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315 A.2d 483 (1974) SEAWAY SHOPPING CENTER CORPORATION v. The GRAND UNION STORES, INC., OF VERMONT, and the Grand Union Company. No. 3-73. Supreme Court of Vermont, Chittenden. February 5, 1974. 484 James D. Foley, of Yandell, Page & Archer, Burlington, for plaintiff. Wilson, Curtis, Bryan, Quinn & Jenkins, Burlington, for defendants. Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ. SHANGRAW, Chief Justice. This is an appeal from a judgment entered in a civil action tried by the Chittenden County Court on December 6, 1972. Jury trial was waived and following a hearing by the court plaintiff was awarded damages in the amount of $14,839.05 and its costs. A judgment for this amount followed, and the defendants have appealed therefrom. Plaintiff, a Vermont corporation, owns and operates the Seaway Shopping Center in South Burlington, Vermont. Its principal stockholder and officer is Thomas Farrell, who developed the shopping center. The Grand Union Stores, Inc., of Vermont, is also a Vermont corporation, and a wholly owned subsidiary of The Grand Union Company. The Grand Union company is a Delaware corporation with its principal office in East Paterson, New Jersey. The Grand Union Company is a guarantor of the performance of its subsidiary company under the lease here in question. For the purposes of this opinion, Seaway Shopping Center is hereinafter referred to as "Seaway", The Grand Union Stores, Inc., of Vermont, as "Tenant", and The Grand Union Company as "Parent Company." The original lease, here in question, was between Thomas Farrell and the above Tenant. The Parent Company was guarantor of the Tenant. The lease was subsequently assigned by Farrell to Seaway. Its terms are not in dispute. Without reciting verbatim all of the pertinent provisions of the lease, the court determined under finding No. 5 that it provided, in substance, as follows: (a) That the Landlord would maintain the surface of the parking area, rights of way, curb-cuts, approaches and sidewalks in good condition. (b) That if the Landlord failed to carry out any of its obligations, the Tenant might, after reasonable notice or without notice if in the Tenant's judgment an emergency should exist, perform the obligation at the expense of the Landlord. (c) That if Tenant did so, it would be entitled to reimbursement from the Landlord, and could apply the claim against subsequent rent installments. (d) That the Landlord should also mark and reline the parking areas as often as necessary. (e) That notices or demands under the lease should be given by each party to the other by mail, to the addresses therein set forth. The trial court continued with the following findings. 6. It is undisputed, and we find, that the Tenant in July 1971, caused a substantial part of the parking area adjacent to its store premises to be repaired and repaved, and subsequently remarked. The cost of the paving was $14,050.00, and of the remarking $903.15, both costs being reasonable. 485 7. It is also conceded, and found, that Tenant made withholdings from its rent as follows: January 1, 1972 $2,500.00 February 1, 1972 2,500.00 March 1, 1972 2,500.00 April 1, 1972 2,500.00 May 1, 1972 2,500.00 June 1, 1972 2,453.15 8. It is virtually, if not actually, conceded, and we find, that the remarking in question was required and necessary, whether or not the repaving was, and we find that the deduction of $903.15 by Tenant was justified and is an allowable reduction of plaintiff's claim. 9. Since the rental obligation itself is not in question, the central issue here involved is the condition of the parking lot before the repaving was done, i. e. whether it was in "good condition" as required by the lease. We find that it was, and that the repaving by the Tenant was not justified. Additionally, no notice of the repaving was given to the Landlord, the notice which was given referring only to "repair." (Def.Ex. T) 10. Over the course of six years prior to the repaving, Tenant had from time to time notified Seaway of the recurrent need for repairs to the lot, and Seaway had made them, presumably to the satisfaction of Tenant, since the non-performance clause had not previously been invoked. 11. When repairs were needed, Seaway had an arrangement with one Armand Pare and one Rene Barsalou to make them, using their equipment and hot mix (or cold patch in winter) purchased from local suppliers. 12. The cost of these repairs to Seaway were as follows: 1966, $760.65; 1967, $20.15; 1968, $670.09; 1969, $232.01; 1970, $469.91; and 1971, $1,835.91. The total is $3,968.72, almost half of which was just before the repaving in question. 13. Mr. Farrell testified that the repaving was done by Tenant, not because of necessity, but because it desired to give the premises a "new look" and to upgrade the store to meet growing competition. We so find, for the following reasons: (a) By letter of May 5, 1970, the parent company advised Seaway (Def.Ex.L) that the parking area was badly in need of repair, "creating a very shabby appearance in comparison to the other Shopping Centers in the area." (b) It then, in August, 1970, proceeded to get an estimate of the cost of repaving from L. M. Pike & Son, Inc., (Pl.Ex. 2, p. 4) even though it did not proceed with the work. (c) On June 25, 1971, in a telephone conversation with Farrell, Mr. Hayes, Vice-president for the real estate of the parent company (which handled all these matters completely without reference to its subsidiary), asked Seaway to pay half of the cost of repaving, to upgrade the store to meet competition. Mr. Farrell refused, advising Hayes that substantial repairs had already been made and more were in process. (d) At that time, a second quotation for repaving had already been obtained by defendants, and another was in the process. (e) We are unable to find, and defendants' evidence could not make clear, who made the decision to repave. Notice was mailed July 1, 1971, although it did not specify that repaving was to be done, referring only to repairs. This notice came from Mr. Charles Bailey, assistant maintenance supervisor for the parent company. The following day he accepted the low quote for the work, and it proceeded. (f) When Mr. Bailey gave this notice and accepted the quote, he did *486 not know repairs had been made, was unaware of the then condition of the lot and had had no communication from local officials of the Tenant about the repairs. (g) Mr. Bailey testified he did not know who in the chain of command made the decision to repave. He thought it might have been the "legal department." A representative of the legal department was present through the trial, but did not testify. The vagueness of this whole line of testimony as to individual decisionmaking within the corporate structure tends to reinforce the conclusion that the reasons for repaving were other than as stated in the formal notice. 14. The defendants, although entitled to deduct the sum of $903.15 from the rent, were not entitled to deduct the further sum of $14,050.00. Plaintiff is entitled to recover from defendants that sum, with interest to date in the amount of $789.05, for a total of $14,839.05, plus its taxable costs. In its conclusions the court, in part, stated: No substantial legal questions are here presented. As agreed, by the parties, the main issue involved is one of fact, whether the parking lot in question was in good condition under the terms of the lease when the repaving was done, or in such bad condition, unremedied by the landlord after tenant's request, that repaving was necessary. Strengthened by the information that tenant's responsible officials did not know of, or take into consideration, the substantial repairs which landlord had made, we have concluded that the repaving was not necessary, but was done for purposes of "upgrading" to meet competition, a worthy motive but not the landlord's responsibility under the lease. The issues raised by the defendants on appeal are primarily challenges to the findings of fact made by the trial court which they claim are clearly erroneous. The standard by which such a challenge is tested is stated in V.R.C.P. 52(a) thus: Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses and the weight of the evidence. The above Vermont rule is similar to Rule 52(a) of the Federal Rules of Civil Procedure. Defendants argue that this Court should not follow the long history of Vermont case law, but should	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT __________ No. 02-3035 __________ Dan McCarthy, as Parent and as Next * Friend of his Minor Daughter, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Western * District of Arkansas. Ozark School District; Faye Boozman, * in his Official Capacity as Director, * State of Arkansas Department of Health; * John Doe, 1 through 20, in their Official * Capacities as Agents, Servants, * Employees or Officials of the State of * Arkansas, Department of Health, * * Defendants - Appellees. * ___________ No. 02-3094 ___________ Shannon Law, as Parent and Legal * Guardian of her Minor Children Joey * Law, Rob Law, and Claire Law; * * Plaintiff, * * Susan Brock, as Parent and Legal * Guardian of her Minor Children Harley * Brock, Mason Brock, Kathrine Brock * and Michael Jarrell, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. * Fay W. Boozman, in his Official * Capacity as Director of the Arkansas * Department of Health; Cutter Morning * Star School District; Lake Hamilton * School District; Raymond Simon, in his * Official Capacity as Director of the * Arkansas Department of Education, * * Defendants - Appellees. * __________ No. 02-3104 __________ Cynthia Boone, Individually and as * Next Friend of Ashley Boone, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Cabot School District; Fay Boozman, in * his Official Capacity as the Director of * the Arkansas Department of Health; * John Doe, 1 through 20, in their Official * Capacities as Agents, Servants, * -2- Employees or Officials of the State of * Arkansas, Department of Health, * * Defendants - Appellees. * ___________ No. 02-3195 ___________ Shannon Law, as Parent and Legal * Guardian of her Minor Children Joey * Law, Rob Law, and Claire Law, * * Plaintiff, * * Susan Brock, as Parent and Legal * Guardian of her Minor Children Harley * Brock, Mason Brock, Kathrine Brock, * Appeal from the United States and Michael Jarrell, * District Court for the Eastern * District of Arkansas Plaintiff - Appellee * * v. * * Fay W. Boozman, in his Official * Capacity as Director of the Arkansas * Department of Health, * * Defendant, * * Cutter Morning Star School District; * Lake Hamilton School District, * * Defendants - Appellants, * * Raymond Simon, in his Official * -3- Capacity as Director of the Arkansas * Department of Education, * * Defendant. * ___________ Submitted: March 10, 2003 Filed: March 8, 2004 ___________ Before HANSEN1, Chief Judge, RILEY and MELLOY, Circuit Judges. ___________ MELLOY, Circuit Judge. These consolidated appeals involve the application of an Arkansas statute that requires the immunization of Arkansas schoolchildren against Hepatitis B. Ark. Code Ann. § 6-18-702(a).2 The district courts3 held that the statute's religious beliefs 1 The Honorable David R. Hansen stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2003. He has been succeeded by the Honorable James B. Loken. 2 Ark. Code Ann. § 6-18-702 (2002), as in effect at the time of the district courts’ decisions, provided: (a) Except as otherwise provided by law, no infant or child shall be admitted to a public or private school or child care facility of this state who has not been age appropriately immunized from poliomyelitis, diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, and other diseases as designated by the State Board of Health, as evidenced by a certificate of a licensed physician or a public health department acknowledging the immunization. .... (d)(2) The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that -4- exemption violated the Establishment Clause of the First Amendment because the exemption applied only to the “religious tenets and practices of a recognized church or religious denomination.” Ark. Code Ann. § 6-18-702(d)(2) (2000) (emphasis added). The district courts then determined that the exemption was severable from the remainder of the statute. Construing the statute without the exemption, the district courts held that the underlying immunization requirement survived Due Process, Equal Protection, Free-Exercise, and Hybrid Rights challenges. On appeal, we do not reach the merits of the claims raised below because the Arkansas legislature rendered these issues moot when it broadened the exemption to encompass philosophical as well as religious objections. See Ark. Code Ann. § 6-18-702(d)(4)(A) (2003). Instead, we set forth the general history of these matters, explain the changes in Arkansas law, and address the issue of mootness as discussed by the parties in their supplemental, post-argument briefs. I. Background Because the issues in this case do not turn on the specific facts that differentiate each individual party, we forgo a detailed discussion of the individual parties and the specific facts that gave rise to their actions. Instead, we describe the parties generally immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent or guardian is an adherent or member. (Emphasis added). The State Board of Health, in cooperation with the Board of Education, on July 27, 2000, promulgated regulations that listed Hepatitis B as one of the designated diseases under Ark. Code Ann. § 6-18-702(a). 3 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas (Case No. 02-3035), and the Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas (Case Nos. 02-3094, 02-3104, and 02-3195). -5- by their respective roles. The first group of parties consists of Arkansas schoolchildren who were excluded from school or threatened with exclusion from school for failure to receive immunization treatments for Hepatitis B. This group also includes the parents of the schoolchildren (collectively, the “Schoolchildren”). The second group consists of the Arkansas Departments of Health and Education and various officials from these two departments, including Fay W. Boozman, the Director of the Arkansas Department of Health (collectively, the “Officials”). The final group consists of various individual Arkansas school districts (collectively, the “School Districts”). In each case, the Schoolchildren brought suit against the School Districts and/or the Officials. The Schoolchildren in each case alleged that they held sincere religious beliefs that prevented each child from being immunized for Hepatitis B. The Schoolchildren did not belong to any recognized religion that had as one of its tenets opposition to immunization for Hepatitis B. We, like the district courts, assume for the purposes of our analysis that the Schoolchildren held sincere religious beliefs against Hepatitis B vaccination. In Case No. 02-3035 the Schoolchildren argued that the religious beliefs exemption violated the Establishment Clause of the First Amendment by permitting exemptions only for beliefs associated with a recognized religion. They also argued that the underlying immunization requirement violated their Equal Protection and Due Process rights under the Fourteenth Amendment. The district court accepted the Schoolchildren's arguments regarding the Establishment Clause challenge, but held the religious beliefs exemption severable. The district court then	{ "pile_set_name": "FreeLaw" }
274 Kan. 939 (2002) 58 P.3d 716 STATE OF KANSAS, Appellee, v. JAMES McINTOSH, Appellant. No. 86,386. Supreme Court of Kansas. Opinion filed December 6, 2002. 940 Paige A. Nichols, assistant appellate defender, argued the cause, and Reid T. Nelson, assistant appellate defender, Steven R. Zinn, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the briefs for appellant. Keith E. Schroeder, district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, and Carla J. Stovall, attorney general, were with him on the briefs for appellee. The opinion of the court was delivered by LOCKETT, J.: Defendant petitions for review from the Court of Appeals' affirmance of his convictions of rape, aggravated indecent liberties with a child, and two counts of aggravated criminal sodomy and his sentence of 316 months' imprisonment. Defendant claims (1) the trial court erred in finding that he failed to establish a compelling reason to require the victim to submit to an independent psychological examination; (2) the Court of Appeals erred in finding that a district court has no authority to order an independent physical examination of a victim in a criminal case; and (3) the trial court erred in admitting expert testimony. The facts as set forth in the Court of Appeals' opinion provide sufficient background in this case. Further facts are incorporated in the opinion as necessary. "McIntosh lived with Zoe D., his girlfriend, from December 1995 until July 1999. After McIntosh moved out, Zoe's daughter, A.D., told her mother that McIntosh had sexually abused her. Zoe reported the sexual abuse to the police. "A.D. was interviewed by Detective Eric Buller, but the interviews were not recorded. A.D. told Detective Buller that McIntosh raped her using his finger and penis and that he anally and orally sodomized her. A.D. stated that the incidents occurred in several different locations throughout their residence and in the 941 family van. A.D. also told the detective that the sexual abuse began when McIntosh moved into the house when A.D. was 7 years old and ended when McIntosh moved out of the house when she was 10 years old. "McIntosh was charged [in a complaint attested to by the prosecuting attorney] with five counts of rape, nine counts of aggravated criminal sodomy, five counts of aggravated indecent liberties with a child, and two counts of aggravated indecent solicitation of a child. Two counts of aggravated criminal sodomy and two counts of aggravated indecent solicitation of a child were dismissed at the preliminary hearing. Single counts of aggravated criminal sodomy and rape were dismissed by the State after it conceded that it could not prove that those offenses occurred in Reno County, Kansas. A jury convicted McIntosh of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. McIntosh was sentenced to 316 months' imprisonment." State v. McIntosh, 30 Kan. App.2d 504, 505-06, 43 P.3d 837 (2002). The Court of Appeals affirmed McIntosh's convictions. McIntosh filed a timely petition for review. We granted review solely upon the three issues briefed to this court. See K.S.A. 20-3018(c); Supreme Court Rule 8.03(a)(5)(c) (2001 Kan. Ct. R. Annot. 56). DISCUSSION Prior to trial, McIntosh filed a motion requesting both a physical and psychological examination of the victim, A.D. The trial judge denied the motion. Psychological Examination A trial court's denial of a defendant's motion to compel the victim, who is not a party in the State's criminal action but is often referred to as the complaining witness or complainant, in a sex abuse case to undergo a psychological examination is reviewed for abuse of discretion. See State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979); State v. Bourassa, 28 Kan. App.2d 161, 164, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000). The party who asserts the court abused its discretion bears the burden of showing such abuse. State v. Thompkins, 271 Kan. 324, 334-35, 21 P.3d 997 (2001). "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion." State v. Doyle, 272 Kan. 1157, 1168, 38 P.3d 650 (2002). 942 In Gregg, this court was faced, as a matter of first impression, with whether the trial court abused its discretion in denying the defendant's motion for the victim in a criminal case involving a sex crime to submit to a psychiatric examination. The victim in Gregg was an 8-year-old girl who was the sole witness to corroborate the charges against the defendant. The Gregg court first looked to other jurisdictions for guidance and noted that other jurisdictions fell into one of the following three categories: (1) The court has no inherent power to compel a psychiatric examination; (2) the defendant has an absolute right to an order compelling a psychiatric examination; and (3) the trial judge has the discretion to order a psychiatric examination of a complaining witness where compelling reason is shown. The court noted that the minority view was that the court had no inherent power to compel a psychiatric examination, while the majority of jurisdictions recognized that the trial judge has discretion to order a psychiatric examination when a compelling reason exists. 226 Kan. at 485-87. The Gregg court adopted the majority view, stating: "We, too, adopt the `middle ground' and hold a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination. Even if a trial court finds a compelling reason for ordering the psychiatric examination, the further safeguard as to its admissibility remains." 226 Kan. at 489. The Gregg court, in finding that the trial court did not abuse its discretion in denying the defendant's motion for psychiatric examination of the victim, relied upon the fact that the defendant in that case failed to put forth evidence as to (1) the victim's mental instability; (2) the victim's lack of veracity; (3) the victim's having asserted similar charges against other men that were later proven to be false; or (4) other reasons why the victim should be required to submit to such an examination. 226 Kan. at 490. In reaching its decision, the Gregg court quoted in length from Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal. Rptr. 302, 410 P.2d 838 (1966) (statutorily overruled by Cal. Penal Code § 1112 [West 1985]): "`We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a 943 necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.' 64 Cal.2d at 17[6]-177, []." Gregg, 226 Kan. at 489. See State v. Rucker, 267 Kan. 816, 822, 987 P.2d 1080 (1999) (recognized trial judge has discretion to order psychological examination of victim in sex crime case if defendant presents compelling reason); State v. Lavery, 19 Kan. App.2d 673, Syl. ¶ 1, 877 P.2d 443, rev. denied 253 Kan. 862 (1993); see Annot, 45 A.L.R. 4th, 310. Unlike the California Legislature, the Kansas Legislature has not statutorily overruled the 22-year-old decision in Gregg. Thus, it can be said that the legislature approves of the court ordering such examinations. Cf. In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000) (when legislature fails to modify statute to avoid standing judicial construction of statute, legislature is presumed to agree with court's interpretation). The trial court in this case found: "Here, the defense hasn't put on any evidence or any reason whatsoever that would get to a level of compelling. The defense is more than free at trial to attack the findings of Horizons [John Theis], and they are more than free to attack Dr. Glover's examination. But the fact that this defendant simply wants to have those findings verified is not a compelling reason to have a little eleven-year-old girl subjected to a psychological exam and particularly to a physical exam." Regarding this issue, the Court of Appeals stated: "Here, McIntosh argues that an independent psychological examination was required because a State witness completed a sexual abuse evaluation of A.D. and that he wanted his own expert to evaluate A.D. Specifically, McIntosh wanted an independent psychological examination of A.D.	{ "pile_set_name": "FreeLaw" }
Cite as 2014 Ark. 184 SUPREME COURT OF ARKANSAS No. CR-13-223 ROBERT LEANDER STIGGERS Opinion Delivered April 24, 2014 APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. CR2003-793] STATE OF ARKANSAS APPELLEE HONORABLE WENDELL LEE GRIFFEN, JUDGE AFFIRMED. KAREN R. BAKER, Associate Justice On June 16, 2005, a Pulaski County jury convicted appellant, Robert Leander Stiggers, of first-degree murder and first-degree battery. He was sentenced to forty years imprisonment for the murder conviction and twenty years imprisonment for the battery conviction with the sentences to run consecutively. Stiggers’s convictions and sentences were affirmed in Stiggers v. State, CACR 05-1399 (Ark. App. May 31, 2006) (unpublished). Stiggers’s convictions and sentences stem from a January 10, 2003 shooting that occurred in the Hollingsworth Courts neighborhood in Little Rock. Raynaud Muldrew and Wardell Newsome were both shot. Muldrew was found in a vehicle, and Newsome was lying near it. Muldrew died as a result of his injuries. Despite being shot in the back of the head, Newsome survived his injuries. Immediately after the shooting and at trial, Newsome identified Stiggers as the shooter. The relevant facts, as recounted by the court of appeals in Stiggers’s direct appeal are as follows: Cite as 2014 Ark. 184 Sergeant Sidney Allen . . . discovered Wardell Newsome lying on the ground near the vehicle. He had been shot four times in the right shoulder and once behind his right ear. While at the scene, Newsome told Sgt. Allen that [Stiggers] was the person who shot him. . . . Detectives Eric Knowles and Keith Cockrell questioned Newsome about the incident while he was undergoing treatment at UAMS. Newsome explained that he had borrowed a friend’s car earlier in the evening and picked up Muldrew. He told the detectives that Muldrew had purchased marijuana and then the two of them went to a liquor store to purchase cigarettes and a couple of Swisher cigars. While there, they saw [Stiggers] who asked for a ride to Hollingsworth Courts. [Stiggers] was riding directly behind Newsome in the back seat of the car, and during the ride, [Stiggers] apparently became aggressive and started yelling. Newsome stated that, at one point, he turned around and noticed that [Stiggers] was holding a small handgun. While following [Stiggers’s] directions into the Hollingsworth Courts neighborhood, Newsome testified that [Stiggers] told them to “say goodnight” and “say your prayers” because he was going to kill them. Newsome indicated that he did not think [Stiggers] was serious because they had known each other and been friends for years. Newsome explained that, as he pulled into an alley in the residential complex at [Stiggers]’s request, [Stiggers] shot him behind the right ear. He pointed out that he lost consciousness immediately, and when he regained consciousness, he noticed Muldrew slumped over in the front passenger seat. Newsome explained that he then crawled out of the vehicle to look for help, and a neighbor called the police. Newsome recognized [Stiggers]’s picture in a group of photos presented by Detectives Knowles and Cockrell, and he again identified him as the shooter. Stiggers, CACR 05-1399, slip op. at 1. After the court of appeals issued its mandate, on August 20, 2006, Stiggers filed his initial Rule 37.1 petition in Pulaski County Circuit Court. After several continuances due to issues related to Stiggers’s representation, on July 2, 2012, Stiggers filed an amended petition and the circuit court held a hearing that same day. On November 16, 2012, the circuit court denied Stiggers’s petition. Stiggers now brings this appeal and presents one issue for review: the circuit court erred by denying Stiggers’s Rule 37.1 petition because Stiggers received unconstitutional ineffective assistance of counsel when his counsel failed to interview 2 Cite as 2014 Ark. 184 and call certain witnesses. “On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___ S.W.3d ___, ___. Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Claims of ineffective assistance of counsel are reviewed under the following standard: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687). The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying 3 Cite as 2014 Ark. 184 the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. See id. Therefore, Stiggers must first show that counsel’s performance fell below an objective standard of reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id. Stiggers must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if Stiggers fails to demonstrate prejudice as to an alleged error. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam); Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan v. State, 2013 Ark. 223 (per curiam)). In order to demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen assessing an attorney’s decision not to call a particular witness, it must be taken into account 4 Cite as 2014 Ark. 184	{ "pile_set_name": "FreeLaw" }
994 F.2d 1433 Bankr. L. Rep. P 75,277In re Gilbert G. BEEZLEY, Debtor.Gilbert G. BEEZLEY, Appellant,v.CALIFORNIA LAND TITLE COMPANY, Appellee. No. 91-55809. United States Court of Appeals,Ninth Circuit. Submitted Oct. 6, 1992.Decided June 4, 1993. Gilbert G. Beezley, pro se. Mark E. Rohatiner, Ellen L. Frank, Schneider, Goldberg, Rohatiner & Yuen, Beverly Hills, CA, for appellee. Appeal from the Ninth Circuit Bankruptcy Appellate Panel. Before O'SCANNLAIN and RYMER, Circuit Judges, and ZILLY,* District Judge. PER CURIAM: 1 Debtor Gilbert G. Beezley appeals the decision of the Ninth Circuit BAP, affirming the bankruptcy court's denial of his motion to reopen his bankruptcy case under 11 U.S.C. § 350(b). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. 2 Beezley argues that the bankruptcy court abused its discretion by failing to grant his motion to reopen his case. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (bankruptcy court's refusal to reopen a closed case under 11 U.S.C. § 350(b) reviewed for an abuse of discretion). We disagree. Based on the assumption that amendment was necessary to discharge the debt, Beezley sought to add an omitted debt to his schedules. Beezley's, however, was a no asset, no bar date Chapter 7 case. After such a case has been closed, dischargeability is unaffected by scheduling; amendment of Beezley's schedules would thus have been a pointless exercise. See American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 483 (N.D.Ind.1992); In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992); In re Tucker, 143 B.R. 330, 334 (Bankr.W.D.N.Y.1992); In re Peacock, 139 B.R. 421, 422 (Bankr.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). If the omitted debt is of a type covered by 11 U.S.C. § 523(a)(3)(A), it has already been discharged pursuant to 11 U.S.C. § 727. If the debt is of a type covered by 11 U.S.C. § 523(a)(3)(B), it has not been discharged, and is non-dischargeable.1 In sum, reopening here in order to grant Beezley's request would not have "accord[ed] relief to" Beezley; thus, there was no abuse of discretion. 3 AFFIRMED. O'SCANNLAIN, Circuit Judge, concurring: 4 The simple question with which we are presented--whether the bankruptcy court abused its discretion by denying the debtor's motion to reopen--requires, in my view, more than a simple answer. I write separately to address certain matters that the per curiam opinion does not discuss, but which are squarely presented on the record before us and implicate important principles of bankruptcy law. 5 * Beezley filed for bankruptcy under Chapter 7 on June 10, 1987. Because he had no assets available for distribution to his creditors in bankruptcy, no bar date was set by the court establishing a deadline for creditors to file proofs of claim. 6 Three years earlier, California Land Title Co. ("Cal Land") had obtained a default judgment against Beezley in California state court arising out of a 1979 transaction in which Beezley was the seller and Cal Land the title insurer of certain real property. Beezley made no mention of Cal Land's claim or of its judgment against him in any of his schedules. Consequently, Cal Land did not receive notice of Beezley's bankruptcy. Beezley received his discharge on November 6, 1987, and his case was thereafter closed. 7 In January 1990, Beezley moved to reopen his bankruptcy case for the purpose of amending his schedules to add the omitted debt to Cal Land. Cal Land filed a memorandum with the bankruptcy court in opposition to Beezley's motion to reopen, advising the court that Cal Land would seek to establish that its claim was nondischargeable. The bankruptcy court held a hearing, at the conclusion of which it denied Beezley's motion, citing the case of In re Stark, 717 F.2d 322 (7th Cir.1983) (per curiam). The Bankruptcy Appellate Panel ("BAP") subsequently affirmed by memorandum, citing the same authority. II 8 The source of the bankruptcy court's power to reopen a closed case is section 350(b).1 This section gives the court discretion to reopen a case "to administer assets, to accord relief to the debtor, or for other cause." The question posed by this appeal is whether the bankruptcy court abused that discretion in denying Beezley's motion to reopen. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (decision on motion to reopen reviewed for abuse of discretion). Answering this question is a complicated affair, and requires close attention to the difficult language of sections 523 and 727 of the Bankruptcy Code. 9 * Section 727(b) of the Bankruptcy Code states in part: "Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter [i.e., the date of the bankruptcy filing]...." "The operative word is 'all'. There is nothing in Section 727 about whether the debt is or is not scheduled. So far as that section is concerned, a pre-bankruptcy debt is discharged, whether or not it is scheduled." In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). See In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992) ("breadth of the discharge" under § 727 is "comprehensive"); In re Thibodeau, 136 B.R. 7, 8 (Bankr.D.Mass.1992) ("s 727(b) itself makes no exception for unlisted debts"). Thus, unless section 523 dictates otherwise, every prepetition debt becomes discharged under section 727. Section 523(a) provides in part: 10 (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt-- 11 (3) neither listed nor scheduled ... in time to permit-- 12 (A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or 13 (B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request[.] 14 Unscheduled debts are thus divided into two groups: those that are "of a kind specified in paragraph (2), (4), or (6) of this subsection," and those that are not. Loosely speaking, the paragraphs in question describe debts arising from intentional wrongdoing of various sorts (respectively, fraud, fiduciary misconduct, and the commission of malicious torts). What distinguishes these from all other debts is that, under section 523(c) and rule 4007(c), a creditor must file a complaint in the bankruptcy court within 60 days after the date established for the first meeting of creditors in order to assert their nondischargeability. Failure to litigate the dischargeability of these sorts of debts right away disables the creditor from ever doing so; an intentional tort debt will be discharged just like any other. 15 Section 523(a)(3) threatens nondischargeability in order to safeguard the rights of creditors in the bankruptcy process. The difference between subparagraphs (A) and (B) reflects the different rights enjoyed by and requirements imposed upon different kinds of creditors. For most creditors, the fundamental right enjoyed in bankruptcy is to file a claim, since this is the sine qua non of participating in any distribution of the estate's assets. Section 523(a)(3)(A) safeguards this right by excepting from discharge debts owed to creditors who did not know about the case in time to file a claim. By contrast, for creditors holding intentional tort claims the salient rights are not only to file a claim but also	{ "pile_set_name": "FreeLaw" }
137 F.3d 326 AVONDALE INDUSTRIES, INC., Petitioner,v.Rodney PULLIAM; Director, Office of Worker's CompensationPrograms, U.S. Department of Labor, Respondents. No. 97-60569 Summary Calendar. United States Court of Appeals,Fifth Circuit. March 31, 1998. Joseph J. Lowenthal, Jr., R. Scott Jenkins, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Petitioner. Joseph Paul Demarest, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Pulliam. Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Dept. of Labor. Petition for Review of an Order of the Benefits Review Board. Before DUHE, DeMOSS and DENNIS, Circuit Judges. DUHE, Circuit Judge: 1 Appellee injured his shoulder and sued Appellant, his former employer, for permanent and total disability payments under the Longshore and Harbor Workers' Compensation Act. The administrative law judge awarded him permanent, partial disability payments and calculated his wage earning capacity by averaging the hourly wage of five jobs which Appellant had found for Appellee. The Benefits Review Board affirmed. The res nova issue presented is the proper method of computing post-injury wage earning capacity when the employer locates more than one suitable job for the claimant. We affirm the ALJ's use of averaging. 2 * In May 1992, Rodney Pulliam ("Pulliam"), a sheet metal mechanic for Avondale Shipyards ("Avondale"), fell off a scaffold and injured his shoulder. Pulliam continued to work for Avondale until July when he quit. 3 In February 1994, Pulliam underwent surgery on his shoulder but was not able to return to work until January 1995. In the meantime, Avondale hired a certified rehabilitation counselor to analyze Pulliam's ability to be re-employed. The counselor conducted a labor market survey to identify jobs within Pulliam's mental and physical capabilities as well as his geographic area. The counselor found forty-four such jobs, none of which Pulliam secured. 4 Pulliam sued Avondale for permanent, total disability compensation under the Longshore and Harbor Workers' Compensation Act ("LWHCA"). In attempting to establish total disability, Pulliam argued to the administrative law judge ("ALJ") that he had diligently tried to obtain other employment, but that no one would hire him. He pointed to the fact that he contacted all but five1 of the prospective employers. The ALJ disagreed, finding that Pulliam had not been diligent in his job search. Rather, the ALJ found that Pulliam had, in at least two instances, misrepresented the status of his injury so as to hurt his chances of being hired. Thus, Pulliam was entitled only to permanent, partial disability.2 5 In calculating Pulliam's post-injury wage earning capacity, the ALJ averaged the hourly wage of the five jobs for which Pulliam did not apply. Avondale unsuccessfully appealed to the Benefits Review Board ("BRB") arguing alternatively that the ALJ should have based Pulliam's compensation using the highest wage of the five jobs and that the ALJ should have considered all forty-four jobs in his calculation. The BRB affirmed the ALJ's findings and adjusted the ALJ's calculation of the average.3 Avondale now appeals. II 6 When the BRB affirms an ALJ's decision, we may reverse the ALJ's decision only if it is not supported by substantial evidence and is not in accordance with the law. New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir.1997). Substantial evidence is evidence that "a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 2549-50, 101 L.Ed.2d 490 (1988) (internal quotation marks omitted). 7 * While 33 U.S.C. § 908(c)(21) sets forth the formula for calculating an employee's lost wage earning capacity, it gives no guidance for determining what the post-injury earning capacity is. Thus, the courts have determined post-injury earning capacity on a case by case basis. See Licor v. Washington Metropolitan Area Transit Authority, 879 F.2d 901 (D.C.Cir.1989); Pilkington v. Sun Shipbuilding and Dry Dock, 9 B.R.B.S. 473. 8 Avondale argues that the BRB should have vacated and remanded the ALJ's decision because the ALJ used the average of the wages rather than the highest wage. In P & M Crane v. Hayes, 930 F.2d 424 (5th Cir.1991), this Court held that an employer could satisfy its burden of proving alternate employment by showing that there was one job available in the local community. Here, Avondale points out that it more than satisfied its burden by showing that there were forty-four jobs available. Moreover, Avondale could have avoided this litigation altogether by finding the highest paying alternate employment for Pulliam. Instead, it provided Pulliam with a choice of forty-four jobs. 9 Avondale also urges this Court to reverse the ALJ's judgment based on policy. It contends that were we to affirm the ALJ, we would be discouraging other employers from attempting to find a range of suitable, alternate employment. To get around the averaging scheme, an employer would have to find only one, high paying job. Thus, should we reverse the ALJ, we would be encouraging employers to find a range of alternate employment. We disagree. 10 First, we find the policy argument unpersuasive. The employer, to avoid paying permanent, total disability benefits, has to show that there is suitable, alternate employment. We think it unlikely that an employer would risk having to pay permanent, total disability benefits by showing only one job available. Rather, the presumption that the employee is permanently and totally disabled would seem to encourage the employer to find as many alternate jobs as possible. 11 Second, in Shell Offshore, Inc. v. Cafiero, 122 F.3d 312, 318 (5th Cir.1997), we held that averaging was a reasonable method for determining an employee's post-injury wage earning capacity. We now explain why. We have held that an employer need not show that a specific job opening is available when proving suitable, alternate employment. See, Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039 (5th Cir.1992) (holding that an employer has to show only general availability). Thus, the courts have no way of determining which job, of the ones proven available, the employee will obtain. Averaging ensures that the post-injury wage earning capacity reflects all jobs available. B 12 We now address Avondale's argument that the ALJ should have calculated Pulliam's post-injury wage earning capacity by using all forty-four jobs. Avondale argues that the ALJ acted improperly in finding that Pulliam was not diligent and that he had applied for all but five of the forty-four jobs. While we agree that these findings seem inconsistent, we give deference to an ALJ's findings of fact. Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 906 (5th Cir.1997). It is reasonable that the ALJ could find that Pulliam merely applied for most of the forty-four jobs and yet was not diligent in his job search. Thus, we do not find error in the ALJ using the five jobs to determine the average. CONCLUSION 13 For the above reasons we AFFIRM. 1 We note that the ALJ stated that Pulliam contacted all but six of the prospective employers; however, we are concerned with only five of those jobs because Pulliam gave no explanation for failing to contact those prospective employers 2 Under the LWHCA, the ALJ calculates loss of wage earning capacity by taking two thirds of the difference between the average of what the worker had earned and what the worker can earn post-injury. See 33 U.S.C. § 908(c)(21) 3 The ALJ had initially found that the average of the five jobs was $5.25/hour. The BRB adjusted the average to $5.99/hour	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § Leonardo Ramirez, § No. 08-19-00097-CR Appellant, § Appeal from the v. § 41st District Court The State of Texas, § of El Paso County, Texas State. § (TC# CR 20170D04632) § ORDER The Court GRANTS the Court Reporter’s third request for an extension of time within which to file the Reporter’s Record until August 12, 2019. NO FURTHER REQUESTS FOR EXTENSION OF TIME TO FILE THE REPORTER’S RECORD WIL BECONSIDERED BY THIS COURT. It is further ORDERED that Bertha A. Prieto, Official Court Reporter for the 41st District Court, for El Paso County, Texas, prepare the Reporter’s Record for the above styled and numbered cause and forward the same to this Court on or before August 12, 2019. IT IS SO ORDERED this 29th day of July, 2019. PER CURIAM Before McClure, C.J., Rodriguez and Palafox, JJ.	{ "pile_set_name": "FreeLaw" }
611 S.E.2d 750 (2005) 272 Ga. App. 91 REYNOLDS v. The STATE. No. A05A0768. Court of Appeals of Georgia. March 9, 2005. Certiorari Denied June 6, 2005. 751 George Jackson, Jackson & Schiavone, Savannah, for Appellant. Daniel Craig, District Attorney, Henry Syms, Jr., Madonna Little, Assistant District Attorneys, for Appellee. BLACKBURN, Presiding Judge. Having pled guilty in 1999 to aggravated child molestation and child molestation, Gary Reynolds directly appeals the trial court's denial of his motion to set aside his sentence, which motion was filed more than four-and-one-half years after his unappealed sentence was entered. We hold that since Reynolds's sentence fell within the range of allowable sentences for the charged crimes, his claim that the sentence was void is without merit. Accordingly, his motion to set aside that sentence was untimely, depriving this direct appeal of jurisdiction. For this reason, we must dismiss the appeal. 752 In March 1999, Reynolds was charged with six counts of child molestation[1] and one count of aggravated child molestation[2] arising out of conduct that took place between October 1992 and December 1994. In May 1999, he pled guilty to one count of child molestation and to one count of aggravated child molestation. At the guilty plea hearing, attorneys for both sides, Reynolds himself, and the judge all believed and discussed that the range of punishment for the aggravated molestation count was ten to thirty years, with the range for the child molestation count five to thirty years. All were further under the impression that Reynolds faced a mandatory minimum sentence of ten years to serve on the aggravated child molestation count. The court sentenced Reynolds to twenty years on each count (ten to serve and ten on probation), with the sentences to run concurrently. The final sentence was entered on May 17, 1999. After serving four-and-one-half years of his prison sentence, Reynolds in December 2003 moved the court to set aside his sentence on the ground that at the time he committed the crimes, former OCGA § 16-6-4 set the punishment range for aggravated child molestation from two to thirty years (not ten to thirty years with a ten-year-imprisonment mandatory minimum as was believed at the sentencing hearing) and set the punishment range for child molestation from one to twenty years (not five to thirty). Reynolds argued that he had received a sentence greater than that prescribed by law and that therefore his sentence was void. He claimed that, as his sentence was void, no time restriction precluded him from bringing the present motion to set aside, even though it was filed four-and-one-half years after his sentencing. The trial court disagreed. The court held that a motion to set aside a sentence (based on the ground that the court had misapprehended the law and had therefore failed to exercise its discretion) was required to be filed within the term of court during which the sentence was entered. The court further held that even though void sentences may be challenged at any time, the twenty-year sentences here fell within the range of allowable sentences even under the former OCGA § 16-6-4, and that therefore the sentences were not void. As four-and-one-half years were far beyond the term of court, the court found it had no jurisdiction and denied the motion. We agree. 1. It is undisputed that the court misapprehended the law at the time it sentenced Reynolds. Where the court has made such a mistake, a defendant is normally entitled to have his sentence vacated and to be resentenced by a court that has a correct apprehension of the possible range of punishments. See Banks v. State;[3]Mallarino v. State.[4] However, the defendant's right to have his sentence so modified is not unlimited. He may raise the issue in his initial direct appeal of his conviction (the procedure followed in Banks and Mallarino; Reynolds, however, filed no initial direct appeal here). Otherwise, he must make a timely motion in the trial court below. "Except as provided by statute, a sentencing court has no power to modify a valid sentence of imprisonment after the term of court in which it was imposed has expired." State v. Hart.[5] See Sasser v. Adkinson[6] ("in the absence of a statute providing to the contrary, the trial court's authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered") (punctuation omitted). 753 Subsequent to the 1992 amendment of OCGA § 17-10-1(a) and prior to 2001, no statute purported to extend beyond the court's term the time in which a court could modify a sentence. Levell v. State;[7]Latham v. State.[8] See Ga. L. 1992, p. 3221, § 1. Thus, at the time the court imposed Reynolds's sentence in May 1999, the court's power to modify the sentence was limited to the court's term. In 2001, however, the General Assembly enacted OCGA § 17-10-1(f), which provides: Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Ga. L. 2001, p. 94, § 5. Regardless of whether OCGA § 17-10-1(f) should be applied to Reynolds's December 2003 motion to set aside his sentence, that motion was far too late. It was not filed in the term in which the sentence was entered,[9] nor was it filed within a year of the date upon which the sentence was imposed, nor was it filed within 120 days of the trial court's receipt of a direct-appeal remittitur (as no direct appeal was filed). Accordingly, the trial court lacked subject matter jurisdiction and did not err in denying the motion. Kinsey v. State.[10] 2. Reynolds argues, however, that his sentence was void and therefore could be challenged at any time. Crumbley v. State[11] held that "[w]here a sentence is void, . . . the court may resentence the defendant at any time." See Jones v. State[12] ("a trial court's jurisdiction to modify a sentence extends beyond its statutory limitation only when the sentence is void") (footnote omitted); Howard v. State[13] ("`if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time'"). The sentence here, however, was not void. "A sentence is void if the court imposes punishment that the law does not allow." Crumbley, supra at 611(1), 409 S.E.2d 517. "When the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1(f)." Jones, supra at 670, 604 S.E.2d 483. See Daniel v. State.[14] Here, Reynolds's two twenty-year concurrent sentences (ten to serve, ten on probation) on the child molestation count and on the aggravated child molestation count fell within the ranges of punishment allowed in former OCGA § 16-6-4 (one to twenty for child molestation; two to thirty for aggravated child molestation) that applied to such offenses committed between October 1992 and December 1994. Accordingly, the sentences were not void. See Rehberger v. State;[15]Kinsey, supra at 653-654(1), 578 S.E.2d 269; Daniel, supra at 475(3), 585 S.E.2d 752. Compare Gonzalez v. State[16] (where fines were not authorized by controlling statute, sentence was void); Hahn v. State[17] (where imprisonment not authorized, 754 imprisonment sentence was void); McCranie v. State[18] (incest sentence void where incest merged with rape charge). Thus, the motion to set aside those sentences, filed four-and-one-half years after sentencing, was untimely. See Barber v. State;[19]Shaw v. State.[20] Reynolds argues that the court's misapprehension of the applicable range of sentences voids the sentences. However, "[a]ssertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post § 17-10-1(f) sentence modification." Jones, supra at 670-671, 604 S.E.2d 483. See Williams v. State[21] (failure to conduct required hearing did not render a sentence void). A court which misapprehends the law and therefore fails to properly exercise its discretion in sentencing commits a procedural error; since the procedural error does not void the resulting sentence, a dissatisfied defendant must challenge the sentence in a timely manner. Daniel, supra at 475(3), 585 S.E.2d 752; Newby v. State;[22]Shaw, supra at 232-233, 504 S.E.2d 18. Absent such a timely challenge, the only avenue for reviewing the sentence lies in a petition for writ	{ "pile_set_name": "FreeLaw" }
FILED UNITED STATES COURT OF APPEALS DEC 06 2011 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS RICHARD RAYMOND TUITE, No. 09-56267 Petitioner - Appellant, D.C. No. 3:08-cv-01101-J-CAB Southern District of California, v. San Diego MICHAEL MARTEL, Warden, ORDER Respondent - Appellee. Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges. The memorandum disposition filed on September 8, 2011 is hereby withdrawn. A new disposition will be filed. The majority of the panel votes to deny the petition for rehearing. Judge Callahan votes to grant the petition for rehearing. Judge Berzon votes to deny petition for rehearing en banc and Judge Noonan recommends denying the petition for rehearing en banc. Judge Callahan votes to grant the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED. No further petitions for rehearing and for rehearing en banc will be entertained. 2 FILED NOT FOR PUBLICATION DEC 06 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD RAYMOND TUITE, No. 09-56267 Petitioner - Appellant, D.C. No. 3:08-cv-01101-J-CAB v. MEMORANDUM* MICHAEL MARTEL, Warden, Respondent - Appellee. Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding Argued and Submitted December 9, 2010 Pasadena, California Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges. Richard Raymond Tuite appeals the denial of his petition for a writ of habeas corpus. Applying Brecht v. Abrahamson, 507 U.S. 619 (1993), and holding that there is at least “grave doubt” as to whether the confrontation clause error at * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The panel finds that a published opinion might cast unjust aspersions upon those not before the court. issue had a substantial and injurious effect or influence on the verdict, we reverse and remand. See Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). FACTS AND PROCEEDINGS On January 20, 1998, Stephanie Crowe, aged twelve, was stabbed nine times by knife in her own bed in her own bedroom. She had been on the phone about 10 p.m. and died before midnight. Her body was discovered by her grandmother about 6 a.m., the next day. Within two weeks of her death, the Escondido police had identified three teenage boys as suspects, had interrogated them, and had obtained confessions. On May 22, 1998, these suspects were indicted for Stephanie’s murder. The district attorney of San Diego County prepared the case for trial, calling on an F.B.I. expert, Mary Ellen O’Toole, for help in developing the case. But in February 1999, the state Attorney General dismissed the indictments without prejudice. This court recently reversed the dismissal of a § 1983 lawsuit brought by the former suspects against the investigating police officers, so that case is going forward. See Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010). Here, however, we consider only the record as it developed in Tuite’s criminal trial. That record shows that the day after Stephanie’s death, the police picked up Tuite, an itinerant known to have been as close as one quarter of a mile 2 to the Crowe house at one point on the fatal evening. They took hair samples and fingernail scrapings, photographed him and impounded some of his clothes, in particular a red turtleneck shirt and a white T-shirt. These items were examined on April 28, 1998 for bloodstains. Wetting the red shirt completely and using a fluoroscopic process, the police found no blood on the red shirt. The red shirt was subsequently photographed using a tripod that had previously been used at the scene of the crime without using protective coverings for the legs so as to avoid contamination. The white T-shirt had visible bloodstains and was sent to a laboratory for DNA testing. The test excluded Stephanie as the donor. Search of the Crowe house found no physical evidence of Tuite ever having been there. Tuite was a mentally deficient person, without known employment or home, who had been living in the San Diego area. On the evening of January 20, he had bothered three residences as he sought “the girl” or “Tracy.” After Stephanie’s death, he continued this quest during the rest of January, February and March 1998. Sometimes he annoyed residents enough that they called the police. On no occasion was he violent or did he use a weapon. The San Diego District Attorney recused himself. The state Attorney General took over the case. In May 2002, the Attorney General obtained the indictment of Tuite for murder in the first degree. 3 At trial, the state presented evidence that a criminologist in 1999 had retested the red shirt worn by Tuite and found Stephanie’s DNA in a stain on it; in April 2003, a second criminologist had retested Tuite’s white T-shirt and found her DNA on it. The defense countered these reports with expert testimony that the police could have inadvertently contaminated the shirts while they were in their custody as they investigated the case. O’Toole, the F.B.I. expert first retained by the district attorney to prosecute the boys, testified for the defense that in her judgment “the crime scene” reflected organization, that is, control of the victim and of surrounding events and circumstances so that the murder could be brought off without alarming the family members sleeping nearby, and without the murderer leaving fingerprints or the murder weapon. The prosecution rebutted O’Toole with its last witness, Gregg O. McCrary, who had been an agent of the F.B.I. for nearly thirty years, and was now in the business of consulting on criminal behavior. He testified that the crime scene was, on the whole, “disorganized,” reflecting a random attack. The defense moved to impeach McCrary by cross-examining him on a letter he had written, attacking O’Toole’s analysis of the crime scene, accusing her of undermining the prosecution of this case, suggesting that she had acted unethically, and expressing a strong desire that O’Toole be persuaded not to testify at Tuite’s 4 trial. After a hearing outside the presence of the jury, the court excluded the letter and cross-examination based on the letter. McCrary’s excluded letter, dated February 24, 2004, was written to the International Criminal Investigative Analysis Fellowship (ICIAF) about O’Toole’s proposed testimony for the defense, and what he termed “ethical issue[s]” that testimony raised. He wrote that Tuite was the “true killer,” and that he was hopeful O’Toole would not testify. He went on: Neither the San Diego County Sheriff’s Office nor the Office of the Attorney General for the State of California has requested the assistance of the NCAVC [National Center for the Analysis of Violent Crime] or the ICIAF in this matter. Both agencies are shocked and dismayed that Mary Ellen O’Toole, a representative of both the FBI and [the] ICIAF, has injected herself into this case in what they view as an attempt to obstruct justice and undermine the successful prosecution of Richard Tuite. (emphasis added). At the hearing, McCrary admitted that he had not spoken to anyone from the Sheriff’s Office. He also admitted that no	{ "pile_set_name": "FreeLaw" }
22 B.R. 447 (1982) In re Maris K. RINEER and Diane M. Rineer, Debtors. Maris K. RINEER and Diane M. Rineer, Plaintiffs, v. BANK OF the NORTH SHORE, Defendant. Bankruptcy Nos. 82 B 00044, 82 A 1250. United States Bankruptcy Court, N.D. Illinois, E.D. August 17, 1982. E. Paul Rustin, Chicago, Ill., for plaintiffs. Sherwin Willens, Wilmette, Ill., for defendant. MEMORANDUM OPINION FREDERICK J. HERTZ, Bankruptcy Judge. This cause of action comes to be heard on a motion for summary judgment filed by the debtors, Maris and Diane Rineer (hereinafter referred to as plaintiffs) against the Bank of the North Shore (hereinafter referred to as North Shore) to rescind a security interest held by North Shore in the plaintiffs' home. In May of 1978, North Shore financed plaintiffs' purchase of a 1978 Dodge motor home under a retail installment contract. Subsequently, the plaintiffs defaulted on the contract. North Shore notified the plaintiffs that the vehicle would be repossessed unless the arrearages were paid in full. Plaintiffs requested that North Shore refrain from repossessing the vehicle, and North Shore agreed, provided that the plaintiffs give North Shore a second mortgage lien on their home at 6922 Chestnut, Hanover Park, Illinois as additional collateral for the obligation existing under the retail installment contract. On June 3, 1980, the plaintiffs executed an addendum to their original contract which gave North Shore a second mortgage on their home. The plaintiffs executed a Trust Deed-second mortgage, which North Shore recorded in Cook County, Illinois on June 6, 1980. In April of 1981, the plaintiffs, who presumably were either unable or unwilling to make their payments under the contract, voluntarily returned the vehicle to North Shore. In his affidavit, plaintiff Maris Rineer alleges that the transaction in which North Shore obtained a second mortgage on the plaintiffs' home is subject to Regulation Z of the Federal Truth in Lending Act.[1] The 448 plaintiffs further claim that: (1) under Regulation Z, North Shore is required to furnish the plaintiffs with notice of their right to rescind the June, 1980 transaction which resulted in North Shore's acquisition of a second mortgage in the plaintiffs' home, (2) this notice was not given to the plaintiffs, and (3) in October of 1981, the plaintiffs rescinded the transaction through their own Notice of Rescission sent to North Shore. Accordingly, the plaintiffs believe that North Shore's security interest in their home should be set aside. On December 19, 1981, North Shore sold the motor home for $6,250.00, leaving a deficiency due from the plaintiffs in the amount of $10,757.57. North Shore filed a Proof of Claim for this amount in the plaintiffs' Chapter 13 proceeding. North Shore's position is that summary judgment should be denied because the right of rescission under Regulation Z does not apply to a closed end credit transaction where the security interest in a consumer's principal dwelling is acquired as additional collateral after the close of the consumer transaction and is given for a forebearance against repossession of the original collateral. Under Federal Rule of Civil Procedure 56(c), summary judgment should be issued only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of right. Consequently, the issues to be decided by this court are (1) whether there exists a genuine issue of material fact and (2) if not, whether the plaintiffs are entitled to a judgment as a matter of right. The movant bears the burden of proving that no genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Thus, summary judgment may be denied even where the opposing party offers no evidence, if the movant fails to meet his burden. Garza v. Chicago Health Clubs, Inc., 347 F.Supp. 955, 965 (N.D.Ill.1972). Doubts as to the existence of an issue of fact are resolved in favor of the party opposing the motion. If different inferences and conclusions can reasonably be drawn from the facts offered, summary judgment should be denied. Harvey v. Great Atlantic and Pacific Tea Co., 388 F.2d 123, 124-25 (5th Cir. 1968). See also, In re Chong, 16 B.R. 1, 5 (Bkrtcy.Hawaii 1980). In the case at bar, the plaintiffs have merely made a naked assertion that Regulation Z applies to North Shore's acquisition of a security interest in their home. The plaintiffs did not file a brief in support of their position or respond to North Shore's arguments concerning Regulation Z's inapplicability to the transaction herein. Moreover, research indicates that there is considerable doubt whether the transaction constitutes a "credit transaction" under Section 226.9 of Regulation Z. Even if it is a "credit transaction," it may qualify as a type of refinancing agreement which is an exception to the Right to Rescind. See 12 C.F.R. § 226.903 (1982). Since all of these factors indicate that the relationship between the transaction in question and Regulation Z is not clear or certain, reasonable minds can draw different conclusions from the facts offered. Consequently, this court holds that the plaintiffs have not met their burden of proving that no genuine issue of material fact exists. The plaintiffs' motion for summary judgment is denied. North Shore is to prepare a draft order in accordance with this opinion within 5 days.[] NOTES [1] The Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq. (1976), is popularly known as the "Truth in Lending Act." Its purpose "is to improve consumer credit protection through a more informed use of credit." Dumas v. Home Constr. Co. of Mobile, Inc., 440 F.Supp. 1386, 1388 (S.D.Ala.1977). Regulation Z is a body of regulation promulgated by the Federal Reserve Board under the Act. 12 C.F.R. § 226.1 et seq. (1982). [*] This decision is entered in compliance with the stay of enforcement until October 4, 1982 of the United States Supreme Court decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., ___ U.S. ___, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) and the General Order of the United States District Court for the Northern District of Illinois (July 14, 1982).	{ "pile_set_name": "FreeLaw" }
