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467 B.R. 156 (2012)
In re The SHOREBANK CORP., et al., Debtors.
No. 12 B 581.
United States Bankruptcy Court, N.D. Illinois, Eastern Division.
March 12, 2012.
*157 George N. Panagakis, Justin M. Winerman, Skadden Arps Slate Meagher & Flom LLP, Chicago, IL, Attorneys for debtors The ShoreBank Corp., et al.
Richard S. Lauter, Freeborn & Peters LLP, Chicago, IL, Attorney for Jamil Moore.
Elizabeth E. Richert, The Coleman Law Firm, Chicago, IL, Attorney for Mary Houghton and Ron Gryzwinski.
Lauren Newman, Thompson Coburn LLP, Chicago, IL, Attorney for Todd Brown.
Mark F. Hebbeln, Derek L. Wright, Foley & Lardner LLP, Chicago, IL, Attorneys for the Official Committee of Unsecured Creditors.
Alan P. Solow, DLA Piper LLP, Chicago, IL, Attorney for the F.D.I.C. as Receiver.
Roman L. Sukley, Office of the U.S. Trustee, Chicago, IL, Attorney for Patrick S. Layng, U.S. Trustee.
MEMORANDUM OPINION
A. BENJAMIN GOLDGAR, Bankruptcy Judge.
This matter is before the court for ruling on the emergency motion of Jamil Moore, Ron Gryzwinski, and Mary Houghton ("the movants") to direct the U.S. Trustee to reconstitute the unsecured creditors committee or alternatively for other relief. For the following reasons, the motion will be denied.
*158 1. Facts
The relevant facts, few and undisputed, are drawn from the parties' papers and from the debtors' proposed plan and disclosure statement. They are also drawn, to a very limited extent and mostly for procedural details, from the court's docket and the transcript of the March 7, 2012 argument.
These jointly administered chapter 11 cases were filed on January 9, 2012. Just three weeks later, the debtors filed a disclosure statement and proposed a liquidating plan. The plan calls for, among other things, the establishment of a liquidation trust and appointment of a trust administrator. No date has been set for confirmation of the plan, but the debtors' stated intention has always been for these cases to move as quickly as possible to confirmation. The immediate post-petition filing of the disclosure statement and plan suggests the debtors mean what they say.
On February 15, 2012, the U.S. Trustee held a meeting to form an official committee of unsecured creditors. According to the movants, six unsecured creditors expressed interest in serving on the committee. Three are the movants themselves. Gryzwinski is a former director of debtor ShoreBank Corporation. Houghton is a former officer and director. Moore is a personal injury claimant with a claim against another of the debtors. Of the other three interested creditors, Todd Brown is also a former director. The remaining two, Bank of New York Mellon and The Wilmington Trust Company, are trust preferred security claimants ("TruPS creditors"). The securities they hold are subordinated notes.
The plan proposes several classes of unsecured creditors. Senior note holders are placed in Class 4. Gryzwinski, Houghton, Moore, and Brown are general unsecured creditors that the proposed plan places in Class 5. The TruPS creditors are placed in Class 6. The plan also proposes to create a liquidation trust on confirmation. Under the plan, senior note holders will receive their pro rata share of the liquidation trust as if classes 4, 5, and 6 were a single class, as well as their pro rata share of certain interests that but for the senior note holders' rights would be paid to the TruPS creditors. The senior note holders are expected to be paid 78% of their claims. General unsecured creditors will receive their pro rata share of the liquidation trust as if classes 4, 5, and 6 were a single class. Their expected recovery is 19%. The TruPS creditors will also receive their pro rata share as if classes 4, 5 and 6 were a single class, but only if the claimants in Class 4the senior note holdersare paid in full. The expected recovery of the TruPS creditors is zero.
After the February 15 meeting, the U.S. Trustee decided to form a three-member committee consisting of Brown and the two TruPS creditors. After the meeting, however, and before the U.S. Trustee could give formal notice of the committee's formation, Brown resigned. According to the movants (and according to Brown's counsel), he became concerned about serving on a committee of which TruPS creditors constituted a majority.
Although no committee had been formed, on February 29, 2012, the movants filed the motion now before the court in which they complain of the committee's makeup and seek to have the court reconstitute it. The motion expressed the same concerns that apparently caused Brown to resign, namely that the TruPS creditors dominate the committee. The movants contend that the structure of the planunder which the TruPS creditors only get paid after the senior note holders are paid in fullgives the committee an incentive to act primarily in the TruPS *159 creditors' economic interest. That interest would involve pursuing "high-risk strategies that run the risk of depleting the estates of precious resources because it is the only way [the TruPS creditors] could possibly receive any recovery on their claims." (Mot. at 2 (emphasis in original)). Since no committee had officially been formed, however, and since it is difficult to reconstitute a committee that does not yet exist, on the March 1 presentment date the motion was continued until March 7.
The very next day, March 2, 2012, the U.S. Trustee filed a formal notice of the appointment of an official unsecured creditors committee. The committee has three members: Bank of New York Mellon and The Wilmington Trust Company (the two TruPS creditors), and Moore, the personal injury claimant. No former directors or officers are on the committee.
The day before the continued hearing on the motion to reconstitute the committee, the committee (now extant) filed through its proposed counsel an objection to the motion. The committee argues that the movants are not really interested in adequate representation of their interests but instead want to control the committee themselves to pursue their own agenda. The committee notes that the only specific "high-risk strategy" that worries the movants is the prospect of the committee "`suing officers and directors.'" (Obj. at 2 (quoting Mot. at 9)). The movants' "real motivations," the committee asserts, are to prevent any investigation of possible claims against officers or directors and stave off objections to the release of those claims in the plan. (Obj. at 5).
On the March 7 continued date, the court held a hearing at which counsel for the movants, Brown, the U.S. Trustee, the committee, and the debtors were permitted to argue at some length. The movants and the committee disagreed about what they termed the court's "standard of review" of the U.S. Trustee's decision and how deferential that review should be. (Tr. at 6, 16). They also disagreed, of course, over whether reconstitution of the committee was necessary to ensure adequate representation of creditors. Although counsel for the movants and the committee tried to frame the latter issue differently (a difficult task given the papers they filed), the disagreement over adequacy of representation boiled down to deep suspicions on the movants' part about the motivations of the TruPS creditors and on the committee's part about the motivations of the directors and officers.
Twice during the hearing, the U.S. Trustee was invited to respond to the motion in writing but declined, citing the deliberative process privilege. (Tr. at 4, 34). See, e.g., In re Austin, No. 85-40639, 1990 WL 10007376, at *2 (Bankr.S.D.Ga. March 23, 1990) (U.S. Trustee asserted the privilege as basis for not producing documents concerning decision to move to dismiss chapter 11 case). The other parties similarly declined an invitation to file any further briefs. (Tr. at 34). The parties also refused an evidentiary hearing at which factual matters raised during argument might have been fleshed out and supported. (Id. at 34-35).
At the conclusion of the argument on March 7, the parties having expressed an urgent need for a decision, and with briefing concluded, the court set a ruling date of March 12, just five days later. As promised, the matter is ready for ruling.[1]*160 The sole issue for decision is whether the membership of the existing committee must be changed to ensure adequate representation of creditors.[2]
2. Discussion
The answer is no. The motion is premised on the TruPS creditors' conflict of interest, a conflict resulting from the way the debtors' plan classifies and proposes to treat unsecured claims. But the movants' assertion that these creditors will breach their fiduciary duties as committee members and act contrary to the interests of the creditors they represent is currently no more than vague and unsupported speculation. The emergency motion to reconstitute the committee will be denied.
a. Statutory Framework
The ability of bankruptcy courts to alter the membership of statutory committees has an uneven history. Originally, section 1102(c) of the Code allowed a court to alter committee membership or size if the court determined that the membership was not representative. See 11 U.S.C. § 1102(c) (repealed 1986). Then, in 1986, the U.S. Trustee program was expanded and made permanent, and section | {
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303 F.Supp.2d 391 (2004)
POSVEN, C.A., Plaintiff,
v.
LIBERTY MUTUAL INSURANCE CO. d/b/a Liberty Bond Services, Defendants.
Liberty Mutual Insurance Co. d/b/a Liberty Bond Services, Defendants, Third-Party Plaintiffs,
v.
Posco Engineering & Construction Co. Ltd., Third-Party Defendants.
No. 02 Civ. 0623(PKL).
United States District Court, S.D. New York.
January 12, 2004.
*394 Dorsey & Whitney LLP, New York, NY, Minneapolis, MN, Neil E. McDonnell, Steven K. Champlin, for Plaintiff.
Thelen Reid & Priest LLP, New York, NY, Washington, DC, Jeffrey P. Rosenstein, Andrew D. Ness, Todd J. Wagnon, for Defendant, Third-Party Plaintiff.
White & Case LLP, New York, NY, John S. Willems, K. Allison White, for Third Party-Defendant.
OPINION AND ORDER
LEISURE, District Judge.
Plaintiff POSVEN, C.A. ("POSVEN") commenced this diversity action seeking damages for breach of a $39,375,000 performance bond ("Performance Bond" or "Bond") issued by defendant and third-party plaintiff Liberty Mutual Insurance Co. d/b/a Liberty Bond Services ("Liberty Mutual"). The Bond secured performance by Energy Overseas International, Inc. ("EOI") and United Engineers, Inc. ("UEI") on a series of contracts between POSVEN and EOI, UEI, and third-party defendant POSCO Engineering & Construction Co., Ltd. ("POSEC"). Liberty Mutual, in turn, brought a third-party complaint against POSEC for exoneration and quia timet, subrogation, contribution, reimbursement, restitution and indemnity. In response, POSE C now moves to dismiss the third-party complaint for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Liberty Mutual opposes the motion to dismiss and has filed a cross-motion to transfer the entire action to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). Both POSVEN and PSEC oppose transfer of venue. For the reasons set for below, the Court denies the motion to dismiss and grants the motion to transfer.
I. BACKGROUND
This case centers on the performance of various contracts relating to the construction of a hot-briquette iron facility in Peurto Ordaz, Venezuela ("the Project"). Plaintiff POSVEN is a Venezuelan company, with its principal place of business in Venezuela, formed as a joint venture among a number of companies including Pohang Iron & Steel Co., Ltd., third-party defendant POSEC-itself a subsidiary of Pohang Iron & Steel Co., Ltd., and UEI for the purpose of owning and operating the Project. (Third Party Compl. ¶ 2; Willems Aff., Ex. D.)
In 1997, POSEC, EOI, and UEI, formed a consortium and entered into a series of contracts ("the EPC Contracts") with POSVEN to provide engineering, procurement and construction services for the Project. (Willems Aff. Ex. C, E-H.) The EPC Contracts were not negotiated in New York and none of the parties to the EPC Contracts were New York citizens or residents (Koo Decl. ¶ 9-10); however, the EPC Contracts do contain New York choice of law provisions (Willems Aff., Exs. E-H). Under the EPC Contracts, EOI and UEI were required to furnish a performance bond for the benefit of POSVEN. (Compl.¶ 7.) To fulfill this obligation, EOI and UEI obtained the Bond from defendant Liberty Mutual, a Massachusetts company with its principle place of business in Boston, Massachusetts and its headquarters in the Philadelphia, Pennsylvania area. (Compl. ¶¶ 2, 8; Liberty Mutual Opp. at 9 n. 5.)
In early 2001, problems began to arise relating to the quality of hot-briquette iron produced by the Project and the construction and engineering of the Project. POSVEN now alleges in its complaint filed January 25, 2002 that EOI and UEI *395 breached the EPC Contracts in numerous respects, including failing to pay liquidated damages for delay and lack of performance to POSVEN, failing to perform required work and failing to correct deficient and defective work on the Project, abandoning the Project, and filing for bankruptcy. (Compl.¶ 9.) POSVEN contends that because EOI and UEI are in default and have been declared to be in default of their obligations under the EPC Contracts POSVEN is entitled to the full sum of the Bond. (Compl.¶¶ 10-12.)
Liberty Mutual, in turn, alleges in its third-party complaint that POSEC, a Korean company with its principal place of business in the Republic of Korea, is jointly and severally liable for the alleged breaches of the EPC Contracts and moreover that the alleged breaches relate in substantial part to the performance of equipment supplied by POSEC as part of its obligations under the EPC Contracts. (Third Party Compl. ¶¶ 6-12.) Accordingly, Liberty Mutual seeks recovery from POSE C under various subrogation, contribution and indemnification causes of action. POSEC has moved to dismiss the third-part complaint on the grounds that it is not subject to personal jurisdiction in this Court. Liberty Mutual argues that this Court does have personal jurisdiction over POSEC but that if the Court is inclined to find otherwise, the appropriate course is to transfer venue to the Eastern District of Pennsylvania where, according to Liberty Mutual, POSEC is subject to personal jurisdiction.
While most of the relevant acts and omissions in this case occurred in Venezuela, certain acts of jurisdictional significance occurred in both Pennsylvania and New York. Between 1997 and 2001, both UEI and EOI had their principal place of business in Philadelphia, Pennsylvania, where UEI performed most of its engineering and procurement duties under the EPC Contracts. (Marrone Decl. ¶ 3.) From February 1997 to October 1997, POSEC essentially ran a satellite office in space it rented within UEI's Philadelphia office. (Id.) As many as seven POSEC employees performed substantial procurement and engineering work relating to the EPC contracts out of this office, including taking part in meetings and other communications with UEI, EOI and various contractors and subcontractors and preparing reports outlining the progress of POSEC's performance under the EPC Contracts. (Marrone Decl. ¶ 3, Exs. 4-12.) In addition, POSVEN corresponded extensively with the Philadelphia offices of UEO, EOI and POSEC via mail, facsimile and telephone regarding the Project. (Marrone Decl. ¶ 3.) After October 1997, POSEC maintained a liaison officer in Philadelphia through mid-February 1998. (Id.)
The relevant contacts in New York occurred on May 16, 2001 when all of POSVEN's shareholders attended a meeting in New York City. The agenda for this meeting was to resolve the financial restructuring of POSVEN; however, the minutes of the meeting show substantial discussion regarding the construction and quality problems impeding the Project. (Id. ¶ 4 and Ex. 13.) Furthermore, the minutes indicate that the proposed financial restructuring was closely integrated with and largely contingent upon the resolution of these same construction and quality problems. (Id., Ex. 13). POSEC was represented at the meeting by POSVEN's general counsel, Mr. Fernando Pelaez Pier, Esq. (Id.) Mr. Pier was not an employee of POSEC, but rather was granted power of attorney for the purpose of representing POSEC in the May 16 meeting. (Supp. Koo Decl. ¶ 4.) Specifically, Mr. Pelaez Pier was authorized to represent POSE C in resolving the financial restructuring of POSVEN, including taking part *396 in the deliberations and voting on this issue. (Supp. Koo Decl., Ex. A.)
II. DISCUSSION
A. Personal Jurisdiction
On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, it is well established that "the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999); Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). "Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction." Metropolitan Life Ins. Co., 84 F.3d at 566. Where the parties have conducted discovery on the jurisdictional issue but no evidentiary hearing has been held, the plaintiff must aver facts that, if credited by the ultimate trier of fact, would establish jurisdiction over the defendant. Id. at 567. "Eventually, personal jurisdiction must be established by a preponderance of the evidence, either at an evidentiary hearing or at trial. But where the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor, notwithstanding a controverting presentation by the moving party." A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993); see also United States Theatre Corp. v. Gunwyn/Lansburgh Ltd. Partnership, 825 F.Supp. 594, 595 (S.D.N.Y.1993). The parties have not indicated in their pleadings whether they have actually | {
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795 F.2d 90
254 U.S.App.D.C. 45, 6 Fed.R.Serv.3d 482,33 Cont.Cas.Fed. (CCH) 74,489
RANDOLPH-SHEPPARD VENDORS OF AMERICA, et al., Appellants,v.Caspar W. WEINBERGER, et al., Appellees.NATIONAL COUNCIL OF STATE AGENCIES FOR THE BLIND, et al., Appellants,v.Caspar W. WEINBERGER, et al., Appellees.
Nos. 85-5149, 85-5150.
United States Court of Appeals,District of Columbia Circuit.
Argued Jan. 22, 1986.Decided June 13, 1986.As Amended July 30, 1986.
1
Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-3211, 84-3489).
2
Robert R. Humphreys, Clinton, Ky., for appellants.
3
Joseph E. DiGenova, U.S.Atty., with whom Royce C. Lamberth, R. Craig Lawrence, and Rebecca L. Ross, Asst. U.S. Attys., Washington, D.C., were on brief, for federal appellees.
4
Stephen N. Shulman, with whom Barry S. Spector and E. Charles Rowan, Jr., Washington, D.C., were on brief, for appellee, McDonald's Corp.
5
Morgan D. Hodgson with whom Frank B. Stilwell III, Washington, D.C., was on brief, for amici curiae Association for the Education and Rehabilitation of the Blind and Visually Impaired and the Affiliated Leadership League of and for the Blind of America.
6
William C. Gleisner, III, with whom David L. Nichols and David E. Sunby, Milwaukee, Wis., were on brief, for amicus curiae National Federation of the Blind.
7
Before MIKVA and BORK, Circuit Judges, and OBERDORFER, District Judge.*
8
Opinion for the Court filed by District Judge OBERDORFER.
OBERDORFER, District Judge:
9
This appeal involves the proper interpretation of the Randolph-Sheppard Act (the Act), 20 U.S.C. Secs. 107-107f (1982), which requires that blind persons licensed by state agencies be given priority to operate vending facilities on federal property. Some of the appellants are organizations which represent blind vendors. Specifically these organizations are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc. Another appellant is the National Council of State Agencies for the Blind (National Council). In contrast to the associations with blind vendors as members, the National Council's membership consists of state agencies which license blind vendors to operate facilities on federal property. Finally, there are two individual appellants. These individuals are Paul Verner, a blind vendor and the President of Randolph-Sheppard Vendors of America, and Jennings Randolph, a retired United States Senator and the primary sponsor of the Act.1 Appellants challenge two contracts awarded by the Secretary of Defense on the grounds that they were not made in accordance with the provisions of the Act. The first contract is to Burger King Corporation (Burger King) for the construction and operation of fast-food facilities on Army and Air Force bases. The second involves a similar contract award to McDonald's Corporation (McDonald's) for fast-food service on Naval bases. The challenges were originally separate actions, which were later consolidated by the District Court. Appellants brought suit against the Secretary of Defense, the Secretaries of the Army and Air Force, and certain Army and Air Force officials regarding the award of the Burger King contract, and against the Secretary of Defense, the Secretary of the Navy, and other Navy officials, regarding the award of the McDonald's contract. The Justice Department, acting as a neutral arbiter to resolve the differing stances of the Departments of Education and Defense, adopted the position of the Defense Department and opposed the complaints in the District Court and represents these individual appellees in this appeal.2 McDonald's was a defendant-intervenor in the District Court. It has filed a brief as appellee in this appeal.
10
Appellants appeal from the Memorandum Opinion and Order of the United States District Court for the District of Columbia, which granted summary judgment to defendants. Randolph-Sheppard Vendors of America v. Weinberger, 602 F.Supp. 1007 (D.D.C.1985) (Parker, J.). As to jurisdictional and jurisprudential concerns raised by the government, the District Court found that the associational plaintiffs with blind vendors,3 or state licensing agencies,4 as members had standing to bring the action, and that these plaintiffs were not required to pursue and exhaust their administrative remedies under the Act. Reaching the merits, the District Court granted summary judgment to defendants, concluding that:
11
[w]hile the Defense Department's apparent insensitivity to the plight of the blind vendors is deplored and there remain troublesome and vexing questions as to whether or not the Department has complied with the spirit of the law, the Court finds that the procurements complied with the minimum requirements of the letter of the Randolph-Sheppard Act.
12
602 F.Supp. at 1009.
13
For the reasons discussed below, we do not reach the merits because we conclude that while appellants had standing to sue, they failed to pursue and exhaust the mandatory administrative remedies. Accordingly, we vacate the judgment below and remand the case to the District Court with instructions to dismiss the action.
I.
A.
14
The Randolph-Sheppard Act was first enacted in 1936, and was amended twice, in 1954 and 1974. The purpose of the Act is to provide employment opportunities on federal property to blind vendors. S.Rep. No. 937, 93d Cong., 2d Sess. 5 (Sen. Report) (1974). The Act delegates to the Secretary of Education responsibility for interpreting and enforcing its provisions. The Commissioner of the Rehabilitative Services Administration, a subdivision of the Department of Education, is responsible for overseeing the detailed operation of the program. Id. at 3. The Act gives the Secretary responsibility for promulgating regulations to implement the Act. 20 U.S.C. Sec. 107(b). Specifically, the Act directs the Secretary to prescribe regulations to assure that:
15
(1) priority ... is given to ... licensed blind persons ..., and
16
(2) wherever feasible, one or more [blind] vending facilities are established on all Federal property to the extent that any such facility or facilities would not adversely affect the interests of the United States.
17
20 U.S.C. Sec. 107(b)(2).
18
The Secretary also administers the two-tiered system whereby blind vendors may apply to operate a vending facility on Federal property. Under this system, the Secretary designates state licensing agencies. The state licensing agencies then license blind vendors. 20 U.S.C. Sec. 107a(a)(5); 34 C.F.R. Sec. 395.7. State licensing agencies apply to federal agencies for permits to establish sites for their licensed blind vendors on federal property. 20 U.S.C. Sec. 107a(c); 34 C.F.R. Secs. 395.16, 395.35.
19
A dispute resolution system established by the Act is similarly two-tiered, and operates under the auspices of the Secretary. This system provides, as to blind vendors and state licensing agencies, respectively:
20
Any blind licensee who is dissatisfied with any action arising from the operation or administration of the vending facility program may submit to a State licensing agency a request for a full evidentiary hearing, ... If such blind licensee is dissatisfied with any action taken or decision rendered as a result of such hearing, he may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute ..., and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter.
21
....
22
Whenever any State licensing agency determines that any department, agency, or instrumentality of the United States that has control of the maintenance, operation, and protection of Federal property is failing to comply with the provisions of this chapter or any regulations issued thereunder (including a limitation on the placement or operation of a vending facility ... and the Secretary's determination thereon) such licensing agency may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute ..., and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter.
23
20 U.S.C. Sec. 107d-1(a), (b). State licensing agencies thus have responsibility for enforcing the substantive provisions of the Act. The Secretary's responsibility is then to oversee arbitration which interprets and applies the Act and the regulations promulgated thereunder. Specifically, it is the Secretary's responsibility upon the filing of a complaint by a blind vendor or state licensing agency to:
24
convene an ad hoc arbitration panel ... [which] shall ... give notice, conduct a hearing, and | {
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[Cite as Millstein v. Millstein, 2018-Ohio-2295.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106481
NORMAN MILLSTEIN
PLAINTIFF-APPELLANT
vs.
KEVAN MILLSTEIN, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-17-883760
BEFORE: E.A. Gallagher, A.J., Boyle, J., Laster Mays, J.
RELEASED AND JOURNALIZED: June 14, 2018
ATTORNEYS FOR APPELLANT
Terry M. Brennan
Kendall C. Kash
Daniel R. Lemon
Kevin G. Robertson
Baker & Hostetler L.L.P.
Key Tower
127 Public Square, Suite 2000
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEES
Damond R. Mace
Steven A. Friedman
Squire, Patton Boggs (US) L.L.P
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114
Fred N. Carmen
27800 Cedar Road
Beachwood, Ohio 44122
EILEEN A. GALLAGHER, A.J.:
{¶1} Plaintiff-appellant Norman Millstein appeals the decision of the Cuyahoga County
Court of Common Pleas wherein his petition for declaratory and equitable relief pursuant to
Civ.R. 12 was dismissed. We affirm.
Facts and Procedural Background
{¶2} On July 28, 2017, appellant filed a petition for declaratory and equitable relief in the
Cuyahoga County Court of Common Pleas. Appellant’s petition states that he is the grantor of
two irrevocable trust agreements established for the benefit of his children: the “Al-Jo” trust
created on December 29, 1987, and the “Kevan Millstein” trust created May 2, 1988. Appellant
did not attach the trust documents to his complaint.
{¶3} Appellant alleged that defendant-appellee Kevan Millstein (hereinafter “Kevan”) is
the sole trustee of the trusts and one of the beneficiaries of the Kevan Millstein trust. Appellant
alleged that under federal income tax law, the two trusts were designed so appellant would
personally report the federal taxable income, deductions and credits realized from the
investments of trusts under the “grantor trust” rules of the Internal Revenue Code sections 671 et
seq. Although appellant is responsible for reporting any net taxable income associated with the
trusts, he retained no rights as a beneficiary of the trusts.
{¶4} Norman alleged that, in 2010, he requested that Kevan provide him reimbursement
from the trusts for “substantial income taxes” owed by him due to the taxable income generated
by the trusts. Kevan declined but reached an agreement whereby the assets of a third, unrelated
trust were used to defray appellant’s personal income tax liabilities.
{¶5} In 2013, Kevan informed appellant that the third trust no longer had liquid assets
available to defray appellant’s income tax liabilities resulting from the trusts at issue in this case.
Appellant alleged that Kevan took steps with respect to the Kevan Millstein trust such that
appellant would no longer be taxed on the income attributable to the investments of that trust
beginning in 2014. No alteration was made to the “Al-Jo” trust.
{¶6} Appellant alleged that, as a result of his tax obligations under the terms of these
irrevocable trusts, he paid federal and state income taxes of $5,225,837 for the “Kevan Millstein”
trust in 2013 and $1,261,068 for the “Al-Jo” trust for the tax years of 2013, 2014 and 2015.
Appellant remains liable for future income taxes arising from the “Al-Jo” trust.
{¶7} Appellant’s petition sought “equitable reimbursement of income taxes” from the two
trusts as well as a “virtual representation” finding of the relevant beneficiaries of the two trusts
for the purpose of effectuating such reimbursement.
{¶8} Kevan and the trust beneficiaries named as defendants in appellant’s petition moved
for the petition to be dismissed pursuant to Civ.R. 12, arguing that 1) appellant lacked standing to
request that the trusts make any payment to him, 2) that there is no cognizable claim in Ohio for
equitable reimbursement to a grantor for tax liability incurred under the terms of a trust the
grantor created, 3) appellant’s claim was inequitable and 4) appellant’s petition was barred by
collateral estoppel.1 The trial court granted the motions to dismiss on October 18, 2017,
without opinion.
Law and Analysis
{¶9} In his sole assignment of error, appellant argues that the trial court erred in
dismissing his petition for equitable relief pursuant to Civ.R. 12.
1
We note that appellees attached exhibits to their motions to dismiss that were inappropriate for a motion
to dismiss under Civ.R. 12(B)(6) and could only have been considered had the trial court converted the motion into a
motion for summary judgment. Similarly, appellees advanced arguments in their motion that exceeded the scope of
Civ.R. 12(B)(6).
I. Civ.R. 12
{¶10} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim tests the sufficiency
of the complaint. N. Point Properties v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996, 901
N.E.2d 869, ¶ 11 (8th Dist.). A lower court’s determination that a plaintiff can prove no set of
facts that would entitle the plaintiff to relief is reviewed de novo, requiring the appellate court to
undertake an independent analysis without deference to the lower court’s decision. Perrysburg
Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5; Hendrickson v.
Haven Place, Inc., 8th Dist. Cuyahoga No. 100816, 2014-Ohio-3726, ¶ 12.
{¶11} In deciding whether a complaint should be dismissed pursuant to Civ.R. 12(B)(6),
the court’s review is limited to the four corners of the complaint along with any documents
properly attached to, or incorporated within, the complaint. High St. Properties v. Cleveland,
8th Dist. Cuyahoga No. 101585, 2015-Ohio-1451, ¶ 17, citing Glazer v. Chase Home Fin.
L.L.C., 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 38. The court must accept
as true all the material factual allegations of the complaint and construe all reasonable inferences
to be drawn from those facts in favor of the nonmoving party. Brown v. Carlton
Harley-Davidson, Inc., 8th Dist. Cuyahoga No. 99761, 2013-Ohio-4047, ¶ 12, citing Garofalo v.
Chicago Title Ins. Co., 104 Ohio App.3d 95, 104, 661 N.E.2d 218 (8th Dist.1995). To prevail on
a Civ.R. 12(B)(6) motion, it must appear beyond doubt from the complaint that the plaintiff can
prove no set of facts entitling the plaintiff to relief. O’Brien v. Univ. Comm. Tenants Union, Inc.,
42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. If there is “a set of facts, consistent with the
plaintiff’s complaint, which would allow the plaintiff to recover, the court may not grant a
defendant’s motion to dismiss.”High St. Properties at ¶ 16, quoting York v. Ohio State Hwy.
Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). Thus, a dismissal under Civ.R.
12(B)(6) “is reserved for the rare case that cannot possibly succeed.” Tri-State Computer
Exchange, Inc. v. Burt, 1st Dist. Hamilton No. C-020345, 2003-Ohio-3197, ¶ 12.
II. Appellant’s Claim for Reimbursement is Disallowed Under The Ohio Trust Code
{¶12} We find that the trial court correctly dismissed appellant’s petition for failure to
state a claim | {
"pile_set_name": "FreeLaw"
} |
#28448-a-SLZ
2018 S.D. 70
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
NATHAN D. CHASE, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE MATTHEW M. BROWN
Judge
****
MARTY J. JACKLEY
Attorney General
MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ELLERY GREY
Grey & Eisenbraun Law Attorneys for defendant
Rapid City, South Dakota and appellant.
****
CONSIDERED ON BRIEFS ON
AUGUST 27, 2018
OPINION FILED 10/03/18
#28448
ZINTER, Justice
[¶1.] Nathan Chase was convicted of second-degree murder. He appeals the
circuit court’s denial of his motion to suppress evidence obtained as a result of an
investigatory stop. We affirm.
Facts and Procedural History
[¶2.] On January 23, 2017, at about 7:50 p.m., law enforcement responded
to a call from a Rapid City motel regarding an assault. Officers discovered the body
of Jeremy Little in the entrance to one of the motel rooms. He had been fatally
stabbed in the face and neck, and there was substantial blood at the scene. Captain
Tony Harrison of the Pennington County Sheriff’s Office reviewed security footage
of the hallway outside the room in which Little was found. He observed six people
entering and leaving the room that night. Five of the individuals were identified
and excluded as suspects. The sixth, an unidentified man, became the murder
suspect. From the footage, Harrison observed that the suspect was a male of
average weight and height wearing a black stocking cap, dark pants, dark shoes,
and a tan Carhartt jacket over a black hooded sweatshirt.
[¶3.] After completing the initial investigation around 2:00 a.m., Harrison
returned to the motel to search nearby dumpsters for the murder weapon. At about
3:15 a.m., he observed a man walking on the sidewalk about two blocks from the
motel. Harrison believed the man resembled the suspect from the security footage
based on height and weight. Harrison also noticed he was wearing a tan Carhartt
jacket similar to the coat worn by the suspect. Yet, in contrast, the pedestrian wore
his jacket over a white hooded sweatshirt rather than a black one. Additionally, his
-1-
#28448
shoes were white rather than dark, and he had on different colored pants than those
worn by the suspect in the security footage. It was a cold evening and no one else
was moving on the streets.
[¶4.] Based on the man’s similar appearance—primarily his build and the
Carhartt jacket—and his proximity to the crime scene, Harrison decided to
investigate. He activated his emergency lights and stopped his unmarked vehicle
next to the man, later identified as Nathan Chase. Harrison exited the car,
introduced himself as a law enforcement officer, and informed Chase that he
wanted to ask about an “event” at the motel. Chase agreed to a search of his
person, and Harrison found a bloody knife in Chase’s pocket. Chase was taken into
custody and questioned. The blood on the knife was later matched to Little’s DNA.
[¶5.] Chase was indicted for second-degree murder. Prior to trial, he moved
to suppress the evidence obtained as a result of the stop. The circuit court denied
the motion, ruling that Harrison had reasonable suspicion to initiate the
investigatory stop. A jury found Chase guilty. He appeals the circuit court’s
decision. He does not challenge the circuit court’s findings of fact. He only
challenges the court’s legal conclusion that Harrison had reasonable suspicion for
the stop.
Decision
[¶6.] “The Fourth Amendment of the United States Constitution and Article
VI, § 11 of the South Dakota Constitution protect individuals from unreasonable
-2-
#28448
searches and seizures.”1 State v. Walter, 2015 S.D. 37, ¶ 7, 864 N.W.2d 779, 782.
Although it is preferable for law enforcement to obtain a warrant before conducting
a search or seizure, a warrant is not necessary for less invasive intrusions, such as
an investigatory stop. Id. (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879,
20 L. Ed. 2d 889 (1968)). “[W]hen a person is subject to an ‘investigative detention’
rather than a full-blown custodial arrest, the officer need only have reasonable
suspicion for the detention rather than the probable cause typically required.” Id.
(quoting State v. De La Rosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 686). That is
because “[a] brief stop of a suspicious individual, in order to determine his identity
or to maintain the status quo momentarily while obtaining more information, may
be most reasonable in light of the facts known to the officer at the time.” State v.
Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d 669, 675 (quoting Adams v. Williams,
407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972)). Thus, “if police
have a reasonable suspicion, grounded in specific and articulable facts, that a
person they encounter was involved in or is wanted in connection with a completed
felony, then a Terry stop may be made to investigate that suspicion.” United States
v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604 (1985). The
question whether an officer has reasonable suspicion is viewed under the totality of
the circumstances. Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d at 675.
[¶7.] Chase argues Harrison only had a “sixth sense” about Chase being the
perpetrator. He contends Harrison’s testimony at the suppression hearing confirms
1. The State does not dispute that the stop was a “seizure” within the meaning
of the Fourth Amendment. See U.S. Const. amend IV.
-3-
#28448
the stop was based on a mere “hunch.” However, Harrison’s testimony shows he
relied on his twenty years of experience as a law enforcement officer in determining
whether to stop an individual based upon all the information known to him at the
time. It is well settled that law enforcement “officers [may] draw on their own
experience and specialized training to make inferences from and deductions about
the cumulative information available to them that ‘might well elude an untrained
person.’” State v. Mohr, 2013 S.D. 94, ¶ 16, 841 N.W.2d 440, 445 (quoting State v.
Haar, 2009 S.D. 79, ¶ 23, 772 N.W.2d 157, 167).
[¶8.] Moreover, “[a]lthough a mere ‘hunch’ does not create reasonable
suspicion, the level of suspicion the standard requires is ‘considerably less than
proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is
necessary for probable cause.” Navarette v. California, 572 U.S. 393, 397, 134 S. Ct.
1683, 1687, 188 L. Ed. 2d 680 (2014) (first quoting Terry, 392 U.S. at 27, 88 S. Ct. at
1883; then quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585,
104 L. Ed. 2d 1 (1989)). Here, Harrison’s suspicion was not grounded on a mere
hunch. He identified specific and articulable facts supporting his decision to stop
Harrison.
[¶9.] Chase next argues that even if the stop was not based on a mere
hunch, Harrison’s articulated facts did not support the quantum of suspicion
necessary to initiate an investigatory stop. He contends Harrison’s information was
stale | {
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} |
538 F.2d 897
Daytona Motel Corp.v.Central States, Southeast and Southwest Areas Pension Fund*#
No. 76-2134
United States Court of Appeals, Fifth Circuit
8/24/76
1
M.D.Fla.
2
AFFIRMED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
# Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.
***
Opinion contains citation(s) or special notations
| {
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957 F.2d 1467
140 L.R.R.M. (BNA) 2078, 121 Lab.Cas. P 10,069
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.AUGUSTA BAKERY CORPORATION, Respondent.
No. 90-2140.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 1, 1991.Decided March 24, 1992.
Charles P. Donnelly, Jr., Washington, D.C., Elizabeth Kinney, Chicago, Ill., Aileen A. Armstrong, Frederick Havard (argued), William A. Baudler, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner.
A. Eric Arnold (argued), Zion, Ill., for respondent.
Before CUDAHY and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FLAUM, Circuit Judge.
1
The National Labor Relations Board (Board) seeks enforcement of an order against Augusta Bakery Corporation (Augusta). We grant enforcement.
I.
2
We briefly set forth the undisputed facts before turning to our review of the Board's determination. Augusta is a family-owned bakery located in Chicago. During the relevant time period, its production employees were represented by Local Union No. 1, Bakery, Confectionary and Tobacco Workers' International Union of America (Union). On November 20, 1985, after efforts to reach a new bargaining agreement proved unsuccessful (the previous agreement had expired on May 31, 1985), the employees initiated an economic strike against Augusta. Using replacement employees, Augusta continued operating during the strike.
3
On March 17, 1986, Augusta's counsel, Kathy Arnold, sent notice to the Union that Augusta planned to withdraw recognition because a majority of its employees had signed a letter stating that they no longer desired Union representation.1 On March 24, the Union--through its counsel, Jacob Pomeranz--sent two letters to Augusta: the first identified 12 striking employees and stated that "said employees and the Union are offering unconditionally to immediately return to work"; the second demanded that Augusta "return to negotiations immediately so as to reach agreement on a collective-bargaining contract," and questioned Augusta's good faith doubt regarding the Union's majority status. The letters were sent by overnight courier and delivered together to Arnold at her home on March 25.
4
Two days later, on March 27, Arnold sent letters to the Union and to each of the dozen bakers. The letter to the Union expressed doubt over whether the offers to return were, indeed, "unconditional," given that the other letter sent on the same date demanded a return to the bargaining table, and outlined Augusta's views of the reinstatement rights of the dozen employees involved. Only one could be immediately reinstated. As to the others, Augusta asserted that two had engaged in strike misconduct; three had abandoned their employment by applying for and/or receiving pension benefits; and six had been permanently replaced. Augusta stated that no positions were available, and that the names of the six who had been replaced would be put on a preferential hiring list. The letters to the individual strikers apprised them of their status with the company.
5
The Board, upholding the determination of the Administrative Law Judge (ALJ), held that Augusta had violated § 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (3), by refusing to reinstate 11 of the 12 striking employees subsequent to the March 24 offer to return, which the Board found to be unconditional. The Board's order requires, among other things, that Augusta offer the 11 employees immediate and full reinstatement, with back pay.2
II.
6
We have jurisdiction to consider the Board's petition for enforcement pursuant to 29 U.S.C. § 160(e), which also governs our standard of review. We must uphold the Board's determination if its factual findings are supported by substantial evidence in the record as a whole and its legal conclusions have a reasonable basis in the law. Id.; Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Substantial evidence in this context means "such relevant evidence as a reasonable mind might accept as adequate to support" the Board's determination. Roadmaster Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir.1989) (quoting Universal Camera, 340 U.S. at 477, 71 S.Ct. at 459). This standard of review is well established; it "does not allow us to dabble in factfinding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo." NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991); see also NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir.1991) (Board's application of the law to particular facts also reviewed under substantial evidence standard), petition for cert. filed (Dec. 23, 1991).
7
The standard "is not modified in any way when the Board and the ALJ disagree as to legal issues or derivative inferences made from the testimony." Weather Shield Mfg., Inc., Millwork Div. v. NLRB, 890 F.2d 52, 57 (7th Cir.1989). It is the independent validity of the Board's order that is under review. Id. The scope of our review is narrow; we "must uphold the legal conclusions of the Board unless they are irrational or inconsistent with the National Labor Relations Act." Aqua-Chem, Inc., Cleaver-Brooks Div. v. NLRB, 910 F.2d 1487, 1490 (7th Cir.1990) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991). Additionally, we may not disturb the Board's remedial order "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964) (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)).
8
We have expounded upon the standard of review in some detail, for this is a case in which we must keep in mind, as we previously have acknowledged, that "[t]he faithful application of these principles requires a great deal of judicial restraint." U.S. Marine, 944 F.2d at 1314.
III.
9
It is well settled that economic strikers retain their status as employees under the Act, and are entitled to full reinstatement at the conclusion of the strike. 29 U.S.C. § 152(3); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 545, 19 L.Ed.2d 614 (1967). An employer may not retaliate against striking employees by refusing to reinstate them upon their unconditional offers to return to work; such retaliation would discourage employees from exercising their guaranteed rights to organize and strike. Fleetwood Trailer, 389 U.S. at 378, 88 S.Ct. at 546. Accordingly, an employer must reinstate the returning strikers to their former positions unless the employer can show that its action was due to "legitimate and substantial business justifications," in which case it may refuse to reinstate the economic strikers. Id. (quoting NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967)).
A.
10
We first consider whether the offer to return was unconditional. The Board adopted the ALJ's determination that the two letters the Union sent to Arnold on March 24 were unrelated, and that one contained an unconditional offer to return to work. The Board's finding of an unconditional offer is a predominently factual determination, which we must uphold if supported by substantial evidence. Augusta bears the burden of showing that the offer to return was not unconditional. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1107 (1st Cir.1981); NLRB v. Okla-Inn, 488 F.2d 498, 505 (10th Cir.1973).
11
In support of its claim that the offer was conditional, Augusta cites International Union, Allied Industrial | {
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FILED
NOT FOR PUBLICATION MAR 14 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO GALLARDO-DAVILA, No. 15-73096
Petitioner, Agency No. A087-756-343
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Sergio Gallardo-Davila, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
questions of law, and review for abuse of discretion the denial of a motion to
remand. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1061-62 (9th Cir. 2008). We
deny in part and dismiss in part the petition for review.
Contrary to Gallardo-Davila’s contention, the BIA used the proper “future-
oriented” standard in conducting its hardship determination. See Figueroa v.
Mukasey, 543 F.3d 487, 497-98 (9th Cir. 2008). We also reject Gallardo-Davila’s
contention that the BIA engaged in improper factfinding as unsupported by the
record.
Because the BIA conducted a de novo review of the hardship determination,
we do not consider Gallardo-Davila’s challenges to the IJ’s hardship
determination. See Romero-Ruiz at 1061 (“Where the BIA conducts an
independent review of the IJ’s findings, we review the BIA’s decision and not that
of the IJ.”).
The BIA did not abuse its discretion in declining to remand based on
ineffective assistance of counsel, where Gallardo-Davila failed to establish
prejudice from his prior attorneys’ alleged ineffective assistance. See Mohammed
v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005) (to prevail on an ineffective
assistance claim, a petitioner must show prejudice).
2 15-73096
Nor did the BIA abuse its discretion in declining to remand to allow
Gallardo-Davila to apply for asylum and related relief, where he failed to show that
his new evidence would likely change the result of his case. See Shin v. Mukasey,
547 F.3d 1019, 1025 (9th Cir. 2008).
We lack jurisdiction to consider Gallardo-Davila’s unexhausted contention
that he was denied a fair hearing. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th
Cir. 2010).
We do not consider the new evidence referenced in Gallardo-Davila’s
opening brief. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to the
administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010).
Gallardo-Davila’s request for referral to the court’s mediation program is
denied, and to the extent Gallardo-Davila contends his case warrants a favorable
exercise of prosecutorial discretion, we lack jurisdiction to consider this
contention. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012).
In light of this disposition, we do not reach Gallardo-Davila’s remaining
contentions regarding his prior counsels’ alleged lack of competence or the
applicability of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 15-73096
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775 So.2d 11 (2000)
Dr. Allen J. ELLENDER, Jr., et al.
v.
GOLDKING PRODUCTION COMPANY and Denovo Oil & Gas Company.
No. 99CA0069.
Court of Appeal of Louisiana, First Circuit.
June 23, 2000.
Rehearing Denied August 15, 2000.
