but, the election, as held, in thirty-one precincts was so permeated with illegal voting, irregularities of every kind touching an election, unwarranted arrests of election officers, interference in the election by persons having no authority to do so, or to be in the polling places, false and inaccurate returns and the failure of the officers and voters to comply with the *Page 421
election laws, that it is impossible to ascertain with any reasonable degree of certainty which were the legal votes cast or which the illegal ones, or to eliminate the illegal votes and leave the legal ones with any certainty, and hence we have been constrained to disregard these precincts in the making of any reasonably certain computation of the legal votes cast at the election. It is not meant, that all of the above recited illegalities existed in each precinct, but some of them, in all, and the ones existing in each precinct when combined made necessary its casting out. These precincts are 4, 10, 13, 14, 17, 24, 35, 42, 52 of the 8th ward; 9, 10, 11, 12, 17, 20, 34 and 57 of the 7th ward; 23 and 58 of the 3rd ward; 4 and 8 of the 5th ward; 12, 20, 23, 35 of the 9th ward; and 16, 17, 18, 19 and 23 of the 10th ward. The laws relating to voting by secret ballot having been on the statute books for thirty or more years, it is difficult to conceive that persons acting as officers of election and voters would so persistently, completely violate and disregard these laws, without being moved thereto by an illegal purpose. At this time, in our history, there can be no excuse for such pretended elections and the sooner those who conduct elections become fully aware of this fact, it will redound to their interest, as well as all others.
It is impossible here to set out the evidence bearing upon the elections in all these precincts, but, a short resume of it will be given as to a few. In the 12th precinct of the 9th ward, the Republican "captain" of the precinct came in and directed the clerk, a negro woman, that she should show all the voters how to vote the city ballot, and when a protest was made, he represented that the election commissioners directed that to be done. After that when a voter came in he was asked if he could read and write and understood the city ballot. If he answered that he could read, the clerk then showed him on the ballot the Republican group and where to stencil to vote for them. If he answered that he could not read, the clerk would make a cross mark with a pen in the squares to the left of the Republican groups and tell the voter to stencil there. No voter was sworn that he was illiterate. 45 ballots were found in the box upon the recount which were marked with a cross mark with a pencil or pen to indicate where to stencil. In the 20th precinct of the 9th ward, the voters came in with slips containing the names of the contestees, and presented them to the clerk with a statement that they wanted to *Page 422
vote for those names. The clerk would make a cross mark, dot or dash with a pen or pencil in the squares to the left of the Republican groups and directed the voter to stencil where the mark was. No one was sworn as to being illiterate, blind or physically disabled. 103 of such ballots were found upon the recount. The election officers were all Republicans.
In the 16th precinct of the 10th ward, the uncontroverted evidence is, that the officers were four Republicans. The ballots were given to the voters unfolded. One of the judges would then take the ballot, and point out on it where to stencil to vote for the contestees. The voter would return from the booth with his ballot unfolded. In only one or two instances was a ballot returned folded. No one of the voters were sworn that he was an illiterate.
At the 17th precinct of the 10th ward, the uncontroverted evidence is that the Republican "captain" of the precinct stayed in the polling place all day and every voter who said that he was intending to vote the Republican ticket, was shown by the "captain" where to stencil to vote it, and if the voter could not read, or said that he could not, the "captain" would go into the booth with him and stencil his ballot or show him where to stencil it. No one was sworn about anything. Several automobile loads of "repeaters" attempted to vote, and the election officers were showing them sample ballots, when they became frightened and went away. When the polls closed, and the Democratic challenger stepped out of the room the door was slammed to and locked, so that the inspector could not get in, leaving the four officers, who were all Republicans, and the Republican "captain" in the room. The Democratic inspector tried to get in and was kept out for fifteen minutes during which time persons looking through a small window saw the officers with the ballot box open and doing some work upon them. The policeman on duty was appealed to and he beat upon the door with his stick, and then telephoned for other policemen. When the machine bringing the additional policemen was within a half square, the "captain" who had come out through a back way, ran to the door and notified the officers and they then opened the door and invited the inspector in. The officers of the election told the inspector with an oath, that they did not have to let him in, "there is the man we are taking our orders from" (referring to the captain). *Page 423
At the 18th precinct of the 10th ward, every voter, without being sworn that he was an illiterate, was shown on the ballot where to stencil to vote for contestees. There were 181 ballots cast, but only 179 ballots were found in the box on the recount. Fifty of these were stenciled for the contestees, but had never been folded, and were all strung on the string together. Thirty-four were not signed by the clerk. There were only 158 Republican voters registered in the precinct, but the contestees received 180 votes each. Evidently the 50 ballots, which had never been folded were never voted by any voters.