434 So.2d 1031 (1983) Rafael Humberto PALACIOS, Appellant, v. STATE of Florida, Appellee. No. AO-373. District Court of Appeal of Florida, First District. July 22, 1983. Rehearing Denied August 4, 1983. 1032 Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee. ERVIN, Chief Judge. Appellant, Rafael Humberto Palacios, appeals from a conviction for the offense of trafficking in marijuana, contending, inter alia, that the trial court erred in denying his motion to suppress physical evidence seized subsequent to a non-consensual search not incident to arrest. We agree and reverse. The record discloses that Palacios was driving a rental truck north on Interstate 75 in Hamilton County at 4:00 a.m. on December 1, 1981, when he failed to stop at an agricultural inspection station. Inspector Davis, a uniformed officer on duty at the time, saw the truck by-pass the station and accordingly pursued it in an official marked car with blue lights flashing. He stopped the truck some 2 1/2 miles north of the station and then informed the driver, Palacios, first that he was required to stop at the station, and second that he needed to inspect the truck's cargo section. Palacios, a recent Cuban immigrant who speaks only Spanish, said, "No English." Davis again attempted to explain that he needed to inspect the rear of the truck and motioned to Palacios to open the rear door. Palacios complied with Davis' gestures by opening the door. At that point, a second man, Ferrer, who had been following the truck in an automobile, told Inspector Davis that he could not open the boxes in the rear of the truck which, he contended, contained ceramic vases. Davis then informed Palacios and Ferrer to return to the station, where Palacios was again directed, by motions, to re-open the cargo section of the truck. By that time Sheriff's Deputy Beck had approached the open door of the truck, smelled marijuana within it, and proceeded to open the boxes inside it, which were found to contain marijuana. Palacios' motion to suppress alleged that he did not knowingly, freely and voluntarily consent to a search of the truck and that the evidence thus seized was the fruit of an illegal search and seizure. At the hearing on the motion, Palacios testified, through an interpreter, that he believed Inspector Davis had ordered him to open the truck's door; that he did not know he could refuse to obey Davis' order, because in Cuba officers generally have the right to conduct searches without consent, and that, had he known he could lawfully refuse, he would not have opened door to the truck. Ferrer also testified and confirmed the fact that Palacios does not speak or understand English. The trial court denied the motion, finding no coercion because, in its opinion, Inspector Davis was soft spoken, mild mannered and not authoritative. We reverse. Nothing in the record discloses that the state met its burden of proving, by a preponderance of the evidence, that Palacios consented knowingly, freely and voluntarily to the search. See Denehy v. State, 400 So.2d 1216, 1217 (Fla. 1980). In reversing, we adopt the reasoning in our recent decision of Rosell v. State, 433 So.2d 1260, (Fla. 1st DCA 1983), which we find controls the facts in the present case. In this case, as in Rosell, we do not find that Palacios' action, in opening the rear door of the truck upon request, was anything more than mere submission to the apparent authority of Inspector Davis and, as such, was far short of the knowing, free 1033 and voluntary consent necessary to comply with fourth amendment protections. REVERSED. THOMPSON and WIGGINTON, JJ., concur.	{ "pile_set_name": "FreeLaw" }
29 Wn. App. 461 (1981) 629 P.2d 912 THE STATE OF WASHINGTON, Respondent, v. DONALD R. WEDDEL, Appellant. No. 4250-II. The Court of Appeals of Washington, Division Two. May 29, 1981. Stephen Whitehouse, for appellant. Patrick D. Sutherland, Prosecuting Attorney, and Chris Pomeroy, Deputy, for respondent. REED, C.J. Defendant Donald R. Weddel appeals his conviction of second degree burglary. We affirm. On March 18, 1979, Larry and Jacqueline Wassman returned to their home in Lacey and discovered a gray Chevrolet Chevelle in their driveway with a young woman in the front seat. After the Wassmans had a brief conversation with the woman, who indicated that she thought their house was the residence of "the Hansons," a man they later identified as defendant Weddel came out from behind the house. He circled on foot to a vacant lot next to the house and then approached the vehicle, asking if the lot was for sale. After the man and woman left, Mr. Wassman, suspicious because of their inconsistent explanations for being at 463 the house, wrote down the Chevelle's license number, NET 900, and subsequently reported the incident to the police. There was no evidence, however, of any attempted entry to the Wassman residence. On March 19, Paul and Wendy Johnson, returning from a shopping trip, arrived at their home located approximately seven-tenths of a mile from the Wassman residence. As the Johnsons pulled up to their mailbox across the street from their home, they noticed a gray Chevrolet Chevelle, occupied by two persons, leaving their driveway, some 50 to 75 feet from the mailbox. Dr. Johnson noted the Chevelle's license number, NET 900, and got a brief look at the driver. The Johnsons subsequently discovered that someone had stolen two stereo speakers from their living room after kicking open the front door. Kelso police arrested defendant on March 20, apparently because he previously had been convicted of burglary and owned a vehicle matching the license number and description the Wassmans and Johnsons furnished. On March 23, while defendant was in custody, Mrs. Wassman positively identified him from a 6-picture photographic array, and on March 26 Mr. Wassman did likewise. Shown the same series of six pictures on March 23, Dr. Johnson tentatively identified defendant's picture as "the only one that looked like the individual I had seen driving the car." On March 30 the State formally charged defendant with second degree burglary of the Johnson residence. On June 6 an amended information was filed, adding a second count charging attempted second degree burglary of the Wassman residence.[1] Before and during trial, defendant's timely 464 motions pursuant to CrR 4.4 to sever the attempted burglary count were denied.[2] At trial, defendant presented three alibi witnesses who testified they saw him in Longview at approximately the time the Johnson burglary was committed, but he presented no evidence directed to the Wassman attempted burglary count. Defendant did not testify in his own defense. The jury returned a verdict of guilty on the burglary count and not guilty on the attempted burglary count. Defendant appeals from the burglary conviction, assigning error to the trial court's refusal (1) to sever the attempted burglary count; and (2) to suppress Dr. Johnson's photographic identification of defendant conducted while he was in custody. [1] Addressing first the issue of severance, we are mindful that joinder of counts should never be utilized in such a way as to unduly embarrass or prejudice one charged with a crime, or to deny him a substantial right. State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (1968), vacated on other grounds sub nom. Smith v. Washington, 408 U.S. 934, 33 L.Ed.2d 747, 92 S.Ct. 2852 (1972). The determination of whether prejudice resulting from joinder of counts is sufficient to warrant severance, however, is within the discretion of the trial court. State v. Thompson, 88 Wn.2d 518, 564 P.2d 315 465 (1977); State v. McDonald, 74 Wn.2d 563, 445 P.2d 635 (1968). The trial court's exercise of this discretion will be overturned on appeal only upon a showing of manifest abuse. State v. Wills, 21 Wn. App. 677, 586 P.2d 543 (1978), review denied, 92 Wn.2d 1006 (1979). Defendant contends he was prejudiced by joinder of the attempted burglary charge in three ways. First, he argues the jury may have inferred that because he did not deny being at the Wassman residence, he must also have been at the Johnson residence; thus, joinder "confounded and embarrassed" him in his alibi defense to the Johnson burglary charge. Second, he argues the jury may have cumulated evidence of the crimes charged to find him guilty of the Johnson burglary when it might not have so found if the charges had been tried separately. Third, he argues joinder of the charges frustrated his desire to testify concerning the burglary charge but not to testify concerning the attempted burglary charge. [2, 3] We believe the first two of these arguments clearly are without merit and essentially complain of the same harm that in their deliberations on the burglary count the jurors may have considered evidence introduced to prove the attempted burglary. Where the general requirements for joinder are met and evidence of one crime would be admissible to prove an element of a second crime, joinder of the two crimes usually cannot be prejudicial. State v. Pleasant, 21 Wn. App. 177, 583 P.2d 680 (1978), review denied, 91 Wn.2d 1011, cert. denied, Pleasant v. Washington, 441 U.S. 935, 60 L.Ed.2d 664, 99 S.Ct. 2058 (1979); State v. Kinsey, 7 Wn. App. 773, 502 P.2d 470 (1972), review denied, 82 Wn.2d 1002 (1973); State v. Conley, 3 Wn. App. 579, 476 P.2d 544 (1970). The general requirements for joinder of offenses are satisfied in this case because burglary and attempted burglary obviously are offenses "of the same or similar character." CrR 4.3(a). The remaining question, then, is whether evidence of the attempted burglary would have been admissible in a separate trial of the burglary charge. As a general rule, a 466 defendant must be tried for the offenses charged in the information and evidence of other offenses may not be admitted as proof of guilt of the charged offenses if the evidence is relevant only to prove the defendant's criminal disposition. State v. Goebel, 40 Wn.2d 18, 240 P.2d 251 (1952). The general rule excluding evidence of uncharged offenses is subject to certain exceptions, the most common of which involve "other crimes" evidence offered to show (1) motive, (2) intent, (3) absence of accident or mistake, (4) common scheme or plan, or (5) identity. The foregoing list of exceptions is not exclusive, however, and the true test of admissibility is whether the other crimes evidence is relevant and necessary to prove an essential ingredient of the crime charged. See State v. Lew, 26 Wn.2d 394, 174 P.2d 291 (1946); State v. Kinsey, supra; ER 404(b). We believe that evidence of the attempted burglary was admissible to establish defendant's presence in the near vicinity of the burglary a short time before it occurred. See State v. Cartwright, 76 Wn.2d 259, 456 P.2d 340 (1969); State v. Leroy, 61 Wash. 405, 112 P. 635 (1911); State v. Norris, 27 Wash. 453, 67 P. 983 (1902); State v. Hyde, 22 Wash. 551, 61 P. 719 (1900). Defendant's presence in the Johnson neighborhood 1 day before the burglary clearly was relevant to an important issue in the burglary prosecution because defendant lived in the Longview/Kelso area (more than 70 miles south of Lacey) and relied on alibi witnesses placing him in Longview at the time of the burglary as a defense to that charge. Accordingly, because evidence of the attempted burglary would have been admissible in any event in a separate trial of the burglary count, joinder of the two offenses did not unduly prejudice defendant either by undercutting his alibi defense or by permitting the jury to cumulate evidence of separate crimes. We also reject defendant's third argument that joinder effectively denied him the right to testify in his own defense by forcing him to choose between testifying about both crimes or not testifying at all. In support of this argument, he relies principally on Cross v. United States, 335 *467 F.2d 987 (D.C. Cir.1964). In Cross, the court vacated convictions of two defendants and remanded for new trials because it concluded that joinder of counts had been prejudicial within the meaning of rule 14 of the Federal Rules of Criminal Procedure, which is substantially similar to CrR 4.4. The court noted that prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. Cross, 335 F.2d at 989. The defendants in Cross did not specify at trial the counts upon which they wished to remain silent and why, but this apparently was because the trial court insisted that the issue of joinder had	{ "pile_set_name": "FreeLaw" }
Illinois Official Reports Appellate Court In re Marriage of Kiferbaum, 2014 IL App (1st) 130736 Appellate Court In re MARRIAGE OF JUDITH KIFERBAUM, Petitioner-Appellant, Caption and HANAN KIFERBAUM, Respondent-Appellee. District & No. First District, Second Division Docket No. 1-13-0736 Filed September 30, 2013 Held In proceedings that resulted in the trial court granting respondent’s (Note: This syllabus petition for an order of protection under the Illinois Domestic constitutes no part of the Violence Act and then dismissing petitioner’s request for an order of opinion of the court but protection on the ground that the Act prohibits mutual orders of has been prepared by the protection, the appellate court reversed the dismissal of petitioner’s Reporter of Decisions request, since she was seeking a correlative separate order of for the convenience of protection, not a mutual order of protection, and although correlative the reader.) separate orders of protection are not favored, they are allowed if certain requirements are met, and petitioner satisfied those requirements by filing a separate petition, commencing a separate action, filing a written petition, providing notice to all parties, and being prepared to present separate proof supporting her petition. Decision Under Appeal from the Circuit Court of Cook County, No. 09-D-577; the Review Hon. Naomi Schuster, Judge, presiding. Judgment Affirmed in part and reversed in part; cause remanded for further proceedings. Counsel on Jan R. Kowalski, of Chicago, for appellant. Appeal No brief filed for appellee. Panel PRESIDING JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion. OPINION ¶1 On January 23, 2009, petitioner Judith Kiferbaum (Judith) filed the underlying petition for dissolution of marriage from her husband, respondent Hanan Kiferbaum (Hanan). Judith also sought, and was granted, a temporary order of protection on January 23, 2009, and a plenary order of protection on February 4, 2009. With respect to the parties’ abusive behavior toward each other, the parties’ agreed disposition order of June 8, 2009, also restricted contact between the parties. On March 17, 2010, judgment for dissolution of marriage was entered with the issue of maintenance remaining open. ¶2 On June 21, 2012, Judith sought an emergency order of protection against Hanan that was granted and set for further hearing on July 12, 2012. However, that petition was dismissed on July 12, 2012. Also on that date, after the petition was dismissed, Hanan filed an emergency petition for an order of protection against Judith. The trial court found that the petition was not an emergency and set the matter for further hearing. On July 20, 2012, Judith filed a petition for an emergency order of protection that was denied for lack of personal knowledge of Hanan’s alleged conduct. On July 31, 2012, Judith filed the underlying petition for an order of protection. ¶3 An agreed order restraining and enjoining Judith and Hanan from certain locations was entered, the petitions were continued to allow discovery, and the court set a November 30, 2012, hearing date on the “cross petitions for order of protection.” The matter was continued to January 30, 2013, when the trial court granted Hanan’s petition for an order of protection and set argument for Hanan’s motion to dismiss Judith’s amended petition for an order of protection on February 5, 2013. On February 5, 2013, the trial court granted Hanan’s motion to dismiss, finding that the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2010)) does not permit mutual orders of protection. ¶4 Judith argues on appeal that the trial court erred in construing section 215 of the Illinois Domestic Violence Act (750 ILCS 60/215 (West 2010)) in dismissing Judith’s petition. Judith also contends that the trial court abused its discretion in granting Hanan’s petition. For the following reasons, we affirm the judgment of the trial court as to the grant of Hanan’s petition for a protective order and reverse the dismissal of Judith’s petition for a protective order. -2- ¶5 I. BACKGROUND ¶6 Judith and Hanan were married on January 17, 1988, and the marriage was registered in Haifa, Israel. The parties resided in Skokie, Illinois, and had one child under the marriage, born on June 25, 1988. On January 23, 2009, citing irreconcilable differences, Judith filed the underlying petition for dissolution of marriage from Hanan. Judith also filed a petition for an order of protection, a third-party complaint against respondent’s business and banking entities, an emergency ex parte petition for a temporary restraining order, preliminary injunction, and other relief, and a petition for interim prospective attorney fees and costs against Hanan. ¶7 Judith presented an affidavit in support of her petition for an order of protection, testifying to Hanan’s behavior toward Judith at various dates in the prior year that exhibited escalating and repeated abuse and harassment such that Judith feared for her personal safety. Judith averred that Hanan repeatedly yelled at her, telling her that she must follow his rules, and that if she did not comply with his rules and demands he would “screw [her] completely,” humiliate her to her friends and employers, and leave her penniless. Judith also detailed occurrences where Hanan demanded that Judith perform oral sex or she would be responsible for “a bad situation.” Judith testified that for fear of what Hanan might do, she complied with his demand each time while crying throughout the ordeal. Judith also detailed times where Hanan insulted her by yelling at her that she was a “whore” and screaming that she was “only good to suck dick! I give you $4,000 a month for that! I’d be better off to f*** any [other] woman or anybody! I’ll pay any money because it is better than you!” ¶8 The court entered an emergency order of protection against Hanan and set the matter for a hearing on February 13, 2009. On January 27, 2009, Hanan filed an emergency motion to vacate the order of protection and an evidentiary hearing was held on February 4, 2009. Following testimony by both parties, the trial court noted the stark differences in the testimony of the two required a credibility determination and, having observed the witnesses and heard their testimony, found Judith credible. The court concluded that Hanan’s behavior rose to a level of harassment requiring an order of protection. ¶9 The order of protection was subsequently dismissed ab initio by a June 8, 2009, agreed disposition order awarding Judith exclusive possession of the marital residence and an automobile, and also forbidding any harassment or contact between the parties. Despite the order, the parties continued to have acrimonious relations, including numerous instances of damage to Judith’s vehicle requiring various repairs and leading to Judith calling the police. Hanan admitted to one instance of damage to Judith’s vehicle while it was parked at Nordstrom’s at Old Orchard Mall parking lot, whereby Hanan placed bodily fluids including vomit, urine and feces on the driver’s seat. The court entered an order requiring Hanan to have the vehicle cleaned. ¶ 10 On March 17, 2010, judgment for dissolution of marriage was entered with the issue of maintenance for Judith remaining open. The parties continued to maintain an acrimonious relationship, including various cross-allegations of property damage and harassing conduct. On June 21, 2012, Judith filed another emergency petition for an order of protection against Hanan. Judith claimed that Hanan vandalized her vehicle numerous times, vandalized Judith’s storage area at her garage, harassed and threatened her via e-mail, and gave an anonymous complaint to her employer that led to her termination. Judith claimed that she suffered from severe anxiety and lived in fear of Hanan. -3- ¶ 11 At the emergency hearing on the petition, Judith testified to these allegations and the court entered an order prohibiting Hanan from all personal contact with Judith, including by telephone, e-mail and third parties. In addition, Hanan was prohibited from entering or remaining at the Nordstrom store where Judith was employed. The temporary order was effective until July 12, 2012, when a further hearing was set. According to several filings in the record, Judith’s June 21, 2012, petition was dismissed on July 12, 2012. ¶ 12 On the afternoon of July 12, 2012, after the	{ "pile_set_name": "FreeLaw" }
406 F.Supp. 305 (1976) MOBIL OIL CORPORATION, Plaintiff, v. FEDERAL TRADE COMMISSION et al., Defendants. No. 74 Civ. 311. United States District Court, S. D. New York. January 12, 1976. 306 307 308 Donovan, Leisure, Newton & Irvine, New York City, for plaintiff; Andrew J. Kilcarr, Washington, D. C., Charles F. Rice, New York City, Mobil Oil Corp., of counsel. Thomas J. Cahill, U. S. Atty., S. D. N. Y., New York City, for defendants; Gregory J. Potter, Asst. U. S. Atty., Calvin J. Collier, Gen. Counsel, Gerald Harwood, Asst. Gen. Counsel, Robert E. Duncan, Mary L. Azcuenaga, Attys., F. T. C., of counsel. LASKER, District Judge. By letter dated August 22, 1973, Mobil Oil Corporation requested, pursuant to the Freedom of Information Act (FOIA) the opportunity to inspect and copy all communications pertaining to various aspects of petroleum use[1] from January 1, 1970 to August 22, 1973 between the Federal Trade Commission (FTCCommission) and (1) Congress, (2) any federal agency, and (3) any state government or agency. On December 12, 1973, the FTC granted the request in part and denied it in part. Specifically, the FTC granted access to correspondence between the Commission and Congress, and between the Commission and state governments and agencies, except for the portions of the documents which contained identifying details and names of the persons who communicated with government officials. The FTC also refused to disclose staff opinions or theory, and communications between the Commission and other federal agencies. Mobil then filed this suit under the FOIA to compel disclosure of all withheld information. Subsequently, on March 6, 1974, the FTC informed Mobil that certain of the communications between the FTC and the states are part of active investigatory files or contained privileged or confidential material, and, as such, were exempt from disclosure.[2] I. Deletion of Names and Identifying Details in Communications Between the FTC and Congress and the FTC and State Agencies The first category of materials in dispute are letters and other documents 309 which constitute communications between the FTC and Congress, and the FTC and state agencies. Although the Commission released these documents to Mobil, it did so only after blacking out virtually all identifying details including the names of the correspondents. Charles A. Tobin, Secretary of the FTC, justified these deletions by stating that: "The Commission will not release such identifying information because it believes . . . that Citizens have a right to communicate with their government without fear of unwarranted public disclosure." (Letter of December 12, 1975 to Andrew Kilcarr, Ex. E to complaint) The FTC has adhered to this position, which it defends on the basis of what it terms an "informer's privilege" that it asserts is implicit in Exemptions 3, 4 and 7 of the FOIA, 5 U.S.C. § 552(b)(3), (4) and (7). At the outset we reject the agency's argument that the purposes of these three specific provisions of the FOIA may be fused to create by implication an exemption not explicitly stated in the statutory language. As recently as April of this year, the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975) reconfirmed the principal objective of the FOIA which is: "`to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.' S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965); Environmental Protection Agency v. Mink [410 U.S. 73], supra,, at 80, 93 S.Ct. [827], at 832 [35 L.Ed.2d 119] (1973)." According to the language of the FOIA as construed by the Supreme Court, all "identifiable records" must be made available to a member of the public on demand (5 U.S.C. § 552(a)(3)) unless the requested documents fall within one of the Act's nine exemptions. (5 U.S.C. § 552(b)). NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 136-137, 95 S.Ct. 1504. Although the validity of the theory of an "implicit" exemption advanced by the FTC has not been squarely presented to any court, the general philosophy of the FIOA as stated by the court in NLRB v. Sears, Roebuck & Co., supra, the accepted principle that the specific exemptions are to be construed narrowly,[3] and the language of the Act itself make clear that the FTC's justification for deleting identifying details can be sustained, if at all, only on the independent applicability of any of the Act's exemptions to the deletions in question. Each exemption upon which the FTC relies must therefore be individually analyzed to determine whether, as defendants argue, it warrants the erasures made. A. Exemption 3 The Commission relies first upon the argument that Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f) (FTCA), as well as certain of the FTC's rules and regulations, authorize the deletion of confidential matter and that these statutes and rules bring the material within Exemption 3 of the FOIA which protects matters that are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3) The Commission bases its authority to withhold identifying details in part on the strength of Rules 2.2(d) and 4.10(b) of the FTC's Rules of Practice. 16 C.F.R. §§ 2.2(d), 4.10(b). Section 2.2(d) states that the Commission's "general . . . policy" is not to divulge names of complainants "except as required by law." Section 4.10(a) recites the exemptions to the FOIA with the FTC's analysis of those exemptions, adding, at § 4.10(b), that the Commission may delete identifying details from material it 310 makes public if necessary "to prevent clearly unwarranted invasions of privacy." Rather than creating additional criteria for withholding information, these regulations restateand in § 4.10(a) actually recitethe exemptions contained in the FOIA itself. Even if this were not so, however, neither regulations nor guidelines promulgated by a federal agency, can override the language and purpose of a statutory enactment. Exemption 3 permits a refusal to disclose material only where another statute authorizes such action. Thus, the only possible basis for the applicability of Exemption 3 in the circumstances is Section 6(f) of the FTCA (15 U.S.C. § 46(f)) which provides in language the Commission argues to be relevant: "§ 46 Additional powers of Commission The Commission shall also have power (f) Publication of information; reports To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use." The Commission argues that this language authorizes it to determine whether the release of information in its possession would further the public interest. If, as here, the FTC concludes that disclosure of particular documents would not achieve that goal, the agency contends that Section 6(f) prohibits the release of that material, and that it consequently falls within the ambit of Exemption 3 of the FOIA. We disagree. Section 6(f) confers upon the FTC the right to disclose and publish, with few limitations, information it possesses. By its terms, the statute authorizes disclosurenot, as the FTC argues, the refusal to disclose. The sole items that the statute does not authorize the FTC to reveal are trade secrets and names of customers. Those limitations in no way make the statute one which explicitly forbids disclosure of all identifying details and all names of correspondence in communications received by the FTC. The legislative history and judicial construction of Section 6(f) support this interpretation. The Senate debate on the bill which became § 6(f) demonstrates that although the statute embodies guidelines to limit release of certain types of information at the FTC's disposal, the major thrust of the bill was to set forth what material the Commission on its own initiative could make public, not what it could refuse to disclose. In fact, some concern was voiced on the Senate floor that the FTC under this statute would release too much information. See 51 Cong.Rec. 12929 (1914).[4] Similarly, the analysis of § 6(f) by the court in FTC v. Cinderella Career and Finishing Schools, 131 U.S.App.D.C. 331, 404 F.2d 1308 (1968) establishes that the section was aimed at allowing publication and 311 that the limitations on public release set forth in the section were intended to: "	{ "pile_set_name": "FreeLaw" }
754 So.2d 1178 (2000) Reginald Torlentus JOHNSON v. STATE of Mississippi. No. 96-CT-01136-SCT. Supreme Court of Mississippi. January 13, 2000. Thomas M. Fortner, Jackson, Andre' De Gruy, Robert M. Ryan, Jackson, Attorneys for Appellant. Office of the Attorney General by Glenn Watts, Attorney for Appellee. EN BANC. ON WRIT OF CERTIORARI BANKS, Justice, for the Court: ¶ 1. The question presented in this appeal is whether a trial court, when considering peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), may decline to make a factual determination, on the record, of the merits of the reasons provided by a party for those challenges. The Court of Appeals found that the trial court's failure to hold such a hearing was not error. We granted certiorari and, pursuant to Hatten v. State, 628 So.2d 294 (Miss.1993), reverse the judgment of the Court of Appeals and remand this case to the Hinds County Circuit Court. I. ¶ 2. The murder conviction which is the subject of this appeal arose out of an altercation over an allegedly stolen bicycle. Reginald Torlentus Johnson, defendant/appellant, shot and killed William Charleston.[1] 1179 ¶ 3. At trial, after the State had exercised all six of its peremptory challenges to remove blacks from consideration for jury service, the defense raised the issue that the State was exercising its strikes in a discriminatory fashion to systematically exclude these black venire members solely on the basis of race. The State countered that the facts did not establish a prima facie case of discriminatory intent in its exercise of the permitted peremptory challenges. Rather than decide that threshold issue, the trial court simply directed the State to offer race-neutral reasons for the six strikes. The State proceeded to do so. In summary, those reasons offered were as follows: (a) Juror One, Panel One refused to look at the prosecutor and was unresponsive. (b) Juror Six, Panel One's husband was incarcerated in the penitentiary on a drug charge. (c) Juror Nine, Panel One was struck because of age, being twenty-three years old. (d) Juror Ten, Panel One made no direct eye contact and had served on a civil jury that returned a verdict against a police officer. (e) Juror Eleven, Panel One was struck because of age, being twenty-three years old. (f) Juror One, Panel Two was struck because of age, being twenty-nine years old, and because that juror had been on a jury that returned a defendant's verdict in a criminal prosecution. ¶ 4. The defense was then given the opportunity to be heard on the challenges. Defense counsel provided rebuttal on two of the State's peremptory strikes, Juror One, Panel One and Juror Ten, Panel One. Defense counsel's response was to the effect that the reasoning offered by the State was so unsubstantiated that it was offered to hide the discriminatory purpose for the strikes. The trial court announced, without elaboration, that all six peremptory challenges would be permitted to stand. It is that ruling that Johnson raised as error on direct appeal.[2] ¶ 5. The Court of Appeals found the following: (1) the trial court skipped the first step in the Batson analysis when it failed to find that the State's actions amounted to a prima facie case of discrimination before requiring it to provide race neutral reasons for its strikes; (2) this was irrelevant because it was clear from the record that such a prima facie case had been made; (3) the trial court's finding that the peremptory challenges were race neutral would be upheld; and (4) the trial court's finding that the peremptory challenges were sufficiently race neutral to be upheld as non-discriminatory under Batson, would be upheld. Finally, the Court of Appeals found that the trial court's failure to make on the record findings concerning its acceptance of the peremptory strikes was not error despite this Court's decision in Hatten v. State: In reviewing the trial court's decision to accept the State's facially race-neutral reasons as being offered in good faith, we do not find the absence of such detailed findings to be reversible error. The trial court's decision on this aspect of a Batson challenge, as we have observed, involves a subjective analysis of the credibility of the prosecuting attorney. It must be based in substantial part on the trial court's observations of the attorney's conduct and demeanor and may also properly involve other largely intangible and even intuitive considerations. Whether those complex considerations could be articulated with any precision is, in itself, doubtful. 1180 Even if they could, it is equally as doubtful that the resulting information would provide any meaningful assistance to this Court in deciding whether the court abused its discretion. We decline to reverse the conviction on this basis. II. ¶ 6. This Court stated the following in Hatten v. State, 628 So.2d 294, 298 (Miss. 1993): This Court has not directly addressed the issue of whether a trial judge is required to make an on-the-record factual determination of race neutral reasons cited by the State for striking veniremen from a panel. The Batson Court declined to provide specific guidelines for handling this issue. This Court has articulated the general law in this state which provides that "it is the duty of the trial court to determine whether purposeful discrimination has been shown," by the use of peremptory challenges. Wheeler v. State, 536 So.2d 1347 (Miss. 1988); Lockett v. State, 517 So.2d at 1349. In considering this issue, we today decide it necessary that trial courts make an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors. This requirement is to be prospective in nature. Of course, such a requirement is far from revolutionary, as it has always been the wiser approach for trial courts to follow. Such a procedure, we believe, is in line with the "great deference" customarily afforded a trial court's determination of such issues. "Great deference" has been defined in the Batson context as insulating from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d at 1349-50. Accord Willie v. State, 585 So.2d 660, 672 (Miss.1991); Benson v. State, 551 So.2d 188, 192 (Miss.1989); Davis v. State, 551 So.2d 165, 171 (Miss.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 797 (1990); Chisolm v. State, 529 So.2d 630, 633 (Miss.1988); Johnson v. State, 529 So.2d 577, 583-84 (Miss.1988). Obviously, where a trial court offers clear factual findings relative to its decision to accept the State's reason[s] for peremptory strikes, the guesswork surrounding the trial court's ruling is eliminated upon appeal of a Batson issue to this Court. This rule was handed down prospectively. In Bounds v. State, 688 So.2d 1362 (Miss. 1997), the Court found reversible error in part because of the trial court's failure to provide on the record factual determinations for its denial of Bounds's peremptory strikes. ¶ 7. Most recently, in Puckett v. State, 737 So.2d 322, 337 (Miss.1999), this Court found no reversible error on other issues, but remanded for a hearing solely on the Batson question because "the trial judge did not make on-the-record factual determinations and inquiry independently as required by Hatten regarding each peremptory challenge." ¶ 8. We say once again that the rule promulgated in Hatten will be enforced. The judgment of the Court of Appeals is reversed. The case is remanded to the Hinds County Circuit Court for a hearing and findings pursuant to Hatten and Batson. ¶ 9. REVERSED AND REMANDED. PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., AND McRAE, J., CONCUR. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, WALLER AND COBB, JJ. MILLS, Justice, dissenting: ¶ 10. I respectfully dissent from the majority opinion. I would follow the same reasoning stated in my dissent in Berry v. State, 703 So.2d 269, 296-98 (Miss.1997). This Court is fully capable of balancing the Batson factors in many of the cases before us, including this one, and continued remand *1181 of such cases only wastes limited trial court resources and further delays justice. ¶ 11. Therefore, I respectfully dissent. SMITH, WALLER AND COBB, JJ., JOIN THIS OPINION. NOTES [1] For a further description of the events and prior legal proceedings, see the opinion of the Court of Appeals, Johnson v. State, No. 96-KA-01136 COA (Miss.Ct.App.1998). [2	{ "pile_set_name": "FreeLaw" }
Filed 6/23/16 P. v. Montano CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D068098 Plaintiff and Respondent, v. (Super. Ct. No. SCN335761-3) EFRAIN MONTANO, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor, Alana Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION A jury convicted Efrain Montano of two counts of robbery (Pen. Code, § 211). The jury could not reach verdicts on allegations Montano was vicariously armed with a firearm (Pen. Code, § 12022, subd. (a)(1)), and the court subsequently granted the prosecution's motion to dismiss these allegations. However, the court found true an allegation Montano had a prior prison commitment conviction (Pen. Code, § 667.5, subd. (b)). The court sentenced Montano to four years in prison. Montano appeals, contending the court prejudicially erred in instructing the jury with a bracketed paragraph in the CALCRIM No. 400 aiding and abetting instruction intended for use only when the prosecution is relying on the natural and probable consequences doctrine, which the prosecution was not relying on in this case. We conclude the error was harmless and affirm the judgment. BACKGROUND Two women were standing in a parking lot talking when a four-door silver sedan drove in front of them, stopped for a few seconds, and then drove off. A few minutes later, the sedan returned and stopped near them again. Montano got out of the sedan's left rear passenger seat, an accomplice got out of the sedan's front passenger seat, and they approached the two women. The accomplice pointed a gun at the women, told them not to scream, and directed them to hand over their purses.1 Montano took one woman's purse. The accomplice took the other woman's purse. Both women handed over their 1 Police never found the gun. Both women thought it may have been fake. 2 purses because they were afraid for their lives. Montano and the accomplice then got back into the sedan and left. The two women got in a car and tried following the sedan, but they were unable to find it and returned to the parking lot. While they were attempting to follow the sedan, one of the women reported the robbery to police. She described the sedan to a 911 operator, stating there was a football emblem on its gas tank door. The other woman spoke with a police officer at the crime scene. She also described the sedan, indicating it had no license plate, but there was a paper with red, white and black writing in the license plate area. A nearby patrol officer heard a radio call about the robbery, which included the sedan's description. Shortly afterwards, the officer spotted a four-door silver sedan with a football emblem on the gas tank door and paper license plates with red and white lettering. The officer stopped the car and had its three occupants, including Montano and his accomplice, step out of it. At a subsequent curbside lineup, one of the women identified both Montano and his accomplice. The other women identified only Montano's accomplice. A field evidence technician searched the sedan and found one woman's purse and both women's identification and credit cards. The field evidence technician found one woman's wallet and the other woman's purse on the side of the road near the location of the robbery. 3 DISCUSSION I A 1 The prosecution's theories of culpability were that Montano aided and abetted the robbery of one woman and either directly perpetrated or aided and abetted the robbery of the other woman. These theories required the court to instruct on aiding and abetting. (People v. St. Martin (1970) 1 Cal.3d 524, 531 [a court has a sua sponte duty to instruct the jury on the principles of law that are closely and openly connected to the facts of the case and are necessary for the jury's understanding of the case].) The CALCRIM No. 400 instruction on the general principles of aiding and abetting provides: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] [Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]" (Italics added.) The bench notes for the instruction state, "When the prosecution is relying on aiding and abetting, give this instruction before other instructions on aiding and abetting to introduce this theory of culpability to the jury. [¶] . . . [¶] If the prosecution is also 4 relying on the natural and probable consequences doctrine, the court should also instruct with the last bracketed paragraph."2 (Bench Notes to CALCRIM No. 400 (2010 rev.).) 2 Although defense counsel objected to the court's use of the bracketed portion of the instruction on the ground the prosecution was not relying on the natural and probable consequences doctrine, the court overruled the objection stating it did not think the bracketed portion of the instruction addressed the doctrine. Instead, the court thought the bracketed portion of the instruction was factually applicable because one could argue "if [Montano] was aiding and abetting one robbery, [he] might have actually committed another robbery." Consistent with this view, the court recited the entire CALCRIM No. 400 instruction to the jury, including the bracketed paragraph. 2 "The natural and probable consequences route to a finding of criminal liability operates as follows: ' "A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]" [Citation.] Liability under the natural and probable consequences doctrine "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ' [Citation.] In short, natural and probable consequences liability for crimes occurs when the accused did not necessarily intend for the ultimate offense to occur but was at least negligent (from the standard expected of a reasonable person in the accused's position) about the possibility that committing the proximate offense would precipitate the ultimate offense that actually occurred." (People v. Rivas (2013) 214 Cal.App.4th 1410, 1431-1432 (Rivas).) 5 B However, the court's aiding and abetting instructions did not end with CALCRIM No. 400. The bench notes to CALCRIM No. 400 further explained, "If the prosecution's theory is that the defendant intended to aid and abet the crime or crimes charged (target crimes), give CALCRIM No. 401, Aiding and Abetting: Intended Crimes." (Bench Notes to CALCRIM No. 400 (2010 rev.).) "If the prosecution's theory is that any of the crimes charged were committed as a natural and probable consequence of the target crime, CALCRIM No. 402 or 403 should also be given." (Bench Notes to CALCRIM No. 400 (2010 rev.).) Following the bench notes' guidance and based on the prosecution's theory	{ "pile_set_name": "FreeLaw" }
10 N.Y.3d 952 (2008) PATRICIA PREDMORE, Respondent, v. EJ CONSTRUCTION GROUP, INC., Appellant. Court of Appeals of the State of New York. Submitted June 9, 2008. Decided July 1, 2008. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.	{ "pile_set_name": "FreeLaw" }
Case: 16-10806 Date Filed: 08/05/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-10806 Non-Argument Calendar ________________________ D.C. Docket No. 1:15-cr-20404-BB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MATTHEW LEE PRYOR, Defendant-Appellant. ________________________ Appeals from the United States District Court for the Southern District of Florida ________________________ (August 5, 2020) Before WILSON, MARTIN, and ANDERSON, Circuit Judges. PER CURIAM: Matthew Pryor appeals his total 600-month sentence for assaulting a federal officer with a deadly weapon in violation of 18 U.S.C. § 111(a) and (b); possessing Case: 16-10806 Date Filed: 08/05/2020 Page: 2 of 9 and discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii); carjacking in violation of 18 U.S.C. § 2119(1); brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Pryor raises two arguments on appeal. First, he says he should benefit from Section 403 of the First Step Act of 2018, which changed the sentencing scheme for a defendant’s second § 924(c) conviction. Second, he requests remand to the district court for reconsideration of his career offender status in light of Amendment 798 to the Sentencing Guidelines. After careful review, we affirm Pryor’s convictions and sentence and deny his request for remand to the district court. I. Pryor pled guilty to all charges against him in October 2015. Before sentencing, Pryor’s presentence investigation report (“PSR”) determined he was a “career offender” under the U.S. Sentencing Guidelines. The PSR based Pryor’s career offender status on three prior “violent” felony convictions: two Florida convictions for burglary of a dwelling and one Florida conviction for resisting an officer with violence. The PSR also found Pryor was subject to two mandatory consecutive sentences for his two § 924(c) convictions under 18 U.S.C. § 924(c)(1)(A) and (C). 2 Case: 16-10806 Date Filed: 08/05/2020 Page: 3 of 9 The first § 924(c) conviction prescribed a mandatory consecutive sentence of at least 10 years under § 924(c)(1)(A)(iii), and the second § 924(c) conviction mandated a 25-year consecutive sentence under § 924(c)(1)(C)(i). Pryor objected to his career offender designation. He argued that Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act, also applied to the similar residual clause in the Sentencing Guidelines’ career offender provision at U.S.S.G. § 4B1.2(a)(2). Pryor argued his previous burglary convictions no longer qualified as crimes of violence under § 4B1.2(a)(2), and thus he could not be adjudicated a career offender. However, Pryor acknowledged that his claim was foreclosed by United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that Johnson did not invalidate the career offender guideline’s residual clause. See id. at 1195– 96. Citing Matchett, the district court overruled Pryor’s objection to career offender status. Pryor was sentenced in January 2016. He received 180-month terms on both the carjacking and assault charges and a 120-month term for the felon-in- possession charge, all running concurrently. He also received a mandatory consecutive term of 120-months for the first § 924(c) charge of carrying a firearm during a crime of violence, and another mandatory consecutive term of 300- months for the second § 924(c) charge. Pryor’s total sentence was 600-months 3 Case: 16-10806 Date Filed: 08/05/2020 Page: 4 of 9 incarceration. The government timely appealed this judgment, and Pryor cross- appealed. The government dismissed its cross-appeal in December 2018. While Pryor’s appeal was pending, Congress passed the First Step Act of 2018, Pub. L. 115-391. As relevant here, the Act revised the § 924(c) sentencing scheme. It changed the language of § 924(c)(1)(C) to impose a consecutive mandatory 25-year sentence for a second § 924(c) conviction only if a prior § 924(c) conviction was already finalized. Pub. L. 115-391, § 403. In simple terms, the Act did away with the 25-year consecutive sentence requirement for defendants charged with a first and second § 924(c) violation in the same prosecution. See id. II. We review de novo the interpretation of a criminal statute. United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018). Likewise, we review de novo the district court’s determination of career offender status under the Sentencing Guidelines. United States v. Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010) (per curiam). III. A. Pryor argues he should benefit from the First Step Act and be resentenced without a 25-year mandatory minimum sentence for his second § 924(c) violation. 4 Case: 16-10806 Date Filed: 08/05/2020 Page: 5 of 9 The government responds that the First Step Act does not apply to Pryor because he was sentenced by the district court almost three years before the Act was passed and the Act is not retroactive. At the time Pryor was sentenced in January 2016, 18 U.S.C. § 924(c)(1)(C) provided for a 25-year mandatory minimum consecutive sentence if a defendant had “a second or subsequent conviction under [§ 924(c)].” § 924(c)(1)(C) (2012). This subsection imposed the mandatory minimum on a defendant who was convicted of two § 924(c) violations in a single prosecution, as Pryor was. See Deal v. United States, 508 U.S. 129, 132, 113 S. Ct. 1993, 1996 (1993). In December 2018, Congress enacted the First Step Act, Pub. L. No. 115- 391. Section 403 of the Act is titled “Clarification of Section 924(c) of Title 18, United States Code.” Section 403 amended 18 U.S.C. § 924(c)(1)(C) to impose the 25-year minimum sentence only if “a violation of this subsection [§ 924(c)] occurs after a prior conviction under this subsection has become final.” See § 403(a) (emphasis added); 18 U.S.C. § 924(c)(1)(C). Under this new language, Pryor’s two simultaneous § 924(c) convictions would not warrant a 25-year mandatory minimum consecutive sentence. Section 403(b) of the First Step Act explains that the Act applies to “Pending Cases” for “any offense that was committed before the date of the Act, if a sentence for the offense has not been imposed as of such date of enactment.” Pub. 5 Case: 16-10806 Date Filed: 08/05/2020 Page: 6 of 9 L. No. 115-391, § 403(b). Pryor’s crime was committed before the Act was passed in 2018. Pryor acknowledges that he was sentenced nearly three years before the Act was passed. Nevertheless, he says the First Step Act applies to his sentence. He primarily reasons that his sentence has not been “finally imposed” within the meaning of Section 403(b), because his direct appeal is still pending and his sentence has not yet been	{ "pile_set_name": "FreeLaw" }
495 So.2d 481 (1986) Zel THOMAS v. STATE of Mississippi. No. 56394. Supreme Court of Mississippi. September 24, 1986. Lee Calvin Buckley, Holly Springs, for appellant. Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee. Before HAWKINS, P.J., and DAN M. LEE and SULLIVAN, JJ. DAN M. LEE, Justice, for the Court: STATEMENT OF THE CASE Zel Thomas appeals his conviction for simple assault on a police officer. Miss. Code Ann. § 93-3-7 (Supp. 1985). Thomas was tried October 25 and 26, 1984 and was 482 sentenced to five years in the custody of the Mississippi Department of Corrections, with two years suspended upon good behavior. His conviction followed an initial trial which ended in a mistrial. Thomas appeals assigning two errors: I. THE TRIAL COURT ERRED IN ALLOWING, OVER OBJECTION, THE TESTIMONY OF THE STATE'S WITNESSES ROBERT E. NETHERCOTT, OFFICERS FLOYD JENKINS AND RAY RICHARDSON AS TO OTHER CRIMES (DISTURBING THE PEACE, ASSAULT), IF ANY OCCURRING AT THE RESIDENCE OF ROBERT E. NETHERCOTT, PRIOR TO THE OFFENSE FOR WHICH THE APPELLANT WAS INDICTED. II. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE LAW. STATEMENT OF THE FACTS Zel Thomas had his annual back-to-school party July 1, 1983, on his mother's property in Nesbit, Mississippi. The party was outdoors on a baseball diamond and Thomas had live music with 150 to 200 people present. Robert E. Nethercott was a neighbor. He heard the music early in the evening and it was not objectionable at that time. However, after Nethercott went to bed the music seemed to get louder, preventing him from sleeping. Nethercott called the DeSoto County Sheriff's office to complain at least five times. After one of the calls, Sheriffs' deputies arrived at Nethercott's house with Zel Thomas. Nethercott said the initially cordial meeting rapidly deteriorated and Thomas became abusive, threatened Nethercott and had to be restrained by the deputies, who forced Thomas into the patrol car. Deputy Florida (Floyd) Jenkins stated it looked like Thomas "wanted to jump on [Nethercott]," and Jenkins' partner, Deputy Ray Richardson, grabbed Thomas by the arm and put Thomas in the patrol car to "keep them from fighting there." Richardson and Jenkins returned Thomas to his mother's house. Thomas told the deputies to wait because he wanted to call the sheriff. Richardson and Jenkins waited at least 45 minutes, and when Thomas did not return, they left. Nethercott continued to hear the loud music, however, and went to a nearby grocery to meet Judge Perryman and several deputies where he swore out a complaint against Thomas for disturbing the peace. Judge Perryman issued a warrant for Thomas' arrest and several deputies went to the party to arrest Thomas. The circumstances surrounding Thomas' arrest created the only factual dispute in the case. The facts taken in the light most favorable to the state are these: Deputies arrived and Jenkins and another deputy approached Thomas at the band stage and tried to serve the arrest warrant. Thomas didn't want to accept it but the deputies arrested him and placed him in the back seat of Jenkins' car. Thomas had been drinking. Jenkins had smelled alcohol on Thomas when they spoke with him earlier in the evening. Before Jenkins could drive off, someone asked if he could speak with Thomas about some financial arrangements for the party. Thomas had not been handcuffed because he had peaceably gone with police to the car. When Jenkins opened the door to allow Thomas to speak, Thomas jumped from the back seat, striking Jenkins in the head or face, bursting Jenkins' hat and knocking off Jenkins' glasses. Jenkins was not cut nor badly injured but Thomas stayed on top of Jenkins, hitting him and trying to grab Jenkins' gun. Jenkins tried to fend off Thomas by "tapping" him with his flashlight. Jenkins had trouble landing a blow but finally hit Thomas solidly. Thomas required 56 stitches on his forehead and over his eye as a result of the scuffle. Thomas fell to the ground where Deputy Danny Wilson was able to pin Thomas down and handcuff him. Thomas kicked Deputy Wilson in the back during this exchange. Thomas was taken later to the hospital for treatment. Deputy Donnie White transported 483 Thomas from the party and stated that Thomas threatened to kill the officers that "did him wrong." There was no evidence that Thomas had made good on his threat. All of the state's evidence was corroborated in varying detail by testimony from at least one of the deputies at the party; Richardson, Wilson, Donnie White and former deputy Phillip Austein, although only Austein and Richardson corroborated Jenkins' account of who threw the first punch. In questioning Austein and Richardson about the first blow, defense counsel alluded to their testimony at the first trial being different, but their prior testimony was never presented to the jury. The trial court noted that the situation could have been much worse had Thomas gained control of Jenkins' gun, and sentenced Thomas to the maximum sentence of five years with two years suspended upon good behavior. I. DID THE COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF OTHER CRIMES? Thomas argues here that testimony concerning the arrest warrant signed against Thomas, and testimony concerning Thomas' confrontation with Nethercott was improperly admitted evidence of other crimes. Our standard for addressing similar contentions is well settled and well known. In the oft-cited case of Gray v. State, 351 So.2d 1342 (Miss. 1977), this Court stated It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See Smith v. State, 223 So.2d 657 (Miss. 1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 24 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss. 1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). 351 So.2d at 1345. See also, Graves v. State, 492 So.2d 562 (Miss. 1986)); Trunell v. State, 487 So.2d 820 (Miss. 1986); Griffin v. State, 482 So.2d 233 (Miss. 1986); Minor v. State, 482 So.2d 1107 (Miss. 1986). The state correctly points out that it must be allowed to show that the arrest was legal, for this Court recognizes a limited privilege to resist an unlawful arrest. See Watkins v. State, 350 So.2d 1384 (Miss. 1977). This makes evidence of the underlying arrest warrant something akin to evidence of a series of criminal acts which must be proved to make out the offense. Gray, 351 so.2d at 1345. There appears to be no question that evidence of the complaint by Nethercott, the issuance of the arrest warrant and the arrest of Thomas, all fall within the exceptions of Watkins and Gray. Only the evidence of Thomas' aggression towards Nethercott requires discussion. The state cites Gardner v. State, 368 So.2d 245 (Miss. 1979), as controlling on this point. Gardner involved an aggravated assault on a police officer by the defendant who fired at officers as they attempted to serve an arrest warrant. Police obtained the warrant after hearing shots being fired and witnessing the defendant run into his apartment carrying a gun. The warrant was ultimately held invalid and this Court found no error in allowing testimony that the defendant had indeed fired weapons earlier in the evening. The state cites the following language: Gardner next argues the court erred in admitting testimony that he had been drinking and had discharged both a pistol and a shotgun several hours prior to the time he fired through the door. The *484 general rule is that proof of a crime distinct from that charged in the indictment should not be admitted into evidence against an accused. Cummings v. State, 219 So.2d 673 (Miss. 1969). There are, however, exceptions to this rule as noted in Floyd v. State, 166 Miss. 15, 148 So.2d 226 (1933), and which has been elaborated upon in Horton v. State, 288 So.2d 467 (Miss. 1974), as follows: ... [T]hat proof of such other crime is admissible if it sheds light upon the motive for the commission of the crime charged in the indictment. Tanner v. State, 216 Miss. 150, 61 So.2d 781 (1953). Proof that defendant is guilty of another crime is admissible when that fact (1) tends to show that the deceased officer had a right to arrest the appellant without a	{ "pile_set_name": "FreeLaw" }
728 N.E.2d 77 (2000) 312 Ill. App.3d 823 245 Ill.Dec. 346 Clarence KASIN and Paul Kasin, Plaintiffs-Appellants, v. OSCO DRUG, INC., Defendant-Appellee. No. 2-99-0356. Appellate Court of Illinois, Second District. April 12, 2000. Charles A. Cohn, Erwin Cohn, Cohn & Cohn, Chicago, for Clarence Kasin and Paul Kasin. Eric J. Parker, Ridge, Ridge & Lindsay, Waukegan, for Osco Drug Inc., Corp. Presiding Justice BOWMAN delivered the opinion of the court: Plaintiffs, Clarence and Paul Kasin, brought a negligence action in the circuit court of Lake County against defendants, Dr. James A. Gross and Osco Drug, Inc. (Osco). Subsequently, Dr. Gross was dismissed with prejudice. As to Osco, plaintiffs alleged that in dispensing the prescription drug Daypro Osco had negligently advised Clarence Kasin of the side effects of the drug when it failed to advise him "of symptoms to be aware of 78 and possible injury to kidneys and possible renal failure." As a result of taking the drug, Clarence Kasin suffered kidney failure, necessitating a kidney transplant from his brother, Paul Kasin. Osco filed a motion for summary judgment, arguing that, pursuant to the "learned intermediary doctrine," it owed no duty to warn of side effects of a prescription drug. Additionally, Osco argued that its voluntary undertaking to warn of some side effects of a drug did not create a duty to warn of all side effects. The trial court granted Osco's motion and entered summary judgment in its favor. Plaintiffs filed a timely notice of appeal. On appeal plaintiffs contend that the trial court erred in granting summary judgment in favor of Osco because (1) Osco's voluntary undertaking to provide an information or warning sheet with the prescription drug Daypro removed it from the protection of the learned intermediary doctrine and (2) by voluntarily undertaking to warn of certain side effects of Daypro, Osco became obligated to warn of all side effects of the drug. On or about May 23, 1995, Clarence Kasin visited Dr. James Gross for treatment of a swollen right ankle. Kasin had never previously seen Dr. Gross. Prior to his visit to Dr. Gross, Kasin had had no health problems and had received no medical treatment for nearly 25 years except for flu in March 1995. As a result, Kasin had no medical history. Dr. Gross prescribed Daypro to reduce the swelling in Kasin's ankle. Kasin had the prescription filled at the Osco pharmacy in Round Lake Beach. When he received his medication, he also received and read an information sheet about the medication. That sheet included the following information: "COMMON USES OF THIS DRUG: For arthritic conditions, pain, inflammation, fever. HOW SHOULD I TAKE IT? Take with food or antacid to reduce stomach upset. Avoid alcohol or aspirin. Follow doctor's instructions. Report other drugs you take/diseases you have. ARE THERE ANY SIDE EFFECTS? Very unlikely, but report: Eye/ear problems, change in urine color, bloody stools, difficulty breathing, mental changes." No discussion occurred between Kasin and the pharmacist regarding the side effects or risks associated with Daypro. At his deposition, Kasin acknowledged that he relied on his doctor rather than on Osco to advise him of any risks associated with taking the drug. Kasin took Daypro for 10 days. During the first nine days, he experienced no side effects and felt normal. On approximately the tenth day, Kasin noticed that he lacked energy and that his stools were black. Later that day, Kasin collapsed. He was taken to Harvard Community Hospital and then transported to Condell Medical Center, where he was diagnosed with three ulcers and renal failure. At Condell, Kasin learned for the first time that he had been born with only one functioning kidney, which had now failed. Kasin was placed on dialysis and, subsequently, underwent a kidney transplant in December 1995. Kasin's brother, Paul, provided the donated kidney. On May 27, 1997, plaintiffs filed their negligence action. Subsequently, Osco filed its motion for summary judgment, which the trial court granted. This appeal ensued. The purpose of summary judgment is not to try an issue of fact but to determine if one exists. Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 31, 178 Ill.Dec. 763, 605 N.E.2d 557 (1992). Summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits presented, show that there is no genuine issue of material fact and the moving party is entitled 79 to judgment as a matter of law. Cramer v. Insurance Exchange Agency, 174 Ill.2d 513, 530, 221 Ill.Dec. 473, 675 N.E.2d 897 (1996). The existence of a duty owed by the defendant to a plaintiff is a question of law that may be determined on a motion for summary judgment. Jacob v. Greve, 251 Ill.App.3d 529, 534, 190 Ill.Dec. 671, 622 N.E.2d 81 (1993). This court's review of the trial court's ruling on a summary judgment is de novo. Country Mutual Insurance Co. v. Hagan, 298 Ill. App.3d 495, 500, 232 Ill.Dec. 433, 698 N.E.2d 271 (1998). Plaintiffs first contend that Osco's voluntary undertaking to provide an information or a warning sheet with a prescription drug removed it from the protection of the "learned intermediary doctrine." The learned intermediary doctrine provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of a drug's known dangerous propensities and that physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 517, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). The doctrine precludes the imposition of a duty upon drug manufacturers to warn patients directly. Kirk, 117 Ill.2d at 519, 111 Ill.Dec. 944, 513 N.E.2d 387. The doctrine also has been applied to exempt pharmacies and pharmacists from giving warnings to patients. See Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518 (1993); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758 (1988). Plaintiffs concede that absent Osco's voluntary undertaking it would have been shielded from liability by the learned intermediary doctrine but argue that because Osco voluntarily undertook to warn of some side effects of Daypro it was removed from the protection of the doctrine. Conversely, Osco maintains that pursuant to our supreme court's decision in Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 178 Ill.Dec. 763, 605 N.E.2d 557 (1992), it was protected by the doctrine. In Frye a pharmacist voluntarily undertook to affix to a prescription drug a label warning that the medicine might cause drowsiness. The plaintiff sued both the pharmacy and the pharmacist under a voluntary undertaking theory of liability. The plaintiff acknowledged that neither the pharmacy nor the pharmacist had the duty to warn of the dangerous side effects of the medication but argued that once they undertook to warn of dangerous side effects they undertook to warn of all potential dangers involved in taking the drug. The supreme court rejected plaintiff's argument and found that the defendants' liability depended upon the extent of their undertaking. Osco asserts that the court in Frye determined that a pharmacist was still protected by the learned intermediary doctrine even though the pharmacist offered a warning to a consumer of a drug's dangerous propensities. To support this assertion Osco relies on a statement made by the Frye court, in dicta. The statement followed the court's rejection of the plaintiff's argument that the pharmacist's placement of a "drowsy eye" label on the prescription drug container might mislead a consumer into believing that drowsiness was the only side effect of the drug. The court stated: "In our opinion, consumers should principally look to their prescibing physician to convey the appropriate warnings regarding drugs, and it is the prescribing physician's duty to convey these warnings to patients." Frye, 153 Ill.2d at 34, 178 Ill.Dec. 763, 605 N.E.2d 557. In so stating, the court made no reference to the learned intermediary doctrine. Given the context in which the statement was made, we are not persuaded that the statement indicated that the court had concluded that a pharmacist is protected by the learned intermediary doctrine even if the pharmacist voluntarily undertakes to warn a consumer of some side effects. *80 Other portions of the court's opinion actually support an opposite conclusion. In particular, the court's explanation of the voluntary undertaking theory of liability and its citation of section 323 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 323 (1965)), which espouses that theory (see Frye, 153 Ill.2d at 32, 178 Ill.Dec. 763, 605	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6284 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRYL EUGENE WILLIAMSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:97-cr-00181-NCT-1) Submitted: June 16, 2011 Decided: June 20, 2011 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Darryl Eugene Williamson, Appellant Pro Se. Robert Michael Hamilton, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Darryl Eugene Williamson appeals the district court’s judgment denying his 18 U.S.C. § 3582(c) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we deny Williamson’s motion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Williamson, No. 1:97-cr-00181- NCT-1 (M.D.N.C. Feb. 7, 2011). 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	{ "pile_set_name": "FreeLaw" }