Writ Denied February 16, 2001.
*13 Virgil A. Lacy, III, Metairie, James M. Funderburk, Houma, Counsel for Plaintiffs/Appellants, Allen Ellender, et al.
Richard F. Zimmerman, Jr., Baton Rouge, Counsel for Defendant/Appellee, Olin Corp.
Matthew J. Randazzo, III, New Orleans, Counsel for Defendant/Appellee, Concise Oil & Gas.
Bruce Schewe, New Orleans, Counsel for Defendant/Appellee, G S Oil & Gas Co.
John Y. Pearce, New Orleans, Counsel for Defendant/Appellee, DeNovo Oil & Gas.
James M. White, III, New Orleans, T. Brooke Farnsworth, Houston, TX, Counsel for Defendant/Appellee, Austral Exploration.
Scott A. O'Connor, New Orleans, Counsel for Defendant/Appellee, Goldking Oil & Gas.
B. Richard Moore, Jr., New Orleans, Counsel for Defendant/Appellee, La. Intrastate Gas Co.
Before: LeBLANC and FOIL, JJ., and KLINE[1], J. Pro Tem.
LeBLANC, J.
The issues before us in this appeal are whether the lower court erred as a matter of law in applying the three year prescriptive period of La. C.C. art. 3494(5) and whether the defense of contra non valentem is available to plaintiffs to defeat defendants' plea of prescription.
FACTS AND PROCEDURAL HISTORY
The procedural history of this matter is lengthy and complex, involving eight supplemental and amending petitions by plaintiffs, numerous orders for substitution of parties plaintiff, the naming and dismissal of multiple defendants, and the filing of copious motions and exceptions. We will limit our discussion of the facts to those deemed essential to the issues raised in this appeal.
In the 1970s, landowners[2] of property located in the area of Terrebonne Parish known as the Montegut Field negotiated mineral leases for oil and gas exploration and production with various oil producers.[3] Pursuant to the mineral leases, the landowners were due royalty payments on any minerals produced. Gas produced from the Montegut Field was sold under contracts to Louisiana Intrastate Gas Corporation (LIG). In 1983, the contract price to be paid for gas purchased was renegotiated by LIG. LIG was obligated to pay to the defendant-producers "the best price" for the gas it purchased.
The landowners brought suit. In their fifth petition they allege that the defendant-producers allowed LIG to "pay a price for gas ... less than the highest price being paid by LIG in other fields in Terrebonne Parish" and "failed to act prudently in the operation of the Subject Leases". Plaintiffs sought royalties, damages, interest, monetary relief and attorney fees.
Several named defendants filed a motion for summary judgment, arguing the three year prescriptive period set forth in La. C.C. art. 3494(5) governed plaintiffs' *14 claims. In response, plaintiffs asserted this is a breach of contract case subject to the ten year prescriptive period of La. C.C. art. 3499. Plaintiffs claimed their damage is from the breach of the implied obligation to prudently market and sell the gas produced, although admittedly measured as the difference in the amount of royalty paid and the amount of royalty that would have been due if the gas had been prudently marketed. Alternately, plaintiffs urged the application of the doctrine of contra non valentem agere nulla currit praescriptio.
The district court granted defendants' motion for summary judgment, holding that the claims by plaintiffs were claims for underpaid royalties, governed by article 3494(5), and that the running of prescription was not suspended under the doctrine of contra non valentem.[4] Plaintiffs appeal, and two named defendants have answered plaintiffs' appeal.
I.
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966; Rambo v. Walker, 96-2538, p. 4-5 (La.App. 1 Cir. 11/7/97), 704 So.2d 30, 32.
The burden is on the mover first to show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Only after the mover has met this initial burden may summary judgment be rendered against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim. La. C.C.P. art. 966 B and C. Once a party seeking a summary judgment properly supports the motion and carries his burden of proof, the law requires the non-moving party who opposes the motion for summary judgment to submit evidence showing the existence of specific facts establishing a genuine issue of material fact, effectively shifting the burden of proof to the non-moving party. The non-moving party is no longer allowed to rely on the allegations of its pleadings in opposition to a properly supported motion for summary judgment. Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-92, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991.
Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Rambo, 96-2538 at 5, 704 So.2d at 32-33.
II.
Louisiana Civil Code article 3494(5) provides: "The following actions are subject to a liberative prescription of three years: ... An action to recover underpayments or overpayments of royalties from the production of minerals...." However, article 3499 provides: "Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years." If plaintiffs' claims are for royalties, the controlling prescriptive period is three years; if the claims are for damages relative to a breach of contract, plaintiffs' claims do not prescribe for ten years.
*15 In order to determine whether a claim is one for royalties, the court must look to the petition. Wilson v. Palmer Petroleum, Inc., 97-2386, p. 5 (La.App. 1 Cir. 11/26/97), 706 So.2d 142, 145, writ denied, 97-3204 (La.3/13/98), 712 So.2d 879. Plaintiffs quote extensively in brief to this court from their Fifth Supplemental, Amended and Restated Petition, wherein they assert:
[Defendants] failed to seek and receive from LIG prices in the ..... Montegut Field which were at least as high as the highest price paid by LIG in any other field in Terrebonne Parish ... and [defendants] failed to act prudently in the operation of the Subject Leases ....
The [defendants] acted in their own self-interest, despite the expressed and implied terms of the Subject Leases and the obligations imposed by the Louisiana Mineral Code. Moreover, the [defendants] acted imprudently and failed to administer the Subject Lease ... by their total and complete abandonment of the marketing duties imposed on them by the Subject Leases and the Louisiana Mineral Code.
* * *
...[T]hus, the [defendants'] actions constitute breaches of their obligations under the Subject Leases and ... the Louisiana Mineral Code.
Article 122 of the Louisiana Mineral Code, found at La. R.S. 31:122, provides:
A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.
The Comments contain the following narration:
In Louisiana, the general obligation to act as a "good administrator" or "prudent operator" has been clearly specified in four situations: (1) the obligation to develop known mineral producing formations in the manner of a reasonable, prudent operator; (2) the obligation to explore and test all portions of the leased premises after discovery of minerals in paying quantities in the manner of a reasonable, prudent operator; (3) the obligation to protect the leased property against drainage by wells located on neighboring property in the manner of a reasonable, prudent operator; and (4) the obligation to produce and market minerals discovered and capable of production in paying quantities in the manner of a reasonable, prudent operator. | {
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Court of Appeals
of the State of Georgia
ATLANTA, March 16, 2017
The Court of Appeals hereby passes the following order
A17I0166. UNITED DEVELOPMENT JONESBORO ROAD, LLC v. JANICE JEROME.
Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
2015CV01850
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, March 16, 2017.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
| {
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 09 2020, 10:54 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John M. Ross, April 9, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1725
v. Appeal from the Ohio Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
58C01-1802-F2-2
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 1 of 4
Statement of the Case
[1] John M. Ross appeals the trial court’s calculation of his credit time after Ross
pleaded guilty to conspiracy to dealing in methamphetamine, as a Level 4
felony; possession of methamphetamine, as a Level 5 felony; and to being a
habitual offender. We affirm.
Facts and Procedural History
[2] On May 16, 2019, Ross entered into a plea agreement with the State in which
Ross agreed to plead guilty to conspiracy to dealing in methamphetamine, as a
Level 4 felony; possession of methamphetamine, as a Level 5 felony; and to
being a habitual offender. Pursuant to the plea agreement, Ross was entitled to
“receive credit for time served as well as good time for the same.” Appellant’s
App. Vol. 3 at 138. He also “waive[d] the right to appeal any sentence
imposed . . . so long as the Court sentences [him] within the terms of this plea
agreement.” Id.
[3] At his ensuing sentencing hearing, the court noted that the Presentence
Investigation Report (“PSI”) stated: “The Defendant has been serving a
Probation Violation sentence” in another cause number, although the violation,
which Ross admitted, was based on the instant offenses, and Ross was “entitled
to [zero] days” of credit “on his current cause.” Id. at 96. Ross responded that,
because his agreement stated that he “shall receive credit for time served, as
well as good time for the same,” even though “these matters must run
consecutively, by operation of law, . . . it would be appropriate for [Ross] to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 2 of 4
receive credit for the time he was in jail on both this case and the probation
violation . . . .” Tr. Vol. 2 at 19-20. The court asked Ross’s counsel, “So, is
your client asking for double credit?” Id. at 20. Ross’s counsel responded,
“Yes.” Id. Thereafter, the trial court sentenced Ross with zero days credit
time. This appeal ensued.
Discussion and Decision
[4] Ross appeals the trial court’s award of zero days of credit time. “Because credit
time is a matter of statutory right, trial courts do not have discretion in
awarding or denying such credit.” Harding v. State, 27 N.E.3d 330, 331-32 (Ind.
Ct. App. 2015). However, it is the appellant’s burden to show that the trial
court’s calculation of credit time is erroneous. Id.
[5] Ross’s entire argument on appeal is that his plea agreement unambiguously
entitled him to an award of credit time in the instant cause equivalent to the
award of credit time he received while serving his probation violation in a
separate cause. 1 We cannot agree. Ross’s plea agreement stated that he “shall
receive credit for time served as well as good time for the same.” Appellant’s
App. Vol. 3 at 138. That language unambiguously entitled him only to any
credit time he had properly accrued “for time served” on the instant cause,
which likewise required the court to consider extrinsic evidence, namely, the
1
The State asserts that Ross waived his right to appeal his sentence in his plea agreement. But Ross’s waiver
was limited to only if the court sentenced him in accordance with the terms of the plea, and his argument on
appeal is that that did not happen. As such, Ross’s argument is properly before us.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 3 of 4
PSI, to determine that time. Nothing in the plea agreement’s language entitled
Ross to a particular amount of credit time or to credit time to which he would
not otherwise have been entitled.
[6] Ross makes no argument on appeal that he was entitled by statute to receive
credit time in the instant cause in addition to the credit time attributed to his
probation violation. His only argument is that his plea agreement was intended
to require the court to double count his credit time. Again, we reject that
argument and, as such, we affirm the trial court’s calculation of Ross’s credit
time pursuant to his plea agreement.
[7] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 4 of 4
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33 So.3d 657 (2008)
EX PARTE TOMMIE LEE HAUSEY, SR.
No. CR-07-2129.
Court of Criminal Appeals of Alabama.
November 4, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Rehearing denied.
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493 F.Supp.2d 880 (2007)
Candelaria C. PONCE, as Personal Representative for the Estate of Abelino Ponce, Deceased; Able Ponce, Naomi Ponce, Individually and as Next Friend of Son, Joel Eugene Ponce, a Minor Child; Candelaria Martinez, Individually and as Next Friend of Son, Abel Rene Ponce, a Minor Child; Jose Ponce; Arthur Ponce; Juan Ponce; and Paula Gomez Ponce, Plaintiffs
v.
M/V ALTAIR, her engines, boilers, tackle, apparel, etc., in rem; and Scarlati Ventures, Inc. and B Navi Spa, in personam, Defendants.
No. C.A. G-05-539.
United States District Court, S.D. Texas, Galveston Division.
June 7, 2007.
*881 *882 Guy Lee Womack, Attorney at Law, Douglas Travis Gilman, Gilman & Allison, Houston, TX, for Plaintiffs.
*883 David R. Walker, Royston Rayzor et al, Houston, TX, for Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SAMUEL B. KENT, District Judge.
This case was tried to an advisory jury panel on October 16, 2006, with the Honorable Samuel B. Kent presiding. Having carefully considered all the trial testimony, exhibits, pleadings, credibility of each witness, the jury's recommended findings and verdict, and all post-trial submissions, particularly including the proposed findings of fact and conclusions of law from both sides, the Court hereby enters its Findings of Fact and Conclusions of Law.
I
FINDINGS OF FACT
A Nature of the Case
1. This wrongful death and survival case centers on the October 4, 2005 fatality of Mr. Abelino Ponce ("Ponce"), a 56-year-old longshoreman killed while working aboard the WV ALTAIR[1] in the Port of Houston. Mr. Ponce was operating the vessel's No. 1 cargo boom and unbeknownst to Mr. Ponce, the boom was missing a wire runner guide. The missing runner guide allowed the wire runner to excessively slacken and "catch" or snag on a make-shift "step" that had been welded to equipment underneath the boom. While standing at the winch controls, with the boom in operation, the wire runner broke free from the "step", causing it to slash across the winch operation platform, striking Ponce from behind. Ponce was thrown violently several feet in the air, landing on his head and causing fatal injuries.
2. Within 24-hours of the accident,. Plaintiffs initiated this action against the WV ALTAIR in rem alleging that the premature and untimely death of Mr. Ponce occurred as a result of vessel negligence in failing to discharge the duties prescribed under 33 U.S.C. § 905(b) consistent with standards articulated in Scindia Steam Navigation Co. v. De. Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981) and its progeny. The same day, Plaintiffs perfected arrest of the WV ALTAIR, and conducted an on-board inspection prior to releasing the vessel for departure[2] On November 28, 2005, Plaintiffs amended their pleadings to add the vessel's owner and operator, Scarlati Ventures, Inc. and B Navi SpA, respectively, as Defendants to this suit.
B. Jurisdiction and Venue
3. With the exception of Paula Gomez Ponce,[3] Plaintiffs are all Texas citizens residing within the Southern District of Texas. On the morning in question, Ponce was working as a longshoreman employed by Americargo Transport ("Americargo") on the Defendants' vessel. The WV ALTAIR, having previously called upon this District on other occasions, was docked alongside the New Terminal Warehouse facility located at 1 Wharf Street, Houston, Texas 77012, within this Court's jurisdiction. In connection with the arrest, Defendants' P & I insurer, Steamship Mutual *884 Underwriting Association (Bermuda) ("Claimant"), posted a Letter of Undertaking as security for the vessel's release. Claimant subsequently executed waivers of service and answered on behalf of Defendants herein.
4. The Court finds that this case is properly brought within its admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333, et seq. The Court further finds that it has jurisdiction over all of the parties, and that proper venue for this suit is in this District and before this Court.
C. Factual Background and Liability
1. Claims Asserted
5. Plaintiffs have brought this suit pursuant to 33 U.S.C. § 905(b) against the M/V ALTAIR, Scarlati Ventures, Inc., and B Navi SpA (collectively "Defendants") alleging Defendants are jointly and severally liable and accountable for the untimely death of Ponce by reason of negligent acts or omissions committed by the vessel, her agents, representatives or employees.
6. In their pleadings, Plaintiffs state that while Mr. Ponce was operating the cargo boom on the morning of October 4, 2005, the hoist wire running along the bottom of the boom became slack, and snagged on a "step" welded to the forward winch housing in the path of the boom's travel while being swung over the starboard side of the ship. Plaintiffs allege that the hoist wire was allowed to develop slack, deviate from its intended path along the bottom of the boom, and become snagged because the vessel's cargo gear was missing a runner guard/guide. Further, Plaintiffs argue that in watching the signalman (or the load), Mr. Ponce would not have noticed the wire runner snagging on the winch to his right, behind him, because he was required to exclusively focus on either the signalman or the load at all times.
7. Plaintiffs contend that while attempting to lift a load of cargo out from Hatch No. 2, the hoist wire became taught and sprung into Ponce standing at the controls who, unfortunately, was caught directly in the bight of the wire. Plaintiffs allege Mr. Ponce was caused to be flung some 15 to 20 feet into the air and 40 to 60 feet over to the port-side upon coming into contact with the flailing wire. Accordingly, Plaintiffs suggest the initial blows experienced by Ponce were not fatal, and that he survived a period of seconds both on the ground and in the air prior to succumbing to his injuries and, therefore, was caused to sustain certain conscious pain and suffering.
2. Evidence Reviewed and Findings
8. Abelino Ponce ["Ponce"] was born on October 27, 1946. Ponce worked on the waterfront as a longshoreman for over 30 years for various stevedore companies. Ponce was trained and had operated ships' cranes and gear on many occasions prior to his death on October 4, 2005. At the time of his death, Ponce earned approximately $30,000 per year.
9. Ponce is survived by his wife, Candelaria C. Ponce, his two adopted minor grandsons, Joel Eugene Ponce and Abel Rene Ponce, and his mother, Paula Gomez Ponce. Joel, Abel and Paula were completely dependent upon Ponce for financial support. Ponce is also survived by five adult children, Abel Ponce, Jose Ponce, Arthur Ponce, Candelaria Martinez, and Naomi Ponce, who all received limited and sporadic financial support and services from Ponce in varying amounts, with the exception of Abel Ponce.
10. On the morning of October 4, 2005, Ponce, a longshoreman employed by Americargo arrived at work approximately 35 to 40 minutes after 7:00 a.m. to commence discharging operations on board the M/V *885 ALTAIR. The M/V ALTAIR was owned by Scarlati Ventures and operated by B Novi SpA. At the time of the incident, the vessel was moored alongside the New Terminal Warehouse facility in Houston, Texas. The witness testimony and evidence indicate, and the Court agrees, that the M/V ALTAIR was an old ship, in remarkably poor condition, and not well maintained. In maritime parlance, it was a "rust bucket." Ponce was part of a 5-member longshore gang responsible for discharging a cargo of steel from the vessel's Hatch No. 2. There were three longshoremen working inside Hatch No. 2, and Ponce was operating the vessel's cargo boom. Another served as a flogger.
11. At or about 8:00 a.m., and prior to commencing cargo discharge operations, Ponce swung the cargo boom over the inshore side of the vessel to pick-up a loading tray from the dock. The controls for the cargo boom were located on the mast house of the vessel, amidships at the aft side of Hatch No. 2, so that the crane operator could see into Hatch No. 2. The cargo boom being utilized for the cargo discharge operations was located aft of the controls and Ponce. At the time of the accident, the ship was in light condition and high in the water, making it impossible for Ponce to see the loading tray on the dock and requiring Ponce to rely on a flag-man to retrieve the loading tray.
12. To aid the Court in explaining the sequence of events, the Plaintiffs created a computer animation of the incident. The Plaintiffs' liability expert, E | {
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698 F.2d 1232
Rosenkranzv.U. S. Forest Service
82-5248
UNITED STATES COURT OF APPEALS Ninth Circuit
12/17/82
1
D.Ariz.
AFFIRMED
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554 S.W.2d 935 (1977)
Judith Ellen LAMPHERE, Relator,
v.
Oswin CHRISMAN, Judge, Domestic Relations Court Number Four of Dallas County, Texas, Respondent.
No. B-6783.
Supreme Court of Texas.
July 27, 1977.
*936 Berman, Fichtner & Mitchell, Jay S. Fichtner, Toby L. Gerber, Dallas, for relator.
Laurel A. Bates, Ronald E. Massingill, Dallas, for respondent.
GREENHILL, Chief Justice.
This original mandamus proceeding arises from a controversy between Judith Lamphere and Thomas Lamphere over the custody of their seven-year old daughter, Julie Lamphere. Our respondent, the Honorable Oswin Chrisman, Judge of the Domestic Relations Court Number Four of Dallas *937 County, has denied Judith's application for a writ of habeas corpus for the return of Julie, who is living with her father. Judith thereupon instituted this action to compel Judge Chrisman to grant the writ of habeas corpus. Because we believe that Judge Chrisman's order below is in conflict with Section 14.10 of the Texas Family Code,[1] we conditionally grant the requested writ of mandamus.
In September of 1970, the Lampheres' marriage was dissolved by a judgment rendered by the Circuit Court of Saint Louis County, Missouri. The judgment awarded Judith the permanent care, custody and control of Julie; and reasonable visitation rights were given to Thomas. It is undisputed that the Missouri court had jurisdiction over the Lampheres and that the judgment of divorce and custody has never been modified.
In November of 1974, Judith and Thomas executed an agreement whereby Thomas was to have the care of Julie at his home in Dallas, Texas. Judith remained in St. Louis, but she was to have the right to custody at any time she elected, provided that Thomas was given seven-days' written notice. The agreement was terminable at the will of Judith on fifteen-days' written notice, and it expressly provided that it in no way altered the Missouri court's award of custody to Judith.
Thomas then took Julie to Dallas, and she has lived there with him until the present time. Her stay in Dallas, however, has not been uninterrupted. In the summer of 1975, she visited her mother in St. Louis for two months. Similarly, Julie lived with Judith in St. Louis for two months in the summer of 1976. Julie also spent six days with her mother in Missouri in April of 1977.
On April 19, 1977, Thomas filed suit in the Domestic Relations Court Number Four of Dallas County and sought his appointment as managing conservator of Julie. Judith was served with process in St. Louis, and she then filed a special appearance in the Texas court. She also sought a writ of habeas corpus for the return of the custody of Julie pursuant to the Missouri court decree. After a hearing, the trial court overruled Judith's plea to the jurisdiction, denied her application for the writ of habeas corpus, and appointed Thomas temporary managing conservator.
Judith then filed this action, which asks this Court to direct the trial judge to issue the writ of habeas corpus and thereby enforce the Missouri court custody decree. At the outset, we note that we have jurisdiction to mandamus the judge of a court of domestic relations. Texas Revised Civil Statutes Annotated Article 1733; McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971).
The habeas corpus procedure in child custody cases is governed by Section 14.10 of the Texas Family Code. That section provides in relevant part:
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing conservatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.
* * * * * *
We have held that the Legislature, by enacting Section 14.10, intended to change the rule that the right to possession of the child may be readjudicated in a hearing *938 on an application for a writ of habeas corpus. The general rule now is that the writ should be granted when the relator shows that he or she is entitled to custody of the child by virtue of a valid and subsisting court order. The right to possession may not be relitigated in the habeas corpus hearing; the relator is entitled to an issuance of the writ immediately on a showing of his or her right to custody. Further, mandamus is a proper remedy to compel enforcement of the relator's right to custody. McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). For these purposes, we recognize no differences between valid custody orders of our state and those of sister states beyond the distinctions set forth in the statute. See Russell v. McMurtrey, 526 S.W.2d 270 (Tex.Civ.App.1975, writ ref'd n. r. e.). Therefore, the writ of habeas corpus in this case should have been granted when Judith proved her right to custody under the Missouri court judgment, unless it was proper to relitigate the right of possession under Section 14.10(b).
Thomas argues that the trial court properly redetermined the right to possession because Judith's custody order is from Missouri and because "the child has been within the state [Texas] for at least 12 months immediately preceding the filing of the petition for the writ." Section 14.10(b)(2). We disagree. The uncontroverted evidence shows that Julie was with her mother in Missouri for two months in the summer of 1976 and for six days in the spring of 1977. These periods were within the twelve months immediately preceding the filing of the petition for the writ; so the exception of Section 14.10(b)(2) does not apply to this case. Nor does the exception of Section 14.10(b)(1) apply, because it is undisputed that the Missouri court had jurisdiction of the parties. Since neither 14.10(b) exception is applicable, the general rule of the subsection controls; and the trial court, in deciding Judith's entitlement to the writ of habeas corpus, should have disregarded Thomas' request for his appointment as managing conservator.
Thomas argues that we here apply a too literal interpretation to Section 14.10(b). He says that the subsection should be interpreted to mean that the child's residence or domicile shall have been in the State of Texas for the twelve months immediately preceding the filing of the habeas corpus application. We cannot subscribe to that view. If the Legislature had meant for residence or domicile to be determinative here, it certainly could have used those terms in phrasing Section 14.10(b)(2). Furthermore, an inquiry into a child's residence or domicile would often raise difficult questions of dubious relevance to the question of whether the foreign custody decree should be immediately enforced, especially when the parents of the child reside in different states. We prefer to apply what we perceive to be the plain meaning of the statute, and we hold that the child must be physically present within the state for the required length of time before the exception of Section 14.10(b)(2) may be invoked.
Thomas argues that it would be absurd to require the child's presence to be continuous and uninterrupted for the entire twelve-month period. We are inclined to agree that such a strict construction might lead to absurd results. We do not believe the Legislature intended that a child's mere absence from this state for a few hours or days should prevent a Texas court's redetermination of the right to possession in a habeas corpus proceeding. For example, if a child were sent to a summer camp in another state, or accompanied her father on an ordinary vacation trip in another state, such a temporary absence would not automatically terminate the time period in Texas. Counsel for Judith concedes this. On the other hand, the Legislature could have stated, had it so intended, that the child's presence should be for the principal part of the preceding twelve-month period. See, e. g., Section 11.06(b). Despite the absence of such language, we believe that the Legislature did not intend that the child's presence in Texas be continuous and uninterrupted for the entire twelve-month period. We hold that the child must be present in Texas *939 for the period specified by Section 14.10(b)(2), except for absences which are so brief as to be insignificant. This question is one of law that the court should decide in view of the facts and circumstances of the particular case.
In this case we hold that Julie's absence from Texas for two months and six days was more than an insignificant visit beyond our borders. In making this holding, we have considered the relative length of time involved; and we also deem it important that when Julie was outside of Texas, she was living with the parent who here seeks custody. The exception of Section 14.10(b)(2) therefore did not come into play, and Judith was entitled to the issuance of the writ without the relitigation of the right to possession question.
Finally, we emphasize that | {
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574 F.2d 897
17 Fair Empl.Prac.Cas. 208, 16 Empl. Prac.Dec. P 8231Rodges REDMOND, Plaintiff-Appellee,v.GAF CORPORATION, Defendant-Appellant.
No. 76-1839.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 29, 1977.Decided April 10, 1978.
Fred F. Fielding, Washington, D. C., Robert H. Joyce, Chicago, Ill., for defendant-appellant.
William Freivogel, Chicago, Ill., for plaintiff-appellee.
Before CASTLE, Senior Circuit Judge, WOOD, Circuit Judge, and ESCHBACH, Chief District Judge.*
HARLINGTON WOOD, Jr., Circuit Judge.
1
GAF Corporation appeals from the judgment entered below that its discharge of employee, Rodges Redmond, constituted religious discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(a) and 42 U.S.C. 2000e(j)).
2
The case was tried before the court without a jury in April of 1976 on Redmond's second amended complaint1 which alleged the following violations of Title VII by GAF: (a) failure to promote plaintiff because of his race; (b) compensation of plaintiff at a lower rate than other employees because of his race; (c) harassment of plaintiff in retaliation for filing discrimination charges with the Equal Employment Opportunity Commission (hereinafter EEOC); and (d) termination of plaintiff either in retaliation for bringing EEOC charges or because of his inability to work overtime on Saturdays, even though his religious practices prevented him from doing so.
3
At the close of plaintiff's case, the court found that plaintiff had made out a prima facie case of religious discrimination, but dismissed the other charges.2 After trial on this issue, the court found that the defendant had failed to show any effort to reasonably "accommodate" plaintiff's religious practices or that an accommodation effort would have caused the defendant any "inconvenience." It concluded that GAF had violated Title VII in that "said discharge discriminated against the plaintiff in the exercise of his religion and his religious practices and activities." We agree.
4
The facts of the case are briefly as follows: Redmond had been employed by GAF since 1952 and had been a member of the Jehovah's Witnesses religion since 1958. Redmond was appointed to be in charge of a Bible study class by the Elders of the church in 1959.3 This class met on Tuesday evenings until January, 1974 when it was changed by the Body of Elders to Saturday morning.4 This change resulted, for the first time in all of the many years of Redmond's employment with GAF, in a conflict between the required overtime infrequently scheduled on Saturdays5 and Redmond's religious practices. While the record is unclear as to exactly when GAF was informed of this conflict, it is clear that Redmond did not work Saturday overtime after January 1974. The record, however, does suggest both that overtime had been scheduled by GAF during this period for which Redmond had been excused, and that GAF was aware of the reason for his inability to work on Saturday.6
5
Just after an incident in July of 1974, when he was suspended for one day for failure to return for annual inventory which was held in the middle of his vacation,7 Redmond was scheduled to work overtime on Saturday. After his protest to his immediate supervisor, Hampton, proved unsuccessful, he requested a meeting for the next day with Hampton, and Svatos, the warehouse manager. Redmond testified that even though his employers were aware that he could not work on Saturday because of his "religious obligation," he was told that either he agreed to work or he would lose his job. When he told them he would not be able to work the scheduled overtime on the coming Saturday, he was terminated.
I.
6
Title VII prohibits discrimination based on "religion," 42 U.S.C. § 2000e(a) (1), but until the 1972 amendment of the act did not define the term or otherwise indicate the boundaries of the beliefs being protected. The 1972 amendment, 42 U.S.C. § 2000e(j), added the following definition: "The term 'religion' includes all aspects of religious observance and practice, as well as belief . . . ." While the words of the statute make it clear that Congress was attempting to protect both subjective belief and practices followed in carrying out such belief, the enactment does nothing to aid courts in determining the breadth of the "beliefs" and "practices" to be protected, other than to say that they must be "religious."
7
Most of the reported cases discussing "religious discrimination" under Title VII involve situations where either Sabbatarianism or a practice specifically mandated or prohibited by a tenet of the plaintiff's religion is involved.8 However, despite support which can be cited for both positions,9 we do not feel the protection of Title VII is limited to these categories.
8
First, we note that the very words of the statute ("all aspects of religious observance and practice . . . .") leave little room for such a limited interpretation. Secondly, we note that to restrict the act to those practices which are mandated or prohibited by a tenet of the religion, would involve the court in determining not only what are the tenets of a particular religion, which by itself perhaps would not be beyond the province of the court, but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion.10 We find such a judicial determination to be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953), "(I)t is no business of courts to say . . . what is a religious practice or activity . . . ."
9
The Supreme Court has never had the occasion to interpret this phrase of the 1972 amendment, but the two circuits which have considered it, the Fifth and Sixth Circuits,11 both have concluded that it is not to be given a narrow or limited interpretation. We conclude that conduct which is " religiously motivated," i. e., "all forms and aspects of religion, however eccentric . . . ." is protected. Cooper v. General Dynamics, 533 F.2d 163, 168 (5th Cir. 1976).12
10
We are thus unable to agree with the suggestion made by GAF on appeal, that because Saturday work per se is not prohibited by plaintiff's religion, that the practices in question are outside the protection of Title VII. There is no dispute that Redmond was sincere in his religious belief, having been an active participating member of the church for over 16 years. The evidence establishes that he was appointed to be a lifetime leader of the Bible study class, and had done so for many years prior to this case. The evidence showed that the time of the meeting was arranged by the elders, and that following the meeting the group, of which Redmond was the leader, did field missionary work. Redmond testified that he felt his participation in the Saturday activities was at the dictate of his elders and that they were a "religious obligation." We conclude that the practices in question are within the protection offered by § 2000e(j) to "all aspects of religious observance and practice".
II.
11
According to § 2000e(j) once the plaintiff here had established that his practice, which prevented him working Saturday overtime, was "religious" and that nonetheless it had been used as the basis for discharging him, the burden shifted to the employer to "demonstrate that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business."
12
The court below found that plaintiff had made out a prima facie case of religious discrimination. The court further found that the defendant made "no effort to accommodate plaintiff," nor had it introduced any evidence "showing or tending to show any inconvenience" which would have prevented it from accommodating plaintiff's religious practices.
A.
13
Implicit within plaintiff's prima facie case is the requirement that plaintiff inform his employer of both his religious needs and his need for an accommodation. Defendant at the time of oral argument cited certain recent cases which he states show that there is still another interim step or burden of proof which plaintiff must meet, and here failed to do, before the burden shifts under § 2000e(j) to GAF.
14
GAF cites Yott v. North American Rockwell Corp., 428 F.Supp. 763, 769 (1977), for the proposition that under § 2000e(j) "the plaintiff has the burden of proving that he has offered to the employer an accommodation which is acceptable to him (the employee)." This would require that the plaintiff not only advise his employer of his religious needs and the nature and extent of the potential or actual conflict in terms of his employment, but would also place on the plaintiff the burden of suggesting to his employer possible methods of accommodation. While we feel plaintiff should be free, even encouraged, to suggest to his employer possible ways of accommodating his religious needs, we see nothing in the statute to support the position that this is part of plaintiff's burden of proof.
15
Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. | {
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923 F.2d 858
Alexander (Donald K.)v.Hanusa (Kathy)
NO. 90-1476
United States Court of Appeals,Eighth Circuit.
OCT 11, 1990
1
Appeal From: W.D.Mo.
2
DISMISSED.
| {
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481 F.Supp. 816 (1979)
FEDERAL FOOD SERVICE, INC. and Harold E. Gelber, Plaintiffs,
v.
The Honorable Ray MARSHALL, Secretary of Labor and the Honorable Elmer B. Staats, Defendants.
No. C.A. 79-2011.
United States District Court, District of Columbia.
December 17, 1979.
*817 John S. Pachter, Washington, D.C., for plaintiffs.
Asst. U. S. Atty. Kenneth M. Raisler, Washington, D.C., for defendants.
MEMORANDUM OPINION
JOHN GARRETT PENN, District Judge.
This case comes before the Court on the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss.
I
Very briefly, the facts are as follows: The plaintiffs are in the business of furnishing mess attendant services under contracts with the United States which are subject to the Service Contract Act of 1965 (Act), as amended, 41 U.S.C. § 351, et seq. Contracts were awarded to plaintiff for furnishing mess attendant services at various locations in the United States from July 1, 1973 through June 30, 1975. Early in 1974, an investigation was conducted into the performance of plaintiffs' contract at a facility in Charleston, South Carolina. As the result of that investigation, plaintiffs paid back wages of $418 due seven employees for hours worked but not recompensed. Investigations were commenced into other contracts of the plaintiffs and additional violations of the Act were found. An administrative complaint was filed in November 1976 charging plaintiffs with violations of the minimum wage and fringe benefit requirements of the Act. Plaintiffs denied the charges and asserted the presence of "unusual circumstances" if violations were found. Eventually, the case went before an Administrative Law Judge who filed a decision on November 22, 1977, after formal hearings. His findings included a determination that plaintiffs had violated the Act in the performance of eight contracts, specifically, that in six contracts the plaintiffs failed to pay a number of employees certain vacation benefits, that in five contracts a number of employees were not paid the proper holiday benefits and that in one contract several employees were not paid the minimum wages. Two record keeping violations were also resolved against plaintiffs. The Administrative Law Judge found in favor of plaintiffs on some of the allegations.[1] He concluded that the plaintiffs had not established any "unusual circumstances" and, as a result he recommended, pursuant to 29 CFR § 6.10(b), that the Secretary of Labor (Secretary) take no action to relieve plaintiffs from the ineligible list sanction under the Act. See 41 U.S.C. § 354(a).
Plaintiffs appealed to the Administrator of the Wage and Hour Division who affirmed the findings and conclusions of the Administrative Law Judge, including the determination that there were no "unusual circumstances" and who then recommended, see 29 CFR § 7.14, to the Secretary that plaintiffs be debarred from receiving government contracts. Plaintiffs filed an application for relief from debarment, see 29 CFR § 6.12, however, the Secretary concurred with the decision below having found no unusual circumstances, and accepted the decision to debar plaintiffs. Plaintiffs' motion for rehearing was denied by the Secretary on May 15, 1979.
*818 The plaintiffs move for a preliminary injunction and argue that the action of the Secretary in refusing to remove plaintiffs' names from the ineligible list is subject to judicial review, that the debarment is contrary to past policy and procedural regulations and that the administrative findings were not supported by a preponderance of the evidence. Plaintiffs primary contention is that the Secretary should have found "unusual circumstances" and should have removed plaintiffs names from the ineligible list.[2]
Defendants argue that the case should be dismissed for failure to state a claim upon which relief can be granted. This argument is based upon defendants' contention that the decision as to what constitutes "unusual circumstances" is committed to the sole discretion of the Secretary and is thus not reviewable. In the absence of a dismissal of the action, defendants argue that plaintiffs are not entitled to injunctive relief.
II
In order to make out a case for injunctive relief, the plaintiffs must demonstrate that they have a substantial likelihood for success on the merits, that without such relief they will suffer irreparable harm, that the issuance of the injunction will not substantially harm other interested parties, and that the granting of such relief is in the public interest, or at least is not contrary to that interest. Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). The strict requirements set out in the above case have been somewhat modified by Washington Metropolitan Area Transit Commission v. Holiday Tours, 182 U.S.App. D.C. 220, 222, 559 F.2d 841, 843 (1977), which held that "[t]he necessary `level' or `degree' of possibility of success will vary according to the court's assessment of the other factors".
The petitioners have not demonstrated a strong likelihood of success on the merits, see Part IV, infra, however, it is clear that they will suffer irreparable injury unless injunctive relief is granted. The harm is obvious since the petitioners will remain debarred for three years, see 41 U.S.C. § 354(a), and unless they have substantial contracts in the private sector, they may be unable to survive financially. The remaining criteria, the harm to other interested parties and the public interest, weigh against the plaintiffs. The Act was designed to provide fair wage standards for employees performing work on federal service contracts, see S.Rep. No. 798, 89th Cong. 1st Sess. reprinted in [1965] U.S.Code Cong. & Admin.News, p. 3739, and any decision setting aside actions which are consistent with the Act may cause substantial injury to enforcement of the Act in this and future cases and is clearly not in the public interest absent some compelling reason to grant an injunction.
Under the facts of this case, this Court concludes that plaintiffs have failed to demonstrate that they are entitled to injunctive relief. Such relief shall be denied.[3]
III
The defendants move to dismiss this case on the grounds that the actions of the Secretary are not reviewable by the court. 5 U.S.C. § 701(a)(2). While it is true, as the defendants argue that the 1972 amendment to the Act, Pub.L. 92-473, 86 Stat. 789, resulted because Congress wanted to make the debarment process almost automatic, see S.Rep. No. 92-1131, 92nd Cong. 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin.News, p. 3536, this Court does not read the original statute or the 1972 amendment as setting forth clear and convincing evidence of a legislative attempt to restrict judicial review. Citizens to Preserve Overton *819 Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). In the absence of such an intent, the administrative decision is reviewable and, accordingly, so much of defendant's motion to dismiss as is grounded on the contention that the administrative determination is beyond review by the court must be denied.
IV
The Court has reviewed the underlying record consisting of the decision of the Administrative Law Judge, the ruling by the Administrator and the final order by the Secretary. The case has been fully briefed and argued, both during the administrative proceedings and before this Court. The issue is whether the Secretary has properly determined that the plaintiffs' names should not be removed from the list of ineligible persons. This in turn depends on whether the plaintiffs have demonstrated unusual circumstances.[4]
The Administrative Law Judge carefully considered that issue utilizing the criteria cited in Washington Moving and Storage Co., et al., No. SCA168, March 12, 1974. There the Secretary set forth guidelines for determining whether there are "unusual circumstances". The Secretary explained that:
"Whether `unusual circumstances' are present in a case within the meaning of the Act must be determined on the basis of the facts and circumstances of the particular case. Some of the principal factors which must be considered in making this determination are whether there is a history of repeated violations of the Act; the nature, extent, and seriousness of past or present violations; whether the violations were willful, or the circumstances show there was culpable neglect to ascertain whether certain practices were in compliance, or culpable disregard of whether they were or not, or other culpable conduct (such as deliberate falsification of records); whether the respondent's liability turned on bona fide legal issues of doubtful certainty; whether the respondent has demonstrated good faith, cooperation in the resolution of issues, and a desire and intention to comply with the requirements of the Act; and the promptness with which employees were paid the sums determined to be due them. It is clear that the mere payment of sums found due employees after an administrative proceeding, coupled with an assurance of future compliance, is not in itself sufficient to constitute `unusual circumstances' warranting relief from the ineligible list sanction. It is also clear that a history of recurrent violations of identical nature, such as repeated violations of identical minimum wage or recordkeeping provisions, does not permit a finding of `unusual circumstances.' ..."
After reviewing the findings and conclusions of the Administrative Law Judge, and those of the Administrator and the Secretary, this Court is satisfied that there was more than a preponderance of the evidence to support those findings | {
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412 F.2d 1143
UNITED STATES of Americav.Lawrence J. CONVERSANO and William P. Keohan.Lawrence J. Conversano, Appellant.
No. 17372.
United States Court of Appeals Third Circuit.
Argued Feb. 4, 1969.Decided July 15, 1969.
Richard C. Ferroni, Pirillo & Carabello, Philadelphia, Pa. (Anthony D. Pirillo, Jr., Philadelphia, Pa., on the brief), for appellant.
Donald Horowitz, Asst. U.S. Atty., Newark, N.J., for appellee.
Before KALODNER, GANEY and SEITZ, Circuit Judges.
OPINION OF THE COURT
GANEY, Circuit Judge.
1
Defendant, Lawrence J. Conversano, and William Patrick Keohan were charged in a single two-count indictment with transferring and having in their possession and concealing counterfeited obligations of the United States, with intent to defraud in violation of 18 U.S.C. 472 and 473. Keohan plead guilty to both charges while defendant plead not guilty. At his trial, defendant raised the defense of entrapment, took the stand and called Keohan, a co-defendant, as a witness. On the testimony presented by Secret Service Agent Kenneth E. Balge, the only witness called by the prosecution, the jury found defendant guilty on both counts, and the court, after denying post-trial motions, imposed concurrent sentences.
2
Although the Government has not raised the question, we must determine whether written notice of appeal was timely filed in this case in accordance with the Federal Rules of Criminal Procedure. The jury brought in its verdict on Tuesday, October 11, 1967. On the same day in open court, defendant's counsel applied for and was immediately granted, in lieu of the 7-day period provided for in Rule 33 of the Federal Rules of Criminal Procedure, a three-week period of time in which to file motions for judgment of acquittal and for a new trial. Interpreting the three-week period to mean 21 days, we conclude that it began on Wednesday, October 12, and ended with Wednesday, November 1, which was not a legal holiday. By letter dated November 2, one day after the three-week period, defendant's counsel requested an additional two weeks within which to file the post-trial motions. He was notified by telephone on November 6 from the trial judge's chambers that his request was granted. On November 15, defendant filed his motion for a new trial. The motion was based on grounds other than newly discovered evidence, one of them being 'The Court erred in denying Defendant's Motion for a directed verdict in acquittal.'
3
In open court on March 19, 1968, immediately after he was sentenced, defendant was allowed to post an appearance bond in the amount of $5,000 pending an appeal.1 The notation of the sentences was entered in the criminal docket two days later on Thursday, March 21. On April 1, by a written order, the district court denied defendant's motion for a new trial. The following day, April 2, the order was entered and defendant filed his notice of appeal in the district court. The notice provided:
4
'The defendant was found guilty of the above offenses (Selling, transfering and delivering of counterfeited obligations of the United States; possession and concealing counterfeited obligations of the United States with intent to defraud.) and was sentenced to two four-year terms of imprisonment; said terms to run concurrently.
5
'I, the above named appellant, hereby appeal to the United States Court of Appeals for the District of New Jersey from the above stated judgment.'2
6
This notice of appeal was filed one day too late.
7
Rule 37(a)(2) of the Federal Rules of Criminal Procedure, effective at the time defendant filed his notice of appeal, provided in pertinent part:
8
'(2) Time for Taking Appeal. The notice of appeal by a defendant shall be filed within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of the order denying the motion * * *. A judgment or order is entered within the meaning of this paragraph when it is entered in the criminal docket * * *.'3
9
'It is well settled that 'the filing of a notice of appeal within the 10-day period prescribed by Rule 37(a)(2) is mandatory and jurisdictional.' United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964).' United States v. Temple, 372 F.2d 795, 797 (C.A. 4, 1966), cert. denied 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110. Also see United States v. Scarlata, 214 F.2d 807 (C.A. 3, 1954); 5 Orfield, Crim.Proc. Under Fed.Rules 37.12.