At the 23rd precinct of the 10th ward, nine out of every ten voters either stenciled their ballots "upon the table" or it was done for them by the officer of the election. None of the voters were sworn as to illiteracy or blindness or physical disability.
At the 23rd precinct of the 2nd ward, Weisch was the Democratic judge and Stafford, a Democrat, was clerk. Hester was Republican judge and Alonzo Miller was the Republican challenger and "captain." Things went along quietly for an hour after the polls opened. The workers for contestees then began to instruct the voters to say that they could not read or write. The Democrats insisted on their being sworn that they were illiterate, but Miller and Hester insisted that they should be permitted to stencil their ballots "on the table," and took the stencil from the booth and would either stencil the ballot themselves or have the voter to do it, there in their presence "on the table," and this continued until thirty or forty ballots were voted in that way. Weisch and Stafford continued to object, and Miller struck and knocked Stafford down. Mulligan a deputy sheriff came and arrested Weisch and Stafford and took them at once to jail, where they were searched, given a cold bath and locked up. As soon as they were gone, two Republicans, one of whom was a rum runner and did not reside in the precinct, were installed in the place of Weisch and Stafford, and the Democrats had no representatives in the polls. Weisch and Stafford gave bonds and got out of jail and returned to the polling place, but the sheriff would not permit them to come into the room. Lautz, a Democratic district manager, came and inquired for Weisch, when Hester, the sheriff answered that he did not know such a man. Lautz looked in the door, and saw them stenciling a ballot on the table. *Page 424
Mulligan, the deputy sheriff, came and Miller directed him to arrest Lautz on a charge of obstructing the election, which he did without a warrant, and took him to jail. Squire Vogt was in the jail and issued a warrant for Lautz at Mulligan's direction, and Lautz was given a cold bath and locked up. Stafford and Weisch kept memorandums of the names of the voters, who were voted upon the table, but when. Stafford was arrested, he left the memorandum and could get it no more. Weisch's memorandum was taken from him at the jail.
At the 8th precinct of the 5th ward, Abe Ragowski, the Republican "captain" of the precinct, stayed in the polling place, and stenciled the ballots, practically, of four-fifths of the voters, or else they stenciled the ballots "upon the table" openly under the immediate direction of Ragowski. Some one procured a warrant for Ragowski and had him arrested, but he returned and continued to stencil the ballots for the voters. While away he procured a warrant for Barker, the Democratic challenger, and Mulligan, the deputy sheriff, came and arrested him, carried him to jail, where he was given a cold bath and locked up. While Barker was absent from the polls Stengel was appointed challenger for the Democrats in his place, but Mulligan returned, and threatened Stengel that he would break his head, if he did not leave the polls. Stengel stood about fifty feet away when a negro came up behind him and knocked him in the head with a pistol. A young girl impersonated and voted in the name of an old woman, who was in the asylum for the insane. One man voted twelve times, under the name of various registered voters.
At the 10th precinct of the 5th ward, out of 115 voters, the clerk marked the ballots of 105 of them, so as to show them where to stamp with the stencil. The Democratic challenger insisted that the voters should not be given assistance, unless they were illiterates and were sworn to that effect. The clerk would then administer the following oath: "Do you know this ballot well enough to vote it intelligently?" The ballots were handed to the voters without being folded and they returned them unfolded.
At the 57th precinct of the 7th ward the Republican sheriff went into the booth with fifty voters and stenciled the ballots for the voters, and five or six voters stenciled their ballots "on the table." Many of the voters, before going into the booth, had the clerk to mark *Page 425
their ballots, without being sworn as to being illiterates. One of the officers would examine a ballot before putting it in the box, and if it was not stenciled to suit him, he would call the voter back and have him to stencil it, or else would do so himself. The officers refused to count the votes but certified that the contestees had received 160 votes each and the contestants none.