16-3215-cv Thomas v. N.Y.C. Dep’t of Educ. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of October, two thousand seventeen. PRESENT: Peter W. Hall, Christopher F. Droney, Circuit Judges, Laura Taylor Swain,* District Judge. _____________________________________ Michael P. Thomas, Plaintiff - Appellant, v. 16-3215-cv New York City Department of Education, Richard J. Condon, Special Commissioner of Investigation for the * Judge Laura Taylor Swain, of the United States District Court for the Southern District of New York, sitting by designation. New York City School District, Gerald P. Conroy, Michael Salek, Charles Kwan, Stephen Koss, David J. Jimenez, Defendants - Appellees. _____________________________________ FOR APPELLANT: MICHAEL P. THOMAS, pro se, New York, New York. FOR DEFENDANTS-APPELLEES: JOHN K. CROSSMAN, Zukerman Gore Brandeis & Crossman, LLP, New York, New York. MEGAN E.K. MONTCALM, Assistant Corporation Counsel (Fay S. Ng, Assistant Corporation Counsel, on the brief), for Zachary Carter, Corporation Counsel of the City of New York, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Furman, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Michael Thomas, proceeding pro se, sued the New York City Department of Education (“DOE”), officials from the DOE and the Manhattan Center for Science of Mathematics (“MCSM”) (the school at which Thomas formerly taught), and MCSM’s former PTA president, asserting a First Amendment retaliation claim under 42 U.S.C. § 1983. Thomas appeals from the district court’s dismissal of his complaint as barred by the applicable three-year statute of limitations, and its determination that equitable tolling did not apply to toll the statute of limitations. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court’s decision to grant a motion to dismiss, including its interpretation and application of a statute of limitations. See City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011) (citations omitted). Where, as here, the district court has applied the correct legal standards and based its decision on findings of fact that were supported by the evidence, we review the denial of equitable tolling for abuse of discretion. Belot v. Burge, 490 F.3d 201, 206 (2d Cir. 2007). To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At oral argument Thomas conceded that his claim against Mr. Michael Salek was untimely. Thomas also agreed with Defendants-Appellees that his claims against David Jimenez and Charles Kwan, with respect to their allegedly false allegations and request for a psychological evaluation, were untimely. Thomas also conceded that his Monell claim against the New York City Department of Education was untimely. We will consider Thomas’s remaining claims on appeal. 3 The district court properly dismissed Thomas’s complaint, and we affirm for substantially the reasons stated by the district court in its August 31, 2016 decision. As the district court reasoned, Thomas’s cause of action accrued, at the latest, in 2010, when he had a “complete and present cause of action” for First Amendment retaliation. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015); see also Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (per curiam) (outlining the elements for a First Amendment retaliation claim). Equitable tolling did not apply because “accrual of a cause of action based on specific acts of which a plaintiff was aware cannot be postponed, nor can a limitations period be tolled, simply be alleging that the acts were taken pursuant to a conspiracy.” Pearl v. City of Long Beach, 296 F.3d 76, 87 (2d Cir. 2002) (citations omitted). Because the district court properly dismissed Thomas’s complaint as untimely, we need not consider whether his claims were meritorious or barred by the doctrine of res judicata. The judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 4	{ "pile_set_name": "FreeLaw" }
878 F.2d 1439 U.S.v.Dunlap (William E.) NO. 88-3196 United States Court of Appeals,Ninth Circuit. JUL 07, 1989 1 Appeal From: W.D.Wash. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 15, 2017 Plaintiff-Appellee, v No. 331343 St. Clair Circuit Court ROBERT ALEXANDER WORLEY, LC No. 15-001711-FC Defendant-Appellant. Before: SHAPIRO, P.J., and GLEICHER and O’BRIEN, JJ. PER CURIAM. Defendant appeals his jury convictions of four counts of first-degree criminal sexual conduct, MCL 750.520b(1)(b). The trial court sentenced defendant to a prison term of 15 to 30 years for each conviction, to be served concurrently. We affirm. The 43-year-old defendant was convicted of sexually abusing JV, the daughter of his former live-in girlfriend, in their family home in St. Clair County. Defendant began dating JV’s mother in 1992, when JV was two years old. Defendant and JV’s mother thereafter had two children of their own. JV, aged 25 at the time of trial, testified that from ages 11 to 19, defendant continuously engaged her in sexual acts. JV testified that defendant penetrated her vagina with his penis and engaged her in oral and anal sex. The sexual assaults began in 2001, when the family lived in Oklahoma. The four charged offenses occurred in October 2005 through June 2006, when then 15-year-old JV and her family lived in St. Clair County. In June 2006, defendant and JV’s mother separated, and JV, and her two younger half-siblings, moved with defendant from St. Clair County. At age 16, JV became pregnant by defendant, and she gave birth to a son in March 2007. By this time, defendant, JV, and other members of defendant’s family had moved to Tennessee. At age 18, JV again became pregnant by defendant, and their second child was born in April 2009. In 2010, JV and her two children returned to Michigan. JV ultimately disclosed the incidents to a counselor and then made a complaint to the St. Clair police in March 2011. Defendant was not arrested until 2015. In the interim, defendant and JV had some communications, and JV allowed defendant to take their children to Tennessee in 2014. The defense theory at trial was that defendant did not do anything inappropriate and that JV’s testimony was not credible. At trial, defendant maintained that he first had sex with JV when she -1- was 16 years old, which was consensual, and did not engage in any other sexual acts with her until they began a consensual relationship when she was 18 years old. I. PREARREST DELAY Defendant first argues that his right to due process was violated because the four-year delay between the reporting of the offenses in 2011, and his arrest in 2015, caused substantial prejudice to his ability to defend himself. He argues that the trial court erred in denying his motion to dismiss based on this issue.1 “A prearrest delay that causes substantial prejudice to a defendant’s right to a fair trial and that was used to gain tactical advantage violates the constitutional right to due process.” People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014). “Defendant must present evidence of actual and substantial prejudice, not mere speculation.” Id. To be substantial, the prejudice to the defendant must have meaningfully impaired his ability to defend against the charges such that the outcome of the proceeding was likely affected. People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009). Mere speculation that the delay caused lost memories, witnesses, or evidence does not establish actual and substantial prejudice. Woolfolk, 304 Mich App at 454. If a defendant establishes actual and substantial prejudice, the prosecution then bears the burden of establishing that the reason for the delay was sufficient to justify that prejudice. Patton, 285 Mich App at 237. Defendant claims that he was prejudiced by the four-year delay because he lost text messages, cards, and “love letters” from JV that could have undermined her claim that she feared defendant. Initially, defendant contends that those communications were made between 2010 and 2015. The four-year delay would not have affected his efforts to retrieve any of the later communications. More significantly, defendant has not demonstrated substantial prejudice. The unavailability of evidence alone is insufficient to show that defendant suffered actual and substantial prejudice, Woolfolk, 304 Mich App at 454, and defendant has made no showing that evidence that JV communicated favorably with him between 2010 and 2015 would have exonerated him. Indeed, the defense used other means to argue that JV was not fearful of defendant, including the fact that she chose to live with him over her mother, began a relationship with him after she turned 18, allowed him to take physical custody of their children, and gave him and his wife tattoos. The loss of the letters, assuming they existed, is not sufficient to satisfy the actual and substantial prejudice requirement. Defendant also claims that he was prejudiced by the delay because of the death of his sister, Cynthia McElhaney. Defendant indicates that Cynthia, who lived in the same household as defendant and JV at certain periods, would have “testified regarding the complainant’s veracity.” Preliminarily, defendant fails to indicate when Cynthia died. Moreover, Cynthia was 1 Whether a prearrest delay violated a defendant’s right to due process is reviewed de novo. People v Reid (On Remand), 292 Mich App 508, 511; 810 NW2d 391 (2011). We review a trial court’s ruling regarding a motion to dismiss for an abuse of discretion. People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes. Id. (quotations and citation omitted). -2- only one of several relatives who lived in the same household. The defense presented several of the other live-in relatives, including a different sister, an adult nephew, and defendant’s daughter, who testified about their observations and opinions that JV was not truthful. The record fails to disclose that Cynthia’s unavailability impaired defendant’s ability to defend against the charges to an extent that the outcome of the proceeding was likely affected. Defendant lastly argues that he was prejudiced by the delay because of his own inability “to remember the names of potential witnesses who knew [JV] during the relevant times at issue and who could offer testimony regarding the veracity of [JV].” But again, general allegations of prejudice caused by delay, such as the unspecified loss of memory, are insufficient to show that a defense was affected. Woolfolk, 304 Mich App at 454. Defendant has failed to show that his alleged loss of memory resulted in any meaningful impairment of his defense. The trial court did not abuse its discretion in denying defendant’s motion to dismiss based on the prearrest delay. II. OTHER ACTS EVIDENCE Defendant argues that the trial court erred by admitting evidence of other uncharged acts that occurred when JV was between 11 and 15 years old, contrary to MCL 768.27a and MRE 404(b).2 MCL 768.27a provides that “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.” In this narrow context, evidence of a defendant’s propensity to commit a crime is permitted, so long as it does not violate MRE 403. People v Watkins, 491 Mich 450, 470, 481-483; 818 NW2d 296 (2012); MRE 401. MRE 403, excludes relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403; Watkins, 491 Mich at 481. Unfair prejudice exists where there is “a danger that marginally probative evidence will be given undue or pre-emptive weight by the jury” or “it would be inequitable to allow the proponent of the evidence to use it.” People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995); People v McGuffey, 251 Mich App 155, 163; 649 NW2d 801 (2002). When applying MRE 403 to evidence in the context of MCL 768.27a, “courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.” Watkins, 491 Mich at 487. Courts should consider the following factors when deciding whether to exclude other-acts evidence under MRE 403 as being overly prejudicial: 2 The trial court ruled that the other acts evidence	{ "pile_set_name": "FreeLaw" }
371 F.Supp. 437 (1974) CENTRAL GMC, INC. v. E. T. & T. LEASING, INC. Civ. No. 73-880-K. United States District Court, D. Maryland. January 10, 1974. Charles Cahn, II, Baltimore, Md., for plaintiff. Martin J. Alperstein, Baltimore, Md., for defendant. MEMORANDUM AND ORDER FRANK A. KAUFMAN, District Judge. On May 11, 1973, plaintiff, a Maryland corporation, instituted suit for breach of contract against defendant, also a Maryland corporation, in the United States District Court for the District of Columbia, seeking damages in the amount of $86,245.56. From February 1, 1971 until July 31, 1973, the United States District Court for the District of Columbia had jurisdictionpursuant to D.C.Code § 11-501 which provides in relevant part: In addition to its jurisdiction as a United States district court and any other jurisdiction conferred on it by law, the United States District Court for the District of Columbia has jurisdiction of the following: * * * * * * (4) Any civil action (other than a matter over which the Superior Court of the District of Columbia has jurisdiction under paragraph (3) or (4) of section 11-921(a) ) begun in the court during the thirty-month period beginning on such effective date wherein the amount in controversy exceeds $50,000. On July 31, 1973, the District Court for the District of Columbia ordered, inter alia, transfer of this case to the United States District Court for the District of Maryland. Plaintiff does not allege and there does not exist jurisdiction in this case under 28 U.S.C. § 1331. Plaintiff does allege jurisdiction under 28 U.S.C. § 1332 but such allegation would appear completely erroneous in view of the agreement between the parties that both of them are Maryland corporations. The fact that the principal offices of the 438 parties may be in different states of course does not provide a basis for diversity jurisdiction under Section 1332 when both have been incorporated in the same jurisdiction. C. Wright, Law of Federal Courts § 27 (2d ed. 1970). Nor does any other federal jurisdiction exist in this case in this Court which the Congress has created pursuant to Article III of the Federal Constitution. The jurisdiction conferred by the Congress upon the United States District Court for the District of Columbia does not in any way establish any additional jurisdiction in this Court, and the parties may not do so by virtue of mere change in venue. Section 1404(a) of 28 U.S.C. permits change of venue only to a court in which the suit "might originally have been brought." Since this case could not have been brought in this Court, the District Court for the District of Columbia had no power to transfer this case to this Court under Section 1404(a). Rice v. Disabled American Veterans, 295 F.Supp. 131, 135 (D.D.C., 1968); Russell v. Cunningham, 191 F.Supp. 82 (D.Guam 1961). In Rice, Judge Robinson concluded that "the District Court for the District of Columbia has only local jurisdiction in this case and not federal jurisdiction. Thus, the only federal district court in which the action might have been brought is in the District of Columbia." 295 F.Supp. supra at 132. * * The rationale is undoubtedly that since the relevant federal venue statute provides that an action may be transferred only to a district "where it might have been brought," 28 U.S. C. § 1404(a), and since actions brought only under the local jurisdictional statute could not have been brought in any federal district court other than the one in the District of Columbia, there is no federal district court in the country to which this action might be transferred under 28 U.S.C., Section 1404(a). 295 F.Supp. supra at 135. Accordingly, no subject matter jurisdiction exists in this Court. It may be that this Court, lacking subject matter jurisdiction, may well not have the power to transfer this case back to the United States District Court for the District of Columbia.[1] Under the circumstances, in order that plaintiff may have opportunity to find a forum for this suit, this Court will not enter an order of dismissal for lack of jurisdiction for 30 days, so that plaintiff may seek, pursuant to Fed.R. Civ.P. 60(b), an order from the District Court for the District of Columbia rescinding, nunc pro tunc, as of July 31, 1973 a date when that Court had jurisdiction over this case [2] its 1404(a) transfer Order of that date. Should that Court so rescind its said Order, such action would mean that this case no longer will be pending in this Court. For that reason, this Court at that time would instruct the Clerk of this Court to close this file in this case in this Court. It is so ordered, this 10th day of January, 1974.[] NOTES [1] No federal statute would appear specifically to confer authority upon this Court to transfer this case back to that transferor court. Neither 28 U.S.C. § 1406(a) nor 28 U.S.C. § 1406(c) is applicable. 28 U.S.C. § 1447, however, confers remand authority after removal from a state court. While that statute makes no reference to a remand after a transfer under 28 U.S.C. § 1404(a), it is to be noted that the transferor Court itself had only "state-type" jurisdiction in this case. [2] Cf. Drabik v. Murphy, 246 F.2d 408, 410 (2d Cir. 1957) (Hand, J.). [] On January 21, 1974, the United States District Court for the District of Columbia rescinded, nunc pro tunc, as of July 31, 1973, its earlier transfer Order of that latter date. Accordingly, on January 23, 1974, this Court directed its Clerk to close the file in this case.	{ "pile_set_name": "FreeLaw" }
446 F.Supp. 733 (1978) QUICK SHOP MARKETS, INC., Plaintiff, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants. Wanda YOUNG et al., Plaintiffs, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants. Nos. 75-659C(3) and 75-605C(3). United States District Court, E. D. Missouri, E. D. March 20, 1978. 734 Sidney Fortus, Fortus & Anderson, Clayton, Mo., for plaintiff in No. 75-605C(3). C. A. Kothe, Jerry R. Nichols, Richard L. Barnes, Kothe, Nichols & Wolfe, Inc., Tulsa, Okl., John F. McCartney, Hirsch & McCartney, St. Louis, Mo., for plaintiff in No. 75-659C(3). Clyde E. Craig and Harry H. Craig, St. Louis, Mo., for defendants Dorsey and Joint Counsel of Teamsters # 13. John H. Goffstein, Bartley Goffstein, Bollato & Lange, St. Louis, Mo., for defendants Local 655 and Jack Valenti. Jerome A. Diekemper, Bartley, Goffstein, Bollato & Lange, St. Louis, Mo., for defendants Retail Clerks International Assn., James T. Housewright and Retail Store Employees Union Local # 655. Harry H. Craig, Wiley, Craig, Armbruster, Wilburn & Mills, St. Louis, Mo., and Robert M. Baptiste, Washington, D. C., for defendants Frank E. Fitzsimmons and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. MEMORANDUM NANGLE, District Judge. Plaintiff Quick Shop Markets, Inc. brought this suit pursuant to 29 U.S.C. § 187, seeking damages for an alleged violation of § 8(b)(4) of the Labor Management Relations Act, 29 U.S.C. § 158. Plaintiff Wanda Young and twenty-seven other individuals who are franchisees of plaintiff Quick Shop Markets, Inc. brought similar suit. These causes were consolidated by order of this Court dated March 25, 1976. By agreement of the parties, the trial herein was bifurcated; evidence was adduced only on the issue of liability and the out-of-pocket losses incurred by plaintiff-franchisees. The sole issue before the Court at this time is liability. This case was tried before the Court without a jury. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, the stipulations of the parties and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure: FINDINGS OF FACT 1) Plaintiff Quick Shop Markets, Inc. is a corporation organized and existing pursuant to the laws of the state of Missouri. It is engaged in the business of selling food and grocery related products to the public. The remaining plaintiffs are all sole proprietorships with their principal place of business in the state of Missouri, engaging in the retail sale of consumer merchandise. These plaintiffs are all franchisees of plaintiff Quick Shop Markets, Inc. [hereinafter "QSM"]. Defendants Retail Clerks International Association and Retail Store Employees Union, Local 655 are unincorporated associations and labor organizations within the meaning of 29 U.S.C. § 152(5). 2) Since November 12, 1971, defendant Retail Store Employees Union Local 655 [hereinafter "Local 655"] has been the collective bargaining representative of QSM, as certified by the National Labor Relations Board, in a single bargaining unit consisting of: All employees of the Employer [Quick Shop Markets, Inc.] employed at its retail stores located in the Metropolitan St. Louis area of St. Louis City, St. Louis County, Jefferson County, and St. Charles County, Missouri, including warehousemen, but EXCLUDING store managers, assistant store managers, temporary summer employees, office clerical and professional employees, guards and supervisors as defined in the Act. 3) QSM refused Local 655's demand for negotiations following certification and an unfair labor practice charge, alleging an unlawful refusal to bargain, was filed by Local 655 on January 8, 1973 with the National 735 Labor Relations Board. On July 23, 1973, the Board issued a Decision and Order granting summary judgment against QSM, and ordering it to cease its refusal to bargain. Upon QSM's refusal to comply, the Board petitioned the United States Court of Appeals for the Eighth Circuit for an Order of Enforcement. Said order was issued on March 15, 1974 and a petition for a writ of certiorari was denied by the United States Supreme Court on November 25, 1974. 4) Thereafter, representatives of QSM and Local 655 met for the purposes of negotiating the terms of a collective bargaining agreement. Meetings were held on January 27, 1975; February 17, 1975; April 1, 1975; June 12, 1975; June 26, 1975; September 2, 1975; and October 7, 1975. At the first meeting on January 27, 1975, the attorney for QSM announced that some stores in the area had been franchised and that he did not represent the franchised stores. A copy of the franchise agreement and a list of the franchised stores were requested by Local 655. The list of franchised stores was provided at the February 27, 1975 meeting. An unexecuted copy of the Franchise Agreement form was provided at the April 1, 1975 meeting. 5) QSM commenced franchising stores in November, 1972. One store was franchised in 1972. Three were franchised in 1973. Ten stores were franchised in 1974. Thirty stores were franchised in 1975. The evidence failed to establish the franchising commenced as a result of QSM unionization. Although some evidence was presented tending to indicate that QSM commenced franchising as a result of unionization, the Court finds that the credible evidence totally fails to establish the same. 6) The franchise agreements between QSM and plaintiff-franchisees provides that the franchisees are independent contractors of QSM. The franchisees exercise sole control over their employees, including the right to hire, fire, discipline, compensate and schedule work. The franchisees pay the cost of the state unemployment insurance, social security compensation and workmen's compensation insurance. In consideration of the lease, trademark license and services provided by QSM, the franchisees agree to pay QSM 55% of gross profits realized each calendar quarter. QSM charges the franchisees certain fixed costs including cost of plans, specifications, selection of location and supervision of lease arrangement, initial cash register fund and costs of opening inventory. The franchisees paid from $1,000 to $10,000 in cash to QSM for such costs and tendered promissory notes for the remainder. Franchisees were required to obtain all licenses and business permits, and to pay sales and business taxes and all taxes on inventory and personal property. Under the agreement franchisees are not required to purchase from vendors recommended by QSM, to purchase only that merchandise suggested by QSM, or to sell at prices suggested by QSM. In some cases, franchisee stores are in competition with QSM stores. 7) The franchise agreement establishes an "Owners Working Fund", maintained by QSM, for each franchisee. The fund is debited with the unpaid balance of the franchisee's initial costs and expenses subsequently incurred for the purchase of merchandise and operating costs. The fund is credited with cash receipts deposited on a daily basis by the franchisees. A bookkeeping service is furnished by QSM for the franchisees. On a semi-monthly basis, QSM remits to the franchisees a draw on anticipated profits, debiting the "Owners Working Fund." 8) The franchise agreement may be terminated at any time by the franchisee upon 48 hours' notice. QSM may terminate without cause upon 30 days' notice, or upon 48 hours notice if the franchisee's net worth falls below $3,000, the franchisee fails to make required deposits and reports, bankruptcy is filed, or the franchisee abandons the business. 9) At the commencement of each franchise, most of plaintiff-franchisees were requested by QSM not to initially hire more than 50% of the employees formerly employed by QSM. Most of the franchisees were not sure of the reasons for this request: *736 some thought it was because QSM needed these employees elsewhere; some thought it had something to do with a labor dispute or union. Any employees who went to work for the franchisees first terminated their employment with QSM. The franchisees have not hired a majority of the employees in the QSM certified collective bargaining unit, either collectively or cumulatively. 10) After the hiring of the initial complement of employees, each franchisee hired and fired employees without the approval or authorization of QSM. Each received a manual but was free to depart from its terms, provided that such departure did not violate the franchise agreement. QSM supervisors would visit with each franchisee a few times per week, for short periods of time. These supervisors often made suggestions but the franchisees were free to, and did, ignore the suggestions. Most but not all of the franchisees participated in QSM advertisements; they were not, however, required to do so. QSM suggested prices for merchandise but the franchisees were free to, and did, modify these prices. QSM provided a list of suppliers but the franchisees were free to obtain supplies from suppliers not on the list. No franchisee made arrangements with QSM to do	{ "pile_set_name": "FreeLaw" }
774 F.2d 1161 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Thomas Barwin, Plaintiff-Appellant,v.Leo LaFlamme, Defendant-Appellee. No. 85-1109 United States Court of Appeals, Sixth Circuit. 9/27/85 E.D.Mich. 772 F.2d 905 VACATED AND REMANDED ORDER BEFORE: MERRITT, MARTIN and CONTIE, Circuit Judges. 1 On August 26, 1985, we entered an order dismissing plaintiff's appeal pursuant to Rule 9(d)(1), Rules of the Sixth Circuit, on the ground that the order appealed from was not final. For the reasons that follow, we vacate our order of August 26, 1985, and remand the case to the district court for proceedings consistent with this opinion. 2 The record reveals that on April 12, 1984, the district court dismissed the case without prejudice due to plaintiff's failure to appear for a scheduling conference. On April 23, plaintiff moved for reinstatement. The district court docket sheet indicates that a hearing on the motion to reinstate was held on June 7, and that the motion was granted that same day. On December 7, plaintiff moved the district court to enter an order of reinstatement, claiming that 'his office inadvertently neglected to present orders for entry.' On January 7, 1985, the district court denied plaintiff's motion. 3 Subsequent to our order of August 26, Judge Gilmore indicated, by letter to the court, that, although he had orally ordered the case reinstated, his order of dismissal of April 12 was final in light of plaintiff's failure to present a timely order of reinstatement. 4 This case admittedly has had a 'very checkered career,' and we perceive that the most prudent course is to remand the case to the district court to clarify the docket entries in this case and the effect of its April order of dismissal and its subsequent granting and denial of reinstatement. 5 Accordingly, it is hereby ordered that our order of August 26, 1985 dismissing this appeal be VACATED, and the case REMANDED to the district court for proceedings consistent with this opinion.	{ "pile_set_name": "FreeLaw" }
13 F.3d 334 UNITED STATES of America, Plaintiff-Appellant,v.John K. BRADY, Defendant-Appellee. No. 93-4085. United States Court of Appeals,Tenth Circuit. Dec. 21, 1993. Joshua Silverman, Atty., Dept. of Justice, Washington, DC (Richard D. Parry, U.S. Atty., and Stanley H. Olsen, Asst. U.S. Atty., Salt Lake City, UT, with him on the brief), for plaintiff-appellant. Rodney G. Snow (Anneli R. Smith and Steven G. Shapiro, with him on the brief) of Clyde, Pratt & Snow, Salt Lake City, UT, for defendant-appellee. Before BALDOCK and McWILLIAMS, Circuit Judges, and SAFFELS, District Judge.* BALDOCK, Circuit Judge. 1 The government appeals the district court's dismissal of a four count indictment against Defendant John K. Brady on the grounds that the indictment was insufficient as a matter of law. We have jurisdiction pursuant to 18 U.S.C. Sec. 3731. I. 2 Expert testimony below, as thoroughly summarized by the district court, see United States v. Brady, 820 F.Supp. 1346 (D.Utah 1993), established the following description of the operation of cellular telephones. Cellular telephone service is based upon a system of individual cellular telephone units, which have wireless radio transmission capabilities, operating among a series of geographic cells. Each geographic cell is served by a radio transmitter, and as the cellular telephone user moves from one cell to another, transmission of telephone calls are shifted from one transmitter to the other. 3 Cellular telephones are typically programmed with two identifying numbers. The mobile identification number ("MIN") is a ten digit number (usually the area code and telephone number) assigned to the customer's cellular telephone by the cellular carrier when the customer subscribes to that carrier's service. The electronic serial number ("ESN") is an eight digit number programmed onto an electronic chip by the telephone manufacturer. When a telephone call is initiated, the cellular telephone unit transmits the MIN and ESN to the cellular system. 4 Another feature provided by cellular carriers allows a cellular telephone customer to "roam," placing calls from a geographic cell belonging to a carrier with whom they do not have an account. This feature allows a Salt Lake City customer, for example, to use his Salt Lake City cellular telephone to make a local or long distance call while in New York City. When a roaming customer places a call, his telephone transmits the MIN and ESN. The roaming carrier, e.g., the New York City carrier, recognizes the MIN as belonging to another carrier, e.g., the Salt Lake City carrier, but cannot instantly validate the call because the validation system does not allow instantaneous inter-carrier validation. Rather than delay service to the roaming customer, the roaming carrier accepts this first call from the roaming customer before it has had an opportunity to validate the MIN and ESN as a legitimate combination.1 While the "first call" is taking place, a computer communicates with a central database of all legitimate MIN/ESN combinations. If the MIN/ESN combination does not match a valid combination in the home carrier's computers, subsequent calls using the same combination will not be allowed. Telephone calls attributed to "unmatched" MIN/ESN combinations are listed individually in the cellular carrier's billing computer, along with the charges associated with each individual call, but the user cannot be identified and the charges cannot be collected from him. 5 Cellular telephones can be altered by either replacing or reprogramming the microchip containing the unit's MIN and ESN. Telephones altered in this manner can be used either as "clones" or "free riders" to circumvent the normal cellular telephone system billing process. Cloning involves the programming of a cellular telephone so that the MIN/ESN combination is identical to a combination assigned to a legitimate customer. By cloning, the user accesses the legitimate customer's account to obtain free telephone service until the legitimate customer recognizes and reports the unauthorized charges. 6 Free riding involves the use of "tumbling" cellular phones. Free riding is achieved when the microchip that holds the MIN and the ESN has been modified to allow the user to change or tumble the MIN/ESN combination in his telephone at will by programming and reprogramming the MIN, the ESN, or both, from the key pad. The user programs a random MIN/ESN combination into the unit and continues using it until the validation system determines that it is invalid and blocks further calls. In this way, the user free rides the cellular telephone system and takes advantage of the roamer service by continually making a series of unmatched first calls, without ever being charged for the calls. II. 7 On October 24, 1992, the grand jury returned an indictment charging Defendant with four counts of violating 18 U.S.C. Sec. 1029(a)(1). Counts I through III alleged that Defendant, in pertinent part: 8 knowingly, and with intent to defraud, trafficked in a counterfeit access device, as defined in 18 U.S.C. Sec. 1029(e)(2); that is, an altered cellular telephone, permitting unauthorized access to telephone services, such conduct having an effect on interstate commerce, all in violation of 18 U.S.C. Sec. 1029(a)(1). 9 Count IV alleged that Defendant, in pertinent part: 10 knowingly, and with intent to defraud, used a counterfeit access device, as defined in 18 U.S.C. Sec. 1029(e)(2); that is, an altered cellular telephone, permitting unauthorized access to telephone services, such conduct having an effect on interstate commerce, all in violation of 18 U.S.C. Sec. 1029(a)(1). 11 Defendant moved to dismiss the indictment as insufficient, claiming that it failed to state an essential element of the offense, i.e., that Defendant used or trafficked in an access device that gained access to a billed account. Defendant also moved to suppress statements he made during the course of the investigation and to dismiss the indictment based on the government's breach of an agreement not to prosecute. Following a three-day evidentiary hearing on Defendant's motions, Defendant filed a third motion to dismiss the indictment, this time based on insufficiency of the evidence. 12 At the hearing, the government presented evidence that Defendant used and trafficked in four tumbling Mitsubishi Series 800 cellular telephones. Testimony established that these telephones had been altered so that the caller could obtain telephone service by free riding the system. Defendant admitted at the hearing that he had used a tumbling cellular telephone to place some 1300 calls over several months; however, the government conceded that it could not prove that Defendant, or any of the four telephones associated with Defendant, actually accessed identifiable subscriber accounts. 13 The government's offer of proof concerning account access came from employees of Cellular One of Salt Lake City--one of two cellular telephone companies in Salt Lake. The employees testified that unmatched calls and the charges created by the calls are reflected in Cellular One's records. The employees further testified that these charges cannot be collected, resulting in Cellular One absorbing whatever costs are associated with such calls. The evidence indicated that Cellular One has an account with McCaw2 and when unmatched calls are made on Cellular One's system, Cellular One must in turn make payment to McCaw for these calls. The evidence also indicated that Cellular One has accounts with various long distance carriers, and when unmatched long distance calls are made on Cellular One's system, Cellular One is obligated to pay the long distance carrier for the calls. Although the government presented testimony from Cellular One employees, the government was unable to link any of the four phones associated with Defendant to any unmatched call in Cellular One's accounting records or in any other carrier's records. 14 The district court dismissed all counts against Defendant finding the indictment insufficient as a matter of law. The court dismissed Count IV with prejudice, reasoning that the government could not show that Defendant gained access to one or more identifiable accounts or establish a factual connection between any cellular telephone company losses and Defendant's alleged conduct. As a result, the court determined that the government was unable to establish an essential element of a violation of 18 U.S.C. Sec. 1029(a)(1)--i.e., use of an access device. The court dismissed Counts I through III, the trafficking counts, without prejudice, allowing the government an opportunity to recharge Defendant if it is prepared to prove that Defendant transferred an altered cellular telephone with the intent that it serve as a clone.3 The court did not rule on Defendant's motion to suppress, or his motion to dismiss based on the government's breach of agreement. 15 On appeal, the government claims that the district court erred in concluding that a tumbling cellular telephone, used or transferred to another for purposes of free riding on the telephone system, is not an "access device" within the meaning of 18 U.S.C. Sec. 1029. We affirm. III. 16 We judge the sufficiency of an indictment by (1) whether the indictment contains the elements of the offense and apprises the defendant of the charges he must meet, and (2) whether the defendant would be protected against double jeopardy by a judgment on the indictment. United States v. Brown,	{ "pile_set_name": "FreeLaw" }
307 F.Supp. 1212 (1968) Mrs. Alline E. CORDELL v. DETECTIVE PUBLICATIONS, INC. Civ. A. No. 5040. United States District Court E. D. Tennessee, S. D. January 3, 1968. Supplemental Opinion May 15, 1968. 1213 1214 Chambliss, Hodge, Bahner & Crawford, Mitchell Crawford, Chattanooga, Tenn., for plaintiff. Stophel, Caldwell & Heggie, Charles J. Gearhiser, Chattanooga, Tenn., for defendant. MEMORANDUM FRANK W. WILSON, District Judge. This is an action for alleged wrongful invasion of privacy arising out of the publication by the defendant of a certain article entitled "House of Horror" in the March 1967 issue of the Front Page Detective magazine. The case is before the Court upon the motion of the defendant to dismiss upon the grounds that (1) the complaint fails to state a claim upon which relief can be granted and (2) that the Court lacks in personam jurisdiction of the defendant. In the alternative, the defendant moves for a more definite statement. The basis of the defendant's contention that the complaint fails to state a claim upon which relief can be granted is defendant's argument that in Tennessee there is no cause of action for wrongful invasion of privacy. The defendant contends that the right of action has never been expressly recognized by the Tennessee courts and that such right of action should not now be recognized because it conflicts with the right of publication of matters of public interest and with the constitutional guarantee of freedom of the press. The duty of the Court of course is to apply the law which a state court would apply if it were sitting. Not 1215 only does the Court have a duty to follow precedent established by the state courts, but where there is no precedent the Court has a duty to anticipate the law which would be applied. The cause of action for wrongful invasion of privacy has been discussed in the cases of Langford v. Vanderbilt University (1956), 199 Tenn. 389, 287 S.W.2d 32, and Martin v. Senators, Inc. (1967), 418 S.W.2d 660. In each of these cases it was held that the plaintiff had waived any right of privacy which she or they may have had. It is true that these cases do not expressly and clearly hold that there is such a cause of action in Tennessee, but the Court is of the opinion that such recognition is implicit in their holdings. In the Martin case the Tennessee Supreme Court devotes some discussion to a consideration of the nature of the tort of wrongful invasion of privacy and quotes from the American Law Institute's Restatement of the Law of Torts. Dean Prosser, on the basis of the Langford case cites Tennessee as recognizing the cause of action for wrongful invasion of privacy. See Prosser on Torts, 3rd Ed., Section 112, pp. 831-832. The Court is accordingly of the opinion that Tennessee courts would recognize a cause of action for wrongful invasion of privacy and that the complaint in this case is not subject to dismissal because it is based upon such an alleged cause of action. Defendant further complains that the complaint does not specifically set forth the language which it contends constitutes the invasion of privacy. The defendant cites in support of its contention Tennessee cases requiring that allegedly libelous language be set forth with particularity in a declaration. However, the Court is of the opinion that the libel cases are not necessarily applicable in an action for alleged wrongful invasion of privacy. Bearing in mind the liberal rules associated with federal pleading, the Court is of the opinion that the complaint must fairly be said to be sufficient in its allegations that the publication of the article constituted a wrongful invasion of the plaintiff's privacy. The defendant further contends that the complaint shows that the article complained of was concerned with the death of the plaintiff's daughter and that any right of action would be personal to the daughter and would not be maintainable by this plaintiff. However, not only does the complaint allege that the plaintiff was herself the subject of improper disclosures in the article but also that she was personally injured by the references to her daughter. The Court is of the opinion that the mother of a deceased may maintain an action for alleged wrongful invasion of privacy based upon the article concerning the circumstances of the daughter's death. In our familial society it is certainly possible that certain types of publicity concerning one member of a family may constitute an invasion of the privacy of another member. Accordingly, the Court is of the opinion that the defendant's motion should be overruled insofar as it relies upon the ground of failure to state a claim upon which relief can be granted. The jurisdictional objection raised by the defendant gives rise to a difficult and delicate problem, that is, the extent to which a publisher can be subject to suits based upon personal jurisdiction in various states into which commercial publications of such publisher may be sent. This particular problem has occupied the attention of the Court of Appeals for the Fifth Circuit and the Court of Appeals for the Second Circuit in recent years, and has prompted at least one law review article. A number of the cases have arisen out of articles published by national magazines and newspapers of nationwide reputation concerning various racial conflicts which had arisen in the southern states. In New York Times Co. v. Conner (C.A. 5, 1966), 365 F.2d 567, the Fifth Circuit held that Alabama had no in personam jurisdiction of the New York Times in an action for libel arising out of an article 1216 or articles printed in the Times concerning events that took place in Alabama. The Fifth Circuit based its holding in part upon the particularly protected status which freedom of the press enjoys under the United States Constitution and held that "considerations surrounding the law of libel require a greater showing of contact to satisfy the due process clause than is necessary in asserting jurisdiction over other types of tortious activit[ies]." The Court is of the opinion that a better approach to this problem is set forth in the opinion of the Court of Appeals for the Second Circuit in Buckley v. New York Post (C.A. 2, 1967), 373 F.2d 175. Judge Friendly in that case reasoned that the free press considerations could best be effectuated by divorcing them from problems of due process under the Fourteenth Amendment. Judge Friendly's analysis that free press can best be protected by allowing the institution of suits based upon allegedly libelous publications in states where they are published and then by applying a doctrine of forum non conveniens to reduce hardship upon national publishers. The requirements of the Due Process Clause of the Fourteenth Amendment as applied in cases of substituted service based upon "minimum contact" with the forum state under the qualitative test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, ultimately boil down to a balancing of interests. It has been suggested that the factors to be considered are these: (1) the relative inconvenience of the defendant in being required to defend in the forum state, (2) the relative inconvenience to which plaintiff would be put if forced to pursue his action in the state where defendant may be found, and (3) whatever interest the forum state may have in providing a means of redress to the plaintiff. One of the problems inherent in actions arising out of national publications is the multiplicity of suits to which a national publisher may be subjected. Some states have taken a step toward solution of this problem by adoption of the so-called single publication rule whereby a publication is deemed to take place only at the situs where the article is first published and nowhere else. Some commentators have suggested that an ultimate solution may only be provided by some sort of congressional legislation. It would appear to the Court that whatever may be the status of suits filed in other states where publication may have taken place, a suit should be maintainable in the state where the plaintiff lives and has her reputation among her friends and business associates. The Court is accordingly of the opinion that publication of the article out of which this action arises in Tennessee, which publication is neither disputed nor minimized in the record in this case, would constitute "minimum contact" purposefully established with this State so that maintenance of this suit would not offend principles of fundamental fairness. The Court is further of the opinion that Tennessee has provided for constructive service in cases of this nature by way of T.C.A. § 20-235, which authorizes constructive service based upon "any tortious act committed in this State." The Court is therefore of the opinion that the defendant's motion to dismiss should be denied and an order should enter to that effect. With respect to the defendant's motion for a more definite statement, the Court is of the opinion that this would be an appropriate case for granting the relief requested. The Court is accordingly of the opinion that the plaintiff should file a more definite statement with respect to the following matters: (1) The specific matters alleged to have been disclosed which it is claimed were private matters as distinguished from matters of public information; (2) The specific matters alleged to be false or highly fictionalized; and (3) The specific matters alleged to be offensive or objectionable to a person of ordinary sensibilities. An order will enter in accordance with this opinion, the order to include provision *1217 that the plaintiff will be allowed ten days within which to file the more definite statement as provided in this memorandum. SUPPLEMENTAL MEMORANDUM This cause of action is before the Court upon the defendant's motion for summary judgment. The plaintiff brings an action for invasion of her privacy by the publication of an article in the March 1967 issue of defendant's magazine, Front Page Detective. The subject of the article was the murder of the plaintiff's daughter and the events leading up to the capture of the suspected assailants. The defendant moves for summary	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Klinkner, 2014-Ohio-2022.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 13AP-469 v. : (C.P.C. No. 12CR-1089) Kyle L. Klinkner, aka Klinker, : (REGULAR CALENDAR) Defendant-Appellant. : State of Ohio, : Plaintiff-Appellee, : No. 13AP-521 v. : (C.P.C. No. 12CR-1090) Kenneth A. Bryant, : (REGULAR CALENDAR) Defendant-Appellant. : State of Ohio, : Plaintiff-Appellee, : No. 13AP-595 v. : (C.P.C. No. 12CR-1091) William M. Bryant, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on May 13, 2014 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Todd Barstow, for appellant Kyle L. Klinkner, aka Klinker. Nos. 13AP-469, 13AP-521 and 13AP-595 2 Scott & Nolder Co., L.P.A., and Steven S. Nolder, for appellant Kenneth A. Bryant. Yeura R. Venters, Public Defender, and David L. Strait, for appellant William M. Bryant. APPEALS from the Franklin County Court of Common Pleas KLATT, J. {¶ 1} In these consolidated appeals, defendants-appellants William M. Bryant, Kenneth Bryant, and Kyle L. Klinkner each appeal from judgment entries of conviction and sentence entered by the Franklin County Court of Common Pleas. For the following reasons, we affirm those judgments. I. Factual and Procedural Background {¶ 2} A Franklin County Grand Jury indicted all three appellants with one count of felonious assault, in violation of R.C. 2903.11. The charges arose out of a fight involving the three men and Kenneth's former employer, Victor Tantarelli, Sr. Appellants entered not guilty pleas and proceeded to a trial. Appellants waived their rights to a jury trial and all three appellants were tried together to the same judge. {¶ 3} Victor Tantarelli, Sr. ("Vic Sr.") owns a body shop in Columbus, Ohio, and employed Kenneth as an auto technician in 2011. In December 2011, Kenneth stopped working for Vic Sr. and apparently left repair work on a number of cars unfinished. According to Vic Sr.'s policy, however, he does not pay employees for their time until they complete their work on the assigned cars. Because Kenneth left his work unfinished, he had not been paid for some of the time he had worked. {¶ 4} On January 6, 2012, Kenneth returned to the body shop to pick up his tools. He brought with him his dad, William, and Kyle Klinkner. William and Kyle were both auto technicians at Kenneth's new place of employment. Kyle drove the three men to the body shop because he had a big truck that could hold Kenneth's tool box, which weighed almost 1,000 pounds. The men went in the body shop, got the tool box, and brought it out to Kyle's truck. Kenneth also handed his keys to the body shop to Vic Sr.'s son, Vic Jr. The three men went back to the truck and remained there for 10 to 15 minutes. Nos. 13AP-469, 13AP-521 and 13AP-595 3 {¶ 5} At that point, the three men got out of the truck and walked back inside the body shop. Kenneth went inside the office where Vic Sr. was eating lunch and William and Kyle stood outside the office door. Kenneth asked Vic Sr. if he planned to pay him for the work Kenneth did on the unfinished jobs. Vic Sr. told him that he would not pay him because Kenneth quit before the cars were finished. The men began yelling at each other and Vic Sr. came out from behind the desk where he was sitting and approached Kenneth. Here, the respective versions of events begin to diverge. {¶ 6} According to Vic Sr. and another employee of the body shop, when Vic Sr. approached Kenneth, Kenneth punched him twice in the chest. He then pulled Vic Sr. down to the ground and pinned Vic Sr.'s arms close to his body. While Kenneth held Vic Sr. down on the ground, William punched him a few times and Kyle kicked him a number of times. Employees of the body shop soon came out and broke up the fight, after which William, Kenneth, and Kyle left the scene. Vic Sr. sustained serious physical injuries as a result of the fight. {¶ 7} Appellants each presented slightly different versions of events. They each testified that they went over to the body shop to get Kenneth's tools. Kenneth testified, however, that he decided to ask Vic Sr. for some money that day because some repair shops will pay an auto technician for time spent working on a car even if the technician quits before completing the work. When Vic Sr. told Kenneth he would not pay him, Kenneth swore at him and began walking out of the office. According to Kenneth, Vic Sr. was yelling as Vic Sr. approached him. Vic Sr. pushed him and Kenneth grabbed at Vic Sr. so he would not fall down. The two men became entangled and fell to the floor. Kenneth denied punching Vic Sr. or pinning his arms while they were on the ground. He thought they were only on the ground for a few seconds until he was able to release himself from Vic Sr. and leave the scene. He did not observe William or Kyle hit Vic Sr. {¶ 8} Kyle testified that he was standing near the office when he heard Kenneth and Vic Sr. yelling at each other. He then saw Vic Sr. grab at Kenneth's shirt. He did not see Kenneth punch Vic Sr. Kyle thought that Kenneth lost his footing and grabbed at Vic Sr. to stop his fall. The two men stumbled around and fell down. Kyle stated he did see Kenneth holding Vic Sr.'s arms. Kyle and William began to go toward the fight but as they Nos. 13AP-469, 13AP-521 and 13AP-595 4 did, they saw Vic Jr. and another man coming to break up the fight. Kyle denied kicking Vic Sr. but testified that William punched Vic Sr. and may have kicked him once. {¶ 9} William testified that all three of the men went inside the body shop so that Kenneth could get his last paycheck. Kenneth went into the office while William and Kyle stood nearby. Kenneth asked Vic Sr. for his check but Vic Sr. told him that he would not pay him because the work was not finished. The two men began to escalate their voices and then William saw Kenneth start to leave the office. Vic Sr. came at Kenneth and pushed him as if he wanted him out of the office. Vic Sr. also grabbed Kenneth and the two came "flying out" of the office and then fell down. (Tr. 996.) William did not see Kenneth punch Vic Sr. before they fell to the ground. According to William, Kenneth had Vic Sr. on the ground in a bear hug while Vic Sr. yelled for help. William saw Vic Sr. strangling Kenneth and also trying to kick him. William became scared for his son's life, so he approached the two men and kicked and hit Vic Sr. to free Kenneth from the altercation. Shortly thereafter, the other men came to the scene of the fight and broke it up. {¶ 10} The trial judge found all three appellants guilty of felonious assault. The judge found the appellants' version of events not credible and concluded that they went to the body shop to either get money from Victor Sr. or to beat him up. The trial court sentenced them accordingly. II. The Appeals {¶ 11} All three appellants appeal their convictions. {¶ 12} William Bryant assigns the following errors: [1.] Given the nature of the case, the evidence presented by the State, and the defenses asserted by Defendant-Appellant, the failure of the trial court to conduct a hearing to evaluate the nature and extent of plea negotiations was error. [2.] The judgment of the trial court is not supported by sufficient, credible evidence. [3.] The judgment of the trial court is against the manifest weight of the evidence. {¶ 13} Kyle L. Klinkner assigns the following errors: Nos. 13AP-469, 13AP-521 and 13AP-595 5 [1.] WHEN A MOTION FOR NEW	{ "pile_set_name": "FreeLaw" }
577 F.2d 175 In re EASTERN FREIGHT WAYS, INC., Bankrupt.Sidney B. GLUCK, Trustee in Bankruptcy of Eastern FreightWays, Inc., Plaintiff-Appellee,v.SEABOARD SURETY COMPANY, Defendant-Appellant,Manufacturers Hanover Trust Company, individually and asagent for other institutional lenders, InternationalHarvester Credit Corporation, Fruehauf Corporation and theChase Manhattan Bank, National Association, and Thomas J.Cahill, Trustee in Bankruptcy of Associated Transport, Inc.,Defendants-Appellees. No. 738, Docket 77-5036. United States Court of Appeals,Second Circuit. Argued March 27, 1978.Decided May 25, 1978. Solomon M. Cheser, New York City (Tell, Cheser, Breitbart & Lefkowitz, and Wickes, Riddell, Bloomer, Jacobi & McGuire, New York City, James W. Harbison, Jr., Thomas R. Stritter, New York City, of counsel), for defendant-appellant Seaboard Surety Company. Michael R. Kleinerman, New York City (Booth, Lipton & Lipton, Edgar H. Booth, New York City, of counsel), for plaintiff-appellee Sidney B. Gluck, Trustee in Bankruptcy of Eastern Freight Ways, Inc. Theodore Gewertz, New York City (Wachtell, Lipton, Rosen & Katz, Ronald M. Neumann, New York City, of counsel), for defendant-appellee Manufacturers Hanover Trust Co. Lewis Kruger, New York City (Krause, Hirsch & Gross, Christina Burks Lee, Barbara G. Kaplan, New York City, of counsel), for defendant-appellee International Harvester Credit Corp. Toni C. Lichstein, New York City (Milbank, Tweed, Hadley & McCloy, Russell E. Brooks, New York City, of counsel), for defendant-appellee The Chase Manhattan Bank, National Association. Anderson Russell Kill & Olick, New York City (Arthur S. Olick, Poppy B. Quattlebaum, New York City, of counsel), for defendant-appellee Thomas J. Cahill, Trustee in Bankruptcy of Associated Transport, Inc. Before FEINBERG, MANSFIELD and OAKES, Circuit Judges. FEINBERG, Circuit Judge: 1 The conflicting claims of two trustees in bankruptcy, a surety to the bankrupts, an obligor on a two million dollar letter of credit in favor of the surety, and three secured creditors with perfected interested in the accounts receivable of one of the bankrupts form the background for this appeal. The surety, Seaboard Surety Company ("Seaboard"), appeals from an order of Judge Edmund L. Palmieri in the United States District Court for the Southern District of New York, which affirmed an order of Bankruptcy Judge Roy Babitt denying Seaboard the right to benefit from certain setoffs in bankruptcy at least until such time as it has exhausted the proceeds of the letter of credit in the satisfaction of outstanding claims. With certain minor modifications, we affirm. 2 * It is necessary to state the factual and legal history of this case in some detail. Eastern Freight Ways, Inc. ("Eastern") and Associated Transport, Inc. ("Associated"), both of which are now in bankruptcy proceedings, were licensed common carriers of freight regulated by the Interstate Commerce Commission. Under ICC regulations, such trucking firms are allowed to self-insure against various risks subject, in some cases, to the filing of appropriate surety bonds. See 49 C.F.R. Part 1043. For many years, appellant Seaboard had written assorted surety bonds for Associated. When Associated began to run into financial troubles in 1974, these suretyships were collateralized by $600,000 worth of negotiable instruments and other security. Shortly thereafter, subsequent to Eastern's acquisition of control over Associated,1 appellant agreed to act as surety for both Eastern and Associated. The two trucking companies in turn agreed to collateralize Seaboard's obligations under surety bonds issued on behalf of either or both bankrupts, and to indemnify appellant for any and all liabilities incurred under such bonds. Following these agreements, Seaboard released the $600,000 collateral and accepted a $2,000,000 letter of credit from Chase Manhattan Bank2 which, however, purported to cover only Seaboard's liabilities incurred on behalf of Eastern. Still later, Manufacturers Hanover Trust Company, International Harvester Credit Corporation and Fruehauf Corporation, also parties to this litigation, obtained apparently perfected security interests in Eastern's accounts receivable and other assets, which ultimately secured some $4,750,000 in debt. 3 In April 1976, Eastern and Associated each filed a petition for arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 701 et seq., but each was thereafter adjudicated a bankrupt;3 Sidney B. Gluck became the bankruptcy trustee for Eastern. Since at this time approximately 20,000 cargo claims against the bankrupts were outstanding upon which Seaboard was potentially liable, it "drew down" the full $2,000,000 proceeds of the letter of credit.4 Many of those who had such cargo claims against the bankrupts also owed them unpaid freight charges. After drawing down the $2,000,000, Seaboard began notifying the cargo claimants that they should deduct any unpaid freight charges owed to a particular bankrupt from the amount of the cargo claim against that bankrupt. Seaboard's notice stated that, in any event, it would not be liable for more than the difference between these amounts. 4 In September 1976, Eastern's trustee petitioned the bankruptcy judge for an order which would, among other things, require Seaboard to account for all cargo claims pending or paid and the use of the proceeds of the letter of credit, and would enjoin Seaboard from further interfering with the administration of the bankrupt's estate. Seaboard in turn asked the bankruptcy court to declare that it was entitled to use unpaid freight charges as setoffs against the cargo claims. In November 1976, Bankruptcy Judge Babitt issued a temporary restraining order against Seaboard pending further litigation and ordered Seaboard to render the requested accounting. In various colloquies in open court leading up to this order, all parties agreed that the setoff issue should be settled in one litigation before the bankruptcy judge. Pursuant to these discussions, Eastern's trustee commenced an adversary proceeding5 in the bankruptcy court against Seaboard, the three secured creditors referred to above, Chase Manhattan Bank and the Associated trustee, Thomas J. Cahill. 5 The Eastern trustee's complaint sought, in part, (1) a declaration that Seaboard was not entitled (a) to any setoffs whatsoever because of the prior perfected assignment of the accounts receivable; (b) to any setoffs that a cargo claimant had waived by paying in full to Eastern's trustee the freight charges owed the bankrupt; or (c) to any setoff based on a freight charge not arising out of the same transaction giving rise to the cargo claim; and (2) a declaration (a) that Seaboard could apply the proceeds of the letter of credit only against Eastern cargo claims and (b) that Seaboard would have no right to setoffs until such proceeds were properly exhausted.6 After the other defendants had answered,7 Seaboard moved to dismiss the first cause of action described above (and related cross-claims) for failure to state a claim upon which relief could be granted, and to dismiss the second for lack of summary jurisdiction in the bankruptcy court. Seaboard also sought a declaration that it was entitled to the contested setoffs. 6 In a lengthy opinion filed in April 1977, Bankruptcy Judge Babitt granted substantial relief to the trustee. Although the bankruptcy judge did not reach the merits of the issues raised by the first cause of action, he held "that until the proceeds of the letter of credit are exhausted, no right of set off can be claimed by Seaboard, and the trustee is entitled to a declaratory judgment to that effect." Judge Babitt also rejected Seaboard's contentions that the bankruptcy court had no jurisdiction over the allocation of the proceeds, since Seaboard had submitted itself to that jurisdiction by seeking affirmative relief on its claimed right to setoff, "an issue inextricably intertwined with the existence of the proceeds of the letter of credit . . . ." The bankruptcy judge also enjoined8 Seaboard from soliciting setoffs until further order of the court and directed it to render an accounting of the cargo claims. Finally, Judge Babitt ordered an evidentiary hearing, to be stayed pending determination of an appeal, on the issue of allocating the proceeds of the letter of credit. 7 Seaboard appealed to the district court; in October 1977, Judge Palmieri affirmed the bankruptcy judge in a thorough opinion. The district judge agreed that Seaboard had no right to any equitable setoffs until the proceeds of the letter of credit were exhausted, and that the bankruptcy court had jurisdiction to decide how the proceeds were to be applied. The district court based the latter holding, however, not on the bankruptcy judge's rationale of seaboard's implied consent to jurisdiction, but rather on the theory that determination of the proper allocation of the proceeds of the letter of credit "is a necessary prerequisite to the final resolution of the rights of the parties with respect to the setoffs, over which the court clearly has jurisdiction." Lastly, Judge Palmieri concluded that	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-79,045-01 EX PARTE PAUL DOUGLAS GATES, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F-1045830-L IN CRIMINAL DISTRICT COURT NO. 5 FROM DALLAS COUNTY Per curiam. O R D E R Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to forty-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Gates v. State, No. 05-11-00404-CR (Tex. App.--Dallas 2011, no pet.). Applicant contends that appellate counsel failed to timely inform him that his conviction had been affirmed and that he could file a pro se petition for discretionary review (PDR). Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). The trial court concluded that appellate counsel was not ineffective and recommended that we dismiss this application under Article 11.07, § 4 of the Code of Criminal Procedure. (1) We believe that the record should be further developed. The trial court shall order appellate counsel to respond to Applicant's claim and state whether he filed a compliance letter, Tex. R. App. P. 48.4, and he timely informed Applicant that his conviction had been affirmed and that he could file a pro se PDR. The trial court shall also order an authorized person at the Correctional Institutions Division of the Texas Department of Criminal Justice to respond and state whether Applicant received correspondence from appellate counsel between March 9 and April 15, 2012. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make further findings of fact and conclusions of law as to whether appellate counsel timely informed Applicant that his conviction had been affirmed and that he had a right to file a pro se PDR. If the trial court finds that appellate counsel did so, the trial court shall also make findings and conclusions as to when, if at all, Applicant received appellate counsel's letter. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: February 27, 2013 Do not publish 1. This is not a subsequent application under Article 11.07, § 4. It is an initial application and does not challenge the conviction or sentence. Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997).	{ "pile_set_name": "FreeLaw" }