10
Using the date of entry of the order denying the motion for a new trial, which was April 2, as the starting point, the filing of the notice of appeal was in time if the motion was timely filed. We think it was not. Rule 33 of the Federal Rules of Criminal Procedure, in pertinent part, provides:
11
'The court on motion of a defendant may grant a new trial if required in the interest of justice * * *. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 7 days after verdict * * * or within such further time as the court may fix during the 7-day period.'
12
Clearly, the trial judge had authority to grant the extension of time to three weeks in which to file the motion for a new trial inasmuch as the decision was made during the 7-day period immediately after verdict. But even if we assume factually that the letter dated November 2 was received by the trial judge and allowed by him as of that date, the second request for an extension of time was made and granted after the original three-week period had expired. We know of no rule which at the time would have given the district court authority to grant an extension of time other than the ground of newly discovered evidence. But defendant has not filed a motion based on that ground in this case.
13
Using Thursday, March 31, 1968, the date of the entry of judgment in this case as the starting point, Monday, April 1, 1968, was the last day on which notice of appeal could ordinarily have been filed timely here.4 According to the date of the official stamp on the notice of appeal, which we must accept as true in this case, the notice was filed on April 2, one day beyond the time allowed by the Rule. Thus were we to rely solely on the notice of appeal, this Court would be without jurisdiction to hear this appeal. However, the condition of the appearance bond, which was executed and filed in the district court on March 19, 1968, recites that the defendant has filed an appeal to this Court and the appeal is now pending. We think the filing of the appearance bond containing the above recital may be deemed the equivalent of the filing of a written notice of appeal in the district court. See O'Neal v. United States, 272 F.2d 412 (C.A. 5, 1959). And although it was filed prior to the entry of the judgment, it is treated as having been 'filed after such entry and on the day thereof.' in accordance with the mandate of Rule 37(a)(2), supra.
14
On the merits of this appeal defendant contends that the trial court committed reversible error in (1) sustaining an objection to a question put to the prosecution's sole witness on cross-examination as to whether a person identified as James Seth O'Donnell was a paid informer of the secret service, and (2) charging the jury regarding the defense of entrapment and refusing to read to the jury his six requests for charge. For a proper understanding of the basis for defendant's contentions and theory of entrapment, a review of the testimony is necessary.
15
After the secret service learned that counterfeit money was available for sale, Balge, an undercover agent, posed as Ray Simpson, an assistant cashier of a bank in Washington, D.C. James Seth O'Donnell brought defendant, Keohan, to the bank and introduced him to Balge as a person who could possibly lead Balge to a source of counterfeit money. At a restaurant Balge told Keohan that he had embezzled $200,000 from a trust account and was anxious to replace it with counterfeit notes before the bank examiners made their audit. Keohan got in touch with one Theodore Kittelt and told | {
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Civil Action No. 15-785 (JEB)
REX W. TIILLERSON, in his official
capacity as U.S. Secretary of State,
Defendant.
-------------------------------------------------------
CAUSE OF ACTION INSTITUTE,
Plaintiff,
v.
REX W. TILLERSON, in his official Civil Action No. 15-1068 (JEB)
capacity as U.S. Secretary of State,
and
DAVID S. FERRIERO, in his official
capacity as U.S. Archivist,
Defendants.
MEMORANDUM OPINION
A full year has now passed since the 2016 presidential election, but the controversy over
Hillary Clinton’s emails endures. As readers well remember, Clinton used private email
accounts and servers during her tenure as Secretary of State. When news first broke that those
accounts were employed to “conduct official government business,” Plaintiffs Judicial Watch
and Cause of Action became concerned that the Government might not have retained records of
her emails. See JW Compl., ¶ 5; CAI Compl., ¶ 9. To spur recovery, each filed a separate suit
alleging violations of the Federal Records Act, “a collection of statutes governing the creation,
1
management, and disposal of federal records.” Public Citizen v. Carlin, 184 F.3d 900, 902 (D.C.
Cir. 1999). Plaintiffs argued that pursuant to the statutory scheme, Defendants State Department
and the National Archives and Records Administration (NARA) must enlist the Attorney
General’s aid in recovering Clinton’s emails.
In the parties’ first consolidated foray before this Court, the Government moved to
dismiss the case as moot, arguing that it had done all that the FRA requires. The Court took the
bait, holding that because Defendants had already taken significant steps to recover the emails,
Plaintiffs suffered no ongoing injury. The Court of Appeals reversed and, in doing so,
established a higher hurdle for Defendants to clear. Namely, they must initiate action with the
Attorney General unless they either recover all the missing emails or “establish their fatal loss.”
Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 956 (D.C. Cir. 2016). On remand, the
Administration may have changed, but the Government’s stance remains the same. Relying on
new evidence of their additional efforts to track down the Clinton emails, Defendants play the
mootness card once more. Based on that supplemented record, the Court again agrees the suit is
moot and therefore grants their Motion to Dismiss.
I. Background
Plaintiffs are two non-profit organizations, which describe themselves as dedicated to
promoting “transparency, accountability, and integrity in government.” JW Compl., ¶ 3; see also
CAI Compl., ¶ 21. After learning of Clinton’s private email accounts, both organizations
believed that the Secretary had unlawfully removed federal records from the State Department.
See JW Compl., ¶ 5; CAI Compl., ¶ 9. Judicial Watch therefore filed suit on May 2015, and
Cause of Action joined the mix two months later. See Minute Order of August 4, 2015 (granting
Government’s Motion to Consolidate Cases). Plaintiffs claimed principally that the State
2
Department had failed to retain agency records in violation of the Federal Records Act, such that
the current Secretary of State must “initiate action through the attorney general to recover the
Clinton emails.” JW Compl., ¶¶ 7, 29; see also CAI Compl., ¶¶ 16-17, 68.
This Court dismissed Plaintiffs’ suit as moot. See Judicial Watch, Inc. v. Kerry, 156 F.
Supp. 3d. 69, 73 (D.D.C. 2016). To proceed, it reasoned, Plaintiffs must allege an ongoing
injury under the FRA, which they could do only if the Secretary and Archivist had been “‘unable
or unwilling’ to recover emails that might be federal records.” Id. at 76. As it happened, both
NARA and State had already recovered nearly 55,000 pages of Clinton emails and were
partnering with the Federal Bureau of Investigation to search for more. Id. at 76-77. Under this
Court’s interpretation of the statute, Defendants’ sustained efforts sufficed to alleviate any injury.
Id. at 77.
The Court of Appeals reversed, applying a mootness test with more teeth. See Judicial
Watch, Inc. v. Kerry, 844 F.3d 952, 953 (D.C. Cir. 2016). It allowed that “actions taken by the
Department and the FBI might have mooted appellants’ claims by securing custody of all emails
that the Attorney General could have recovered in an enforcement action.” Id. at 955 (emphasis
added). Although the tag-team efforts “bore some fruit,” the court believed that “shaking the
tree harder . . . might [] bear more still.” Id. In so holding, the Court of Appeals mentioned that
the FBI had recovered a server and thumb drive housing emails from one of Clinton’s
nongovernmental email addresses. Id. If Plaintiffs had “sought emails from [that] server
account” only, the court noted, a mootness argument “might well succeed.” Id. But Clinton had
used a second nongovernmental address, a Blackberry account, during her first weeks in office.
Id. at 955-56. The record showed no effort by the State Department or FBI to recover those
emails. Id. The Court of Appeals thus held that the controversy remained live “[a]bsent a
3
showing that the requested enforcement action could not shake loose a few more emails.” Id. at
955. It acknowledged, however, that Defendants had taken actions subsequent to this Court’s
initial decision, permitting them to raise mootness once again on remand. Id. at 956-57.
Now back for round two, Defendants accept the invitation and renew their Motion to
Dismiss on mootness grounds. See MTD (ECF No. 33). To that end, they have supplemented
the record previously before this Court and detailed their more recent attempts to recover the
remaining emails. That effort includes piggybacking on a parallel investigation by the FBI,
which sought all of Clinton’s work-related emails (with a particular emphasis on the Blackberry
ones) to assess whether she had mismanaged classified information. See, e.g., id., Exhs. 1-4. As
of June 15, 2017, the FBI has turned over all recovered records to the State Department. See
Supp. Declaration of E.W. Priestap, ¶ 12. Defendants consequently conclude that they have no
“reason to believe that recoverable Clinton email records remain extant.” Gov’t Reply, Exh. 1
(Second Declaration of Lawrence Brewer), ¶ 3; see also id., Exh. 2 (Second Declaration of Eric
F. Stein), ¶ 3.
II. Legal Standard
To survive a motion to dismiss under Rule 12(b)(1), a plaintiff bears the burden of
proving that the Court has subject-matter jurisdiction to hear its claims. See DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015). A court has an “affirmative obligation to ensure that it is acting within the scope of its
jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d
9, 13 (D.D.C. 2001). “For this reason, ‘the [p]laintiff’s factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for
failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal
4
Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss
under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding
whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
III. Analysis
Plaintiffs’ suits contend that Defendants must initiate action through the Attorney
General to recover Secretary Clinton’s emails, which they allege are “federal records” under the
FRA. See CAI Compl., ¶¶ 35-37. In seeking dismissal, Defendants rejoin that the actions are
now moot, as they have already recovered all extant emails | {
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-21-2008
Shah v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5078
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Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-5078
NILESH KAMAR SHAH,
Petitioner
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A77-699-780)
Immigration Judge: Hon. Henry S. Dogin
Submitted Under Third Circuit LAR 34.1(a)
February 1, 2008
Before: RENDELL and CHAGARES, Circuit Judges
POLLAK,* District Judge
(Filed: February 21, 2008)
OPINION
*
Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
POLLAK, District Judge
Nilesh Kamar Shah petitions for review of the Board of Immigration Appeals’
(“BIA”) order of November 17, 2006, denying his motion to reopen and reconsider. For
the reasons given below, his petition will be denied.
I.
Petitioner, a native and citizen of India, entered the United States without
inspection in 1999. He was ordered removed in absentia in 2001. In 2004, he
successfully moved to reopen the proceeding. At a subsequent hearing before an
immigration judge (“IJ”), he conceded removability. He applied for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”), arguing that he
would be subject to persecution and torture in India on account of his Hindu faith. The IJ
found petitioner’s testimony not credible and ordered his removal on October 8, 2004.
Shah appealed, and the BIA affirmed on July 17, 2006. Shah moved for reconsideration
and reopening. On November 17, 2006, the BIA denied that motion. Shah has petitioned
this court for review of the BIA’s order of November 17, 2006.
II.
We review the denial of a motion to reconsider and reopen for abuse of discretion.
See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). “Under the abuse of discretion
standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to
law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal quotation marks
2
omitted). We review de novo questions of law, including whether a petitioner’s right to
due process was violated. See Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006).
III.
Petitioner makes two claims of error with regard to the denial of his motion to
reopen and reconsider.1
A.
First, petitioner contends that the BIA denied him due process of law and abused
its discretion because the BIA refused to consider the evidence petitioner submitted in
support of his motion on the ground that the evidence was “time-barred.”
Under 8 C.F.R. § 1003.2(c)(1), a motion to reopen “shall not be granted unless it
appears to the Board that evidence sought to be offered . . . was not available and could
not have been discovered or presented at the former hearing.” See Caushi v. Att’y Gen.,
436 F.3d 220, 231 (3d Cir. 2006).
The BIA did not fail to consider the evidence presented by petitioner. The BIA’s
opinion discusses the evidence in detail, concluding that the evidence was not properly
presented in a motion to reopen because it could have been discovered or presented at
1
Petitioner has petitioned for review only of the BIA’s denial of his motion to reopen
and reconsider. Because petitioner did not petition for review of the BIA’s order of July
17, 2006, dismissing his appeal of the IJ’s denial of relief, we lack jurisdiction to review
that order. See 8 U.S.C. § 1252(b); Stone v. INS, 514 U.S. 386, 404-06 (1995).
Accordingly, we cannot consider petitioner’s contention that the BIA erred in that order
in affirming the IJ’s adverse credibility determination.
3
petitioner’s 2004 hearing. Petitioner does not identify errors in the BIA’s determination
that the evidence could have been presented in 2004; nor are any such errors apparent.
Accordingly, we find no merit in petitioner’s challenge, on this ground, to the BIA’s
denial of his motion to reopen and reconsider.2
B.
Second, petitioner contends that the BIA denied him due process of law “since he
was never given the opportunity to present his case to a judge prior to the original order
being entered” in 2001, in absentia and allegedly without notice to petitioner. This
argument is without merit, because petitioner was not removed on the basis of the 2001
order of removal. Rather, following the reopening of his case in 2004, petitioner was
given a full and fair opportunity to present evidence on his own behalf at a hearing held
on October 8, 2004. Petitioner, represented by counsel, conceded removability and
presented evidence in support of his applications for relief. His petition will therefore be
denied on this ground as well.
2
Petitioner does not contend that 8 C.F.R. § 1003.2(c)(1) is itself unconstitutional.
4
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642 F.3d 321 (2011)
MONTEFIORE MEDICAL CENTER, Plaintiff-Appellant,
v.
TEAMSTERS LOCAL 272, Fred Alston, in his capacity as President of Teamsters Local 272, Local 272 Welfare Fund, Mark Goodman, in his capacity as Fund Manager of Local 272 Welfare Fund, Defendants-Appellees.
Docket No. 10-1451-cv.
United States Court of Appeals, Second Circuit.
Argued: February 15, 2011.
Decided: April 21, 2011.
*324 John G. Martin (Michael J. Keane, on the brief), Garfunkel Wild, P.C., Great Neck, NY, for plaintiff-appellant.
Jane Lauer Barker, Pitta & Giblin LLP, New York, NY, for defendants-appellees.
Before: CABRANES, POOLER, and CHIN, Circuit Judges.
JOSÉ A. CABRANES, Circuit Judge:
This case is yet another act in the all-too-familiar drama involving patients, their health care providers, and their health care benefit plans. The question presented is whether a health care provider's breach of contract and quasi-contract claims against a benefit plan established pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., are completely preempted by federal law under the two-pronged test for ERISA preemption established in Aetna Health Inc. v. Davila, 542 U.S. 200, 209, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). We hold: (1) an "in-network" health care provider may receive a valid assignment of rights from an ERISA plan beneficiary pursuant to ERISA § 502(a)(1)(B),[1] the provision setting forth *325 ERISA's civil enforcement scheme; (2) where a provider's claim involves the right to payment and not simply the amount or execution of payment[2]that is, where the claim implicates coverage and benefit determinations as set forth by the terms of the ERISA benefit plan, and not simply the contractually correct payment amount or the proper execution of the monetary transfer[3]that claim constitutes a colorable claim for benefits pursuant to ERISA § 502(a)(1)(B); and (3) in the instant case, at least some of plaintiff's claims for reimbursement are completely preempted by federal law; furthermore, the remaining state-law claims are properly subject to the District Court's supplemental jurisdiction.
I. BACKGROUND
Plaintiff-appellant Montefiore Medical Center ("Montefiore" or "plaintiff") is a non-profit hospital in the Bronx, New York. Between May 2003 and August 2008, Montefiore provided medical services to beneficiaries of defendant-appellee Local 272 Welfare Fund ("the Fund"), an employee benefit plan governed by ERISA. The Fund provides health care coverage to individuals who work in "covered employment," as defined by the Fund, and to their eligible dependents (collectively, the "beneficiaries" or "members" of the Fund). The coverage that the Fund offers is paid directly from contributions it receives from employers, who are obliged by their collective bargaining agreements with defendant-appellee Teamsters Local 272 ("the Union") to make specified contributions to the Fund on behalf of their covered employees. As required by ERISA and U.S. Department of Labor regulations, the Fund's Plan Description ("the Plan") sets forth the eligibility requirements for coverage, the nature of benefits provided, limitations on those benefits, services covered, and the procedures for claiming benefits and appealing claim denials.
Under the Plan, beneficiaries may obtain medical services in one of two ways. First, they may visit a health care provider who is in the network of providers with whom the Fund has specially contracted to provide services to its members (an "in-network" provider). Second, beneficiaries may visit a health care provider who is not in the Fund's network (an "out-of-network" provider). When Fund members obtain services from an in-network provider, they pay a small co-payment or co-insurance fee or pay nothing at all, and the Fund reimburses the remaining cost for services directly to the provider. When Fund members obtain services from an out-of-network provider, the member is responsible for paying the provider himself, and thereafter may seek reimbursement for covered services from the Fund.
The Plan generally sets forth the beneficiary's co-payments, co-insurance, and other rates of payment, but it does not establish *326 a rate or schedule at which in-network or out-of-network providers will be reimbursed by the Plan. For example, the Plan provides that a beneficiary is responsible for paying a 10% co-insurance fee for maternity care, but it does not establish a ceiling or other limitation on the fee that a provider of maternity care may charge in order to qualify for reimbursement of the remaining cost. These types of limitations are usually set by separate agreements between providers and their Preferred Provider Organizations ("PPOs"),[4] or between PPOs and the ERISA benefit plan, as explained below.
At all relevant times, Montefiore was an in-network provider of the Plan by virtue of its membership in two PPOs. Montefiore contracted with (1) Horizon Healthcare Insurance Company of New York ("Horizon"), from April 2003 until January 1, 2007, and (2) Preferred Choice Management Systems, Inc., d/b/a MagnaCare ("MagnaCare"), from January 1, 2007 through March 11, 2009 (the date Montefiore filed its complaint in this action). These PPOs entered into agreements with the Fund to provide eligible Plan beneficiaries with access to the PPOs' participating hospitals, including Montefiore.
Montefiore and the other providers, in turn, entered into agreements with the PPOs to provide health care services to beneficiaries of the Plan at agreed-upon reimbursement rates, which rates were typically discounted from the providers' usual and customary rates. The Fund's contracts with Horizon and MagnaCare established the specific rates and terms under which the Fund would reimburse the providers for services. These contracts also included many cross-references to the terms of the beneficiaries' benefit agreement with the Fund, i.e., the Plan.[5]
On March 10, 2009, Montefiore filed a complaint against defendants-appellees Teamsters Local 272 et al. ("defendants") in New York state court seeking payment for over $1 million in medical services provided to Plan beneficiaries that the Fund had allegedly failed to reimburse. On its face, the complaint alleged, inter alia, state-law claims for breach of contract and unjust enrichment. On March 31, 2009, defendants removed the action to the District Court, alleging that the claims fell within the civil enforcement provisions of ERISA and were therefore completely preempted by federal law. See 29 U.S.C. § 1132(a). On June 29, 2009, Montefiore moved to remand the case to state court.[6]
*327 On November 11, 2009, the District Court issued its Opinion & Order denying plaintiff's motion to remand to the state court and holding, pursuant to the Supreme Court's decision in Davila, that (1) Montefiore had "standing as an assignee of the Plan's participants and beneficiaries to bring a claim under [the civil enforcement provision of] ERISA," and (2) "there [wa]s no independent duty" implicated by defendants' actions. Accordingly, the District Court concluded that Montefiore's claims were completely preempted by ERISA and removal was proper. Observing that "the Second Circuit has not yet determined whether an in-network provider such as Montefiore has standing under ERISA," the District Court sua sponte certified its order for interlocutory appeal.
This appeal followed.
II. STANDARD OF REVIEW
A party seeking removal bears the burden of showing that federal jurisdiction is proper. Cal. Pub. Emps.' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir.2004). A civil claim filed in state court can only be removed to federal court if the district court would have had original jurisdiction to hear the claim. See 28 U.S.C. § 1441(a). Under the "well-pleaded complaint rule," federal subject matter jurisdiction typically exists only "when the plaintiff's well-pleaded complaint raises issues of federal law," and not simply when federal preemption might be invoked as a defense to liability. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). However, a "corollary of the well-pleaded complaint rule" provides that "Congress may so completely pre-empt a particular area [of law] that any civil complaint raising this select group of claims is necessarily federal in character." Id. at 63-64, 107 S.Ct. 1542; accord In re WTC Disaster Site, 414 F.3d 352, 372-73 (2d Cir.2005) ("Complete preemption permits removal of a lawsuit to federal court based upon the concept that where there is complete preemption, only a federal claim exists. Where Congress has clearly manifested an intent to make causes of action removable to federal court, the federal courts must honor that intent." (alterations and quotation marks omitted)).
The District Court held, and defendants assert on appeal, that notwithstanding the complaint's express references to state claims for breach of contract and unjust enrichment, plaintiff's claims are completely preempted by ERISA and are therefore removable to federal court. We review de novo a district court's conclusions regarding its subject | {
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993 So.2d 534 (2008)
D.S.
v.
DEPARTMENT OF CHILDREN AND FAMILIES.
No. 4D08-1301, 4D08-1303.
District Court of Appeal of Florida, Fourth District.
October 17, 2008.
Decision without published opinion. Affirmed.
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Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 01, 2014
The Court of Appeals hereby passes the following order:
A15D0057. ROOSEVELT WOODS v. THE STATE.
A15D0069. ROOSEVELT WOODS v. THE STATE.
In these two applications for discretionary appeal, Roosevelt Woods appeals
the order denying his pro se motion to withdraw his guilty plea. The trial court’s order
was entered on July 24, 2014, and Woods filed his applications on September 12,
2014 and September 19, 2014.1 Although the denial of a motion to withdraw a guilty
plea is directly appealable,2 we lack jurisdiction to consider Woods’ applications
because they are untimely.
Ordinarily, if a party applies for discretionary review of a directly appealable
order, we grant the application under OCGA § 5-6-35 (j). To fall within this general
rule, however, the application must be filed within 30 days of entry of the order to be
appealed. See OCGA § 5-6-35 (d) & (j); Hill v. State, 204 Ga. App. 582 (420 SE2d
393) (1992). The requirements of OCGA § 5-6-35 are jurisdictional, and this Court
cannot accept an application for appeal not made in compliance therewith. See Boyle
v. State of Ga., 190 Ga. App. 734 (380 SE2d 57) (1989). Because Woods filed his
applications 50 and 57 days after entry of the order he seeks to appeal, the
applications are untimely, and they are hereby DISMISSED for lack of jurisdiction.
1
Woods attempted to file an application for discretionary appeal on August 21,
2014, but the application could not be accepted for filing because Woods did not
include a stamped “filed” copy of the trial court’s order. See Court of Appeals Rule
31 (e).
2
See Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008).
We note that Woods argues in both applications that his applications are
untimely because the trial court and his attorney failed to provide him with a copy of
the order denying his motion to withdraw. To the extent that Woods’ ability to file a
timely application was frustrated by the trial court’s action, Woods’ remedy is to
petition the trial court to set aside and re-enter the order. See Cambron v. Canal Ins.
Co., 246 Ga. 147, 148-49 (1) (269 SE2d 426) (1980); Cameron v. Miles, 304 Ga.
App. 161 (695 SE2d 691) (2010).
Court of Appeals of the State of Georgia
10/01/2014
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
| {
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IN THE
TENTH COURT OF APPEALS
No. 10-15-00069-CV
WILLIAM M. WINDSOR,
Appellant
v.
KELLIE MCDOUGALD,
Appellee
From the 378th District Court
Ellis County, Texas
Trial Court No. 88611
ORDER
Appellant’s Motion Requesting Original Documents as Record, filed on June 18,
2015, is denied.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Motion denied
Order issued and filed September 3, 2015
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4686
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH S. LUONGO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-02-7)
Submitted: December 3, 2003 Decided: July 26, 2004
Before WIDENER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig L. Parshall, LAW OFFICE OF CRAIG L. PARSHALL, Fredericksburg,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Kevin V. DiGregory, Assistant United States Attorney, Amanda
Goldman, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Joseph S. Luongo pleaded
guilty to making a false statement before a grand jury, in
violation of 18 U.S.C. § 1623 (2000). In May 2002, the district
court sentenced Luongo to two months of imprisonment, to be
followed by a three-year term of supervised release. We especially
note that special condition 6 of the conditions of supervision for
supervised release states that “the defendant shall make an effort
to settle all law judgments against him in any court within the
United States.”
In March 2003, the Government filed a motion seeking to
modify this term of Luongo’s supervised release. Specifically, the
Government sought to compel Luongo to begin making payments on a
default judgment entered against him in 2001. After a hearing, the
district court granted the Government’s motion and ordered Luongo
to submit to a deposition to determine his assets and then to begin
making payments toward the judgment. Luongo timely appeals this
order.
District courts have wide latitude in imposing special
conditions on supervised release. United States v. Dotson, 324
F.3d 256, 260 (4th Cir. 2003). A district court may impose any
condition it considers appropriate as long as it is “reasonably
related” to the factors referred to in 18 U.S.C. § 3583(d)(1)
(2000). Id. These factors are: “the nature and circumstances of
- 2 -
the offense and the history and characteristics of the defendant,”
18 U.S.C. § 3553(a)(1) (2000); the need for the condition to deter
criminal conduct, see 18 U.S.C. § 3553(a)(2)(B) (2000); the need to
protect the public from any further criminal behavior by the
defendant, see 18 U.S.C. § 3553(a)(2)(C) (2000); and the need to
provide the defendant with training or medical care, 18 U.S.C.
§ 3553(a)(2)(D) (2000). Id. Additionally, special conditions must
be consistent with the Sentencing Commission’s policy statements
and may not involve a greater deprivation of liberty than is
necessary to achieve the specified goals. Id. A district court’s
imposition of special conditions of supervised release is reviewed
for an abuse of discretion. Dotson, 324 F.3d at 259.
Luongo contends that the district court abused its
discretion by requiring him to submit to a deposition to determine
his assets and to begin making payments on the civil default
judgment. The district court found that Luongo’s offense of
conviction—-lying to the grand jury—-and his failure to satisfy the
outstanding default judgment against him demonstrate a lack of
respect for the legal system. Therefore, the district court found
the modification appropriately related to the factors referred to
in 18 U.S.C. § 3583(d). Based on our review of the record, we
cannot say that the district court abused its discretion in so
finding.
- 3 -
Accordingly, we affirm the order of the district court.
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 in the decisional process.
AFFIRMED
- 4 -
| {
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690 F.Supp. 919 (1988)
LITTLE HORN STATE BANK, A Montana Banking Corporation, Plaintiff,
v.
CROW TRIBAL COURT and Dan Old Elk, Sr., Defendants.
No. CV-88-155-BLG-JFB.
United States District Court, D. Montana, Billings Division.
July 21, 1988.
*920 Natasha J. Morton, Christine A. Cooke, Hardin, Mont., for plaintiff.
Dan Old Elk, Sr., Crow Agency, Mont., pro se.
MEMORANDUM AND ORDER
BATTIN, Chief Judge.
On July 18, 1988, a hearing was held before the undersigned to show cause why a preliminary injunction should not be entered in this matter. Appearing for the plaintiff was Christine A. Cooke. Neither defendant appeared before the Court to contest plaintiff's motion. Having reviewed the evidence presented by the plaintiff during such hearing, the Court concludes that plaintiff's due process rights were violated and that plaintiff will suffer irreparable harm if an injunction is not granted. The Court further finds that the facts surrounding this case have been fully developed and that there exists a cognizable danger that plaintiff's rights will be violated again. Therefore, the Court issues a permanent injunction restraining, enjoining and prohibiting the defendants from enforcing the Crow Tribal Court Order dated June 30, 1988.
PROCEDURAL FACTS
The facts of this case strongly support a gross violation of plaintiff's due process rights. On November 21, 1985, plaintiff Little Horn State Bank filed a complaint in the Thirteenth Judicial District Court of the State of Montana, in and for the County of Big Horn. The complaint alleged that Daniel C. Old Elk, Sr. and Old Elk Building Supply had defaulted on a promissory note executed to plaintiff and secured by a purchase money security interest in a forklift.
After the foreclosure proceedings were initiated by plaintiff, defendants were duly served with a summons and complaint. No appearance was ever made by the defendants and a default was entered. On July 20, 1986, District Court Judge Charles Luedke issued Findings of Fact, Conclusions of Law and Decree of Foreclosure, together with an Order of Sale.
Subsequent to obtaining this judgment, plaintiff filed a complaint for Enforcement of Foreign Judgment in the Crow Tribal Court on April 11, 1987. Again, defendants Daniel Old Elk, Sr. and Old Elk Building Supply were duly served with copies of the complaint and summons which was issued by the Crow Tribal Court. The defendants failed to make any appearance in this proceeding and a default was entered by the Crow Tribal Court on May 12, 1986. On May 20, 1986, the Clerk of the Crow Tribal Court set a hearing on default judgment May 27, 1986. At said hearing plaintiff Little Horn State Bank appeared and presented evidence to the Crow Tribal Court. Once again, defendants failed to appear before the Crow Tribal Court.
At the conclusion of the hearing, Tribal Judge Rowena Gets Down advised counsel for the plaintiff that the Court would issue its ruling in five working days. Plaintiff Little Horn State Bank also submitted to the Court proposed Findings of Fact, Conclusions *921 of Law and Decree of Foreclosure. Although this hearing transpired more than two years ago, no decision has been issued by the Crow Tribal Court.
Since the default hearing concluded, plaintiff's counsel has made numerous inquiries about the status of said case. Throughout all her communication with the Crow Tribal Court, plaintiff has only been advised that Tribal Judge Rowena Gets Down is no longer sitting on the bench and that a decision as to the underlying default is still pending.
On June 20, 1988, plaintiff acquired possession of the forklift and removed it from the exterior boundaries of the Crow Indian Reservation.
On June 30, 1988, the Crow Tribal Court issued an Ex Parte Order in the original lawsuit filed by Little Horn State Bank nearly two years ago. This order mandated that the Little Horn State Bank to return the forklift in their possession to the Crow Tribal Court impoundment yard for disposition by the Court. Prior to the issuance of this order, plaintiff's counsel of record was not notified of any motion or hearing on this matter.
On July 5, 1988, defendant Daniel C. Old Elk, Sr., delivered a certified copy of the June 30, 1988 Tribal Court Order to State District Court Judge G. Todd Baugh. Again, without notification to plaintiff, defendant Daniel C. Old Elk requested the Thirteenth Judicial District Court of Montana to honor said Crow Tribal Court order.
Having been advised of this ex parte communication with Judge Baugh, plaintiff's counsel travelled to Crow Agency, Montana, where she spoke with Chief Judge Dennis Big Hair of the Crow Tribal Court. Counsel for Little Horn State Bank attempted to file with the Tribal Court a motion to set a hearing on the order dated June 30, 1988 and to hold the enforcement of said order in abeyance until a hearing could be held. Judge Big Hair advised plaintiff's counsel that no hearing would be scheduled and that no motion would be accepted by the Crow Tribal Court from Little Horn State Bank. Judge Big Hair further advised counsel that the Crow Tribal Appellate Court was a nonfunctioning body, but that the Appellate Court might begin hearing cases at Judge Big Hair's request.
On July 6, 1988, plaintiff Little Horn State Bank filed this action alleging a violation of its due process rights under the Indian Civil Rights Act of Title 25 U.S.C. § 1302(8). Plaintiff also filed a Motion for Temporary Restraining Order seeking to enjoin defendants from enforcing the Crow Tribal Court Order dated June 30, 1988. Defendants were duly served with notice of plaintiff's motion for a temporary restraining order. Defendant Dan Old Elk, Sr., did appear in Chambers and in Court with respect to the Temporary Restraining Order issued on July 7, 1988. However, he did not appear at the hearing of July 18, 1988 on plaintiff's Motion for a Preliminary Injunction although he was given notice of said hearing. Defendant Crow Tribe did not appear to contest either Motion.
DISCUSSION
Plaintiff invokes the jurisdiction of this Court pursuant to Title 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 25 U.S.C. § 1302(8).
The most compelling basis for jurisdiction in this matter is found at 25 U.S.C. § 1302(8) since plaintiff alleges a violation of the Indian Civil Rights Act (ICRA). The Court is quite mindful that the Supreme Court has long held that federal courts have no jurisdiction to entertain actions to redress violations of the ICRA other than by habeas corpus petition pursuant to Title 25 U.S.C. § 1303. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978).
Nevertheless, the United States Court of Appeals for the Tenth Circuit has fashioned a narrow exception to Martinez which appears to be applicable in this case. Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847, reh. denied, 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385 (1981). In Dry Creek, the Court of Appeals distinguished *922 Martinez, noting that the Supreme Court had focused on three factors in determining that federal courts do not have jurisdiction of § 1302 claims. The Court identified those factors as: 1) the availability of Tribal remedies; 2) a dispute which is peculiarly intra-tribal in nature; and 3) an action in which all the parties are Indians. 623 F.2d at 685. Those factors were found not to be present in the Dry Creek Case.
After considering those same factors, the Court concludes that they are similarly absent in this case and that the Martinez holding should not preclude this Court from exercising jurisdiction. First, all parties to this action are not Indians. Plaintiff is a financial institution located outside the exterior boundaries of the reservation. One of the significant factors distinguishing Dry Creek Lodge from Martinez, was the presence of non-Indian parties in the former case. 623 F.2d at 684.
Secondly, the underlying dispute in this case is not of intra-tribal nature contemplated by the Supreme Court in Martinez. The underlying cause of action arises out of an executed promissory note and purchase money security interest in a forklift. This transaction occurred outside the exterior boundaries of the reservation and is not of tribal importance.
Third, the record clearly reflects that there are no further adequate tribal remedies available to plaintiff. Plaintiff has recognized the establishment of the Tribal Court and carefully followed its procedures. Notwithstanding its diligence in providing notice to the defendants and complying with the Tribal Court system, plaintiff has been unable to obtain a simple default judgment. Plaintiff has no other tribal remedies available. The Tribal Court of Appeals has not functioned in some time and will only operate at the whim of the current Judge Dennis Big Hair. Plaintiff's counsel has inquired on numerous occasions as to the status of their underlying action to no avail. Counsel's last contact with the Tribal Court resulted in the Court refusing to file any pleadings which plaintiff's counsel wished to file with the Court. Certainly plaintiff has exhausted all known tribal remedies and should not be required to expend any futile efforts with tribal authorities. With this in mind, the Court concludes that jurisdiction does exist to determine this Motion for Preliminary Injunction.
The factors to be considered in | {
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759 F.Supp.2d 1059 (2010)
HARLEY MARINE SERVICES, INC., et al., Plaintiffs,
v.
MANITOWOC MARINE GROUP, LLC, et al., Defendants.
Case No. 10-C-751.
United States District Court, E.D. Wisconsin.
December 30, 2010.
*1060 David J. Hanus, Jeffrey S. Fertl, Hinshaw & Culbertson LLP, Milwaukee, WI, Mark A. Krisher, Thomas G. Waller, Bauer Moynihan & Johnson LLP, Seattle, WA, for Plaintiffs.
Brett Ingerman, DLA Piper U.S. LLP, Baltimore, MD, Thomas L. Schober, Davis & Kuelthau SC, Green Bay, WI, for Defendants.
DECISION AND ORDER
WILLIAM C. GRIESBACH, District Judge.
Defendants Manitowoc Marine Group, LLC, d/b/a Bay Shipbuilding Co., Fincantieri Marine Group, LLC, and The Manitowoc Company, Inc., have filed a motion to dismiss four of the claims brought in the complaint filed by Plaintiffs Harley Marine Services, Inc., Harco Marine, L.L.C., and Olympic Tug & Barge, Inc. Defendants assert that three of the claims are facially inconsistent with the substance of the central claims, which allege breach of contract and warranty. The final claim, they assert, is not yet ripe. For the reasons given below, the motion will be granted in part and denied in part.
In brief, in this action Plaintiffs allege that they contracted with Manitowoc Marine for Manitowoc to build a barge capable of carrying 80,000 barrels. The barge (they allege) has failed to live up to the contracted standards, and they thus brought suit for breach of contract and breach of warranty. In addition, however, Plaintiffs also brought claims alleging breach of the duty of good faith, unjust enrichment, and promissory estoppel. But because Plaintiffs are suing on rights set forth in a contract with Manitowoc Marine and the breach of the implied duty of good faith merely restates the breach of contract claim, Defendants argue that these additional causes of action are entirely superfluous. There is no reason, Defendants contend, to assert claims that either duplicate or are legally incompatible with the breach of contract claim. Plaintiffs concede that once the merits are reached, the alternative theories cannot succeed along with the contractual theoriesthey are mutually exclusivebut assert that they have a right at this stage of the proceedings to plead in the alternative.
In this dustup both sides have a point. Plaintiffs are correct that federal pleading standards allow for pleading in the alternative; that is, a party may plead claims which on their face might not be consistent. On the other hand, it is not unreasonable for Defendants to insist that claims having no basis in law be excised as *1061 early as possible so as to minimize unnecessary legal research and discovery. It is after all the purpose of the rules under which this procedural dispute arises "to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed.R.Civ.P. 1.
In support of their opposition to Defendants' motion, Plaintiffs cite Diamond Center, Inc. v. Leslie's Jewelry Mfg. Corp., 562 F.Supp.2d 1009 (W.D.Wis.2008), in which Judge Crabb denied a similar motion:
As plaintiff correctly points out, Fed. R.Civ.P. 8(e)(2) permits a party to plead alternative theories of relief under both legal and equitable grounds, even if the theories are inconsistent. Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 397 (7th Cir.2003). Under the doctrine of pleading in the alternative, "a party is allowed to plead breach of contract, or if the court finds no contract was formed, to plead for quasi-contractual relief in the alternative. Once a valid contract is found to exist, quasi-contractual relief is no longer available." Id. Plaintiff has done nothing more than plead alternative theories of relief by pleading its unjust enrichment and promissory estoppel claims along with a claim for breach of contract. Although plaintiff would not be able to recover under its quasi-contract claims if there was in fact a contract governing its relationship with defendant, it is free to plead such alternative theories at this stage of the litigation. Accordingly, plaintiff has pleaded its unjust enrichment and promissory estoppel claims as alternative theories of recovery under Rule 8(e)(2). Those claims will not be dismissed at this stage of the litigation.
562 F.Supp.2d at 1017. Plaintiffs argue the same reasoning applies here and also applies to their claim for breach of implied duty of good faith. While such a claim may be mutually exclusive of a breach of contract claim, see Home Valu, Inc. v. Pep Boys, 213 F.3d 960, 965-66 (7th Cir.2000), the plaintiffs note that this is not always true. Thus, they contend that at this stage the claim should be allowed to proceed.
For their part, Defendants cite a line of cases that acknowledge the possibility of pleading in the alternative but stand for the principle that a single claim itself cannot be facially inconsistent. For example, when a claim acknowledges that a contract exists but nevertheless seeks equitable (i.e., non-contractual) relief, some courts have granted motions to dismiss on the basis that the claim is a dud on its face.
As plaintiff correctly notes, federal rules allow a plaintiff to plead inconsistent claims in the alternative. See Fed. R.Civ.P. 8(e)(2) ("A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses."). Nonetheless, while plaintiff may plead breach of contract in one count and unjust enrichment and promissory estoppel in others, it may not include allegations of an express contract, which governs the relationship of the parties, in the counts for unjust enrichment and promissory estoppel.
The Sharrow Group v. Zausa Development Corp., 2004 WL 2806193, *3 (N.D.Ill. 2004) (citing cases).
The mere fact that Plaintiffs did not limit the allegations referring to the express contract to the breach of contract claim is easily curable, however, and thus does not by itself seem a sound reason to dismiss the inconsistent claims for relief. The existence of the contract is no secret. It thus matters little whether Plaintiffs also acknowledge that contract's existence within the other claims or notthe contract *1062 is still there, regardless. Moreover, applying the distinction suggested above would simply result in a re-do. The claims would be dismissed without prejudice (because dismissal would be based on a pleading technicality rather than the merits) and Plaintiffs would be allowed to re-plead the same claims as alternative claims so long as they left out the offending parts acknowledging that a contract exists.
A stronger rationale for granting such a motion is suggested in American Casual Dining, L.P. v. Moe's Southwest Grill, L.L.C., 426 F.Supp.2d 1356 (N.D.Ga.2006). There, as in this case, the plaintiff asserted claims for breach of contract, breach of implied duty of good faith, unjust enrichment, and promissory estoppel. The defendant moved to dismiss the latter three claims, arguing that they were either included in or inconsistent with the contract the plaintiff claimed the defendant had breached. Also as in this case, the plaintiff argued in response that Rule 8 of the Federal Rules of Civil Procedure expressly allows a party to plead alternative and inconsistent claims and theories of recovery. The district court rejected the plaintiff's argument, noting that the complaint did not indicate that its claims were asserted as alternative theories of recovery. More importantly, however, the court noted that even if the equitable claims for relief had been asserted in the alternative, the plaintiff had not alleged that the contracts attached to the complaint were invalid or potentially invalid, nor had the defendant challenged the existence or validity of the agreements. 426 F.Supp.2d at 1371-72. See also Decatur Ventures, LLC v. Stapleton Ventures, Inc., 373 F.Supp.2d 829, 849 (S.D.Ind.2005) ("Plaintiffs' unjust enrichment claim becomes superfluous when neither side disputes the existence of a valid contract, even if it is being alleged in the alternative..... Plaintiffs went so far as to attach copies of the express contracts between Decatur and NovaStar to their complaint, and NovaStar does not dispute the existence or validity of the contracts. Accordingly, Plaintiffs' unjust enrichment claim is inappropriate.").
In response to Defendants' motion, Plaintiffs here argue that they should be allowed to plead alternative claims because Defendants' answer has placed the existence of the contract in dispute. They note that in response to several allegations in the complaint, Defendants denied that the parties had entered into the alleged contract. But that is not the case. Indeed, Defendants in response to paragraph 9 of the complaint expressly "admitted that, in 2005, Harley Marine Service, Inc., and Bay Shipbuilding Co. negotiated an agreement to build the ship...." (Partial Answer, ¶ 9.) In response to the paragraphs of the complaint where Plaintiffs attempted to characterize or quote the substance of the contract, Defendants asserted that "the document speaks for itself, and on this basis the allegations are denied." (Id.) Refusing to accede to an opposing party's interpretation of a written contract, however, is not the same as denying the contract's existence or validity. If there was any doubt about the position of Defendants with respect | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4611
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER WIGFALL, a/k/a Frank,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia,
at Martinsburg. Gina M. Groh, Chief District Judge. (3:17-cr-00004-GMG-RWT-1)
Submitted: May 30, 2019 Decided: June 21, 2019
Before FLOYD and QUATTLEBAUM, Circuit Judges, and DUNCAN, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia, for
Appellant. Zelda Elizabeth Wesley, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Christopher Wigfall guilty of two counts of distributing heroin and
one count of possessing it with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2012). The district court determined that he was a career offender under U.S.
Sentencing Guidelines Manual § 4B1.1 (2016), and sentenced him to 210 months in
prison, a term at the bottom of the advisory Sentencing Guidelines range.
Wigfall now appeals. Appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for
appeal but questioning whether the district court erred by (1) denying Wigfall’s challenge
under Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection, when the
Government used a peremptory strike on an African-American man in the jury pool; (2)
designating Wigfall a career offender, based on prior Maryland felony convictions for
possession of a narcotic with intent to distribute and robbery with a dangerous and deadly
weapon; and (3) imposing an unreasonable sentence. Wigfall has filed a pro se
supplemental brief raising additional issues. * We affirm.
With respect to Wigfall’s Batson challenge, the potential juror whom the
Government struck had been the president of the local branch of the National Association
for the Advancement of Colored People. In that role, he met with officials from the
United States Attorney’s office for the Northern District of West Virginia—the same
*
We have considered the issues raised in the pro se supplemental brief and
conclude that they lack merit.