In the 11th precinct of the 8th ward there were 156 registered voters. When the election was held, out of 71 votes cast while the Democratic challenger was present, all but five of these ballots were stenciled for the voters by the Republican sheriff, judge or challenger. The Democratic challenger objected to this manner of voting and caused these officers to be arrested. While they were gone Long, the Republican "captain," came into the polling place and proceeded to act as clerk. The Democratic challenger was then arrested, upon a charge of obstructing the election, because he objected to that manner of voting. He was given a cold bath and locked in jail. When he returned to the polling place, the Republican "captain" had the ballots out and was busily writing upon them, but desisted when the challenger came into the room. Every one was shown how to vote the ballot without being sworn that he was an illiterate, while the Democratic challenger was absent. When the polls closed, there were 189 ballots in the box, and the officers burned 33 of them so as to reduce the number to the number of registered voters in the precinct. The names of voters were written on the primary stubs of only 135 ballots, and on a large number of ballots, the secondary stubs were not detached.
The evidence relating to the conduct of the election in the other precincts thrown out is similar in character as to illegal voting to the foregoing and in some instances other illegalities in addition to the foregoing and each of the precincts presents illegalities of a character equally as fatal to the validity of the election. A precinct is the unit of a general election and may be disregarded and cast out, when the election in it is so vitiated as to make it impossible to determine which are the legal and which the illegal votes and their number and for whom cast, as there may be other precincts in which a valid election is held and from which according to the circumstances, the election in the district may be held valid. The best conclusion at which we can arrive, based on the evidence, from fifty to seventy-five per centum of the votes cast in *Page 426
the 31 precincts thrown out were illegal votes, and there were cast in these precincts from 4,500 to 5,000 votes. Beside's there was evidence, which proves that at several other precincts, which were not recounted, and where there was nothing in the record from which it could be ascertained the number of votes cast or for whom, that the same system of illegal voting was practiced and in the same manner.
When the votes received by the contestees in the 31 precincts cast out, are added to the illegal votes received by them as proven, in the other precincts, they make a number, which, when deducted from the votes received by them according to the official returns, as modified by the recount, sweeps away the apparent majorities they received, and leaves each of them with a minority of the votes, except the appellee, Dan Carrell, who has yet a majority of 91 votes over any of the contestants for the office of park commissioner. Having deducted from Carrell's poll all the illegal votes shown, and the votes received by him in the precincts cast out, and there remaining a majority in his favor, demonstrates that he received a majority of the legal votes kind was elected. Each of the other contestees has an apparent minority of the legal votes and was therefore not elected. To ascertain the above results the votes received by the contestants in the precincts thrown out, were added to the illegal votes proven to have been received by them in the other precincts, and the combined sums deducted from the aggregate of votes received by them upon the official returns as modified by the recount. To set out herein a statement of all the votes received by each of the 78 candidates after the above deduction would unnecessarily extend this opinion.
Neither of the contestants was elected because neither did or could demonstrate with reasonable certainty that he had received a majority of the legal votes. The official returns are presumed to be correct, and if one would overturn them, he must show with reasonable certainty that he was elected. The casting out of the precincts is not a holding that there were no legal votes cast in them, but that it was impossible to separate them from the illegal, and without a total disregard of the votes in these precincts, the contestants would not have any majority. It follows as a natural result that there is no way of ascertaining with any reasonable certainty, as to who was elected as between the contestants and contestees, *Page 427
with the exception of Carrell. As to the appellees, Carrell, Stege, Horn, Stone, Kaufman and Meyer, the judgment is affirmed, but, as to the appellees, Heyburn, Johnson, McCandless, Hawes, Volz, Towle, Miller, Morton, Schoppenhorst, Will, Ratterman, Fernow, Sanders, Lutz, Denzer, Watson, Petty, Isaacs, Lindley, Carder, Lauder, Baird, Warren, Koch, Jones, Payton, Fehler, Ohmann, Awtry, Sloan, Heatkenmeier, Sr., Sikking and Brown, the judgment is reversed and remanded with directions to declare the office held by each of the last mentioned 33 contestees to be vacant, and for other proceedings consistent with this opinion.
Whole court sitting except Judges Dietzman and McCandless, whose places were filled by special judges, Rollin Hurt and John D. Carroll. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3449056/ | Affirming.
The appellants, Earl Whitis and Mrs. Cora Colyer, were with Jim Ping, Elwyn Jackson, and Louisa Price, jointly indicted by the grand jury of Laurel county for the crime of robbery "by the use and display of offensive deadly weapons, to-wit, pistols."
Chapter 52, Acts of 1934, now section 1159a, Baldwin's 1936 Revision of Carroll's Kentucky Statutes, provides that:
"If any person shall commit acts of robbery, * * * as defined in Sections 1159 or 1159a, * * * and in committing said act or acts shall use or display any pistol, gun or other firearms or deadly weapon of any character in so doing; upon conviction such person or persons shall be sentenced to death or life imprisonment in the discretion of the jury."