194 U.S. 458 (1904) MATTER OF CHRISTENSEN ENGINEERING COMPANY. No. 15, Original. Supreme Court of United States. Submitted April 25, 1904. Decided May 31, 1904. IN THE SUPREME COURT OF THE UNITED STATES. 459 Mr. W.A. Jenner for petitioner. Mr. Frederic H. Betts for respondent. MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court. The examination in Bessette v. W.B. Conkey Company, 194 U.S. 324, just decided, of the right of review in contempt cases precludes the necessity of extended discussion. In that case Bessette was not a party to the suit, and the controversy had been settled by a final decree, from which, so far as appeared, no appeal had been taken. He was found guilty of contempt of court, and a fine of $250 imposed, payable to the United States, with costs. In this case the Christensen Engineering Company was a party. The contempt was disobedience of a preliminary injunction and the judgment in contempt was intermediate the preliminary injunction and the decree making it permanent. The fine was payable, one-half to the United States, and the other half to the complainant. The distinction between a proceeding in which a fine is imposed by way of compensation to the party injured by the disobedience, and where it is by way of punishment for an act done in contempt of the power and authority of the court, is pointed out in Bessette's case, and disclosed by some of the cases referred to in the opinion. In New Orleans v. Steamship Company, 20 Wall. 387, the act in contempt was by one not then a party to the suit. No order was entered against him until the final decree in the case, 460 and then he was punished for the act of disobedience, purely as an act of a criminal nature, and without compensation to the plaintiff in whose favor the injunction was originally ordered. No review under the then existing law was allowable. In Hayes v. Fischer, 102 U.S. 121, the contempt proceeding was remedial and compensatory, and the entire amount of the fine was ordered paid to the plaintiff in reimbursement. It was held that, if the remedial feature was alone to be considered, and the proceeding regarded as a part of the suit, it could not be brought to this court by writ of error, but could only be corrected on appeal from the final decree; if to be regarded as a criminal action, then it was one of which this court had no jurisdiction, either by writ of error or appeal. In Ex parte Debs et al., 159 U.S. 251, there was nothing of a remedial or compensatory nature. No fine was imposed, but only a sentence of imprisonment. This court had no jurisdiction of a writ of error in such a case. And see O'Neal v. United States, 190 U.S. 36. In Worden v. Searls, 121 U.S. 14, the proceeding was remedial and compensatory, in that for violations of a preliminary injunction the defendants were ordered to pay the plaintiff $250 "as a fine for said violation," by one order, and, by another order, to pay a fine of $1,182 to the clerk, to be paid over by him to the plaintiff for "damages and costs," the $1,182 being made up of $682 profits made by the infringement, and $500 expenses of plaintiff in the contempt proceedings. These interlocutory orders were reviewed by this court on appeal from the final decree, and as that decree was reversed, the orders were also set aside, this being done "without prejudice to the power and right of the Circuit Court to punish the contempt referred to in those orders, by a proper proceeding." It was also said "that, though the proceedings were nominally those of contempt, they were really proceedings to award damages to the plaintiff, and to reimburse to him his expenses." These authorities show that when an order imposing a fine for violation of an injunction is substantially one to reimburse *461 the party injured by the disobedience, although called one in a contempt proceeding, it is to be regarded as merely an interlocutory order, and to be reviewed only on appeal from the final decree. In the present case, the fine payable to the United States was clearly punitive and in vindication of the authority of the court, and, we think, as such it dominates the proceeding and fixes its character. Considered in that aspect, the writ of error was justified, and the Circuit Court of Appeals should have taken jurisdiction. Petitioner entitled to mandamus.	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/11/2019 01:06 AM CDT - 933 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 State of Nebraska on behalf of K aaden S., a minor child, appellee, v. Jeffery T., appellant, and M andy S., appellee. ___ N.W.2d ___ Filed August 30, 2019. No. S-17-1210. 1. Paternity: Appeal and Error. In a filiation proceeding, questions con- cerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. 2. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. 3. Evidence: Appeal and Error. In a de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. 4. Child Custody: Visitation. The Parenting Act does not require any particular parenting time schedule to accompany an award of either sole or joint physical custody, and there exists a broad continuum of possible parenting time schedules that can be in a child’s best interests. 5. Child Custody: Visitation: Words and Phrases. An alternating week- on-week-off parenting time schedule requires the child to spend roughly the same amount of time at each parent’s residence and allows both parents to exert continuous blocks of parenting time for significant periods of time, and thus meets the statutory definition of joint physi- cal custody. 6. Child Custody: Visitation. Where a parenting plan effectively estab- lishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement. - 934 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 7. Divorce: Child Custody. The Parenting Act authorizes a trial court to award joint custody in dissolution actions if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent. 8. Courts: Appeal and Error. The doctrine of stare decisis requires that appellate courts adhere to their previous decisions unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so. The doctrine is entitled to great weight, but it does not require courts to blindly perpetuate a prior interpretation of the law if it was clearly incorrect. 9. Child Custody: Judges. A blanket rule disfavoring joint physical cus- tody is inconsistent with the Parenting Act and unnecessarily constrains the discretion of trial judges in some of the most important and difficult decisions they are called upon to make. 10. Child Custody. Joint physical custody is neither favored nor disfavored under Nebraska law. In fact, no custody or parenting time arrangement is either favored or disfavored as a matter of law. 11. ____. When determining the best interests of the child in deciding cus- tody, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse inflicted on any family or household member; and (5) credible evidence of child abuse or neglect or domestic intimate partner abuse. 12. Visitation. The Parenting Act provides that the best interests of a child require a parenting plan that provides for a child’s safety, emo- tional growth, health, stability, physical care, and regular school attend ance, and which promotes a child’s continued contact with his or her families and parents who have shown the ability to act in the child’s best interests. 13. ____. When determining the allocation of parenting time that is in a child’s best interests, a trial court should consider the parties’ ability to communicate on issues such as transportation, homework, discipline, medical and dental appointments, and extracurricular activities. Other relevant considerations include stability in the child’s routine, mini- malization of contact and conflict between the parents, and the general nature and health of the individual child. The fact that one parent might interfere with the other’s relationship with the child is also a factor to consider, but is not a determinative factor. - 935 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 14. Child Support: Rules of the Supreme Court. The Nebraska Child Support Guidelines require child support orders to address how the par- ents will provide for the child’s health insurance. 15. ____: ____. Neb. Ct. R. § 4-215(B) of the Nebraska Child Support Guidelines estimates $480 as an ordinary amount of nonreimbursed medical expenses, and that figure is then subsumed within the amount of child support that is ordered. Any nonreimbursed expenses exceeding $480 are prorated between the parties. 16. ____: ____. Child support payments should generally be set according to the child support guidelines. Petition for further review from the Court of Appeals, Pirtle, R iedmann, and Welch, Judges, on appeal thereto from the District Court for Jefferson County, R icky A. Schreiner, Judge. Judgment of Court of Appeals affirmed in part as modi- fied, and in part reversed and remanded with directions. Ronald R. Brackle for appellant. Angelica W. McClure, of Kotik & McClure Law, for appel- lee Mandy S. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. In this paternity action, the district court awarded primary legal and physical custody of a minor child to the father and awarded the mother nearly equal parenting time. Child support was calculated using a joint custody worksheet, and the father was ordered to pay monthly support. The father appealed, assigning multiple errors, including that the award of nearly equal parenting time was, in effect, an award of joint physical custody and was an abuse of discretion. The Nebraska Court of Appeals agreed, and it reversed and remanded with directions to modify the mother’s parenting time so it was “consistent with an award of primary physical custody” to the father.1 In 1 State on behalf of Kaaden S. v. Jeffery T., 26 Neb. App. 421, 430, 920 N.W.2d 39, 48 (2018). - 936 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 doing so, the Court of Appeals relied on Nebraska precedent holding that joint physical custody is disfavored and should be reserved for rare cases.2 We granted the mother’s petition for further review to reexamine that precedent.3 We now hold that a blanket rule disfavoring joint physical custody is inconsistent with the Parenting Act,4 which requires that all determinations of custody and parenting time be based on factors affecting the best interests of the child. We thus disapprove of our prior rule disfavoring joint physical custody, and we clarify that Nebraska law neither favors nor disfa- vors any particular custody	{ "pile_set_name": "FreeLaw" }
126 N.J. 320 (1991) 598 A.2d 878 WHITE CASTLE SYSTEMS v. PLANNING BOARD OF CITY OF CLIFTON The Supreme Court of New Jersey. February 19, 1991. Petitions for Certification Denied. 244 N.J. Super. 688 583 A.2d 406	{ "pile_set_name": "FreeLaw" }
729 F.2d 1455 U.S.v.Bryson (James Douglas) NO. 83-6352 United States Court of Appeals,fourth Circuit. FEB 22, 1984 1 Appeal From: D.Md. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
75 Cal.App.3d 281 (1977) 142 Cal. Rptr. 78 MARVIN F., a Minor, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 41397. Court of Appeals of California, First District, Division Three. November 22, 1977. 284 COUNSEL James C. Hooley, Public Defender, Michael G. Gordon, Robert J. Beles and Jay Gaskill, Assistant Public Defenders, for Petitioner. No appearance for Respondent. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Derald E. Granberg, Gloria F. DeHart and Jamie Jacobs-May, Deputy Attorneys General, for Real Party in Interest. OPINION SCOTT, Acting P.J. The issue raised by Marvin F., a minor, is whether an agreement entered into between the Alameda County Probation Department and the Alameda County District Attorney, establishing a procedure for the filing of petitions under Welfare and Institutions Code section 602,[1] is in conflict with the statutory scheme. The portion of the agreement relevant here, and challenged by petitioner, provides that when a police officer requests that the district attorney review the report of an alleged misdemeanor offense, which if found to be true would bring the minor within the provisions of section 602,[2] the juvenile probation department is obliged to refer the case to the 285 prosecuting attorney for his review. The Alameda County Police Officers Association participated in the negotiations leading to the agreement. The agreement was apparently prompted by the 1976 changes in the juvenile law vesting the prosecuting attorney rather than the probation department with responsibility for commencing wardship proceedings. (§ 650, subd. (b).)[3] (1a) Marvin F. contends that the agreement conflicts with the provisions of sections 653, 654 and 655, which set forth the procedure to commence proceedings to declare a minor a ward of the court under the provisions of section 602. In particular, he contends that he is denied the independent judgment and discretion of the probation officer in the proceedings leading to the filing of the section 602 petition. The resolution of this issue turns on whether the prosecuting attorney has the same discretion to file a petition to declare a minor a ward as he exercises in the filing of criminal complaints. (2a) Put another way, respondent contends that the prosecuting attorney has the sole and exclusive discretion to file a petition in any case, even if it were not forwarded by the probation officer or appealed by the applicant. If he has such discretion, the statute is merely to organize the intake process for the prosecuting attorney, in which event the deviation from that procedure in the instant case loses its significance. We conclude that he does not have such discretion. Juvenile matters are only properly before the prosecuting attorney for the exercise of his discretion of whether to file a wardship petition if the probation officer causes an affidavit requesting the commencement of such proceedings to be taken to the prosecuting attorney, or an applicant for the commencement of such proceedings presents a timely request to the prosecuting attorney for a review of a probation officer's decision not to take such affidavit to the prosecuting attorney. Marvin F. was arrested by a police officer for loitering about a junior high school in violation of Penal Code section 653g. The intake juvenile probation officer, upon receipt of the arresting officer's report which noted a request for a "D.A. review," felt obliged to present the matter to the prosecuting attorney. The intake officer stated that had she been left to her own discretion she would not have requested that a wardship 286 petition be filed, but instead would have handled the case informally pursuant to section 654. She believed, however, that she lacked discretion under the agreement to do other than forward the matter to the prosecuting attorney for mandatory review. A petition was filed by the prosecuting attorney, alleging that Marvin F. violated Penal Code section 602, subdivision (j) (trespass). The court denied the minor's motion to dismiss. By his petition here for a writ of mandamus, petitioner requests that we direct a dismissal of the juvenile court proceedings. Section 653 sets forth the procedure for commencing section 602 wardships. The section provides: "Whenever any person applies to the probation officer to commence proceedings in the juvenile court, such application shall be in the form of an affidavit alleging that there was or is within the county, or residing therein, a minor within the provisions of Section 600, 601, or 602, or that a minor committed an offense described in Section 602 within the county, and setting forth facts in support thereof. The probation officer shall immediately make such investigation as he deems necessary to determine whether proceedings in the juvenile court should be commenced. If the probation officer determines that proceedings pursuant to Section 650 should be commenced to declare a person described in Section 602 to be a ward of the juvenile court, the probation officer shall cause the affidavit to be taken to the prosecuting attorney. The prosecuting attorney shall within his discretionary power institute proceedings in accordance with his role as public prosecutor pursuant to subdivision (b) of Section 650 of this code and Section 26500 of the Government Code. "If the probation officer does not take action under Section 654 and does not file a petition in juvenile court within 21 court days after such application, or in the case of an affidavit alleging that a minor committed an offense described in Section 602 or alleging that a minor is within Section 602, does not cause the affidavit to be taken to the prosecuting attorney within 21 court days after such application, he shall endorse upon the affidavit of applicant his decision not to proceed further and his reasons therefor and shall immediately notify the applicant of the action taken or the decision rendered by him under this section. The probation officer shall retain the affidavit and his indorsement thereon for a period of 30 days after such notice to applicant." 287 I. (3) Respondent contends that section 653 should be construed as not applicable to peace officers but limited to people in the private sector. They urge that probation officers who initiate section 602 proceedings pursuant to section 652,[4] are not required to follow the provisions of section 653, and since police officers are an intrinsic part of the juvenile law system (90 percent of all delinquency referrals come from the police), they too are exempt from the provisions of section 653. We find no authority for or logic in this suggested interpretation of the statute. We also note that section 655[5] provides that "when any person has applied" (italics added) to request commencement of juvenile court proceedings and the probation officer does not take the application to the prosecuting attorney, then a certain procedure is established for making the application directly to the prosecuting attorney. If a peace officer were not "any person" within the meaning of section 653, he would have no right to a prosecuting attorney review under section 655. Yet, the evidence here was that in negotiating the agreement, the peace officers association waived their right to a section 655 "appeal" in exchange for being able to request a prosecuting attorney review on the initial police report. The "any person" referred to in section 655 is the same "any person" referred to in section 653. We conclude, therefore, that "any person" includes a peace officer. Since police officers clearly must comply with section 653, we need not address ourselves to respondent's contention that that section is not applicable to probation officers. II. (1b) The application must be in the form of an affidavit. The police report here was not in affidavit form, nor did any other affidavit accompany the police report. (4) The issue, then, is whether the absence of compliance with the affidavit requirement removes the jurisdiction of the court to hear a section 602 petition. *288 Under the previous statute (§ 722), the failure of a probation officer in instituting a section 700 petition (which encompassed offenses now found in § 602) to swear to the veracity of the petition where the affidavit accompanying the petition was signed, constituted a mere defect in pleading which did not deprive the court of jurisdiction. (In re Staser (1948) 84 Cal. App.2d 746, 751-752 [191 P.2d 791].) This was true even in the face of then section 722, which explicitly required a verified petition. Staser appears to be a square holding that the omission to swear (which is the essential requirement of the affidavit) in the initial charging paper does not deprive the court of jurisdiction. This remains good law. (In re Linda D. (1970) 3 Cal. App.3d 567, 571 [83 Cal. Rptr. 544].) The court "may" dismiss the petition without prejudice if it is not verified. (§ 656.5.) If that is true, there seems to be even less reason to destroy the court's jurisdiction by way of failure to swear to the truth of matters stated in the complaint which may or may not lead to the ultimate filing of a section 602 petition. Certainly, the affidavit requirement of section 653 cannot be ignored as apparently is the practice in Alameda County. However, failure to have the application in affidavit form does not deprive the court of jurisdiction. III. Upon receipt of the affidavit making the allegations that the minor has committed a public offense, the probation officer is required by section 653 to make an immediate investigation to determine whether juvenile court proceedings should be commenced. After investigation the probation officer has three courses of disposition available: (1) if he determines that proceedings should be commenced, he then refers the matter to the prosecuting attorney (§ 653), or (2) he may take no action (§ 653), or (3) if he concludes that	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0511V (not to be published) VICTORIA DITSCHE, Chief Special Master Corcoran Petitioner, v. Filed: March 10, 2020 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On April 6, 2018, Victoria Ditsche filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration as a result of an influenza vaccine administered on November 23, 2016. (Petition at 1). On October 18, 2019, a decision was issued awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 41). 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Petitioner has now filed a motion for attorney’s fees and costs, dated January 29, 2020 (ECF No. 46), requesting a total award of $12,679.59 (representing $12,078.90 in fees and $600.69 in costs). In accordance with General Order #9 counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. (Id. at 2). Respondent reacted to the motion on January 30, 2020 indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case and defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 47). Petitioner did not file a reply. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. § 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434. 2 ATTORNEY FEES A. Hourly Rates Petitioner requests the following rates of compensation for the work of his attorneys Max Muller; $300.00 per hour for 2017, $317 per hour for 2018 and Amy Senerth; $225.00 per hour for work performed in 2017, $233.00 per hour for work performed in 2018, and $250.00 for work performed in 2019. (ECF No. 46 at 1). Petitioner also requests rates ranging from $125.00 per hour to $165.00 per hour for paralegal work, depending on the individual paralegal and the year of the work. (Id). The rates requested are consistent with what Muller Brazil attorneys and paralegals have been awarded for their work in the Vaccine Program. Accordingly, no adjustment to the requested rates is necessary. For time billed in 2020, Ms. Senerth is requesting the increased rate of $275.00 per hour. Based on my experience I find the requested increase for time billed in 2020 to be reasonable and award it herein. ATTORNEY COSTS Petitioner requests $600.69 in overall costs. (ECF No. 46 at 1). This amount is comprised of obtaining medical records and the Court’s filing fee. I have reviewed all of the requested costs and find the overall amount to be reasonable and shall award it in full. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs. § 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $12,679.59 (representing $12,078.90 in fees and $600.69 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision.3 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas August 15, 2017 No. 04-17-00493-CV Bruce Lee BECKER, Appellant v. Pedro BECKER and Manuela Becker, Appellees From the County Court at Law No. 10, Bexar County, Texas Trial Court No. 2016-CV-04644 Honorable Jason Wolff, Judge Presiding ORDER This is a new, non-accelerated appeal. The appellant, Bruce Becker, filed a notice of appeal on August 1, 2017. The appellate record has not been filed and briefing has not commenced. On August 9, 2017, the appellant filed a pro se motion asking this court to “vacate” the trial court’s ruling on the defendants’ motion for summary judgment. Appellant’s motion, which is premature, appears to present issues that must be raised in an appellant’s brief. Appellant’s motion to vacate is therefore DENIED without prejudice. _________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 15th day of August, 2017. ___________________________________ Luz Estrada Chief Deputy Clerk	{ "pile_set_name": "FreeLaw" }
Paul Glen McDonald, Jr. v. The State of Texas IN THE TENTH COURT OF APPEALS No. 10-97-158-CR PAUL GLEN MCDONALD, JR., Appellant v. THE STATE OF TEXAS, Appellee From the County Court at Law Coryell County, Texas Trial Court # 96-42629 MEMORANDUM OPINION Paul Glen McDonald, Jr. was convicted of driving while intoxicated and sentenced to 45 days in jail plus a $2,500 fine. He appeals pro-se. Although we have requested the statement of facts, he has neglected to see that we receive it. Because we have determined that the statement of facts is not dispositive of any appealed error, we assume the facts of the trial to be as he states them in his brief, and we address his argument accordingly. The crux of McDonald’s complaint is that the trial court erred in admitting the results from his toxicology report because he requested counsel before submitting a breath sample. We will affirm. At the time that Officer David Roberts requested a breath sample from McDonald, he had no right to counsel. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Forte v. State, 707 S.W.2d 89, 91 (Tex. Crim. App. 1986). The right to counsel under the Sixth Amendment attaches only upon or after formal initiation of judicial proceedings. Forte, 707 S.W.2d at 91. His Sixth Amendment right to counsel did not attach until the complaint and information were filed. Id. at 92. A defendant, when faced with a decision whether to provide a breath or blood sample for chemical analysis of alcohol concentration, may not avoid making a decision by invoking the protection of the Fifth Amendment privilege against self-incrimination or the prophylactic safeguards of Miranda. See South Dakota v. Neville, 459 U.S. 553, 564, n. 15, 103 S.Ct. 916, 923, n. 15, 74 L.Ed.2d 748 (1983). In Schmerber v. California, a blood sample was extracted from a defendant by a physician without the defendant's consent. The defendant claimed that his Fifth Amendment privilege against self-incrimination was violated. The Court held that neither the extraction of blood nor the subsequent chemical analysis of the blood for alcohol concentration required appellant to testimonially incriminate himself in violation of the Fifth Amendment. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966). The Court of Criminal Appeals has followed Schmerber with regard to the collection of a breath sample, holding that providing a breath sample for chemical analysis of alcohol concentration is not a testimonial communication protected by the privilege against self-incrimination under the Fifth Amendment. Rodriguez v. State, 631 S.W.2d 515, 517 (Tex. Crim. App. 1982). The Court further held that police officers are not required to give a suspect Miranda warnings prior to asking him to provide a breath sample. Id. We find no denial of appellant's Fifth or Sixth Amendment right to counsel. The judgment is affirmed. BILL VANCE Justice Before Chief Justice Davis, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed January 21, 1998 Do not publish	{ "pile_set_name": "FreeLaw" }
816 F.2d 669 Gabrelianv.Gabrelian 86-7908 United States Court of Appeals,Second Circuit. 3/11/87 1 E.D.N.Y. AFFIRMED	{ "pile_set_name": "FreeLaw" }
184 Mich. App. 766 (1990) 459 N.W.2d 100 MOORE v. ST JOSEPH NURSING HOME, INC Docket No. 112769. Michigan Court of Appeals. Decided August 6, 1990. Zeff, Zeff & Materna (by Donald M. Fulkerson and Howard J. Radner), for plaintiffs. Lacey & Jones (by Stephen Jay Schwartz and Laurel A. Stuart), for defendant. Before: HOLBROOK, JR., P.J., and MURPHY and JANSEN, JJ. 767 HOLBROOK, JR., P.J. Plaintiffs appeal as of right an order of the Wayne Circuit Court granting defendant's motion for summary disposition in a negligence action arising from defendant's failure to disclose information concerning the dangerous propensities of a former employee. On appeal, plaintiffs argue that an employer has a duty to disclose the records of violence of past employees. We affirm. Plaintiffs' decedent, a security guard at a facility serviced by Maintenance Management Corporation, was savagely beaten and murdered by Jeffrey Allen St. Clair, a Maintenance Management employee. Prior to his employment with Maintenance Management, St. Clair was employed by defendant. During the course of his employment with defendant, St. Clair received twenty-four disciplinary warnings for acts ranging from outright violence to alcohol and drug use. Defendant terminated St. Clair's employment in September, 1984. In 1985, St. Clair applied for employment with Maintenance Management and listed defendant on his application as a former employer. Although defendant asserts it was never contacted by Maintenance Management, defendant freely concedes that it would have provided no further information other than St. Clair's dates of employment had it been contacted. Plaintiffs alleged in their suit that this failure to disclose St. Clair's record of extremely violent behavior and character constituted negligence by the defendant. Plaintiffs assert in their appeal that, as a matter of law, a former employer should have a duty to disclose a former employee's dangerous proclivities to an inquiring prospective employer. This is an issue of first impression in Michigan. In attempting to determine whether a defendant owes an actionable duty to a plaintiff as a matter 768 of law, it is necessary to assess competing policy considerations for and against recognizing the asserted duty. Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981). A defendant is subject to liability for negligent conduct if the law recognizes a duty to act with due care arising from the parties' relationship. Roberts v Pinkins, 171 Mich App 648, 651-652; 430 NW2d 808 (1988). A party cannot be said to owe a duty to protect another party who is endangered by a third person unless there exists some special relationship between the first party and either the dangerous person or the potential victim. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). In determining whether there exists a relationship sufficient to impose a duty to act, the societal interests involved, the severity of the risks, the burden upon the defendant and the likelihood of occurrence must be balanced. Pinkins, supra, pp 652-653. Plaintiffs at bar assert that defendant and Maintenance Management Corporation had a special relationship arising from a moral and social duty which Michigan law recognizes as existing between an individual's former and prospective employers. Plaintiffs would have us find that this moral and social duty gives rise to a qualified privilege which would require employers to divulge deleterious information regarding former employees without fear of a defamation suit. This we are unwilling to do. We agree that Michigan law recognizes an employer's qualified privilege to divulge information about a former employee to a prospective employer. See Dalton v Herbruck Egg Sales Corp, 164 Mich App 543; 417 NW2d 496 (1987). There is, however, nothing about the conditional privilege which magically transposes it into a legal obligation 769 requiring employers to disclose adverse information concerning a former employee. Rather, it is quite clear that in Michigan a former employer's duty to release information about a past employee is an imperfect obligation of a moral or social character. Wynn v Cole, 68 Mich App 706, 713; 243 NW2d 923 (1976); aff'd on remand, 91 Mich App 517; 284 NW2d 144 (1979). There is a great societal interest in insuring that employment records are kept confidential. It is all too easy to envision a career destroyed by malefic information released by a disgruntled former employer. To expand the qualified privilege presently enjoyed by employers to require the release of deleterious information without fear of a defamation suit represents a major change in the law. We note that, at present, Michigan has no less than nine statutory provisions addressing libel and slander. In light of this clearly demonstrated legislative intent to regulate defamation law, we feel the position urged upon this Court by plaintiffs is the type of substantive change in the law which is best left to the Legislature. Downie v Kent Products, Inc, 420 Mich 197, 222; 362 NW2d 605 (1984). However, even if the law were such that employers could disclose adverse information about previous employees without fear of defamation suits, it would still be necessary to demonstrate a special relationship between the parties to impose an actionable duty. Duvall v Goldin, 139 Mich App 342, 347; 362 NW2d 275 (1984), lv den 422 Mich 976 (1985). We note that this Court has refused to impose a legal duty to disclose in instances where the relationships were much closer than that presented by the facts before us. See, e.g., Petersen v Heflin, 163 Mich App 402; 413 NW2d 810 (1987) (defendant, the wife of the assailant, co-owner of 770 the premises where the attack occurred and mother-in-law of the victim, had no duty to control the assailant or protect the victim). Nor do we find that the facts presented in the case before us indicate an event so foreseeable as to warrant the imposition of a duty. In Jackson v New Center Community Mental Health Services, 158 Mich App 25; 404 NW2d 688 (1987), lv den 431 Mich 869 (1988), a panel of this Court refused to impose liability upon a psychiatrist and treating hospital although they may have had knowledge of a patient's violent behavior since the patient, who shot and killed two random victims, had not specifically targeted a readily identifiable victim. The case at bar presents neither a foreseeable event nor a foreseeable victim. Plaintiffs' decedent was the unfortunate and tragic victim of St. Clair's random violent behavior. In balancing these factors, we conclude that a former employer has no duty to disclose malefic information about a former employee to the former employee's prospective employer. Although we agree with the trial court that in today's society, with increased instances of child abuse and other types of violence directed towards readily identifiable classes of people, we may have reached a point where people should make this type of information known, we restate our belief that this is a substantive change in our law, the type of change best left to our Legislature. As to plaintiffs' assertion that defendant is clearly liable to them since defendant provided inadequate information to Maintenance Management Corporation, we note that since defendant owed no duty as a matter of law to plaintiffs, defendant can hardly be liable to them. Affirmed. MURPHY, J., concurs in the result only.	{ "pile_set_name": "FreeLaw" }
306 S.W.3d 561 (2009) The HIGHLANDS HOMES ASSOCIATION, et al., Appellants, v. The BOARD OF ADJUSTMENT, et al., Respondents. No. WD 70862. Missouri Court of Appeals, Western District. December 22, 2009. Motion for Rehearing and/or Transfer to Supreme Court Denied February 2, 2010. Application for Transfer Denied April 20, 2010. 563 Thomas M. Schneider, Columbia, MO, for Appellant. Kathleen D. Pitzer, Columbia, MO, for Respondents, Sprint Spectrum, L.P., E. Stanley Kroenke, William James, Jr., Dennis Harper and Sterling Kelly d/b/a Highland Properties Co. Susan G. Crigler, Columbia, MO, for Respondent, Board of Adjustment of the City of Columbia, Missouri. Before Division III: KAREN KING MITCHELL, Presiding Judge, and JAMES E. WELSH and MARK D. PFEIFFER, Judges. KAREN KING MITCHELL, Presiding Judge. This is an appeal from an administrative decision of the Columbia Board of Adjustment ("Board") granting two zoning variances in favor of Highland Properties Co. ("Landowner") and Sprint Spectrum, L.P. ("Sprint") for development of a disguised cellular support structure and accompanying equipment storage facility. We affirm the Board's decision. Factual and Procedural Background Landowner entered into a lease agreement with Sprint, allowing Sprint to construct a ninety-five-foot mono-pole cellular tower on a now-vacant lot. The tower, more accurately called a "disguised support structure," would be designed to look like a flagpole, but without the flag. It would not be lighted and would be painted a matte grey color. The lease also allowed for an equipment shelter for aboveground storage ancillary to the tower. The structure would be landscaped and hidden behind 564 a masonry wall. Verizon Wireless would also use the tower once constructed. The property at issue is zoned C-1, which is a commercial zoning designation for an "intermediate business district." Pursuant to Section 29-21.3(c)(4) of the City of Columbia Ordinances, the construction of a disguised support structure is a permitted use in a C-1 zoning district, "provided that all related equipment shall be placed underground or concealed within the structure." A variance would, therefore, be needed to place the equipment shelter aboveground. Landowner and Sprint requested such a variance from the Board. Columbia's ordinances also limit the height of any building or tower located in a C-1 zoning district to a maximum of thirty-five feet, while allowing another six feet for an antenna, for a maximum total height of forty-one feet. §§ 29-14(d)(3) & 29-26. Initially, Landowner and Sprint took the position before the Board that because disguised support structures were not buildings or towers, they were not subject to the height requirements and did not need a variance for the construction of the ninety-five-foot pole. The Board decided that, because the disguised support structure served basically the same purpose as a tower, it was subject to the height restriction. Accordingly, Landowner and Sprint sought a second variance for the height of the pole. The Board held a hearing on the variance issue. Evidence was presented to the effect that Sprint had a significant area where the cellular phone service it was able to provide to its customers was less than what was acceptable. Some areas had very poor coverage and some areas had no coverage. Sprint also presented evidence that an increasing number of customers were forgoing land lines in favor of cellular telephone service and that over half of the 911 calls made in Columbia in recent years had been made from cellular phones. A Sprint project manager testified that Sprint had looked for several years for a location for a cellular tower. No existing towers were acceptable to Sprint because they were either too far from the low-coverage area or were otherwise not acceptable for joint use with Verizon Wireless. Sprint had also approached several other landowners about constructing a tower in other locations but could not find an acceptable site where the landowner would agree to lease its land for the construction of a cellular tower. The only acceptable site willing to lease to Sprint was the site at issue. The proposed site is located across the street from the Highlands subdivision. The Highlands is an area of fairly upscale homes. Several of the homeowners testified at the hearing that they did not want the cellular tower in the proposed location because it would be visible from many of their homes, and they were afraid it would cause their property values to fall. Landowner presented a local real estate appraiser who testified that he had researched the issue and that several other upscale neighborhoods were located near and within sight of cellular towers and that the towers seemed to have no effect on property values. On the contrary, he believed that many other of the approved C-1 uses for the property, including apartments, daycare centers, restaurants, and retail centers, would create more traffic, noise, and visual pollution than would the cellular tower and would "have a greater potential to impact on the value of the property in that neighborhood than the proposed tower." In discussing the variance needed to place the equipment shelter aboveground, one Board member noted that "time and again, we have been shown that it just 565 doesn't work to put everything underground." Another Board member stated that he had had several meetings on the matter with other City officials and that they had found that it was not technically feasible to put all of the equipment needed for a cellular tower underground as the ordinance required. There was discussion about the need to update the ordinances, and the Board agreed to grant the two requested variances. The Highlands Homes Association and individual homeowners (collectively "Association") appeal the Board's decision. Standard of Review We review the decision of the Board, not the decision of the trial court. State ex rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681, 684 (Mo. banc 2000). We review many zoning board decisions to determine whether they are supported by competent and substantial evidence on the record as a whole, or whether they are arbitrary and capricious, unreasonable, unlawful, or in excess of the Board's jurisdiction. Id. This is the standard of review the Association urges us to use. A zoning board's grant of non-use variances such as the ones at issue in this case, however, are reviewed for abuse of discretion. State ex rel. Branum v. Bd. of Zoning Adjustment, 85 S.W.3d 35, 39 (Mo. App. W.D.2002). There are two main types of variances a board may be asked to grant. Use variances allow a landowner to use a particular property in a manner that is not permitted under applicable zoning ordinances. See Matthew v. Smith, 707 S.W.2d 411, 413 (Mo. banc 1986). Non-use variances allow the landowner to use the property in a manner approved by the ordinance but allow the landowner to deviate from a restriction related to the permitted use. Id. Non-use variances usually concern restrictions as to height of a structure, bulk of a structure, or setback from a property line. Id. In this case, a disguised cellular support structure is a permitted use for property zoned C-1, so the requested variance is a non-use variance. An applicant for a use variance must prove that it faces an "unnecessary hardship," whereas an applicant for a non-use variance must show that it faces "practical difficulties." Baumer v. City of Jennings, 247 S.W.3d 105, 113 (Mo.App. E.D.2008). The non-use variance applicant's burden is, therefore, "slightly less rigorous" than that of the use-variance applicant. Id. (emphasis in original). "The determination of whether practical difficulties exist is a factual matter," which is why the abuse of discretion standard is used. Id. Legal Analysis The Association's first two points on appeal are that there is a lack of substantial evidence in the record supporting the Board's grant of the non-use variances for the construction of the cellular tower and the equipment structure. Because the Association does not apply the correct standard of review, we will interpret their points as asserting that the Board abused its discretion in granting the variances. See Branum, 85 S.W.3d at 39. A. Height Variance We will first review the grant of the variance as to the height of the disguised support structure. The Board granted the variance, apparently finding Sprint and Landowner proved practical difficulties that warranted the variance. The Association argues that Landowner "failed to offer any evidence to establish the elements of a variance," citing Branum. Branum, however, does not set forth "elements of a variance," a fact that the Association's counsel acknowledged of his own accord at argument. Rather, Branum 566 notes that there is no precise definition for "practical difficulties" when it comes to a board's determination of whether a variance should be granted. Id. at 40. It goes on to quote Slate v. Boone County Board of Adjustment, 810 S.W.2d 361, 364 (Mo.App. W.D.1991), "`[a]t the very least, a non-use variance applicant must show that as a practical matter the property cannot be used for a permitted use without coming into conflict with certain of the ordinance's restrictions.'" Id. (emphasis added). The Association seems to interpret this to mean that before a variance could be granted, Land	{ "pile_set_name": "FreeLaw" }
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE RANDA DRIVER, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF REVENUE, Defendant/Appellee. No. 1 CA-TX 18-0006 FILED 6-11-2019 Appeal from the Arizona Tax Court No. TX2017-000183 Maricopa County Superior Court No. LC2016-000509-001 The Honorable Christopher T. Whitten, Judge AFFIRMED COUNSEL Randa Driver, Scottsdale Plaintiff/Appellant Arizona Attorney General’s Office, Phoenix By Benjamin H. Updike Counsel for Defendant/Appellee DRIVER v. ADOR Decision of the Court MEMORANDUM DECISION Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined. C R U Z, Judge: ¶1 Randa Driver appeals from the grant of summary judgment in favor of the Arizona Department of Revenue (the “Department”) finding Driver liable for luxury and use tax on the cigarettes she purchased over a three-year period. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Between January 1, 2007 and November 30, 2009 (the “Assessment Period”), Driver purchased cigarettes from Chavez, Inc. (“Chavez”), a company that sold cigarettes by phone and over the Internet. In 2010, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) investigated Chavez for the unlawful diversion of tobacco products. Chavez pled guilty to wire fraud and admitted to running “an illegal retail cigarette trafficking business” and selling unstamped cigarettes on which no tax was paid. ¶3 During the investigation, ATF identified the Arizona customers to whom Chavez had sold and shipped cigarettes and provided their names and purchase information to the Department. Using that information, the Department issued Driver a Notice of Proposed Assessment (“Notice”) reflecting that she owed $4,473.89 in luxury and use tax, plus interest. ¶4 Driver protested the assessment. At a hearing before the Office of Administrative Hearings, the Administrative Law Judge (“ALJ”) deducted five invoices from the assessment, concluding that Driver’s sister had made those purchases, but upheld the remaining assessment. Driver appealed the ALJ’s decision to the Department Director, who affirmed. She then appealed to the Board of Tax Appeals (“BOTA”), who also affirmed. ¶5 After exhausting her administrative remedies, Driver appealed to tax court. The parties filed cross-motions for summary judgment. The court granted the Department’s motion and denied Driver’s. After entry of final judgment, Driver appealed. We have 2 DRIVER v. ADOR Decision of the Court jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12- 2101(A)(1) (2019). DISCUSSION ¶6 We review the tax court’s grant of summary judgment de novo. See Wilderness World, Inc. v. Dep’t of Revenue State of Ariz., 182 Ariz. 196, 198 (1995). In doing so, we view the facts in the light most favorable to Driver, the party against whom judgment was entered. See Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565, 568, ¶ 2 (1998). I. Luxury and Use Tax ¶7 Driver first argues the tax court erred in granting summary judgment because Chavez “legally owed all taxes on cigarettes sold into this state” and, therefore, Driver is not liable for the tax. ¶8 Arizona imposes a luxury privilege tax on all cigarette purchases. See A.R.S. § 42-3051 (2019). Under Arizona law, cigarettes cannot be sold unless the luxury tax has been paid and an official tax stamp is affixed. See A.R.S. § 42-3452 (2019), formerly A.R.S. § 42-3202 (2006). A tax stamp is evidence that luxury tax was paid, and the law presumes that unstamped cigarettes “are intended for first sale by the person and are subject to the taxes imposed by this chapter.” A.R.S. § 42-3453 (2019), formerly A.R.S. § 42-3202.01 (2006); see also A.R.S. § 42-3452 (2019), formerly A.R.S. § 42-3202 (2006). “First sale” means either “the initial sale or distribution in intrastate commerce” or “the initial use or consumption of cigarettes.” A.R.S. § 42-3001(10) (2019), formerly A.R.S. § 42-3001(12) (2006). ¶9 Current Arizona law prohibits the purchase of cigarettes by telephone, Internet, or mail. See A.R.S. § 36-798.06 (2019); 2012 Ariz. Sess. Laws, ch. 311, § 2 (2nd Reg. Sess.). Under current law, an individual cannot possess unstamped cigarettes unless that person is a licensed cigarette manufacturer, importer or distributor, or has a proper bill of lading. See A.R.S. § 42-3457(A) (2019). During the Assessment Period, however, phone and Internet cigarette sales were permitted and were governed by the “Delivery Sales” statutes. See A.R.S. §§ 42-3221 to -3230 (2006), repealed by 2012 Ariz. Sess. Laws, ch. 3, § 20 (2nd Reg. Sess.). ¶10 At the time Driver was purchasing cigarettes from Chavez, an individual could possess unstamped cigarettes for his or her own use and consumption if the person complied with certain requirements. See A.R.S. § 42-3205(A) (2006). To legally possess unstamped cigarettes, the individual had to register with the Department “on a form and in a manner 3 DRIVER v. ADOR Decision of the Court prescribed” by the Department and remit luxury tax within ten days after receipt of the unstamped cigarettes. See A.R.S. § 42-3201(C) (2006). The prescribed registration form was Arizona Form 800DS, entitled the “Cigarette Tax Return” required for “unstamped cigarettes imported into Arizona.” ¶11 Driver purchased cigarettes from Chavez for her own use or consumption in Arizona. No tax was paid on those cigarettes. Although required under law to file a Form 800DS and remit taxes to the Department, Driver did neither. Therefore, she is liable for the unpaid luxury tax. ¶12 In addition to luxury tax, Arizona also imposes a tax on the use or consumption of tangible personal property purchased from an out- of-state retailer. See A.R.S. § 42-5155(A) (2019). A purchaser is personally liable for use tax. See A.R.S. § 42-5155(F) (2019), formerly A.R.S. § 42-5155(E) (2006). This court has previously explained the distinction between the transaction privilege tax and the use tax: “In contrast to the transaction privilege tax, which is imposed on transactions consummated within Arizona, a use tax is designed to reach out-of-state sales of tangible personal property to Arizona purchasers.” See Ariz. Elec. Power Coop., Inc. v. Ariz. Dep’t of Revenue, 242 Ariz. 85, 87, ¶ 7 (App. 2017). ¶13 The record reflects that, over the course of three years, Driver purchased cigarettes from Chavez, an out-of-state retailer, and used or consumed the cigarettes in Arizona. Thus, Driver is liable for use tax. ¶14 Driver’s complaint alleged that “[t]he remote tobacco seller [Chavez], NOT the buyer, was legally required to collect and remit all Arizona taxes owed at the time of taking the internet order.” Driver is correct that under the Delivery Sales statutes, “[e]ach person accepting a purchase order for a delivery sale” was required to “collect and remit to the [D]epartment all taxes imposed on tobacco products by this state.” A.R.S. § 42-3227 (2006). Chavez failed to comply with the Delivery Sales statutes. Its failure, however, does not relieve Driver of tax liability. As a purchaser	{ "pile_set_name": "FreeLaw" }
Filed 6/28/16 P. v. Johnson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B264679 (Super. Ct. Nos. F334169, Plaintiff and Respondent, F352789, F379456, F416886) (San Luis Obispo County) v. RYAN JAMES JOHNSON, Defendant and Appellant. The issue here concerns the proper construction of the word "prior" in Penal Code section 1170.18, subdivision (i) (hereafter "subdivision (i)").1 Section 1170.18 was enacted in November 2014 by the passage of Proposition 47, also known as the Safe Neighborhoods and Schools Act. Section 1170.18, subdivisions (f) and (g) permit certain convicted felons who have completed their sentences to apply to have their felony convictions designated as misdemeanors. Subdivision (i) states that section 1170.18 "shall not apply to persons who have one or more prior convictions" for specified serious or violent felonies, including murder. (Italics added.)2 The question is 1 All statutory references are to the Penal Code unless otherwise stated. 2 The full text of subdivision (i) is as follows: "The provisions of this section [section 1170.18] shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." whether "prior" means prior to the felony conviction that the applicant is seeking to have designated as a misdemeanor, or prior to the court's ruling on the application. We conclude that "prior" means prior to the court's ruling on the application. We affirm the trial court's order denying appellant's application to have his felony convictions designated as misdemeanors because he was convicted of murder prior to the trial court's ruling on the application. It is of no consequence that the murder conviction occurred after the felony convictions that he sought to have designated as misdemeanors. Procedural Background In January 2015, appellant filed an application requesting that four felony convictions be designated as misdemeanors pursuant to section 1170.18, subdivisions (f) and (g). The felony convictions occurred in 2003 (case no. F334169), 2005 (case nos. F352789 and F379456), and 2008 (case no. F416886). The District Attorney responded that appellant is ineligible for the requested relief because he was convicted of murder in case no. F435613. The murder conviction occurred after the felony convictions that appellant sought to have designated as misdemeanors. In 2013 we affirmed the murder conviction. (People v. Johnson (2013) 221 Cal.App.4th 623.) The trial court denied the application. Discussion Appellant claims that the trial court erroneously denied his application for designation as misdemeanors. He argues that he was eligible for the requested relief because his murder conviction occurred after the subject convictions. Where, as here, a matter of statutory construction is involved, "our task is to discern the lawmakers' intent. [Citation.] Because section [1170.18] was enacted by the electorate, it is the voters' intent that controls. [Citation.] Nonetheless, our interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature. [Citations.] We therefore first look to 'the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context.' [Citations.]" (People v. Park (2013) 56 Cal.4th 782, 796.) "'When the 2 language is ambiguous, "we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet." [Citation.]' [Citation.]" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) The term "prior" in subdivision (i) is ambiguous. The ambiguity is "cured" by the Legislative Analyst's comments on Proposition 47 in the Official Voter Information Guide for the November 4, 2014 general election. The Legislative Analyst made clear that "prior" means prior to the court's ruling on an application to have a felony conviction designated as a misdemeanor: "This measure [Proposition 47] allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor. However, no offender who has committed a specified severe crime [e.g., murder] could be resentenced or have their conviction changed." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), Prop. 47, Analysis by Legislative Analyst, p. 36, italics added.) Thus, it makes no difference whether appellant was convicted of murder before or after the felony convictions that he sought to have designated as misdemeanors. Appellant was ineligible for relief because, when the trial court ruled on his application, he had a prior conviction for murder. "The Legislative Analyst's comments, like other materials presented to the voters, 'may be helpful but are not conclusive in determining the probable meaning of initiative language.' [Citation.] Thus, when other statements in the election materials contradict the Legislative Analyst's comments we do not automatically assume that the latter accurately reflects the voters' understanding. [Citation.]" (San Francisco Taxpayers Assn. v. Bd. of Supervisors (1992) 2 Cal.4th 571, 580.) Nothing in the election materials for Proposition 47 contradicts the Legislative Analyst's conclusion that "no offender who has committed a specified severe crime could be resentenced or have their conviction changed." (See People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 3 82 [Legislative Analyst's comment "eliminates doubt" as to correct interpretation of ballot proposition].) Moreover, the rebuttal to the argument against Proposition 47 made clear that a person who has been convicted of murder cannot seek relief under section 1170.18 regardless of when the conviction occurred: "Proposition 47 does not require automatic release of anyone. There is no automatic release. It includes strict protections to protect public safety and make sure rapists, murderers, molesters and the most dangerous criminals cannot benefit." (Voter Information Guide, supra, Rebuttal to Argument Against Prop. 47, p. 39.) Finally, section 2 of Proposition 47 provides, "This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed." (Voter Information Guide, supra, Text of Proposed Law: The Safe Neighborhoods and Schools Act, § 2, p. 70.) Section 3, subdivision (1) of Proposition 47 includes a similar provision: "In enacting this act, it is the purpose and intent of the people of the State of California to: [¶] (1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act." (Id., § 3, subd. (1), p. 70.) Were we to adopt appellant's interpretation of "prior conviction" in subdivision (i), people like appellant who had been convicted of murder would benefit from Proposition 47. This would be contrary to the intent of the electorate. "'[W]e may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.' [Citation.]" (People v. Park, supra, 56 Cal.4th at p. 796.) Our interpretation of "prior conviction" in subdivision (i) is consistent with People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184 ["the 'prior conviction' ineligibility for relief means a disqualifying conviction that occurred any time before the filing of the application for Proposition 47 relief"]. It is also consistent with People v. Montgomery (2016) 247 Cal.App.4th 1385, 1392 ["section 1170.18 precludes redesignation for anyone who has a conviction for the enumerated excluded crimes prior to the time of the application for	{ "pile_set_name": "FreeLaw" }
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT LEONARDO GUTIERREZ, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee. No. 4D16-4042 [October 5, 2017] Appeal from the State of Florida, Department of Financial Services; L.T. Case No. 187898-16-AG. Howard J. Hochman, Miami, for appellant. Matthew R. Daley, Assistant General Counsel, and Gregory D. Venz, Deputy General Counsel, Tallahassee, for appellee. PER CURIAM. Affirmed. TAYLOR, MAY and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.	{ "pile_set_name": "FreeLaw" }
and had a land use planning expert testify that the request conformed to the County's codes and the Enterprise master plan. The Enterprise Town Advisory Board, other neighboring property owners, and the Southwest Action Network, a community organization, opposed El Dorado's request, arguing that the project was too intense for the surrounding Rural Neighborhood Preservation area. After the public hearing, the Board denied El Dorado's zone change request and design review. El Dorado filed a petition for judicial review, which the district court denied, and this appeal followed. This court reviews the Board's grant or denial of a rezoning request for an abuse of discretion and will affirm the Board's factual determinations if they are supported by substantial evidence. City of Reno v. Citizens for Cold Springs, 126 Nev. , 236 P.3d 10, 15-16 (2010). The Enterprise master plan sets forth competing goals for growth and development that guide rezoning decisions, including protecting low- density rural living as a lifestyle choice and providing opportunities for research and business park development. Thus, the master plan does not guarantee that a particular zoning district, density, or intensity of land use will be approved by the Board. Although the zone change request conformed to the master plan and El Dorado presented evidence that supported its request, the Board also heard and considered evidence in opposition to the request. Because a zoning decision is discretionary, there is a "general reluctance to judicially intervene in zoning determination absent clear necessity." Nova Horizon, Inc. v. City Council of Reno, 105 Nev. 92, 96-97, 769 P.2d 721, 724 (1989). While the record may contain evidence contrary to the finding of the Board, this court will not reweigh the evidence or replace SUPREME COURT OF NEVADA 2 (0) 1947A the Board's judgment as between two reasonably conflicting views. See NRS 233B.135(2); Nellis Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008). The Enterprise Town Advisory Board's concerns in opposition to the project, as well as the issues raised by neighboring property owners and the Southwest Action Network, constitute substantial evidence that supports the Board's decision to deny El Dorado's zone change request and design review. See Stratosphere Gaming Corp. v. City of Las Vegas, 120 Nev. 523, 529-30, 96 P.3d 756, 760-61 (2004) (explaining that substantial and specific public opposition may constitute substantial evidence . to support a zoning decision); see also City of Reno, 126 Nev. at , 236 P.3d at 15 (defining substantial evidence as "that which a reasonable mind could accept as sufficient to support a conclusion"). And despite appellant's assertion otherwise, the Board's decision does not conflict with the master plan, which sets forth the goals and policies for zoning decision-making and allows for a range of possible zoning districts on appellant's property. Accordingly, because the Board did not abuse its discretion in denying the zone change request and design review, we affirm the district court's order denying judicial review. It is so ORDERED. J. Saitta ' J. Gibbons SUPREME COURT OF NEVADA 3 (0) 1947A effe544 cc: Hon. Rob Bare, District Judge Nathaniel J. Reed, Settlement Judge Kaempfer Crowell/Las Vegas Clark County District Attorney/Civil Division Eighth District Court Clerk SUPREME COURT OF NEVADA 4 (0) 1947A e	{ "pile_set_name": "FreeLaw" }