2
office that was prosecuting Wigfall—and wrote a letter to the attorney general about the
shooting and killing of an African-American man by five white police officers.
Separately, the potential juror’s son had been convicted in the district court of a drug
offense. In response to Wigfall’s Batson challenge, the Government cited both of those
facts as its reasons for exercising its peremptory strike. The district court noted that the
Government had not struck an African-American woman from the jury pool and
determined that the Government made a practical decision to strike the potential juror in
issue because his son had been convicted in the same court and because the Government
believed he had an “ax to grind” due to his dissatisfaction with the Government’s
investigation of the shooting death.
We review a district court’s denial of a Batson challenge for clear error. United
States v. Walker, 922 F.3d 239, 251 (4th Cir. 2019). “A clear error exists when we are
left with the definite and firm conviction that an error was committed by the district
court.” Id. (internal quotation marks omitted). When a defendant has raised a Batson
challenge, he must make a prima facie showing that the government exercised a
peremptory challenge on the basis of race. Id. at 252. The burden then shifts to the
government to articulate a nondiscriminatory reason for the challenge, and, to prevail, the
defendant must show that that reason is a pretext for intentional discrimination. Id.
Here, the government provided two nondiscriminatory reasons for its decision to
strike the African-American man from the jury. Wigfall failed to demonstrate that those
reasons were a pretext for discrimination. We therefore conclude that the district court
3
did not err in rejecting Wigfall’s Batson challenge to the Government’s exercise of its
peremptory strike.
With respect to Wigfall’s sentence, we have reviewed the record and the relevant
legal authorities and conclude that the district court properly calculated the advisory
Guidelines range. Furthermore, the district court adequately explained its sentence,
balancing Wigfall’s criminal history and the seriousness of his offenses with what the
court saw as his sincere efforts to change and improve himself. Nothing in the record
rebuts the presumption that the court’s sentence, at the low end of the Guidelines range,
is reasonable. See United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (noting
sentence within or below properly calculated Guidelines range is presumptively
reasonable).
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the judgment of the
district court. This court requires that counsel inform Wigfall, in writing, of the right to
petition the Supreme Court of the United States for further review. If Wigfall requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Wigfall.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
4
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366 F.2d 99
ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN, etc., et al., Appellants,v.SPOKANE, PORTLAND & SEATTLE RAILWAY CO. et al., Appellees.
No. 20331.
United States Court of Appeals Ninth Circuit.
Aug. 18, 1966.
Clifford D. O'Brien, Portland, Or., Harry J. Wilmarth, Cedar Rapids, Iowa, for appellants.
Hugh L. Biggs, James P. Rogers, Garry R. Bullard, of Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for appellee.
Before POPE, JERTBERG and DUNIWAY, Circuit Judges.
POPE, Circuit Judge.
1
A dispute arose between the above named Union and the appellee Railroads concerning allowances to union members for expenses when on duty away from home. When the parties were unable to agree, the Union threatened to strike. The Railroads then brought this suit in the court below to enjoin the strike. From an order granting such an injunction the defendant Union appeals.
2
Following the extended disputes between numerous railroads and their operating employees relating to rules and working conditions which are recounted in detail in Brotherhood of Locomotive Engineers v. Baltimore & O.R. Co., 372 U.S. 284, 83 S.Ct. 691, 9 L.Ed.2d 759, and in Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 86 S.Ct. 594, 15 L.Ed.2d 501 (January 31, 1966), Congress undertook to avoid the consequences of a threatened strike by the unions through the enactment of provisions for compulsory arbitration of two of the issues between the carriers and the unions. There remained other disputes, not comprehended within this arbitration, which the parties undertook to deal with in what the parties refer to as the 'White House Agreement' dated June 25, 1964. The particular portion of that agreement, involved here, was contained in Article II, 1 thereof, which provided as follows:
3
'ARTICLE II-- EXPENSES AWAY FROM HOME:
4
'Section 1--
5
'When the carrier ties up a road service crew (except short turnaround passenger crews), or individual members thereof, at a terminal (including tie-up points named by assignment bulletins, or presently listed in schedule agreements, or observed by practice, as regular points for tying up crews) other than the designated home terminal of the crew assignment of four (4) hours or more, each member of the crew so tied up shall be provided suitable lodging at the carrier's expense or an equitable allowance in lieu thereof. Suitable lodging or an equitable allowance in lieu thereof shall be worked out on a local basis. The equitable allowance shall be provided only if it is not reasonably possible to provide lodging.
6
'If an allowance is being made in lieu of lodging as well as other considerations under provisions of existing agreements, the amount attributed only to lodging shall be removed if suitable lodging is supplied, or offset against an equivalent allowance. This shall be worked out on a local basis.
7
'The provisions of this Section shall be made effective at a date no later than 30 days following the effective date of this Agreement.'
8
The lodging referred to is the lodging required by the employees during their layovers at the end of their runs.
9
At conferences following this agreement the parties attempted to agree on what would be considered 'suitable lodging or an equitable allowance in lieu thereof,' but without success. On July 24, 1964, the appellee railroads issued and served on the appellants its 'Circular No. 65' as follows:
10
'SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY SYSTEM LINES
Portland, Oregon July 24 1964
11
Circular No. 65 ALL CONCERNED: Effective July 25, 1964 and until further notice, whenever a road service crew is tied up at a terminal other than the designated home terminal of the crew assigned for four hours or more, each member of the crew so tied up will be provided lodging at the following locations: Spokane-- Coeur d' Alene Hotel Pasco-- Pioneer Hotel Wishram-- SPS Hotel Bend-- Colonial Hotel Albany-- Albany Hotel Eugene-- Lane Hotel Astoria-- Astor Hotel Seaside-- Chillquist Rooming House Vernonia-- Hy-van Hotel A survey recently taken of lodging then being used by train and enginemen at the above points indicated that while some were using accommodations listed above, others had made different lodging arrangements. Therefore, although accommodations will be available at the above named establishments, if any crew member desires to keep his present arrangement, he may do so in which event he will be allowed $1.50 for each layover period during which he is tied up for more than four hours at the away-from-home terminal of his assignment. This allowance may be claimed on the service slip for the particular trip.
12
While the above arrangement is in effect, the allowance in lieu of lodging presently being made to certain train crew members in pooled caboose territory will be removed.
13
J. L. Monahan Superintendent'On August 3 following, the union sent to the railroad1 a notice as follows:
14
'Our negotiations to date have failed to produce an agreement as to the type, quality or location of suitable lodging, or equitable allowance in lieu thereof. We propose that an agreement be reached in accord with Section 6 of the Railway Labor Act, which will provide that acceptable suitable lodging shall include: '(1) A large single room, well ventilated, heated, lighted, air conditioned, with bath facilities, well finished wood or carpeted floors and closet or large locker storage space. Room is to be equipped with chairs and dresser and full size standard bed with new Simmons 400 mattress and springs, or one of equal quality. Room to be maintained in a suitable manner with linen to be changed after each use. '(2) The lodging mentioned in Paragraph (1) to be located not more than one-fourth miles from point where crews are required to register and/or off duty, or suitable transportation furnished between lodging and points of reporting for duty, or going off duty. Call service will be provided by carrier. ' (3) In lieu of requirements of above Paragraphs (1) and (2), an equitable allowance per trip will be six dollars ($6,00) to be paid by check separate and apart from wages and earnings. 'Please advise me promptly whether you are agreeable to these provisions, or as to a date for conference concerning this proposal, as provided by the Railway Labor Act.'
15
For the purpose of clarifying what next happened, we note that the Railway Labor Act (45 U.S.C. 151 et seq.) provides two separate and distinct methods for the settlement of disputes between carriers and their employees. Section 3 of the Act (45 U.S.C. 153) which establishes a National Railroad Adjustment Board provides that disputes 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.' (45 U.S.C. 153(i)) Disputes of this character are known as 'minor' disputes. Their submission to the National Railroad Adjustment Board is 'considered as compulsory arbitration in this limited field,' and awards in such cases are 'final and binding upon both parties,' and in case of attempted violation of such an award through a strike the 'District Court has jurisdiction and power to issue necessary injunctive orders * * * notwithstanding the provisions of the Norris-La Guardia Act.' Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.
16
As the Court there noted, these so-called 'minor disputes' 'may be contrasted with 'major disputes' which result when there is disagreement in the bargaining process for a new contract.'2 In Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, at pages 722 to 727, 65 S.Ct. 1282, at pages 1289-1292, 89 L.Ed. 1886, the Court defined and described the two kinds of disputes. Speaking of 'major disputes' the Court said (p. 723, 65 S.Ct. p. 1290): 'They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.'3 The Court then proceeded to note the divergent procedures prescribed for dealing with the two kinds of disputes. It said (p. 725, 65 S.Ct. p. 12 | {
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580 F.2d 1046
U. S.v.Kubit
No. 77-1495
United States Court of Appeals, Second Circuit
5/9/78
1
S.D.N.Y.
2
DISMISSED*
*
Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23
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Case: 17-20204 Document: 00514567280 Page: 1 Date Filed: 07/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20204 FILED
Conference Calendar July 23, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERIBERTO RUBIO-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-630-2
Before KING, ELROD and WILLETT, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Heriberto Rubio-Garcia has moved
for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Rubio-Garcia has not filed a response.
The issue of timeliness of Rubio-Garcia’s notice of appeal does not
present a jurisdictional impediment to our consideration of the case, and we
* 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: 17-20204 Document: 00514567280 Page: 2 Date Filed: 07/23/2018
No. 17-20204
pretermit the issue. See United States v. Martinez, 496 F.3d 387, 388-89 (5th
Cir. 2007). We have reviewed counsel’s brief and the relevant portions of the
record reflected therein. We concur with counsel’s assessment that the appeal
presents no nonfrivolous issue for appellate review.
Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.
2
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870 F.2d 660
276 U.S.App.D.C. 246
MIDWEST ENERGY, INC., Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,KN Energy, Inc., Intervenor.
No. 88-1259.*
United States Court of Appeals,District of Columbia Circuit.
Argued Feb. 3, 1989.Decided Feb. 24, 1989.
Dennis Lane, with whom Richard A. Solomon, Washington, D.C., was on the brief, for petitioner. David D'Alessandro also entered an appearance for petitioner.
Richard Aylwin White, Atty., Federal Energy Regulatory Com'n ("FERC"), Washington, D.C., with whom Catherine C. Cook, General Counsel, and Joseph S. Davies, Deputy Sol., FERC, Washington, D.C., were on the brief, for respondent. Joel M. Cockrell and Hanford O'Hara, Attys., FERC, Washington, D.C., also entered appearances for respondent.
John T. Miller, Jr., Washington D.C., was on the brief, for intervenor.
Before RUTH BADER GINSBURG, SILBERMAN, and BUCKLEY, Circuit Judges.
PER CURIAM:
1
Midwest Energy, Inc., petitions for review of a Federal Energy Regulatory Commission ("FERC" or "Commission") order construing section 104 of the Natural Gas Policy Act of 1978 ("NGPA"), 15 U.S.C. Sec. 3314 (1982). This section provides that, for natural gas "committed or dedicated to interstate commerce on November 8, 1978" for which a "just and reasonable rate under the Natural Gas Act [15 U.S.C. Sec. 717 et seq.] was in effect," id. Sec. 3314(a), the "maximum lawful price" shall be
2
the just and reasonable rate, per million Btu's, established by the Commission which was (or would have been) applicable to the first sale of such natural gas on April 20, 1977....
3
Id. Sec. 3314(b)(1)(A)(i). FERC ruled that the section 104 ceiling price for pipeline-produced "old gas" (i.e., from wells drilled before January 1, 1973 or from leases acquired before October 7, 1969) was the national rate "established by the Commission" for independent gas producers as of April 20, 1977. See Order No. 391-B, 40 F.E.R.C. p 61,174 (Aug. 10, 1987). Midwest disputes FERC's interpretation, arguing that section 104's intended base price for pipeline-produced old gas is the rate in effect in April 1977 as calculated through the application of a "cost-of-service" methodology. For the reasons discussed below, we reject Midwest's contentions and enforce FERC's order.
4
A brief summary of the history of this case provides the necessary analytical framework. In Public Service Comm'n v. Mid-Louisiana Gas Co., 463 U.S. 319, 103 S.Ct. 3024, 77 L.Ed.2d 668 (1983), the Supreme Court held that Congress intended to include pipeline-produced gas in the NGPA's pricing scheme. Three years later, this court reversed FERC Rulemaking Orders No. 391, 28 F.E.R.C. p 61,263 (1984), and No. 391-A, 31 F.E.R.C. p 61,036 (1985) (denying petition for rehearing), on the ground that the Commission had erred in concluding that Mid-Louisiana required FERC to rule that pipeline-produced old gas prices must be based on the pre-NGPA national rates applicable to independent producers. Phillips Petroleum Co. v. FERC, 792 F.2d 1165 (D.C.Cir.1986).
5
In Phillips, we determined that section 104 was "ambiguous," and that under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 843-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), our review was limited to determining whether the agency's interpretation represented " 'a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute.' " 792 F.2d at 1169 (quoting 467 U.S. at 845, 104 S.Ct. at 2783). Chevron deference was deemed inappropriate, however, because the Commission's decision was based not on its construction of its governing statute but on an erroneous view of the law. Id. at 1169-70, citing SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). We remanded to enable FERC to reconsider the competing interpretations of section 104 and instructed the Commission, in resolving that provision's ambiguity, to exercise its own judgment and to offer a reasonable explanation for its interpretation, rather than relying on a misreading of Mid-Louisiana. Id. at 1171-72.
6
On remand, FERC fully complied with our guidelines by supplying a well-reasoned explanation to support its conclusions. Emphasizing that section 104(b)(1) mandated application of the "just and reasonable rate ... established by the Commission" on April 20, 1977, FERC noted that as of that date the Federal Power Commission ("FPC") had only "established" wellhead rates for independent producers' gas at a national or area level. Instead of establishing a pipeline producer's unit rate per million Btu's of wellhead production, the FPC had simply approved a pipeline's proposed rate after evaluating the "prudence" of its overall production costs--including the cost-of-service "price" as measured by total pipeline sales. 40 F.E.R.C. at 61,544.
7
Thus, FERC concluded that the Commission had never "established" any "just and reasonable" rate that would be "applicable" to pipeline production of old gas on April 20, 1977. FERC construed section 104's parenthetical phrase, "or would have been [ ] applicable," as "intended to apply the rates established for independent producers to all pipeline-produced gas." Id. at 61,545. The Commission justified its interpretation as consistent with Congress' intent in the NGPA to put pipeline production "on the same footing as all other production." Id. at 61,545-46, citing Mid-Louisiana, 463 U.S. at 333-37, 103 S.Ct. at 3032-35.
8
We conclude that FERC's independent construction of section 104 is "permissible" under Chevron and that the Commission's rationale adequately supports its decision. FERC's only error, which we find non-essential to its analysis, is the assertion that Congress intended the parenthetical phrase to permit the Commission to apply national rates to pipeline producers. Here FERC relies on bootstrap construction: the clause was intended to permit application of national rates because Congress intended section 104 to have that result. This seemingly enigmatic clause is susceptible of altogether sensible interpretation. Midwest offered two explanations. First, the clause corrected two possible anomalies in NGPA pricing. See Petitioner's Brief at 25-27, citing 124 Cong.Rec.H. 13,117 (Oct. 14, 1978) (statement of Rep. Dingell) (phrase applies to two types of gas: gas from wells commenced after January 1, 1975 subject to FERC Opinion No. 770-A, and gas whose contractual price was lower than the 1977 "just and reasonable" rate). Even more persuasively, Midwest maintained that
9
section 104 applies to any natural gas committed or dedicated to interstate commerce on November 8, 1978. For natural gas committed to interstate commerce after April 20, 1977 and before November 8, 1978, obviously no just and reasonable rate was applicable to the sale of gas on April 20, 1977. Thus, ... the "would have been" language was included merely to ensure that natural gas produced after April 20, 1977, but before November 8, 1978 was covered by section 104.
10
Phillips, 792 F.2d at 1172.
11
This single flaw in FERC's rationale, however, does not render its opinion fatally defective. We find sufficient the Commission's justification that Mid-Louisiana confirmed Congress' intent that section 104 apply to pipeline producers. Congress, however, did not specify the means of accomplishing this goal. In light of FERC's conclusion that it had not established "just and reasonable" wellhead rates for pipeline-produced gas, it was reasonable for the Commission to apply the objective national standards that had been established for comparable gas produced by independent producers as the ceiling price under section 104.
12
Midwest has failed to demonstrate that FERC's construction of this NGPA provision is impermissible. Midwest concedes that section 104 does not identify the price applicable to pipeline-produced "old gas," but nonetheless insists that Congress could only have intended for FERC to employ traditional cost-of-service ratemaking in determining this price. As discussed above, however, the Commission's interpretation is equally (perhaps more) reasonable, and under Chevron we must defer to the agency.
13
As the Commission has provided a reasoned explanation for | {
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56 F.3d 1391
Cargilev.Horton Homes, Inc.*
NO. 94-8664
United States Court of Appeals,Eleventh Circuit.
May 15, 1995
1
Appeal From: M.D.Ga., No. 92-00041-5-CV-3-MAC, 851 F.Supp. 1575
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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441 P.2d 950 (1968)
Maxine GRENARD and Phyllis Riley, Plaintiff in Error,
v.
Frank E. McMAHAN, Defendant in Error.
No. 41862.
Supreme Court of Oklahoma.
May 21, 1968.
Rehearing Denied June 18, 1968.
Crandall & Lacy, Oklahoma City, Emerson R. Phillips, Pawnee, for plaintiffs in error.
Carl D. McGee, Pawnee, for defendant in error.
DAVISON, Justice.
Maxine Grenard and Phyllis Riley (defendants below) appeal from a judgment in favor of Frank E. McMahan (plaintiff below) adjudging a warranty deed invalid and void. The parties will be referred to by their trial court designation.
The dispute was presented to the lower court under a stipulation of facts. The property involved is a town lot and house located in Skedee, Pawnee County, Oklahoma. The title to this property was formerly held by Lula Ellen Bradley, who acquired the same from her brother. In December, 1963, Mrs. Bradley, while owner of the property, married the plaintiff and they occupied the property as their homestead. On April 13, 1965, Mrs. McMahan executed a warranty deed conveying the property. The deed was recorded on the same date. By the terms of the deed a life estate was given to her husband (plaintiff), and upon his death the property was to go to the defendants, who were Mrs. McMahan's daughters by a prior marriage. Mrs. McMahan died June 7, 1965. It was stipulated that the property was the homestead of plaintiff and his wife on the date of the deed; that plaintiff did not subscribe the deed; and that the deed was made *951 and recorded without the consent of plaintiff.
The trial court found and decreed that the deed was not made and executed in accordance with the statutes, and was invalid, and canceled the deed.
Defendants contend and argue the deed is valid on the ground that it falls within the category of a conveyance of the homestead from one spouse to the other. Defendants also make some argument that the deed gives the plaintiff the equivalent of his homestead rights to occupy the property after his wife's death.
Defendants cite Hall v. Powell, 8 Okl. 276, 57 P. 168; Brooks v. Butler, 184 Okl. 414, 87 P.2d 1092, and Howard v. Stanolind Oil & Gas Co., 197 Okl. 269, 169 P.2d 737, for the proposition that a deed or mortgage of the homestead from one spouse to another is valid even though the instrument is not subscribed by both. Admittedly, this is the holding in the cited cases, and they are correct under the facts therein stated where no conveyance of the homestead was made to third persons. They are not applicable to the present situation. In the instant case the deed is a conveyance to third persons and, as such, is a deed relating to the homestead.
The Oklahoma Constitution, Art. 12, Sec. 2, provides that no conveyance of the homestead shall be made without the consent of his or her spouse, given in such manner as may be prescribed by law.
Title 16, O.S. 1961, § 4, provides in part as follows:
"* * * and no deed, mortgage or contract relating to the homestead exempt by law, except a lease for a period not exceeding one (1) years, shall be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced, or legally separated, except to the extent hereinafter provided. * * *" (emphasis added)
In Atkinson v. Barr, Okl., 428 P.2d 316. 319, it is stated:
"It is well established in this State that a homestead estate, whether legal or equitable, cannot be alienated by the owner, if married, unless his or her spouse joins in the instrument of conveyance or assignment, and the attempted conveyance without such joinder is void. Montgomery v. Wise, 179 Okl. 247, 62 P.2d 647; Standard Savings & Loan Ass'n v. Acton, 178 Okl. 400, 63 P.2d 15; Keel v. Jones, Okl., 413 P.2d 549."
It is our conclusion that the warranty deed was void because plaintiff did not sign it and such conclusion and judgment of the trial court was correct.
Defendants also urge the plaintiff had no homestead rights in the property during the lifetime of his wife (Lula).
Defendants make this contention despite the fact that they stipulated the property was the homestead of plaintiff and Lula. The lower court found the property was their homestead at the time of the execution of the deed and on this ground held the deed was invalid.
Defendants cite cases (Richards v. Inman, Okl., 294 P.2d 818, and In re Musselman's Estate, 167 Okl. 560, 31 P.2d 142) to support their contention. These cited cases involved the probate homestead and the right of the surviving spouse to thereafter occupy the homestead. They are not in point on the question of existence and occupancy of the homestead during the life of both spouses.
In the present case the constitutional homestead is involved, together with the acts and formalities required for conveyance of the homestead. The constitutional homestead is the land itself which is occupied by the family as a home. First Nat. Bank of Sentinel v. Anderson, 206 Okl. 54, 240 P.2d 1066, 1069.
The parties stipulated the property was a homestead and we are not referred to any facts showing the contrary.
The judgment of the lower court is affirmed.
All the Justices concur.
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645 F.Supp. 1055 (1986)
In re Criminal and Civil Contempt Proceedings Against Arthur N. ECONOMOU.
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
The AMERICAN BOARD OF TRADE, INC., Arthur N. Economou, Phyllis H. Economou, and the American Board of Trade Service Corp., Defendants.
No. 83 Civ. 6213 (SWK).
United States District Court, S.D. New York.
October 8, 1986.
As Amended October 22, 1986.
Arthur N. Economou, New York City, pro se.
Ira Lee Sorkin, New York City, for S.E.C.
Milton Gould, Interim Receiver, New York City.
MEMORANDUM OPINION AND ORDER
KRAM, District Judge.
This criminal and civil contempt proceeding arises out of a civil action brought by the Securities and Exchange Commission ("SEC") against the American Board of Trade, Inc. ("ABT"), Arthur Economou, Phyllis Economou, and the American Board of Trade Service Corp. ("ABTS") to enjoin the sale of unregistered commercial paper by the defendants. The Court brought on this proceeding sua sponte after Mr. Economou made statements to the Court and to the Interim Receiver indicating that he had violated Court orders.
On September 2, 1986, this Court gave notice to Mr. Economou, pursuant to Fed. R.Crim.P. 42(b), that it would conduct a hearing on September 8, 1986, to determine whether to hold him in criminal contempt for violation of this Court's orders. 18 U.S.C. § 401(3). Specifically, the Court charged Mr. Economou with violating two of its orders. First, it charged Economou with violating its order of May 30, 1986 prohibiting ABT from redeeming commercial paper. Second, it charged Economou *1056 with violating its order of August 15, 1986 prohibiting the expenditure of ABT's commercial paper assets without approval from then Special Master Milton Gould. The Court also informed Mr. Economou that it would consider at the hearing whether to hold him in civil contempt as well. Mindful that Mr. Economou had been proceeding pro se in the civil action brought by the SEC, the Court also suggested that Mr. Economou retain counsel to defend himself against the contempt charges. Mr. Economou, however told the Court he preferred to proceed pro se.
On September 8, 1986, the morning the contempt proceedings were scheduled to begin, Mr. Economou informed the Court he did not understand the nature of the proceedings against him. The Court again informed Mr. Economou that he had a right to be represented by counsel, and suggested that he retain counsel. The Court also told Mr. Economou that it could appoint a lawyer to represent him if he could not afford counsel. Mr. Economou stated he could afford counsel but asked that counsel be appointed for him. He argued that since the Government had brought the civil action out of which this contempt proceeding arose, it was obliged to provide him with counsel in the contempt proceeding.[1] Mr. Economou also indicated that even if counsel were appointed, he would only use counsel to "assist" him, and would continue to represent himself pro se.[2] The Court agreed to adjourn the hearing, and sent Mr. Economou to the Magistrate's part to seek CJA counsel.[3]
Mr. Economou, however, failed to disclose information about the value of his assets on the CJA affidavit. The Court held a conference on September 9, 1986, and informed Mr. Economou that since he had refused to fill out the affidavit, CJA counsel would not be appointed for him. The Court adjourned the contempt hearing once again, and advised Mr. Economou that if he did not retain counsel, he would have to proceed pro se.
The hearing on the contempt charges finally commenced on September 11, 1986.[4] Mr. Economou appeared without counsel, and once again, the Court informed him that he should retain counsel to represent himself. The Court also described the ways in which counsel could assist Mr. Economou. Once again, however, Mr. Economou stated that he desired to proceed pro se. The Court, after further questioning Mr. Economou about his decision, found that his desire to proceed pro se was knowing and voluntary. The Court then informed Mr. Economou of his Fifth Amendment rights, the burden of proof in a criminal case, and his rights to introduce or object to evidence and to confront any witnesses against him.
The Court conducted the hearing on September 11, 16, 17, and 22, 1986. The Court *1057 heard extensive testimony from Mr. Economou, Mrs. Economou and Benjamin Bayoneto, ABT's accountant.[5] The Court had an opportunity to observe their demeanor and assess their credibility. The following constitutes the Court's findings of fact and conclusions of law.
I. CRIMINAL CONTEMPT
In order to determine whether Mr. Economou is guilty of criminal contempt, the Court must find beyond a reasonable doubt that the Court gave Mr. Economou a clear order, that Mr. Economou had actual knowledge of the order, that Mr. Economou violated the order, and that Mr. Economou acted willfully and knowingly in disobeying the order.
A. Count 1
The Court's first charge against Mr. Economou is that he violated this Court's order of May 30, 1986, prohibiting him from redeeming commercial paper. On May 30, 1986, this Court entered an order in the underlying civil action which states in pertinent part: "the Court orders defendants to cease the redemption of maturing commercial paper immediately." (Court Exhibit 1.) On July 18, 1986, the Court of Appeals for the Second Circuit issued an order which reads in pertinent part: "[o]n June 10, 1986, we granted [ABT's] motion for a stay pending an appeal of the District Court's order enjoining all redemptions and sales of unregistered notes by defendants. That stay is hereby lifted." (Court Exhibit 2.) The orders of both this Court and the Court of Appeals are clear and unequivocal. Both order ABT, ABTS, and Mr. and Mrs. Economou to cease the redemption of commercial paper immediately. Thus, as of July 18, 1986, Mr. Economou was prohibited from redeeming commercial paper.
*1058 This Court informed Mr. Economou personally of its May 30 order. Mrs. Economou testified that she learned of the Second Circuit's order by telephone on July 18, 1986, and informed Mr. Economou of the order on the same day. Mr. Economou testified he knew of both orders as well. Mr. Economou, in fact, did not place his knowledge of the orders in issue.
Mr. Economou does not dispute that commercial paper was redeemed after July 18, 1986. In fact, he submitted an affidavit to the Court which states that the commercial paper of 34 customers was redeemed after July 18, 1986, and lists the precise amount of each redemption. See Declaration of Arthur N. Economou in opposition to the motion by the Securities and Exchange Commission for the appointment of a receiver, ¶ 7 and Exhibit E. The exhibit indicates that $175,000 was redeemed.
Mr. Economou claims, however, that he personally did not disobey the order. Mr. Economou relies strongly on Mrs. Economou's testimony that she alone decided to redeem the commercial paper. This testimony contradicts her own testimony as well as other evidence in the case. Mrs. Economou, Mr. Economou, and Benjamin Bayoneto each testified that Mrs. Economou told Mr. Economou after July 18, 1986 that she was redeeming paper, and that Mr. Economou approved what she was doing. The evidence also indicates that Mrs. Economou and Mr. Economou both decided to redeem the paper in the first instance. While Mrs. Economou developed and implemented the plan for redemption, it is clear from the evidence that Mr. Economou approved the redemption, and that the redemption would not have occurred without Mr. Economou's approval. Furthermore, the evidence indicates that Mr. Economou knew commercial paper was being redeemed and could have prevented it.[6] Thus, he disobeyed and disregarded the Court orders prohibiting redemption.
Mrs. Economou's testimony that she alone decided to redeem ABT commercial paper also contradicts a sworn statement Mr. Economou made in a prior proceeding. Mr. Economou, responding to the Court's question about the redemption of commercial paper after July 18, 1986, stated "I did it....". (Court Exhibit 3.)[7] Mrs. Economou's statement that she alone decided to redeem the paper is further brought into question by her interest in protecting her husband. Of course, she was placing herself in jeopardy by testifying as she did, but the Court finds that her demeanor and evasiveness while testifying about Mr. Economou's role in the redemptions indicate that she was attempting to protect her husband.
In short, the Court finds that based on all the evidence adduced at this hearing, Mr. Economou himself disobeyed the Court's order by redeeming commercial paper after July 18, 1986.
Regarding the fourth element, that Mr. Economou acted knowingly and willfully when he disregarded the Court order prohibiting the redemption of commercial paper as of July 18, 1986, Mr. Economou essentially asserts the defense of good faith compliance with the order.
The testimony indicates that on June 30, 1986, the SEC, the U.S. Attorney, and the Post Office, acting pursuant to a search warrant, seized all of ABT's records. Included in those records were disposition instructions for commercial paper scheduled | {
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319 So.2d 760 (1975)
Richard VAN NOSTRAND
v.
STATE.
8 Div. 637.
Court of Criminal Appeals of Alabama.
October 1, 1975.
J. R. Brooks, Jr., Huntsville, for appellant.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
HARRIS, Judge.
Appellant was indicted for the possession of 70 pounds of marihuana. He was also indicted for maintaining a dwelling house, located at Route 5, Huntsville, Alabama, where persons resorted to for the purpose *761 of using controlled substances. At arraignment, attended by counsel, he pleaded not guilty. The jury returned a verdict finding the defendant guilty of possession of marihuana for personal use. The trial court sentenced appellant to one year in the Madison County Jail.
The evidence is uncontradicted that appellant, his wife and one William James Hillenbrand jointly rented the house located at the above address. It is further uncontradicted that on July 6, 1973, the officers went to this house armed with a search warrant and made a thorough search of the house. Upon arriving at the house they saw appellant walk off the porch and go to a blue Volkswagen. They saw appellant's wife at the front door. The officers identified themselves by showing their badges and they told appellant they had a search warrant to search the house. Appellant walked with officers to the house and his wife slammed the door and went back in the house. One of the officers went after her and she pointed a pistol directly on this officer. The officer took the pistol out of her hand and carried her into the living room.
The officers found the southwest bedroom door locked. They knocked on the door but got no response. They forced the door open and found Hillenbrand in bed and saw his personal effects in this room. They conducted a search of this room and found one large plastic trash bag, approximately 20 gallon size, with ten packages inside, weighing about two pounds each, containing green vegetable material believed to be marihuana. They found another large trash bag containing nine packages weighing approximately two pounds each, enclosing a green vegetable material believed to be marihuana. They found four large grocery bags containing green vegetable material, weighing about five pounds each, believed to be marihuana. In this same room they found a set of scales, a Browning automatic weapon, a Winchester pump shot gun, and six roaches with green substances believed to be marihuana.
In the southeast bedroom, the one occupied by appellant and his wife, they found a few roach clips, two small plastic bags containing green vegetable material believed to be marihuana, a small tin can, about two inches high, with vegetable material believed to be marihuana, a glass jar containing roaches believed to be marihuana and a cigarette roller.
In the middle bedroom the officers found one roach containing vegetable material believed to be marihuana. In the middle east bedroom they found one roach containing vegetable matter believed to be marihuana and an ashtray on a chest. They also found three more roaches in a paper bag on the floor in front of the chest. In the living room they found one roach in the ashtray containing vegetable matter believed to be marihuana and another one in an ashtray on top of the television set.
Deputy Sheriff Pat Edwards testified that he was employed by the Madison County Sheriff's Department and that on July 5, 1973, he participated in the "stake out" of the location on Smith Road in Madison County. He stated that he viewed the house occupied by appellant and his wife and Hillenbrand and that at approximately 11:20 on the night of July 5, a red pickup truck drove into the driveway of this residence. He saw two occupants of the truck carry two large plastic bags to the porch. A girl opened the door and a male having long blonde hair pulled the bags in the house and the lights went off in the house again. This witness stated that Hillenbrand has long blonde hair. Edwards was the officer who executed the search warrant. He said they found about 58 pounds of marihuana in the room occupied by Hillenbrand.
Mr. Robert M. Patterson testified that he was employed by the State of Alabama, *762 Department of Public Safety, Bureau of Investigation, Narcotics Unit. He participated in the search on the morning of July 6, 1973. He stated that in the southeast bedroom they found two plastic bags of marihuana. He also saw several grocery type bags of marihuana in the southwest bedroom.
After the search the officer arrested appellant, his wife and Hillenbrand and gave each of them the Miranda rights and warnings.
Mr. John Kilbourne testified that he was employed by the State Department of Toxicology and Criminal Investigation and had been so employed for six years. After stating his education and background experience, he testified that he received from Officer Allen Adair one brown bag containing plant material, one manila envelope containing two plastic bags containing plant material, one plastic bag containing plant material and one manila envelope containing a metal tin can which contained plant material. He testified that their evidence was turned over to him on July 9, 1973, and he put it in a locker to which he had the only key; that on September 19, 1973, he removed this material from the locker and performed a microscopic examination and a microchemical test to determine the contents. He stated he had performed many thousands of such tests. He determined the contents of the evidence submitted to him to be marihuana. There was other testimony that this evidence came from the southeast bedroom occupied by appellant and his wife. This evidence was subsequently introduced during the trial.
At the conclusion of the state's case appellant made a motion to exclude the state's evidence. This motion was overruled.
Hillenbrand was indicted, separately, for the same offenses as appellant. He made application to be treated as a youthful offender. His application was granted and he pleaded guilty to possessing the marihuana found in his room. He was convicted of being a youthful offender and applied for probation. His application for probation had not been decided prior to appellant's trial. He was out on bond and testified at appellant's trial.
According to his testimony all of the marijuana found in his room belonged to him and that appellant had no interest in it.
On cross-examination he testified that he and a man in a pickup truck brought the marihuana to this house between eleven and twelve o'clock on the night of July 5, 1973. He admitted that appellant and his wife knew he was going to bring the marihuana there that night. That appellant opened the door, but he was vague as to whether appellant helped him carry the marihuana to his room.
From the record:
"Q If it was dragged back there, who helped you drag it back into your room?
A I am not really sure. I couldn't swear to who helped me.
Q Didn't Ricky help you put it back there?
A I couldn't say for sure. I don't believe so.
Q But he could have?
A He could have, yes. I don't know that he did.
Q And there was other marijuana in the house at that time also, wasn't there?
A Yes.
Q In fact, there was a little bit of marijuana or some quantity of marijuana in every room, wasn't there?
A Yes.
Q And wasn't marijuana frequently smoked there by people that lived there and also by people that came there?
A Yes.
*763 Q Weren't there a lot of partially smoked marijuana cigarette butts around the house also?
A Probably."
He further admitted that appellant and his wife were living in this house and had been living there about two weeks; that they contributed to the payment of the rent and paid their share of the rent directly to him.
Appellant testified in his behalf. He stated that none of the marihuana found in Hillenbrand's room belonged to him.
On cross-examination he admitted ownership of the marihuana found in the southeast bedroom occupied by him and his wife. He admitted that he contributed toward the payment of the rent on the house and he gave the money to Hillenbrand the day they moved in. He further admitted that he knew that Hillenbrand was going to bring marihuana to the house on the night of July 5, 1973. He stated that the day they moved in they brought the majority of their personal belongings. He admitted smoking marihuana and stated that some of the partially smoked cigarettes found by the officers around the house might have been his.
In Daniels v. State, 49 Ala.App. 654, 275 So.2d 169, this court said:
"In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons.
Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761."
The verdict of the jury finding appellant guilty of possessing marihuana for personal use had the effect of acquitting him of the felony charge of possession | {
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18 P.3d 1164 (2001)
2001 WY 25
Carl Thomas CHAPMAN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 99-125.
Supreme Court of Wyoming.
March 5, 2001.
Rehearing Denied March 27, 2001.
*1167 Representing Appellant: Mike Cornia, Evanston, WY.
Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General.
Before LEHMAN, C.J., and THOMAS,[*] MACY,[**] GOLDEN, and HILL, JJ.
LEHMAN, Chief Justice.
[¶ 1] A Sweetwater County jury found Carl Thomas Chapman guilty of two counts of indecent liberties with a minor and two counts of third degree sexual assault. He appeals those convictions on the grounds that the district court committed various evidentiary and procedural errors during trial and sentencing and that he was denied effective assistance of counsel. Finding no such errors, we affirm.
ISSUES
[¶ 2] Chapman raises five claims of error:
1. Did reversible error occur when the court allowed expert testimony on the theory of childhood sexual abuse and post traumatic stress disorder[?]
2. Did multiple charges and convictions for one event constitute double jeopardy[?]
3. Did the trial court err in failing to properly instruct the jury on the applicable law
(A) if defendant was denied his right to due process and trial by jury by the lack of a proper elements instruction; and
(B) if the appellant was entitled to have the jury instructed on the lesser included offense of fourth degree sexual assault[?]
4. Given the appellant's hearing impairment did his trial violate his rights to confrontation, effective assistance of counsel and his right to be present[?]
5. Was the appellant denied his right to effective assistance of counsel[?]
The State rephrases the issues thusly:
1. Whether plain error was committed by allowing expert testimony on the theory of childhood sexual abuse and post-traumatic stress disorder?
2. Whether appellant was punished multiple times for a single incident?
3. Whether the trial court properly instructed the jury?
4. Whether appellant's right to confrontation and his right to be present were violated?
5. Whether appellant received effective assistance of counsel?
FACTS
[¶ 3] The parents of the victim were divorced in 1991. The father had visitation rights; and, at various times during 1994 and *1168 1995, the victim stayed with her father, a neighbor of Chapman and Chapman's wife. The victim oftentimes stayed with the Chapmans during father's visitation.
[¶ 4] In April of 1997, the victim told her mother that Chapman had sexually molested her. Chapman was eventually charged with one count of third degree sexual assault and one count of indecent liberties stemming from sexual activity alleged to have occurred on or about December 30, 1994.[1] Chapman was also charged with one count of third degree sexual assault and one count of indecent liberties stemming from sexual activity alleged to have occurred in June of 1995. These incidents were alleged to have occurred in Chapman's home at a time during which the victim was thirteen years old and Chapman was approaching 50.
[¶ 5] After hearing the testimony of the victim, the victim's parents, an expert, and Chapman's wife, a Sweetwater County jury found Chapman guilty of all charges. Convictions were entered accordingly. At Chapman's sentencing, the district court ordered the sentences from the December 1994/January 1995 offenses be served concurrently to each other; the sentences from the June 1995 offenses be served concurrently to each other; and the two sets of concurrent sentences be served consecutively. Chapman appealed.
DISCUSSION
[¶ 6] In the first four issues in his appellate brief, Chapman claims error based on the admission of expert testimony, improper jury instructions, an alleged violation of the double jeopardy clause in his sentence, and an alleged violation of his right to confront witnesses and be present at trial because he could not hear the proceedings against him. In the alternative, Chapman claims he was denied effective assistance of counsel because trial counsel failed to object in each instance of claimed error. Given the structure of appellant's brief and in order to avoid repetition, we will address each claim only once, both substantively and, where appropriate, as the claim pertains to the ineffective assistance claim. In order to do this, we first reiterate our well established standard for reviewing a claim of ineffective assistance of counsel:
When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo. 1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." *1169 Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.
Grainey v. State, 997 P.2d 1035, 1038-39 (Wyo.2000).
Expert testimony
[¶ 7] Chapman contends it was plain error to allow an expert witness to testify that the victim suffers from postraumatic stress disorder (PTSD) because (1) the court allowed the testimony without first determining that it was relevant and reliable; (2) the court failed to give a limiting instruction advising the jury that the testimony was admitted solely for the purpose of explaining the victim's behavior and not to prove that the victim's claim was true; and (3) during her testimony, the expert vouched for the credibility of the victim and also offered an opinion of guilt. Because trial counsel never requested a hearing on the admissibility of the expert testimony and did not otherwise object to the expert, Chapman also claims counsel's performance was outside the wide range of professionally competent assistance.
[¶ 8] A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. W.R.E. 702. This court has adopted the federal Daubert model imposing gatekeeping responsibilities on trial courts deciding whether scientific or technical expert testimony is admissible. See Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo.1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993)). In doing so, however, we did not "abandon our own precedent regarding the admissibility of expert testimony." Bunting, at 471. Under the Daubert model, the trial court must first determine whether the expert's methodology is reliable; then the court must determine whether the proposed testimony "fits" the facts of the particular case. Id. A district court's decision to admit or reject expert testimony is a decision solely within that court's discretion. Seivewright v. State, 7 P.3d 24, 29 (Wyo.2000); Springfield v. State, 860 P.2d 435, 438 (Wyo.1993); Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1993).
[¶ 9] The expert in question testified that she held a bachelor's degree in psychology and had completed all but her dissertation toward a Ph.D. in psychology. She had been employed for twenty years as an outpatient therapist and was currently working at least part of the time with children who had been physically or sexually abused. To be a licensed counselor in Wyoming, she was required to have the educational equivalent of a master's degree, completed 2000 hours of supervised clinical work, and passed a test administered by the state licensing board. She had published articles about her work with sexually abused children in | {
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[Cite as State v. Kubico, 2016-Ohio-5066.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15 CA 28
PHILIP KUBICO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of
Common Pleas
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 21, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN PHILIP J. KUBICO, PRO SE
Guernsey County Prosecuting Attorney #A286939
139 West 8th Street F.M.C. Z-B 1-205 A4
P.O. Box 640 1800 Harmon Ave.
Cambridge, Ohio 43725 Columbus, Ohio 43223
Guernsey County, Case No. 15 CA 28 2
Hoffman, P.J.
{¶1} Defendant-appellant Philip J. Kubico appeals the November 18, 2015
Judgment Entry entered by the Guernsey County Court of Common Pleas, denying
various motions relative to his criminal convictions and his motion for bond. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE CASE
{¶2} On March 10, 1993, Appellant was indicted by the Guernsey County Grand
Jury on twenty-four counts of sexually related offenses involving his two minor children.
On January 4, 1994, Appellant entered a plea of guilty to the following: Count Ten, rape,
a felony of the first degree; Count Twelve, rape, a felony of the first degree; and Count
Twenty-three, gross sexual imposition, a felony of the third degree. All other counts were
dismissed. Appellant was sentenced to an indefinite term of five to twenty-five years in
prison on Counts Ten and Twelve, and a two year sentence on Count Twenty-three, all
terms to be served concurrently.
{¶3} Appellant has filed various motions for documents and transcripts related to
his criminal convictions. Also, on September 25, 2015, Appellant filed a motion for bond
with the trial court.
{¶4} Via Judgment Entry of November 18, 2015, the trial court denied the various
motions and Appellant’s motion for bond.