The indictment here before us accused the named five defendants of having conspired to rob Clark Feltner and the Feltner whisky store and in separate counts charged each of them as principal and his or her associates as aiders and abetters. *Page 801
This appeal comes before us, seeking a reversal of a judgment entered upon the verdict returned upon the third and separate trial of the two appellants (codefendants below), finding them guilty and fixing their punishment at life imprisonment.
Appellants assign as error committed, entitling them to a reversal of the judgment: (1) That the court erred in refusing them a peremptory instruction, moved for at the close of the commonwealth's evidence and again at the close of all the evidence; (2) that it erred in giving instructions Nos. 1 and 2; (3) that the verdict is not supported by the evidence; (4) that the court erred in refusing to sustain their challenge to the panel of the jury and in overruling their motion to discharge it; and (5) that the court erred in the admission of incompetent testimony.
It may first be noted that it is disclosed by the record that of these five jointly indicted defendants, Jim Ping was the one of their number who entered the whisky dispensary in question and therein effected the charged holdup and robbery, after which he was killed when the car in which the party was attempting to make his "getaway" was wrecked. The other four occupants of the car, all residents of Pulaski county, were badly injured.
Upon the first trial upon the indictment of the four codefendants, Louisa Price was acquitted; a mistrial resulted as to the others.
Upon a second trial of the remaining three codefendants, a mistrial again resulted, while upon the third call and trial of the case, a severance was demanded and granted, and appellant's codefendant, Elwyn Jackson, was separately tried upon the joint indictment and convicted and sentenced to a term of life imprisonment.
Thereafter, the case of the appellants, Earl Whitis and Mrs. Cora Colyer, coming on for trial, and they consenting to be tried together, they were tried upon this same joint indictment, and upon substantially the same and identical evidence and instructions as were given upon the previous separate trial of their codefendant, Elwyn Jackson, appellants were convicted and also sentenced to life imprisonment.
Appellants' contentions here urged, that the court erred in failing to sustain their motion for a peremptory *Page 802
instruction, in giving the conspiracy and aiding and abetting instructions, and that the evidence was insufficient to support the verdict returned, are the same contentions as were made, upon almost the identical evidence heard and instructions given thereon, by the codefendant Jackson for reversal upon his appeal from the judgment of conviction upon his trial. Therefore, our ruling upon that appeal, that the evidence was sufficient to uphold the judgment and that the court did not err in giving the conspiracy and aiding and abetting instruction thereon, must be taken as the law of the case and here applicable and controlling upon the same questions presented upon this appeal.
The language of the opinion so holding upon that appeal (Elwyn Jackson v. Commonwealth, 265 Ky. 458, 97 S.W. [2d] 21
[97 S.W.2d 21]), to which reference is made for a full statement of the facts and evidence of this robbery, is as follows:
"From the foregoing resume of the evidence, it will be seen that appellant's contention that the evidence was not sufficient to sustain the verdict is wholly without merit. There was ample evidence from which the jury might reasonably infer that a conspiracy to commit the robbery existed, and that appellant aided and assisted Ping in its commission."
And continuing, the court said:
"Complaint is made of instruction No. 3 because it authorized the jury to find the defendant guilty if they believed from the evidence, beyond a reasonable doubt, that 'he was present at the time near enough so to do and did wilfully and felonioulsy aid, abet, assist, encourage, incite, or command the said Jim Ping' to commit the robbery in the manner theretofore mentioned. * * *
"Here there was evidence tending to show that appellant knew the crime was to be committed, and that he aided and assisted Ping in its commission. This made him a participant in the crime as an aider and abettor, and made him subject to the same penalty as the principal. When two or more persons unite to accomplish a criminal object, and one aids and abets the other in the commission of the crime, the aider and abettor is responsible in law *Page 803
to the same extent as the one who actually commits the criminal act. Simmons v. Com., 263 Ky. 171, 92 S.W. [2d] 68 [92 S.W.2d 68]; Kinder v. Com., 262 Ky. 840, 91 S.W. [2d] 530 [91 S.W.2d 530]; Philpot v. Com., 240 Ky. 289, 42 S.W. [2d] 317 [42 S.W.2d 317]."