February 16, 1979 79-15 MEMORANDUM OPINION FOR ASSISTANT ATTORNEY GENERAL, LANDS AND NATURAL RESOURCES DIVISION Federal Aviation Administration—Federal Airport Act of 1946 (60 Stat. 170)—Airport and Airway Development Act of 1970 (49 U.S.C. §§ 1716, 1723)—Conveyance of Federal Lands for Airport Development Mr. Harmon has asked me to respond to your memorandum requesting this Office to initiate action to reinstate the authority initially conferred by Executive Order No. 10536, but subsequently revoked by § 2 o f Executive Order No. 12079. For the reasons expressed herein, we do not believe it necessary to reinstate that authority. Rather, we conclude that the author ity conferred by § 1 o f Executive Order No. 12079 is sufficient to meet your concerns. I. Background You raise issues concerning the interrelationship of two separate but related pieces o f legislation and the orders issued thereunder. The perti nent portions o f the separate enactments relate both to the development of public airports and to Federal assistance to such projects. The first enact ment, the Federal Airport Act o f 1946, 60 Stat. 170 (hereinafter referred to as the 1946 Act), required that, as a condition o f receiving Federal grants, State and local public agencies submit airport development project appli cations to the A dm inistrator o f the Federal Aviation Adm inistration. § 9(a), 60 Stat. 174. The Adm inistrator, before entering into any grant agreement, was required to approve the project application. Numerous conditions were to be met before approval could be given; one condition was that No project shall be approved by the Adm inistrator with respect to any airport unless a public agency holds good title, satisfactory to the Adm inistrator, to the landing area o f such airport or the 95 site therefor, or gives assurance satisfactory to the Adm inistrator that such title will be acquired. [Section 9(d), 60 Stat. 175.] Another provision o f the same Act provided for the conveyance o f Federal lands when the Adm inistrator determined that this was “ reasonably neces sary for carrying out a project” under the Act. § 16(a), 60 Stat. 179. The procedure for carrying out such a conveyance was as follows: Upon receipt o f a request from the Adm inistrator under this sec tion, the head o f the departm ent or agency having control o f the lands in question shall determine whether the requested convey ance is inconsistent with the needs o f the departm ent or agency, and shall notify the A dm inistrator o f his determ ination within a period o f four m onths after receipt o f the Adm inistrator’s re quest. If such departm ent or agency head determines that the re quested conveyance is not inconsistent with the needs o f that departm ent or agency, such departm ent or agency head is hereby authorized and directed, with the approval o f the President and the A ttorney General o f the United States, and without any ex pense to the United States, to perform any acts and to execute any instruments necessary to make the conveyance requested; but each such conveyance shall be made on the condition that the property interest conveyed shall automatically revert to the United States in the event that the lands in question are not developed, or cease to be used, for airport purposes. [Section 16(b), 60 Stat. 179.] In Executive Order No. 10536 o f June 9, 1954, the President authorized the heads o f departm ents and agencies to execute conveyances under this provision without the approval o f the President. The second pertinent piece o f legislation, the Airport and Airway Devel opm ent Act o f 1970, Pub. L. No. 91-258, 84 Stat. 219 (hereinafter re ferred to as the 1970 Act), repealed the 1946 Act, but it also enacted provi sions which, to a great extent, adhered to that A ct’s approach. As a condi tion o f receiving Federal grants, public agencies once again had to obtain approval o f project applications for airport development. 49 U.S.C. §§ 1716(a), 1719. The conditions o f approval were largely the same as in the 1946 Act, including that o f good title, 49 U .S.C . § 1716(c), but stricter environmental standards were to be applied. See 49 U .S.C . § 1716(c)(4), (d) and (e). A provision similar to that o f the 1946 Act was made for con veyances o f Federal lands, except that certain parklands were exempted. 49 U.S.C. § 1723. In Executive O rder No. 12079, 3 CFR 224 (1979), the President authorized the conveyances to be executed without his approval. The repeal o f the 1946 Act soon gave rise to the question whether, where grant agreements had been finalized under the 1946 Act, conveyances of Federal land pursuant to those agreements might still be made and ap proved under the authority o f the 1946 Act. In our opinion o f January 19, 1971, this Office answered the question affirmatively. The opinion relied on § 52(c) o f the 1970 Act, 84 Stat. 219, 236, which explicitly continued in 96 effect “ all orders, determ inations, rules, regulations, permits, contracts, certificates, licenses, grants, rights and privileges” which had taken effect under the 1946 Act. The opinion also reasoned that, since a conveyance of land was “ inextricably bound up with the grant agreem ent,” Congress must have intended that the savings clause permitted conveyancing in ac cordance with the 1946 Act. Under this interpretation, conveyances continued to be made under the 1946 Act by reason o f Executive Order No. 10536, and were made without the approval o f the President. Despite the significant lapse o f time since the repeal o f the 1946 Act, it is our understanding that a num ber o f con veyances, which could be approved without Presidential approval under Executive Order No. 10536 and our previous opinion, have yet to be made. However, since Executive Order No. 10536 has been revoked by Ex ecutive Order No. 12079, the question is whether a new authorization must be obtained in order to execute these conveyances without the approval o f the President. As noted above, we do not believe this to be the case. II. Discussion Section 23 o f the 1970 Act, 49 U.S.C. § 1723, provides as follows: (a) Requests for use. Subject to the provisions o f subsection (c) o f this section, whenever the Secretary determines that use o f any lands owned or controlled by the United States is reasonably necessary for carrying out a project for airport development under this part, [part II], or for the operation o f any public airport, including lands reasonably necessary to meet future development o f an air port in accordance with the national airport system plan, he shall file with the head o f the departm ent or agency having control of the lands a request that the necessary property interests therein be conveyed to the public agency sponsoring the project in ques tion or owning or controlling the airport. The property interest may consist o f the title to, or any other interest in, land or any easement through or other interest in airspace. (b) Execution o f conveyances. Upon receipt o f a request from the Secretary under this sec tion, the head o f the departm ent or agency having control o f the lands in question shall determine whether the requested convey ance is inconsistent with the needs o f the departm ent or agency, and shall notify the Secretary o f his determ ination within a period o f four m onths after receipt o f the Secretary’s request. If the departm ent or agency head determines that the requested conveyance is not inconsistent with the needs o f that departm ent or agency, the departm ent or agency head is hereby authorized and directed, with the approval o f the President and the Attorney General o f the United States, and without any expense to the United States, to perform any acts and to execute any 97 instruments necessary to make the conveyance requested. A con veyance may be made only on the condition that, at the option of the Secretary, the property interest conveyed shall revert to the United States in the event that the lands in question are not developed for airport purposes or used in a m anner consistent with the terms o f the conveyance. If only a part o f the	{ "pile_set_name": "FreeLaw" }
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0206p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NANCY ROELL, as executrix of the estate of Gary L. ┐ Roell, Sr., │ Plaintiff-Appellant, │ │ > No. 16-4045 v. │ │ │ HAMILTON COUNTY, OHIO/HAMILTON COUNTY BOARD │ OF COUNTY COMMISSIONERS; JIM NEIL, in his official │ capacity as the Hamilton County Sheriff; JOSEPH │ HUDDLESTON, MATTHEW ALEXANDER, and WILLY │ DALID, individually and in their official capacities as │ employees of Hamilton County, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:14-cv-00637—Sandra S. Beckwith, District Judge. Argued: June 13, 2017 Decided and Filed: September 5, 2017 Before: MOORE, GILMAN, and COOK, Circuit Judges. _________________ COUNSEL ARGUED: Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO LPA, Cincinnati, Ohio, for Appellant. Pamela Sears, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellees. ON BRIEF: Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO LPA, Cincinnati, Ohio, for Appellant. Pamela Sears, Jerome A. Kunkel, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, George D. Jonson, Linda L. Woeber, MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio, for Appellees. GILMAN, J., delivered the opinion of the court in which COOK, J., joined. MOORE, J. (pp. 23–29), delivered a separate dissenting opinion. No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 2 _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. Gary Roell, who suffered from chronic mental illness, caused a disturbance at his neighbor’s condominium while experiencing a condition known as excited delirium. Hamilton County sheriff’s deputies arrived to find Roell half-naked, muttering unintelligibly, and standing next to a broken window holding a hose and the remnants of a hanging plant. While attempting to subdue Roell, the deputies physically struggled with him and unsuccessfully tased him multiple times. Roell stopped breathing during the encounter with the deputies and was pronounced dead shortly thereafter. His death was documented by the coroner as natural, resulting from his excited delirium. Roell’s wife, Nancy Roell, appeals the district court’s grant of summary judgment in favor of the individual deputies on her claim under 42 U.S.C. § 1983. She also appeals the grant of summary judgment in favor of Hamilton County on her claims under both § 1983 and the Americans with Disabilities Act (the ADA). For the following reasons, we AFFIRM the judgment of the district court. I. BACKGROUND A. Factual background Roell suffered from mental illness, including schizoaffective disorder and paranoid delusions, for many years. Although Roell’s symptoms could be successfully controlled by medication, he had a history of noncompliance with his drug regimen. When he did not take his medication, Roell’s mental health deteriorated and his unpredictable behavior rendered him a danger to both himself and to others. Roell stopped taking his medication in June 2013 and began exhibiting signs of mental decompensation by early August. Sometime in the late evening hours of August 12 or the early morning hours of August 13, Roell entered a state of excited delirium. Nancy Roell was out of town during this time, participating in a church mission in New Jersey. In the midst of his No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 3 excited delirium, Roell damaged his and Nancy’s condominium by scattering debris, clothes, and other household items inside and around the building. Roell then went to the condominium of his neighbor, Rachana Agarwal, and threw a flower pot through her window. Agarwal was awakened by the noise of shattering glass and went downstairs to find Roell standing outside of her condominium by the broken window. She attempted to talk to Roell, who was screaming something about “water.” Roell then pulled the screen from Agarwal’s window and threw it at her. At that point, Agarwal became scared and ran back inside the condominium, where she told her son, Soham, to call 911. Soham dialed 911 and handed the phone to Agarwal, who told the operator that her neighbor was “acting crazy.” Agarwal testified that, during this time, Roell appeared to be angry, his face red and his eyes bulging, and he kept muttering unintelligible things about water. Roell was also pacing back and forth in front of Agarwal’s broken window, periodically peering into her condominium. Deputies Matthew Alexander, Willy Dalid, and Joseph Huddleston responded to the dispatch of a “neighbor trouble” call. First to arrive at Agarwal’s condominium were Deputies Alexander and Huddleston, who were told by Agarwal that Roell was “in the back breaking things.” They entered the gated patio area and saw Roell standing by Agarwal’s broken window holding a garden hose with a metal nozzle in one hand and a garden basket in the other. The garden basket was a hanging plant surrounded by peat moss and held together with plastic wire. Roell was wearing a t-shirt but was otherwise naked. According to Deputy Alexander, Roell was screaming “no” and something about water when he and Deputy Huddleston arrived. Deputy Huddleston proceeded to ask Roell what he was doing. Although Deputy Huddleston could not recall Roell’s response, he testified that Roell immediately turned and approached him and Deputy Alexander in an aggressive manner. Roell still had the hose and the garden basket in his hands. Deputy Alexander similarly recalled that he and Deputy Huddleston told Roell to “show us your hands” and that Roell, “immediately, within seconds,” charged at them at a “pretty brisk walk.” Deputy Alexander also said that Roell approached them still holding the hose and the garden basket. No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 4 Soham Agarwal was watching the events unfold from inside the condominium and heard Roell screaming about how “he didn’t have water and we had water.” In addition, Soham observed the deputies telling Roell to calm down, to stop resisting, to come over to them, and to drop whatever he had in his hands. Soham recalled that Roell repeatedly shouted that he did not have a weapon. But Soham also testified that, despite Roell’s assertions that he was unarmed, Roell was facing the deputies swinging the hose “as if he was trying to hit somebody.” Rachana Agarwal, also watching from the inside of her condominium, confirmed that the deputies told Roell to calm down and that Roell was swinging the hose nozzle at the deputies. Agarwal observed the deputies and Roell approach each other, with Roell proceeding at a pace between a walk and a sprint, still holding the hose. As Roell approached the deputies, Deputy Huddleston told Roell to stop and to get on the ground or he would be tased. Deputy Huddleston then unholstered his X2 Taser and arced it as a warning. Arcing a taser does not deploy the device; it simply creates a sound. Roell flinched when Deputy Huddleston arced his taser but kept approaching. Deputy Huddleston once more arced his taser and commanded Roell to get on the ground. Roell again flinched but continued to approach the deputies. Deputy Huddleston then holstered his taser and reached out to grab one of Roell’s arms. At the same time, Deputy Alexander grabbed Roell’s	{ "pile_set_name": "FreeLaw" }
423 F.Supp.2d 61 (2005) Douglas CAMPBELL, d/b/a Campbell Environmental Systems, Plaintiff, v. AUSTIN AIR SYSTEMS, LTD., Defendant. No. 02-CV-651S. United States District Court, W.D. New York. September 29, 2005. 62 63 Mark E. Saltarelli, Saltarelli & Associates, P.C., Tonawanda, NY, for Plaintiff. Gerald T. Walsh, Zdarsky, Sawicki & Agostinelli, Buffalo, NY, for Defendant. DECISION AND ORDER SKRETNY, District Judge. I. INTRODUCTION In this case, Plaintiff Douglas Campbell d/b/a Campbell Environmental Systems ("Campbell"), a distributor of air cleaners, alleges that Defendant Austin Air Systems, Ltd. ("Austin"), a manufacturer of air cleaners, engaged in price fixing, terminated his distributorship, discriminated between distributors with respect to pricing, tortiously interfered with his customer contracts, and breached the terms of its own distributorship agreement. Plaintiff seeks relief under federal anti-trust law as well as New York law. Currently before this Court is Defendant's Motion for Summary Judgment on Plaintiff's claims and on its own counterclaim for unpaid invoices. II. BACKGROUND A. Factual Summary The following facts are undisputed for purposes of the instant motion, except 64 where indicated. Defendant Austin manufactures portable air cleaners and filters, and sells these products principally through non-exclusive dealers. (Defendant's Rule 56 Statement of Undisputed Material Facts ("Def's State."),[1] ¶¶ 4, 5). Plaintiff Campbell acted for several years without a contract as a distributor of Austin Air Cleaners until 2002. (Def's State., ¶¶ 21, 22). On March 25, 2002, Plaintiff signed a written Authorized Dealership Agreement ("Agreement") with Austin. (Def's State., ¶¶ 22, 23). The Agreement explicitly states that dealers could sell Austin Air Cleaners for any price. (Def's State., ¶ 26; Domon Aff, Exh. A, ¶ 3(f)).[2] Moreover, the Agreement provides that either Austin or the dealer may terminate the Agreement at any time, with or without cause, upon seven days prior notice to the other party. (Def's State., ¶ 28; Domon Aff., Exh. A, ¶ 6(e)). With respect to promotion or advertisement of Austin products on the Internet, the Agreement requires that the dealer submit its proposed Internet page or any modification to its existing page to Austin for approval. (Def's State., ¶ 27; Domon Aff., Exh. A, ¶ 4(a), (c)). Most significantly, the Agreement states that "any Internet advertising of Products must show the price [the] Dealer is selling for[, and this] pricing must be the same or higher than Austin's Advertising Price Schedule as it may be amended from time to time." (Def's State., ¶ 27; Domon Aff, Exh. A, ¶ 4(f)). Austin initiated this Advertising Price Schedule for the Internet, a species of minimum advertising pricing ("MAP"), after Campbell suggested it in a September 13, 2001 e-mail to Austin's President Richard Taylor ("Taylor"). (Def's State., ¶¶ 10-14; Appendix to Def's State. ("App."). Ex. A). The e-mail, sent under the subject line "Austin Air Lowball Internet Advertisers," apprised Taylor that marketers were advertising prices on the Internet that were lower than the retail price. (Def's State., ¶¶ 10-11; Campbell Dep., p. 22-23 (attached as Ex. B to App.); App., Ex. A). Campbell attached to his email examples of web pages from other marketers and complained that replacement filters were being advertised for "far less than what they should be sold for." (Def's State., ¶¶ 11-13, Campbell Dep., pp. 25-27; App, Ex. A). According to Campbell's e-mail, his advertising costs had gone up and his sales had dropped since a new Internet software was introduced which allowed companies to outbid other companies for favorable placement on an Internet search engine. (Def's State., ¶ 12; Campbell Dep., p. 23-25; App., Ex. A). Campbell stated to Taylor that MAP was the proven "way to go," based on his prior experience as a consultant for Miele Vacuum. (Def's State., ¶ 14, Campbell Dep., pp. 28-29; App, Ex. A). Campbell suggested that other Austin distributors should be suspended until they complied with the MAP policy, and stated that "the minute you start suspending a few distributorships and halting shipment, they will listenTHEY WILL LISTEN!" (Def's State., ¶ 15, Campbell Dep., p. 30; App., Ex. A). At his deposition, Campbell acknowledged the difference between MAP, the minimum price for which a dealer may advertise, and the actual price for which a 65 dealer could actually sell a product. (Def's State., ¶ 16, Campbell Dep., pp. 30-31). Further, Campbell opined that the sales process only becomes competitive after a consumer contacts the distributor for a price. (Def's State., ¶ 17, Campbell Dep., pp. 31-32). According to his deposition testimony, Campbell voiced concerns in the fall of 2001 about new credit policies implemented by Robert Mahaney, Austin's comptroller. (Def's State., ¶ 18, Campbell Dep., pp. 46-54). Mahaney testified that Austin initially extended Campbell a $25,000 line of credit. (Def's State., ¶ 19, Mahaney Dep., p. 35 (attached as Ex. D to Aff)). Austin eventually increased Campbell's credit limit to $35,000. (Def's State., ¶ 19, Mahaney Dep., p. 35). According to Austin, its distributors, including Mr. Campbell, were charged set list prices, which were raised across the board in 2002. (Def's State., ¶ 20). However, according to the sworn affidavit of Heather Peterson, a former Austin employee, Austin only raised the unit prices for a handful of distributors, including Campbell. (Peterson Aff, ¶ 9).[3] Austin unilaterally terminated its Agreement with Campbell on June 17, 2002. (Def's State., ¶ 29; Doman Aff, Exs. A, B). Austin alleges that it was forced to terminate Campbell as a dealer because he refused to comply with Austin's Internet advertising policy. (Taylor Aff, ¶ 18). For example, Austin alleges that Campbell's Internet advertisement claimed the "lowest prices," without specifying Austin's list price. (Taylor, 15, 18). Austin contends that when he was confronted, Campbell initially added the list price to his website, but subsequently deleted the price after Austin confirmed that the site was in compliance. (Taylor Aff, ¶¶ 15, 18). Campbell disputes Austin's contention that he was terminated for refusing to comply with Austin's Internet MAP policy. (Pl.'s State., ¶¶ 19-14). Rather, Campbell claims that his problems with Austin began in September of 2001 when he sold deeply discounted air filter systems to victims of the 9/11 tragedy in New York City. (Campbell Aff, ¶ 7). Campbell contends that his competing distributors complained to Austin about the discounts he was providing. (Campbell Aff, ¶ 8). He alleges that in response to these complaints, Austin purposefully delayed the shipment of his orders to benefit other distributors, shipped Campbell's customers damaged units and units containing refurbished motors, and delayed shipment of replacement units. (Pl.'s State., ¶¶ 4-8). With respect to these disputed allegations, Campbell argues that "it cannot be any coincidence that at the same time my competitors were complaining to defendant that I was discounting my prices to my customers, my *66 customers began receiving defective units at a very high percentage rate of all units shipped." (Campbell Aff, ¶ 14). Austin contends that pursuant to its unconditional money back guarantee, any customer who complained about a unit was issued a new unit or a refund. (Def's State., ¶¶ 32, 38; Taylor Aff., ¶ 25). The facts as they relate to Austin's counterclaim for unpaid invoices are as follows. At the time of his termination, Austin had 86 invoices for goods shipped to Campbell's customers with invoice dates from May 17, 2002, through June 11, 2002, totaling $23,597.24. (Def's State., ¶ 30; Mahoney Aff, Ex. C). Campbell alleges that at the time of his termination, orders had been placed with Austin that were not shipped. (Pl.'s State., ¶ 3). Although Campbell complained about the accuracy of his account balance, Austin contends that it applied every payment received from Campbell to his account. (Def's State., ¶ 31, Mahoney Dep., pp. 22-26). B. Procedural History Plaintiff commenced this lawsuit on September 6, 2002, by filing a Complaint in the United States District Court for the Western District of New York. Defendant filed its Answer and a Counterclaim against Plaintiff on November 21, 2002. On January 14, 2005, Defendant filed the instant Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[4] This Court heard oral argument on April 8, 2005, and reserved decision at that time. III. DISCUSSION A. Summary Judgment Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party	{ "pile_set_name": "FreeLaw" }
179 F.2d 806 86 U.S.App.D.C. 70 DEBOBULA,v.MACONDRAY et al. No. 10158. United States Court of Appeals District of Columbia Circuit. Argued Dec. 8, 1949.Decided Jan. 3, 1950. Mr. Titus de Bobula, pro se. Mr. Samuel F. Beach, Washington, D.C., with whom Mr. Leslie C. Garnett, Washington, D.C., was on the brief, for appellees. Mr. Karl Kindleberger, Washington, D.C., also entered an appearance for appellees. Before EDGERTON, PRETTYMAN and WASHINGTON, Circuit Judges. PER CURIAM. 1 Plaintiff brought this action against twelve defendants, four of whom are the appellees here. The complaint, drawn by the plaintiff himself, appears to be based on allegations of wrongful and abusive eviction from the premises occupied by the plaintiff as tenant, damages being sought against the marshal who executed the eviction, and others. The four defendant-appellees were the owners of the premises, and landlords of the plaintiff. A motion for summary judgment was made on behalf of the four defendant-appellees, among the supporting documents being the affidavit of one appellee that the marshal executed the writ of restitution 'solely on his own responsibility and without instructions from the proponent and her daughters, or their agents.' Plaintiff filed an answering affidavit, denying the statement just quoted and alleging that the marshal proceeded upon instructions from appellees' attorney and from their real estate agent. 2 The District Court granted the motion for summary judgment and plaintiff appealed. Reading the complaint and its exhibits along with the affidavits of the parties and the other relevant papers, we consider that at least two genuine issues of material fact were in controversy, i.e., whether the alleged wrongful conduct of the marshal was procured or authorized by appellees' attorney or real estate agent, or both, and if so, whether such action was within the scope of authority. In this posture of the case, appellees are not entitled to summary judgment. That being the sole question before us, we do not rule on any other. 3 Reversed.	{ "pile_set_name": "FreeLaw" }
186 Ariz. 409 (1996) 923 P.2d 875 Lee Anne FLOYD, a married woman, Plaintiff-Appellant, v. Anthony DONAHUE and Jane Doe Donahue, husband and wife, Defendants-Appellees. No. 1 CA-CV 95-0460. Court of Appeals of Arizona, Division 1, Department B. September 3, 1996. 411 Wade F. Waldrip, Harland E. Carey, Phoenix, for Plaintiff-Appellant. Raymond, Greer & Sassaman, P.C. by Randy L. Sassaman, Leonard D. Greer, Michael J. Raymond, Phoenix, for Defendants-Appellees. OPINION LANKFORD, Judge. On this appeal from the dismissal of a complaint, we consider whether the statute of limitations bars a plaintiff's claims that her father sexually molested her from the time she was twelve years old. We hold that her claims of childhood abuse are barred, but that she may sue for acts occurring less than two years before she filed this action. Although the trial court dismissed the complaint, it considered evidentiary matters in ruling on the motion to dismiss. The court thereby treated the motion as one for summary judgment. See Ariz. R. Civ. P. 12(b). Accordingly, we view the evidence in the record favorably to Floyd, the person against whom summary judgment was granted. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990). In addition, we determine de novo whether genuine issues of material fact exist and whether the trial court correctly applied the law. Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App. 1993). Appellant Lee Anne Floyd was born in December 1958. Beginning in about 1970, when Floyd was twelve years old, Appellee Anthony Donahue began sexually abusing her.[1] The abuse during her minority included numerous acts of inappropriate touching, exhibitionism, oral sex, and attempted intercourse. Donahue warned Floyd not to tell her mother, and Floyd feared that telling her mother would result in the breakup of the family. In addition to the more egregious forms of abuse perpetrated from 1970 through 1974, Floyd claims Donahue used familial hugs and other opportunities as occasions for additional abuse, including open-mouthed kisses and thrusting his groin against Floyd in a sexually suggestive manner. This behavior continued into Floyd's adulthood until the day before her mother died on September 2, 1992. Floyd filed her complaint on June 28, 1994. This date was more than seventeen years after her eighteenth birthday, but less than two years after her mother's death. After Floyd filed an amended complaint, Donahue moved to dismiss it based on the statute of limitations. The trial court granted the motion. In general, the statute of limitations defense is disfavored; courts prefer to resolve cases on their merits. Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 590, 898 P.2d 964, 968 (1995). However, statutes of limitations serve the important public policy functions of protecting defendants and the courts from stale claims and from the evidentiary problems such claims generate, and protecting defendants from economic and psychological insecurity. Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805 (1990). In Arizona, a plaintiff must file suit for personal injuries "within two years after the cause of action accrues." Ariz. Rev. Stat. Ann. ("A.R.S.") § 12-542 (1992). Floyd argues that because of the unique issues involved in adults' claims against persons who sexually abused them as children, the statute should not apply. In a recent case, however, the Arizona Supreme Court applied A.R.S. section 12-542 to adult victims' claims against persons who sexually abused them as children. Florez v. Sargeant, 185 Ariz. 521, 524-25, 917 P.2d 250, 253-54 (1996). We therefore reject Floyd's argument that no statute of limitations applies to her claims. 412 Because most of the alleged abuse in this case occurred when Floyd was a minor, the running of the limitations period on the acts occurring during childhood was tolled until she reached age eighteen. A.R.S. § 12-502(A) (1992). Floyd's claims as to the childhood abuse are facially untimely because she filed suit more than two years after her eighteenth birthday. Floyd has the burden to show some ground for tolling the statute of limitations. Ulibarri v. Gerstenberger, 178 Ariz. 151, 155, 871 P.2d 698, 702 (App. 1993). Floyd offers several theories[2] in arguing that her claims are not time-barred. Some of these questions were resolved in Florez, in which the Arizona Supreme Court ruled that the claims of two persons sexually abused as children were barred by the statute of limitations. We will first briefly address those issues resolved in Florez, and then address an unresolved issue: May a victim sue for childhood sexual abuse beyond the two-year limitations period when the perpetrator continues to engage in unwanted sexually suggestive touching until within the two-year period? Floyd contends that accrual of her cause of action was delayed until psychological counseling made her aware of the extent of injuries and of the causal connection between the abuse and her emotional problems. We disagree. In Arizona, a claim accrues when a "plaintiff knows or, in the exercise of reasonable diligence, should know the facts" underlying that claim. Gust, Rosenfeld, 182 Ariz. at 588, 898 P.2d at 966; accord Kowske v. Life Care Centers of Am., 176 Ariz. 535, 537, 863 P.2d 254, 256 (App. 1993). The discovery rule delays accrual until the plaintiff has reason to know "by the exercise of reasonable diligence" that defendant harmed her. Mayer v. Good Samaritan Hospital, 14 Ariz. App. 248, 252, 482 P.2d 497, 501 (App. 1971). The discovery rule did not render Floyd's claims timely. In Florez, the Arizona Supreme Court held that when adult victims knew who had abused them, what the abusers had done, and that this abuse had caused them injury, they could have filed their claims. 185 Ariz. at 527-29, 917 P.2d at 256-58. The record reveals that Floyd remembered her father's abuse, and was aware that this abuse had injured her. After she became an adult, Floyd began counseling to help her deal with psychological problems resulting from Donahue's abuse. In 1983, she began treatment at the Center Against Sexual Assault ("CASA"). In 1986 or 1987 she again sought counseling, and in 1993 sought marital counseling for problems associated with the past abuse. In 1993 Floyd also began counseling sessions with Kim Whiting, a counselor specializing in sexual abuse cases. Once Floyd had reason to know her father's abuse caused her injury, which occurred at the latest by 1983, her cause of action accrued. The discovery rule thereafter had no effect on the limitations period.[3] Because the limitations period for the childhood abuse had expired when plaintiff commenced the action, the complaint was properly dismissed. Floyd also argues that because her father used his parental authority and threats against Floyd to keep her silent, and because his acts caused the mental impairment that prevented Floyd from timely filing *413 suit, Donahue should be estopped from asserting the statute of limitations. Although Floyd states that she is not claiming an "unsound mind" disability, her grounds for estoppel differ little from the "unsound mind" argument rejected in Florez. In Florez, the Arizona Supreme Court held that post-traumatic stress syndrome did not toll the statute of limitations unless its effects rendered the plaintiff "incapable of carrying on the day-to-day affairs of human existence." 185 Ariz. at 526, 917 P.2d at 255. There is no such evidence in this case, and we therefore decline to apply estoppel. Floyd also asserts estoppel on this basis: She failed to file because she feared confronting her father would hurt her mother and lead to the breakup of her family. There is no evidence of concealment in this case. Compare Ulibarri, 178 Ariz. at 156, 871 P.2d at 703 (post-hypnotic suggestion to forget sexual conduct). In the absence of evidence of concealment, a specific threat or demonstrable duress, we decline to apply estoppel. Floyd no longer lived with her father, and she alleges merely that she forbore filing suit to protect her mother from unpleasant information that may have changed her mother's opinion about her husband. See Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 297 (Ky. Ct. App. 1993) (abuser's telling victim not to tell anyone about abuse not sufficient to constitute obstruction or concealment); Franke v. Geyer, 209 Ill. App.3d 1009, 154 Ill.Dec. 710, 713, 568 N.E.2d 931, 934 (1991) (to show equitable estoppel, victim must show that the abuser's actions caused her to forbear filing suit); cf. Roer v. Buckeye Irrigation Co., 167 Ariz. 545, 547, 809 P.2d 970, 972 (App. 1991) (non-committal acts insufficient to establish estoppel). Accordingly, we reject the contention	{ "pile_set_name": "FreeLaw" }
443 F.2d 368 UNITED STATES of America, Appellee,v.James Arthur O'NEAL, Appellant. No. 26211. United States Court of Appeals, Ninth Circuit. May 28, 1971. Donald R. Shaw (argued), of Tonkoff, Dauber & Shaw, Yakima, Wash., for appellant. Carroll D. Gray (argued), Asst. U. S. Atty., Dean C. Smith, U. S. Atty., Spokane, Wash., for appellee. Before JERTBERG, ELY and KILKENNY, Circuit Judges. PER CURIAM: 1 Appellant was found guilty of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. He appeals. We affirm. 2 On March 27, 1967, after registration with his local draft board, appellant was classified I-A. Subsequently, he furnished additional information and applied for a IV-D classification. The local board refused to reopen. 3 (1) Relying upon Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Miller v. United States, 388 F.2d 973 (9th Cir. 1967), and similar authorities, appellant claims that he made a prima facie case for reopening. The lower court thought otherwise and we agree. To qualify for a IV-D classification, a registrant must show that he is pursuing a full time course of instruction at a reconized theological or divinity school. 50 U.S.C. App. § 456(g). There is nothing in the record indicating that appellant was pursuing such a course, or that the alleged school was recognized. 4 (2) Although our decision on point (1) would, under ordinary circumstances, dispose of the appeal, we feel we should express our views on appellant's second contention. He urges that the actions of the board in his case amounted to a de facto reopening within the rules stated in Mulloy and Miller. In each of those cases, the registrant presented a prima facie case and the conduct of the board was tantamount to a reopening. Here, the board granted appellant a "courtesy interview," but refused to reopen. On the record before us, we hold that the actions of the board did not rise to the dignity of a de-facto reopening. Consequently, the rules in Mulloy and Miller are inapplicable. United States v. Price, 427 F.2d 162, 163 (9th Cir. 1970); United States v. Bowen, 423 F.2d 266, 267 (9th Cir. 1969). 5 We have considered, but found without merit, other points raised by appellant. 6 Affirmed.	{ "pile_set_name": "FreeLaw" }
37 A.3d 1223 (2011) IN RE ADOPTION OF C.T.L.; APPEAL OF C.T.L. No. 875 WDA 2011. Superior Court of Pennsylvania. October 4, 2011. Affirmed.	{ "pile_set_name": "FreeLaw" }
510 U.S. 870 Lawmasterv.United States. No. 93-267. Supreme Court of United States. October 4, 1993. 1 Appeal from the C. A. 10th Cir. 2 Certiorari denied. Reported below: 993 F. 2d 773.	{ "pile_set_name": "FreeLaw" }
235 F.3d 975 (6th Cir. 2000) Richard J. Rybarczyk, Minoru Mizuba, and William Rittenhouse, Plaintiffs-Appellees,v.TRW, Inc. and TRW Salaried Pension Plan, Defendants-Appellants. No. 97-4167 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: December 9, 1998Decided and Filed: December 21, 2000 Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 95-02800; 96-02493, Ann Aldrich, District Judge.[Copyrighted Material Omitted] John Winship Read, Amanda Martinsek, VORYS, SATER, SEYMOUR & PEASE, Cleveland, Ohio, for Appellants. David S. Cupps, Robert N. Webner, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio, John Winship Read, Amanda Marinsek, VORYS, SATER, SEYMOUR & PEASE, Cleveland, Ohio, for Defendant-Appellant. Robert D. Gary, Gary, Naegele & Theado, Lorain, Ohio, Paul E. Slater, SPERLING, SLATER & SPITZ, Chicago, Illinois, Eric H. Zagrans, ZAGRANS LAW FIRM, Elyria, Ohio, for Appellees. Before: WELLFORD, NELSON, and DAUGHTREY, Circuit Judges. NELSON, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. WELLFORD, J. (p. 987), delivered a separate opinion concurring in part and dissenting in part. OPINION DAVID A. NELSON, Circuit Judge. 1 Here we have an appeal by a manufacturing company and its pension plan from a summary judgment in favor of a class of employees who took early retirement from the company. The plaintiff class-members claimed that the lump sum pension benefits distributed to them at retirement were too low in amount. 2 The district court concluded that the employer (TRW, Inc.) was collaterally estopped to make its lump sum benefit calculations under a methodology less favorable to the retirees than that mandated by this court in an earlier class action,Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994). The district court further held that the members of the class were entitled to prejudgment interest at the greater of the interest rate on 52-week U.S. Treasury bills or the rate of return actually realized by TRW on the money found to have been wrongfully withheld. 3 Upon de novo review of the benefit calculation issue, we conclude that the plaintiff class is not entitled to avail itself of the collateral estoppel doctrine. We further conclude, however, that the portion of the lump sum payments attributable to service rendered prior to a certain plan amendment adopted on December 18, 1986, reflects a violation of the "anti-cutback rule"contained in the Employee Retirement Income Security Act of 1974 ("ERISA") and the Internal Revenue Code (the "I.R.C." or "Code"). There was no violation, in our view, with respect to the portion attributable to service rendered subsequent to the amendment. 4 As to the district court's resolution of the prejudgment interest question, we find no abuse of the court's discretion. 5 The challenged judgment will be affirmed in part and reversed in part. 6 * As of 1984 - prior to the enactment by Congress of the first of a series of ERISA and I.R.C. amendments that we shall describe presently - TRW's Salaried Pension Plan (a defined benefit plan, as opposed to a defined contribution plan) offered employees a "normal retirement" option and an "early retirement" option. Employees electing to retire at age 65 were entitled to receive a normal retirement annuity consisting of specified monthly payments starting at age 65 and continuing until the retiree's death. The second option was designed to provide an incentive for early retirement by offering salaried employees who retired between ages 60 and 65 the same annuity, with the same monthly payments, starting immediately on retirement. (In addition, a slightly reduced monthly payment was offered to employees who retired between ages 55 and 60.) Because the level of benefits for early retirees was not lowered (or was not sufficiently lowered) to make up for the increase in the length of time over which payments would be made to them, the total lifetime pension benefit available to early retirees was greater than the total lifetime benefit available to age-65 retirees. The benefit received by early retirees was called, in the jargon of the cognoscenti, a "subsidized" benefit. 7 The plan also provided that retirees could elect to take their pension benefits in a lump sum, payable up-front, rather than as a series of monthly payments. The amount of the lump sum was calculated under a prescribed formula that discounted the monthly payment stream to its present value. Prior to 1986, the plan provided that the interest rate used in making the present value calculation would be the Moody's Aaa bond rate. 8 In the Retirement Equity Act of 1984,1 Congress set a ceiling on the interest rates that could be used in calculating the present value of future pension payments. (It will be helpful to keep the following relationship in mind: the higher the interest rate utilized in the present value calculation, the lower the lump sum produced by that calculation.) Under the statute, the interest rate was capped at a level set by the Pension Benefit Guaranty Corporation. This rate - the technical derivation of which need not concern us here - is commonly called the "PBGC rate." The statutory cap meant that TRW employees electing to take their early retirement benefits in a lump sum would receive payments substantially greater in amount than the payments to which they would have been entitled under the plan as originally written2. 9 The Retirement Equity Act also provided that early retirement subsidies such as those offered in the TRW plan were subject to an "anti-cutback" rule embodied in ERISA and the Internal Revenue Code. The anti-cutback rule prohibits the amendment of pension plans in such a way as toreduce benefit rights that have already accrued. See ERISA § 204(g), 29 U.S.C. § 1054(g), and I.R.C. (26 U.S.C.) §411(d)(6) (1984)3. 10 As of October 22, 1986, the Tax Reform Act of 19864 retroactively raised the interest rate ceiling where the vested accrued benefit (calculated in a manner specified by statute) exceeded $25,000. The new ceiling for such distributions was 120 percent of the PBGC rate. (The amended ceiling - i.e., the PBGC rate for distributions of $25,000 or less and 120 percent of the PBGC rate for distributions exceeding $25,000 - is commonly called the "§ 1139 rate," after the relevant section of the Tax Reform Act.) The Code and ERISA also provided that a plan could not distribute a benefit in a lump sum without the participant's consent if the benefit was over $3,5005. 11 Because of the ballooning effect of the Retirement Equity Act on early retirement lump sum distributions (or so we surmise), TRW eventually decided to eliminate any early retirement subsidy where the lump sum form of payment was chosen. This decision was implemented in plan amendments adopted on December 18, 1986 - a date critically important, as we shall see, to the resolution of the case now before us. 12 With the December 18 amendments, which were made retroactive to January 1, 1985, TRW's retirement plan provided in relevant part as follows: 13 "The lump sum benefit shall be the present value of the monthly single life annuity (excluding any early retirement subsidy) to which the Participant would have been entitled except for the election of the lump sum form of payment. The lump sum shall include the present value of the anticipated Post-Retirement Adjustments which would have been made had the Participant elected monthly payments." TRW Salaried Pension Plan, Section 5.9(b)(i), as amended December 18, 1986 (emphasis supplied)6. 14 The elimination of the early retirement lump sum subsidy gave rise to the class action in which we issued the decision reported as Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994). The Costantino class was made up of TRW employees who had taken early retirement between January 1, 1985, and October 22, 1986, and who had elected to receive lump sum distributions. It was claimed on behalf of this class that the retroactive amendments adopted on December 18, 1986, violated the anti-cutback rule quoted in note 2, supra. 15 TRW argued in Costantino that the amendments had not reduced the benefit in terms of real dollars. This court held, however, that regardless of the dollar amount of the lump sum distribution, the anti-cutback rule prohibited elimination of the early retirement subsidy for a retiree who had already qualified for the subsidy. Costantino, 13 F.3d at 977-78. 16 TRW also argued in Costantino that the rate cap was applicable only to "accrued benefits," a term that according to TRW meant only unsubsidized benefits. Id. at 978. This court rejected TRW's arguments in a two-part analysis. First, we noted, a Treasury	{ "pile_set_name": "FreeLaw" }
(2008) UNITED STATES of America, v. Gregory M. PATZER. No. 07 CR 90-1. United States District Court, N.D. Illinois, Eastern Division. April 28, 2008. STATEMENT OF REASONS JOAN B. GOTTSCHALL, District Judge. On April 2, 2008, the court sentenced the defendant in this case, Gregory M. Patzer ("Patzer"), to a term of imprisonment of thirteen years to be followed by a five-year term of supervised release, as well as $4,923 in restitution and a $300 special assessment. The reasons for this sentence were stated in open court and are fully set forth herein. I. BACKGROUND[1] Patzer is a thirty-year old man with a long history of family troubles, mental health issues, and drug abuse. At the age of fifteen, he was expelled from his family and placed with a foster family. He has a history of non-violent crimes that relate to drugs or to obtaining money to buy drugs. Patzer has attempted drug treatment several times, and has endured a series of medications and treatment in an effort to ameliorate his mental health problems, none of which has been entirely successful. Patzer has been variously diagnosed with a slew of psychiatric afflictions, from depression to bipolar disorder. However, it was only recently in anticipation of this sentencing that Patzer was diagnosed with Attention Deficit/Hyperactivity Disorder ("ADHD"). In the six years immediately preceding the crimes for which he is being sentenced herein, Patzer had achieved some success in being a productive member of society. He had been in methadone treatment and had steady work as a welder and machinist. However, Patzer began using heroin again around February 2007. On February 24, 2007, he robbed a TCF Bank in Schaumburg, Illinois and, on February 28, 2007, he robbed a Mutual Bank in Roselle, Illinois. During both robberies, Patzer showed the teller a handgun and demanded cash. He got away with about $5,000 total, which he says he used to buy drugs. He fled Illinois and turned up a few weeks later at a Sheraton Hotel in Seattle, Washington, where he ate breakfast and left without paying. When he was confronted by a hotel security guard, Patzer told him that he was wanted for bank robbery in Illinois. The Seattle, Washington Police Department took him into custody, where he confessed to the two bank robberies. On August 15, 2007, the court accepted Patzer's plea of guilty to Counts One (bank robbery), Three (bank robbery), and Four (firearm) of the Indictment. II. SENTENCING PROCEDURE "In sentencing a defendant, the district court is obliged first to calculate the correct advisory guidelines range and then to decide whether to impose a sentence within the range or outside of it." United States v. Miranda, 505 F.3d 785, 791 (7th Cir.2007) (citing United States v. Robinson, 435 F.3d 699, 700-01 (7th Cir.2006)). The first step requires calculation of the applicable guidelines. Gall v. United States, ___ U.S. ___, ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007); Miranda, 505 F.3d at 791. However, "the [g]uidelines are not mandatory and thus the [district court's] range of choice dictated by the facts of the case is significantly broadened." Gall, 128 S.Ct. at 602. The second step in sentencing requires an application of the factors set forth in 18 U.S.C. § 3553(a), which remains mandatory even though the guidelines are treated as advisory. Miranda, 505 F.3d at 791 (citing United States v. Booker, 543 U.S. 220, 261-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Typically, a court considers the Pre-Sentence Report ("PSR") and its interpretation of the guidelines and then hears arguments by prosecution and defense as to whether a guideline sentence should apply. Id. (citing Rita v. United States, ___ U.S. ___, ___, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007)). The court then determines whether to impose a sentence at, above, or below the guideline range keeping in mind that "[a] sentencing court should not consider itself constrained by the guidelines to the extent that there are sound, case-specific reasons for deviating from them." Gall, 128 S.Ct. at 598. Where the evidence presented indicates that the case falls outside the "heartland" of the intended guidelines, or where the guideline fails to properly reflect the § 3553(a) considerations, or where the case warrants a different sentence, the court may impose a sentence below the guideline range. See Rita, 127 S.Ct. at 2465 (discussing the importance of subjecting the defendant's sentence to adversarial testing by the district court). This is true "even though that deviation seemingly contravenes a broad policy pronouncement of the Sentencing Commission." See United States v. Martin, 520 F.3d 87, 95-97 (1st Cir.2008) (noting that a district court may impose a sentence below the guideline range for a career offender, 28 U.S.C. § 994(h) notwithstanding) (citing Kimbrough v. United States, ___ U.S. ___, ___, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007)). III. ADVISORY GUIDELINES RANGE AND THE PARTIES' ARGUMENTS At the time of Patzer's plea agreement, the government anticipated an offense level with respect to Counts One and Three of 25, an anticipated criminal history category of II, and an advisory sentencing guidelines range of 63 to 78 months' imprisonment. Count Four, the firearms charge, carries a mandatory consecutive sentence of 84 months' imprisonment. Thus, at the time of his plea, Patzer's anticipated guideline range for all three counts was 147 to 162 months. In the PSR, the probation officer concluded that Patzer has a criminal history category of IV. This raised the advisory guideline range for Counts One and Three to 110 to 137 months, which raised the total guideline range to 194 to 221 months. Additionally, the probation officer concluded that Patzer qualified as a career criminal, pursuant to U.S.S.G. § 4B1.1,[2] based on two prior felony convictions: a controlled substance offense in 1997 and a conviction for aggravated robbery in 1999. This boosted the applicable advisory guideline range for Counts One and Three to 262 to 327 months, bringing his total guideline range to 346 to 411 months (approximately twenty-eight to thirty-four years). The government argued that a sentence within the guideline range was appropriate. It cited Patzer's criminal history and his repeated failed rehabilitation through drug treatment and the criminal justice system. It also stressed the fact that the nature of the crime was such that Patzer was a danger to the community, and a long sentence was needed to deter him from future crimes. The defense did not object to the PSR guideline calculations, but argued that the strict application of the guidelines would lead to a sentence greater than necessary to accomplish the goals of sentencing. The defense urged the court not to apply the career offender enhancement because it overstated Patzer's past crimes, especially where Patzer's criminal activity had been precipitated by the estrangement from his family, untreated ADHD, and long-term drug addiction. The defense suggested a sentence of thirteen years (156 months) as sufficient punishment, which is approximately what was contemplated originally in the plea agreement and represents a 20% variance from the minimum guideline range before the career criminal application. IV. 18 U.S.C. § 3553(a) FACTORS Section 3553(a) provides in relevant part: (a) Factors to be considered in imposing a sentence. The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.... 18 U.S.C. § 3553(a). Under § 3553(a)(2), "the primary purposes of a criminal sentence are to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes by the defendant, and to provide the defendant with needed training, medical care or correctional treatment in the most effective manner." Miranda, 505 F.3d at 793. A. The Career Offender Application This case is atypical for a career criminal application. First, the nature of the underlying crimes is less serious than those typically encompassed by the career criminal application. Patzer's drug conviction was for selling $50-worth of marijuana and LSD to an undercover informant. The aggravated robbery involved a demand	{ "pile_set_name": "FreeLaw" }
31 Mass. App. Ct. 527 (1991) 580 N.E.2d 1047 COMMONWEALTH vs. NEAL HEALIS. No. 90-P-1296. Appeals Court of Massachusetts, Middlesex. September 6, 1991. November 14, 1991. Present: ARMSTRONG, SMITH, & GILLERMAN, JJ. Richard B. Klibaner for the defendant. Kevin J. Mahoney, Assistant District Attorney, for the Commonwealth. SMITH, J. The defendant was convicted by a jury of trafficking in cocaine in excess of fourteen grams (G.L.c. 94C, § 32E[b][1], as amended by St. 1988, c. 124). On appeal, he claims that the judge committed error when he denied the defendant's motion for disclosure of the full name and address of an informant. The defendant also contends that the 528 evidence was insufficient for the jury to find that the defendant intended to traffic in cocaine. At trial, it was the Commonwealth's theory that the defendant, a seller of cocaine, had arranged to meet a buyer in Cambridge and went there to deliver cocaine to him. The buyer was, in fact, a police informer. At 8:30 P.M. on May 20, 1989, in Cambridge, a police officer met and searched a man (informant) whom he had known for four months. Finding no drugs on him, the police officer and the informant entered a restaurant. The informant remained with the police officer until 9:00 P.M. when the defendant drove up in his automobile and parked across the street from the restaurant. A second police officer, stationed on the same side of the street, watched the defendant from twenty to thirty feet away. Two other detectives were stationed in the area. The defendant looked around and appeared to be surveying the area. The informant left the restaurant, crossed the street, and approached the defendant's automobile. The informant's hands were empty and at his side, and the police officers did not observe him giving anything to the defendant. The informant exchanged words with the defendant and then returned to the restaurant. Once inside the restaurant, the informant and the police officer had a conversation, and the police officer instructed the informant to leave. Meanwhile, the defendant drove down the street, made a U-turn, and parked directly in front of the entrance to the restaurant. The police officer, stationed in the street in an unmarked cruiser, followed the defendant and parked about forty to fifty feet behind the defendant's automobile. The police officer in the restaurant left and gave a prearranged signal to the other police officers. The police officer who was parked behind the defendant pulled up alongside the defendant's automobile. He observed the defendant reach under his front seat. The police officer drew his gun, identified himself, and ordered the defendant out of the automobile. The police officer then reached under the front seat of the defendant's automobile and removed a 529 clear plastic bag of 27.86 grams of 37 per cent pure cocaine in solid "rock" form. The defendant had thirty-five dollars on his person. The defendant's story was as follows: Earlier on May 20, 1989 (the day he was arrested), the defendant had arranged to meet an individual whom he knew by the name of "Orlando," not to sell cocaine to him, but rather to buy cocaine from him for his (the defendant's) personal use. He had met Orlando about three or four years before and had purchased cocaine from him on several occasions over the years. The amount of cocaine that the defendant purchased varied depending on how much money he had with him. On the day he was arrested, the defendant had thirty-five dollars and went looking for Orlando in order to buy some cocaine from him. He found Orlando, and the two men made arrangements to meet that evening in front of a restaurant at which time the defendant would buy some cocaine from Orlando. The defendant arrived at the agreed location and parked across from the restaurant. At first he did not see Orlando, but a few minutes later Orlando came running out of the restaurant, leaned into the defendant's automobile, dropped a bag onto the floor, and ran back into the restaurant. The defendant looked briefly at the bag and assumed it was cocaine. The bag, however, contained a grater amount of cocaine than the defendant intended to purchase. The defendant made a U-turn and drove his automobile up to the front of the restaurant. As he did so, he shouted to Orlando, "What's going on?" The defendant was then arrested. 1. Motion to disclose name and address of "informant." Prior to trial, the defendant filed a motion requesting that the judge order the Commonwealth to divulge the name, address, and criminal record of the individual who first approached his automobile on the evening he was arrested. In an affidavit accompanying his motion, the defendant stated that the individual was known to him only by his first name, "Orlando." He did not know his last name or residential address; therefore, he was unable to summon him as a witness. 530 The Commonwealth relied on the government's privilege not to disclose the identity of an informant. The judge denied the motion. "The government's privilege not to disclose the identity of an informant has long been recognized in this Commonwealth." Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981). See also Commonwealth v. Amral, 407 Mass. 511, 516-517 (1990). "It was originally justified as a means of encouraging `every citizen' in his `duty ... to communicate to his government any information which he has of the commission of an offence against its laws.'" Commonwealth v. Ennis, 1 Mass. App. Ct. 499, 501 (1973), quoting from Worthington v. Scribner, 109 Mass. 487, 488 (1872). The privilege, however, is not absolute, particularly where a demand for disclosure is made at trial and the issue is the defendant's ultimate guilt or innocence. Roviaro v. United States, 353 U.S. 53, 60-61 (1957). Commonwealth v. Lugo, 406 Mass. 565, 571 (1990). In general, at trial, an informant's identity must be disclosed "[w]here [such] disclosure ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause...." Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989), quoting from Roviaro v. United States, 353 U.S. at 60-61. Here, the defendant was charged with a violation of G.L.c. 94C, § 32E(b)(1). "[T]he conduct prohibited by the statute ... is the knowing or intentional manufacture, distribution, dispensing or possession with intent to manufacture, distribute, dispense or bring into the Commonwealth [a net weight of fourteen grams but less than twenty-eight grams] of cocaine...." Commonwealth v. Chappee, 397 Mass. 508, 522 (1986). His defense consisted of a denial that he possessed the cocaine with an intent to "distribute [or otherwise] dispense" the drug. Also, implicit in his testimony was a claim that he was "set up" by the informant (and by the police), whereby the informant planted in the defendant's automobile cocaine far in excess of the amount he intended to buy. 531 The questions before the jury were clear was the defendant a buyer of a small amount of cocaine for personal use or a seller of a large amount of cocaine? Further, who was telling the truth was it the police officers who testified that the informant did not place anything in the defendant's automobile, or was it the defendant, who testified that the informant had dropped cocaine into his automobile? The testimony of the informant, obviously, was critical. Here, the informant was an active participant and the only nongovernment witness to events that gave rise to the defendant's arrest. See Commonwealth v. Lugo, 406 Mass. at 572 ("In the informer situation, where the informer is an active participant in the alleged crime or the only nongovernment witness, disclosure usually has been ordered"). Also, it was the informant who arranged the meeting at which the defendant's arrest occurred and who acted under the direction of the police at all times just prior to the defendant's arrest. See Commonwealth v. Ennis, 1 Mass. App. Ct. at 503 ("[T]he informer was the only other person present at the sale [of narcotics] and, what is more, arranged the meeting at which it occurred. On these facts disclosure was required"). The Commonwealth, however, argues that disclosure of the informant's identity is not required because the defendant failed to show how the lack of the informant's testimony prejudiced him. But "[t]here is ... no requirement that a defendant, denied access to evidence that might prove helpful in his defence, must make a specific showing of just what the evidence would have proved and how far he was prejudiced by the withholding." Commonwealth v. Johnson, 365 Mass. 534, 547 (1974). We, of course, cannot tell what effect the disclosure of the informant's identity might have had on the case. "[W]e do not know what ... [the informer's] testimony might have been or what other evidence might have been introduced if defence counsel had had the benefit of [the identity of the informer]...." Commonwealth v. Ennis, 1 Mass. App. Ct. *532 at 504, quoting from and paraphrasing Commonwealth v. Balliro, 349 Mass. 505, 517 (1965). On these facts, we hold that disclosure of the informant's identity was essential to a fair determination of the case.