{¶5} On December 7, 2015, Appellant filed a request for leave to file “delay of
appeal” with this Court. Appellant stated he had newly discovered evidence, believed his
rights were violated and he is being unlawfully incarcerated. Appellant made claims of
Guernsey County, Case No. 15 CA 28 3
ineffective assistance of counsel, and prosecutorial misconduct. Appellant sought leave
to appeal the trial court’s entry dated January 7, 1994.
{¶6} Via Judgment Entry of January 19, 2016, this Court denied Appellant’s
motion for “Request for Leave to File Delay of Appeal.” However, this Court found
Appellant’s appeal filed on December 7, 2015, would be timely as to the trial court’s
November 18, 2015 Judgment Entry, and allowed Appellant’s appeal to proceed as to
any errors in that entry only.
{¶7} Appellant assigns as error:
{¶8} “I. DELIBERATE INDIFFERENCE.”
{¶9} “II. DELIBERATE INDIFFERENCE. INAFFECTIVE [SIC] ASSISTANCE OF
COUNSEL.
{¶10} “III. APPELLANT WAS NOT ADVISED OF HIS RIGHT TO APPEAL.”
I, II, III.
{¶11} Upon review of Appellant’s assigned errors, we find the same do not relate
to the November 18, 2015 Judgment Entry; Appellant’s request for documents and
transcripts; or his request for bond. Rather, the arguments challenge Appellant’s
underlying convictions and the trial court’s January 4, 1994 Judgment Entry. Accordingly,
we find Appellant’s assignments of error barred by the doctrine of res judicata as they
were capable of being raised on direct appeal.
{¶12} Appellant’s first, second, and third assignments of error are overruled.
Guernsey County, Case No. 15 CA 28 4
{¶13} The November 18, 2015 Judgment Entry of the Guernsey County Court of
Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur
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Robert P. Smallwood v. State of Maryland, No. 2169, September Term, 2016. Opinion
by Fader, J.
MD. RULE 4-345(A) – MOTION TO CORERCT AN ILLEGAL SENTENCE;
RIGHT TO COUNSEL
The imposition of a new sentence after a court grants a motion to correct an illegal sentence
under Rule 4-345(a) is a sentencing at which a convicted person has the right to counsel.
The right to counsel attaches because sentencing is a critical stage of a criminal proceeding
and because the defendant has a due process right to counsel at a proceeding that may affect
the fact and length of future incarceration.
Circuit Court for Baltimore City
Case No. 18204820
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2169
September Term, 2016
ROBERT P. SMALLWOOD
v.
STATE OF MARYLAND
Wright,
Beachley,
Fader,
JJ.
Opinion by Fader, J.
Filed: June 4, 2018
The appellant, Robert P. Smallwood, presents us with the question of whether an
incarcerated individual whom a circuit court has determined is imprisoned on an illegal
sentence, and thus must be resentenced, has a right to counsel for the resentencing. We
hold that he or she does.
BACKGROUND
In 1982, a jury sitting in the Circuit Court for Baltimore City found Mr. Smallwood
guilty of first-degree murder and use of a handgun in the commission of a crime of
violence. After a dialogue in which the court made clear its intent to provide Mr.
Smallwood with credit for 72 days he had served while awaiting trial, the court pronounced
Mr. Smallwood’s sentence on the murder count as “for the term of his natural life less 72
days,” concurrent with a sentence of 15 years for the handgun conviction. On direct appeal,
we affirmed.
Thirty years later, Mr. Smallwood filed a pro se motion to correct an illegal sentence
pursuant to Rule 4-345(a) in which he contended that his sentence was “ambiguous,
indefinite, and therefore illegal.” In a February 2013 hearing, Mr. Smallwood made the
somewhat contradictory arguments: (1) that his original sentence of “life less 72 days”
was ambiguous and vague; and (2) that the sentence required the State to calculate his
remaining life expectancy so that it could set a release date 72 days before his expected
death. Although the motions court judge was initially skeptical, she ended up granting his
motion.1 She then, in the same hearing, imposed a new sentence: “Your sentence for the
1
The motions court judge did not identify the basis on which she found the original
sentence illegal. In announcing her decision, the court stated: “So, Mr. Smallwood, I’ll
murder, sir, will be life suspend all but 80 years. And, for the concurrent sentence, it’s 15
years and you get credit for the 72 days.” The court also added five years’ probation to the
split sentence.
Two other aspects of the relatively brief hearing are noteworthy for our purposes.
First, on two occasions Mr. Smallwood raised his lack of counsel. Early in the hearing,
Mr. Smallwood stated: “I’m sorry. I want to apologize, too. I don’t have counsel. I tried
to get counsel for years; I couldn’t do it. So, I tried to speak as best I could.” And just
before the court ruled, Mr. Smallwood again addressed his lack of counsel:
See, that’s why I knew I shouldn’t have came back without an attorney. I
tried for years to get an attorney. I already knew this was – this sentence was
ambiguous. I knew it was vague. I tried for years to get an attorney; I
couldn’t put myself in a position to get one, so I decided to come down here
anyway because I’m getting – you know, I got 31 years in, so I can’t wait
any longer.
The court did not follow up on either occasion.
Second, after imposing the new sentence, the court requested the assistance of an
Assistant State’s Attorney not involved in Mr. Smallwood’s case to advise Mr. Smallwood
of his appeal rights. The prosecutor advised Mr. Smallwood that he had 90 days to file a
motion to modify his new sentence and 30 days to ask a three-judge panel to review his
grant your request. I will modify your sentence, and I’m going to note the objection of the
State.” Of course, Mr. Smallwood’s request was not to modify his sentence, which would
have been untimely, but to correct an illegal sentence. Both the State and Mr. Smallwood
agree that the circuit court’s action, in context, should be understood as having granted the
motion that was before it, and not as improperly granting a modification that was not, and
could not properly have been, requested. We agree.
2
new sentence, but that he had no direct appeal right. Neither Mr. Smallwood nor the State
took an appeal at that time.
More than a year later, in July 2014, Mr. Smallwood filed a pro se postconviction
petition challenging the motions court’s failure to provide him with counsel or advise him
of his right to counsel at resentencing. Mr. Smallwood conceded that he did not have a
right to counsel for the presentation of his motion, but argued that once the court found his
“sentence illegal, then the only thing to do is impose a new sentence. And at that new
sentencing procedure, I’m saying I should have been advised of my right to an attorney.”
After the postconviction court raised sua sponte whether Mr. Smallwood’s postconviction
claim should have been raised on direct appeal, the court learned that Mr. Smallwood had
been advised that he had no right to appeal. In supplemental briefing, the State conceded
that Mr. Smallwood had a right to direct appeal of his new sentence and suggested that “the
appropriate remedy is to allow [Mr. Smallwood] to file a belated appeal.”
In a written opinion, the postconviction court rejected Mr. Smallwood’s right-to-
counsel claim. The court held that the right to counsel applies only through direct appeal,
and does not extend to collateral proceedings like a motion to correct an illegal sentence.
But, noting the State’s concession as to Mr. Smallwood’s appeal rights, the postconviction
court awarded Mr. Smallwood the right to file a belated appeal from the order imposing
his new sentence. Mr. Smallwood’s belated appeal is the matter now before us.
DISCUSSION
Although this matter arises out of a rather complicated procedural history, most of
that is irrelevant to the straightforward issue before us: Once a court has granted a motion
3
to correct an illegal sentence, and so is going to impose a new sentence, does the convicted
person have a right to counsel? We hold that he or she does.2
I. MR. SMALLWOOD’S APPEAL IS PROPERLY BEFORE THIS COURT.
The State raises three arguments as to why we cannot, or should not, address the
merits of Mr. Smallwood’s right-to-counsel claim in this appeal.3
First, the State argues that Mr. Smallwood has no right to appeal from the circuit
court’s grant of his motion to correct an illegal sentence. But Mr. Smallwood appeals from
the sentence imposed by the circuit court, not from the grant of his motion. To accept the
State’s argument would require us to hold that no sentence imposed by a court after
granting a motion to correct an illegal sentence could be subject to direct challenge by the
2
We take no position as to whether Mr. Smallwood’s initial sentence was illegal or
whether the motions court erred in granting that motion. The State concedes that we are
not in position to address that decision because the State did not appeal from it. We do,
however, note that Mr. Smallwood’s claim here is based entirely on the specific language
used by the trial court in imposing his sentence for murder: “for the term of his natural life
less 72 days.” Mr. Smallwood did not argue that there is any inherent ambiguity in
imposing a life sentence in which credit is awarded for time served. To the contrary, he
argued that the court’s reference to 72 days was not intended merely to provide credit for
time served, but was instead intended to limit the time he would serve going forward to 72
days less than the anticipated length of his natural life. Thus, the issue before the motions
court was whether the specific language “life less 72 days” was vague and ambiguous—
Mr. Smallwood argued that it was; the State argued that, especially in the | {
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___________
No. 95-2868
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Judith K. Bledsoe, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: December 21, 1995
Filed: December 28, 1995
___________
Before BOWMAN, BEAM, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Judith K. Bledsoe appeals the sentence imposed by the district court1
following her guilty plea to interstate transportation of a security taken
by fraud with a value of $5,000 or more, in violation of 18 U.S.C. § 2314.
We affirm.
While working as a bookkeeper for a Nebraska automobile dealership,
Bledsoe wrote five checks (totaling $32,320) to herself from the company's
business account by forging the owner's signature. After writing the
checks, Bledsoe deposited them in her personal bank account in Iowa,
entered them as void on the company's computer and ledgers, removed the
forged checks from the
1
The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
bank statement, and inflated the amounts on legitimate checks to reconcile
the bank statement. Just before obtaining the Nebraska position, Bledsoe
had worked as a bookkeeper for a Nevada truck center. The manager of the
truck center alleged that over the course of three years Bledsoe embezzled
at least $131,000 from the company by forging his signature on checks drawn
on a credit card account. A police report indicated that Bledsoe admitted
she wrote the checks, deposited them in her personal bank account, and
manipulated the company's books and computer records to avoid detection.
A criminal complaint was filed against Bledsoe in Nevada, charging her with
seven counts of embezzlement.
At sentencing on the instant offense, Bledsoe objected to the
presentence report's recommendation to hold her responsible for a total
loss exceeding $120,000. Specifically, Bledsoe argued that the then-
pending Nevada charges could not be used as relevant conduct. Bledsoe also
objected to a recommended U.S.S.G. § 3B1.3 abuse-of-trust enhancement. The
district court overruled Bledsoe's objections, sentenced her to 15 months
imprisonment and three years supervised release, and ordered her to pay
$32,320 in restitution.
On appeal, Bledsoe argues that the district court erred by using the
Nevada charges to determine the amount of loss. We review a district
court's application of the Sentencing Guidelines de novo, and its factual
findings regarding whether a defendant's acts constituted relevant conduct
for clear error. United States v. Ballew, 40 F.3d 936, 943 (8th Cir.
1994), cert. denied, 115 S. Ct. 1813 (1995). For offenses like Bledsoe's
that are grouped, see U.S.S.G. § 3D1.2(d), relevant conduct includes acts
"that were part of the same course of conduct or common scheme or plan as
the offense of conviction." U.S.S.G. § 1B1.3(a)(2). "The cumulative loss
produced by a common scheme or course of conduct should be used in
determining the offense level [for fraud], regardless of the number of
counts of conviction." U.S.S.G. § 2F1.1, comment. (n.6); see also United
States v. Galloway, 976
-2-
F.2d 414, 425 (8th Cir. 1992) (en banc) (under § 1B1.3, sentencing court
may consider conduct beyond count of conviction), cert. denied, 113 S. Ct.
1420 (1993). To be part of a common scheme or plan, multiple offenses must
be substantially connected by at least one common factor, such as "`common
victims, common accomplices, common purposes or similar modus operandi.'"
United States v. Sheahan, 31 F.3d 595, 599 (8th Cir. 1994) (citing U.S.S.G.
§ 1B1.3, comment. (n.9)).
We conclude the district court did not err in its application of
section 1B1.3 or in its finding that Bledsoe's Nevada charges should be
used to determine the amount of loss. The undisputed facts show that
Bledsoe used a similar modus operandi to commit both offenses, see id. at
(n.9(A)) (similarity of modus operandi includes using similar computer
manipulations to execute scheme), and that only three months separated her
conduct in Nevada and Nebraska. Bledsoe's self-incrimination rights were
not implicated because she was not "compelled" to testify about the Nevada
charges at the sentencing hearing, and there was no double jeopardy
violation. See U.S. Const. amend. V; Witte v. United States, 115 S. Ct.
2199, 2207-08 (1995) (double jeopardy rights not implicated where
sentencing court considers "related conduct outside the elements of the
crime" because defendant "is still punished only for the fact that the
present offense was carried out in a manner that warrants increased
punishment, not for a different offense (which that related conduct may or
may not constitute)"). Bledsoe's due process claim likewise fails. Cf.
Galloway, 976 F.2d at 425-26 (due process rights not implicated when
application of § 1B1.3 caused almost three-fold increase in sentence).
Bledsoe also argues that the district court erred by assessing the
abuse-of-trust enhancement. Section 3B1.3 requires a sentencing court to
assess a two-level enhancement "[i]f the defendant abused a position of
. . . private trust . . . in a manner that significantly facilitated the
commission or concealment
-3-
of the offense." A district court's assessment of a section 3B1.3
enhancement is entitled to great deference and will not be reversed unless
it is clearly erroneous. United States v. Johns, 15 F.3d 740, 744 (8th
Cir. 1994). After reviewing the record, we conclude the district court did
not clearly err by finding that Bledsoe had abused a private trust, because
her conduct exceeded "taking money from the till," and she used her
position to facilitate and conceal her actions. Cf. United States v.
Brelsford, 982 F.2d 269, 271-73 (8th Cir. 1992) (affirming § 3B1.3
enhancement where bank "teller supervisor" was responsible for maintaining
and reviewing reports and used position to conceal embezzlement of bank
funds).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-
| {
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2688
__________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
*
Michael Suitt, *
*
Appellant. *
___________
Submitted: January 13, 2009
Filed: June 25, 2009
___________
Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Michael Suitt appeals the district court’s1 denial of his motion to suppress
evidence that he possessed with intent to distribute 100 kilograms or more of
marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). We affirm.
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
-1-
I.
Dallas County, Iowa, Deputy Sheriff Scott Faiferlick (“Deputy Faiferlick”) was
driving to work with his canine when he observed the appellant, Michael Suitt, driving
over the speed limit in a white Ford pickup truck. Observing that Suitt’s truck
appeared to have an expired registration, Deputy Faiferlick used a computer in his car
to run a check on Suitt’s license plate. The check confirmed that Suitt’s registration
had expired.
At 11:31 a.m., Deputy Faiferlick stopped Suitt’s vehicle. After checking Suitt’s
driver’s license, proof of insurance, and vehicle registration, Deputy Faiferlick asked
Suitt to exit his vehicle and accompany him to the patrol car while Deputy Faiferlick
ran additional checks on Suitt’s license and registration. At the suppression hearing,
Deputy Faiferlick explained that he wanted to run additional checks because the
database used by dispatch is more complete than the database accessed via his car
computer. At 11:34 a.m., Deputy Faiferlick told Suitt that he was going to issue a
warning ticket.
While writing the warning ticket, Deputy Faiferlick began asking Suitt routine
questions about his trip. When asked where he was going, Suitt hesitated and
answered that he was heading to Ohio, but could not name the city. When asked
whom he was going to see, Suitt said that he was going to see family. When asked for
specifics, he replied, “I have some family and friends out there.” When asked how
long he would be in Ohio, Suitt said “as much time as I like.” Throughout this
questioning, Deputy Faiferlick observed that Suitt appeared nervous and fidgety.
At 11:39 a.m., Deputy Faiferlick ran the second registration check, this time
-2-
having dispatch use its database.2 At 11:44 a.m., Deputy Faiferlick gave Suitt a
warning ticket and returned his driver’s license. As Suitt was walking away, Deputy
Faiferlick asked Suitt whether he had “half a minute” to answer a few final questions.
Suitt said that he did, and Deputy Faiferlick then asked him whether he had any
contraband in the car. Suitt denied that he had anything illegal. Deputy Faiferlick
then asked for permission to search the vehicle. Suitt refused to consent, saying that
“I mean I’m kind of in a hurry right now,” and “I’m on a tight schedule.” At this point
Deputy Faiferlick decided to walk his drug dog around Suitt’s vehicle. At the
suppression hearing, Deputy Faiferlick testified that Suitt’s claim to be on a tight
schedule triggered his decision to conduct a dog sniff because it seemed suspicious
in light of Suitt’s earlier statements implying that he was not in a hurry. At 11:47
a.m., Deputy Faiferlick’s canine, Hank, alerted to the bed of Suitt’s truck. Deputy
Faiferlick then opened the bed of the pickup and discovered 32 bales of marijuana.
After being indicted on one count of possession with intent to distribute 100
kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)
and one count of forfeiture under 21 U.S.C. § 853, Suitt filed a motion to suppress
evidence, which the district court denied. Subsequently, this Court decided United
States v. Peralez, 526 F.3d 1115 (8th Cir. 2008), in which we held that drug
interdiction questions that prolonged a traffic stop for 10 minutes beyond the point at
which the officer decided to issue a traffic citation unreasonably prolonged the
detention under the Fourth Amendment. Id. at 118. Suitt then filed a supplemental
motion for reconsideration of the denial of his motion to suppress citing our decision
in Peralez. The district court denied this motion for reconsideration finding that
Peralez did not apply because Deputy Faiferlick did not ask drug interdiction
questions, but only routine traffic questions, and therefore he did not unreasonably
prolong the stop. Suitt subsequently pled guilty to the possession with intent to
2
Apparently, at 11:41 a.m., Faiferlick also conducted a third check on his car
computer, just as he had done prior to the stop.
-3-
distribute charge and was sentenced to 60 months imprisonment, but conditioned his
plea on the appeal of the denial of his motion to suppress.
II.
“We review a district court’s factual findings for clear error and legal
conclusions de novo when reviewing the denial of a motion to suppress.” United
States v. McGlothen, 556 F.3d 698, 701 (8th Cir. 2009). Stated succinctly, the
primary issue in this case is whether the dog sniff that led to the discovery of the
marijuana stored in Suitt’s automobile was the result of an unconstitutionally
prolonged traffic stop. Suitt’s basic contention is that Deputy Faiferlick used routine
traffic questioning as a pretext to prolong the stop and manufacture a basis on which
he could search Suitt’s vehicle. Suitt also argues that the marijuana should be
suppressed because the dog sniff was conducted in response to the exercise of his
constitutional right to refuse consent to a search.
Dog sniffs of the exterior of a vehicle are not searches under the Fourth
Amendment. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir.
2007). “Such a dog sniff may be the product of an unconstitutional seizure, however,
if the traffic stop is unreasonably prolonged before the dog is employed.” United
States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006), cert. denied, 549 U.S. 1118
(2007) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Such a situation might
typically occur when an officer unreasonably lengthens a roadside detention until
another officer can bring a drug dog to the scene. However, Deputy Faiferlick had his
drug dog with him when he stopped Suitt. Thus, we note as an initial flaw in Suitt’s
argument the fact that Deputy Faiferlick did not need any justifiable suspicion under
the Fourth Amendment to legally conduct the dog sniff. Having said that, the dog
sniff was nonetheless impermissible if it was the result of an unconstitutionally
prolonged traffic stop. See Peralez, 526 F.3d at 1119; Alexander, 448 F.3d at 1016.
-4-
“The Supreme Court has analogized roadside questioning during a traffic stop
to a Terry stop, which allows an officer with reasonable suspicion to detain an
individual in order to ask ‘a moderate number of questions to determine his identity
and to try to obtain information confirming or dispelling the officer’s suspicions.’”
United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001) (quoting
Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). “A constitutionally permissible
traffic stop can become unlawful, however, ‘if it is prolonged beyond the time
reasonably required to complete’ its purpose.” Peralez, 526 F.3d at 1119 (quoting
Caballes, 543 U.S. at 407). “During a traffic stop, an officer may detain the occupants
of the vehicle while the officer completes a number of routine but somewhat time-
consuming tasks related to the traffic violation.” Id. (quotation omitted). “A
reasonable investigation includes asking for the driver’s license, the vehicle’s
registration, as well as inquiring about the occupants’ destination, route, and purpose.”
United States v. Sanchez, 417 F.3d 971, 975 (8th Cir. 2005) (quotation omitted).
“Whether a particular detention is reasonable | {
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34 F.3d 1073
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Merle L. ROYSE, Plaintiff-Appellant,v.Joseph D. LEHMAN; Michael Ponti; Walter L. Kautzky; ChaseA. Riveland, Defendants-Appellees.
No. 93-36118.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 3, 1994.*Decided Aug. 9, 1994.
Before: WALLACE, Chief Judge, HUG and RYMER, Circuit Judges.
1
Merle L. Royse, a Washington state prisoner, appeals pro se the district court's summary judgment for defendants in Royse's 42 U.S.C. Sec. 1983 action alleging that prison officials violated Royse's constitutional rights by failing to provide Royse with a television set in order to watch prison educational programs. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review de novo, Tipton v. University of Hawaii, 15 F.3d 922, 925 (9th Cir.1994), and affirm.
2
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows that no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. Id. To defeat a summary judgment motion, the nonmoving party must come forward with evidence "sufficient to establish the existence of any elements that are essential to that party's case, and for which that party will bear the burden of proof at trial." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party opposing summary judgment cannot rest on conclusory allegations but must set forth specific facts showing that there is a genuine issue for trial. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir.1988). There is no genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Taylor, 880 F.2d at 1045.
3
Royse contends that he was denied equal protection of the law because other prisoners obtained televisions when he did not. This contention lacks merit.
4
"Section 1983 provides a remedy for violations of the equal protection clause of the fourteenth amendment." Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir.1991). In order to prove discrimination in violation of Sec. 1983, however, a plaintiff "must demonstrate that the defendants acted with the intent to discriminate." Id. Conclusory allegations by themselves do not establish an equal protection violation without proof of invidious discriminatory intent. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Merely treating two groups differently does not necessarily violate the equal protection clause. Bonner v. Lewis, 857 F.2d 559, 565 (9th Cir.1988).
5
Here, the defendants moved for summary judgment, submitting evidence that the availability of prison supplied in-cell television sets was very limited when Royse filed his action on April 29, 1987, and that the prison medical staff apportioned the available televisions to those inmates most in need, based on the staff's determination of the inmates' medical and rehabilitative condition. The medical staff did not consider Royse sufficiently needy, in part because he had sufficient mobility to reach the unit's TV viewing room. Royse was placed on a waiting list and obtained a television set in late 1987.
6
Although the district court advised Royse of the necessity to submit evidence to counter defendants' motion, Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988), Royse failed to proffer any evidence supporting his claim. Royse's allegations that he was denied a television because of his religion or in retaliation for his filing of grievances, unsupported by affidavits or specific facts, were insufficient to withstand the defendants' motion for summary judgment. See Taylor, 880 F.2d at 1045. Royse also failed to present any evidence demonstrating a causal connection between the actions of any named defendant and the temporary denial of his television. See Rizzo, 423 U.S. at 375; Leer, 844 F.2d at 633-34. Royse's apparent disagreement with the prison medical staff's decision that other inmates had a greater need for an in-cell television than Royse fails to raise a genuine issue of material fact that defendants treated him differently from other inmates on the waiting list, or that their actions were motivated by the intention to discriminate against him. Thus, his equal protection claim is deficient. See Village of Arlington Heights, 429 U.S. at 265.
7
Royse contends, however, that he raised a material issue of fact sufficient to defeat summary judgment regarding the extent of defendant Tana Wood's knowledge that he was medically unassigned for work. Royse does not indicate, however, how Superintendent Wood's knowledge of his medical record would defeat summary judgment for the defendants. Accordingly, he has not presented evidence of a material dispute and the district court did not err by granting summary judgment for the defendants on Royse's equal protection claim. See Fed.R.Civ.P. 56(c); Taylor, 880 F.2d at 1044.
8
Royse also contends that the district court erred in an earlier order which dismissed as defendants the State of Washington and the Department of Corrections.1 This contention lacks merit.
9
The Eleventh Amendment generally bars actions in federal court against states or state agencies. See Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir.1991), cert. denied, 112 S.Ct. 1478 (1992); Durning v. Citibank, N.A., 950 F.2d 1419, 1428 (9th Cir.1991). The Eleventh Amendment does not bar claims for prospective injunctive relief against state officials acting in their official capacities. Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992). Accordingly, the district court properly dismissed the State of Washington and the Department of Corrections because Royse sought statewide prospective declaratory and injunctive relief against the State and a state agency. See Durning, 950 F.2d at 1428. The district court properly allowed the action to proceed against the defendant prison officials in their official capacities. See Eu, 979 F.2d at 704.
10
Royse also contends that the magistrate judge lacked authority to deny his motion for a preliminary injunction and to close his district court case while Royse appealed the denial. Because Royse's case was reopened by the district court and proceeded to judgment, these issues are moot. See Mafnas v. Superior Court, 936 F.2d 1068, 1071 (9th Cir.1991) (case is moot if reviewing court can no longer grant effective relief); Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir.1992) (when underlying claims have been decided, the reversal of a denial of a preliminary injunction would have no practical consequences and the issue is therefore moot).
11
In his reply brief, Royse appeals the district court's award of costs in the amount of $31.40 to the defendants. While we ordinarily do not consider issues raised for the first time in a reply brief, see Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990), because Royse is proceeding pro se, in the exercise of our discretion we will address this contention.
12
A prevailing party is ordinarily entitled to recover costs. See Fed.R.Civ.P. 54(d). This is so even in the case of indigent litigants who have been granted leave to proceed in forma pauperis. 28 U.S.C. Sec. 1915(e). However, the defendants' bill of costs includes the sum of $20.00 for a docketing fee under 28 U.S.C. Sec. 1923. There is no evidence in the record, however, that defendants ever paid any docketing fee for their appearance in federal court. Accordingly, we affirm the district court's imposition of costs, but reduce the amount to $11.40.
13
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
The defendants contend that this court lacks jurisdiction to consider any issues unrelated to the district court's grant of summary judgment. | {
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70 F.3d 1266
U.S.v.Aclese*
NO. 95-40109
United States Court of Appeals,Fifth Circuit.
Oct 17, 1995
Appeal From: E.D.Tex., No. 1:94-CR-81-2
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
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Order entered May 27, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00202-CV
MILLBROOK HEALTHCARE AND REHABILITATION CENTER, Appellant
V.
SHAUNDRA EDWARDS, ON BEHALF OF
THE ESTATE OF GEORGIA CULLENS, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-07856-A
ORDER
We GRANT appellant’s May 23, 2014 unopposed motion for an extension of time to file
a reply brief. We ORDER the reply brief tendered by appellant on May 23, 2014 filed as of the
date of this order.
/s/ ADA BROWN
JUSTICE
| {
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340 F.3d 824
Emma Mercado, Plaintiff-Appellant,v.Allstate Insurance Company, Defendant-Appellee.
No. 02-55997.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 4, 2003.
Filed August 18, 2003.
Ralph Rogari, Rehm & Rogari, Los Angeles, California, for the plaintiff-appellant.
Michael M. Pollak, Daniel P. Barer, Lawrence J. Sher, Pollak, Vida & Fisher, Los Angeles, California, for the defendant-appellee.
Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-01-03195-ABC.
Before David R. Thompson, Stephen S. Trott, and Richard C. Tallman, Circuit Judges.
OPINION
THOMPSON, Circuit Judge.
1
Emma Mercado appeals the district court's denial of her motion to remand this insurance bad faith action to state court and the district court's summary judgment in favor of Allstate Insurance Company. Mercado argues the district court erred in concluding that (1) Silvia Luevano was a sham defendant included in the action to defeat federal jurisdiction; (2) Mercado's bad faith claim against Allstate is foreclosed by Hamilton v. Maryland Cas. Co., 27 Cal.4th 718, 117 Cal.Rptr.2d 318, 41 P.3d 128 (2002); and (3) Allstate did not commit an unfair business practice by insisting that third parties be added as payees to a proposed settlement check, or by failing to increase a $15,000 policy liability limit by $1000 under the policy's medical payments provision. Mercado also contends the district court should have permitted her to submit further evidence in opposition to Allstate's summary judgment motion. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
BACKGROUND
2
While crossing the street as a pedestrian, Emma Mercado was struck by a car driven by Brenda Brannon. Mercado filed a negligence action against Brannon in state court. Brannon's insurer, Allstate, paid an attorney to defend the case. Settlement discussions ensued. Allstate offered to pay Mercado $15,000, the liability limit of Brannon's insurance policy, provided Los Angeles County, which had rendered medical services to Mercado, and Isaac Nalive, Mercado's former attorney who claimed a lien on any settlement proceeds, were added as payees on the settlement check. Brannon offered to sweeten the pot by adding $5,000 of her own money to the settlement. Mercado rejected the offers.
3
Mercado and Brannon then entered into a settlement by which Brannon agreed to stipulate to judgment for $150,000 in favor of Mercado, Mercado agreed not to enforce the judgment by levy against any assets of Brannon, and Brannon agreed to assign to Mercado all claims for bad faith against Allstate. Allstate's attorney, Ronald Kent, wrote a letter to Brannon's attorney, Jay McClaugherty, stating that Allstate did "not agree to the transaction contemplated by the agreement," but that McClaugherty should advise Brannon "to take those steps which you believe to be in her best interests." Mercado and Brannon then consummated their settlement. Mercado obtained a stipulated judgment against Brannon for $150,000, and Brannon assigned to Mercado
4
all claims and causes of action Brannon may now have or hereafter acquire against Allstate based upon the policy, on any breach of the covenant of good faith and fair dealing or its failure and refusal to settle with Mercado, except any claim for emotional distress or punitive damages against Allstate.
5
Thereafter, Mercado filed the complaint in the present action against Allstate and Silvia Luevano. Luevano was the Allstate employee who had handled the Mercado claim. Mercado alleged that Allstate and Luevano had breached the covenant of good faith and fair dealing. She also alleged that Allstate and Luevano had committed unfair business practices under California Business and Professions Code § 17200 by insisting that Los Angeles County and Attorney Nalive be added as payees on Allstate's proffered $15,000 settlement check, and by not including in its settlement offer an additional $1,000 under the medical payments provision of Brannon's policy.
6
Allstate removed the case to the district court, and Mercado moved to remand it back to state court. The district court denied the remand motion. The court determined that Luevano had been fraudulently joined as a defendant to defeat diversity jurisdiction, and as a result her presence in the litigation would be disregarded; thus, there was complete diversity between the parties. After a stay of proceedings pending a ruling by the California Supreme Court in Hamilton v. Maryland Cas. Co., 27 Cal.4th 718, 117 Cal.Rptr.2d 318, 41 P.3d 128 (2002), the district court granted summary judgment in favor of Allstate. This appeal followed.
DISCUSSION
I. Fraudulent Joinder
7
"Fraudulent joinder is a term of art. If the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent." McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.1987).
8
All of Mercado's allegations against Luevano pertain to actions she took in her capacity as an Allstate employee. It is well established that, unless an agent or employee acts as a dual agent (a circumstance not present in this case), she cannot be held individually liable as a defendant unless she acts for her own personal advantage.1 See McCabe, 811 F.2d at 1339 (concluding defendant-employees were fraudulently joined because sworn declarations indicated that they acted in the interest of their employer). At all times during her dealings with Mercado, Luevano acted as Allstate's agent. Accordingly, Luevano is not individually liable. See Lippert v. Bailey, 241 Cal.App.2d 376, 382-83, 50 Cal.Rptr. 478 (1966) (insurance agents not independently liable for negligent failure to provide adequate insurance); Good v. Prudential Ins. Co., 5 F.Supp.2d 804, 807-09 (N.D.Cal.1998) (insurance agent was a sham defendant because, under Lippert, he would not be independently liable for fraud). The district court did not err in concluding that Luevano was a fraudulently named defendant. Mercado's remand motion was properly denied.
II. Allstate's Liability
9
Mercado argues the district court erred in concluding that the California Supreme Court's decision in Hamilton v. Maryland Cas. Co., 27 Cal.4th 718, 117 Cal.Rptr.2d 318, 41 P.3d 128 (2002), foreclosed Allstate's liability for the stipulated judgment. She contends the Hamilton holding only applies to contract claims for bad faith, not to tort claims for bad faith as in the present case. We disagree.
10
The relevant facts in the present case are similar to those in Hamilton, except for the circumstance that the assigned claim in Hamilton was a contract claim for breach of the covenant of good faith and fair dealing, and the assigned claim Mercado is pursuing in the present case is a tort claim grounded in the alleged breach of the covenant of good faith and fair dealing. The Hamilton court explained that a bad faith refusal to settle may give rise to either a breach of contract or a tort claim:
11
An unreasonable refusal to settle may subject the insurer to liability for the entire amount of judgment rendered against the insured, including any portion in excess of the policy limits. (citations omitted). Though an action for the insurer's breach of the covenant of good faith and fair dealing sounds in both contract and tort (citation omitted), we are concerned here only with liability for breach of contract, for that is the only cause of action [the insured] assigned to plaintiffs.
12
Hamilton, 27 Cal.4th at 725, 117 Cal. Rptr.2d 318, 41 P.3d 128.
13
The inquiry concerning the breach of the tort duty in this case is the same as the inquiry concerning the breach of the contract duty in Hamilton. The salient question in each case is whether the insurer rejected the settlement in good faith, not whether the form of the claim is contract or tort. Accordingly, the Hamilton rule applies to the tort claim asserted by the plaintiff in this case. That rule provides that an insurer is not obligated, by the duty imposed upon it through the covenant of good faith and fair dealing, to pay a stipulated judgment between its insured and the plaintiff when the insurer is (1) tendering a defense in the action, (2) the insured will suffer no damage from the stipulated judgment, and (3) the insurer did not participate in, nor agree to, the settlement. See Hamilton, 27 Cal.4th at 722, 117 Cal.Rptr.2d 318, 41 P.3d 128. The Hamilton court made clear, "As long as the insurer is providing a defense [in the underlying action], the insurer is allowed to proceed through trial to judgment [in that action]." Id. at 732, 117 Cal. Rptr.2d 318, 41 P.3 | {
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82 Cal.App.2d 844 (1947)
DANIEL SCANNELL et al., Respondents,
v.
DANIEL C. MURPHY, Appellant.
Civ. No. 13442.
California Court of Appeals. First Dist., Div. One.
Dec. 12, 1947.
John J. O'Toole, City Attorney, Geo. A. Helmer and Edward I. Fitzpatrick, Deputy City Attorneys, and Raymond D. Williamson for Appellant.
Charles P. Scully for Respondents.
PETERS, P. J.
The respondents on this appeal are within the civil service classifications of jailer, captain of the watch, jail matron and operating engineer, and all worked during the fiscal year 1944-1945 in the department of the appellant, the Sheriff of San Francisco, in the city and county jails on a rotating three shift basis, 8 a. m. to 4 p. m.; 4 p. m. to midnight; and midnight to 8 a. m. It is admitted that during the fiscal year in question all of the petitioners worked some time on the two night shifts and some time on the day shift. The respondents claim, and the trial court found that, although the sheriff has certified that these respondents worked on eight- hour shifts, for six days a week, he has refused to certify that part of this period was worked on the night shifts. This becomes important because, under the salary ordinance then in effect, employees on a monthly salary were entitled to overtime for over 40 hours work on a day shift and for over 37 1/2 hours work on a night shift. Admittedly, the sheriff has certified that these employees were on eight-hour shifts for six days a week, and the employees have accordingly been paid overtime at the day rate overtime basis for 48 hours work, which is 20 per cent in excess of regular salary. The excess overtime pay fixed by the ordinance for night shift overtime pay for a 48-hour work week is 27 1/2 per cent of normal salary. Respondents contend that during the period they worked night shifts they were entitled to this excess of 7 1/2 per cent. The trial court, by peremptory writ of mandate, has directed the sheriff to "prepare, approve, sign, and transmit to the Civil Service Commission of the City and County of San Francisco, State of California, timerolls or payrolls for each month included in the fiscal year commencing July 1, 1944, and ending June 30, 1945, ... showing that said work of each said petitioner was for 8 hours per day for 6 days per week on night shifts." From this judgment the sheriff appeals. *846
It should be mentioned that the Civil Service Commission, the city, and the controller were originally made parties to this proceeding, but their demurrers were sustained, apparently on the theory that they were under no duty to act until the head of the department certified the payrolls.
The pertinent statutory provisions are as follows: Section 2.2(c) of the 1944-1945 salary ordinance provided: "Night Shifts: Seven and one-half hours per day and five days per week shall constitute the normal work day and week for calculating the compensations for employees whose compensations are fixed herein on a monthly basis and who work on night shifts. A night shift is any full time shift which commences after 2 p. m. and prior to 6 a. m."
Section 2.3(b) provided: "Pursuant to the provisions of Section 4, Subdivision (f) of the Salary Standardization ordinance department heads may require occupants of the following specified positions the salaries for which are based on a monthly basis to work in excess of the five days and 40 hours for day shifts and five days of 7 1/2 hours for night shifts for the number of hours hereinafter specified. Employees required to work in excess of the normal work weeks as above specified shall be compensated as follows: ..."
Night Shifts ...
48 hours, 27 1/2% above the compensation fixed herein for their respective classifications ...
Sheriff ...
D 52 Jail Matron ...
D 60 Jailer
D 64 Captain of Watch ...
0168.1 Operating Engineer.""
At all pertinent times section 150 of the city charter provided as follows:
"All personal services shall be paid by warrants on the basis of a claim, bill, timeroll or payroll approved by the head of the department or office employing such service. The claims, bills or payrolls hereinafter designated as payrolls, for salaries, wages or compensation for personal services of all officers, assistants and employees of every class or description, without regard to the name or title by which they are known, for each department or office of the city and county shall be transmitted to the civil service commission before presentation to the controller. *847"
"The secretary of the commission shall examine and approve such payroll for all persons legally appointed to or employed in positions legally established under this charter. The payrolls thus approved, with notation of any item thereof disapproved, shall be then certified by the secretary to the commission and transmitted by him to the controller. The controller shall not approve and the treasurer shall not pay any claim for personal services, or pay check or warrant for salary, wages or compensation unless the same shall have been approved by the said secretary."
It was the position of appellant in the lower court, and it is his position here, that while respondents were working on the two night shifts, they only worked for seven and one-half hours and that the other half hour spent in the jail on the various eight-hour shifts was free time devoted to the eating of a meal. In this connection appellant calls particular attention to the language of section 2.3(b) of the salary ordinance permitting department heads to "require" employees to work overtime, and contends that there is no evidence that he ever "required" or "directed" his employees to work in excess of the seven and one-half hours per day. It is his thought that this section demands that before overtime is allowed the head of the department must expressly order his employees to work overtime and that an implied order is not sufficient.
There is no doubt that the appellant, and his undersheriff William Hollingbery, Jr., testified that all of the jail employees on all shifts put in but seven and one-half hours of work, and were permitted one-half hour on each shift free time to eat a meal. The sheriff testified that this had been the custom in the jails for many years prior to 1944-1945, and that he did not vary the custom in that fiscal year. He denied that he had "directed" or "required" any one of the respondents to work longer than seven and one-half hours on any shift.
As opposed to this evidence, several of the respondents testified that on the two night shifts they were on duty for a full eight hours, and, while admitting that some of them ate a meal during the eight hours, they contended that they were bound to their posts during the meal period, and subject to call. In this connection respondents introduced into evidence a set of rules and regulations governing their conduct in the performance of their duties for the year in question. These regulations had been drafted by a prior sheriff, and appellant *848 admitted that they were in effect when he assumed office. He testified that he permitted these regulations to remain in effect and that each new employee was required to read them. He also admitted that he issued no repealing or amending order respecting these regulations until after the end of the fiscal year here in question. It is admitted that there is nothing in the regulations which authorize any jail employee to take a half hour off during any eight-hour shift for the purpose of eating. The regulations, in fact, indicate that the employees must work a full eight-hour shift. Thus, in reference to hours of duty, it is provided that: "The jail shall be policed at all times of the day and night, there being three (3) watches provided for this purpose. ... Eight (8) hours shall be worked by each watch, unless otherwise ordered by the Superintendent." No contrary order was ever made by the superintendent. The regulations further require the jailers "to be watchful and on the alert at all times"; prohibit them from performing any "act that may divert their attention from the efficient performance of their duties"; require that two jailers be on duty "in front of the felony wing at all times," and that one jailer must be "on the bridge at all times"; and each employee must remain on duty "until relieved."
[1] Respondent Scannell testified that employees on the night shifts were given no time off for meals; that he and the others would eat while on watch at their respective stations; that they were on duty during the periods they were eating; that they were required to remain in uniform during the entire eight-hour shift and were prohibited from leaving the jail premises during the eight hours. The evidence also shows that, under the law, a matron must be on duty in the women's jails at all times, that on night watches there is but one matron on duty at each jail, and that no provision is made to relieve the matrons so that they can take a half hour for meals.
Further reference to the evidence is unnecessary. It is quite obvious from the above summary that the finding of the trial court that respondents, while working on the night shifts, were "required" by appellant to work eight hours a shift as that term is used in section 2.3(b) of the salary ordinance is amply supported. If an express order is required under the section, the regulations admittedly applicable constitute such an order. The existence of the so-called "custom" to the contrary *849 testified to by appellant was denied by respondents. This conflict was for the trier of the fact.
The next contention of appellant is that | {
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57 F.3d 1061NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
Bernardo FIGUEROA, Plaintiff, Appellant,v.George VOSE, et al., Defendants, Appellees.
No. 94-1578.
United States Court of Appeals,First Circuit.
June 13, 1995.
Bernardo Figueroa on brief pro se.
David J. Gentile, Esq., On Memorandum In Support of Motion for Summary Disposition for appellees.
D.R.I.
AFFIRMED.
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.
PER CURIAM.
1
Bernardo Figueroa appeals from the district court's decision that a prison disciplinary board did not violate his federal due process rights under 42 U.S.C. Sec. 1983 when it found him guilty of planning to murder Captain Ronald Brodeur, a correction officer. We affirm. Since the facts have been described in the district court's opinion, we do not repeat them here except as is necessary to explain our affirmance. We turn immediately to Figueroa's contentions on appeal.
1. Notice of Time of Disciplinary Hearing
2
Figueroa claims that he was not given a required 24- hour notice of his disciplinary hearing and that delivery of the disciplinary report to him two days before the hearing was insufficient notice. Federal law does not require 24-hour advance notice of a disciplinary hearing, however. It requires only that inmates be given written notice of the charges against them at least 24 hours before the disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 564 (1974). This court has said that delivering a disciplinary report describing the charges against an inmate to the inmate meets that requirement. See Langton v. Berman, 667 F.2d 231, 234 (1st Cir. 1981). Since Figueroa does not dispute that he received a copy of the disciplinary report describing the charge against him two days before the disciplinary hearing, the district court correctly concluded that the notice given to Figueroa satisfied due process.1
2. Provision of Interpreter
3
Figueroa alleges that he should have been given a Spanish-speaking counselor to assist him at the disciplinary hearing rather than an English-speaking counselor. He acknowledges that he understands English, except for an occasional word, but says he does not speak English well and so could not participate "fully" in the hearing. (His spoken English can be hard to understand, as the hearing and trial transcripts show.) At trial, Figueroa said that he had asked both Jack Ward, his English-speaking counselor, and Captain Andrew Anderson, the chairman of the disciplinary board, for Maria Pezza's assistance, but was told that she was unavailable.2 Figueroa wanted her to assist him at the hearing because she could explain words he did not understand and she would have "defend[ed]" him.