However, there was one additional bit of evidence, which is not found in this record. The defendant there, as did the appellants here, stated that he did not know that Ping intended to commit the robbery or had committed it until after he drove away from the store where it was committed, but it was yet testified by an officer upon Jackson's trial that Jackson admitted to him that he learned of the robbery after it was committed and was driving the automobile at a high rate of speed to enable Ping to escape when it was wrecked.
Upon this slight evidence found in the Jackson record, and only affecting Jackson, the court held that the trial court erred in failing to give him an additional instruction upon such evidence, tending to show him an accessory after the act, as was provided for by the last clause of section 1159a, and reversed the judgment because of the trial court's failure to give such instruction.
Reference to the opinion delivered upon that appeal is here made for a full statement of the facts and circumstances under which the robbery of Feltner's whisky dispensary, situated in Laurel county, near London, was committed, which are the same, with the exception stated, as disclosed by the record in this case.
We, therefore, upon the authority of the holding of the court upon the analogous facts of that case, likewise conclude that these named assignments of error, that the court erred in refusing them a peremptory instruction, in giving instructions Nos. 1 and 2, and that the verdict is not supported by the evidence, are without merit.
Next considering appellants' contention that the court erred in the admission of incompetent evidence, it appears that the objection is chiefly directed at the commonwealth's witness having improperly answered a question asked of her, as to where the codefendant Taylor was then living, knowing he was in the penitentiary, upon conviction for the same offense, after the court had sustained timely objection made thereto. Appellants moved to discharge the jury, insisting that the poisonous *Page 804
prejudice of the answer so made was so fatal upon the jury's mind that it could not be remedied by the later admonition given it to disregard the answer as improperly made, after having overruled appellants' motion made to discharge the jury based on such cause.
It is sufficient answer to this contention to say that we do not find this criticism of merit or tenable, when considered in the light of the court's clear instruction given the jury as to it.
Appellants' next and final assignment of error is based on the court's refusal to sustain their challenge to the entire panel of jurors and in overruling their motion to discharge the said panel because it was the second panel used by the court at that term and because drawn after the first regular panel had served through the first fifteen days of the term.
In support of this contention, counsel for appellants cite the case, among others, of Louisville N. R. Co. and Curt Jones v. Owens, 164 Ky. 557, 175 S.W. 1039, 1042. However, our own consideration of the holding in that case leads us to conclude that the appellants' contention in this is without merit.
The language of the court's opinion in this case is as follows:
"Prior to the present act the statute regulating the discharge of jury panels provided as follows:
" `The court may discharge the regular first panel of a jury, after they shall have served one week, and direct another panel of twenty-four to be summoned for the succeeding week, and so on for each week of the term. * * *' General Statutes, ch. 62, art. 4, sec. 8.
"The present statutes provide:
" `The court may discharge the regular first panel of a jury after they shall have served one week, and impanel another jury, as herein provided.' Section 2261, Ky. Statutes.
"The trial court not only discharged the first regular panel, but discharged each subsequent panel at the end of a week's service and impaneled a new jury for the following week. These cases were tried *Page 805
by the sixth jury thus impaneled. It will be observed that the old statute authorized the impaneling of new juries at the end of each week, while the present statute gives authority to discharge the regular first panel after they shall have served one week and then impanel another jury. It is the rule that where a new statute is enacted to take the place of an old statute, a material change between the two cannot be passed over by the courts as insignificant. * * * We, therefore, conclude that the Legislature intended to discontinue the practice of summoning a new jury for each week of the term and to confine the authority of the trial judge to discharging the regular first panel after they shall have served one week. It will be seen, therefore, that the method adopted by the trial court in impaneling new juries and discharging them is not authorized by the statute. The purpose of the present statute regulating the impaneling and selection of juries is to dispense, as far as possible, with the professional juror, who is generally present as a bystander for the express purpose of being summoned. To accomplish this purpose a substantial compliance with the statute is necessary."
The object of the statute, as stated in the opinion supra, was to discourage the presence of professional jurors, who stand by throughout the term awaiting jury call, by dispensing with the former custom of impaneling successive new juries, upon which they might be called, every week of the term and providing that only one such new jury might be impaneled. This, the object of the statute, we are of the opinion, is as substantially realized and effected by limiting the court's right, as it does, to impanel but one new jury during its term of court, at any time during the term, as in confining its impaneling to the one day stated of after the jury shall have served one week."
The language of the statute is not that the court shall, but rather that it may, impanel a new jury at such named time, or, in other words, appears to be directory as to the time, but mandatory in limiting it to one time, in view of its purpose to confine the court to impaneling but one new jury during the one term.