[1] 2. Denial of motion for required finding of not	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § BONDED BUILDERS HOME WARRANTY ASSOCIATION § No. 08-14-00090-CV OF TEXAS D/B/A BONDED BUILDERS WARRANTY GROUP, § Appeal from DANIEL AVILA, GRISELE EDITH ARIZPE, AND § 327th District Court AA BUILDERS, LLC, § of El Paso County, Texas Appellants, § (TC # 2013DCV4125) v. § PATRICIA ROCKOFF, § Appellee. § OPINION This is an interlocutory appeal from the denial of motions to compel arbitration. See TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (West Supp. 2015)(permitting an interlocutory appeal from the denial of a motion to compel arbitration under the Federal Arbitration Act). Appellants raise a single issue contending the trial court erred in not compelling arbitration. We sustain that issue and remand the case to address one remaining issue: whether the cost issues raised by the arbitration agreement render it procedurally unconscionable. FACTUAL SUMMARY AA Builders, LLC, constructed a home at 3715 Laguna Court in El Paso, Texas. Appellants Grisele Arizpe and Daniel Avila are alleged to be the general partners of AA Builders, LLC (collectively we refer to all three as “AA Builders”). The original homeowners of 3715 Laguna Court obtained a new home warranty on the residence from Bonded Builders Home Warranty Association of Texas d/b/a Bonded Builders Warranty Group (“BBWG”). The original homeowners then sold the house to Appellee Patricia Rockoff in July 2013. By paying a $40.00 processing fee to BBWG, the warranty was transferred to her on July 11, 2013. Shortly after acquiring the property she noticed cracks in the walls of the house which she attributes to the failure of load-bearing walls. It appears that the house was built on a lot that was cut and filled, meaning that some portion of the lot was graded away and other portions filled in to level the property. One of Rockoff’s allegations is that a portion of the house was built over the fill dirt which was insufficiently engineered or compacted such that it could not carry the weight of the house. Rockoff first complained to AA Builders who denied her claim. Rockoff then made a warranty claim with BBWG. There are two distinct warranties provided by BBWG on the home. The first is called the “Workmanship, Materials and Systems Warranty.” Under that particular warranty, AA Builders warranted that the house meets certain specified construction performance standards detailed in the warranty document. One of those standards, for instance, states that a slab foundation should not tilt or deflect in excess of one percent from the original construction elevations. If there is a breach of one of those the standards, AA Builders would be primarily obligated to repair or replace the defective item under the terms of the warranty. BBWG in turn acts only as the guarantor and meets AA Builder’s obligation if either: (1) it is unwilling or unable to comply -2- with the terms of the warranty, or (2) following the alternative dispute resolution procedures and arbitration called for in the agreement, AA Builders refuses to or is unable to comply with the arbitration award. Under the Workmanship, Materials and Systems Warranty, the homeowner is obligated to first contact AA Builders to make a claim. If the homeowner and AA Builders are unable to resolve their issues, the homeowner submits a claim form to BBWG who then contacts the builder to attempt to gain their compliance. Any dispute after that point must be submitted through BBWG’s “conciliation process.” That process contemplates that a conciliator, appointed by BBWG, meets with all the parties at the house, and then issues a non-binding award if no agreement is reached. Unless all parties accept that non-binding recommendation, the dispute is then submitted to a “Claim Review Group” consisting of the conciliator, a qualified representative for the homeowner, and AA Builders. If this meeting does not resolve matters, any dispute must be submitted “to binding arbitration pursuant to the terms and conditions of the Arbitration Section of this warranty.” BBWG pays the cost of the conciliation process, other than the cost of the representative the homeowner may hire to participate in the Claim Review Group. A second warranty, referred to as the “Express Limited Major Structural Defect Warranty,” has its own unique set of provisions. This warranty covers damage to designated load-bearing walls that are impaired to the extent that the house becomes “unsafe, unsanitary, or otherwise unlivable.” Under this warranty, BBWG is primarily obligated to repair or replace covered defects. To make a claim, the homeowner first completes a designated form which is sent to BBWG. Any dispute under the terms of this warranty must be referred to mediation, with each party paying their share of the mediation expense. If not resolved by mediation, any dispute -3- must again be submitted to “binding arbitration pursuant to the terms and conditions of the Arbitration Section of this warranty.” The Arbitration Section of the warranty first contains a broad agreement to arbitrate disputes: In the event any Dispute under any BBWG warranty, including without limitation, a claim of subrogation, negligent or intentional misrepresentation or nondisclosure in the inducement, breach of any alleged duty of good faith and fair dealing, and/or any dispute over the scope of this Arbitration Provision, cannot be resolved by one of the Alternative Dispute Resolution processes described herein, You, the Builder and BBWG agree to submit the Dispute to binding arbitration…. By accepting the warranty, You are agreeing to waive Your right to a trial by either judge or jury in a court of law.” The term “Dispute” is defined to include “any dispute, controversy, claim or matters in question . . . between Builder, You, Your successors in interest and/or BBWG arising out of or relating to this Warranty. . . . ” The Arbitration Section has several other terms which bear on the parties arguments raised in this appeal. One term addresses selection of the arbitrator: You will have the right to select the arbitration company from the list of approved arbitration companies BBWG will provide to You when arbitration is requested. The arbitration will be conducted under the arbitration company’s rules in effect at the time of the arbitration. Another term addresses payment of the expenses of the arbitration: The arbitrator’s compensation fee, administrative fee and all expenses charged by the arbitrator and/or the arbitration service shall be borne equally by the arbitrating parties. Each party shall pay their own attorney fees and expenses. Additional fees may be assessed in accordance with the arbitration company rules and fees. The arbitrator shall have the discretion to reallocate such fees and expenses, save and except attorney’s fees, in the interest of justice. Two provisions address initiation of arbitration: Any party who shall commence a judicial proceeding concerning a dispute, which is arbitrable hereunder, shall also be deemed to be a party requesting arbitration within the meaning of this paragraph. …. -4- Arbitration may be demanded at any time, but only after completion of all conditions precedent, and may be compelled by summary proceedings in Court. The agreement is made expressly subject to the Federal Arbitration Act (Title 9 of the United States Code), and contains a savings clause: If any provision of this arbitration agreement shall be determined to be unenforceable by the arbitrator or by the court, the remaining provisions shall be deemed to be severable there from and enforceable according to their terms. The “General Conditions” section of the warranty provides that the homeowner’s sole remedy against AA Builders, and all those associated with it, is under the terms and conditions of the warranty. This exclusive remedy agreement is “enforceable to the fullest extent permissible by the law of the state in which the property is located . . . .” Likewise, to the extent permitted by the applicable state law, the homeowner waives any implied warranties. The General Conditions also provides that each party is to pay their own litigation costs and “under no circumstances shall any party, prevailing or otherwise be entitled to an award and/or judgment which includes or provides for attorney’s fees and/or court costs.” The General Conditions section contains its own severability clause which	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 28 and 29, 2012 Decided June 26, 2012 No. 09-1322 COALITION FOR RESPONSIBLE REGULATION, INC., ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT STATE OF MICHIGAN, ET AL., INTERVENORS Consolidated with 10-1024, 10-1025, 10-1026, 10-1030, 10-1035, 10-1036, 10-1037, 10-1038, 10-1039, 10-1040, 10-1041, 10-1042, 10-1044, 10-1045, 10-1046, 10-1234, 10-1235, 10-1239, 10-1245, 10-1281, 10-1310, 10-1318, 10-1319, 10-1320, 10-1321 On Petitions for Review of Final Actions of the Environmental Protection Agency Patrick R. Day, Harry W. MacDougald, and Jeffrey Bossert Clark argued the causes for Non-State Petitioners and Supporting Intervenors. With them on the briefs were John J. Burns, Attorney General, Office of the Attorney General of the State of Alaska, Steven E. Mulder, Chief Assistant Attorney 2 General, Peter Glaser, Mark E. Nagle, Matthew Dukes, Paul D. Phillips, John A. Bryson, Ellen Steen, Eric Groten, John P. Elwood, James A. Holtkamp, Chet M. Thompson, Robin S. Conrad, Rachel L. Brand, Sheldon Gilbert, Quentin Riegel, Jeffrey A. Rosen, Robert R. Gasaway, William H. Burgess, Sam Kazman, Hans Bader, Matthew G. Paulson, Harry Moy Ng, Michele Marie Schoeppe, Michael R. Barr, Alexandra M. Walsh, Adam J. White, Jeffrey A. Lamken, Timothy K. Webster, Roger R. Martella, Neal J. Cabral, Theodore Hadzi-Antich, Ashley C. Parrish, Cynthia A. M. Stroman, Scott C. Oostdyk, Gordon R. Alphonso, Shannon L. Goessling, Edward A. Kazmarek, F. William Brownell, Norman W. Fichthorn, Henry V. Nickel, and Allison D. Wood. Paul D. Clement, Mark W. DeLaquil, Andrew M. Grossman, and David B. Rivin, Jr. entered appearances. E. Duncan Getchell, Jr., Solicitor General, Office of the Attorney General for the Commonwealth of Virginia, argued the cause for State Petitioners Texas and Virginia on Denial of Reconsideration of the Endangerment Finding and State Petitioners and Supporting Intervenors on Endangerment Finding Delegation Issues. With him on the briefs were Kenneth T. Cuccinelli, II, Attorney General, Stephen R. McCullough, Senior Appellate Counsel, Charles E. James Jr., Chief Deputy Attorney General, and Wesley G. Russell, Jr., Deputy Attorney General. Greg Abbott, Attorney General, Office of the Attorney General for the State of Texas, Bill Cobb, Deputy Attorney General for Civil Litigation, J. Reed Clay, Jr., Special Assistant and Senior Counsel to the Attorney General, Jonathan F. Mitchell, Solicitor General, Michael P. Murphy, Assistant Solicitor General, Luther Strange III, Attorney General, Office of the Attorney General for the State of Alabama, Pamela Jo Bondi, Attorney General, Office of the Attorney General for the 3 State of Florida, Gregory F. Zoeller, Attorney General, Office of the Attorney General for the State of Indiana, Jack Conway, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, James D. “Buddy” Caldwell, Attorney General, Office of the Attorney General for the State of Louisiana, Bill Schuette, Attorney General, Office of the Attorney General for the State of Michigan, John J. Bursch, Solicitor General, Neil D. Gordon, Assistant Attorney General, Gary C. Rikard, Jon Bruning, Attorney General, Office of the Attorney General for the State of Nebraska, Katherine J. Spohn, Special Counsel to the Attorney General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Margaret Olson, Assistant Attorney General, Scott Pruitt, Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, Marty Jackley, Attorney General, Office of the Attorney General for the States of South Dakota, Roxanne Giedd, Chief, Civil Litigation Division, Mark L. Shurtleff, Attorney General, Office of the Attorney General for the State of Utah, and Kenneth T. Cuccinelli, II, Attorney General, Office of the Attorney General for the Commonwealth of Virginia were on the briefs for State Petitioners and Supporting Intervenors. Robert D. Tambling, Assistant Attorney General, Office of the Attorney General for the State of Alabama, entered an appearance. Christian J. Ward, Scott A. Keller, and April L. Farris were on the brief for amici curiae Scientists in support of Petitioners. Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, and John Campbell, Chief Deputy Attorney General, were on the brief for amicus curiae State of Kansas in support of Petitioners. Martin R. Levin, Michael J. O’Neill, Donald M. Falk, Mark 4 S. Kaufman, Steven J. Lechner, and Richard P. Hutchison were on the brief for amici curiae Landmark Legal Foundation, et al. in support of Petitioners. Jon M. Lipshultz and Angeline Purdy, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were John Hannon, Carol Holmes, and Steven Silverman, U.S. Environmental Protection Agency, Attorneys. Thomas A. Lorenzen, Attorney, U.S. Department of Justice, entered an appearance. Carol Iancu, Assistant Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, argued the cause for State and Environmental Intervenors in support of respondents. With her on the briefs were Martha Coakley, Attorney General, William L. Pardee, Attorney Assistant General, Sean H. Donahue, Howard I. Fox, David S. Baron, Megan Ceronsky, Vickie L. Patton, Peter Zalzal, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Kathleen A. Kenealy, Senior Assistant Attorney General, Marc N. Melnick and Nicholas Stern, Deputy Attorneys General, Joseph R. Biden, III, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Satterfield, Deputy Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte, Matthew I. Levine, Scott N. Koschwitz, Assistant Attorneys General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Gerald T. Karr, Assistant Attorney General, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, David R. Sheridan, Assistant Attorney General, Douglas F. Gansler, Attorney General, Office of the Attorney General for the State of Maryland, Mary E. Raivel, Assistant Attorney General, Michael A. Delaney, Attorney General, Office of the Attorney General for the State 5 of New Hampshire, K. Allen Brooks, Senior Assistant Attorney General, William J. Schneider, Attorney General, Office of the Attorney General for the State of Maine, Gerald D. Reid, Assistant Attorney General, Lori Swanson, Attorney General, Office of the Attorney General for the State of Minnesota, Jocelyn F. Olson, Assistant Attorney General, Gary K. King, Attorney General, Office of the Attorney General for the State of New Mexico, Stephen R. Farris, Assistant Attorney General, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Michael J. Myers and Yueh-Ru Chu, Assistant Attorneys General, John Kroger, Attorney General, Office of the Attorney General for the State of Oregon, Paul Logan, Assistant Attorney-in-Charge, Robert M. McKenna, Attorney General, Office of the Attorney General for the State of Washington, Leslie R. Seffern, Assistant Attorney	{ "pile_set_name": "FreeLaw" }
312 B.R. 258 (2004) In re AXISTEL COMMUNICATIONS, INC., Novo Networks Global Services, Inc., Novo Networks International Services, Inc., e.Volve Technology Group, Inc., Novo Networks Operating Corp. Novo Networks Metro Services, Inc., Debtors. Novo Liquidating Trust, Plaintiff, v. Forval, Defendant. Bankruptcy No. 01-10005(JBR). Adversary No. 03-53996(PBL). United States Bankruptcy Court, D. Delaware. July 26, 2004. 259 Jeffrey M. Schlerf, Gary F. Seitz, The Bayard Firm, Wilmington, DE, for Plaintiff. Jeffrey R. Waxman, Cozen O'Connor, Chase Manhattan Centre, Wilmington, DE, Michael McLaughlin, Wasserman, Jurista & Stolz, P.C., Millburn, NJ, for Defendant. MEMORANDUM OPINION & ORDER PAUL B. LINDSEY, Bankruptcy Judge. BACKGROUND Plaintiff, successor to various rights and duties of Debtors under their confirmed Chapter 11 Plan,[1] brought this adversary proceeding by filing its complaint on June 27, 2003, seeking to avoid and recover certain transfers of property and prepetition 260 setoffs pursuant to 11 U.S.C. §§ 547, 553 and 550.[2] Defendant filed its answer, essentially denying the allegations of the complaint and asserting certain affirmative defenses. After court-ordered mediation was unsuccessful, a pre-trial conference was held and a scheduling order was entered to govern further pre-trial proceedings. On April 22, 2004, Plaintiff filed its motion for leave to amend its complaint. On May 12, 2004, Defendant filed its response, objecting to the relief sought by Plaintiff. A hearing was held before this Court on July 15, 2004, at the conclusion of which the Court took the contested matter of Plaintiffs motion and Defendant's response under advisement. THE ISSUES In its original complaint Plaintiffs sought: (i) to avoid an alleged preferential transfer in the amount of $24,714.15; (ii) to avoid four (4) allegedly preferential setoffs in the total amount of $477,286.63; and (iii) to recover the amount of the avoided transfer and setoffs, a total of $502,000.78. In its proposed amended complaint, Plaintiff retains the original allegations with regard to the transfer, setoffs and the recovery thereof. Plaintiff seeks to add to the complaint two additional counts seeking alternative relief. First, Plaintiff seeks the turnover of amounts due and owing under outstanding pre-petition invoices issued by Debtors to Defendant in the total amount of $137,375.96. In a separate count, Plaintiff alleges that, pursuant to a post-petition letter agreement purporting to resolve pre-petition business transactions between the parties that was not approved by the Bankruptcy Court, a transfer of property of the bankruptcy estate was effected in the amount of "around $128,000."[3] It is asserted that such transfer was in violation of the automatic stay provisions of § 362, that the transfer was void, and that Plaintiff is entitled to avoid and recover the value of such transfer pursuant to §§ 362 and 549. Finally, Plaintiff seeks to amend the complaint by seeking judgment against Defendant in the amount of "$628,000 as near as can presently be determined," with pre-judgment interest and costs. DISCUSSION AND DECISION Plaintiff seeks to amend its complaint under the authority of Rule 15, Fed. R.Civ.P., made applicable to this adversary proceeding by Rule 7015, Fed. R. Bankr.P. Under Rule 15, leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Plaintiff asserts that there is a general presumption in favor of allowing amendment, citing Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984). It is also urged that the standard to be applied in ruling on a Rule 15(a) motion to amend has been set out by the Supreme Court and routinely applied in the Third Circuit and in this court, as follows: In the absence of any apparent or declared reasonsuch as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, 261 undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.the leave sought, should, as the rules require, be "freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Heyl & Patterson Intern., Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982); Procter & Gamble Co. v. Nabisco Brands, Inc., 125 F.R.D. 405, 408 (D.Del.1987). Plaintiff contends that none of the bases for denial of a motion to amend is present here and that leave to amend should be granted in order to "allow all claims against [Defendant] to be heard on the merits."(Plaintiffs Motion for Leave to Amend the Complaint, ¶ 21) Defendant objects to Plaintiffs motion, primarily asserting undue delay. Defendant recites numerous attempts to obtain documentation from Plaintiff concerning the offsets described in the complaint and notes that a copy of the February 25, 2002 letter agreement referred to above was provided to Plaintiff in a letter dated October 1, 2003. Defendant contends that the filing of the motion for leave to amend more than ten months after the filing of the complaint, six months after the February 25, 2002 letter agreement was first provided to Plaintiff, two months after the unsuccessful conclusion of mediation, and after the commencement of discovery, constituted undue delay. Alternatively, Defendant asserts that amendment of the complaint to avoid transfers pursuant to § 549 should not be allowed because such an amendment would be futile as the statute of limitations for filing an action under § 549 has expired.[4] Plaintiff requests that the amendment to the complaint relate back to the date of the original filing of the complaint,[5] effectively avoiding the application of the § 549(d) statute of limitations. Plaintiff contends that Rule 15(c)(2) is applicable. It is clear, however, that the outstanding, unpaid prepetition invoices of Debtors to Defendant and the February 25, 2002 letter agreement were entirely separate from the single specific transfer and the four specified setoff transactions described in the original complaint. Thus, relation back under Rule 15(c)(2) is not appropriate. At the hearing on the motion, Plaintiff contended, and Defendant appeared to concede, that as to Plaintiffs proposed § 362 claim, no statute of limitations is applicable, and that Plaintiff therefore could simply file a separate adversary proceeding to assert that claim if it is not permitted to amend its complaint herein. It is this Court's view that the delay in this case in seeking leave to amend has not been "undue" and that no bad faith or dilatory motive on the part of Plaintiff has been established. Furthermore, the Defendant has not established that it will be unduly prejudiced by the allowance of the amendment. In fact, the only prejudice asserted by Defendant was the possible need for additional discovery. However, discovery is not complete in this case, so any additional discovery should not be burdensome 262 and it does not appear likely that significant additional discovery will be necessary. In these circumstances, this Court is governed by the teaching of Rule 15(a), that "leave shall be freely given when justice so requires." However, this Court agrees with Defendant's contention that amendments should not be permitted to assert a § 549 post petition claim. Any such amendment would be futile, since the filing of the post petition claim under § 549 was barred by § 549(d) after February 25, 2004, two years after the date of the transfer sought to be avoided. The Court has previously noted that the new claims contained in the amended complaint did not arise out of the conduct, transaction or occurrence set forth in the original pleading, and that therefore the amendment of the complaint should not relate back to the date of the filing of the original complaint. Thus, any § 549 claim asserted in the amended complaint would be vulnerable to a motion to dismiss and the amendment would be futile. IT IS THEREFORE ORDERED that the Motion of Plaintiff Novo Liquidating Trust for Leave to Amend the Complaint be, and the same is hereby granted, provided, however, that the amendment of the complaint shall not assert any claim pursuant to 11 U.S.C. § 549. NOTES [1] AxisTel Communication, Inc., Novo Networks Global Services, Inc., Novo Networks International Services, Inc., e.Volve Technology Group, Inc., and Novo Networks Operating Corp. filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code on July 30, 2001. Novo Networks Metro Services, Inc. filed a voluntary petition for relief on September 14, 2001. The cases were jointly administered and a joint Chapter 11 Plan was confirmed on March 14, 2002, to be effective on April 3, 2002. [2] References to statutory provisions by section number alone, unless otherwise specified, will be to provisions of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq. [3] The agreement in question, attached to the amended complaint, was entered into on February 25, 2002. In it, $128,091.69 of Defendant's pre-petition invoices and other disputed items were net	{ "pile_set_name": "FreeLaw" }
835 F.2d 874Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.B.C. EDWARDS; Mary Elizabeth Edwards, Plaintiff-Appellant,v.Edgar G. PUFFENBARGER; Lucille G. Puffenbarger, Defendant-Appellee. No. 87-3704. United States Court of Appeals, Fourth Circuit. Argued Oct. 6, 1987.Decided Dec. 11, 1987. J. Gregory Mooney; Michael McHale Collins (Collins, Crackel & Mooney, on brief), for appellant. Guy M. Harbet, III (S.D. Roberts Moore; Gentry, Locke, Rakes & Moore; Peter J. Judah, on brief), for appellee. Before HARRISON L. WINTER, Chief Judge, DONALD RUSSELL, and CHAPMAN, Circuit Judges. CHAPMAN, Circuit Judge: 1 * In September 1977 plaintiffs-appellants B.C. and Mary Elizabeth Edwards (Edwards) entered into an oral contract retaining defendants-appellees Edgar and Lucille Puffenbarger (Puffenbarger) to perform construction and renovation on Edwards' Bath County, Virginia property. Under the agreement, Puffenbarger would bill the plaintiffs his actual cost of labor and materials plus a ten-percent profit margin and, in addition, Edwards would pay Puffenbarger "the top wage that [the defendants] paid [their] top paid man. He [Puffenbarger] would get the same amount for the hours he actually worked on [the] job, he would get ten percent of that of his own pay." Edwards v. Puffenbarger, No. 84-1228, slip op. at 4 (4th Cir. Apr. 25, 1985). 2 Edwards became increasingly dissatisfied with Puffenbarger's progress, the quality of the workmanship, and the cost of the project and terminated the defendants' performance under the contract in October 1979. Edwards subsequently brought an action against Puffenbarger alleging fraudulent overbilling and "poor workmanship." Puffenbarger denied Edwards' allegations and counterclaimed for slander. 3 In a March 1982 bench trial, Judge Michael held that the Edwards failed to prove the "poor workmanship" or fraud claims. The court also found that the Edwards wrongfully terminated the oral contract. The district court dismissed the slander counterclaim, reasoning that although Puffenbarger was entitled to actual damages, he had failed to prove either malice or the amount of damages. On appeal, this court affirmed the dismissal of the "poor workmanship" claim and of the slander counterclaim. The court, however, reversed in part and remanded the cause, holding that Edwards advanced a viable claim of overbilling under the cost-plus contract. Edwards, slip op. at 10-11. We directed reference of the dispute to a special master for "determination of what amount, if any, the defendants owed the plaintiffs for any overbilling under the oral contract between the parties." Id. at 19. 4 On remand, Judge Michael referred the case to United States Magistrate Glen Conrad to act as special master. The magistrate issued a final report and recommendation, including a final accounting, which concluded that plaintiffs were entitled to $12,870.62. Magistrate Conrad's recommendation was based upon several findings. 5 First, he found that defendants had overbilled plaintiffs at a rate of $2.00 per hour more than Puffenbarger actually paid to his laborers. Thus, of the total labor charges of $58,150, the magistrate found that Edwards had been overcharged in the amount of $14,860. 6 Second, the magistrate found that plaintiffs were improperly billed for employee labor performed on other projects in the amount of $1,758 and, relying on the testimony of some of Puffenbarger's former employees and taking into account entries into the "time book" indicating the time computation for those workers, that defendants improperly billed plaintiffs for thirteen days during which Puffenbarger was actually on vacation. This overcharge amounted to $2,382. 7 Third, noting that Puffenbarger bore the burden of proving "actual costs of labor" in excess of wages paid, the magistrate found that FICA, worker's compensation insurance, and self-employment taxes were actual costs of labor. However, he further concluded that contractor's insurance premiums and overhead were not associated particularly with the Edwards' job, and that defendants had overbilled plaintiffs for such costs in the amount of $4,042.37. 8 Fourth, he found that defendants overbilled plaintiffs for materials in the amount of $6,345.54. Defendants, it seems, had billed for materials in the amount of $53,204.34, but could produce invoices at trial in the amount of $48.919.60. The magistrate rejected arguments by defendants that miscellaneous purchases, as evidenced by various cancelled checks, "clearly pertained" to Edwards' job since "Defendants' assertions [were] premised on nothing more than pure speculation." App. at 903. The magistrate limited adjustments in favor of plaintiffs to those items that the evidence affirmatively established as error or duplication. He reviewed the materials items individually and limited consideration of materials purchases to those actually tendered at trial as opposed to those actually billed to plaintiffs. He further determined that there was no evidence that materials were supplied by Edwards for the job, which would have entitled the Puffenbargers to a ten-percent profit markup, if such materials had been furnished. 9 Fifth, he determined that damages should not be computed by determining plaintiffs' amounts paid less the amount to which defendants were entitled under the contract. The problem, he determined, lay with duplicate payments made by plaintiffs. Therefore, the magistrate concluded that the truly accurate method of calculation was the difference between the total amount defendants should have properly charged for labor, materials, and profit under the contract and the actual amount charged. 10 Last, the magistrate examined our determination of "constructive fraud" of the defendants, and he recommended that prejudgment interest be assessed in favor of plaintiffs. However, he concluded that interest should not be calculated as of the day of termination of the contract in 1979. Rather, he found that there was some bona fide dispute as to labor charges which was not resolved until the first appeal in this case, and he concluded that prejudgment interest should accrue as of the date of our decision, April 25, 1985. 11 The district court, after reviewing the objections to the report, adopted the magistrate's recommendations and final accounting in full. App. at 937-40. Thus, the court awarded $12,870.62 to plaintiffs with prejudgment interest from April 25, 1985 calculated at 9.15% on $9,527.99 of the judgment. 12 Plaintiffs appeal this ruling, claiming that the magistrate and district court were in error in their determination and calculation of amounts overbilled by defendants and due to plaintiffs. Plaintiffs also assert that the district court abused its discretion in finding that prejudgment interest was warranted from April 1985 rather than the date of the termination of the contract. II 13 The scope of review of this court in factual matters is necessarily limited. Fed.R.Civ.P. 52 states: 14 Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. 15 The district court has great latitude under this standard. This court should not reverse those findings of fact when the district court's account of the evidence is plausible in light of the record viewed in its entirety, even if this court would have viewed the evidence differently had it been sitting as trier of fact. Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985). It is apparent from the record that the district court, through the magistrate, carefully studied all evidence and it addressed the parties' arguments thoroughly. It is further evident that defendants' documentation of the various charges, particularly materials charges, was less than adequate. Therefore, upon review of the record, we find that the district court was not in clear error and we affirm its determination and calculation of the overbilling and overcharges. III 16 Plaintiffs also challenge the district court's calculation of accrued prejudgment interest from April 25, 1985, the date of our opinion, rather than from October 8, 1979, the date of plaintiffs' termination of the contract with defendants. Defendants argue that the magistrate's finding was correct because the labor charges were in dispute and in the prior appeal, this court was required to go into detailed analysis in order to determine the "actual cost of labor." Defendants refer to the magistrate's report, in which he stated that there was no reason for defendants, prior to that decision, to believe their factual misstatements resulted in an overcharge. 17 Generally, the allowance of prejudgment interest is in the trial	{ "pile_set_name": "FreeLaw" }
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 14-3805 __________ UNITED STATES OF AMERICA v. ANTHONY J. MUNCHAK, a/k/a A. J. Munchak Amthony J. Munchak, Appellant __________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3-10-cr-00075-002) District Judge: Honorable A. Richard Caputo Submitted Under Third Circuit LAR 34.1(a) September 9, 2015 BEFORE: VANASKIE, NYGAARD, and RENDELL, Circuit Judges (Filed April 26, 2016) __________ OPINION* __________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. NYGAARD, Circuit Judge. Anthony Munchak appeals the District Court’s order denying him a new trial pursuant to Fed. R. Crim P. 33. He asserts that the District Court made numerous errors by rejecting his motion premised on a claim of newly discovered evidence. We will affirm the District Court’s judgment of conviction and sentence. This opinion does not have any precedential value. Therefore our discussion of the case is limited to covering only what is necessary to explain our decision to the parties. In 2005, Munchak, a Commissioner for Lackawana County, Pennsylvania, joined a fellow commissioner in demanding payments of monies from Highland Associates, an architectural and engineering firm that was doing work for the County. The partners of Highland—Don Kalina, Dom Provini, and Kevin Smith—agreed to pay the demand of $30,000—each contributing $10,000—as well as two additional demands of the same amount over the next six months. The Government conducted an investigation and indicted Munchak and a fellow Commissioner on numerous charges arising from Highland’s payments to the Commissioners. A jury convicted Munchak on June 21, 2011, of conspiracy to commit theft or bribery concerning programs receiving federal funds (18 U.S.C. § 371); two counts of theft or bribery concerning programs receiving federal funds (18 U.S.C. § 666(a)(1)(B)); conspiracy to commit extortion under color of right (18 U.S.C. § 1951(a)); two counts of extortion under color of right (18 U.S.C. § 1951(a)); filing a false tax return 2 (26 U.S.C. § 7206(1)); and, attempted income tax evasion (26 U.S.C. § 7201). The District Court sentenced Munchak to 84 months of imprisonment.1 In January 2014, Munchak filed a Rule 33 motion for new trial, on the basis of newly discovered evidence that, he says, proves Smith, Provini and Kalina lied about the amount the County owed Highland.2 At Munchak’s trial, the partners were questioned about why they paid the extortion rather than report it to the authorities. Smith said they feared any such report would become “our word against their word,” putting their work with the county in jeopardy. J.A. 97. He said that, [I]t was kind of an interesting time for the request to come, and I think at that time I think we were owed 1.3 million dollars fees. We had probably 40 percent of the people in the Clarks Summit office were working on county contracts that were cancelable at any time. J.A. 95. He went on to say that, with their large payroll and overhead, they felt particularly vulnerable to negative cash flow consequences if the County began to slow its payments, or cancel the contract. After the third payment, Smith noted that they were “heading down on some of these contracts, but we were still –we had a lot of money out there.” J.A. 103. Provini was also questioned about their decision to pay money to the Commissioners. He said: 1 We affirmed the conviction on appeal. United States v. Munchak, 527 Fed. App’x. 191 (3d Cir. 2013). 2 The District Court convicted a co-defendant, Robert Cardaro, and we affirmed it. He joined Munchak in the filing of the Rule 33 motion and appeal of the District Court’s decision, but he withdrew his appeal. 3 A. “We reviewed alternatives. I happen to have the financials on my desk. I pretty much knew what the oldest, which was 1.2 or 1.3 million dollars. Q. Who owed you 1.2 or 1.3 million dollars? A. The county. At that particular time we were out that money. So that was all our cash out. J.A. 146. He went on to say: We looked at the amount of manpower we had on the project, what would we do with that manpower if the project was stopped or delayed or slowed. And then it became a problem of trying to place that many people on work that we really didn't have a contract in other areas. J.A. 149. Finally, Kalina said the following: “[A]t that time we had a significant amount of labor expended into the projects that we were working on. It was approximately 1.3 million dollars, in that area, that the county owed us.” J.A. 198. He said in another part of his testimony: “We had 1.3 million dollars of money that was due to us as we progressed forward with the work.” J.A. 214. He also testified: “We just [had] too much to lose. If we lose these contracts we can’t afford it, we’d be losing people, we’d be laying people off, and there’s too many families involved.” J.A. 199. He noted that, at the time of their last payment, “We did collect some money. Excuse me. Our receivables was still rather high in November of ’05.” J.A. 208. In his motion for new trial, Munchak focuses on one exchange between the prosecutor and Smith during trial. Q. When you say there were 1.3 million invoices outstanding, who were those invoices with? A. They were with the county. 4 J.A. 96. Munchak is convinced that this is an assertion by Smith that Highland had already submitted invoices to the County at that time, in that amount. His motion is an attempt to proffer “new evidence” that he says refutes this claim. In support of his argument that Smith, Kalina and Provini lied about the amount of money the County owed Highland, Munchak produces a statement by Thomas Durkin, County Chief Financial Officer, attesting that there was no outstanding invoice from Highland in mid-May 2005 in the amount of $1.3 million.3 He also proffers a chart from a trade journal reporting that Highland Associates had $23.8 million in revenue for 2005. This, Munchak asserts, demonstrates an exaggerated or false claim by Smith, Provini and Kalina that the loss of the County’s contract would have produced dire consequences for the firm.4 Motions for a new trial “are not favored and should ‘be granted sparingly and only in exceptional cases.’” United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008) (quoting Gov’t of the V.I v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987)). We, first, conclude that the District Court did not err by relying upon a five-factor test to assess the motion: 3 “At no time during that period [August 20, 2004, through July 25, 2005] did the County owe $1.3 million to Highland Associates. . . . In mid-May 2005, only three invoices from Highland Associates to the County were unpaid, resulting in an outstanding balance of $95,807.32. Highland later submitted to the County a $64,511.97 invoice for the period ending March 25, 2005, but Highland did not submit that invoice until October 2005.” J.A. 320. 4 In a second statement, Durkin states: “I do not know the total amount of receiv	{ "pile_set_name": "FreeLaw" }
36 F.Supp.2d 1166 (1999) Ronald S. DEICHMANN and Usher's Waterworks, Inc., Plaintiffs, v. The BOEING COMPANY, Defendant. No. 4:97CV1913-SNL. United States District Court, E.D. Missouri, Eastern Division. March 3, 1999. 1167 Henry W. Cummings, Henry W. Cummings, St. Charles, MO, for plaintiffs. Robert G. Lancaster, Associate, David A. Roodman, Associate, Daniel A. Crowe, Associate, Bryan Cave L.L.P., St. Louis, MO, for defendant. MEMORANDUM AND ORDER LIMBAUGH, District Judge. This matter is before the Court on Defendant Boeing's Motion for Summary Judgment (# 81) filed February 10, 1999, as part of a Motion Package pursuant to Local Rule 4.05. This Court previously dismissed Counts II and IV of plaintiffs' Third Amended Complaint for failure to state a claim upon which relief could be granted. This motion seeks summary judgment on the remaining Counts I and III. Count I claims breach of an express contract. Count III states a federal statutory claim for correction of inventorship. Summary Judgment Standard Courts have repeatedly recognized that summary judgment, like dismissal, is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Assoc. Elec. Coop., Inc., 838 F.2d 1168 268, 273 (8th Cir.1988). But there must be absolutely "no genuine issue as to a material fact and the moving party [must be] entitled to judgment as a matter of law." Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.1976). With these principles in mind, the Court will now turn to the facts. Undisputed Facts As an initial matter, the Court deems admitted all the facts as outlined by defendant. Local Rule 4.01(E) states that the following: Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party. Plaintiffs failed to identify the paragraph numbers from defendant's statement of The Uncontroverted Facts for any issues which they contend are in dispute. Rather, plaintiffs identify certain facts which they believe a jury could find which would result, they argue, in a verdict in their favor. However, "[a] district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996) (quoting White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir.1990)). Once defendant met its burden of demonstrating a lack of genuine issues of material fact, plaintiffs were required to designate specific facts creating a triable controversy. Plaintiffs' mere allegations that issues remain in dispute are insufficient to meet the requirements of Local Rule 4.01(E), and they are deemed to have admitted all facts which were not specifically controverted. See Ruby v. Springfield R-12 Pub. Sch. Dist., 76 F.3d 909, 911 n. 6 (8th Cir.1996). The Court will now outline the facts identified by defendant. Since 1973, McDonnell Douglas Corporation (MDC)[1] has designed, manufactured and used Automated Ultrasonic Scanning Systems (AUSS) to non-destructively inspect airplane parts for structural flaws. Defense Exhibit 1. While this originally required submerging the entire part in a tank of water, the current state of the art involves emitting an ultrasonic wave through a stream of water which can be moved slowly over the surface of the part being tested. See Defense Exhibit 13, United States Patent 5,431,342 (the '342 patent). Prior to 1989, MDC used ordinary nozzles to produce the necessary stream of water. However, MDC found that a stream of water emitted from an ordinary nozzle quickly becomes non-laminar or diffused. Id. As a result, it was necessary to keep the testing device very close to the part being tested. Id. This posed difficulty in the testing of oddly-shaped parts. Id. For that reason, *1169 MDC began contemplating the use of nozzles capable of producing a more laminar or coherent flow. Sometime prior to 1989, designers of ornamental fountains began using laminar flow nozzles in their displays. On July 2, 1987, California fountain designer Mark Fuller applied for a patent on a laminar flow nozzle. Defense Exhibit 8, United States Patent 4,795,092 (the Fuller patent). That patent application described a nozzle utilizing a "cylindrical enclosure ... having ... a substantially sharp edge [outlet] orifice," and a "turbulence reducing means compris[ing] an open cell foam member...." Id.[2] On January 3, 1989, that patent numbered 4,795,092 issued. Id. In July, 1989, MDC's AUSS engineers learned that plaintiff Usher's Waterworks, Inc. (Usher's), a St. Louis area fountain design firm, used laminar flow nozzles for ornamental fountains. Rich Lawson of MDC contacted Usher's to determine whether or not technology in the fountain nozzles would be adaptable for ultrasonic testing systems. Prior to this contact, no one connected with Usher's had any experience with ultrasonic testing applications or the use of laminar nozzles in such applications. Deichmann Deposition p. 69 ln. 16; Kuykendal Deposition pp. 127-28. David Usher, who worked for Usher's at that time, claimed that they in fact possessed the technology to produce a long and extremely coherent stream of water. Usher Deposition p. 49 ln. 20. Plaintiffs agreed to demonstrate this technology for MDC representatives immediately. Id. at lns. 23-24. However, prior to this demonstration, plaintiffs insisted that MDC enter a non-disclosure agreement (the Non-Disclosure Agreement) to protect plaintiffs' assertedly confidential information. Defense Exhibit 3. The agreement defined confidential information as "all information both written, oral, and as represented by viewing the external and internal mechanisms of the nozzle(s), which [Usher's] deem[s] to be confidential and proprietary, relating to the coherent flow nozzle (including, but not limited to mechanical operation, data, know-how, technical and non-technical materials, parts, and specifications"). Id. The agreement required MDC to maintain such information in confidence and prevented MDC from engaging in any communication with any third parties regarding the information for five years. Id. Representatives of both MDC and Usher's signed the Non-Disclosure Agreement, and Usher's demonstrated a laminar flow nozzle at their Fenton facility. Deichmann Deposition p. 137 ln. 16 p. 139 ln. 18. Apparently MDC was impressed enough with plaintiffs' nozzle that it ordered production by plaintiffs of a prototype coherent flow ultrasonic nozzle. Defense Exhibit 9. In exchange for	{ "pile_set_name": "FreeLaw" }
Illinois Official Reports Appellate Court Villaverde v. IP Acquisition VIII, LLC, 2015 IL App (1st) 143187 Appellate Court MARCIAL VILLAVERDE, Plaintiff-Appellant and Cross-Appellee, Caption v. IP ACQUISITION VIII, LLC, BARBARA M. SPAIN 2004 REVOCABLE TRUST, and PATRICK SPAIN, Defendants- Appellees and Cross-Appellants. District & No. First District, Third Division Docket No. 1-14-3187 Filed August 12, 2015 Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-43070; the Review Hon. Neil Cohen, Judge, presiding. Judgment Affirmed. Counsel on Kristen E. Prinz, Jessica Fayerman, and Amit Bindra, all of Prinz Law Appeal Firm, P.C., of Chicago, for appellant. Paul W. Carrol and Jordan M. Hanson, both of Gould & Ratner, LLP, of Chicago, for appellees. Panel JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion. OPINION ¶1 Defendant, Marcial Villaverde won a $166,000 judgment for unpaid wages against his former employer, S1 Audio, LLC, owned by Christopher Gantz. During the wage litigation, creditors of S1 Audio, defendants IP Acquisition VIII, LLC, Barbara M. Spain 2004 Revocable Trust (Spain Trust or Trust) and Patrick Spain (collectively, defendants), conducted a foreclosure sale and acquired S1 Audio’s most valuable asset–its intellectual property, preventing Villaverde from being able to collect his judgment. ¶2 Villaverde filed suit alleging (1) successor liability; (2) civil conspiracy; and (3) violation of the Illinois Uniform Fraudulent Transfer Act (UFTA) (740 ILCS 160/1 et seq. (West 2010)). Defendants moved for summary judgment, and sanctions under Illinois Supreme Court Rule 137 (eff. July 1, 2013) for filing the suit. The trial court granted summary judgment in favor of defendants, finding that IP Acquisition was not a successor corporation to S1 Audio and that no transfer of assets took place between S1 Audio and IP Acquisition in violation of the UFTA. The court also denied the motion for sanctions. ¶3 Villaverde seeks reversal of the summary judgment order, claiming IP Acquisition conducted the foreclosure sale solely to avoid paying Villaverde’s judgment. Villaverde contends a genuine issue of material fact exists on whether IP Acquisition constitutes a successor to S1 Audio. He further contends ample evidence exists to support his civil conspiracy claim. Defendants cross-appealed contending the trial court should have granted their motion for sanctions, arguing the complaint contains false statements and meritless legal claims. ¶4 We affirm the trial court’s grant of summary judgment on the basis that no exception to the doctrine of corporate successor nonliability applies under the facts of this case. Furthermore, the trial court acted well within its discretion in denying defendants’ motion for sanctions against Villaverde. ¶5 BACKGROUND ¶6 Christopher Gantz owned S1 Audio between 2007 and December 2011 and employed five individuals. Gantz paid $750,000 to acquire the rights to NxSet’s intellectual property for a headphone that sits on a person’s shoulders. S1 Audio developed and attempted to sell, license, and market NxSet. ¶7 Villaverde worked for S1 Audio from November 2008 to July 16, 2010. On September 24, 2010, Villaverde filed suit against Gantz and S1 Audio for failing to pay him wages. On February 19, 2013, Villaverde obtained a judgment in the wage litigation against Gantz and S1 Audio in the amount of $166,000. ¶8 On December 4, 2012, some 10 weeks before the trial court entered judgment in the wage litigation, Villaverde filed this suit against defendants and Gantz to recover the judgment from his unpaid wages. In his first amended complaint, Villaverde alleged: (1) a violation of the UFTA (740 ILCS 160/1 et seq. (West 2010)) based on the transfer of the intellectual property from the Trust to IP Acquisition, (2) successor liability (claiming IP Acquisition is a merger or -2- consolidation of S1 Audio and that defendants foreclosed the intellectual property to defraud Villaverde), and (3) civil conspiracy. ¶9 Gantz-Spain Relationship ¶ 10 Gantz had been friends with Patrick Spain since 1979. Between 2007 and 2010, Spain, either individually or through the Spain Trust, provided eight different loans to Gantz and S1 Audio. In 2009, the Spain Trust loaned S1 Audio $100,000 in exchange for a security interest in the company’s intellectual property. S1 Audio did not make any loan payments to Spain or the Spain Trust. On November 4, 2011, the Spain Trust provided the only notice of default, informing S1 Audio it had until November 11 to satisfy the $267,276.74 owed the Trust. S1 Audio did not cure the default and the Trust exercised its right as the primary secured creditor to foreclose its security interest. ¶ 11 In December 2011, the Spain Trust advertised in the Chicago Daily Law Bulletin the foreclosure sale of the intellectual property. On December 7, 2011, the date of the public sale, no outside bids were made for the intellectual property. The sale was extended and, on December 19, 2011, the Trust sold its security interest in S1 Audio to IP Acquisition of which Spain served as the managing member. The next day, IP Acquisition acquired the intellectual property of S1 Audio by making a credit bid–offering the amount of the debt S1 Audio owed. ¶ 12 Spain admitted IP Acquisition has only one asset–the S1 Audio intellectual property. Unlike S1 Audio, which developed and attempted to sell, license, and market the headphones, IP Acquisition’s business involved only selling or licensing the intellectual property. IP Acquisition attempted to sell the intellectual property at a targeted online auction but received only one bid of $5,000. IP Acquisition claims that before the auction, they offered Villaverde the right to share in the proceeds of any sale, but he refused. ¶ 13 On October 1, 2012, IP Acquisition hired Gantz as an independent sales representative. The agreement, dated June 1, 2012, provides Gantz with 20% of any money that IP Acquisition receives for the intellectual property. Gantz continued to try to license or market the intellectual property by working with prospective investors in America, Korea, and Japan. Gantz communicated with the potential investors; Spain did not participate in the conversations. ¶ 14 Neither Spain, the Trust, nor IP Acquisition entered into an agreement with S1 Audio to assume its liabilities after purchasing its assets. ¶ 15 Communications Between the Parties ¶ 16 Settlement Negotiations ¶ 17 IP Acquisition contends that Spain, as the Trust’s trustee, periodically sought information on when the loans to S1 Audio would be repaid. Defendants claim that in 2011, five months before the foreclosure, Spain threatened to foreclose on the Trust’s secured interest in S1 Audio’s intellectual property. That fall, Spain advised Gantz that the Trust lost confidence in the ability of S1 Audio to meet its obligations and advised Gantz that the trust would foreclose its security interest. According to defendants, Gantz was “not happy with the situation” and stayed out of the foreclosure process. ¶ 18 Between September 2011 (before the foreclosure) and January 24, 2012 (after the foreclosure), Spain, through his then counsel, Ken Obel, and Villaverde, through his counsel, -3- the Prinz Law Firm, participated in settlement conversations. During a September 2011 meeting, Spain explained that he was attempting to settle Villaverde’s litigation against S1 Audio because he was trying to sell the intellectual property. During defendants’ first written offer for Villaverde to share in the proceeds from any sale or license of the intellectual property, defendants outlined three different payment scenarios in exchange for Villaverde agreeing to dismiss his wage litigation, and, in all three, Villaverde’s ability to share in the proceeds was second only to Spain’s. The agreement would allow Villaverde to still pursue the amounts he was owed if S1 Audio could not	{ "pile_set_name": "FreeLaw" }
191 P.3d 738 (2008) 221 Or. App. 661 John M. UNO, M.D., P.C., Plaintiff-Appellant, v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, a corporation, Defendant-Respondent. 06CV0163; A133991. Court of Appeals of Oregon. Argued and Submitted November 28, 2007. Decided August 13, 2008. 739 William A. McDaniel, Coos Bay, argued the cause for appellant. With him on the briefs was Whitty, Littlefield, McDaniel & Bodkin, LLP. R. Daniel Lindahl argued the cause for respondent. With him on the brief were Robert B. Miller and Bullivant Houser Bailey, PC, Portland. Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge. SERCOMBE, J. Plaintiff, a disabled physician, appeals a judgment in favor of his insurer, defendant Provident Life & Accident Insurance Company (Provident). Provident issued plaintiff an overhead expense disability insurance policy. Plaintiff contends that the trial court erred in interpreting that policy to preclude coverage when plaintiff was not engaged in the practice of medicine. We disagree with the trial court's construction of the policy and reverse the entry of summary judgment in favor of Provident. Plaintiff is a physician who specializes in the practice of urology. In 1986, plaintiff purchased an overhead expense disability insurance policy from Provident. By the terms of the policy, Provident promised plaintiff to "pay benefits during a Period of Disability for Covered Overhead Expenses which accrue while you are totally disabled after the Elimination Period." The policy defined "Period of Disability" to include a period of "Total Disability (plus any Partial Disability which follows and for which benefits are paid)." "Total Disability" was defined, in turn, to mean " * * that due to Injuries or Sickness: "1. you are not able to perform the substantial and material duties of your occupation; and "2. you are receiving care by a Physician which is appropriate for the condition causing the disability." "Partial Disability" means conditions where the insured is unable to perform one or more "substantial and material daily business duties," or unable to do "usual daily business duties for as much time as it would normally take * * * to do them" and is under the appropriate care of a physician. In July 2004, plaintiff became totally disabled and ceased treating patients. He placed his medical license in retirement status and cancelled his medical malpractice insurance. Plaintiff hoped to recover from his disability, reactivate his medical license, and resume his practice. Accordingly, plaintiff continued to maintain his medical office, employing a part-time employee for the limited purposes of collecting accounts receivable, copying and mailing patient charts, paying bills, and storing financial and patient records. In April 2005, plaintiff made a claim for benefits under the policy for expenses incurred in maintaining his downsized medical practice. Provident accepted the claim and paid approximately six months of benefits. Thereafter, Provident declined further payments on the basis that plaintiff's overhead expenses were not "covered overhead expenses" as defined by the policy. Plaintiff then brought an action against Provident for breach of contract. The parties' dispute concerns whether the office expenses were "covered overhead expenses." As defined by the policy, "covered overhead expenses" are "items of expense incurred by you which are usual and customary in the operation of your business or profession. They must be generally accepted as tax deductible business overhead expenses." The trial court concluded that the office expenses did not qualify as "covered overhead expenses" because they were not "incurred * * * in the operation of [plaintiff's] business or profession." To so qualify, the trial court reasoned, plaintiff must be "currently active in the operation of a profession involving the medical practice of urology" in order for the benefits to be payable. 740 Because it concluded that plaintiff was not so engaged, the trial court entered summary judgment in favor of Provident. On appeal, plaintiff contends that "there are more facets to the operation of a urology practice than simply seeing patients," therefore, maintenance of his office for collections, billing, and storing patient files is part of the total operation of the business of his urology practice. Plaintiff adds that any ambiguity in the scope of covered expenses is to be resolved against the insurer. Conversely, Provident contends that plaintiff's business is "practicing medicine" and because plaintiff is "not treating patients, perform[ing] surgery, or conduct[ing] hospital rounds," he is not operating a business or profession for which benefits are owed under the terms of the policy. In Provident's view, plaintiff is essentially operating a collection agency, expenditures for which are not a payable benefit under the insurance policy. Under the policy, plaintiff is entitled to benefits if he incurred "covered overhead expenses" during a period of "total disability." The parties do not dispute that plaintiff was totally disabled, as defined by the policy, during the period of the claim. Nor do they differ on whether the "items of expenses" herethe employee salaries, office rent and other costs of collecting accounts receivable, patient correspondence, and record keepingare the types of expense that fit within the definition of "covered overhead expense" under the policy. The policy specifically lists "employees' salaries," "rent," and "accounting, billing and collection service fees" as types of qualified overhead expenses. Those are the "items of expense" plaintiff incurred. The policy also lists specific items that are not included in the definition of "covered overhead expenses": certain salaries, additions to inventory, extraordinary expenses, more than proportionately shared overhead, overhead expenses reimbursable under another policy. Those excluded expenses are not the type of "items of expense" plaintiff incurred.[1] Instead, the parties differ on whether costs associated with continuing plaintiff's business during a period of total disability were "items of expense incurred * * in the operation of [plaintiff's] business or profession" and therefore were "covered overhead expenses" under the policy. Plaintiff contends that those business continuation expenses are part of the "operation of [plaintiff's] business or profession." Provident argues 741 that plaintiff is not "operating" his business unless he is practicing medicine. However, Provident does not specify the types of expenses that could be incurred after an insured becomes totally disabled and still qualify as "covered overhead expenses" under the policy. The interpretation of the meaning of "operation of [a] business or profession" is a question of law. Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464, 469, 836 P.2d 703 (1992). The governing rule of the construction of an insurance agreement is to ascertain the intent of the parties. Totten v. New York Life Ins. Co., 298 Or. 765, 770, 696 P.2d 1082 (1985). That analysis begins with the terms and conditions of the policy. If those terms are not defined in the policy, we look to their plain meaning. Hoffman, 313 Or. at 469-70, 836 P.2d 703. If, after reviewing the plain meaning in context, the term or terms are susceptible to more than one plausible interpretation, the policy will be construed against the drafter. Id. We conclude that the plain meaning of "operation of [a] business or profession" in the context of the insurance policy includes performing actions to continue plaintiff's business, without regard to whether patients are still being treated. The meaning of "operation" is "1 a * * a doing or performing esp. of action: * * * b: a doing or performing of a practical work or of something involving practical application of principles or processes often experimentally or as part of a series of actions." Webster's Third New Int'l Dictionary 1581 (unabridged ed. 2002) "Business" is defined as "1 a (1) * * * purposeful activity: activity directed toward some end * * * (2): an activity engaged in as normal, logical, or inevitable and usu. extending over a considerable period of time." Id. at 302. Finally, "profession" is defined as "4 a: a calling requiring specialized knowledge and often long and intensive preparation * * *." Id. at 1811. Under those commonly understood definitions, business continuation activities are an "operation" in the sense that they are the performance of actions and the doing of practical work. The work is a "business" or part of plaintiff's "profession" because it is directed to some purposive end, the continuance of a professional practice, and because the billing and collection efforts continue normal activities that were part of plaintiff's professional practice. Thus, "covered overhead expenses" includes those type of expenses incurred in the continuation of the business or profession of the disabled insured. The context of the rest of the policy supports an interpretation that "covered overhead expenses" includes business continuation expenses of a disabled insured and not just more immediate expenses. There is no specific exclusion for business continuation expenses. Just as importantly, the policy contemplates the incurring of expenses by a disabled insured over a long period of time. First, the benefits do not start immediately after an insured becomes disabled. The policy provides that benefits are not payable for "Covered Overhead Expenses which accrue during an Elimination Period." An "elimination period" is the time of total disability that must elapse before benefits become payable." (The elimination period in plaintiff's policy was 90 days.) Second, the policy limits the monthly benefit to $10,000 and the maximum benefit to $120,000. It thus contemplates scenarios where benefits would be paid for a period	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAY 20 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT CALVIN MATTHEWS, et al., No. 11-17272 Plaintiffs - Appellants, D.C. No. 2:09-cv-02326-FJM v. MEMORANDUM * NPMG ACQUISITION SUB LLC, Defendant - Appellee. Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding Submitted May 16, 2013 San Francisco, California Before: CLIFTON and BEA, Circuit Judges, and DUFFY, 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 Kevin Thomas Duffy, District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. Plaintiffs appeal the district court’s grant of summary judgment in favor of their former employer, NPMG Acquisition Sub, LLC. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Plaintiffs ratified the EEOC’s entry of the consent decree, which waived plaintiffs’ individual claims under 42 U.S.C. § 1981 against NPMG, and thereby are bound by its terms. Plaintiffs are bound to the decree if by their words or deeds they ratified the EEOC’s entry of the decree on their behalf. See All-Way Leasing, Inc. v. Kelly, 895 P.2d 125, 128 (Ariz. Ct. App. 1994) (“A person not bound by a contract may ratify the contract and thus become bound by its terms, by affirming the contract through words or deeds.”); Phx. W. Holding Corp. v. Gleeson, 500 P.2d 320, 326 (Ariz. Ct. App. 1972) (“Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act . . . is given effect as if originally authorized by him.”) (quoting Restatement (Second) of Agency § 82 (1958)) (internal quotation marks omitted). A court may “infer an intent to ratify if a non-party to the contract voluntarily accepts benefits conferred by the contract.” All-Way Leasing, 895 P.2d at 128. Plaintiffs ratified the consent decree by accepting and spending the settlement payments NPMG paid them pursuant to the decree, while knowing that 2 the decree stated that they had waived any claims that could have been raised in the EEOC lawsuit. Plaintiffs’ waiver was “voluntary, deliberate, and informed” because the consent decree’s terms were unambiguous and there was no coercive atmosphere leading to the waiver of their rights. See Stroman v. W. Coast Grocery Co., 884 F.2d 458, 461-62 (9th Cir. 1989). Plaintiffs are bound by the consent decree, and the grant of summary judgment is affirmed.1 AFFIRMED. 1 Because plaintiffs became parties to the consent decree through ratification, we do not reach whether non-party preclusion bars plaintiffs’ claims. 3	{ "pile_set_name": "FreeLaw" }