4
We agree with the district court that no due process violation occurred here. In part, Figueroa seems to have hoped that Pezza could have presented his case more persuasively to the disciplinary board than he did. In other words, Pezza would have been useful to him as an advocate. In Wolff, the Supreme Court held that inmates do not have a right to counsel in disciplinary proceedings, 418 U.S. at 570, a position it confirmed in Baxter v. Palmigiano, 425 U.S. 308, 315 (1976). The Court suggested, however, that illiterate inmates or inmates with complex cases should be able to "seek the aid of a fellow inmate, or ... to have adequate substitute aid in the form of help from the staff...." See Wolff, 418 U.S. at 570. Assuming that Figueroa should have been treated as an illiterate inmate, any right that he may have had to staff assistance under Wolff was satisfied when Ward was assigned to help him. In addition, nothing in the record suggests that any deficiency in Figueroa's English adversely affected the disciplinary proceedings. As the transcript of the hearing confirms, Figueroa understands spoken English. Despite sometimes unclear syntax, he can also make himself understood in English. At the hearing, he denied his guilt, explained why he wanted to call Captain Brodeur as a witness, challenged his lack of access to confidential reports, and denied that he had been working in the prison kitchen at the time the alleged murder weapon disappeared. Furthermore, Ward appeared with him at the hearing and, according to Figueroa's post-trial brief, participated in questioning Investigating Officer Joseph Forgue.3 Figueroa presented his own case and the transcript does not reflect that he ever sought Ward's aid in making his presentation.4 Moreover, Figueroa testified that Anderson and Ward had told him that Pezza was unavailable, but does not allege any unconditional denial of the assistance of a Spanish- speaking counselor. Although his testimony may suggest that he was told to proceed with the hearing or to proceed with Ward as his counselor,5 he apparently did not actually ask prison officials to postpone his hearing until Pezza was available. Anderson testified at trial that he had never denied any inmate the counselor of his choice and that he had postponed hearings if the inmate's preferred counselor was absent. We therefore affirm the district court's determination that defendants did not violate Figueroa's constitutional rights by not appointing a Spanish-speaking counselor or interpreter to aid him at the hearing.
3. Denial of Witnesses
5
According to Figueroa, he should have been permitted to call as witnesses at his disciplinary hearing Captain Brodeur, the correction officer Figueroa allegedly intended to murder; an Officer Fletcher, who apparently investigated the alleged murder plot and/or prepared the disciplinary report against Figueroa; and two inmates, Larry Botton (also given as Boton or Baton in the record) and Gary Ortiz. At the hearing, Figueroa stated that he wanted to call Brodeur to confirm that he and Brodeur had had no problems with each other. On appeal, Figueroa says that, if Fletcher, Botton and Ortiz had appeared at the hearing, their "testimony could have brought forth new or previous[ly] unsolicited facts."
6
At the disciplinary hearing and again at trial, Captain Anderson, the chairman of the disciplinary board, explained the board's determination that testimony by Brodeur about his relationship with Figueroa would not be relevant. Although lack of animosity might normally seem relevant in determining whether one individual might be motivated to kill another, Officer Joseph Forgue, who had investigated the charge against Figueroa, explained at the hearing that such evidence would be irrelevant in Figueroa's case. According to Forgue, it was "well known" in the prison that there was a "contract" on Brodeur's life and that confidential informants had reported that Figueroa had "pick[ed] up" that contract. For that reason, an inmate would not "have to have a problem with someone to stick them. That's irrelevant whether you had a problem with them or not." Given Forgue's statement, the board did not abuse its discretion in not calling Brodeur as a witness. See Smith v. Massachusetts Department of Correction, 936 F.2d 1390, 1399-1400 (1st Cir. 1991) (applying abuse of discretion standard in reviewing disciplinary board's failure to call inmate witnesses); Turner v. Caspari, 38 F.3d 388, 391, 392 (8th Cir. 1994) (noting that prison disciplinary boards have great discretion to decline to call inmate witnesses whose testimony would be irrelevant or unnecessary).6
7
Nor is there merit in Figueroa's claims respecting Botton and Ortiz. The transcript of the disciplinary hearing shows that he never asked the board to call them as witnesses, and so the board obviously did not violate his due process rights in not calling them. See Harrison v. Seay, 856 F. Supp. 1275, 1281 (W.D. Tenn. 1994).7
8
On appeal, Figueroa alleges that Officer Fletcher's testimony "could have brought forth new or previous[ly] unsolicited facts."8 The record indicates that Figueroa had told the board that Fletcher would either offer favorable character testimony or would corroborate Figueroa's trouble- free relationship with Brodeur. The disciplinary transcript indicates that Figueroa told the board that Fletcher would testify that Figueroa was "not of that type of character" and that the board regarded his testimony to be irrelevant.9 According to Anderson's trial testimony, Figueroa had said that Fletcher would testify that Figueroa and Brodeur had not had any problems with each other.10 Under the circumstances, the court did not err in concluding that the board had not violated due process by declining to call Fletcher as a witness. As noted above, testimony about Figueroa's relationship with Brodeur was irrelevant and unnecessary. In addition, without further specifics, the simple testimony that Figueroa was not the "type" of person to commit murder would not have impugned the confidential informants' clear identification of Figueroa as the inmate who planned to kill Brodeur. See Graham v. B | {
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Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2012-476
JUNE TERM, 2013
Logan Nutter } APPEALED FROM:
}
} Superior Court, Caledonia Unit,
v. } Civil Division
}
}
Charles R. Fenoff, Jr. } DOCKET NO. 258-9-08 Cacv
Trial Judge: Theresa S. DiMauro
In the above-entitled cause, the Clerk will enter:
Defendant in this trespass action appeals from a judgment of the superior court, civil
division, awarding damages to plaintiff in the amount of $20,000. Defendant contends: (1) the
court erred in measuring damages based on the cost of repairing the property rather than the
diminution in value; and (2) the damages awarded were unreasonable in light of the value of the
property affected; (3) the court erred in relying upon speculative evidence in calculating the
damages; and (4) plaintiff failed to meet his burden in proving damages. We affirm.
The material facts may be summarized as follows. The parties are neighbors whose
properties front on Kidder Road in the Town of Waterford. Defendant purchased his property in
April 2006; plaintiff acquired his in June 2006. Kidder Road was a one-lane Class 4 road. Prior to
his purchase, defendant obtained the Town’s permission to upgrade Kidder Road. Accordingly, in
the fall of 2006 and winter of 2007, defendant performed extensive work on the road, widening and
straightening sections, installing a culvert, and altering the elevation in parts to improve drainage.
Defendant owns an excavating company and performed the work himself. The trial court found
that, in the process of performing the work, defendant tore out trees, destroyed stone walls, and
dumped debris—which included large stones, gravel, and tree stumps—down an embankment onto
plaintiff’s property.
In August of 2008, plaintiff commenced this trespass action. In September 2008, plaintiff
filed an amended complaint in the superior court seeking, along with other relief, an order requiring
defendant to remove the materials dumped on his property and restore the land to its pre-
construction condition, and damages.* On June 29, 2012, the trial court conducted a site visit and
later held a one-day trial. Defendant conceded liability, so that the issue focused largely on
damages. Plaintiff and defendant testified in their own behalf. In addition, plaintiff called an expert
witness, Mark Bannon, a civil engineer who had examined the site and formulated four repair
options with cost estimates. The first option involved the use of specialized equipment to remove
the debris, estimated to cost between $20,000 and $30,000. The second contemplated removal by
*
Plaintiff also sued the Town of Waterford, but subsequently dismissed his claims against
the Town.
hand at an estimated cost of $15,000 to $30,000. The third called for terracing the road to create
work platforms before removal, at a cost of $30,000 to $50,000. The fourth involved construction of
a route to access the debris from the bottom, estimated to cost between $30,000 and $100,000.
Defendant testified that he could perform the repair work himself for a cost of approximately
$1,500 to $3,000.
The trial court issued a written decision in December 2012. The court concluded that the
proper and reasonable measure of damages was the cost of repair, that defendant’s estimates were
unreasonably low, and that the second option proposed by plaintiff’s expert—removal of the debris
by hand—was the least likely to affect the stability of the area and the most reasonable under the
circumstances. Accordingly, the court awarded damages of $20,000, noting that it was within the
estimated range of $15,000 to $30,000. This appeal followed.
Defendant contends the trial court erred in awarding damages based on the cost of repairing
the property rather than its diminution in value. He relies on this Court’s observation in Bean v.
Sears, Roebuck & Company, that “the reasonable cost of repair” of property damaged by the
defendant’s negligence may be an appropriate measure of damages “[i]f the injury is temporary in
the sense that restoration can cure the harm” whereas if the damage “is permanent and beyond full
repair, the variance in value of the property before and after the injury affords the better guide to a
just award.” 129 Vt. 278, 282 (1971). As we explained, no hard and fast rule obtains: “It all
depends upon the character of the property and the nature and extent of the injury.” Id.
Defendant argues that in this case the alleged damage is permanent and irreparable such that
the proper measure of damages is diminution in value. In making this argument, he points to
plaintiff’s own testimony that “in a perfect world I’d like to see it back to the way it was, but I’ve
come to terms with the fact that that seems out of reach” and that he would never “feel the same”
about the place. This statement by plaintiff is not inconsistent with a finding that the property can
be reasonably restored. While expressing pessimism about the possibility of complete restoration,
plaintiff also presented expert testimony about the various restoration options and their costs and
benefits. Consistent with this evidence, the court found that the damage “cannot be said to be
permanent,” and noted that plaintiff had presented substantial evidence on the cost of repair.
Defendant further asserts that it was improper for the court to award damages because the
cost of repairing the property was disproportionate to the diminution in value. See Sheldon v.
Northeast Developers, Inc., 127 Vt. 15, (1968) (holding that jury instruction solely on cost of repair
was proper where “the evidence did not demonstrate a cost of repair so inordinate and excessive as
to be unreasonable and wasteful”). Defendant argued in this regard that the diminution in value to
plaintiff’s property caused by the work could be determined by multiplying the area covered by the
debris, about 1,450 square feet or four percent of an acre, by the cost per acre of $795, for a loss in
value of $31.82.
As noted, the trial court here rejected this argument, expressly finding that plaintiff’s
proposed costs of repair did not “rise to the level of waste” in light of the harm caused by
defendant’s transformation “of a portion of [plaintiff’s] property from an open forest to bony rocks
covered with hydroseed and debris.” The court thus concluded that defendant’s “proposed measure
of damages would not adequately compensate [plaintiff] for the harm [defendant’s] trespass has
caused,” and that the cost of repair was therefore “the appropriate measure of damages.” In
determining the cost of repair, the trial court considered the reasonableness of the various
2
restoration options presented by plaintiff’s expert and expressly rejected one as unduly costly and
thus unreasonable under the circumstances.
We will not disturb the trial court’s findings unless clearly erroneous, nor its conclusions if
reasonably supported by the findings. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, ¶ 20,
___ Vt. ___, 54 A.3d 465. In light of this standard, and the record evidence and findings
summarized above, we discern no basis to disturb the trial court’s conclusion that—considering the
“character of the property and the nature and extent of the injury”—the cost of repair was not so
disproportionate to the diminution in the value of plaintiff’s land as to render it an unreasonable
measure of damages. Bean, 129 Vt. at 282.
Defendant further contends that the estimated costs of repair provided by plaintiff’s expert
were not sufficiently certain to provide a reasonable basis for the court’s award of damages. We
view the evidence in this regard in the light most favorable to the prevailing party, and will uphold
the court’s award if there is any evidence which fairly and reasonably tends to support it.
Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6, ¶ 22, 187 Vt. 308. The evidence must
allow the factfinder “to estimate damages with reasonable certainty.” Id. (quotation omitted); see
also Lemnah v. American Breeders, Inc., 144 Vt. 568, 580 (1984) (we will uphold damage award
where evidence is sufficient to allow factfinder to “estimate the amount within reasonable limits
based upon the evidence”).
Viewed in light of this standard, the court’s ruling may not be overturned. Plaintiff’s expert
testified that he was experienced and routinely provided estimates of this kind, and acknowledged
that they were “ballpark figures” which described a range of costs for the four options because each
would be subject to permitting requirements of various kinds which could contain conditions, the
stability of the bank remained uncertain, and contractors’ costs could vary. Based on the expert’s
experience and testimony, the trial court here could reasonably find that the evidence was sufficient
to | {
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187 S.E.2d 172 (1972)
212 Va. 684
Leslie E. COLEMAN
v.
COMMONWEALTH of Virginia.
Supreme Court of Virginia.
March 6, 1972.
*173 James R. Scott, Jr., Richmond (White, Cabell, Paris & Lowenstein, Richmond, on brief), for plaintiff in error.
A. R. Woodroof, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
SNEAD, Chief Justice.
Leslie E. Coleman was convicted on June 16, 1970, by the trial court, sitting without a jury, of operating a motor vehicle while under the influence of intoxicants. He was sentenced to 30 days in jail and to pay a fine of $200. The jail sentence was suspended on condition that he be of good behavior for a period of three years (Record No. 7742). Coleman was also tried for unlawfully and unreasonably refusing to take the blood test required by Code § 18.1-55. The court found that Coleman's refusal was not a reasonable refusal and suspended his operator's license for a period of 90 days (Record No. 7743).
When arrested, Coleman was advised by Trooper W. D. Spence of the law regarding the blood test. He agreed to take the test and was driven to the Medical College of Virginia by Spence. Before administering the blood test, hospital personnel requested Coleman to sign two forms. He refused to sign these forms or to take the blood test and asked Trooper Spence if he could consult with an attorney. Trooper Spence would not permit Coleman to call an attorney, and thereafter Coleman again refused to sign the forms or take the test unless he was allowed to call an attorney.
Copies of the forms Coleman was requested to sign were not offered into evidence. Trooper Spence testified that he saw the forms at the hospital but did not read them. He said merely that they appeared similar to permission forms and waiver of liability forms he had read on previous occasions.
In connection with the driving drunk charge, Coleman contends that his conviction should be reversed because he was denied his constitutional right to consult with counsel before deciding whether to take the blood test. However, in Law v. City of Danville, 212 Va. 702, 187 S.E.2d 197 (1972), decided this day, we held that a person charged with operating a motor vehicle while under the influence of intoxicants does not have a constitutional right to consult an attorney before deciding whether to take a blood test.
With respect to the charge of unreasonably refusing to take the blood test, *174 Coleman contends that the order revoking his license should be reversed because his refusal was reasonable since it was based upon the denial of his right to consult with counsel. However, in Deaner v. Commonwealth, 210 Va. 285, 293, 170 S.E.2d 199 (1969), we held that an unwillingness to take the blood test without prior consultation with counsel is not a reasonable refusal.
Additionally, Coleman contends that the order revoking his license should be reversed because he was required to sign the two forms before hospital personnel would withdraw a blood sample for the test. However, the only testimony concerning the forms came from Trooper Spence. It is not possible from that testimony to know the content of the forms submitted to Coleman. Thus, we cannot say that it was reasonable for Coleman to refuse to take the test because of the requirement that he sign the forms before his blood would be withdrawn.
The judgments appealed from will be
Affirmed.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 10, 2006
No. 05-16929 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00024-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIZABETH MARIE MORSE THOMPSON,
a.k.a. Lisa Thompson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 10, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Elizabeth Marie Morse Thompson appeals her 240-month concurrent
sentences for (1) conspiracy to possess with intent to distribute 500 grams or more
of a mixture or substance containing a detectable amount of cocaine and five grams
or more of a mixture or substance containing a detectable amount of cocaine base,
in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii),
(b)(1)(B)(iii), and 846; and (2) two counts of possession with intent to distribute a
detectable amount of a mixture or substance containing cocaine base, in violation
of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). After review, we
affirm.
I. BACKGROUND
On two separate dates, Thompson sold cocaine base to an Drug Enforcement
Agency (“DEA”) informant outfitted with electronic surveillance equipment. A
search of Thompson’s apartment found a small amount (88 milligrams) of crack
cocaine, digital scales and various items of drug paraphernalia. Thompson
admitted to officers that she had been selling cocaine since 1999 and that she
would sell up to a half ounce daily. At trial, various drug purchasers and dealers
testified that Thompson either sold them drugs or received shipments of their
drugs. Additionally, two witnesses testified that they each had made drug
deliveries for Thompson.
2
The jury convicted Thompson of the above-mentioned counts. The verdict
form indicated that the jury found that the conspiracy count involved “500 grams
or more” of cocaine and “five (5) grams or more” of cocaine base, crack cocaine.
At her first sentencing, the Presentence Investigation Report (“PSI”)
attributed 1.5 kilograms of cocaine base to Thompson. However, at the sentencing
hearing, the government stated that it did not object to the lesser amount of 500
grams of cocaine base because it did not affect the Guidelines range. The district
court rejected Thompson argument that she should be held accountable for less
than 500 grams, stating:
“[I]n good faith, I can’t find that there’s less than 500 grams. But for
the government’s concession, I’d find that there’s over 1.5 kilograms
of crack cocaine, based upon the testimony I find credible. The Court
is willing to accept the government’s concession that there’s at least
500 grams of crack cocaine and change paragraph 38 to offense level
36.
I understand the testimony is disputed. I heard it all. I read it
all. It’s just very clear to me that certainly by a preponderance of the
evidence there’s more than 500 grams of crack cocaine involved and
that the defendant was involved with this amount.
Thus, the district court overruled Thompson’s drug quantity objection, finding by a
preponderance of the evidence that Thompson’s offenses involved 500 grams of
cocaine base. The district court sentenced Thompson under a mandatory
Guidelines scheme to a 360-month sentence, at the low-end of the Guidelines
range. In so doing, the district court expressed the desire to impose a more lenient
3
sentence than was permitted by the Guidelines.
Thompson appealed. On September 1, 2005, this Court affirmed
Thompson’s conviction, but vacated and remanded in light of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), for resentencing under the advisory
Guidelines. See United States v. Thompson, 422 F.3d 1285, 1300-01 (11 th Cir.
2005).
At resentencing, the district court stated that it wanted to impose a sentence
below the advisory Guidelines range, but noted that most factors, aside from
Thompson’s family background, weighed against a below-Guidelines sentence.
The district court acknowledged the sentences of Thompson’s co-defendants and
recounted Thompson’s lengthy history with drug abuse and criminal activity.
After noting the advisory Guidelines range and the factors in 18 U.S.C. § 3553(a),
the district court imposed below-Guidelines concurrent sentences of 240 months.
Thompson stated that she had no objection to the sentence. The district court then
stated that it “recognize[d] that the sentence is ten years below the guidelines. And
ten years is a significant sentence. But a sentence of 20 years is also significant,
and, given all the factors in this case, it’s my view that a 20-year sentence is
sufficient in this case.” Thompson appealed her sentences.
II. DISCUSSION
4
For the first time on appeal, Thompson argues that the district court violated
her Fifth and Sixth Amendment rights by finding by a preponderance of the
evidence that Thompson was responsible for at least 500 grams of cocaine base.1
We have repeatedly rejected this argument. When a district court applies the
Guidelines in an advisory manner, it does not violate a defendant’s Fifth and Sixth
Amendment rights under Booker by finding facts and applying extra-verdict
enhancements. See United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir.
2005); United States v. Rodriguez, 398 F.3d 1291, 1301 (11 th Cir.), cert. denied,
125 S. Ct. 2935 (2005). Here, the district court applied the Guidelines in an
advisory fashion and, consequently, any judicial fact-finding done by the district
court as to drug quantity and extra-verdict enhancements did not violate
Thompson’s Fifth and Sixth Amendment rights.
Thompson also asserts that her sentence is unreasonable under Booker.
After Booker, the district court must correctly calculate the defendant’s Guidelines
range and then, using the factors in 18 U.S.C. § 3553(a), the court may impose a
more severe or more lenient sentence as long as it is reasonable. See United States
1
Because Thompson did not raise Fifth or Sixth Amendment objections below, we review
for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.
Ct. 2935 (2005); Fed. R. Crim. P. 52(b). To prove plain error, the defendant must establish that
(1) there is an error, (2) the error is plain, and (3) it affects substantial rights. Rodriguez, 398
F.3d at 1298. “If all three conditions are met, an appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
5
v. Crawford, 407 F.3d 1174, 1179 (11 th Cir. 2005). We review a defendant’s
sentence for unreasonableness in light of the factors listed in 18 U.S.C. § 3553(a)
and the reasons given by the district court. United States v. Williams, 435 F.3d
1350, 1354-55 (11th Cir. 2006).2 Our review is deferential, and “when the district
court imposes a sentence within the advisory Guidelines range, we ordinarily will
expect that choice to be a reasonable one.” United States v. Talley, 431 F.3d 784,
788 (11 th Cir. 2005). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in light of both [the] record and the
factors in section 3553(a).” Id.
Here, we cannot say that Thompson’s concurrent 240-month sentences were
unreasonable. Thompson does not challenge the district court’s Guidelines
calculation, which resulted in an advisory Guidelines range of 360 months to life
imprisonment. The 240-month sentences fall 120 | {
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798 F.2d 331
21 Fed. R. Evid. Serv. 649
UNITED STATES of America, Appellee,v.Scott GALYEN, Appellant.
No. 85-5340.
United States Court of Appeals,Eighth Circuit.
Submitted May 12, 1986.Decided Aug. 13, 1986.
Ralph A. Vinje, Bismarck, N.D., for appellant.
Jerome C. Kettleson, Bismarck, N.D., for appellee.
Before ARNOLD, FAGG and WOLLMAN, Circuit Judges.
WOLLMAN, Circuit Judge.
1
Scott Galyen was convicted by jury of three counts of obtaining a controlled substance by misrepresentation or fraud, see 21 U.S.C. Sec. 843(a)(3) (1982), and of one count of possessing with an intent to distribute a controlled substance. See id. Sec. 841(a)(1). On appeal he alleges error in the admission of certain evidence and in the district court's1 failure to grant his motion for acquittal. We affirm.
2
The controlled substance involved in this case is dilaudid, a painkiller. Galyen had had one leg amputated as a result of a hunting accident and part of the other leg amputated as a result of a motor vehicle accident; and in seeking continued treatment for his condition, he obtained prescriptions for dilaudid from Dr. Gerd Ebel on, among other occasions, January 9, March 9, and April 2, all in 1984. Dr. Ebel testified that he would not have issued these prescriptions had he known that Galyen was also receiving prescriptions for dilaudid from other doctors. Documentary evidence showed that between April 23, 1982, and June 15, 1984, a period of 784 days, Galyen had obtained 413 prescriptions for a total of 11,277 dilaudid tablets, or an average of more than fourteen tablets per day.
3
Galyen objects first to the admission of this series of prescriptions to the degree that they extend approximately eighteen months prior to the occurrence of the events on which the indictment was based. Second, Galyen objects to the testimony of a state undercover drug enforcement agent regarding a marijuana transaction he attempted to negotiate with Galyen in October 1982. The agent specifically testified that Galyen asked him if he was interested in purchasing dilaudid, that Galyen crushed a dilaudid tablet and injected it into the stump of his leg with a syringe, and that Galyen when he left their meeting carried a gun. Third, Galyen objects to the testimony of a convenience store clerk that Galyen asked her to go for a ride with him even though she was married and that Galyen made references to her about "getting high."
4
These evidentiary challenges all are based on Rule 404(b) of the Federal Rules of Evidence, which deals with proof of acts or crimes other than the crimes charged. Evidence of such other acts is admissible when it is relevant to an issue in question other than the character of the defendant, there is clear and convincing evidence that the defendant committed the prior acts, and the potential unfair prejudice does not substantially outweigh the probative value of the evidence. Williams v. Mensey, 785 F.2d 631, 638 (8th Cir.1986) (quoting United States v. Gilmore, 730 F.2d 550, 554 (8th Cir.1984)); United States v. McDaniel, 773 F.2d 242, 247 (8th Cir.1985). This circuit views Rule 404(b) as a rule generally of inclusion, and a trial court's broad discretion in admitting wrongful act evidence will not be disturbed unless the defendant can show that the proof in question "clearly had no bearing upon any of the issues involved." United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985). Furthermore, because Galyen's objection to the store clerk's testimony was not renewed at trial, we review the admission of that evidence under the plain error standard. See United States v. Ferguson, 776 F.2d 217, 224 (8th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986).
5
The items of proof challenged by Galyen all suggest that he was involved in drug dealing, an activity which is directly relevant to the intent to distribute count and also suggests a motive for using misrepresentations to obtain controlled substances as alleged in the other counts. The testimony of the store clerk indicates that Galyen was basically functioning normally, which would be inconsistent with the drowsiness or mental clouding that might have been expected had Galyen ingested the quantity of dilaudid which the prescriptions show he purchased. In addition, Galyen's purchase of this volume of prescriptions, with no apparent financial difficulties, is inconsistent with his lack of visible income. The manner in which Galyen ingested the dilaudid (which is meant to be taken orally), again with the number of tablets he obtained, see Barnes v. United States, 777 F.2d 430, 431 (8th Cir.1985), suggests that he was not using the dilaudid for medicinal purposes. Finally, evidence of weapons and of prior offers to sell drugs is relevant to intent to distribute. United States v. LaGuardia, 774 F.2d 317, 320 (8th Cir.1985); United States v. McDaniel, 773 F.2d 242, 247 & n. 4 (8th Cir.1985); United States v. Jones, 676 F.2d 327, 332 (8th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982). We find no abuse of discretion in the district court's admission of the challenged evidence.
6
Galyen also argues that the court erred in denying his motion for acquittal because the evidence was insufficient to support a finding of guilt on any of the charges. In reviewing this allegation we must take the evidence in the light most favorable to the jury's verdict and draw all reasonable inferences in support thereof. United States v. Robinson, 782 F.2d 128, 129 (8th Cir.1986). Applying this standard to the evidence found admissible above as relevant to intent to distribute, we clearly must uphold the conviction on that charge. In addition, we conclude that the evidence of Galyen's conduct, such as driving extra miles to get prescriptions filled at pharmacies in different towns, was adequate to support an inference that Galyen intended to deceive Dr. Ebel into prescribing more dilaudid either by failing to mention or by affirmatively denying that he was receiving similar prescriptions from other doctors. To the degree Galyen also challenges the lack of a "specific intent" instruction on the misrepresentation issue, we reject that argument. See United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir.1985).
7
We appreciate the efforts of court-appointed counsel on Galyen's behalf.
8
The conviction is affirmed on all counts.
1
The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota
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202 S.W.3d 10 (2005)
OFFICE OF CHILD SUPPORT ENFORCEMENT, Appellant
v.
Colin R. REAGAN, Appellee.
No. CA 04-631.
Court of Appeals of Arkansas, Division IV.
February 2, 2005.
*11 G. Keith Griffith, Van Buren, for appellant.
Davis & Watson, Springdale, for appellee.
LARRY D. VAUGHT, Judge.
The Office of Child Support Enforcement (OCSE) appeals from the trial court's conclusion that registration of a 1979 Indiana child-support order in Arkansas was barred based on the Indiana statute of limitations for child-support orders. OCSE argues that the court erred in finding that appellee met his burden of proving the defense of statute of limitations. We disagree and affirm.
Colin Reagan and Phyllis Reagan were divorced in Indiana on May 14, 1979. In the divorce decree, Phyllis was granted custody of their child, Gregory, and Colin was ordered to pay $25 per week in child support. On October 16, 2003, pursuant to the Uniform Interstate Family Support Act, the decree was registered in Washington County, Arkansas. Colin objected to the registration and argued the affirmative defense of statute of limitations.
A hearing was held on March 8, 2004, where Colin argued that Ind.Code § 34-11-2-10 was the appropriate statute of limitations to apply, which required an action to enforce child support be commenced within ten years after a child's eighteenth birthday or emancipation. Because Gregory turned eighteen on June 30, 1991, Colin argued enforcement of the child-support arrearage was barred as of June 30, 2001.
In response, OCSE introduced a certified copy of "minutes of the court" from Indiana dated June 14, 1991, which noted the following: "Pet i/p & b/c. SEH. Ct finds Resp in cont for failure to pay c/s. Arr set at $15,725. Such sum reduced to judg." The document also included the same case number as the divorce decree and indicated the name "Reagan." OCSE argued that Indiana Code § 34-11-2-12 allowed judgments to be enforceable for twenty years. Colin countered that the State had not presented an enforceable judgment, and therefore, the court had nothing to enforce.
The court found the exhibit to be something that Arkansas courts would consider to be a docket sheet, not a judgment or support order. The court referred to Arkansas law that required a judgment to be a separate document, signed by the court *12 and filed by the clerk. Further, no legal authority was presented to maintain that Indiana had less stringent requirements for judgments. The court found that, absent any written judgment falling within the twenty-year Indiana limitations period, Colin had met his burden of proof for purposes of contesting the registration of the 1979 order based on the ten-year statute of limitations.
We review equity cases de novo on the record, and we will not reverse a finding of fact by the trial court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001). In reviewing a trial court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. McWhorter, 346 Ark. at 475, 58 S.W.3d at 840.
Pursuant to Ark.Code Ann. § 9-17-607(a)(7) (Repl.2002), Colin objected to the registration of the 1979 Indiana child-support order on the basis that its enforcement was barred by the applicable statute of limitations. Under that provision, Colin bore the burden of proving that the statute of limitations precluded the enforcement of his child-support obligation. According to Ark.Code Ann. § 9-17-604 (Repl.2002), the appropriate statute of limitations to apply in this case is that of Indiana. The Indiana statute provides that an action to enforce a child-support obligation must be commenced within ten years after the child's eighteenth birthday or emancipation, whichever occurs first. Ind.Code § 34-11-2-10. Additionally, Ind.Code § 34-11-2-12 provides that "[e]very judgment and decree of any court of record of the United States, of Indiana, or of any other state shall be considered satisfied after the expiration of twenty (20) years."
Gregory turned eighteen on June 30, 1991; therefore, according to the Indiana ten-year statute of limitations, any action to enforce the child-support obligation was barred unless brought by June 2001. Because the action in Arkansas was not brought until October 2003, it is barred by the statute of limitations.
OCSE argues, however, that because it presented some evidence that an action had been commenced in Indiana (and a judgment had been issued) within that ten-year time period, the statute of limitations should be tolled allowing twenty years for the enforcement of any judgment that was issued. However, the twenty-year limitations period set forth in Ind. Code § 34-11-2-12 is not a tolling statute, but rather an independent statute of limitations that applies to legally-enforceable judgments. The only evidence presented of any legal activity was the docket sheet, which the trial court specifically found did not constitute a judgment under Arkansas law. See Hollaway v. Berenzen, 208 Ark. 849, 188 S.W.2d 298 (1945) (stating a docket notation is not an entry of judgment and cannot be used to correct a deficiency in the record). Additionally, OCSE provided no authority to support the conclusion that such a document would be considered a judgment by an Indiana court.
Because OCSE did not attempt to register the 1979 child-support order in Arkansas until over two years after the ten-year statute of limitations period had expired and could not provide another valid judgment to enforce, the trial court's finding that registration of the order was barred by the statute of limitations was not clearly erroneous.
Affirmed.
GRIFFEN and CRABTREE, JJ., agree.
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 27, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
_________________ Clerk
No. 04-30880
(Summary Calendar)
_________________
NESTOR SALGADO,
Plaintiff-Appellant,
versus
ALBERTO R GONZALES, U S ATTORNEY GENERAL; JAMES ZIGLAR; EDWARD
MCELROY; CARYL THOMPSON,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
UCDC No. 2:04-CV-778-PM
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Nestor Salgado appeals the district court’s denial of his 28 U.S.C. § 2241 habeas corpus
petition, which challenged an order of removal by the Board of Immigration Appeals (BIA). In
*
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.
accordance with the Real ID Act, this court converts Salgado’s writ petition into a timely petition for
review of the BIA’s order. See Rosales v. Bureau of Immigration and Customs Enforcement, 426
F.3d 733, 736 (5th Cir. 2005), cert. denied __ S.Ct. __, 2006 WL 37358 (Jan. 9, 2006); see also Real
ID Act, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005) (converted petitions shall not be
subject to the thirty-day time filing deadline ordinarily applicable to petitions for review).
Salgado argues that his two convictions for theft of services do not render him deportable
because they are not crimes involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii) provides that
an alien is deportable if he is convicted of two crimes involving moral turpitude that are not part of
a single scheme of criminal misconduct. This court reviews de novo the BIA's legal determination
that a given crime involves moral turpitude. Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir. 1997). This
court has previously held that theft is a crime of moral turpitude. Id. Salgado makes no argument
that theft of services would not fall under this general rule. Accordingly, we will not disturb the
BIA’s determination that Salgado is removable.
Salgado next complains that his constitutional equal protection rights were violated when he
was denied cancellation of removal pursuant to 8 U.S.C. § 1229b. Salgado has not alleged an equal
protection violation. See Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 933 (5th
Cir. 1988) (listing the elements of an equal protection challenge).
Salgado next argues that his equal protection and due process rights were violated by the
Immigration Judge and the BIA throughout his removal proceedings. Salgado’s conclusory
allegations of constitutional violations are unsupported by his brief. Accordingly, he has not
established that he has suffered a constitutional harm. See United States v. Holmes, 406 F.3d 337,
361 (5th Cir. 2005).
-2-
Finally, Salgado argues that he received constitutionally ineffective assistance of counsel in
his removal proceedings. He has not, however, demonstrated that he was prejudiced by his counsel’s
performance. Accordingly, he is not entitled to relief on this claim. See Miranda-Lores v. I.N.S., 17
F.3d 84, 85 (5th Cir. 1994) (to prevail on a claim of ineffective assistance of counsel in removal
proceedings, petitioner must demonstrate substantial prejudice).
For the foregoing reasons, Salgado’s converted petition for review is DENIED.
-3-
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216 Cal.App.2d 525 (1963)
MARION U. DIOWCHI, Petitioner,
v.
SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SHARON KATHRYN MEADOW, Real Party in Interest.
Civ. No. 27159.
California Court of Appeals. Second Dist., Div. Four.
May 22, 1963.
Beilenson, Meyer, Rosenfeld & Susman and Peter R. Cohen for Petitioner. *527
No appearance for Respondent.
Schwartz & Sandler and Merle H. Sandler for Real Party in Interest.
KINGSLEY, J.
Petitioner is the assignee for collection of a firm of attorneys. These attorneys (hereinafter collectively referred to as "Beilensons") were retained by the real party in interest to represent her in a divorce action. During the pendency of that action, respondent court made and entered its order directing the husband to pay directly to them the sum of $7,500 on account of attorney fees and $4,000 on account of costs. This order was secured by a lien, in favor of wife, on certain real and personal property. The husband duly appealed from this order (although it appears from the petition that $5,000 has been paid in partial satisfaction thereof) and that appeal is now pending in division three of this court (2d Civ. 27245). Thereafter, according to the petition, Beilensons filed in the divorce action a notice of motion for $13,000 additional fees. Before this motion came on for hearing, the wife purported to discharge Beilensons as her attorneys and moved to effect a substitution of new counsel. Both the motion of Beilensons for additional fees and the motion to substitute attorneys were continued, on motion of the husband, and are still pending in respondent court, subject to certain proceedings in the Supreme Court hereinafter discussed. While these matters were pending in respondent court, Beilensons filed a complaint in intervention in the divorce action, against husband, but not against the wife, seeking to protect the award of fees and costs already made in their favor and any additional award that might be made. This complaint is still pending in respondent court.
It appears that the wife has, in the meantime, quitclaimed to her husband the property on which she held a lien to protect the Beilensons' award, that husband and wife have jointly moved to dismiss the divorce action, and that proceedings are now pending in the Supreme Court of this state to compel such dismissal or, in the alternative, to effect a substitution of the new attorneys for the wife prior to hearing Beilensons' motion for additional fees. [fn. 1] (L.A. 27128.)
In an attempt further to protect their claim for fees, Beilensons *528 then filed the action immediately involved in this proceeding. This action is a plenary action at law, against the wife only, alleging the original employment, an unlawful discharge of Beilensons as her attorneys in the divorce action, and praying for the reasonable value of their services in the divorce action. [1] The wife demurred to said complaint on the ground that there was another action pending between the same parties for the same cause. (Code Civ. Proc., 430, subd. 3.) The demurrer was sustained, and the court made an order that "this action is abated until final determination" of the divorce action. A motion to vacate this order having been denied, petitioner sought from this court a writ of mandate to compel vacation of the order sustaining the demurrer and staying proceedings. Mandate is an appropriate method to test the validity of the order of the trial court herein involved. (Pacific Engine etc. Works v. Superior Court (1955) 132 Cal.App.2d 739 [282 P.2d 937].)
[2] In her "Return, Demurrer and Answer" to the petition, the real party in interest seeks to controvert the allegations of petitioner as to the wrongfulness of the discharge of the attorneys. Such a denial has no place in this proceeding. We take the complaint in Diowchi v. Meadow as it stands; if its allegations are not true, or if real party in interest has any other defense to the claim for attorney fees, her remedy is to answer the complaint and litigate the issues so formed in the trial court.
[3a] An attorney for a wife in a divorce action has two independent bases for collection of fees. As in any other matter, he may look to his own client for payment of his fees. Or, by virtue of the provisions of sections 137.3 and 137.5 of the Civil Code, he may look to the husband for fees payable under a court order. But the amount recoverable in the two instances are not the same. [4] As between attorney and the wife, in a divorce action, the recovery is either the amount agreed upon by contract or a recovery in quantum meruit. (Neblett v. Getty (1937) 20 Cal.App.2d 65 [66 P.2d 473].) [5] And, in case of discharge (whether or not for cause) the recovery may be in quantum meruit even though the retainer contract called for the attorney to look to his statutory claim against the husband. (Bergan v. Badham (1956) 142 Cal.App.2d Supp. 855, 856-857 [297 P.2d 815].) [6] But the statutory recovery against the husband is limited by his ability to pay, and also by the wife's ability to pay fees out of her own resources. (Loke v. Loke (1949) 95 Cal.App.2d 278 *529 [212 P.2d 553].) [3b] It follows that Beilensons' recovery, if any, against the husband, either under the motion for additional fees or under the complaint in intervention, may be for a lesser amount than that recoverable in the plenary action against the wife and will be based on a different duty and obligation.
[7] Further, although section 137.5 of the Civil Code allows an order directing payment of fees and costs directly to the attorney, still the application for such an order must be made in the name of the wife and not in the name of the attorney. (See Weil v. Superior Court (1950) 97 Cal.App.2d 373 [217 P.2d 975].)
[8] Since neither the parties, nor the cause of action, are the same in the case of Diowchi v. Meadow as in Meadow v. Meadow it follows that: The demurrer to the complaint in the Diowchi action should not have been sustained; the order sustaining such demurrer and ordering an abatement should be vacated, the demurrer should be overruled and the real party in interest be permitted to answer or otherwise plead as she may be advised.
Let a peremptory writ of mandate issue, directing respondent court: to vacate its order of February 3, 1963, in the case of Marion U. Diowchi v. Sharon Kathryn Meadow, being action No. 807152 in the files of said court; to overrule said demurrer; and to grant defendant in said action a reasonable time within which to answer or otherwise plead to the complaint on file therein.
Burke, P. J., concurred.
Jefferson, J., did not participate.
NOTES
[fn. 1] 1. In view of the pendency of these proceedings, we do not comment on the propriety of either the motion or the complaint in intervention. Cf. Schwartz v. Schwartz (1953) 119 Cal.App.2d 102 [259 P.2d 33].
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727 F.Supp. 917 (1990)
IMPERIAL CASUALTY & INDEMNITY COMPANY, Plaintiff,
v.
The HOME INSURANCE CO. OF MANCHESTER, NEW HAMPSHIRE, et al., Defendants,
v.
NATIONAL CASUALTY COMPANY, Additional Defendant.
Civ. A. No. 88-0932.
United States District Court, M.D. Pennsylvania.
January 8, 1990.
Francis E. Marshall, Jr., Law Offices of Francis E. Marshall, Jr., Harrisburg, Pa., for Imperial Cas. and Indem. Co., plaintiff.
Zygmunt Ronald Bialkowski, Jr., Scranton, Pa., for Home Ins. Co. of Manchester, N.H., defendant.
Michael John Foley, Scranton, Pa., for Cynthia Parker, Administratrix of the Estate of Elvin R. Parker, defendant.
Donald B. Hoyt, York, Pa., for County of York Pennsylvania, Mary Ellen Filipovitz, Raymond W. Neidinger and York County Prison Bd., defendants.
Frank J. Lavery, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Harrisburg, Pa., for Nat. Cas. Ins. Co., third-party defendant.
MEMORANDUM
CALDWELL, District Judge.
Plaintiff, Imperial Casualty & Indemnity Company (Imperial), and defendant, The Home Insurance Company of Manchester, New Hampshire (Home), have cross-moved for summary judgment pursuant to Fed.R. Civ.P. 56.[1] This is a declaratory judgment action in which Imperial seeks to hold Home liable for the attorney's fees and costs Imperial incurred in defending another action before this court, Parker v. County of York, No. 87-0466 (M.D.Pa.), along with Imperial's contribution to the settlement of that action.
*918 Imperial had issued a policy of insurance to the County and its Sheriff's Department for "damages because of wrongful acts arising out of Law Enforcement activities...." Home's policy is a comprehensive general liability policy issued to the County of York. Imperial defended the County and one of its employees (Raymond W. Neidinger) in the Parker action pursuant to a reservation of rights. Home declined coverage for several reasons but its defense of this declaratory judgment action is based upon only two of its grounds for doing so, two exclusions in its policy.[2] One exclusion, dealing with "Malpractice and Professional Services," provides that there shall be no coverage for "bodily injury or property damage due to the rendering of or failure to render any professional service." The other exclusion, dealing with "Law Enforcement," states that the policy would not apply "to any loss or claim arising out of the law enforcement activities or operations." The Home policy provides no clarifying definitions for these exclusions.
By way of background on the Parker case, it was brought because of the death by heart attack on May 31, 1985, of Elvin R. Parker, then an inmate at the York County Prison. According to the amended complaint, which we must examine to determine the defendant's duty to defend, see Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir.1985), Parker was brought to the prison infirmary at about 10:00 p.m. that night suffering from symptoms of a heart attack. The nurse on duty at the time, Mary Ellen Filipovitz, R.N., and Neidinger, a prison guard, were alleged to have acted wantonly, recklessly, and intentionally in failing to provide the decedent with necessary medical treatment. The complaint also apparently alleged that other, unnamed, prison employees failed to provide the decedent with prescribed medication needed for his heart condition in the days prior to the attack and failed to obtain medical treatment for him when he first began to complain of his heart condition. A cause of action under 42 U.S.C. § 1983 and pendent state law claims were asserted.
We will analyze the law enforcement exclusion first. Plaintiff contends that the plain meaning of the phrase "law enforcement" does not include activities dealing with the incarceration or detention of prisoners or others awaiting trial.[3] Rather, they involve only conduct occurring prior to that time, such as investigations and arrests. In support, plaintiff refers us to the following definitions of "law enforcement officer."
Those whose duty it is to preserve the peace. [cited case omitted]. See also Police officer; sheriff.
Black's Law Dictionary 796 (5th ed. 1979) (brackets added).