Appellants' complaint here made to the new jury here impaneled is not that the court violated the provision *Page 806
of the statute in impaneling it, as making more than one impanelment of a new jury, prohibited by the act, but that it made such impanelment of the one new jury on an improper day of the term or after the first regular jury had served fifteen days, rather than only for one week as named by the statute.
We are not inclined to regard the naming of a particular day as the material mandate of the statute upon which the court shall see fit to discharge the old and impanel one new jury, so long as the court stays within what we conceive is the mandatory restriction of the statute, that only once during the term shall the court discharge the regular panel and impanel a new jury to serve during the remainder of the term.
Therefore, for the reasons hereinabove indicated, we are of the opinion that the judgment should be, and it is, affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3449057/ | Reversing.
Edd Shackleford is appealing from a judgment of conviction for the conversion of money or property as denounced by section 1358a, Kentucky Statutes, carrying a penalty of two years' imprisonment. *Page 61
The indictment in the accusatory part charges "the crime of unlawfully and feloniously converting the property of another" and in the descriptive part it is charged in substance that he unlawfully, willfully, maliciously, and feloniously procured a check issued to Nancy Jackson for the sum of $26, and without permission from her or her legally appointed, qualified, and acting guardian indorsed her name upon the check by him and cashed same, and falsely and fraudulently converted same or the proceeds thereof to his own use against her will and consent and with the intention of permanently depriving her of her property therein.
The court overruled a demurrer to the indictment and the alleged error in so doing is the principal ground urged for reversal.
It is urged by counsel for appellant that the indictment is defective in that it does not allege or charge any relation of confidence or trust between appellant and the owner of the thing alleged to have been converted, and the case of Commonwealth v. Barney, 115 Ky. 475; 74 S.W. 181, 24 Ky. Law Rep. 2352, and other cases following that opinion are cited as supporting appellant's contention, however, counsel for the Commonwealth takes the view that, if the indictment is not good under section 1358a of the Statutes, it was intended to and does embody every necessary element of grand larceny and is good as an indictment for that crime. Clearly the indictment was intended to, and does charge, unlawful conversion and not larceny, so the only question to be determined is whether in the descriptive part the indictment contains the essential elements of the former offense.
To be good, an indictment must charge a public offense in the accusatory part and state necessary facts constituting such offense in the descriptive part. Lynch v. Commonwealth, 248 Ky. 210, 58 S.W.2d 408. Ordinarily an indictment for a statutory offense in the language of the statute is sufficient, Dorroh v. Commonwealth, 236 Ky. 68, 32 S.W.2d 550, and especially is this true where words of the statute creating the offense are sufficiently descriptive of the offense, Commonwealth v. Fain, 248 Ky. 383, 58 S.W.2d 642. The indictment under consideration does follow the words of the statute, as enacted, creating the offense, but in the case of Commonwealth v. Barney, supra, the court has read into the statute words importing a confidential *Page 62
relationship between the offender and the owner of the thing converted, and held that to be good an indictment under the statute must charge such a relationship. The reason for the court's conclusion in the Barney Case is fully set forth in the opinion, and the rule enunciated in that opinion has been recognized and consistently followed. See Farmer v. Commonwealth, 91 S.W. 1129, 28 Ky. Law Rep. 1368, 1369; Commonwealth v. Kelley, 125 Ky. 245, 101 S.W. 315, 30 Ky. Law Rep. 1293, 15 Ann. Cas. 573; Commonwealth v. Weddle, 176 Ky. 780, 197 S.W. 446; Roland v. Commonwealth, 134 Ky. 170,119 S.W. 760.
It is further argued that the court erred in refusing to admit competent evidence on behalf of appellant. In relating the conditions under which he claimed to have received the check to be delivered to the payee and the efforts he made to deliver it, appellant attempted to detail his conversations with others. Of course he had the right to state the understanding or conditions under which he received the check and any good faith efforts he made to deliver it, but it was unnecessary for him to detail his conversation with others and the court did not err in refusing to permit him to do so.
It is further argued that the court erred in not giving an instruction embodying appellant's defense or claim that he turned the money over to another to be delivered to Nancy Johnson. If in any event such an instruction would have been authorized, there was no evidence to warrant its being given in this case.
For the reasons indicated the judgment is reversed, and cause remanded for proceedings in conformity with this opinion. | 01-03-2023 | 07-05-2016 |
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