887 F.2d 1086 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.FERRELLGAS, INC., Appellant,v.David DEAN, Jr., Appellee. No. 89-5221. United States Court of Appeals, Sixth Circuit. Oct. 17, 1989. Before KRUPANSKY and WELLFORD, Circuit Judges and JAMES HARVEY,* Senior U.S. District Judge. WELLFORD, Circuit Judge. 1 David Dean was employed by Buckeye Gas Products, predecessor to defendant Ferrellgas, and by Ferrellgas itself, for about sixteen years. Ferrellgas was engaged in the liquid petroleum gas (LPG) distribution business and Dean was its route salesman and delivery agent. During his tenure, Dean signed a noncompetition agreement. The agreement prohibited Dean from disclosing any confidential information during or within two years following termination of his employment. The agreement also prohibited Dean from competing with Ferrellgas under certain circumstances following his termination: 2 4 .... Employee shall not interfere with the established business relationship between the Employer and the customers of Employer within a radius of fifty (50) miles of Employer's Location, and shall not call upon any such customer of Employer's Business for the purpose of soliciting, selling or delivering products of the kind which are the subject of Employer's Business, or rendering any service to such customer in connection with such products. 3 In August 1988, Ferrellgas terminated Dean's employment. The exact reason for the firing is in dispute, but the discharge occurred following rumors which reached defendant that Dean planned to start his own company in a business which would compete with Ferrellgas. Following his termination, Dean went to work for a competing company, and Ferrellgas claims that Dean has been "pirating" away its former customers while serving as a route salesman. 4 In assessing the appropriateness of a preliminary injunction, the trial court applied the test put forth in In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985), considering: (1) the likelihood of plaintiff's success on the merits; (2) whether the injunction will save the plaintiff from irreparable injury; (3) whether the injunction would harm others; and (4) whether the public interest would be served by the injunction. The trial court found after consideration that the DeLorean test weighed against granting the injunction. The court found it unlikely that Ferrellgas would succeed on the merits, found no evidence to suggest that Ferrellgas would suffer irreparable injury in the absence of extraordinary relief, and found that the public interest would not be served by an injunction that might stifle competition in the LPG marketplace. 5 On appeal, Ferrellgas takes exception to the findings of the district court and its failure to enforce the agreement by injunctive relief. It maintains that the trial court misapplied Tennessee law in assessing its likelihood of success on the merits, and with respect to the equities of the case. Ferrellgas also argues that without the injunction it will not effectively be able to enforce its rights under the agreement. Ferrellgas maintains that the decision of the district court grows out of the court's misinterpretation of Tennessee law, and a failure to appreciate the relationship between Dean and Ferrellgas and Dean's subsequent conduct in "competition" with his former employer. 6 A trial court's decision to grant or deny injunctive relief will be disturbed only on a finding of abuse of discretion. Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1261, 1263 (6th Cir.1985); DeLorean, 755 F.2d at 1228; USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982). "Rigid adherence to the 'abuse of discretion' standard is required to avoid untoward disruption of the progression of lawsuits as the lower court decision 'was in no sense a final disposition'." Frisch's Restaurant, 759 F.2d 1261, 1263 (citations omitted). 7 We find no abuse of discretion and therefore affirm. 8 Ferrellgas has raised serious questions on the merits of its claim, but failed to convince the trial court that it would suffer irreparable harm without the injunction. Even assuming that it would suffer irreparable harm in the absence of a preliminary injunction (and that the trial court's contrary finding was an abuse of discretion), it is difficult to see how that harm would "decidedly outweigh" the potential harm to Dean if the injunction issued. 9 Agreements in restraint of trade, such as covenants restricting competition, are not invalid per se. Although disfavored by law, such agreements are valid and will be enforced, provided they are deemed reasonable under the particular circumstances. 10 There is no inflexible formula for deciding the ubiquitous question of reasonableness, insofar as noncompetitive covenants are concerned. Each case must stand or fall on its own facts. 11 Allright Auto Parks, Inc. v. Berry, 409 S.W.2d 361, 363 (Tenn.1966) (citations omitted) (emphasis added). 12 The experienced Tennessee district judge in this case carefully considered and weighed the various Tennessee cases in a fifteen page opinion which deals with the difficult issues of enforcement of anti-competitive agreements by employees who are not in supervisory or management positions. Judge Edgar cited and considered Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28 (Tenn.1984); Selox, Inc. v. Ford, 675 S.W.2d 474 (Tenn.1984); Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn.1984); Kaset v. Combs, 434 S.W.2d 838 (Tenn.Ct.App.1968); and, Arkansas Dailies, Inc. v. Dan, 260 S.W.2d 200 (Tenn.Ct.App.1953) among many other authorities in reaching his decision. We find his rationale to be persuasive and affirm based generally on the district court's opinion. The district court took into account the circumstances of the required signing of the agreement in dispute and the circumstances of the discharge. 13 Tennessee law on this subject seems to emphasize consideration of each case on the particular facts involved, and in appropriate circumstances will enforce reasonable terms and provisions of such non-competition arrangements. We find no error in the considered exercise of discretion in this case to decline extraordinary relief without prejudice to plaintiff's rights to seek other relief and damages. 14 We accordingly AFFIRM. * The Honorable James Harvey, Senior United States District Judge for the Eastern District of Michigan, sitting by designation	{ "pile_set_name": "FreeLaw" }
129 F.3d 1254 Nelson Fernandesv.U.S., I.R.S. NO. 97-5192 United States Court of Appeals,Third Circuit. Sept 08, 1997 Appeal From: D.N.J. ,No.9603246 , Politan, J. 1 Affirmed.	{ "pile_set_name": "FreeLaw" }
680 F.2d 1387 Calzadillasv.Pat O'Brien's Bar 81-3410 UNITED STATES COURT OF APPEALS Fifth Circuit 6/7/82 1 E.D.La. AFFIRMED 2 --------------- Fed.R.App.P. 34(a); 5th Cir. R. 18.	{ "pile_set_name": "FreeLaw" }
574 F.2d 1043 Federico F. MARTINEZ, Petitioner-Appellant,v.Palemon CHAVEZ, Mora County Sheriff, Respondent-Appellee. No. 77-1469. United States Court of Appeals,Tenth Circuit. Submitted Nov. 13, 1977.Decided April 26, 1978. Federico F. Martinez, pro se. Toney Anaya, Atty. Gen., Ralph W. Muxlow, II, Asst. Atty. Gen., Santa Fe, N. M., for respondent-appellee. Before SETH, PICKETT and McWILLIAMS, Circuit Judges. PER CURIAM. 1 Martinez is appealing dismissal of his civil rights action submitted to the district court pursuant to 42 U.S.C. § 1983. The action is related to events surrounding Martinez' incarceration in the Mora County, New Mexico, jail, and names as defendants a New Mexico state trial judge (Angel), two county prosecutors (Armijo and Vaughn), and the sheriff of Mora County (Chavez). Martinez sought both injunctive and monetary relief but, since he is no longer an inmate in the Mora County jail and makes no allegations regarding the likelihood of future confinement in the jail, we view only the monetary damages claim as viable. 2 Martinez' civil rights complaint included three separate counts, only two of which are relevant to this appeal. We first consider Martinez' contentions regarding an arrest which Martinez alleges was based on an unfounded escape charge. All four named defendants are alleged to be co-conspirators in this count. The district court concluded that the trial judge and two prosecutors were immune and dismissed the action as to them. Martinez then sought reinstatement of the action as to the judge and two prosecutors as well as to amend his complaint as to them. The district court denied reinstatement as to the three and neither granted nor denied the proposed amendment. Martinez now contends that the district court erred in failing to grant his motion to amend his complaint and to grant his motion to vacate the judgment dismissing the action as to the judge and two prosecutors. 3 We see no error in the district court's action regarding defendants Angel, Armijo and Vaughn. We have reviewed both Martinez' original and proposed amended complaints and find no allegations of fact which would support a finding that any of the three acted outside the scope of their judicial or prosecutorial duties. Defendant Angel was accordingly cloaked with judicial immunity, see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); and defendants Armijo and Vaughn with prosecutorial immunity, see, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977). Dismissal as to each was proper. Following further proceedings discussed below, the district court also dismissed on this count as to defendant Chavez, stating that Martinez' allegations regarding false charges of escape relate to the state court, not Chavez. The record supports this conclusion. 4 We view as far more substantial Martinez' allegations that he was subjected over a four month period of time to cruel and unusual punishment, in the form of suffocating conditions, as a result of Sheriff Chavez' inactions regarding ventilation of the Mora County jail. Only Chavez is named as a defendant in this count. Review of the procedure employed by the district court in disposing of this count is warranted. 5 The district court granted Martinez leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and service of process issued. Chavez answered, represented by the Attorney General for the State of New Mexico, arguing that Martinez' claims regarding ventilation of the jail fail to allege violation of a federal constitutional right; and, that Sheriff Chavez was not the responsible individual for overseeing proper ventilation of the jail. The district court ordered that the parties submit affidavits and counter-affidavits, including those of witnesses, and that "trial of the cause will be entirely upon the affidavits submitted in support of, and in opposition to, the complaint and Findings of Fact and Conclusions of Law and Judgment will be entered thereon." 6 Chavez submitted affidavits executed by himself and the County Planner for Mora County stating that: Martinez was a resident in the jail for approximately four months during which time he complained everyday about the ventilation system; the ventilation system was inspected at that time and found to be operating properly (even if inadequately); the Board of County Commissioners has ultimate responsibility for the jail, including the ventilation system; Martinez' complaints about the ventilation system were referred by the sheriff to the Board and the County Planner; the ventilation system has always worked and repair was never required; Martinez was never treated medically, while a resident in the jail, for a respiratory disease; and, Martinez was the sole complainant regarding the ventilation system. 7 Martinez responded, with affidavits executed by himself and another inmate, that: Martinez complained frequently and directly to Chavez regarding inadequate ventilation of the jail and his consequent respiratory complications; Chavez has direct responsibility for operation and maintenance of the jail; Chavez personally informed Martinez on numerous occasions that the ventilation system was out of order; Chavez, in Martinez' presence, informed the public defender and a law student that the system was out of order; Martinez was treated during the period in question for a respiratory disorder; numerous other inmates made the same complaint to Chavez regarding ventilation of the jail; and, medical records would show that Martinez was in fact suffering a respiratory disease as a result of incarceration in the Mora County jail. 8 Rather than conducting "trial by affidavit" as it initially proposed,1 the district court implemented a procedure similar to that approved in our recently filed opinion, Martinez et al, v. Aaron (Malley, Warden), 570 F.2d 317 (10th Cir. No. 77-1395, filed January 23, 1978). Based on the pleadings and foregoing affidavits, the district court found Martinez' action to be frivolous and dismissed pursuant to 28 U.S.C. § 1915(d).2 9 Whether or not a complaint states a cognizable legal claim,3 the accuracy of facts alleged therein is always a point of contention. As recognized in Martinez, supra, the burden is on the United States district courts to develop effective and legally permissible methods of dealing with the ever increasing numbers of prisoner civil rights actions. It was in order to aid in determining which facts alleged in the complaint were relevant, accurate, and subject to bona fide dispute, that we approved the procedure employed by the district court in Martinez.4 10 Having reviewed the Martinez type procedure employed by the district court in this case, we find no impropriety in the procedure itself and turn now to application of that procedure to the specific facts at hand. The questions presented in this case were whether Martinez was in fact subjected to conditions sufficiently onerous that they violated the Eighth Amendment to the United States Constitution, and, if so, whether Sheriff Chavez may be held monetarily liable. Without question suffocating jail conditions may indeed offend "the evolving standards of decency that mark the progress of a maturing society" and thus constitute cruel and unusual punishment. See, Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976); Battle v. Anderson, 564 F.2d 388 (10th Cir. 1977); Gregory v. Wyse, 512 F.2d 378 (10th Cir. 1975). The record developed by the district court is clearly not dispositive of questions regarding adequacy of the ventilation system and we express no opinion regarding the existence or non-existence of oppressive jail conditions. The record does, however, establish that, if this case were to proceed to trial, Martinez could prove no facts which would entitle him to the requested relief from Sheriff Chavez. 11 The undisputed, crucial facts of this case, as established by the pleadings and affidavits submitted by each of the parties, are these: Martinez did complain to Sheriff Chavez regarding ventilation of the jail; Chavez did report these complaints to both the County Board of Commissioners and the County Planner; the County Planner and Board have ultimate responsibility for maintenance of the jail; pursuant to these reports the ventilation system was investigated and found to be operating, even if inadequately. Based upon these undisputed facts, it is clear that Sheriff Chavez was not deliberately indifferent to Martinez' complaints. To the contrary, Sheriff Chavez reported Martinez' complaints to the appropriate authorities (the County Planner and the Board of County Commissioners). Even accepting all Martinez' allegations of fact as true, including those contained in his affidavits, it is clear that Martinez could not establish through proof at trial that he is entitled to recover from Chavez. Martinez could make no rational argument on the law or facts in support of his claim and the action was accordingly properly dismissed as frivolous under § 1915(d). The procedure employed by the district court in reaching its § 1915(d) frivolity finding was entirely proper under the circumstances of this case. 12 When this appeal was docketed the parties were notified that it was assigned to Calendar D and would be considered by a panel of judges, without oral argument, on the record of proceedings before the district court. Although each was afforded the opportunity to submit a memorandum in support of their respective positions, only Martinez has	{ "pile_set_name": "FreeLaw" }
213 Cal.App.2d 78 (1963) CONTINENTAL CASUALTY COMPANY, Plaintiff and Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Defendants and Respondents. Civ. No. 20211. California Court of Appeals. First Dist., Div. One. Feb. 18, 1963. Carroll, Davis, Burdick & McDonough and J. D. Burdick for Plaintiff and Appellant. Hadsell, Murman & Bishop, Bacon, Mundhenk, Stone & O'Brien, Herbert Chamberlin, Bishop, Murray & Barry and Michael J. Murray for Defendants and Respondents. 80 SULLIVAN, J. We are presented with a question of liability deriving from conflicting "other insurance" clauses in three separately issued policies of automobile liability insurance. Briefly stated, our inquiry is as to whether in the instance at hand the policies provided for primary or excess insurance. We have concluded that the matter before us is governed by our decision in Athey v. Netherlands Ins. Co. (1962) 200 Cal.App.2d 10 [19 Cal.Rptr. 89], that all three policies provide for excess insurance and that the judgment appealed from should be reversed. The parties have agreed upon the facts. One James R. Corcoran, Jr. rented an automobile from Paul J. Muldoon, doing business as the Peninsula Lease Company. Corcoran, a resident of Massachusetts, was an executive of Fenwal, Inc., a firm located in that state, and was reimbursed by Fenwal for the rental charge which included a charge for insurance. While driving the rented automobile in the scope of his employment by Fenwal, Corcoran became involved in an accident as a result of which one Victoria Pucci suffered personal injuries and property damage. The latter commenced an action against Corcoran, Peninsula Lease Company and others. At the time of the accident the following policies of automobile liability insurance were in effect: so-called driverless car liability policy issued by Continental Casualty Company (hereafter called Continental) to Paul J. Muldoon, dba Peninsula Lease Co. as named insured; a Massachusetts motor vehicle liability policy issued by Hartford Accident and Indemnity Company (hereafter called Hartford) to Corcoran as named insured; and a schedule automobile liability policy issued by Lumbermens Mutual Casualty Company (hereafter called Lumbermens) to Fenwal as named insured. Continental appeared and defended the above legal action and eventually settled the Pucci claim for $3,276.15. The parties before us have agreed that such settlement was fair and reasonable. Continental demanded of both Hartford and Lumbermens that they appear for and defend Corcoran and contribute to any judgment or settlement. Continental thereupon brought the instant action in declaratory relief against Hartford and Lumbermens seeking an adjudication of the liabilities of all three parties. The case was submitted to the court below on an agreed statement of facts, the parties further stipulating that whatever proration was ordered by the court in respect to the above payment of 81 $3,276.15 to the injured party would be applicable to an outstanding property damage claim of $618.94. The court adopted the agreed statement of facts as its findings of fact and rendered judgment denying all recovery to Continental. From such judgment Continental has taken this appeal on the judgment roll with copies of the policies and the automobile rental agreement as appended exhibits. [1] Since no extrinsic evidence was introduced in the court below in aid of construction, the construction of the instant policies presents a question of law. We are not bound by the trial court's interpretation of them and we therefore proceed to make our own determination of their meaning from an examination of their applicable provisions. (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 430 [296 P.2d 801, 57 A.L.R.2d 914]; Estate of Platt (1942) 21 Cal.2d 343, 352 [131 P.2d 825].) The Continental policy, under its insuring agreements, provides coverage to the insured for bodily injury liability arising out of defined hazards which include, inter alia, "[t]he ownership, maintenance or use of (a) any automobile of the private passenger or commercial type while rented without chauffeurs to others from locations in the United States of America. ..." It defines the word "insured" to include the named insured and also "any person, firm, association, partnership or corporation to whom an automobile has been rented without a chauffeur. ..." Continental concedes that its policy extended coverage to Corcoran, the driver, for the accident in question. Pertinent to the problem at hand is the following provision which is found among the "conditions" of the above policy: "17. Other Insurance. The insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise." We observe at this point that the above provision contained in the lessor's policy in the instant case is identical in language with the provision contained in the policy issued by Netherlands Insurance Company to the lessor of the automobile in the Athey case. (Athey v. Netherlands Ins. Co., supra, 200 Cal.App.2d 10.) The Hartford policy, issued to Corcoran in Massachusetts, provided under its insuring agreements coverage to him for statutory bodily injury liability in accordance with and arising out of the Massachusetts Compulsory Automobile Liability 82 Security Act (Coverage A) and in addition coverage for bodily injury liability other than statutory "arising out of the ownership, maintenance or use of the motor vehicle." (Coverage B.) Paragraph V of the insuring agreements provides as follows: "V. Use of Other Motor Vehicles--Coverages B, C and D: If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger motor vehicle covered by this policy, such insurance as is afforded by this policy under coverages B, C and division 2 of coverage D with respect to said motor vehicle applies with respect to any other motor vehicle, subject to the following provisions: (a) With respect to the insurance under coverages B and C the unqualified word 'insured' includes (1) such named insured and spouse; and (2) any other person or organization legally responsible for the use by such named insured or spouse of a motor vehicle not owned or hired by such other person or organization." Important to the issues before us is the following "other insurance" clause included among the conditions of the policy: "11. Other Insurance--Coverages A, B and C: If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to temporary substitute motor vehicles under Insuring Agreement IV or other motor vehicles under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance." (Italics added.) [2a] The Lumbermens policy, issued in Massachusetts to Fenwal, Corcoran's employer, under its insuring agreements provides coverage to the insured for bodily injury liability arising out of defined hazards which along with hazards relating to owned automobiles and hired automobiles, [fn. 1] included the following provision relating to nonowned automobiles: 83 "Division C. Non-Owned Automobiles--The use, by any person other than the named insured, of any non-owned automobile of the private passenger type in the business of the named insured as stated in the declarations, and the use in such business, by any employee of the named insured, of any non-owned automobile of the commercial type if such use of such automobile is occasional and infrequent." By definition under the insuring agreements the word "insured" includes the named insured (Fenwal) and "also includes ... under division C of the Definition of Hazards, any executive officer of the named insured." However, the declarations and the declarations schedule of the Lumbermens policy make clear that it does not insure for the hazards of owned automobiles or hired automobiles (Divisions A and B of Hazards--see footnote 1) but only for the hazards of nonowned automobiles (Division C--ante). Finally, among its conditions, the policy includes the following "other insurance" clause pertinent here: "13. Other Insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under division B of the Definition of Hazards with respect to a hired automobile insured on a cost of hire basis and under division C of the Definition of Hazards and Insuring Agreement IV (e) shall be excess insurance over any other valid and collectible insurance." (Italics added.) A comparison of the "other insurance" clauses contained in the Hartford and Lumbermens' policies shows that, except for particular paragraph and division references, they are practically the same and that the operative language of each is identical. We also note at this point, that subject to the same exceptions, such clauses are practically the same as the "other insurance" clause contained in the policy issued by the National Grange Mutual Liability Fire Insurance Co. to the driver-renter of	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6610 VERNON LAMONT HENLEY, Plaintiff - Appellant, versus DAVID BARNES, Doctor, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (7:05-cv-00663-jlk) Submitted: September 29, 2006 Decided: October 18, 2006 Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Vernon Lamont Henley, Appellant Pro Se. Rosalie Pemberton Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, PC, Staunton, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Vernon Lamont Henley appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Henley v. Barnes, No. 7:05-cv-00663-jlk (W.D. Va. Mar. 24, 2006). 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 -	{ "pile_set_name": "FreeLaw" }
Slip Op. 08 - 35 UNITED STATES COURT OF INTERNATIONAL TRADE : THE UNITED STATES : : Plaintiff, : : v. : Before: MUSGRAVE, Senior Judge : Court No. 07-00263 WORLD COMMODITIES EQUIPMENT : CORP., and HARTFORD FIRE : INSURANCE COMPANY : : Defendants. : ____________________________________ : : HARTFORD FIRE INSURANCE : COMPANY, : : Plaintiff, : : v. : : WORLD COMMODITIES EQUIPMENT : CORPORATION, : : Cross-Defendant. : ____________________________________ : [Denying Customs’ out-of-time motion for out-of-time service of process upon defendant World Commodities Equipment Corp. and dismissing action as to that defendant; denying motion to dismiss as to Hartford Fire Insurance Co.] Dated: March 21, 2008 Court No. 07-00263 Page 2 OPINION AND ORDER Jefferey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Sean M. Dunn) for the plaintiff; Barnes, Richardson & Colburn (Frederick D. Van Arnam) for defendant Hartford Fire Insurance Company; Defendant World Commodities Equipment Corp. did not participate in this action. On July 16, 2007 the United States Department of Homeland Security, Customs and Border Protection (“CBP” or “Customs”) filed with the Court a summons and complaint to enforce civil penalties and recover unpaid duties pursuant to 19 U.S.C. § 1592 (2000) for an entry of fresh garlic imported into the United States on July 16, 2002.1 Customs alleges that Defendant importer World Commodities Equipment Co. (“WCE”) attempted to enter the fresh garlic into the commerce of the United States by means of documents containing “material false statements” showing that the garlic originated from Mexico, when the actual country of origin was the People’s Republic of China. Compl. at ¶ ¶ 5, 7. However, Customs has apparently failed to effect service of process on WCE within the 120-day time period required by CIT Rule 4; currently before the court is Customs’ out-of -time motion to serve the summons and complaint on WCE approximately one month beyond the 120-day deadline. Co-defendant surety Hartford Fire Insurance Co., (“Hartford”) asserts that Customs’ failure to effectuate service of process on WCE within the 120-day deadline requires dismissal as to WCE. Hartford asserts further that if dismissal is granted as to WCE, the court must grant its motion to 1 Pursuant to the five-year statute of limitations provided in 19 U.S.C. § 1621, July 16, 2007 was the last date in which the action could be filed. Court No. 07-00263 Page 3 dismiss the action against Hartford as well (pursuant to Rule 12(b)(5)) or, alternatively, “to convert this matter to summary judgment” or decide the action in Hartford’s favor based on the pleadings. Hartford’s Mot. In Opp. at 13. For the reasons set forth below, the court will (1) deny plaintiff’s out- of-time motion and dismiss the matter as to WCE, and (2) deny Hartford’s motion to dismiss. Background On July 16, 2007 Customs sent to Hartford and WCE a notice of the commencement of the current action with a request that each of the defendants waive formal service of a summons. See CIT Rule 4(d). Defendant Hartford signed and returned the waiver on August 28, 2007; defendant WCE apparently never acknowledged receipt of those documents. Because WCE did not waive formal service of process, Customs was required, pursuant to CIT Rule 4(m), to formally serve the summons and complaint on WCE within 120 days after the July 16, 2007 filing of the complaint. Day 120 fell on November 13, 2007, but Customs had not served WCE. On November 30, 2007, Customs filed with the Court a pleading entitled “Plaintiff’s Out of Time Motion for Leave to Serve Summons and Complaint Out of Time on Defendant [WCE].” In that motion, Customs states that the summons and complaint had not been served on WCE, but that service was expected to occur “on or about December 3, 2007.” Pl.’s Out of Time Mot. at 1. Customs eventually served WCE on December 10, 2007. Pl.’s Resp. to Hartford’s Mot. in Opp. at 8. Discussion I. Dismissal as to WCE Rule 4(m) of the Court’s Rules provides (m) TIME LIMIT FOR SERVICE. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the Court No. 07-00263 Page 4 court upon motion or its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1). CIT R. 4(m). Subsequent to the passage of the 1993 Amendments to the Federal Rules of Civil Procedure, most jurisdictions require that the consideration of whether to extend the time for service of process under Rule 4(m) requires a district judge to engage in what is essentially a two-part inquiry.2 First, the court must determine whether “good cause” exists for an extension of time; if the court finds that good cause exists, it must extend time for service “and the inquiry is ended.” Petrucelli v. Bohringer and Ratzinger GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995). Second, “even if there is no good cause shown,” the court must then consider whether the circumstances of the case warrant the grant of a discretionary extension of time. See Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. advisory committee notes, 28 U.S.C. App., p. 654 (authorizing courts discretion to grant an extension of time “even if there is no good cause shown,” noting that “[r]elief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.”); Henderson v. United States, 517 U.S. 654, 662 (1996) (recognizing that the 1993 amendments to the rules accorded courts the discretion to enlarge the 120-day service period even without a showing of good cause). Prior to the 1993 Amendments, this Court established a standard for demonstrating “good 2 Prior to December 1, 1993, CIT Rule 4(m) was designated as 4(h) and the comparable Federal Rule of Civil Procedure was 4(j). After December 1, 1993 (and the 1993 Amendments) the letter designations were harmonized so that CIT Rule 4(m) and Federal Rule 4(m) are the same rule. Court No. 07-00263 Page 5 cause” pursuant to Rule 4 in United States v. Gen. Int’l Mktg. Group, 14 CIT 545, 742 F.Supp. 1173 (1990). In that case, Judge Watson concluded that a fair standard of good cause is one which requires people to show behavior consistent with the recognition that a 120 day deadline exists. It is worth noting that the word “deadline” originated in prisons to describe a line or boundary, the crossing of which subjected prisoners to the penalty of death. It would seem reasonable therefore to require plaintiffs to make such efforts at service as are consistent with a recognition that 120 days may otherwise mark the death of the action. 14 CIT at 548, 742 F.Supp. at 1176. In Gen. Int’l, the Court found that the plaintiff failed to demonstrate good cause because the plaintiff’s efforts at service were essentially limited to simply mailing the summons and complaint to the defendant’s last known address. Although Gen. Int’l preceded the 1993 amendments to Rule 4, the court sees no reason to deviate from the “good cause” standard established therein to address	{ "pile_set_name": "FreeLaw" }
375 F.2d 1012 Inez Tyler Bellinger MUTCHERSON, Appellant,v.UNITED STATES of america, Appellee. No. 23954. United States Court of Appeals Fifth Circuit. April 21, 1967, Rehearing Denied July 3, 1967. B. Clarence Mayfield, Savannah, Ga., for appellant. Allen L. Chancey, Jr., Atlanta, Ga., Charles L. Goodson, U.S. Atty., for appellee. Before BROWN and BELL, Circuit Judges, and BREWSTER, District Judge. PER CURIAM: 1 The appellant was convicted upon three counts charging wagering tax violations under 26 U.S.C.A. 7203. She argues that her convictions should be reversed because of insufficiency of the evidence, illegality of the search of her house, and prejudice of the judge. A consideration of each of these contentions shows them to be entirely without merit. 2 Affirmed.	{ "pile_set_name": "FreeLaw" }
NO. 04-14-00746-CV FILED IN IN THE TEXAS COURT OF APPEALS FOR THE FOURTH DISTRICT 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 3/6/2015 1:44:55 PM * * * * * KEITH E. HOTTLE ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, Clerk Appellant v. CATHERINE CLARK, Appellee * * * * * On Accelerated Interlocutory Appeal from the 285th Judicial District Court Bexar County, Texas Cause No. 2009-CI-19821 * * * * * APPENDIX TO BRIEF OF APPELLEE, CATHERINE CLARK * * * * * Respectfully submitted, Brendan K. McBride Matthew R. Pearson State Bar No. 24008900 State Bar No. 00788173 brendan.mcbride@att.net mpearson@gplawfirm.com MCBRIDE LAW FIRM, of Counsel Tracie Gee Conner to GRAVELY & PEARSON, LLP State Bar No. 24074066 425 Soledad, Suite 620 tconner@gplawfirm.com San Antonio, Texas 78205 GRAVELY & PEARSON, L.L.P. (210) 227-1200 Telephone 425 Soledad, Suite 600 (210) 881-6752 Facsimile San Antonio, TX 78205 (210) 472-1111 Telephone (210) 472-1110 Facsimile ATTORNEYS FOR APPELLEE, CATHERINE CLARK TABLE OF CONTENTS Page May 14, 2008 Complaint letter from Catherine Clark 1-14 Page 21 of New Employee Handbook 15 328 329 330 331 332 333 334 335 336 337 338 339 340 341 250	{ "pile_set_name": "FreeLaw" }
811 F.Supp.2d 523 (2011) John Thomas BERRY, Plaintiff, v. WORLDWIDE LANGUAGE RESOURCES, INC., Defendant. No. 1:08-cv-00438-JAW. United States District Court, D. Maine. September 15, 2011. 524 David J. Van Dyke, Hornblower, Lynch, Rabasco & Van Dyke, Lewiston, ME, for Plaintiff. Christopher D. Hawkins, Nelson, Kinder, Mosseau & Saturley, P.C., Manchester, NH, Christopher T. Vrountas, Nelson, Kinder, Mosseau & Saturley, P.C., Manchester, NH, for Defendant. ORDER ON RENEWED MOTION TO SANCTION PLAINTIFF JOHN A. WOODCOCK, JR., Chief Judge. Consistent with the jury verdict, the Court concludes that WorldWide Language Resources, Inc. (WorldWide) failed to demonstrate that John Thomas Berry committed perjury and tampered with a witness. The Court denies WorldWide's renewed motion for sanctions. I. STATEMENT OF FACTS A. An Overview John Thomas Berry's lawsuit against his former employer, WorldWide Language Resources, Inc., has been especially contentious. After a period of discovery marked by acrimony and after a three-day trial, on March 9, 2011, a federal jury found that Mr. Berry had proven his promissory estoppel claim against World-Wide and awarded him Twenty-Five Thousand Dollars in damages. Verdict Form (Docket #138) (Verdict). On March 10, 2011, the Court reduced the verdict to judgment.[1]J. (Docket # 140). On April 11, 2011, WorldWide renewed an earlier motion to sanction Mr. Berry. Def.'s Renewed Mot. to Sanction Pl. for his Perjury and Witness Tampering Concerning a Relevant Trial Issue (Docket #144) (Def.'s Mot). On April 25, 2011, Mr. Berry responded. Pl.'s Opp'n to Def.'s [Renewed] Mot. for Sanctions (Docket # 145) (Pl.'s Opp'n). 525 The primary focus of WorldWide's motion is the assertion that Mr. Berry committed perjury when he testified about his relationship with Marianna Chachkova. Def.'s Mot. at 1-20. WorldWide emphatically believes that Mr. Berry and Ms. Chachkova were married and WorldWide says that, in his employment application to WorldWide, Mr. Berry lied when he swore under oath that he had never been married. Id. at 2. WorldWide goes on to say that "Plaintiff's lie in his security application about his prior marriage, the truthful completion of which was a condition precedent to entering into employment with WorldWide, was a falsehood that allowed Plaintiff to obtain his security clearance through the Department of Security Services and therefore induced WorldWide to hire Plaintiff for his job overseas." Id. To prove its charge, WorldWide says that in an interview with United States immigration officials and in a tax return filed with the Internal Revenue Service, Mr. Berry represented that he and Ms. Chachkova were, in fact, married. Def.'s Mot. at 1-10. Furthermore, WorldWide claims that directly after his deposition, Mr. Berry engaged in witness tampering when he contacted Marianna Chachkova's current husband, Paul Russo, to tell him what he had said in his deposition concerning the Chachkova marriage in an effort to "make sure we're [Berry, Chachkova and Russo] on the same page." Id. at 11 (quoting Aff. of Christopher T. Vrountas Attach. 8, Dep. of Paul Russo 20:4-6 (Docket #43)) (Russo Dep.). Because of what it contends is his disrespect for the judicial system and to deter his future misconduct, WorldWide demands that the Court sanction Mr. Berry. Id. at 19-20. Mr. Berry responds that the exact nature of his relationship with Ms. Chachkova remains "murky," that he did not tamper with the anticipated testimony of Mr. Russo, and that the jury rejected the essence of WorldWide's allegations. Pl.'s Opp'n at 1-6. B. Factual Background 1. A Complicated Man By Complaint dated December 2, 2008. John Thomas Berry filed suit, alleging under a variety of legal theoriesthat WorldWide, his former employer, improperly terminated his employment.[2] Central to this dispute is who John Thomas Berry is. By any measure, this is not a simple question: Mr. Berry is a complicated man. Born to a military family in Bangor, Maine in 1971, he grew up in Bangor and started college in Rhode Island. Tr. of Proceedings 23:3-11; 24:3-5 (Docket # 156) (Tr. I). He went to Russia, where he enrolled as a student at the University of Moscow; after he graduated from the University of Moscow, he attended Bates College in Maine and graduated in 1995. Id. 23:24-24:19; 27:1-2. In the fall of 1997, Mr. Berry enlisted in the United States Army. Id. 25:3-4, 20-25. His first tour of duty ended in 1998 and he left the active Army then. Id. 26:1-19. After his first tour of duty, he returned to Russia, where he worked as a linguist, taught English, and held a number of jobs from 1998 to 2000. Id. 26:20-27:25. He then returned to Maine, but not alone. Id. 28:1-24. With him, he brought Marianna Chachkova, a woman he had met in Russia. Id. 28:18-24. After a time in Maine, they moved to Florida, where they stayed for two and a half to three years. Id. 28:1-29-6. In late 2003 to early 2004, Mr. Berry received a call from the Army, asking if he *526 would re-enlist. Id. 30:17-31-12. Mr. Berry agreed to do so, rejoined the Army, and was placed in the reserve component until he could complete Officer Candidate School (OCS); he graduated from OCS on May 5, 2006 and in 2007 was commissioned as an officer in the Army. Id. 31:12-24. Unfortunately, however, during OCS, he sustained an injury and after he completed the course, he was diagnosed with a collapsed vertebra. Id. 32:14-33:25. He returned to Maine for medical treatment and the Army assigned him to the University of Maine ROTC battalion; he was serving there when he contacted the president of WorldWide, Larry Costa. Id. 34:1-4; 37:12-38:7. Mr. Berry is highly intelligent. He has a facility with language; in addition to English, he speaks Serbian, Croatian, Russian, French, German, Arabic, English, Spanish, and some Italian. Tr. I 25:11-19. Despite this obvious intelligence, Mr. Berry's testimony periodically wandered and lapsed into confusion. For example, at trial, he was asked about re-enlisting in the Army and attending OCS: Q. So tell us whathow is it that you end up signing a contract with WorldWide in November 2007? A. Counselor, that hasbegs the kind of question we have to go back to 2004 or so when I received a phone call from the military at that juncture. Then remember, anybody remembers we were heavily involved in Iraq. It wasn't going well, and theythe military, the Army, needed officers, soldiers, badly. And I received a phone call from essentially a recruiting command asking me if I would consider coming back. Q. In 2004? A. In 2003 orlate '3 to '4. Q. And what do you do? A. I went back. And so in November 2000October or NovemberI have the papers in my briefcase, I can pull them outI rejoined the United States Army and was put into the reserve component until I could attend [OCS], which I did in late 2000well, 27-week26-week course all together so inthe fall of 2007excuse me, fall of 2005 to the summer, I graduated May 5th, 2006. Id. 30:17-31:12. Mr. Berry explained that he was taking medication for his physical injuries and it was causing memory problems. Id. 29:4-6. As in many cases, the jury was presented with the difficult task of making credibility determinations. Here, Mr. Berry's unusual presentation and WorldWide's forceful accusation that he was dissembling made those determinations even more onerous. 2. WorldWide and John Berry WorldWide is a business that provides language services primarily to the military. Trial Tr. II 141:22-42:4. When Mr. Berry was at the University of Maine, he learned about WorldWide, then headquartered in western Maine. Id. 36:1-13. His ROTC assignment at the University was time-limited and he was concerned that he would "come off orders." Tr I. 38:2-12. Thinking that his military background and linguistic ability would make him an attractive hire, Mr	{ "pile_set_name": "FreeLaw" }
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-1433 NORTH CAROLINA COURT OF APPEALS Filed: 1 July 2014 STATE OF NORTH CAROLINA Iredell County v. Nos. 08 CRS 59811-15, 59892- 96; 09 CRS 7498-99, 7500; 12 CRS 51941-43 MARSHALL LEE ELLER Appeal by Defendant from Judgments entered 22 March 2013 by Judge Joe Crosswhite in Iredell County Superior Court. Heard in the Court of Appeals 21 May 2014. Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State. Glover & Petersen, P.A., by James R. Glover and Ann B. Petersen, for Defendant. STEPHENS, Judge. Factual Background and Procedural History On 12 October 2009, Defendant Marshall Lee Eller was indicted on sixteen counts of indecent liberties with a child -2- and one count of first-degree sex offense.1 Prior to the trial, the State moved for joinder of all charges. The trial court granted the motion and found that the charges constituted a single scheme or plan, noting that the same attorney represented Defendant on all charges, the facts surrounding each charge were similar in scheme or plan, joinder would not impair Defendant’s ability to present a defense, and the charges were “not so separate in time and place or so distinct in circumstance as to render their consolidation unjust or prejudicial to . . . Defendant.” The case came on for trial on 18 March 2013, and verdicts were rendered on 22 March 2013. The State’s evidence tended to show the following: Over the span of twenty-two years, Defendant engaged in indecent liberties with three children: Defendant’s stepdaughter, “Mary”; Mary’s childhood friend, “Brenda”; and Defendant’s stepgranddaughter, “Alison.”2 The incidents involving Mary took place between 1985 and 1992, beginning when she was nine years old. The incidents involving Brenda took place 1 Neither the indictment nor the verdict for the charge of first- degree sex offense appears in the record. However, both the record and transcript indicate that Defendant was charged with and found not guilty of this offense. 2 Pseudonyms are used to protect the juveniles’ identities. -3- between August of 1987 and April of 1988, beginning when she was eleven years old. The incidents involving Alison took place between 2004 and 2008, beginning when she was eleven years old. A. Mary (1985 to 1992) Mary testified to two specific incidents between her and Defendant as well as a series of reoccurring incidents that took place from when she was nine years old until she was eighteen. In addition, Mary testified to two other types of reoccurring incidents, the first of which took place beginning when she was ten years old until she was thirteen and the second of which went on as she grew older. The first specific incident between Defendant and Mary occurred when Mary was about nine years old. Defendant took Mary, who lived with Defendant until she was eighteen, into his bedroom, wrestled with her, lifted her shirt, and kissed her on the stomach and chest. The second specific incident occurred when Mary was approximately twelve years old. Defendant instructed Mary to lie on the floor in his bedroom, where he rubbed her back and bottom through her nightgown, reached his hand underneath her underwear, and placed his finger in her vagina. The series of reoccurring incidents took place from the time Mary was ten until she was eighteen. Defendant would -4- regularly instruct her to sit on his lap, raise her shirt, fondle her, and put his mouth on her breasts for roughly fifteen minutes at a time. About once a week, Defendant would also place Mary’s hand “on the outside of his pants at his crotch area” where she could feel his erect penis. About three times a week, Defendant would come to Mary’s room at night and, as she lay on her stomach, lift her nightgown, rub her back, pull down her underwear slightly, and rub her bottom. During these bedtime visits, Defendant would also attempt to roll Mary over or put his hands underneath her in an attempt to touch her breasts. These visits occurred “pretty often” and would last “[thirty] minutes to an hour at times.” The first other reoccurring incident took place when Mary was between the ages of ten and thirteen. While staying at a house he owned and rented to his sister, Defendant took Mary for motorcycle rides and, in a secluded area, “would turn around and . . . feel [Mary’s] breasts.” Second, as Mary got older, Defendant “[attempted] to come into the bathroom whenever [Mary] was in the shower.” Defendant would open the shower curtain, peek at Mary, and touch her breasts. Mary testified that “most of the time,” the incidents occurred in the mobile home that Defendant shared with Mary’s -5- mother. Other times, the incidents occurred when Defendant and Mary were in a car or in the house Defendant owned and rented to his sister. B. Brenda (1987 to 1988) Brenda came to know Defendant through his stepdaughter, Mary. The first incident between Defendant and Brenda occurred when Defendant entered Mary’s room to tuck in both Mary and Brenda during a sleepover. As Defendant tucked in the two girls, he “went up [Brenda’s] shirt and [rubbed her] breasts.” He then put “his hand . . . under [her] panties . . . [and rubbed] the outside of [her] vagina.” A second incident occurred in spring 1988 when Defendant invited Brenda on a motorcycle ride with him. Defendant stopped his motorcycle in the woods and “took his hand and put it on [Brenda’s] . . . vagina outside of [her] clothes and started rubbing [her].” C. Alison (2004 to 2008) In 1995, Defendant sold his rental property and purchased a house. In 2004, Defendant installed a pool at that residence. -6- Alison and her family3 spent almost every weekend at Defendant’s house between 2004 and 2008. Defendant also visited Alison at her home. According to Alison, the first incident with Defendant occurred in August of 2004 when Alison was about eleven years old. In his garage, Defendant “put his hands up [Alison’s] skirt on the outside of [her] panties, and [Defendant] rubbed [her] butt.” A second incident occurred when Alison was about twelve. Defendant gave her a piggyback ride in the pool at his residence. During the piggyback ride, Defendant rubbed and squeezed Alison’s buttocks and thighs. He then “told [her] that he was sorry that he made [her] feel uncomfortable and that if he ever made [her] feel uncomfortable again that [she] should tell [Defendant], and he wouldn’t do it anymore.” A third incident occurred in 2008 when Alison was about fifteen. Defendant and Alison were alone in Defendant’s basement when he “put his hand on [her] thigh and was rubbing it and then moved [his hand] down towards [her] vagina” and touched Alison’s vagina through her clothing. Although Alison did not cite specific dates, she testified 3	{ "pile_set_name": "FreeLaw" }
850 F.2d 694 271 U.S.App.D.C. 1 FEDERAL TRADE COMMISSION, Appellantv.OWENS-ILLINOIS, INC., et al. No. 88-5048. Civ. A. No. 88-00022. United States Court of Appeals,District of Columbia Circuit. April 8, 1988. Prior report: 681 F.Supp. 27. Before ROBINSON, D.H. GINSBURG and SENTELLE, Circuit Judges. ORDER PER CURIAM. 1 Upon consideration of Appellant's Suggestion of Mootness and Motion to Vacate Order of the District Court and to Remand With Instructions to Dismiss Complaint, and the Response thereto, it is 2 ORDERED by the court that the motion be granted. The present appeal, from an order of the district court denying appellant's motion for a preliminary injunction, has become moot as a result of the consummation of the merger sought to be enjoined. Accordingly, because the case has become moot, the judgment of the District court is vacated, and the case is remanded with instructions to dismiss the complaint. See United States v. Munsingwear, Inc, 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950). 3 The Clerk is directed to withhold the issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.	{ "pile_set_name": "FreeLaw" }
862 F.2d 305 U.S.v.Diaz NO. 88-1172 United States Court of Appeals,Second Circuit. SEP 14, 1988 1 Appeal From: S.D.N.Y. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
166 Cal.App.3d 428 (1985) 212 Cal. Rptr. 425 THE PEOPLE, Plaintiff and Respondent, v. JUAN TORRES SOTO, Defendant and Appellant. Docket No. F002935. Court of Appeals of California, Fifth District. March 29, 1985. 430 COUNSEL Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Robert D. Marshall, Eddie T. Keller, Eileen Ceranowski and Jane Lamborn, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[1]] 431 OPINION FRANSON, Acting P.J. INTRODUCTION The primary issues in this appeal from a conviction of second degree murder and robbery are, first, whether the trial court erred in reimpaneling the jury to correct an ambiguity in the murder verdict after the jury had been discharged and the jurors had left the courtroom; second, if the court did so err, what is the result of the ambiguous verdict as originally returned does it result in appellant's acquittal of the murder charge, a conviction of second degree murder, or a reversal and remand for a new trial? (1a) In answer to the first question, we hold that the trial court had no power to reimpanel the jury after its discharge and the jurors had left the courtroom; hence, the later verdict of second degree murder and its entry in the record were of no effect. (2a) In answer to the second question, we hold the original verdict returned by the jury may not be construed as a conviction of second degree murder but only as a general verdict of acquittal of murder. As a consequence, the double jeopardy clauses of the federal and state Constitutions forbid a remand for a new trial. Appellant is entitled to the entry of a judgment of acquittal on the murder charge. We do, however, affirm appellant's conviction of robbery, including the special allegation of a prior serious felony conviction under Penal Code section 667, subdivision (a). THE CASE BELOW A first amended information was filed against appellant Juan Torres Soto and Adolpho "Chino" Castaneda on August 31, 1982, charging them in count I with murder (Pen. Code, § 187). It was alleged as a special circumstance that the murder was committed during the commission of a robbery (Pen. Code, § 190.2, subd. (a)(17)(i)). There were also two special allegations that appellant had previously been convicted of a serious felony (Pen. Code, § 667), a special allegation that in the commission of the murder offense the appellant personally used a firearm (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)) and a special allegation that a principal in the commission of the murder was armed with a firearm (Pen. Code, § 12022, subd. (a)). In count II, appellant and Castaneda were charged with robbery (Pen. Code, § 211). It was specially alleged that appellant personally used a firearm in the commission of the robbery (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)), and that a principal in the commission of the offense was armed with a firearm (Pen. Code, § 12022, subd. (a)). Count III charged 432 appellant and Castaneda with conspiracy to commit robbery (Pen. Code, §§ 182, 211) with three overt acts. Appellant pleaded not guilty to all charges and denied the special circumstance and the enhancement allegations. A motion for separate trials for appellant and Castaneda was granted. On October 22, 1982, appellant's motion to have the identity of confidential informants revealed was denied by the trial court without an in camera hearing. The court found: "There is no indication that the informant was a percipient witness to any fact which would tend to exonerate the defendant." This court subsequently granted a peremptory writ of mandate ordering the trial court to hold an in camera hearing on this matter. Following the in camera hearing on January 5, 1983, the trial court ordered that the identity of informant Robert Renteria be disclosed. (The identity of a second informant, Leonard Ponce, was voluntarily disclosed at the hearing.) On May 27, 1983, appellant filed a motion to dismiss (a Mejia-Hitch[2] motion) based on the prosecutor's earlier failure to disclose the identity of the informants before they became unavailable to testify. This motion was denied as was a motion for sanctions for failure to preserve evidence. After a four-week trial, the jury returned one verdict form finding appellant not guilty of count I, murder, but also fixing the murder to be of the second degree. In another form, the jury found as true that appellant had been armed with a firearm in the commission of the murder. Another verdict form found appellant guilty of count II, robbery; appellant was also found to have been armed with a firearm in the commission of the robbery. Still another verdict form found that murder was committed in the course of the robbery. The jury found not true the allegations that appellant used a firearm during the commission of the murder within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and not true that appellant personally used a firearm during the commission of the robbery. Appellant admitted one of his prior convictions. (The other prior conviction allegation had been stricken earlier.) After the verdicts were read to the jury, the trial judge asked the jurors if those were their verdicts, and they unanimously affirmed they were. The parties waived a formal polling of the jury. At this point, a colloquy ensued 433 between the court and counsel to the effect that the verdict was of second degree murder,[3] and the jury was then discharged. The following day, the trial judge noticed the ambiguity in the verdict forms noted above. He ordered the jury reimpaneled to clear up the ambiguity; the jury then found appellant guilty of second degree murder. Appellant was sentenced on count I to fifteen years to life for second degree murder with one year for the Penal Code section 12022, subdivision (a) special allegation and five years for the Penal Code section 667 special allegation. Appellant's total determinate sentence was six years to be followed by the indeterminate fifteen-year sentence. Appellant was sentenced on count II, robbery, to the upper term of five years to be served concurrent with the indeterminate fifteen-year term for murder because of Penal Code section 654, the robbery term to be stayed pending completion of the murder sentence. THE FACTS The victim was found shot to death on the front seat of an automobile in the parking lot of a Visalia market on the evening of June 17, 1982. The palm print of appellant's codefendant Castaneda was found on the roof of the car. Earlier that evening at 7:30 p.m., a Mr. and Mrs. Lewis had driven by the parking lot and reported seeing a man sitting in a car with two men standing alongside it. One of the two men was tall and thin, the other, shorter and stockier. Mr. Lewis had about a six-and-a-half second look at the men. He could only say that the taller man had shoulder length hair and a moustache. Mrs. Lewis had a three second look at the men. She described the short man as having short black hair and a cream-colored complexion and the taller man as having long black hair, a moustache, a thin face, dark circles under his eyes, thick eyebrows and sharp features. In a photo lineup on June 21, 1982, Mrs. Lewis tentatively identified one Juan "Big John" Vasquez as the shorter, stockier man. She did not identify *434 Castaneda, however, in this or a second photo lineup even though his picture was present in both. Both Mr. and Mrs. Lewis identified appellant in a photo lineup on June 25, 1982, although Mr. Lewis thought appellant had been the taller, thinner man while Mrs. Lewis apparently thought he had been the shorter, stockier man. Margie Vasquez, sister of Juan Vasquez whom Mrs. Lewis had tentatively identified at one photo lineup, testified at the preliminary hearing[4] that she was a heroin addict and had knowledge of the incident in question. She testified that she, her boyfriend Castaneda and appellant were together on the day of the murder and had discussed buying heroin. Ms. Vasquez claimed she gave Castaneda the name of a heroin dealer and that Castaneda and appellant arranged to meet him in the parking lot in question. Appellant had a gun when he left with Castaneda to meet the dealer, she claimed. Ms. Vasquez testified she saw Castaneda and appellant one and a half hours later; appellant had blood on his hands and stated his hands were bloody because he had to move the man he had killed to get the man's wallet. Castaneda showed Margie $80 and some heroin; the heroin was then divided and used by Castaneda, appellant and Margie. The chief investigating officer testified that he had spoken with two informants after the crime. The first informant told him Castaneda and "Big John" (Juan) Vasquez committed the crime, and the second informant said "Big John" Vasquez did the shooting. One of the informants told the officer he had gotten his information from Catalino Carranza who was reported to be the "connection" who put Castaneda (and appellant) in touch with the victim on the day of the crime. Several witnesses testified appellant was having dinner with them at the approximate time of the shooting. DISCUSSION (1b	{ "pile_set_name": "FreeLaw" }
113 B.R. 44 (1989) In re Robert Lee JOHNSON, a/k/a Robert L. Johnson, a/k/a R.L. Johnson, a/k/a Bob Johnson, a/k/a Robert Johnson, and Dorothy Marie Johnson, a/k/a Dorothy M. Johnson, a/k/a Dorothy Johnson, Debtors. Nos. CIV 89-1396-R, BK-89-00716-BH. United States District Court, W.D. Oklahoma. December 21, 1989. 45 Jeffrey C. Trent, Yukon, Okl., for debtors. Michael C. Bigheart, D. Benham Kirk, Jr., McKnight & Gasaway, Enid, Okl., for creditors. ORDER DAVID L. RUSSELL, District Judge. Appellant, Beneficial Oklahoma, Inc. ("Beneficial") appeals from the Bankruptcy Court's June 21, 1989 order granting Debtors' April 21, 1989 motion to avoid Beneficial's non-purchase money lien on exempt property, 101 B.R. 280. Beneficial also seeks to certify to the Oklahoma Supreme Court, pursuant to the Oklahoma Uniform Certification of Questions of Law Act, Okla.Stat. title 20, § 1601 et seq., the question of whether a motor vehicle can be exempt as a tool of the trade under Okla. Stat. title 31, § 1(A)(6). The Court has reviewed the parties' briefs and the responses and replies thereto, and is prepared to render its decision resolving these matters. Debtor Robert Lee Johnson is a contract bulk mail carrier for the United States Postal Service. Debtors own a 1972 Ford one (1) ton box truck which Mr. Johnson uses in performing one of his bulk mail delivery routes for the Postal Service. Pursuant to a promissory note and chattel mortgage, Beneficial holds a non-possessory, non-purchase money lien against Debtors' truck. On January 31, 1989, Debtors, Robert Lee Johnson and Dorothy Marie Johnson, filed their Joint Voluntary Petition for Chapter 7 bankruptcy in the Western District of Oklahoma. BK-89-716-BH. The Bankruptcy Court, Richard L. Bohanon, Chief Judge, granted Debtors' motion to avoid Beneficial's lien on their truck, finding that Debtors' truck was exempt as a tool of the trade under Okla.Stat. title 31, § 1(A)(6) to the extent of $5,000, and that Debtors were entitled to avoidance of the lien pursuant to 11 U.S.C. § 522(f)(2)(B). The Court relied principally on In re Siegmann, 757 P.2d 820, 822 (Okla.1988), as support for its holding. Beneficial timely perfected an appeal to this Court from the Bankruptcy Court's order. The District Court's standards of review of the findings of the Bankruptcy Court differ according to whether a finding is of law or of fact. Findings of law are subject to de novo review. In re Robinson Bros. Drilling, Inc., 97 B.R. 77 (W.D.Okla.1988); In re Mullett, 817 F.2d 677 (10th Cir.1987). Findings of fact, on the other hand, are to be upheld unless they are found to be clearly erroneous. In re Mullett, 817 F.2d 677 (10th Cir.1987); In re Reid, 757 F.2d 230 (10th Cir.1985). The Bankruptcy Court's determination that Debtors' truck falls within the scope of property described by Okla.Stat. title 31, § 1(A)(6), Oklahoma's statutory exemption for "tools of the trade," was a finding of law, and we review this finding de novo. The Oklahoma Supreme Court was recently asked the certified question: "Does the term `tools, apparatus . . . used in any trade . . .' as used in Okla. Stat.Ann. tit. 31, § 1(A)(6) include all types of equipment, regardless of size, source of power, mobility, value or mode of operation, needed by a person in pursuit of a trade?" In re Siegmann, supra at 821. This question was broad enough to include, not only the farm tractor at issue in Siegmann, but also the one-ton commercial truck at issue in the present case. The Court answered the question by holding that "the tools of the trade exemption of Okla.Stat.Ann. tit. 31, § 1(A)(6) applies to any property which comes within the scope of the terms tools, apparatus or books, is used in the trade or profession of the debtor, . . . and is reasonably necessary, convenient, or suitable for production of work in that trade or profession, 46 regardless of size, source of power, mobility, or mode of operation." Id. at 824. The Court also stated that, in cases of doubt, statutes exempting property from forced sale for the payment of debts are to be resolved in favor of the debtor. Id. at 822. In view of the broad and inclusive definition given tools of the trade in Siegmann, together with the Court's stated policy of liberally construing exemptions in favor of the debtor, it is the opinion of this Court that the Bankruptcy Court did not err in finding that Debtors' truck could qualify as a tool of Debtors' trade under Okla.Stat. title 31, § 1(A)(6). Furthermore, it is unnecessary to certify Appellant's question to the Oklahoma Supreme Court because the question was adequately answered in Siegmann. Beneficial's primary argument is that a truck should not be considered a tool of the trade because, as a motor vehicle, it falls within a separate statutory exemption for motor vehicles. Okla.Stat. title 31, § 1(A)(13). However, the Court finds no authority for the proposition that property may not qualify for more than one statutory exemption. The Bankruptcy Court also made a factual finding that Debtors' truck was reasonably necessary for the production of Debtors' work or trade, as required by Siegmann, supra. Beneficial's primary argument against this finding is that the truck was not used in Mr. Johnson's principal occupation as a laborer at Temtrol Corporation. Beneficial contends that Mr. Johnson's mail delivery business is a secondary business which merely supplements his primary income from Temtrol. However, Oklahoma does not limit a debtors' exemption for tools of the trade to tools used in his principal occupation only. This argument is therefore unpersuasive. Beneficial has failed to carry its burden of proof that the factual finding of the Bankruptcy Court was clearly erroneous. For the above stated reasons, the June 21, 1989 order of the Bankruptcy Court is hereby AFFIRMED. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2376 BEN HOWARD SMITH, Plaintiff – Appellant, v. BOB ATKINSON; LINDA G. WALTERS, Defendants – Appellees, and PERCY B. HARVIN; L. KEITH JOSEY, JR.; RONNIE STEWART, all in their individual and official capacity; JOSEPH K. COFFY, Defendants. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:08-cv-00201-RMG-BM) Submitted: May 19, 2011 Decided: May 23, 2011 Before TRAXLER, Chief Judge, and AGEE and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Ben Howard Smith, Appellant Pro Se. Kelly M. Jolley, MCNAIR LAW FIRM, PA, Hilton Head, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Ben Howard Smith appeals the district court’s order dismissing two defendants in his civil rights action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). The order Smith seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3	{ "pile_set_name": "FreeLaw" }