A policeman, sheriff, deputy sheriff, constable, or other officer whose duty it is to be vigilant in discovering violations of the criminal laws and ordinances and to arrest offenders.
Ballentine's Law Dictionary 712 (3d ed. 1969).
The further reference in the Black's Law Dictionary definition to "police officer" and "sheriff" are in accord with the Ballentine's Law Dictionary definition in limiting a "law enforcement officer" to a person who apprehends and aids in the prosecution of criminals. In the absence of a policy definition, we believe we should rely upon these common definitions in construing the phrase "law enforcement activities or operations" in defendant's policy. Hence, the law enforcement exclusion does not apply to the underlying action since it arose while the decedent was incarcerated in the County prison.
In reaching this conclusion, we reject defendant's reliance upon Home Indemnity Co. v. Johnson County Fiscal Court, 682 F.Supp. 326 (E.D.Ky.1987). The policy language at issue in that case is, in our view, distinguishable from the Home policy language in the instant case. In Johnson *919 County, the policy excluded "liability ... arising out of the performance of the insured's duties to provide law enforcement ... and all operations necessary and incidental thereto." Id. at 327. The district court concluded that this exclusion barred coverage for the underlying action, a claim arising from the murder of two people by an escapee from the County prison. The court reasoned, in part, as follows:
There can be no valid argument that the operation of a jail, for the purpose of incarceration of convicted criminals or detention of accused, pending disposition of charges against them, is a component of and incidental to law enforcement.
Id. at 329.
In the instant case, on the other hand, the exclusionary language stops at law enforcement activities or operations. It does not further preclude coverage for incidental operations.
We turn now to the professional services exclusion. We have no doubt that, if the allegations of the Parker complaint had related solely to the conduct of Nurse Filipovitz and prison guard Neidinger, this exclusion would have barred coverage. The claims against them were based upon their failure to provide adequate medical treatment on the night of the decedent's death. Medical treatment is a professional service and hence not covered by virtue of the exclusion. See Harad v. Aetna Casualty And Surety Co., 839 F.2d 979, 984 (3d Cir.1988) (quoted and cited cases omitted) ("A `professional' act or service is one arising out of a vocation, calling, occupation or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual rather than physical or manual."). The Parker complaint, however, further alleged that the decedent had been prescribed medication prior to his incarceration (amended complaint, ¶ 10), and that prior to and during his incarceration, he had a history of chest pain, angina and breathing difficulty. (¶ 8). Decedent had advised prison officials of his condition (¶ 12) but they withheld his medications, (Id.), and medical treatment during the weeks preceding his death. (¶ 13). The failure of the officials to act was averred to have resulted from a policy of the County of York. (Id.).
We do not believe these averments come within an exclusion for a claim resulting from the rendering or failure to render professional services. In one sense, we readily admit they do. Looking to the acts themselves rather than to the status of the actor or title that person may have had, see Harad, supra, the prison officials could have been called upon to make a professional, medical judgment when decedent made his requests for treatment or his medications. And in failing to act the officials could have been making a professional evaluation of the nature of decedent's complaints. If so, then the exclusion would apply. See Merchants Mutual Insurance Co. v. City of Concord, 117 N.H. 482, 374 A.2d 945 (1977) (actions of city and county officials in failing to obtain psychiatric treatment for prisoner showing signs of mental illness came within exclusion of liability for professional services and were not covered by the insurance policies at issue); Gulf Insurance Co. v. Gold Cross Ambulance Service Co., 327 F.Supp. 149, 152 (W.D.Okla.1971) ("`Medical treatment' in the form of home remedies, or the giving of a hypodermic injection, without consultation with or attendance by a physician, may be administered by a parent, a non-professional, to his sick child. If so, it would be work or service `of a professional nature.'").
But the allegations could also be read as a failure on the part of the prison officials, when faced with serious medical complaints from a prisoner, to convey this information to appropriate prison medical authorities along with the request for medical treatment. In this sense, the officials were not being called upon to exercise a professional judgment but, rather, merely to transmit information and process a request to see a doctor. If so, we do not believe the professional services exclusion would apply. Additionally, the prison officials | {
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IN THE SUPREME COURT OF TEXAS
════════════
NO. 14-0747
════════════
GLENN HEGAR, IN HIS OFFICIAL CAPACITY AS TEXAS COMPTROLLER, AND KEN
PAXTON, IN HIS OFFICIAL CAPACITY AS TEXAS ATTORNEY GENERAL, PETITIONERS,
v.
TEXAS SMALL TOBACCO COALITION, AND GLOBAL TOBACCO, INC., RESPONDENTS
═════════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
═════════════════════════════════════════════
Argued December 8, 2015
JUSTICE WILLETT delivered the opinion of the Court.
Amid nationwide tobacco litigation in the 1990s, the State of Texas individually settled its
lawsuit against several of the largest tobacco companies over smoking-related Medicaid costs. The
multibillion dollar settlement principally requires the settling manufacturers to make annual
payments of approximately $500 million to the State in perpetuity. In return, the State waived
without limitation, among other things, any future reimbursement claims against the settling
manufacturers.
In 2013, the Legislature passed House Bill 3536, which sought to recover the State’s health
care costs imposed by non-settling manufacturers’ products through a tax on those manufacturers.
This case concerns whether that taxation scheme violates the Equal and Uniform Clause of the
Texas Constitution. We hold that it does not. Accordingly, we reverse the court of appeals’
judgment and remand to that court for consideration of the non-settling manufacturers’ remaining
challenges to the tax.
I
In this case, we write against the backdrop of national tobacco litigation, a momentous era
culminating in some of the largest and most extensive civil litigation settlements in American
history. We begin with an overview of the tobacco liability claims of the 1990s before turning to
the facts of this case.
A
This case arises in part from historic litigation that buffeted the tobacco industry in the last
decade of the twentieth century. The Lone Star State was a significant player in that litigation. Just
over twenty years ago, Texas sued several of the nation’s leading tobacco companies, asserting
violations of numerous state and federal fraud, racketeering, antitrust, conspiracy, and other laws.
Texas’s claims were that these companies knowingly misrepresented their products as safe
and targeted minors in their advertisements. More than 40 states filed similar suits against the
tobacco industry. The companies’ collective defense faltered, however, when one of the
companies, Liggett, settled with Texas and several other states (the Liggett Settlement), agreeing
in large part to cooperate with the states in their suits against the remaining defendants. As relevant
here, Liggett agreed to make annual payments to the states, and the states waived their claims
against Liggett. The Liggett Settlement led to settlement negotiations involving the remaining
defendants that culminated in a nationwide settlement and state-specific settlements.
The Liggett Settlement prompted serious settlement discussions between the states and the
remaining tobacco defendants. Shortly thereafter, the states and tobacco defendants executed a
Memorandum of Understanding and Proposed Resolution (Proposed Resolution). The Proposed
2
Resolution sought “to forge an unprecedented national resolution of the principal issues and
controversies associated with the manufacture, marketing and sale of tobacco products in the
United States.” According to the Proposed Resolution, federal legislation would provide the
vehicle for implementing the solution and ensuring “comprehensive regulation of the tobacco
industry while preserving the right of individuals to assert claims for compensation.”
The Proposed Resolution would primarily require the remaining defendants to make annual
payments in perpetuity “to fund health benefits program expenditures and to establish and fund a
tobacco products liability judgments and settlement fund.” Those payments would total
approximately $368.5 billion over the first 25 years. The payments would be adjusted for inflation
and changes in the defendants’ sales. The Proposed Resolution would also impose significant
limitations on the defendants’ marketing of their products. In return, the states would waive their
claims against the defendants as well as future claims arising from the sale or use of tobacco
products. The Proposed Resolution never became federal law, but it would serve as the blueprint
for several settlements in the following months.
The Master Settlement Agreement (MSA) was the largest of the subsequent settlements,
involving 46 states plus American territories and the District of Columbia (collectively, settling
states). Under the MSA, the settling states released past, pending, and future claims against the
remaining defendants (deemed “participating manufacturers”) that sought “recovery for Medicaid
and other public health expenses incurred in the treatment of smoking-induced illnesses.” Tracking
the Proposed Resolution, the MSA required the participating manufacturers to make initial
payments followed by perpetual annual payments based on their market share and product sales.
The MSA also imposed marketing restrictions on the participating manufacturers, forbidding
advertising to minors and requiring initiatives to prevent such advertising. The MSA permits other
3
tobacco manufacturers to join the MSA, generally requiring these “subsequent participating
manufacturers” to comply with the MSA’s restrictions and ongoing payment scheme to receive
the same release of claims that the participating manufacturers received.
Texas was not a party to the MSA. Instead, Texas and three other states—Minnesota,
Mississippi, and Florida—reached individual settlements with the remaining tobacco defendants.
For purposes of this case, the differences between these settlements are negligible. The Texas
Comprehensive Settlement Agreement and Release (Comprehensive Settlement) accomplished
much of what the Proposed Resolution would have accomplished, exemplified by the
Comprehensive Settlement’s constant invocation of the Proposed Resolution and the Proposed
Resolution’s attachment to the Comprehensive Settlement as an appendix. It stated that Texas and
the remaining defendants (settling manufacturers)—Philip Morris, Inc., R.J. Reynolds Tobacco
Co., Brown & Williamson Tobacco Co., Lorillard Tobacco Co., and United States Tobacco Co.—
desired to settle on terms “comparable to those contained in the Proposed Resolution, which terms
will achieve for Texas immediately and with certainty the financial benefits it would receive
pursuant to the Proposed Resolution.”
The Comprehensive Settlement required the settling manufacturers to make initial
payments to Texas of $725 million—Texas’s 7.25% share of the $10 billion initial payment to the
states set out in the Proposed Resolution. The Comprehensive Settlement also required the settling
manufacturers to make annual payments in perpetuity. Adjusted by inflation and the settling
manufacturers’ market share and product sales, the payments may increase, decrease, and even
end if a manufacturer stops selling tobacco products altogether. The Comprehensive Settlement
stated that the initial payments “constitute[d] reimbursement for public health expenditures by the
State of Texas.” It further stated that “[a]ll other payments . . . are in satisfaction of all of the State
4
of Texas’s claims for damages incurred by the State in the year of payment or earlier years,
including those for reimbursement of Medicaid expenditures and punitive damages.” Pursuant to
a most-favored-nation provision, the amount of the payments corresponds to the amount required
under the Minnesota settlement, which costs settling manufacturers approximately $0.64 per
cigarette pack. The parties to this litigation do not dispute that the settling manufacturers’ payments
to the State result in annual revenue of approximately $500 million.
As in the MSA and Proposed Resolution, the Comprehensive Settlement prohibited the
settling manufacturers from marketing to minors and required them to support programs created
to reduce underage smoking. Further, the Comprehensive Settlement prevented the settling
manufacturers from opposing any legislative or administrative initiatives to strengthen penalties
for tobacco-product sales to minors and for minors in possession of those products.
In return, the Settlement secured robust immunity for the settling manufacturers, though
they admitted no wrongdoing and disclaimed any liability. Texas released all past claims “that
were or could have been made in this action or any comparable federal or state action.” And as to
future claims, Texas released those claims “directly or indirectly based on . . . the use of or
exposure to Tobacco Products manufactured in the ordinary course of business, including without
any limitation any future claims for reimbursement for health care costs allegedly associated with
use of or exposure to Tobacco Products.”
B
But what of those tobacco manufacturers who are not parties to either the MSA or the state-
specific settlements? The Proposed Resolution cautioned that its achievements “would be
substantially undercut if certain companies were free to ignore the limitations it imposes, and were
instead able to sell tobacco products at lower prices (because they were not making the payments
5
described above) and through less restricted advertising and marketing activities.” Following the
Proposed Resolution’s idea of imposing ongoing payments or escrow obligations on these non | {
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620 F.2d 741
Larry E. MYERS, aka L. E. Myers, Petitioner,v.UNITED STATES DISTRICT COURT FOR the DISTRICT OF MONTANA, Respondent,andJohn Hancock Mutual Life Insurance Company, a corporation,et al., Real Parties in Interest.
No. 79-7517.
United States Court of Appeals,Ninth Circuit.
June 9, 1980.
Stephen C. Mackey, Towe, Ball, Enright & Mackey, Billings, Mont., argued, for petitioner.
Sidney R. Thomas, Billings, Mont., argued, for Real Parties in Interest.
Appeal from the United States District Court for the District of Montana.
Before HUG, FLETCHER and FARRIS, Circuit Judges.
FARRIS, Circuit Judge:
1
Petitioner Larry Myers is requesting that this court issue a writ of mandamus directing United States District Judge James Battin to afford Myers a jury trial in his action against John Hancock Mutual Life Insurance Company. Judge Battin denied Myers a jury on the grounds that Myers' jury demand had been untimely and that the issues involved did not require a jury. We order the writ to issue.
I. PROCEDURAL BACKGROUND
2
John Hancock initiated this action in a Montana state court to foreclose on a mortgage it held on real estate owned by Myers. Myers counterclaimed for breach of contract and interference with business relations. Myers made an untimely demand for a jury trial before the state court.1 The Montana Rules of Civil Procedure give state trial judges the discretion to afford relief from a jury waiver, and Myers' untimely demand was granted as an exercise of this discretion.2 Shortly thereafter, the United States, as an intervening party, had the case removed to federal court. United States District Judge Battin issued an order setting a date for a non-jury trial. Myers, through his attorney, sent Judge Battin a letter pointing out that the state court had previously granted a jury and inquiring whether Judge Battin had been inadvertent in eliminating the jury. The Judge's law clerk replied that the letter of inquiry would be deemed a jury demand and that "(a) jury (would) be called for the trial as a matter of course, without further action by counsel." Letter from Judge Battin's law clerk to counsel for respondent (February 23, 1979) (Exhibit D attached to petition for writ of mandamus). In briefs submitted prior to trial, John Hancock challenged Myers' right to a jury, and Judge Battin issued a pretrial order setting the case to be heard without a jury. Myers immediately filed his petition for a writ of mandamus.
II. DISCUSSION
A. Timeliness of Myers' Jury Demand
3
Rule 81(c) of the Federal Rules of Civil Procedure provides that a party who, while in state court, "made an express demand for trial by jury in accordance with state law, need not make a demand after removal." Myers made an express but untimely jury demand while in state court, and the state judge exercised his discretion under Montana Civil Rule 39(b) to grant the demand despite its untimeliness. We are thus presented with the question whether a jury demand is "in accordance with state law" for the purposes of Rule 81(c) when it is not timely made but is nonetheless granted as an exercise of discretion under Rule 39(b).
4
The Montana Rules of Civil Procedure provide two means by which a party may effectively demand a jury. The favored way is to make a demand within the ten-day time limit of Rule 38, but the party may also present the trial court with evidence which persuades the court to exercise its Rule 39(b) discretion to grant an untimely demand. We cannot properly review the Montana trial court's application of a state procedural rule. Myers did not follow the preferred jury demand procedure but his demand was "in accordance with state law."
5
Consequently, Myers' demand is within Federal Rule 81(c) and no further demand was required in federal court. He did not waive his right to a jury trial by failure to make a timely demand.
6
B. Myers Constitutional Entitlement to a Jury Trial
7
In determining whether the Seventh Amendment entitled Myers to a jury trial, we must look first to whether he is raising a claim which, prior to the ratification of the Seventh Amendment, would have been raised in a court of law rather than a court of equity. Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657-58, 55 S.Ct. 890, 891-92, 79 L.Ed. 1636 (1935). With the modern merger of law and equity courts, and the liberal joinder provisions of the Federal Rules of Civil Procedure, considerable judicial attention has been focused on the issue of a party's constitutional right to a jury trial in cases involving both historically "legal" and historically "equitable" claims.
8
In Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970), the Supreme Court articulated the governing principle:
9
(W)here equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed . . . by trying the legal issues as incidental to the equitable ones . . . . The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.
10
Id. at 537-38, 90 S.Ct. at 738. The Third Circuit in Eldredge v. Gourley, 505 F.2d 769, 770 (2d Cir. 1974) held that a defendant who counterclaimed for contractual damages was entitled to a jury determination of his counterclaim unless the district court found that it lacked merit as a matter of law.
11
John Hancock does not contend that Myers' counterclaim for breach of contract lacks merit. It argues instead that the counterclaim is primarily a request for equitable relief directing John Hancock to execute the documents necessary for the release of the mortgage on Myers' property. Even if the contention that Myers' counterclaim is primarily equitable were true, denying Myers a jury trial on his legal counterclaim merely because it was incidental to his equitable claim would directly contradict the principle stated in Ross v. Bernhard, supra. Claims for breach of contract are historically "legal," and Myers is entitled to a jury trial on that and any other issue raised in his counterclaim which the district court determines to be "legal."
III. CONCLUSION
12
Myers is constitutionally entitled to a jury determination of any "legal" issues raised in his counterclaim. He did not waive that entitlement by an untimely demand. We recognize that appellate courts must exercise caution in employing such extraordinary relief as a writ of mandamus. See Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977). The Supreme Court, however, has "emphasize(d) the responsibility of the Federal Courts of Appeals to grant mandamus where necessary to protect the constitutional right to trial by jury . . . ." Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962).
13
The writ shall issue.
1
Montana has adopted Rule 38(b) of the Federal Rules of Civil Procedure which requires that a jury demand be made within ten days of the filing of the last pleading which relates to the jury trial issue
2
Montana Civil Rule 39(b) provides that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court upon motion or of its own initiative may on ten days' notice to the parties order a trial by a jury of any or all issues."
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135 F.3d 648
98 Cal. Daily Op. Serv. 782, 98 Daily JournalD.A.R. 1055,Pens. Plan Guide (CCH) P 23940AMichael TOUMAJIAN, Plaintiff-Appellant,v.Richard FRAILEY and Frailey & Associates, Inc., Defendants-Appellees.
No. 95-56213.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 9, 1997.Decided Jan. 29, 1998.
1
Robert C. Burlison, Jr., Burlison & Luostari, Glendale, California, for plaintiff-appellant.
2
Ronald S. Kravitz and Lowell H. Haky, Zelle & Larson LLP, San Francisco, California, for defendants-appellees.
3
Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CV-93-07210-JSL.
4
Before: FLETCHER and TROTT, Circuit Judges, and JENKINS,* Senior District Judge.
JENKINS, District Judge:
OVERVIEW
5
Plaintiff Michael Toumajian filed a Complaint in California state court in which he asserted that the defendants, Richard Frailey and Frailey & Associates, Inc. (collectively "Frailey"), were negligent in advising him in setting up and administering a pension plan. The defendants had the matter removed to the district court. On motion of the defendants, the district court dismissed the Complaint. Following payment of sanctions to the defendant, plaintiff was permitted to file an amended complaint. Plaintiff also filed a Motion to Remand. The district court dismissed the Amended Complaint without leave to amend and denied the Motion to Remand as moot. On appeal, the plaintiff challenges both the first and second dismissals as well as the award of sanctions. Because we conclude the action was improvidently removed in the first instance, all orders subsequently entered by the district court dismissing the Complaint and the Amended Complaint are reversed. Although our conclusion that the district court lacked subject matter jurisdiction does not necessarily invalidate the district court's award of sanctions, we also reverse that award. Accordingly, the action is remanded to the district court with directions to remand the action to the state court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
6
Once again the mysteries of the Employee Retirement Income Security Act of 1974 ("ERISA")-a statute intended to provide a system of uniformity and simplicity in the complex regulatory field of employee benefits-provide added complexity in this action. Specifically, this Court, as so many before and so many still to come, must determine whether the preemptive force of ERISA acts as a bar to an otherwise run-of-the-mill state law claim of professional malpractice. For purposes of simplicity-a proposition foreign to ERISA actions-the procedural and factual history of this action is only briefly described. (The parties, active participants in the torturous history, are no doubt fully aware of the complete history so that a detailed repetition is not warranted.)
7
On October 22, 1993, Toumajian initially filed a Complaint in California Superior Court alleging state law claims of negligence and seeking unspecified damages from the defendants, in which he asserted that he retained Frailey, "to set up and administrate a pension and profit plan," and that as a result of Frailey's "fail[ure] to exercise reasonable care and skill" in the performance of those services, Toumajian personally sustained unascertained money damages.
8
Frailey removed the state action to the district court on December 2, 1993, pursuant to 28 U.S.C. § 1441(b) on the ground that district court had original jurisdiction over the action by virtue of 28 U.S.C. § 1331 in that the Complaint "arises under the Employment [sic] Retirement Income Security Act of 1974 (ERISA)." Soon thereafter Frailey filed a motion to dismiss, asserting that ERISA preempted Toumajian's state law negligence claims. Initially, on October 19, 1994, the district court dismissed the Complaint without prejudice and granted Toumajian twenty-days leave to amend.
9
On or about November 8, 1994, Toumajian, rather than filing an amended complaint as requested by the court, attempted to file a motion to remand. Toumajian's attempted filing, however, was thwarted by his failure to comply with the local district court rules. Instead of filing the motion by hand-delivering it to the clerk of the court, Toumajian's attorney attempted to file the motion via facsimile. Because the motion did not contain an original signature of Toumajian's attorney as required by Local Rule 3.1, the district court rejected the attempted filing. On November 29, 1994, the district court, noting that Toumajian did not file an amended complaint within twenty days, dismissed the action without leave to amend.
10
On December 13, 1994, Toumajian filed a motion seeking relief from the dismissal and/or reconsideration of the November 29, 1994 order. At a January 9, 1995 hearing on his motion seeking relief from dismissal, Toumajian's attorney tried to raise with the district court what he believed to be his prior outstanding motion to remand.1 Although the district court believed it had already ruled on and denied Toumajian's motion to remand, the record indicates that it had not. There were no orders entered on the merits of that motion. The only determination made by the district court was that the motion as received by the court did not comply with the local rules because it had a "fax signature." The only court action on the motion was a Notice of Document Discrepancy, dated November 8, 1994, rejecting the attempted filing.
11
In addition, the record of the January 9th hearing does not support the view that the district court denied Toumajian's motion from the bench. See footnote 1, supra. Although the court stated initially that the motion was denied, it then states that: "I'll look at it. I think it was denied on the papers. If it wasn't, I'll reset it." The district court never re-set the motion for hearing.
12
On January 18, 1995, subject to the condition that Toumajian pay $2,500 in sanctions directly to Frailey, the district court granted Toumajian's motion for relief from dismissal and permitted Toumajian to file an amended complaint. All later rulings from the district court were based on the Amended Complaint.
13
In his Amended Complaint, filed on February 16, 1995, Toumajian described the action as an action for damages due to the negligence and the failure of the defendants to properly advise the plaintiff "in the setting up and administration of the plaintiff's company's employee retirement plan under the Employment [sic] Retirement Income Security Act of 1974." Specifically, Toumajian asserted that the negligence claims arose out of: (1) defendants' failure to properly advise the plaintiff on the legality of the "ERISA plan's creation, actions and administration"; (2) defendants' improper advice that "monies from the ERISA plan could be invested in [zero] coupon bonds"; (3) defendants' advice that "monies from the ERISA plan could be co-mingled with the plaintiff's monies"; (4) defendants' advice concerning "procedures to notify members of the ERISA plan"; and (5) defendants' failure to provide plaintiff with "competent and proper advice" concerning the withdrawal of "funds from the ERISA plan."
14
On March 17, 1995, Frailey filed a motion to dismiss the amended complaint on the grounds that ERISA preempted the state law negligence claims and that, among other things, Toumajian, as an individual, lacked standing to bring an action under ERISA. On April 3, 1995, Toumajian filed a motion to remand.
15
On May 31, 1995, Toumajian filed an untimely opposition to Frailey's motion to dismiss in which he again asked the district court to remand the matter to state court or, in the alternative, grant him leave to file a second amended complaint. Hearings on both the motion to dismiss and the motion to remand were held on June 12, 1995.
16
On July 19, 1995, the district court granted Frailey's motion to dismiss without leave to amend and denied Toumajian's motion to remand as moot. Toumajian filed a timely notice of appeal, appealing the following orders: (1) the November 29, 1994 order dismissing the original Complaint without leave to amend; (2) the January 18, 1995 order conditioning the filing of an Amended Complaint on the payment of $2,500 in sanctions to the defendants; and (3) the July 19, 1995 order dismissing the Amended Complaint and denying the motion to remand.
STANDARD OF REVIEW
17
Questions of subject matter jurisdiction and removal are reviewed de novo. Kruse v. State of Hawaii, 68 F.3d 331, 333 (9th Cir.1995); Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994). The burden of establishing federal subject matter jurisdiction falls on the party invoking removal. Harris, 26 F | {
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54 F.3d 782
Ronald L. Satterleev.State of Missouri
NO. 94-3922
United States Court of Appeals,Eighth Circuit.
Jan 20, 1995
Appeal From: W.D.Mo., No. 94-CV-3285
1
AFFIRMED.
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97 Cal.App.2d 470 (1950)
NELTA MARIE MONROE, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.
Civ. No. 17612.
California Court of Appeals. Second Dist., Div. One.
May 12, 1950.
Robert G. Blanchard for Petitioner.
Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, for Respondent.
Irvin C. Evans and Paul J. Otto for John Edward Monroe, Real Party in Interest.
DORAN, J.
According to the petition, an action for divorce was filed on August 24, 1949, by the petitioner, Nelta Marie Monroe, against John Edward Monroe. In the amended complaint the husband was charged with adultery committed with 11 women; extreme cruelty was also alleged in that the husband "associated with women other than his wife." These women were not named as corespondents in the divorce action. Both charges were denied in the husband's answer.
Thereafter, the wife, petitioner herein, commenced the taking of a deposition of the husband as the adverse party, pursuant to sections 2031 and 2055 of the Code of Civil Procedure. During the course of the deposition John Edward Monroe testified that he was acquainted with the women named in the complaint, and thereafter, upon advice of counsel, refused to answer questions relating to the following matters: "Where certain of said women lived at the time of his meeting with *471 them," and where such women lived at present; "When was the last time he saw certain of them; and ... What were the circumstances surrounding his meetings with certain of them." The husband further refused to answer an inquiry as to the last time he went out with anyone other than his wife.
Objections to the above questions were made on the grounds that the same were incompetent, irrelevant and immaterial and outside the issues of the complaint; that no foundation had been laid, and that questions were highly prejudicial to the defendant's interests. Upon the hearing of an order to show cause, the superior court sustained the objections and refused to require defendant to answer the inquiries.
[1] The petition for writ of mandate avers that "By reason of the foregoing orders ... petitioner has been prevented from obtaining ... answers to questions which are legal and pertinent to the matter at issue ... (and) By reason of respondent's action and its failure to perform its judicial duty ... petitioner has been deprived of her lawful opportunity to complete the said deposition and will ... be required to proceed to trial without the benefits of said deposition ... and without any means of obtaining the information necessary to prepare her case."
Respondent's points and authorities present the proposition that the testimony in question "was inadmissible because the provisions of Section 1019 C. C. P. had not been complied with." That section provides that "When in an action for divorce adultery is charged ... and the person with whom in any of the pleadings, a copy of such pleadings must be such adultery is alleged to have been committed ... is named personally served on such named person."
In Klemmer v. Klemmer, 42 Cal.App. 618 [187 P. 85], the court held that where section 1019 had not been complied with it was not error to exclude a deposition offered to prove the adultery. The petitioner's argument that, because the Supreme Court in denying a hearing in the Klemmer case, "expressly withheld approval of this portion of the opinion, thereby plainly implying a serious doubt as to the soundness of the views expressed," is, of course, without merit.
The recent case of McClatchy v. Superior Court, 26 Cal.2d 386, 392, 394 [159 P.2d 944], has been cited by petitioner, where the reviewing court held that "Mandamus is the appropriate remedy to secure the enforcement of a litigant's statutory right to take depositions," and that "By refusing to compel a witness to answer proper questions, a trial court *472 may effectively deny a litigant the right to take deposition." However, as pointed out by respondent, the McClatchy case is in no manner similar to the present litigation. In the McClatchy case the holding was predicated on the fact that although a ruling on demurrer had eliminated the issues embraced by the deposition this did not prevent such issues from being classed as potential since they might be raised by an amended pleading; hence the witness should have been required to answer the inquiries. In the present case no such situation existed.
It is also argued by respondent that the questions asked the husband "were objectionable in that the answers might tend to subject the defendant to prosecution for a public offense"; that this privilege applies whether the crime involved is a misdemeanor or a felony. Respondent further calls attention to the fact that "Mandamus will not lie to control the discretion of respondent court"; that in passing upon the admissibility of evidence and materiality of questions, discretion of the trial court is involved and should not be controlled by mandamus except where there is a gross abuse of discretion.
It is obvious that the writ of mandate, like other extraordinary writs, is not designed and should not be utilized to unduly control the ordinary activities of trial courts. In matters involving discretion it will not lie to control such discretion "except in those rare instances where under the facts it cannot be exercised in but one way," as was declared in Hilmer v. Superior Court, 220 Cal. 71, 73 [29 P.2d 175], quoted in Lincoln v. Superior Court, 22 Cal.2d 304, 313 [139 P.2d 13]. The present case is one not falling within that category.
The record indicates that without complying with Section 1019 of the Code of Civil Procedure, requiring service of pleadings upon the husband's associates in the alleged adulteries, and without making these women parties to the action, the wife's counsel, by way of what is sometimes termed "a fishing expedition," attempted to compel the husband to answer questions concerning the whereabouts of the women. This, upon order to show cause, the trial court refused to sanction. Under the circumstances disclosed by the record and cases governing the use of the writ here employed it cannot be said that petitioner is entitled to the writ.
The petition for a writ of mandate is denied.
White, P. J., and Drapeau, J., concurred.
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758 F.2d 655
Chargualafv.Camacho
85-1632
United States Court of Appeals,Ninth Circuit.
3/8/85
D.Guam
AFFIRMED
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10248
Summary Calendar
_____________________
MICHAEL CARVER FLOWERS,
Plaintiff-Appellant,
v.
JIM BOWLES, Sheriff, and MEDICAL DIRECTOR,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(July 25, 1995)
Before KING, JOLLY, and PARKER, Circuit Judges.
PER CURIAM:*
Michael Carver Flowers brought suit under 42 U.S.C. § 1983,
claiming that he was unconstitutionally denied medical care while
incarcerated. Flowers' claim was dismissed with prejudice
pursuant to 28 U.S.C. § 1915(d), and Flowers now appeals. We
affirm in part and reverse and remand in part.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
I. BACKGROUND
Flowers, a Texas Department of Criminal Justice prisoner,
filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he
was denied medical care while incarcerated in two Dallas County
jails between January 13 and March 21, 1993. Flowers named
Sheriff Jim Bowles and an unidentified medical director as
defendants.
Flowers was first incarcerated at the Lew Sterrit Jail.
There, Flowers claims he told a prison nurse that he had recently
undergone back surgery and needed various medications prescribed
for his pain. Flowers alleges that, despite his request, he was
deprived of these medications during the time he was interned in
the jail.
After three days, Flowers was transferred to a second
facility, where he claims he approached a guard about acquiring
the medication for his back pain. According to Flowers, the
guard gave him request forms, which Flowers maintains he mailed
repeatedly to both Sheriff Bowles and the medical director.
Flowers further contends that he did not receive a reply from
either the sheriff or the medical director during the sixty-four
days he was incarcerated in the center.
Flowers filed his complaint on March 28, 1994. On August
19, 1994, the magistrate judge sent an interrogatory to Flowers,
asking Flowers to better define his cause of action. When
Flowers did not respond within thirty days, the magistrate judge
recommended that the district court dismiss the action for
2
failure to prosecute. Flowers promptly objected that he had
never received the interrogatory. The district court sided with
Flowers, holding that because it was possible Flowers had not
received the interrogatory, dismissal was inappropriate.
Additionally, the district court instructed the magistrate judge
to reissue the document to Flowers.
After Flowers replied to the new interrogatory in full, the
magistrate judge recommended that the district court dismiss the
complaint as frivolous. The magistrate judge first noted that he
was uncertain whether Flowers was a pre-trial detainee or a
convicted prisoner at the time he was allegedly denied his
medication. Thus, the magistrate judge could not determine
whether to apply a Fourteenth Amendment standard, which would
govern the denial of medical care to a pre-trial detainee, or an
Eighth Amendment standard, which would govern the denial of
medical care to a convicted prisoner. Nevertheless, the
magistrate judge determined Flowers had not stated an arguable
§ 1983 claim under either standard. Specifically, the magistrate
judge maintained that Flowers had failed to demonstrate that the
individual defendants had denied him medical care.
Flowers filed an objection to the recommendation, alleging
that he was a pre-trial detainee for one month while incarcerated
in the county jail and was thereafter a convicted felon.
Additionally, Flowers claims that he cannot communicate fluently
in English, but that he could show the personal involvement of
the defendants, if given the opportunity. Despite Flowers'
3
objections, the district court adopted the magistrate judge's
recommendation and dismissed Flowers' complaint as frivolous.
II. STANDARD OF REVIEW
A § 1983 plaintiff who proceeds in forma pauperis is subject
to dismissal if his complaint is "frivolous" within the meaning
of 28 U.S.C. § 1915(d). Under § 1915(d), an in forma pauperis
complaint is frivolous if it lacks an arguable basis in law or in
fact. Denton v. Hernandez, 112 S.Ct. 1728, 1733 (1992).
We review a § 1915(d) dismissal only for an abuse of
discretion because a determination of frivolousness -- whether
legal or factual -- is a discretionary one. Denton, 112 S.Ct. at
1734; Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992). In
reviewing for an abuse of discretion, we consider whether (1) the
plaintiff is proceeding pro se; (2) the court inappropriately
resolved genuine issues of disputed fact; (3) the court applied
erroneous legal conclusions; (4) the court has provided an
adequate statement of reasons for dismissal which facilitates
intelligent appellate review; and (5) the dismissal was with or
without prejudice. Denton, 112 S.Ct. at 1734.
III. ANALYSIS
We agree that Flowers has failed to allege an arguable
claim against either the sheriff or the unnamed medical director
for the three days of medical treatment he was allegedly denied
in the Lew Sterrit Jail. Under § 1983, supervisory officials
cannot be held liable for the actions of their subordinates on
any vicarious liability theory. Thompkins v. Belt, 828 F.2d 298,
4
303 (5th Cir. 1987). Rather, a supervisor is liable only if he
is personally involved in a constitutional deprivation or if
there is a sufficient causal connection between the supervisor's
wrongful conduct and the constitutional violation. Id.
Supervisory liability also exists under § 1983 if the supervisory
official implements a policy so deficient that the policy itself
is a repudiation of constitutional rights and is the moving force
behind the constitutional violation. Id. During his three days
of incarceration in the Lew Sterrit Jail, Flowers claims that he
informed a nurse of his need for medication. Flowers has alleged
no further facts indicating that either the sheriff or the
medical director knew of his need for medication or that they
acted directly or indirectly to deny him his medication.
Accordingly, Flowers has alleged no set of facts which could form
an arguable basis of liability against the named defendants and
his claim with regard to detention in the Lew Sterrit Jail is
therefore legally frivolous.
With regard to his claims arising after he was moved to the
second facility, Flowers has alleged facts which could implicate
personal involvement by both defendants in the alleged
constitutional violation. Moreover, Flowers asserts claims that
may arise under both the Eighth and Fourteenth Amendments. That
is, any constitutional deprivations Flowers can prove occurred
while he was still a pre-trial detainee involve claims under the
Fourteenth Amendment, see Grabowski v. Jackson County Public
Defenders Office, 47 F.3d 1386, 1386 (5th Cir. 1995), reh'g en
5
banc granted, No. 92-7728, 94-60089 (March 14, 1995); see also
Bell v. Wolfish, 441 U.S. 520, 537 (1979), and any constitutional
deprivations Flowers can prove occurred after he was convicted
involve claims under the Eighth Amendment. Estelle v. Gamble,
429 U.S. 97, 97 (1976).
In order to prevail on an Eighth Amendment claim, the
Supreme Court has held that a convict must prove that a defendant
acted with deliberate indifference to his serious medical needs.
Estelle, 429 U.S. at 97. The standard for recovery on a
Fourteenth Amendment claim, which has previously been more
liberal than its Eighth Amendment counterpart, is currently under
review by the en banc court. See Hare v. City of Corinth, 36 F.3d
412, 415 (5th Cir. 1994), reh'g en banc granted, No. 93-7192
(Dec. 8, 1994). Even assuming arguendo that we were to adopt a
Fourteenth Amendment standard as strict as that currently
required to prove an Eighth Amendment claim, it | {
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-11-2009
USA v. Alex Hetherington
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2564
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Alex Hetherington" (2009). 2009 Decisions. Paper 1382.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1382
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-2564
____________
UNITED STATES OF AMERICA
v.
ALEX HETHERINGTON,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-07-cr-00596-1)
District Judge: Honorable William H. Walls
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.
(Filed: May 11, 2009 )
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Alex Hetherington pleaded guilty to conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 for
which he was sentenced to 312 months of imprisonment. On appeal, Hetherington argues
that the District Court did not give meaningful consideration to his extensive cooperation
as a factor warranting a variance and as a result his sentence is unreasonable. For the
reasons set forth below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
The conviction in this case stems from Hetherington’s involvement in a large-scale
drug trafficking organization based in Mexico. On February 27, 2007, Hetherington was
arrested in a parking lot in Carlstadt, New Jersey while he was in the process of
transferring 212 kilograms of “sham” cocaine from a co-conspirator’s vehicle to his own
vehicle (unbeknownst to him, law enforcement officers had discovered the actual cocaine
and replaced it with a cocaine-like substance as part of a controlled delivery).
Hetherington received Miranda warnings upon arrest but indicated his willingness to
cooperate. In the days following his arrest, Hetherington made numerous monitored
phone calls in an unsuccessful effort to obtain the three million dollars which constituted
his payment for delivery of the cocaine so that the Government could seize the money.
As a result of other monitored calls, Hetherington helped law enforcement officers seize
sixty-four pounds of methamphetamine, which led to the arrest of two other individuals
who worked with Hetherington.
2
On January 29, 2008, pursuant to a written agreement, Hetherington pleaded guilty
to a one-count superseding indictment which charged him with conspiring with others to
distribute and possess with intent to distribute five kilograms or more of cocaine contrary
to 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) and in violation of 21 U.S.C. § 846. In the plea
agreement, Hetherington stipulated that the amount of cocaine involved in his offense
was 212 kilograms. Hetherington’s base offense level of thirty-eight was adjusted
upwards four levels because of his leadership role in the offense and was reduced three
levels because of his acceptance of responsibility, thus resulting in a total offense level of
thirty-nine. This offense level, combined with a criminal history in category I, yielded a
Guidelines range of 262 to 327 months of imprisonment.
At sentencing on May 12, 2008, the Government did not move for a departure
pursuant to U.S.S.G. § 5K1.1 because it believed Hetherington was not completely
truthful and forthright about his criminal activities, and Hetherington did not challenge
the Government’s decision not to request a downward departure. Hetherington did argue
that a variance from the Guidelines range was warranted in light of his cooperation as
well as his work as a missionary for two years in Honduras. The District Court sentenced
Hetherington to 312 months of imprisonment, five years of supervised release, and a
special assessment of $100. Hetherington timely appealed his judgment of sentence.
3
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction to review the District Court’s judgment of sentence pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742. We review sentences for both procedural and substantive
reasonableness under an abuse of discretion standard pursuant to Gall v. United States,
128 S. Ct. 586, 597 (2007).
III.
Hetherington argues that the District Court did not give meaningful consideration
to his “extensive cooperation” with the Government as a mitigating factor under 18
U.S.C. § 3553(a)(1). Hetherington contends that the District Court rejected his arguments
for a variance on the basis of his cooperation because of the Government’s decision not to
request a downward departure under U.S.S.G. § 5K1.1. The Government responds that
the District Court acted within its discretion when it considered and rejected the variance
arguments because Hetherington’s cooperation was not “outside of the mainstream of
cooperation.”
Our post-Booker precedent instructs district courts to follow a three-step
sentencing process which entails calculating a defendant’s Guidelines sentence precisely,
formally ruling on any departure motions, and exercising discretion by considering the
relevant § 3553(a) factors. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
Hetherington’s challenge to the District Court’s consideration of his variance arguments
4
within the framework of § 3553(a) pertains only to the third step under Gunter. We have
explained that “[w]hile a listing of factors may not, alone, be sufficient to demonstrate the
necessary consideration of relevant factors,” such consideration can be reflected from
“the record as a whole.” United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007).
Along these lines, a district court need not “discuss and make findings as to each of the
§ 3553(a) factors if the record makes clear the court took the factors into account in
sentencing.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). We expect the
record to reflect a district court’s “recognition of, and response to, the parties’ non-
frivolous arguments.” United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006).
Here, in response to Hetherington’s arguments that the extent of his cooperation
warranted varying his sentence, the District Court stated: “I consider whatever you claim
he has done by way of cooperation as part of a general constellation of what makes this
person before me, what makes Alex Hetherington.” This statement reflects that the
District Court considered Hetherington’s cooperation as part of his overall history and
characteristics. Also, in response to Hetherington’s inquiry as to whether the District
Court was accepting his cooperation “as a 3553 consideration,” the District Court
explained: “I am considering this consideration and note that he has been given credit for
it in the acceptance of responsibility.” When Hetherington continued to press his
cooperation argument and characterized the “scope of the cooperation” as
5
“extraordinary,” the District Court replied that “[i]t doesn’t take it out of the mainstream
of cooperation” and it “falls short.”
Therefore, the record is clear that the District Court did consider Hetherington’s
arguments that he deserved a variance because of his cooperation but nonetheless was
unpersuaded by | {
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444 P.2d 204 (1968)
Sarah E. HUBBARD, Plaintiff in Error,
v.
Barbara COATES, Administratrix of the Estate of Thelma Compton, nee Stanley, Deceased, Defendant in Error.
No. 41597.
Supreme Court of Oklahoma.
July 23, 1968.
John Allen Phillips II, Phillips & Moore, Durant, for plaintiff in error.
R. Kay Matthews, Atoka, James E. Driscoll, Seminole, by James E. Driscoll, Seminole, for defendant in error.
*206 PER CURIAM:
Parties occupy here opposite positions from the positions they occupied in the trial court. The plaintiff in error will be referred to as defendant, and the defendant in error will be referred to as plaintiff or administratrix.
The defendant operated a nursing home in the Town of Atoka, Oklahoma, and Thelma Compton was employed by the defendant as cook. They started on a trip to Nevada in the defendant's Cadillac automobile. While travelling west on U.S. 62, at a point 1.9 miles west of the City of Altus, Oklahoma, an automobile accident occurred. Both women were injured in the accident. They were the only occupants of the defendant's car. Thelma Compton died in a hospital in Oklahoma City seventy-two hours after the accident.
From the pleadings and evidence, it appears the defendant was driving her automobile and started around a truck, referred to here as Vehicle A. At that moment, Vehicle A started around Vehicle B, which was immediately in front of Vehicle A and travelling in the same direction. Defendant then pulled her car sharply to the left to avoid Vehicle A and in so doing caused her car to run off the highway and it turned over. Soon after the accident, the two women were taken by ambulance to a hospital in Altus where their injuries were treated. That evening they returned to Atoka, the deceased in an ambulance and the defendant in a passenger car. The deceased, Thelma Compton, was taken to an Oklahoma City hospital where she died shortly after arriving there.
Barbara Coates, the daughter of Thelma Compton, was appointed administratrix of the Estate of Thelma Compton and is plaintiff in this action.