NUMBER 13-06-340-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN RE: BEVY LEE WILSON On Petition for Writ of Mandamus MEMORANDUM OPINION Before Justices Rodriguez, Castillo, and Garza Memorandum Opinion Per Curiam Relator, Bevy Lee Wilson, filed a petition for writ of mandamus in the above cause on June 12, 2006 in which he alleges that the Respondent, the Honorable Patrick McGuire, counsel appointed by the 117th District Court of Nueces County, Texas to represent relator in his appeal, abused his discretion by failing to perform his ministerial duties by not providing the appellate record to the relator. The relator=s petition asks this Court to compel the respondent to provide the relator with the appeals record, clerk=s record, and court reporter=s record in cause numbers 13-05-279-CR and 13-05-280-CR, free of charge due to his indigence. The Court, having examined and fully considered the documents on file and petition for writ of mandamus, is of the opinion that relator has not shown himself entitled to the relief sought and the petition for writ of mandamus should be denied. See Tex. R. App. P. 52.8. Accordingly, the petition for writ of mandamus is DENIED. PER CURIAM Memorandum Opinion delivered and filed this the 13th day of June, 2006.	{ "pile_set_name": "FreeLaw" }
714 F.2d 135 Walkerv.Allsbrook 83-6222 UNITED STATES COURT OF APPEALS Fourth Circuit 7/18/83 1 E.D.N.C. DISMISSED	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BETTY DUKES; PATRICIA SURGESON;  CLEO PAGE; DEBORAH GUNTER; KAREN WILLIAMSON; CHRISTINE KWAPNOSKI; EDITH ARANA, No. 04-16688 Plaintiffs-Appellees,  D.C. No. v. CV-01-02252-MJJ WAL-MART, INC., Defendant-Appellant.  BETTY DUKES; PATRICIA SURGESON;  CLEO PAGE; DEBORAH GUNTER; KAREN WILLIAMSON; CHRISTINE No. 04-16720 KWAPNOSKI; EDITH ARANA, Plaintiffs-Appellants,  D.C. No. CV-01-02252-MJJ v. ORDER WAL-MART, INC., Defendant-Appellee.  Filed February 13, 2009 ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. 1935 1936 DUKES v. WAL-MART, INC. Judges McKeown, Rawlinson and Bybee did not participate in the deliberations or vote in this case. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2009 Thomson Reuters/West.	{ "pile_set_name": "FreeLaw" }
493 S.E.2d 288 (1997) Charles Everette SHARPE, Jr., Plaintiff, v. Sylvia G. NOBLES, Defendant. No. COA96-1366. Court of Appeals of North Carolina. November 18, 1997. 289 Paul T. Cleavenger, Kinston, for plaintiff-appellant. Gerrans, Foster & Sargeant, P.A. by William W. Gerrans, Kinston, for defendant-appellee. WYNN, Judge. When calculating the child support obligation owed by a parent, a showing of bad faith income depression by the parent is a mandatory prerequisite for imputing income to that parent. In this case, because we hold that the trial court's finding that the father did not look for a job that would pay him what he was earning in his previous position was insufficient to show bad faith income depression, we remand this matter to the trial court for redetermination of the father's child support obligation. However, we uphold the trial court's order of contempt against the father for failure to obey a previous order of the court because there was sufficient competent evidence of his willful failure to comply with the earlier order. The father, Charles Everette Sharpe, Jr. and the mother, Sylvia G. Nobles, parented one child born on 21 November 1984. Following their separation and divorce, the mother obtained primary custody of their child. In their separation agreement of 13 December 1988, which was incorporated into their divorce decree, the father agreed to invest $50 per month for the child's college education. After their divorce, the father and mother signed a Consent Judgment dated 2 August 1990 that, in part, directed the father to pay $500 per month towards the support of his child and to provide the mother evidence with where the father was making the investments for the child's college education. In 1990, the father began to work for North Star of North Carolina, Inc. By 1995, the father was a district director, and made a salary of $56,439 per year. On 30 September 1995, the company abolished his position. The next day, the father started working at another job with North Star as manager of a nursing home which paid a salary of $46,540 per year. On 12 October 1995, after a hearing on modification of his child support and for contempt, the trial court ordered the father to pay $596 per month in child support based on a finding that projected the father would earn $61,368 per year. Furthermore, the trial court found that the father had failed to invest $50 per month for the child's college education and therefore ordered the father to invest $4,100 to make up for the deficiency, and to certify to the mother where the money was invested. The trial court also ordered the father to provide medical and dental insurance to the child, as was set forth in the 2 August 1990 Consent Judgment. On 2 April 1996, the father moved for a modification of his child support obligation. Prior to a hearing on that motion, the father took a job with a new division of North Star that paid a reduced salary of $40,000 per year. In response to the father's motion for modification of child support, the mother counter-moved for contempt contending that the father had failed to comply with the court's order of 12 October 1995 by: (1) failing to send certification of the deposit of the $4,100 to her, and (2) failing to send her any new claim forms, insurance cards, or informational brochures for the medical insurance that the father was required to maintain for the child. After hearing evidence, the district court found that although a substantial change of circumstances had occurred since the time of its last child support order, the father had 290 voluntarily depressed his income. The court therefore applied the earning capacity rule in calculating the father's child support obligation. Additionally, the trial court found the father in willful civil contempt of the 12 October 1995 order for failing to provide the mother with certification of where he deposited the college investment funds and for failing to provide the mother with identification cards, claim forms, and information about the health insurance carried on the minor child. From this order, the father appeals. I. The father first contends that the trial court's findings were insufficient to support the use of the earning capacity rule in calculating his child support obligation. We agree. Child support obligations are ordinarily determined by a party's actual income at the time the order is made or modified. Askew v. Askew, 119 N.C.App. 242, 244-245, 458 S.E.2d 217, 219 (1995). A party's earning capacity may be used to calculate the award if he deliberately depressed his income or deliberately acted in disregard of his obligation to provide support. Id. However, before using the earnings capacity rule there must be a showing that the actions which reduced a party's income were not taken in good faith. Id. at 245, 458 S.E.2d at 219. In the present case, the father worked as a district director of North Star, at a salary of $56,439 per year, until the company abolished the position on 30 September 1995. On 1 October 1995, the company moved the father to the position of manager of a nursing home, at a salary of $46,540 per year. On 1 May 1996, the father took a position with a new division of North Star, where his pay was $40,000 per year. The trial court found: 14. That since the pay of the plaintiff was reduced to some $56,000.00 down to $46,000.00 and then down to $40,000.00 as he contends, that the plaintiff has not made any application for employment at some other location and that he has not sought the assistance or the services of a private employment agency in order to obtain employment compared to what he was earning prior to the two (2) recent reductions and the Court finds that the reduction to the $40,000.00 is voluntary on the part of the plaintiff in that he has taken no action to find employment that would be comparable to the pay that he was earning through the year 1995 and the Court finds that the plaintiff has an ability to earn a gross pay of at least $55,729.00 as shown on his 1995 United States individual income tax returns. 15. That the plaintiff has moved into a home that occupies one and one-half (1 ½) acres on Kerr Lake and that he owns two (2) motor vehicles, a 1995 Jeep and a 1996 Accura. That the plaintiff has the ability to at least earn $55,729.00 that he earned in 1995. These findings were insufficient to support a conclusion of deliberate depression of income or other bad faith action on the part of the father. Essentially, the findings are that the father's reductions in income were voluntary because he had not looked for work that would pay him what he made before changing jobs. This is not a showing of a deliberate depression of income or other bad faith. Accordingly, the trial court's order is reversed and remanded for an appropriate determination of the father's child support obligation. II. The father next argues that the trial court erred in finding him in willful civil contempt because the evidence was insufficient to show that he willfully violated the 12 October 1995 order to deposit $4,100 and send confirmation of the deposit to the mother. We disagree. Although the statutes governing civil contempt do not expressly require willful conduct, see N.C. Gen.Stat. §§ 5A-21 to 5A-25 (1986), case law has interpreted the statutes to require an element of willfulness. Smith v. Smith, 121 N.C.App. 334, 336, 465 S.E.2d 52, 53-54 (1996). In the context of a failure to comply with a court order, the evidence must show that the person was guilty of "knowledge and stubborn resistance" *291 in order to support a finding of willful disobedience. Hancock v. Hancock, 122 N.C. App. 518, 525, 471 S.E.2d 415, 419 (1996). The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Koufman v. Koufman, 97 N.C.App. 227, 230, 388 S.E.2d 207, 209 (1990), rev'd on other grounds, 330 N.C. 93, 408 S.E.2d 729 (1991). In this case, the trial court's order included the following finding of fact: 18. That with regard to the contempt matter, the Court finds that in its Order of October 12, 1995, the plaintiff had not deposited the $4,100.00 which was to begin in August of 1990 at the rate of $50.00 per month and that the plaintiff was found in wilful contempt on October 12, 1995, and ordered to pay the sum of $4,100.00 being due into some type of income producing plan with a certified copy of this investment to be furnished to the defendant. That the Court stayed the incarceration allowing the plaintiff until November 10, 1995, to invest the money and to allow him until November 15, 1995, to get the certification as to where these funds are being held in an income producing plan to the defendant and that the reports of these earnings of this investment shall be forwarded to both the plaintiff and the defendant. That the plaintiff failed to furnish the certified copies as to where these funds were invested to the defendant. That the evidence tends to show that the plaintiff furnished of [sic] this investment to his former lawyer, Mr. Worthington, but	{ "pile_set_name": "FreeLaw" }
201 P.3d 293 (2009) 225 Or. App. 417 TRI-COUNTY CENTER TRUST, successor in interest to Gordon R. Martin, Sr., Plaintiff-Respondent, v. Stephen B. MARTIN, personal representative of the Estate of Gordon S. Martin, Jr., Deceased, and Tigard Triangle Development, LLC, Defendants-Appellants. C000763CV, A125278. Court of Appeals of Oregon. Argued and Submitted July 3, 2008. Decided January 28, 2009. 294 Robert J. Custis argued the cause and filed the briefs for appellants. Gregory J. Miner, Portland, argued the cause for respondent. With him on the briefs were Travis W. Hall and Bateman Seidel Miner Blomgren Chellis & Gram, P.C. Before EDMONDS, Presiding Judge, and ARMSTRONG, Judge, and WOLLHEIM, Judge. ARMSTRONG, J. Defendants appeal from a judgment directing the partition by division of real property that the original parties held as tenants in common.[1] The issue presented on appeal is whether real property that was owned by one of the original cotenants and his wife and that adjoined the partitioned property could be considered in assessing the potential use and value of the partitioned property in order to divide the property between the cotenants equally. Defendants contend that the adjoining property should have been considered in making the division by assigning a plottage value to the portion of the partitioned property that was distributed to the party who owned the adjoining property with his wife, which would reflect the fact that that party could combine his portion and the adjoining property to allow a more intensive and, hence, valuable use of the combined property. We review de novo. ORS 19.415(3); Maupin v. Opie, 156 Or.App. 52, 55, 964 P.2d 1117, rev. den., 328 Or. 194, 977 P.2d 1172 (1998). For the reasons explained below, we reject the use of plottage value in this case and affirm. The original parties to this action were a father, Gordon R. Martin, Senior (Senior), and his son, Gordon S. Martin, Junior (Junior), who owned land in Tigard as tenants in common. The property consisted of four parcels of development property totaling approximately 16 acres.[2] It was largely landlocked from major streets, except for portions lining SW 72nd Avenue to the east and a small portion that had access to Hermoso Way, a smaller street to the south. The property also adjoined approximately 10 acres of property to the southeast, part of which had access to SW 72nd Avenue and all of which Senior and his wife owned. Those characteristics of the property are depicted in the following map. 295 The entire 26-acre plot was subject to a vested development plan approved by the City of Tigard. However, Senior and Junior could not agree on how to develop the 16-acre plot, making the sale or lease of either the 26-acre plot or the 16-acre plot impossible. In light of that stalemate, Senior brought an action in equity in 2000, seeking, among other things, to partition the land by public sale. Junior, in response, sought partition in kind. The court appointed three refereesLiebow, Wapnick, and Woodto make recommendations regarding partition of the property. The referees first concluded that the parties' development of the full 26 acres under the approved development plan would achieve the highest value to the parties. Barring that, the referees determined that a public sale of the entire 26 acres, rather than a partition in kind, would result in the highest value to the parties. Absent the parties' ability to agree on the development or sale of the entire 26 acres, the referees focused on the 16 acres subject to the partition proceeding. They concluded that a public sale of the 16-acre plot would realize the highest value to the parties, at an average of approximately $8 per square foot. In contrast, the referees concluded that, if the court were to order partition in kind and each party developed his portion independently, the average value of the property would drop to $6.40 per square foot due to "access challenges" and other considerations. The referees also noted that, in the event of an in-kind partition, an equal partition should be based on value, not pro rata on an acreage or square-foot basis, because the portion fronting SW 72nd Avenue had visibility and access from that street, whereas the interior portion, which adjoined the 10-acre plot owned by Senior and had limited access only to Hermoso Way, was "access and site challenged." They calculated the value of the property fronting SW 72nd Avenue at $16 per square foot and the interior portion at approximately $4 per square foot. Accordingly, the referees recommended that, 296 if the court were inclined to order an equal partition in kind between the parties, it award Junior 3.134 acres of the higher-value land fronting SW 72nd Avenue (East partition) and Senior the remaining 12.536 acres making up the lower-value interior portion (West partition). After reviewing the report and testimony by two of the referees at a hearing, Judge Bonebrake concluded that the value that each party would realize from a partition in kind would "not be materially less than that party's share of money that could be obtained for the whole by public sale" for several reasons. He first noted that the referees' conclusions about the development of the full 26 acres were "not particularly relevant" to the proceeding, given that the parties were unable to agree on development, and, hence, that he was "dealing only with the 16-acre plot." He then opined that the access challenges to the West partitiona factor in the referees' conclusion that the land's average value declined from $8 per square foot at public sale to $6.40 per square foot if partitioned in kindwould be mitigated by granting a nonexclusive easement across the East partition, and by incorporating the fact that Senior owned the adjoining 10 acres "over which access exists." Finally, he observed that, even if the 16-acre plot was worth $8 per square foot in an arm's-length transaction, the land was unlikely to fetch that price at public sale. Accordingly, Judge Bonebrake directed the referees to partition the 16-acre plot, awarding Junior the East partition, "subject to a non-exclusive easement of appropriate width across that property" to benefit the West partition, which was to be awarded to Senior. The judge further directed: "In dividing the property so that each party is awarded property of equal value, the referees, in addition to the foregoing, will take into account the fact that [Senior] and his wife own the adjoining ten acres over which access to [the West partition from SW 72nd Avenue] may occur." That opinion issued in December 2001. In February 2004, the referees subsequently submitted a revised report to Judge McElligott.[3] In that report, the referees observed that the plot measured approximately 15.67 acres and recommended that the court award Junior 4.67 acres of the East partition (up from the 3.134 acres recommended in 2001) and Senior 11.00 acres (down from the 12.536 acres originally recommended). The referees outlined their methodology for reaching those results. First, the referees determined the value of the full plot, in light of Judge Bonebrake's instructions to assume no access problems for the West partition, to average $12.50 per square foot, for a total value of $8,532,315. Accordingly, the referees began with the assumption that an equal partition required each party to receive land valued at $4,266,157.50. From that initial value, the referees adjusted the value attributable to each party based on (1) a $100,000 mortgage that encumbered a tax lot entirely within the West partition and (2) a $300,000 payment that Senior had made to the City of Tigard in 2003 to pay the interest due on a Local Improvement District (LID) assessment on a tax lot that made up the majority of the 16-acre plot.[4] The referees recommended increasing Senior's share by $200,000 (the sum of one-half of the mortgage and one-half of the LID interest payment) and reducing Junior's share by the same. The referees maintained their opinion that the East partition had higher value than the West partition, and assigned the East partition a value of $20 per square foot based on "current pad transactions in the region." Hence, they recommended that the court award Junior 4.67 acres[5] valued at $20 per square foot, for a 297 full value of $4,066,157.50. The referees did not assign an independent value to the land in the West partition; rather, based on the value attributable to the land in the East partition and the average land value of $12.50 per square foot for all of the land in the 16-acre plot, they determined that an award of the remaining 11 acres was worth $4,466,157.50. The referees also considered the court-ordered easement in the East partition and determined that it had no material value to either party. Because Senior could create access through the adjoining 10-acre plot, he did not need the easement through the East partition. Further, the referees agreed that, even if there were such an easement, it would not affect the value of the East partition. In April 2004, Judge McElligott held a hearing	{ "pile_set_name": "FreeLaw" }
KHA"* LAWYERS DEC 14 2015 KETTERMAN HEDLESTEN & AMANN, PLLC , CHfHSTOPHca . , www.khalawyers.com JULIE A. KETTERMAN Cert/fed fa(nfy/ CPSMecforor julie@khalawyers. com JAMES R. HEDLESTEN james@khalawyers.com COLIN B. AMANN colin@khalawyers.com December 10,2015 »Se/f/ via email: bmeverGbcbvlaw.com First Court of Appeals Attn: Christopher A. Prine, Clerk of the Court 301 Fannin Street Houston, Texas 77002 RE: Cause No. 01-15-0.0755-CV; Brandy M Weido v. Don Weido Mr. Prine: Wedo not represent DonWeido inthis appeal. As a courtesy to our former client in the initial matter, please be advised that Don Weido will not be filing a Motion for Extension of Time nor a Brief. This matter may be considered by the Court without any further action from Mr. Weido. If you have any questions, you may contact DonWeido directly. Sincerely, James R. Hedlesten JRH/cdw 1004 Prairie, Suite 300 I Houston, TX 77002 I Phone: 713.652.2003 I Fax: 713.652.2002 The Isis Building MOflTH HOUSTON Ta 773^ 1004 Prairie, Suite 300 KHA LAWYERS Houston, TX 77002 11. &EC 2SMS PM 9 1 nt-uc J !FIRST CO!'PT \| DEC 1 4 Z0I5 I I CHRISTOPHER A. pRjf.jp KLERK •HOUSTON ,1€XAS ^fROOZ- /7002SS0&S CO1& ,\|\|„\|l.».\|\|l.„.\|JjHI\|.\|..f\|\|llllH"'»«l'l"»'ll»Ill'%	{ "pile_set_name": "FreeLaw" }
192 F.3d 1246 (9th Cir. 1999) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,V.FRANCISCO ALONSO PORTILLO-CANO, DEFENDANT-APPELLANT. No. 98-10189 U.S. Court of Appeals, Ninth Circuit Argued and Submitted March 12, 1999September 20, 1999Amended December 6, 1999 [Copyrighted Material Omitted] Francisco Leon, Law Office of Francisco Leon, Tucson, Arizona, for the defendant-appellant. Anne E. Mosher, Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-96-00375-JMR Before: John T. Noonan and A. Wallace Tashima, Circuit Judges, and Jane A. Restani,* Judge, United States Court of International Trade. Restani, Judge: 1 Francisco Alonso Portillo-Cano ("Portillo-Cano" or "defendant") appeals his guilty plea entered before the district court on the ground that his plea did not conform to the requirements of Rule 11(c) of the Federal Rules of Criminal Procedure. The government asserts that defendant is barred from appealing his sentence because his plea agreement included a waiver of his right to appeal. We hold that we may hear defendant's appeal in order to determine whether his guilty plea failed to comply with the requirements of Rule 11 because the trial Judge did not explain the nature of the charges. We also hold that the plea colloquy at issue did not conform to Rule 11. We have jurisdiction under 28 U.S.C. S 1291 (1994) and we vacate and remand for further proceedings. I. BACKGROUND 2 In June 1996, Portillo-Cano was indicted by a grand jury on four counts: Count 1 that he conspired to possess with intent to distribute marijuana, in violation of 21 U.S.C.S 841(a)(1) (1994); Count 2 that he possessed with intent to distribute, and aided, abetted... or induced... others to possess with intent to distribute marijuana, in violation of 21 U.S.C. S 841(a)(1) and 18 U.S.C. S 2 (1994); and, Counts 3 and 4, that he used and carried a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.S 924(c) (1994). 3 In 1995, Portillo-Cano negotiated with a confidential informant ("CI") who worked for the U.S. Customs Service. On March 28, 1995, Portillo-Cano gave the CI a two-ounce sample of marijuana. One week later, Portillo-Cano told the CI that a large quantity of marijuana was available right away. Portillo-Cano brought the CI to a residence in Tucson, Arizona where the CI observed a large quantity of marijuana at the premises. Two men wereguarding the marijuana, one of whom was holding a handgun. A federal search of the residence led to the seizure of 1,160 pounds of marijuana and two firearms. 4 Pursuant to a Rule 11(e)(1)(C) plea agreement, Portillo-Cano entered a change of plea and pled guilty to Counts 1 and 4 of the indictment on May 28, 1997. Upon entering into an enforceable Rule 11(e)(1)(C) agreement, Portillo-Cano would have waived his right to appeal a sentence called for by the agreement.1 The plea agreement included a provision that Portillo-Cano understood he was giving up his right to appeal the sentence. Portillo-Cano also was to forfeit all right and title to the two firearms. The district court sentenced defendant on March 31, 1998 to 60 months for Count 1, and 11 months for Count 4, to run consecutively.2 5 Defendant appealed his conviction and sentence to this court on April 8, 1998. Portillo-Cano claims that in the plea allocution of May 28, 1997 the district court Judge failed to comply with the requirement of Fed. R. Crim. P. 11(c)(1) that the Judge explain, in open court, the nature of the charges brought against the defendant. II. STANDARD OF REVIEW 6 We review the validity of a defendant's waiver of the right to appeal de novo. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995). We also review de novo whether a trial court's colloquy with a defendant satisfies the requirements of Rule 11(c)(1) of the Federal Rules of Criminal Procedure. United States v. Smith, 60 F.3d 595, 597 n.1 (9th Cir. 1995). III. DEFENDANT'S RIGHT TO APPEAL 7 The government's only argument on appeal is that Portillo-Cano waived his right to appeal his sentence in his plea agreement. A defendant has a statutory right to appeal his criminal sentence. See 18 U.S.C. S 3742(a)(1). This right, however, may be waived if the defendant knowingly and voluntarily agrees to the waiver. United States v. NavarroBotello, 912 F.2d 318, 321 (9th Cir. 1990) (holding that waiver of right to appeal as part of negotiated plea agreement does not violate due process or public policy). Nevertheless, in Navarro-Botello we also looked at the quality of the Rule 11(c) colloquy to ascertain that the defendant's waiver was knowingly and voluntarily made. See id. (prior to addressing waiver of right to appeal, court reviewed record and found Rule 11 requirements satisfied). 8 We recognize that a defendant who has waived the right to appeal may still appeal a criminal sentence under certain circumstances. See United States v. Schuman, 127 F.3d 815, 818 n.* (9th Cir. 1997) (Kozinski, J., Concurring) (reviewing cases in which defendant may appeal sentence in spite of waiver). For instance, a waiver of a right to appeal if the sentence violates the law or is based on "an incorrect application of the sentencing guidelines." United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.)(per curiam) (interpreting waiver of right to appeal pursuant to a Rule 11(e)(1)(C) agreement), cert. Denied 520 U.S. 1258, 117 S.Ct. 2423, 138 L.Ed.2d 186 (1997). 9 The cases cited by the Government in support of its argument that the right to appeal was waived validly do not involve situations where the defendant challenged compliance with the Rule 11(c) procedure. In Schuman, the court dismissed the appeal on the grounds that the waiver in the plea agreement was expressly stated, and that statements by the district court judgethat the defendant may still have had some rights to appeal did not give rise to a contrary result because the prosecution objected to this advisement by the court. Schuman, 127 F.3d at 817. The court also rejected Schuman's contention that the Government had failed to comply with the plea agreement. Id. Buchanan, also cited by the Government, stands for the proposition that, generally, when the district court Judge tells the defendant he may have a right to appeal, that "oral pronouncement must control," because the defendant "could have a reasonable expectation" that he could appeal his sentence. Buchanan, 59 F.3d at 917. In neither of these cases was the defendant denied the right to appeal a sentence even though compliance with the procedural requirements of Rule 11(c) was at issue. 10 As stated by the Seventh Circuit, waivers of appeal must "stand or fall with the agreement of which they are a part." United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995). "If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal. " Id. 11 Portillo-Cano is challenging the soundness of his plea allocution under Rule 11, which goes to the heart of whether his guilty plea, including the waiver of appeal, is enforceable. Thus, we must determine whether the plea was valid in order to determine if appeal is permitted. 12 Our holding in United States v. Vences, 169 F.3d 611 (9th Cir. 1999), is not to the contrary. In Vences, we held that we lacked jurisdiction on appeal where the defendant waived the right to appeal in his plea agreement, even though the trial Judge failed to explain the reasons for imposing the sentence, as required by 18 U.S.C. S 3553 (1994). The trial Judge's failure to comply with 18 U.S.C. S 3553 did not make the sentence illegal, 169 F.2d at 613, and did not implicate the voluntariness of the defendant's plea. By contrast, compliance with Rule 11 is the means by which the court is assured that the defendant's guilty plea is voluntarily and knowingly made. IV. COMPLIANCE WITH RULE 11(C)(1) 13 Rule 11(c)(1) of the Federal Rules of Criminal Procedure requires that before accepting a plea of guilty, the "court	{ "pile_set_name": "FreeLaw" }
772 F.2d 906 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.REGINALD HARRIS, PLAINTIFF-APPELLANT,v.ELTON SCOTT; DANIEL TRUDELL; LARRY STANLEY; LEE CLARK ANDJOHN WIREMAN, DEFENDANTS-APPELLEES. NO. 85-1044 United States Court of Appeals, Sixth Circuit. 8/6/85 E.D.Mich. APPEAL DISMISSED ORDER BEFORE: ENGEL, JONES and KRUPANSKY, Circuit Judges. 1 This matter is before the Court upon consideration of the appellant's motion for appointment of counsel. 2 A review of the record indicates that the district court entered an order on December 3, 1984. That order granted leave to amend the complaint, denied two motions for summary judgment, and granted the motion to dismiss as to all the claims except the claim of denial of religious practice. Appellant appealed. The December 10, 1984, order disposed of fewer than all the claims involved in the action. The district court did not expressly determine that there is no just reason for the delay and did not direct entry of a final judgment pursuant to Rule 54(b), Federal Rules of Civil Procedure. Therefore, the December 10, 1984, order appealed is not final and appealable. McIntyre v. First National Bank of Cincinnati, 585 F.2d 190 (6th Cir. 1978); Moody v. Kapica, 548 F.2d 133 (6th Cir. 1976); Oak Construction Company v. Huron Cement Company, 475 F.2d 1220 (6th Cir. 1973). The final decision of the district court has not been entered during the pendency of this appeal; therefore, this Court lacks jurisdiction. Gillis v. Department of Health and Human Services, 759 F.2d 565 (6th Cir. 1985). 3 It is ORDERED that the motion for appointment of counsel be and hereby is denied. 4 It is further ORDERED that the appeal be and it hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.	{ "pile_set_name": "FreeLaw" }
199 F.3d 1224 (10th Cir. 2000) WYOMING FARM BUREAU FEDERATION; MONTANA FARM BUREAU FEDERATION; AMERICAN FARM BUREAU FEDERATION; MOUNTAIN STATES LEGAL FOUNDATION; IDAHO FARM BUREAU FEDERATION; NATIONAL AUDUBON SOCIETY, a nonprofit corporation; PREDATORPROJECT, a nonprofit corporation; SINAPU, a nonprofit corporation; GRAY WOLF COMMITTEE, a conservation group, Plaintiffs-Appellees,CAT D. URBIGKIT; JAMES R. URBIGKIT, Plaintiffs-Appellees and Cross-Appellants,v.BRUCE BABBITT, Secretary of Department of Interior; GEORGE T. FRAMPTON, Assistant Secretary of Fish and Wildlife and Parks, Department of Interior; JAMIE CLARK, Director of United States Fish and Wildlife Service; RALPH O. MORGENWECK, Regional Director of United States Fish and Wildlife Service; EDWARD E. BANGS, Project Leader of Gray Wolf EIS; ROGER KENNEDY, Director of National Park Service; DANIEL GLICKMAN, Secretary of Department of Agriculture; MICHAEL DOMBECK, Chief Forester of United States Forest Service, in their official capacities; DEPARTMENT OF INTERIOR; UNITED STATES FISH ANDWILDLIFE SERVICE; NATIONAL PARK SERVICE; DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; UNITED STATES OF AMERICA, Defendants-Appellants and Cross-Appellees,NATIONAL WILDLIFE FEDERATION; WYOMING WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WOLF EDUCATION AND RESEARCH CENTER; DEFENDERS OF WILDLIFE, Intervenors-Appellants,NEZ PERCE TRIBE, Intervenors. Nos. 97-8127, 98-8000, 98-8007, 98-8008, 98-8009, 98-8011 UNITED STATES COURT OF APPEALS TENTH CIRCUIT January 13, 2000 Appeals from the United States District Court for the District of Wyoming. D.C. No. 94-CV-286[Copyrighted Material Omitted] Timothy S. Bishop (Todd S. Welch and William Perry Pendley of Mountain States Legal Foundation, Denver, Colorado; John J. Rademacher and Richard L. Krause of American Farm Bureau Federation, Park Ridge, Illinois, on the briefs), Chicago, Illinois, for Plaintiffs-Appellees. James R. Urbigkit, pro se, for Plaintiffs-Appellees and Cross-Appellants. M. Alice Thurston (Lois J. Schiffer, Assistant Attorney General, James C. Kilbourne, Ellen Durkee, and Christiana P. Perry, Department of Justice, Washington, D.C.; Margot Zallen, Denver, Colorado, and David Gayer, Washington, D.C., of counsel, Department of Interior, with her on the briefs) of Department of Justice, Washington, D.C., for Defendants-Appellants and Cross-Appellees. Brian B. O'Neill (Richard A. Duncan and Jonathan W. Dettmann of Faegre & Benson LLP, Minneapolis, Minnesota; Russell O. Stewart and Colin C. Deihl of Faegre & Benson LLP, Denver, Colorado, with him on the briefs for Defenders of Wildlife; Thomas France and Thomas Lustig of National Wildlife Federation, Missoula, Montana, with him on the briefs for National Wildlife Federation, Wyoming Wildlife Federation, Idaho Wildlife Federation, and Wolf Education and Research Center) of Faegre & Benson LLP, Minneapolis, Minnesota, for Intervenors-Appellants. Douglas L. Honnold (James S. Angell with him on the briefs) of Earthjustice Legal Defense Fund, Bozeman, Montana, for Predator Project, Sinapu, and Gray Wolf Committee. 1 Louis R. Cohen, James R. Wrathall, Matthew A. Brill, and Susan A. MacIntyre, of Wilmer, Cutler & Pickering, and Elizabeth Fayad, of Counsel, National Parks and Conservation Association, Washington, D.C., filed an amicus curiae brief on behalf of National Parks and Conservation Association, in support of the Department of the Interior. 2 Michael J. Bean, Environmental Defense Fund, Washington, D.C., and James B. Martin, Boulder, Colorado, Environmental Defense Fund, filed an amici curiae brief on behalf of Environmental Defense Fund, World Wildlife Fund, Wildlife Conservation Society, Izaak Walton League of America, Idaho Conservation League, Wolf Recovery Foundation, and Center for Marine Conservation. 3 Herman Kaufman, Old Greenwich, Connecticut, filed an amicus curiae brief on behalf of Friends of Animals, Inc. 4 David J. Cummings, Lapwai, Idaho, filed an amicus curiae brief on behalf of Nez Perce Tribe. 5 James C. Hill, Washington, D.C., filed an amicus curiae brief, pro se, in support of Plaintiffs-Appellees. 6 Before BRORBY, HOLLOWAY and HENRY, Circuit Judges. 7 BRORBY, Circuit Judge. 8 These consolidated appeals stem from three separate challenges to the Department of Interior's ("Department") final rules governing the reintroduction of a nonessential experimental population of gray wolves in Yellowstone National Park ("Yellowstone") and central Idaho. The district court consolidated the challenges and struck down the wolf reintroduction rules, concluding they (1) are contrary to Congress' clear intent under section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), to prevent lessening the protection afforded to naturally occurring, individual members of the same species; (2) are contrary to the Department's own regulations extending Endangered Species Act protections to all individual animals within an area where experimental and nonexperimental populations may overlap; and (3) conflict with section 4 of the Endangered Species Act, 16 U.S.C. 1533, by operating as a de facto "delisting" of naturally occurring wolves. Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349, 1372-76 (D. Wyo. 1997). The district court ordered the reintroduced non-native wolves and their offspring removed from the identified experimental population areas, but stayed its own judgment pending this appeal. Id. at 1376. Discerning no conflict between the challenged experimental population rules and the Endangered Species Act, we reverse the district court's order and judgment. I. Background A. Factual Summary 9 Detailed facts underlying this appeal are set forth in Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349 (D. Wyo. 1997); hence, we provide only a summary of salient facts. 10 The Secretary of Interior ("Secretary") listed the Northern Rocky Mountain Wolf, an alleged subspecies of the gray wolf, as an endangered species under the Endangered Species Act of 1973. 43 Fed. Reg. 9607 (March 9, 1978) ("Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota"). In 1978, the Secretary listed the entire gray wolf species as endangered in the lower forty-eight states, except Minnesota.1 Id. at 9610, 9612. In 1980, a team organized by the Department of Interior completed its Northern Rocky Mountain Wolf Recovery Plan ("Recovery Plan"), pursuant to the Endangered Species Act. The Department updated the Recovery Plan in 1987 to recommend the introduction of at least ten breeding pairs of wolves for three consecutive years in each of three identified recovery areas (Yellowstone National Park, central Idaho and northwestern Montana). 11 Based on the 1987 recommendation, and at Congress' direction, the Fish and Wildlife Service, in cooperation with the National Park Service and the United States Forest Service ("Forest Service"), prepared an environmental impact statement in accordance with the National Environmental Policy Act, 43 U.S.C. 4332(2)(C). The final environmental impact statement analyzed the environmental effects of five wolf recovery alternatives. The proposed action alternative the Fish and Wildlife Service adopted called for the annual reintroduction of fifteen wolves in two nonessential experimental population areas Yellowstone National Park and central Idaho beginning in 1994. Section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), expressly authorizes the establishment of such nonessential experimental populations. 12 In June 1994, Secretary Bruce Babbitt adopted the proposed action alternative subject to certain conditions intended to "minimize or avoid the environmental impacts and public concerns identified during the environmental review process." One condition was the promulgation of nonessential experimental population rules to implement a wolf management program under section 10(j). The Department published its final experimental population rules in November 1994. 59 Fed. Reg. 60252 (Nov. 22, 1994). The Recovery Plan and final rules prescribe the release of 90-150 wolves from Canada into designated areas of Yellowstone and central Idaho over a three- to five-year period, id. at 60254-255, 60266, 60269, notwithstanding the Department's acknowledgment (1) a colony of naturally occurring wolves exists in Montana which, as the number of wolves increases, eventually will recolonize areas of Yellowstone and Idaho; and (2) lone wolves	{ "pile_set_name": "FreeLaw" }
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2014-024 GEORGE MAROUN, SR. & a. v. DEUTSCHE BANK NATIONAL TRUST COMPANY Argued: September 18, 2014 Opinion Issued: December 30, 2014 Paul A. Petrillo, of Salem, by brief and orally, for the plaintiffs. Hinshaw & Culbertson LLP, of Boston, Massachusetts (Marissa I. Delinks and Justin M. Fabella on the brief, and Ms. Delinks orally), for the defendant. CONBOY, J. The plaintiffs, George Maroun, Sr. (husband) and Edith Maroun (wife), filed a petition seeking to enjoin the defendant, Deutsche Bank National Trust Company (bank), from foreclosing on property owned by the wife. The Superior Court (McHugh, J.) denied the plaintiffs’ summary judgment motion and granted the bank’s cross-motion for summary judgment. The plaintiffs appeal, and we affirm. I. Background The following facts are drawn from the trial court’s order or are otherwise undisputed on the record before us. Prior to 1991, the plaintiffs owned property in Salem (the property) together. In 1991, the husband executed a deed (1991 deed) that conveyed his interest in the property to the wife. Ten years later, in 2001, the husband executed a notarized affidavit (2001 affidavit), which stated that at the time he executed the 1991 deed he was married to the wife and that, “through accident, inadvertence or mistake, the deed did not state that [he] released [his] homestead rights.” The husband purportedly made the 2001 affidavit “to correct said omission.” The affidavit referenced only the 1991 deed, and the correction did not purport to relate to any specific mortgage on the property. The affidavit was filed with the Rockingham County Registry of Deeds. Also in 2001, the husband and wife executed a mortgage on the property (2001 mortgage), which stated: “I, George C. Maroun, husband of mortgagor, hereby waive all rights of homestead and other interests herein.” In 2002, the husband and wife executed another mortgage on the property (2002 mortgage) that included the same language waiving the husband’s homestead right and other interests in the property. In 2006, the wife, alone, executed both a promissory note and a mortgage on the property (2006 mortgage), which are the subject of this litigation. The mortgage document erroneously states that the wife is a single woman. Although the mortgage document also states, “Borrower [wife], and Borrower’s spouse, if any, release all rights of homestead . . . and . . . other interests in the Property,” the husband did not sign the note or the mortgage document. In 2009, the mortgage was assigned to the bank. The bank took no action to address the status of the husband’s homestead right. In 2008, the wife filed an individual Chapter 13 bankruptcy petition that listed the property as an asset on the required schedule of real property. In 2010, the wife filed amended schedules of assets with the bankruptcy court in her bankruptcy case that asserted that the husband possessed a homestead right in the property and that the husband’s claim had a higher priority than the 2006 mortgage. When the wife ultimately emerged from bankruptcy protection, she was required to pay some prepetition arrearage amounts secured by the 2006 mortgage and to make certain ongoing payments on the debt. Following her discharge, the wife did not cure her arrears, and the bank sought to foreclose upon the property. The plaintiffs filed a petition for injunctive relief in the superior court, arguing that the husband’s homestead right has priority over the 2006 mortgage debt, and requesting a permanent injunction against the bank’s foreclosure sale of the property. The parties agreed that there were no disputed issues of material fact, and each moved for summary judgment. The trial court granted the bank’s motion for summary judgment and denied the plaintiffs’ motion. On appeal, the plaintiffs argue that the trial court erroneously concluded that the husband waived or released his homestead rights with respect to the 2 2006 mortgage. The plaintiffs also contend that the trial court erred by not finding that, pursuant to the doctrines of res judicata and collateral estoppel, the bank is estopped from foreclosing on the husband’s homestead rights based upon rulings in the wife’s bankruptcy case. Finally, despite the trial court’s finding that an erroneous reference to the wife’s status as a single woman in the 2006 mortgage document was probably a scrivener’s error, the plaintiffs assert that the erroneous reference “is not without relevance.” We address each argument in turn. II. Standard of Review In reviewing the trial court’s rulings on cross-motions for summary judgment, “we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law.” Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277, 282 (2013) (quotation omitted). “If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment.” Id. (quotation omitted). III. Waiver of Homestead Right The trial court concluded that the husband’s notarized 2001 “affidavit explaining that his intent in giving the deed was to release his homestead rights” was “sufficient to validly waive his homestead rights” as to the 2006 mortgage. On appeal, the plaintiffs argue that the trial court erroneously “imputed” the husband’s prior waivers of his homestead right, including the waiver in the 2001 affidavit, to the 2006 mortgage because the homestead statute “does not contain conditional words or phrases regarding when or how frequently a written waiver or encumbrance of [the] homestead must occur to be valid.” Resolving this issue requires us to interpret and apply the statutory homestead exemption. See RSA 480:1, :3-a, :5-a (2013), :4 (Supp. 2014). The interpretation and application of statutes present questions of law, which we review de novo. Deyeso v. Cavadi, 165 N.H. 76, 79 (2013). In matters of statutory interpretation, we are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole. Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 22 (2007). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We do not construe statutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme. Id. When interpreting two or more statutes that deal with a similar subject matter, we construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes. Id. Statutory 3 homestead protections are universally held to be liberally construed to achieve their public policy objective. See Deyeso, 165 N.H. at 80. In New Hampshire, “[e]very person is entitled to $100,000 worth of his or her homestead, or of his or her interest therein, as a homestead.” RSA 480:1. “The homestead right is generally exempt from attachment or encumbrance.” Stewart v. Bader, 154 N.H. 75, 88 (2006). “The purpose of the homestead exemption is to secure to debtors and their families the shelter of the homestead roof.” Deyeso, 165 N.H. at 79; see also Gunnison v. Twitchel, 38 N.H. 62, 69 (1859) (“[T]he great and paramount object of the homestead act [is] . . . to protect and preserve inviolate . . . a family home . . . .”). “The exemption protects the family from destitution, and protects society from the danger of its citizens becoming paupers.” Deyeso, 165 N.H. at 79-80 (quot	{ "pile_set_name": "FreeLaw" }
NO. 07-04-0534-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JUNE 20, 2005 ______________________________ ADVANCED INDUSTRIES, INC., Appellant v. CACTUS OPERATING LTD. d/b/a CACTUS FEEDERS, and AMISTAD AVIATION, INC., Appellees _________________________________ FROM THE 69th DISTRICT COURT OF MOORE COUNTY; NO. 04-14; HON. RON ENNS, PRESIDING _______________________________ ON MOTION TO DISMISS _______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Advanced Industries, Inc., appellant, and Cactus Operating Ltd. d/b/a Cactus Feeders, and Amistad Aviation, Inc., appellees, by and through their attorneys, have filed a motion to dismiss this appeal with prejudice because the parties have fully compromised and settled all issues in dispute and neither desire to pursue the appeal. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at the parties’ request, no motion for rehearing will be entertained, and our mandate will issue forthwith. Brian Quinn Chief Justice 2	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7430 ROD TURNER, Plaintiff - Appellant, versus GENE JOHNSON, Director, Virginia Department of Corrections, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CA-04-19) Submitted: March 30, 2005 Decided: April 8, 2005 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Rod Turner, Appellant Pro Se. Donald Eldridge Jeffrey, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rod Turner, a state prisoner, seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2000) petition. An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Turner has not made the requisite showing. Accordingly, we deny the motion for a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 -	{ "pile_set_name": "FreeLaw" }
Case: 09-30697 Document: 00511028832 Page: 1 Date Filed: 02/17/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 17, 2010 No. 09-30697 Summary Calendar Charles R. Fulbruge III Clerk PAUL RAY ROBBINS, Plaintiff-Appellant, versus CORRECTIONS CORPORATION OF AMERICA; TIM WILKINSON; TIM MORGAN; ANGEL MARTIN; VIRGIL LUCUS; BOBBY JINDAL; JAMES LEBLANC; MONA HEYSE; PAT THOMAS; LINDA RAMSY; A. PACHECO; DOCTOR ENGELSON, Defendants-Appellees. Appeal from the United States District Court for the Western District of Louisiana No. 1:08-CV-1054 Before DAVIS, SMITH, and DENNIS, Circuit Judges. JERRY E. SMITH, Circuit Judge:* * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4. Case: 09-30697 Document: 00511028832 Page: 2 Date Filed: 02/17/2010 No. 09-30697 Paul Robbins, a Louisiana prisoner, appeals the dismissal of his pro se, in forma pauperis 42 U.S.C. § 1983 civil rights suit as frivolous and for failure to state a claim. We dismiss the appeal as frivolous. As the magistrate judge (“MJ”) references in his report, Robbins’s initial complaint was a sixty-one-page, typed screed outlining a host of alleged prob- lems with the way defendant Corrections Corporation of America (“CCA”) ran its facility. That identical complaint was submitted by eight prisoners, purport- edly as a class action, and appears to be a general form working its way around the prison yard. Indeed, the latest prisoner-plaintiff need only do as Robbins did: Obscure the typed-in name and write his in its place. The actual claims in the complaint were not at all of a personal nature, and Robbins included nothing to suggest that, or how, he personally suffered in- jury from the defendants’ alleged wrongful actions. The MJ ordered Robbins to amend his complaint to provide specific factual allegations to support the claim that his constitutional rights were violated,1 or his complaint would be dis- missed. The amended complaint was hardly better. In it, Robbins attempted to re- tain each claim in the original complaint just by stating that “thease fact’s do involve this inmate plantiff ‘personly’ and directly” [sic]. As the MJ put it, “[r]a- ther than provide specific facts regarding the eighteen claims, Plaintiff simply reiterated the allegations of the original complaint.” Nevertheless, the MJ tried 1 The MJ was precise about what information he needed: Specifically, Plaintiff should provide: (A) the name(s) of each per- son who allegedly violated Robbins’ constitutional rights; (B) a description of what each defendant did to violate Robbins’ rights (not the rights of other inmates); (C) the place and date(s) that each event/violation occurred; and (D) a description of the alleged injury Robbins sustained as a result of each alleged violation. (Emphasis omitted.) 2 Case: 09-30697 Document: 00511028832 Page: 3 Date Filed: 02/17/2010 No. 09-30697 to tease out just what injuries Robbins claimed he suffered, addressing his “com- plaints” relating to personal medical care, access to legal assistance, the pres- ence of female guards, and his desire for a transfer to a state-run prison facility. Ultimately, the MJ recommended dismissal under 28 U.S.C. § 1915(e)(2)(B). The district court agreed with the recommendation and dismissed the complaint both as frivolous and for failing to state a claim. We review dismissals under § 1915(e)(2)(B)(i) as frivolous for abuse of discretion. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). And we review dismissals under § 1915(e)(2)(B)(ii) for failure to state a claim de novo. Because the district court did not state the subsection on which it relied, our review is de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (per curiam). We have a “responsibility to construe pro se filings liberally.” Sossamon v. Texas, 560 F.3d 316, 322 n.3 (5th Cir. 2009), petition for cert. filed, 77 U.S.L.W. 3657 (U.S. May 22, 2009) (08-1438). Nonetheless, “litigants must still brief contentions in order to preserve them.” Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007). To that end, the only claim from his amended complaint that Robbins appears still to be arguing in any detail relates to his medical care.2 And, based on the record, we agree with the MJ that Robbins “essentially com- plains that he suffers from a slew of illnesses, and that WCC [his facility] is not following the treatment prescribed by the doctors at the LSU Medical Center in Shreveport.” Robbins’s disagreement with WCC’s medical staff over his treat- ment regimen does not come close to meeting the “extremely high standard” for deliberate indifference claims. Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001); see also Varnado v. Lynaugh, 920 F.2d 320, 321 (5th 2 Robbins also raises, for the first time on appeal, a claim that the prison lost his prop- erty during a medical stay at LSU. “[I]ssues raised for the first time on appeal ‘are not review- able by this court unless they involve purely legal questions and failure to consider them would result in manifest injustice.’” United States. v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990) (quoting Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985)). 3 Case: 09-30697 Document: 00511028832 Page: 4 Date Filed: 02/17/2010 No. 09-30697 Cir. 1991). Thus, “even given the requisite liberal construction, [the prisoner] has failed to advance any arguments that suggest that the district court erred in dismissing his complaint.” Douglas v. Haynes, No. 09-20466, 2009 WL 3848670, at *2 (5th Cir. Nov. 18, 2009) (per curiam) (unpublished). We direct Robbins’s attention to the PLRA’s three-strikes provision, 28 U.S.C. § 1915(g). The district court’s dismissal and the dismissal of this appeal both count as strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). If a prisoner accumulates three strikes, he is not allowed to bring another civil action in forma pauperis while incarcerated unless he is un- der imminent danger of serious physical injury. Robbins is so warned. The appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2. All out- standing motions are DENIED. 4	{ "pile_set_name": "FreeLaw" }
3 Wis.2d 196 (1958) GREEN COUNTY, Respondent, vs. CITY OF MONROE, Appellant. Supreme Court of Wisconsin. January 10, 1958. February 4, 1958. 197 For the appellant there was a brief by Cunningham & Buell of Janesville, and Arthur C. Benkert, city attorney, and oral argument by Mr. Robert J. Cunningham and Mr. Benkert. 198 For the respondent there was a brief and oral argument by Franz W. Brand, district attorney, and Howard H. Moss, special assistant district attorney. A brief amicus curiae was filed by Robert D. Sundby of Madison, legal counsel for the League of Wisconsin Municipalities. BROADFOOT, J. The sole issue in the case is whether the plaintiff county is subject to the terms, conditions, and provisions of the zoning ordinance of the defendant city in the location and construction of a county jail. There is little direct authority on the question presented. The reason therefor is apparent. Undoubtedly there have been many disputes between cities and counties as to the location of county courthouses and jails. They must have been settled in a spirit of compromise and comity. Such questions should be so settled. It is admitted by the city that its zoning ordinance could not apply to the federal government or to the state. However, it contends that a county is not a sovereign power and therefore the exemption does not apply to counties. In so far as the text writers lay down a general rule the following are typical examples: "Zoning restrictions cannot apply to the state or any of its agencies vested with the right of eminent domain in the use of land for public purposes." 8 McQuillin, Mun. Corp. (3d ed.), p. 43, sec. 25.15. In 2 Law of Zoning by James Metzenbaum (2d ed.), p. 1280, the author states: "When zoning had found itself firmly intrenched both in law and in practice, a rather novel question presented itself in the way of a challenge to the right of municipalities and other political subdivisions to use property for purposes other than those assigned under a zoning ordinance. "It was argued that if the political subdivisions were compelled to comply with zoning ordinance requirements, the 199 public welfareintended to be one of the principal beneficiaries of zoningmight actually suffer and be injured because a denial of the right of a political subdivision to proceed with public buildings and public construction, might distinctly retard the public well-being. "Most of the courts to which the question has been submitted, appear to have decreed that unless a different intention is clearly manifested, states, municipalities, the federal government, and other public subdivisions, are not to be bound by the requirements of a zoning ordinance, especially where the proposed use is not within a `nuisance' classification and where the buildings are used for `governmental' and not merely for `proprietary' uses." At page 1289 the author states: "It may conservatively be said that where a municipality, state, or county is aiming construction of a building which will be used exclusively for governmental functions, as distinguished from a corporate or quasi-private service, a municipal zoning ordinance does not apply, unless such use be inherently a nuisance." Bassett in his book entitled "Zoning" on page 31, says: "The need of a public building in a certain location ought to be determined by the federal, state, or municipal authority, and its determination on the question of necessary or desirable location cannot be interfered with by a local zoning ordinance." The author further states on page 212: ". . . no zoning ordinance can prevent the municipal, state, or federal government from erecting buildings in the form and on the site needed by the public." The trial court held that a county is a governmental arm and agency of the state performing primarily the functions of the state locally. State ex rel. Bare v. Schinz, 194 Wis. 397, 216 N. W. 509; Crowley v. Clark County, 219 Wis. 76, 261 N. W. 221. In the erection and operation of a county 200 jail a county is engaged in a governmental function and one that is necessary in the general administration of justice and particularly in the enforcement of the state's criminal laws. The trial court further referred to the case of Milwaukee v. McGregor, 140 Wis. 35, 121 N. W. 642, wherein the city of Milwaukee attempted to enjoin the board of normalschool regents from erecting a normal-school building because the regents had not obtained a building permit pursuant to a city ordinance. An injunction was denied. It was held that the provisions of the local ordinance were not applicable to a state agency. The city contends that the legislature granted to cities the power to zone in the broadest possible language. The city presents a complete history of the state statutes delegating zoning powers to cities and contends that because of the broad language therein contained the legislature intended to give cities the power to control the location and erection of public buildings by a county. The city further contends that the best-reasoned cases in foreign jurisdictions sustain its position. It cites several cases from other jurisdictions dealing with the regulation of public buildings generally. The only case cited that involves the construction of a county jail is the case of Cook County v. Chicago, 311 Ill. 234, 142 N. E. 512. That case involved the applicability of a fire and building ordinance setting up construction standards. The case, however, cannot be a precedent because of a difference in the Illinois and Wisconsin statutes. The following quotations from the Illinois decision point out some of the differences: "The county is not required to build a courthouse within the limits of any city, but may build it elsewhere if directed so to do by the people, or may maintain or condemn land of its own volition without a vote of the people. County of Mercer v. Wolff, supra. When the county builds a courthouse within the limits of a city, it may be held that in so 201 doing it acts voluntarily. No good reason, therefore, is perceived why it should not be made amenable to the reasonable police regulations imposed by the city in the interest of the general welfare." (p. 246.) "It is the duty of the county to erect or otherwise provide, when necessary and finances will justify it, and to keep in repair, a suitable courthouse, jail, and other necessary county buildings. These, with a few other similar provisions, constitute the duties and powers delegated to the county and county boards by the legislature. There is no delegation of police power to the counties and townships of the state, and it would seem clear, therefore, that by the delegation of the police power to cities, villages, and incorporated towns the legislature intended that the exercise of that power over the property and inhabitants within the limits of the city or village should be by that municipality, subject, of course, to the right of the state, of which it is never divested, to exercise the police power." (p. 241.) The Illinois court commented at length upon the case of Pasadena School Dist. v. Pasadena, 166 Cal. 7, 134 Pac. 985, which involved the question of whether in the construction of a school building the school district was governed by the fire and building ordinance of the city and whether it was required to pay fees for inspection. The supreme court of California held that it was. In the case of Hall v. Taft, 47 Cal. (2d) 177, 302 Pac. (2d) 574, decided in 1956, the supreme court of California overruled its opinion in the Pasadena School Dist. Case. It is apparent from the above that our situation is entirely different. By statute the county board must construct the jail at the county seat. Under our statutes counties have extensive police powers. The state has its own building code governing the construction of public buildings. The state code is very comprehensive and covers safety in construction, sanitation, ventilation, and other details. The responsibility for the enforcement of the state building code 202 is not left to cities but is delegated to the state industrial commission and in the case of a county jail the plans are also subject to inspection and approval by the state department of public welfare. The general words of the statutes conferring zoning powers on cities cannot be construed to include the state, or in this instance the county, when in conflict with special statutes governing the location and construction of a county jail. The trial court in his memorandum decision analyzed other cases from foreign jurisdictions and held that they were not applicable. His analysis of the whole question was thorough and his decision was based on Wisconsin cases and Wisconsin statutes, and the result he arrived at is manifestly correct. By the Court.Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
601 F.2d 594 American Chemical Societyv.Dun-Donnelley Publishing Corp. No. 79-1099 United States Court of Appeals, Seventh Circuit 3/28/79 1 N.D.Ill. AFFIRMED	{ "pile_set_name": "FreeLaw" }
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2492 _____________________________ JOSEPH L. MCDANIELS, Appellant, v. MARGARET A. MCDANIELS, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. W. Gregg McCaulie, Judge. August 30, 2019 PER CURIAM. DISMISSED. ROBERTS, WINOKUR, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Joseph L. McDaniels, pro se, Appellant. No appearance for Appellee. 2	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-04-00117-CV In re Joseph Martinez ORIGINAL PROCEEDING FROM HAYS COUNTY M E M O R A N D U M O P I N I O N We are advised that following the Court's order granting temporary relief in this mandamus proceeding, the district court stayed Joseph Martinez's trial in Hays County cause number CR-03-787 pending final disposition of his appeal to this Court in Ex parte Joseph Martinez, number 03-04-00118-CR. Because we are confident that no further order is required to preserve the Court's jurisdiction, the petition for writ of mandamus is dismissed. __________________________________________ W. Kenneth Law, Justice Before Chief Justice Law, Justices Kidd and Puryear Filed: March 26, 2004	{ "pile_set_name": "FreeLaw" }

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