The defendant has raised three propositions for reversal which are:
1. Insufficiency of the evidence which proposition is broken down into five sub-heads.
2. The judgment is excessive and appears to have been given under the influence of passion or prejudice.
3. That the court committed error in the exclusion of certain evidence over the objections of the defendant.
We will discuss the foregoing in the above order.
It is unquestioned that the defendant drove her car off the road and that Mrs. Compton died as a result of the accident. The defendant contends there was insufficient evidence to go to the jury as to her negligence in the manner she operated her car.
It was alleged that defendant violated certain statutes and that such violations amounted to negligence per se. One of the statutes is 47 O.S. 1961, § 11-303, which requires one to give an audible signal when passing another vehicle. The defendant argues: a) that said statute was complied with; b) that defendant was not required to be "reasonably assured" that the driver of the vehicle she was passing heard her horn. Defendant testified she honked her horn when her car was a few feet behind Vehicle A and that her horn continued to honk even as she lost control of the car and it wrecked. The defendant contends, at least in effect, that the driver of Vehicle A was negligent and that his negligence was the sole cause of the accident because Vehicle A attempted to pass Vehicle B while defendant was in the process of passing Vehicle A. The trial court upon this issue gave an instruction which advised the jury that the driver of an auto wishing to pass another going in the same direction "* * * must sound her horn when reasonably necessary to insure *207 safe operation to her vehicle, and before attempting to pass, she must be reasonably assured that the driver ahead knew she was behind, and heard the request, and accorded the right-of-way, before the driver of the car ahead can be charged with negligence in failing to give the right-of-way * * *". No exception was taken to this instruction or indeed to any of the court's instructions by either party as required by 12 O.S. 1961, § 578, if error is to be asserted in the giving of such instructions. We are of the opinion that such instruction, if erroneous at all, was not fundamentally so as to warrant a reversal of the trial court. See Smith v. Clark (1926), 125 Okl. 18, 256 P. 36 and Belford v. Allen (1938), 183 Okl. 256, 80 P.2d 671. We think under the circumstances of this case the jury was justified in finding, as it apparently in effect did, that the defendant, when she sounded her horn and began to pass Vehicle A, was not "reasonably assured" that the driver of Vehicle A heard her signal. A reasonable inference from the evidence would be that apparently the Vehicle A driver not only did not hear the signal, but was not even aware of the presence of defendant's car, for he not only passed Vehicle B but both Vehicles A and B drove on and did not stop when defendant's car left the road and turned over. Under the circumstances, we think it reasonable to say that the driver of Vehicle A was not shown to have been guilty of sole negligence. He had the right, exercisable of course within the limits of ordinary care for the safety of others, to pass the vehicle ahead of him and it was defendant's duty, as the car approaching from the rear, to look out and be reasonably assured she could in safety pass Vehicle A before she attempted to do so.
It was for the jury to determine whether she was obeying the rules of the road and whether she was guilty of negligent driving, when she attempted to go around the truck in front of her and drove her car off the road. In effect the jury found the defendant was driving her car in violation of 47 O.S. § 11-305, which states:
"No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. * * *" (Emphasis supplied)
Under the evidence the jury was justified in finding that defendant was negligent in attempting to go around the truck in front of her without being reasonably sure that she could safely get around the truck and car in front of her. See cases collected at 3 Oklahoma Digest, Automobiles.
It is quite evident that the jury believed the defendant was not driving her car in compliance with 47 O.S. § 11-801, wherein it is provided that, "no person shall drive any vehicle upon the highway, at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead." As we have said, the defendant had no assurance whatsoever that the driver of Vehicle A would not attempt to go around Vehicle B. This was of necessity a question for the jury. What constitutes negligence is for the jury, unless facts are such that all reasonable men must draw the same conclusion. See Spicers, Inc. et al. v. Rudd et al. (1948), 199 Okl. 576, 188 P.2d 692; Miller v. Dobbs (1937), 180 Okl. 576, 71 P.2d 737. There was sufficient evidence and defendant's first proposition is not well taken.
Defendant's second proposition that the judgment is excessive and appears to have been given under the influence of passion or prejudice is also without merit. The jury appears to have allowed $7,500.00 for pain and suffering. Seventy-two hours after the accident, Mrs. Compton passed away. There was evidence that she suffered pain from the time of the accident until her death. She had *208 fractured ribs, fractures in her chest and other injuries in her chest including possible heart damage. The jury had the duty of fixing the extent and severity of her pain and suffering. There is no conflict as to what caused deceased's pain and suffering and there was evidence as to the extent thereof. There is evidence sufficient to justify the verdict and as that was the function for the jury we see no reason to reverse or reduce the sum allowed, and it will not be done on appeal. See A & A Cab Operating Co. v. Gossett (1947), 199 Okl. 612, 188 P.2d 849.
For her third proposition the defendant urges that the trial court committed reversible error in the exclusion of certain evidence over the objections of the defendant. With this we cannot agree. To have permitted the Highway Patrolman Morgan to have answered the questions to which objections were sustained would have permitted him to have to state his opinion as to the cause of the accident and to thus invade the province of the jury. He was permitted to testify to everything he saw that was connected with the accident. He could not have accurately determined whether the defendant was properly driving her car at the time of the accident. We again say that this was a matter for the jury. We find no error in the trial court refusing to let the patrolman testify on this matter. See Kelso v. Independent Tank Co. (1960), Okl., 348 P.2d 855.
Judgment will be affirmed.
The Court acknowledges the aid of Supernumerary Judge Halley in the preparation of this opinion. After a tentative opinion was written, the cause was assigned to a | {
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30 So.3d 467 (2008)
LETTIE MALONE ANDERSON
v.
CARL ANDERSON.
(IN RE: ESTATE OF MACK ARTHUR ANDERSON, DECEASED).
No. 2070491.
Court of Civil Appeals of Alabama.
August 15, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Affirmed.
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646 A.2d 1001 (1994)
Myra ALBERTILE, Appellant,
v.
LOUIS & ALEXANDER CORPORATION, et al., Appellees.
No. 93-CV-136.
District of Columbia Court of Appeals.
Submitted June 14, 1994.
Decided August 25, 1994.
*1002 Robert C. Freed, Washington, DC, filed a brief for appellant.
Melvin R. Wright and Elisa A. Eisenberg, Washington, DC, filed a brief for appellee Louis & Alexander Corp.
Before WAGNER, Chief Judge, SCHWELB, Associate Judge, and GALLAGHER, Senior Judge.
SCHWELB, Associate Judge:
This appeal arises from an action for personal injuries allegedly suffered by appellant Myra Albertie when she fell on snow and ice on the sidewalk adjacent to a Burger King restaurant in northwest Washington, D.C. The trial judge granted summary judgment in favor of the operators of the restaurant (Louis & Alexander Corporation) and the owners of the real property on which the restaurant was located (Gartenhaus Associates), concluding that the defendants owed Ms. Albertie no duty of care at common law or under the District's snow removal statute, D.C.Code §§ 7-901 et seq. (1989).[1]
On appeal, Ms. Albertie's primary contention is that the snow removal statute imposed a duty upon the defendants vis-a-vis Burger King customers to clear away the snow on the sidewalk adjacent to the restaurant. That statute, however, expressly authorizes enforcement by the Corporation Counsel, but makes no provision for a private right of action. Under these circumstances, and in light of persuasive precedent in this jurisdiction, we cannot agree with Ms. Albertie's position.
Ms. Albertie also claims in her brief that the defendants negligently increased the risk of injury to Burger King customers by clearing away the snow but failing to spread sand *1003 on the sidewalk after it had been cleared, and that this failure proximately caused her injuries. This contention, however, was not raised in the trial court or addressed by the trial judge, and we perceive no plain error on the part of the judge in failing to rule in Ms. Albertie's favor on his own initiative on the basis of a theory not advanced to him. Accordingly, we affirm.
I.
The record before the trial court, viewed (as it must be) in the light most favorable to Ms. Albertie, See Clyburn v. 1411 K St., Ltd. Partnership, 628 A.2d 1015, 1017 (D.C.1993), discloses that there was a snowstorm in the Washington, D.C. area on January 22, 1987, and during the night that followed, and that approximately eleven inches of snow fell on the city. There was no further accumulation after 6:00 a.m. on January 23, 1987.
At approximately 5:45 p.m. on January 23, Ms. Albertie, who had been shopping at a nearby Safeway supermarket, decided to make a purchase at the Burger King. She walked along a narrow path that had apparently been shovelled along the sidewalk in front of the restaurant. There were, however, patches of ice in the cleared area. Ms. Albertie claimed that she was being "extremely careful to prevent my falling." Nevertheless, she slipped, fell, broke her ankle, and suffered "excruciating pain." Ms. Albertie filed a timely suit against both Louis & Alexander and Gartenhaus.
Louis & Alexander filed a motion for summary judgment, which the trial judge granted in a three-page written order. Gartenhaus subsequently joined the motion, and the judge also granted summary judgment to that defendant. This appeal followed.
II.
We think it beyond dispute that Ms. Albertie had no right of action at common law against either defendant for failing to clear the snow. In Norville v. Hub Furniture Co., 59 App.D.C. 29, 32 F.2d 420 (1929), the court stated the applicable "rules and principles of the common law" as follows:
In the absence of a statutory provision to the contrary, the owner or occupant of property owes no duty to pedestrians to keep the side walk in front of it free from ice and snow coming thereon from natural causes, ... nor does a storekeeper owe any greater duty in this regard to customers leaving his store than he owes to ordinary pedestrians.
Id. at 30, 32 F.2d at 421 (citations omitted); accord, Hecht Co. v. Hohensee, 65 App.D.C. 328, 329, 83 F.2d 585, 586 (1936); Radinsky v. Ellis, 83 U.S.App.D.C. 172, 167 F.2d 745 (1948). As the court explained in Radinsky, this is because sidewalks in the District of Columbia
are publicly owned, and are controlled exclusively by the municipal authorities of the District. It is, therefore, primarily the duty of the local government to keep its sidewalks in a reasonably safe condition after a snowfall.
Id. (footnote omitted).
Ms. Albertie does not directly challenge the proposition that her principal claim would be barred at common law, but relies instead on the snow removal statute, D.C.Code §§ 7-901 to 7-906. The first section of that legislation provides as follows:
It shall be the duty of every person, partnership, corporation, joint-stock company, or syndicate in charge or control of any building or lot of land within the fire limits of the District of Columbia, fronting or abutting on a paved sidewalk, whether as owner, tenant, occupant, lessee, or otherwise, within the first 8 hours of daylight after the ceasing to fall of any snow or sleet, to remove and clear away, or cause to be removed and cleared away, such snow or sleet from so much of said sidewalk as is in front of or abuts on said building or lot of land.
Id. § 7-901. The legislation does not include any provision authorizing enforcement by a private action for damages. Section 7-906, on the other hand, authorizes and directs *1004 the Corporation Counsel to enforce the statute.[2]
We decline, under these circumstances, to read a private right of action into the snow removal law. As we recently reiterated in Brantley v. District of Columbia, 640 A.2d 181 (D.C.1994),
where a statute [or regulation] expressly provides a particular remedy, a court must be chary of reading others into it. Where, as here, the legislature has specified the relief which is appropriate to redress a violation, courts are not authorized to devise different (and in this case far more drastic) remedies: expressio unius est exclusio alterius.
Id. at 184 (citations and internal quotation marks omitted).
Moreover, there is precedent in this jurisdiction which strongly supports the conclusion that Ms. Albertie has no right of action under D.C.Code § 7-901. In Radinsky, a suit brought on behalf of a schoolboy who had slipped on an icy sidewalk outside the defendant's apartment house, the court concluded that the snow removal law imposed no obligation on property owners vis-a-vis pedestrians. The court described such legislation as "an attempt on the part of the municipality to shift to the shoulders of individual citizens the burden which it is primarily incumbent on itself to bear," 83 U.S.App. at 173, 167 F.2d at 746 (citing McGuire v. District of Columbia, 24 App.D.C. 22, 28 (1904)), and adverted to the provision in the statute for enforcement by the Corporation Counsel. Id. The court went on to state that
it is uniformly held that an ordinance requiring lot owners to keep the sidewalks free from snow and ice, and imposing a penalty for neglect or failure to do so, does not relieve the municipality of this primary duty with respect to the safety of its public streets, and does not impose a civil liability on the lot owner in favor of a third person injured by reason of its violation.
83 U.S.App.D.C. at 173 n. 6, 167 F.2d 745 n. 6 (emphasis added) (quoting Annotation, Statute or ordinance requiring abutting owner to remove snow and ice from sidewalk as affecting liability for injuries, 24 A.L.R. 387, 388 (1923)).[3]
Because the plaintiff in Radinsky was a pedestrian and not an invitee, the present case could arguably be distinguished from Radinsky upon that ground. We note, however, that the language italicized above from the court's opinion in Radinsky was broad enough to reach this casethe court spoke of injured third persons, and not merely of injured pedestriansand its reasoning appears to apply to pedestrians and invitees alike. Accordingly, although the question whether a customer of a store was protected by the snow removal law was not before the court in Radinsky, the decision in that case would evidently have been the same even if the plaintiff had been a customer, rather than a pedestrian.[4]
*1005 Ms. Albertie relies on Reichman v. Franklin Simon Corp., 392 A.2d 9 (D.C.1978), but notwithstanding the presence of troublesome dictum in that opinion, the decision does not support reversal. In Reichman, a pedestrian was injured as a result of a fall on an icy sidewalk adjacent to the defendant's store. She sued the store owner for damages pursuant to the provisions of the snow removal statute. In affirming an order granting summary judgment in favor of the defendant, the court stated:
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4 A.3d 1057 (2009)
Lawrence J. BARNETT, Christine Cookenback, James M. DeFeo and Madlin Laurent, Appellee
v.
SKF USA, INC., Appellant.
No. 282 EDA 2008.
Superior Court of Pennsylvania.
Argued December 2, 2008.
Filed July 13, 2009.
Reargument Denied September 21, 2009.
*1058 Geoffrey L. Beauchamp, Willow Grove, for appellant.
No appellee brief filed.
BEFORE: PANELLA, SHOGAN, and ALLEN, JJ.
OPINION BY PANELLA, J.:
¶ 1 Appellant, SKF USA, Inc. ("SKF"), appeals the order issued on October 31, 2007, by the Honorable Bernard A. Moore, Court of Common Pleas of Montgomery County.[1] After careful review, we affirm.
¶ 2 Appellees, Lawrence J. Barnett, Christine Cookenback, James M. DeFeo and Madlin Laurent ("Appellees"), are all former salaried, non-union employees of the Philadelphia plant of SKF, which was part of the MRC Bearings Division ("the division") located in King of Prussia, Pennsylvania. SKF maintained a written pension plan governed by the Employment Retirement Income Security Act ("ERISA")[2] for its salaried employees, Appellees, at the Philadelphia plant. Under SKF's non-union pension plan, any salaried employee who reached the age of 45 years and had 20 years of service with SKF at the time of termination was entitled to receive immediate vesting of pension benefits. None of the Appellees had reached the age of 45 or, in the alternate, completed 20 years of service at the time their employment with SKF terminated.
¶ 3 On September 29, 1993, Appellees instituted a cause of action for breach of an oral agreement against their employer, SKF, alleging that SKF requested that they continue working at its Philadelphia plant and forego seeking alternate employment until the plant closed later that year in December, 1991. Appellees specifically contended that, in exchange for their continued employment, SKF orally[3] offered *1059 them specific termination rights equal to that which was offered to the union members of SKF when the plant closed in 1991, terms which Appellees accepted.[4] Appellees thereafter sought to confirm the promised benefits via a written memorandum issued to a SKF Plant Manager, Tony Del Signore, on June 17, 1991. However, upon the closing of the Philadelphia division, SKF failed to provide Appellees with the promised severance benefits and litigation subsequently ensued.
¶ 4 Thereafter, SKF filed preliminary objections to the complaint, challenging the Appellees' cause of action on grounds of preemption under ERISA, which were denied. SKF subsequently submitted two consecutive motions for summary judgment, again opposing the instant action on the basis of preemption under ERISA; both motions for summary judgment were summarily denied. Thereafter, SKF instituted this timely appeal.
¶ 5 On appeal, SKF raises the following single issue for our consideration:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING SKF'S RENEWED MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT THE APPELLEES' BREACH OF CONTRACT CLAIM WAS NOT PREEMPTED, AND THEREFORE NOT BARRED, BY ERISA?
Appellant's Brief, at 3.
¶ 6 Our standard of review and the general rule for reviewing a lower court's grant or denial of summary judgment is as follows:
Our review on an appeal from the grant of a motion for summary judgment is well-settled. A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
Evans v. Sodexho, 946 A.2d 733, 737-38 (Pa.Super.2008) (internal citations and quotation marks omitted).
¶ 7 Finally, "[a]s the issue as to whether there are no genuine issues as to *1060 any material fact presents a question of law, our standard of review is de novo; thus, we need not defer to the determinations made by the lower tribunals." Scalice v. Pennsylvania Employees Benefit Trust Fund, 584 Pa. 161, 172, 883 A.2d 429, 435 (2005) (citation omitted). Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. See id. (citation omitted).
¶ 8 SKF contends that the Appellees' breach of oral contract cause of action is governed by the holding set forth by the United States Court of Appeals for the Third Circuit Court in Hooven v. Exxon Mobil Corp., 465 F.3d 566 (3rd Cir.Pa. 2006), and is thereby preempted and barred by ERISA. Prior to resolving this issue, we turn first to the pertinent law concerning preemption.
¶ 9 Section 1144 of Title 29, of the United States Code, provides that "[ERISA] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) ... and not exempt under section 1003(b) of this title." See 29 U.S.C.A. § 1144(a). The central question in applying this provision is the meaning assigned to the language "relate to," as preemption can only occur if the state law does, in fact, relate to an employee benefit plan falling under this section. See Greenblatt v. Budd Co., 666 F.Supp. 735, 741 (E.D.Pa.1987). Thus, "[s]tate laws that make reference to, or otherwise attempt to or succeed in regulating or administering employee pension plans `relate to' ERISA and are accordingly preempted." See id. (citations omitted).
¶ 10 Our Supreme Court noted in Pappas v. Asbel, 564 Pa. 407, 412, 768 A.2d 1089, 1092 (2001), that "the Supremacy Clause of the United States Constitution... article VI, cl. 2, gives the United States Congress the power to preempt state law, and observed that in determining whether state law is preempted by federal law, we [are] to assume that the historic powers of the states are not superceded unless preemption is the clear and manifest purpose of Congress." See id. (emphasis added). The Pappas Court duly noted that "preemption does not occur... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as in the cases with many laws of general applicability. . . ." See id., 564 Pa. at 412-13, 768 A.2d at 1092. Thus, in those cases where a state law or cause of action impacts upon ERISA in an indirect manner, that is, only tenuously or remotely, then preemption under ERISA is not warranted.
¶ 11 We agree with the trial court that the instant case presents the latter situation and conclude that Appellees' cause of action neither impacts upon the Appellees' employee benefit plan at issue here, or ERISA. As such, preemption of Appellees' cause of action under ERISA is clearly not required.
¶ 12 In Greenblatt, a matter factually similar to the case before this Court, the Eastern District Court of Pennsylvania found that a worker's claim, alleging that his employer misrepresented to him pension benefits that he was receiving under a pension plan would be made equal to those benefits available to comparable salaried management personnel under another pension plan, and that he relied on this misrepresentation to his detriment, was not preempted by ERISA. See id., 666 F.Supp. at 742. Central to the Eastern District Court's holding was the following findings:
The cause of action for misrepresentation alleged by the plaintiff at Count II of his complaint should not be preempted because, simply put, the premise underlying *1061 this action was that plaintiff was deceived by the verbal statements made and the actions taken by his employer. That the subject of the deception concerned pension benefits is only incidental and not essential to the plaintiff's cause of action. Like promises for a raise in salary, a promotion, or the use of tickets to a baseball game, plaintiff's employer's promise to provide the plaintiff with certain benefits at some unknown time in the future, upon which plaintiff could reasonably rely, is the essence of the fraud alleged.
That this action alleged at Count II of plaintiff's complaint does not "relate to" an employee benefit plan is supported also by the fact that the representations at issue were made by plaintiff's superiors, as his employers, and not as plan fiduciaries. Similarly, the misrepresentations at issue were made to plaintiff in the ordinary course of business and not in the course of administering a Budd | {
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995 S.W.2d 764 (1999)
Sergio GALVAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-98-00347-CR.
Court of Appeals of Texas, San Antonio.
May 26, 1999.
Tony Jimenez, III, San Antonio for appellant.
*765 Daniel Thornberry, Asst. Criminal Dist. Atty., San Antonio, for appellee.
Sitting: PHIL HARDBERGER, Chief Justice CATHERINE STONE, Justice SARAH B. DUNCAN, Justice.
Opinion by: CATHERINE STONE, Justice.
Sergio Galvan was arrested for driving while intoxicated and for consuming an alcoholic beverage while operating a motor vehicle. For the charge of consumption of an alcoholic beverage, Galvan paid a $96 fine in Municipal Court. Galvan filed a special plea of double jeopardy in district court, arguing that the State should not be allowed to pursue the DWI prosecution because he had already plead guilty to the consumption of alcohol charge. A written order was signed by the trial court granting his special plea and dismissing the charges with prejudice. No appeal was taken from this order. The case nonetheless proceeded as if the dismissal order had not been signed, and Galvan was convicted by a jury of driving while intoxicated, sentenced to ten years imprisonment, and fined $2,000. His sentence was suspended and he was placed on community supervision for ten years. On appeal, Galvan contends that the trial court did not have jurisdiction to convict him on the DWI offense and that DWI and consumption of an alcoholic beverage while operating a motor vehicle are the "same offense" for double jeopardy purposes. We disagree and affirm the judgment of the trial court.
JURISDICTION OF THE TRIAL COURT
The record reveals that Galvan filed a "Special Plea of Double Jeopardy" requesting that the matter be set for trial for a full evidentiary hearing and the motion to dismiss the cause with prejudice be granted. Galvan argued that the State intended to rely on conduct from the prior offense of consumption of alcoholic beverage while driving, to which Galvan had plead guilty and already been assessed a fine of $96. While the transcript from the Double Jeopardy hearing indicates that the court orally denied the motion, the clerk's record shows that the court signed a written order with the "granted" line checked off. Several months later, Galvan filed a "First Amended Special Plea of Double Jeopardy" which contained the same argument as his first plea, but which was supported by affidavit. At the hearing conducted that day, appellant's counsel stated that the court had already denied the initial motion for double jeopardy, but that he was presenting the second motion only to perfect the record. The record indicates that the court denied this second plea.
The State contends, and we agree, that the trial court's granting of the original plea was simply a clerical error. We recognize that, generally speaking, written findings control over oral announcements. See Eubanks v. State, 599 S.W.2d 815, 817 (Tex.Crim.App.1980). However, every piece of evidence in the record indicates that the oral pronouncement was the correct manifestation of the court's intention. See Coffey v. State, 979 S.W.2d 326, 328-29 (Tex.Crim.App.1998) (holding that when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls). The record of the hearing on Galvan's double jeopardy plea reveals that the judge denied the plea.[1] At another pretrial hearing, Galvan's attorney conceded that the motion had been denied and that he made this second plea simply to perfect the record.[2] Galvan's amended plea of double jeopardy *766 was denied both orally and through written order. All the parties proceeded as if the plea had been denied. Consequently, we hold that the trial court did not lack jurisdiction over the trial and that the trial court's denial of the first plea was simply a clerical error. Galvan's first point of error is overruled.
DOUBLE JEOPARDY
Galvan contends that the offense of driving while intoxicated and consumption of an alcoholic beverage while operating a motor vehicle fail the Blockburger test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockburger test, different offenses are defined if each of the two offenses requires proof of an additional fact which the other does not. See id.; Luna v. State, 985 S.W.2d 128, 130 (Tex. App.-San Antonio 1998, pet. ref'd). The elements of driving while intoxicated include: 1) a person; 2) is intoxicated; 3) while operating a motor vehicle; 4) in a public place. See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp.1999). Consumption of an alcoholic beverage while operating a motor vehicle is committed if: 1) a person; 2) consumes; 3) an alcoholic beverage; 4) while operating a motor vehicle; 5) in a public place and is observed doing so by a peace officer. See TEX. PENAL CODE ANN. § 49.04 (Vernon 1994).
Consumption of an alcoholic beverage and being intoxicated are two separate elements of these offenses. Intoxication, which can be caused by alcohol, drugs, or a controlled substance, can be shown by a percent alcohol concentration or loss of the normal use of physical faculties. See TEX. PENAL CODE ANN. § 49.01(2) (Vernon 1994). Consumption of an alcoholic beverage does not necessarily rise to the level of intoxication, and intoxication does not necessarily include the consumption of an alcoholic beverage while driving. "Consumption of alcohol while driving cannot be established by proof of the same or less than all the facts required to establish the offense of DWI," or vice versa. See McDonald v. State, 863 S.W.2d 541, 544 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (determining that consumption of alcohol while driving is not a lesser included offense of DWI under Texas Code of Criminal Procedure article 37.09 because it does not require proof of the same or less than all the facts required to establish DWI). Thus, each offense requires proof of an additional fact which the other does not. Galvan's second point of error is overruled.
INSTRUCTION TO THE JURY
In the trial court's charge to the jury, the court stated: "In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous." Galvan contends that this instruction was a method to control the jury's manner and form of deliberations in violation of TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp.1999). Galvan believes that this instruction "effectively nullified the views of less persuasive jurors who were unable to mentally spar point for point with more persuasive jurors in the deliberation room." We disagree.
The State correctly notes that charge error should be analyzed in light of the entire charge, not isolated portions. See Inman v. State, 650 S.W.2d 417, 419 (Tex. Crim.App.1983). Review of the entire charge leads us to the conclusion that the charge was not inappropriately coercive.[3]*767 This court recently addressed a different portion of a similar charge in Garza v. State and concluded that "the remainder of the jury charge, including the admonishment that `no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict,' eliminated any potential for coercion." See Garza v. State, 974 S.W.2d 251, 256 (Tex.App.-San Antonio 1998, pet. ref'd). We find this reasoning equally applicable in the present case and hold that the trial court did not err in giving this charge to the jury. Galvan's final point of error is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] At the conclusion of the hearing the judge stated, "I think you can be convicted of both offenses, two distinct offenses. One can be consuming alcohol in a vehicle and not be DWI, and vice versa. So, your request is denied."
[2] Appellant's counsel stated at the pretrial hearing, "Judge, we've filed an Amended Plea of Double Jeopardy in this case. The Court has already denied our initial Motion for Double Jeopardy. And the only reason why I'm presenting this Motion at this time is to perfect the record."
[3] The three paragraphs objected to are as follows: "In order to return a verdict, each juror must agree thereto, but jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment.
"Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors.
"In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous. However, no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict."
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84 F.3d 1447
318 U.S.App.D.C. 73, Util. L. Rep. P 14,104
OGLETHORPE POWER CORPORATION, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.Georgia Power Company, Intervenor.
No. 95-1482.
United States Court of Appeals,District of Columbia Circuit.
Argued May 9, 1996.Decided June 4, 1996.
[318 U.S.App.D.C. 74] On Petition for Review of Orders of the Federal Energy Regulatory Commission.
William D. DeGrandis, Washington, DC, argued the cause and filed the briefs, for petitioner.
Joel M. Cockrell, Attorney, Federal Energy Regulatory Commission, argued the cause, for respondent. Jerome M. Feit, Solicitor, Washington, DC, Joseph S. Davie, Deputy Solicitor, and Edward S. Geldermann, Attorney, Bethesda, MO, were on the brief.
Robert H. Forry argued the cause, for intervenor, with whom Benjamin L. Israel, Atlanta, GA, was on the brief.
Before: EDWARDS, Chief Judge, GINSBURG and ROGERS, Circuit Judges.
GINSBURG, Circuit Judge:
1
Oglethorpe Power Corp. petitions for review of two orders of the Federal Energy Regulatory Commission dismissing Oglethorpe's complaint against Georgia Power Co. See 69 FERC p 61,208 (1994); reh. denied 72 FERC p 61,065 (1995). Oglethorpe claims that (1) Georgia Power violated the filed-rate doctrine when it charged Oglethorpe for certain reserve capacity in contravention of the terms of Georgia Power's tariff, and that (2) in the alternative, if Georgia Power properly charged Oglethorpe for this capacity, then Georgia Power must share with Oglethorpe the settlement it received from a third party that breached its contractual obligation to purchase that same capacity from Georgia Power. We hold that (1) the FERC properly construed the governing tariff to permit Georgia Power to charge Oglethorpe for the additional reserve capacity, but that (2) the agency failed to give a reasoned basis for denying Oglethorpe's alternative claim to a share of the settlement that Georgia Power received in respect of that capacity.
I. Background
2
In 1975 Georgia Power filed with the Commission (then the FPC) a tariff for the wholesaling [318 U.S.App.D.C. 75] of power to partial requirements customers in the State of Georgia. This "PR Tariff" governs the rates that Georgia Power may charge such so-called "territorial" customers for four classes of power-generating capacity, as follows.
3
For each contract year Georgia Power must prepare a Resource Classification List (RCL) of all its territorial capacity resources and adjust the RCL as necessary during the course of the year in order to reflect any increase or decrease in such capacity. Georgia Power must also designate its capacity resources as "base," "intermediate," or "peaking" and determine each customer's requirements in each category according to the terms of the PR Tariff. "All other territorial resources," i.e., those not required by any customer, are designated "reserve resources," for which Georgia Power may impose a monthly charge of $4.40 per kilowatt.
4
In February 1982 Georgia Power entered into an agreement to sell Gulf States Utilities Co., an off-system customer, a specific quantity of power (capacity and energy) from certain of its generating units over the next ten years. Under Commission policy Georgia Power could have required its partial requirements customers to pay for that capacity, provided that Georgia Power also credited them with the revenues generated by off-system unit power sales. Instead, however, Georgia Power and its territorial customers opted out of this aspect of the regulatory regime pursuant to an agreement that Georgia Power would absorb the costs and retain the revenues associated with such off-system sales. This agreement is memorialized in a 1982 amendment to the PR Tariff and in a written agreement that the parties filed with the FERC, which together constituted the filed rate for Georgia Power's sales to Oglethorpe when Gulf States defaulted on its obligation to pay Georgia Power in 1986.
5
In 1988 Gulf States, which was approximately $350 million behind in payments to Georgia Power and its affiliates, reaffirmed its previously stated intention not to make further payments because unforeseeable events had reduced its capacity requirements. In August of that year the FERC, at Georgia Power's request, permitted Georgia Power to suspend service to Gulf States without waiving its "legal rights, remedies and claims for damages available against Gulf States"; in the FERC's view, that is, the suspension of service did not terminate the contract. Southern Company Services, Inc., 44 FERC p 61,290 (1988).
6
Georgia Power then "recalled", added to the RCL, and for the remainder of the contract period (1988-92) charged its territorial partial-requirements customers for, the capacity it had previously dedicated to serving Gulf States. Meanwhile, in 1991 Gulf States paid Georgia Power approximately $95 million to settle its breach of contract claim; the FERC approved the settlement and terminated the contract between Georgia Power and Gulf States. Although Oglethorpe had by then paid Georgia Power $12 million in respect of capacity that Gulf States had been obligated to purchase between 1988 and 1992, Georgia Power refused to credit any portion of the settlement proceeds to Oglethorpe or its other territorial customers. Oglethorpe complained to the Commission, which upheld Georgia Power's position, and then petitioned this court for review of the agency's decision.
II. Analysis
7
Oglethorpe presses two claims here. First, the petitioner maintains that Georgia Power violated the filed-rate doctrine when it charged Oglethorpe for the capacity it had reallocated from Gulf States to the RCL; the gravamen of this claim is that the reallocation contravened the terms of the PR Tariff and the 1982 agreement between Georgia Power and its partial-requirements customers. On this issue we affirm the Commission substantially for the reasons stated in its orders. There is no need to burden the Federal Reporter by rehearsing the agency's opinion here.
8
Second, Oglethorpe maintains that if Georgia Power did properly charge it for the capacity re-allocated from Gulf States to the RCL, then Georgia Power must share with Oglethorpe the money it received from Gulf States in settlement of Georgia Power's contract claim relative to that capacity. The Commission did not dispute Oglethorpe's [318 U.S.App.D.C. 76] premise that, once Georgia Power started charging its territorial partial-requirements customers for the re-allocated capacity, it was obligated to share with those customers any revenues received in connection with an off-system sale of that capacity. Nonetheless, the Commission gave no fewer than three grounds for rejecting Oglethorpe's claim. Oglethorpe argues that none of the FERC's points provides a reasoned basis for denying Oglethorpe's claim to a share of the settlement. We agree.
9
First, the FERC regarded the Georgia Power-Gulf States settlement as providing compensation only for damages that Georgia Power incurred prior to August 1988; because the settlement was for an amount less than Gulf States owed Georgia Power for the power it had received through that date, the FERC concluded that Georgia Power received nothing in the settlement with respect to the capacity that it re-allocated to Oglethorpe (via the RCL) for the period from August 1988 to 1992. We see no rational basis for characterizing the settlement in this way.
10
Gulf States contracted to purchase from Georgia Power specified quantities of power each year from 1982 through 1992 but stopped making the contractually required payments in June 1986. Georgia Power therefore had a contract claim against Gulf States not only for the damages it incurred through August 1988 but also for the value of its expectancy with respect to the power it would have delivered during the remaining term of the contract, i.e., through 1992. Georgia Power compromised both aspects of its claim for $95 million. The FERC had no valid basis for treating the settlement as though the entire amount was paid to settle the claim for the early years and none was paid to settle the claim for the later years. That the settlement was for less than Gulf States owed for power when the FERC suspended Georgia Power's duty to perform is immaterial in the absence of any reason either to doubt the sufficiency of Georgia Power's claim to damages beyond that time or otherwise to attribute the entire settlement to one aspect of Georgia Power's claim.
11
As an alternative reason for rejecting Oglethorpe's claim to a share of the settlement proceeds, the FERC stated that
12
even if the Gulf States contract never had been suspended, the unit sale nevertheless was scheduled to end in 1992, prior to the filing of Oglethorpe's complaint. Assuming, arguendo, that Oglethorpe's arguments for refunds were otherwise persuasive, we lack the authority to order retroactive refunds in these circumstances.
13
69 FERC p 61,208 at 61,826/2. In its brief before this court the FERC further explains that permitting Oglethorpe to recover a share of the settlement would constitute retroactive ratemaking because | {
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00032-CV
______________________________
ROBIN GWYNNE RUSS, Appellant
V.
TITUS HOSPITAL DISTRICT, D/B/A TITUS
REGIONAL MEDICAL CENTER, PEGGY BURGE, R.N.,
RACHEL MEYERS, R.N., AND DR. MARK E. QUIRING, Appellees
On Appeal from the 76th Judicial District Court
Titus County, Texas
Trial Court No. 29561
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
O P I N I O N
Robin Gwynne Russ appeals from a judgment dismissing her medical malpractice suit against
Titus Hospital District, d/b/a Titus Regional Medical Center (the Hospital); Peggy Burge, R.N.;
Rachel Meyers, R.N.; and Dr. Mark E. Quiring (collectively referred to as Appellees). Russ
sustained injuries from a fall out of a hospital window. According to her allegations, the fall resulted
from negligence of the various procedures employed by the Appellees while Russ was under their
care awaiting transfer to a psychiatric hospital. Appellees moved to dismiss the case alleging the
expert report was not timely filed and that it did not comply with the statutory requirements for an
expert report. The trial court dismissed the suit. We affirm in part, reverse in part, and remand the
case to the trial court for further proceedings consistent with this opinion.
Russ raises two issues on appeal. First, she argues the trial court abused its discretion in
failing to allow an additional thirty days in which to file an expert report. Second, she contends the
trial court erred in granting the motion to dismiss because the report was sufficient under Article
4590i.
On or about December 3, 1999, Russ sustained injuries from a fall out of a window. Russ
filed suit against numerous parties, including the Hospital, on November 30, 2001. The petition
alleged the Hospital was negligent in its treatment of Russ. Russ failed to file an expert report by
May 29, 2002 (180 days after filing suit). On July 1, 2002, Appellees filed a motion to dismiss. On
the day of the hearing, July 22, 2002, but before the hearing, Russ filed a motion to extend the
deadline until August 15, 2002. The trial court held the hearing, but the record does not contain a
ruling on either the motion to dismiss or the motion to extend the deadline. On August 16, 2002,
Russ filed a second motion to extend requesting the deadline be extended to August 20, 2002, which
was twenty-nine days after the hearing. On August 20, 2002, Russ provided Appellees a copy of the
expert report by fax. Appellees filed a motion to exclude Russ' report due to failure to comply with
the deadline and for failure to meet the requirements of the statute. On October 2, 2002, a hearing
was held and the trial court dismissed the lawsuit. Russ now appeals.
Timeliness of Motion to Extend Time
In her first point of error, Russ argues the trial court erred in failing to grant an additional
thirty days in which to file an expert report. We review the trial court's ruling on a motion for
extension of time to file an expert report under an abuse of discretion standard. See Walker v.
Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). An abuse of discretion occurs when a trial court acts in
an arbitrary or unreasonable manner or without reference to any guiding rules or principles. See
Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.—Texarkana 2003, pet. denied). A trial court
will be deemed to have acted arbitrarily and unreasonably if it could have only reached one decision,
yet reached a different decision. Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex. App.—Texarkana
2003, no pet.). "[A] clear failure by the trial court to . . . apply the law correctly will constitute an
abuse of discretion, . . . ." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Article 4590i, Section 13.01(d) requires a plaintiff asserting a claim against a healthcare
provider or physician to submit an expert report, along with the expert's curriculum vitae, no later
than the 180th day after filing suit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d).
The Act
requires an expert report to provide "a fair summary of the expert's opinions . . . regarding applicable
standards of care, the manner in which the care rendered by the physician or health care provider
failed to meet the standards, and the causal relationship between that failure and the injury, harm,
or damages claimed." See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (repealed 2003).
Article 4590i, Section 13.01 provides two methods by which a claimant can receive an
extension to the 180-day deadline. Under Section 13.01(f), "[t]he court may, for good cause shown
after motion and hearing, extend any time period specified in Subsection (d) of this section for an
additional 30 days. Only one extension may be granted under this subsection." Tex. Rev. Civ.
Stat. Ann. art. 4590i, § 13.01(f) (repealed 2003). Section 13.01(f) has been interpreted by this
Court to be directory rather than mandatory. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d
398, 402 (Tex. App.—Texarkana 1999, pet. denied). Under the second method, found in Section
13.01(g), if "the court finds that the failure of the claimant or the claimant's attorney was not
intentional or the result of conscious indifference but was the result of an accident or mistake, the
court shall grant a grace period of 30 days to permit the claimant to comply with that subsection."
Section 13.01(g) has been interpreted to be mandatory on a finding that the failure was a result of
accident or mistake. Sutherland, 107 S.W.3d at 789. An extension under Section 13.01(g) can be
obtained for either failure to file a report or for an inadequate report, provided the failure was not
intentional or a result of conscious indifference. In re Morris, 93 S.W.3d 388, 391 (Tex.
App.—Amarillo 2002, no pet.).
The Appellees contend the expert report is untimely because the report was not filed within
210 days of the filing of the suit. Russ' first motion for extension of the deadline was filed on
July 22, 2002. This motion requested an extension of the deadline until August 15, 2002, and was
entitled "MOTION TO EXTEND TIME FOR FILING UNDER 4590(i) SECTION 13.01(F)." An
extension under Section 13.01(f) extends the 180-day period described in Section 13.01(d) to 210
days.
Although this Court has noted the motion to extend the deadline can be filed at any time, the
extension begins running at the end of the original 180-day time period in subsection (d) and lasts
until 210 days from the filing of the suit. See Roberts, 988 S.W.2d at 402. Under an extension
granted pursuant to Section 13.01(f), the expert report would have been required to be furnished to
the opposing parties within 210 days of the filing of the suit. If the extension had been requested
under Section 13.01(f), the expert report would have been required to be furnished to the Hospital
and other defendants by June 28, 2002. The Appellees contend that, because the expert report was
not furnished to the opposing parties until August 20, 2002, the expert report was not timely.
Even though the title refers to Section 13.01(f), our conclusion is that the substance of Russ'
motion requested the extension under Section 13.01(g). In the motion and at the hearing, the parties
recited the standards of Section 13.01(g) instead of Section 13.01(f) to the trial court. In the body
of the motion, it is alleged that co-counsel was in trial and that counsel did not realize it | {
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748 F.Supp.2d 1201 (2010)
Joseph ANTONETTI, Plaintiff,
v.
Howard SKOLNIK, et al., Defendants.
No. 3:10-cv-00158-ECR-RAM.
United States District Court, D. Nevada.
October 25, 2010.
*1206 Joseph Antonetti, Indian Springs, NV, pro se.
ORDER
EDWARD C. REED, JR., District Judge.
Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 (# 1-2). The Court has screened plaintiffs civil rights complaint pursuant to 28 U.S.C. § 1915 A and finds that it must be dismissed in part.
I. Screening Pursuant to 28 U.S.C. § 1915A
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner's claim, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See *1207 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir.2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir.1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., see Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991).
II. Screening of the Complaint Defendants
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983.
The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that "[a] person `subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).
Count I
In count one, plaintiff alleges violations of his Eighth Amendment right to be free of cruel and unusual punishment, based on deprivation of needed mental *1208 health care. He claims that he is housed in segregation/isolation, which has lead to a mental health breakdown. He claims that in five years, he has been seen by mental health professionals at total of eight times, instead of every ninety days as required by NDOP administrative regulations. Plaintiff claims that prison mental health professionals have recommended that he pursue art and music for his mental health, but defendants have refused to provide him with the necessary drawing materials. He claims that defendants' failure to provide him with regular mental health care is a deliberate and wanton infliction of pain and demonstrates deliberate indifference. Plaintiff claims that the mental health professionals at the prison have suggested that he take anti-psychotic and anti-depression medications, which he states would not be necessary but for defendants' neglect and indifference. He further claims that he has been made to suffer bouts of aggression, extreme depression, voices, paranoia, hallucinations, emotional breakdowns and distress, unreasonable fear, and systematic dehumanization which leaves him not knowing who he is as a person or whether he is human anymore.
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir.1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be held liable only if they acted with "deliberate indifference to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124 (9th Cir.1998) (citing Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. at 834 | {
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Opinion filed April 9, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00104-CR
__________
JOE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 18-7866
MEMORANDUM OPINION
The grand jury indicted Joe Johnson for murder under Section 19.02(b)(1) of
the Texas Penal Code. The jury found him guilty and assessed his punishment at
confinement for life. The trial court sentenced him accordingly. We affirm.
In his sole issue on appeal, Appellant claims that the evidence was legally
insufficient to find him guilty of murder as charged in the indictment and that he
should have been acquitted because he acted in self-defense.
On February 16, 2016, Appellant encountered the victim, Dominique
Quayshawn Adams. Appellant was accompanied by his friend, Cruzito Gutierrez.
According to the testimony of Adams’s girlfriend, Kassandra Ramos, Appellant and
Adams were formerly friends. Ramos testified that sometime prior to February 16,
2016, while Adams was in jail, Ramos cheated on Adams with Erasmus Watson
(Raz). Subsequently, Adams and Ramos resumed their relationship after Adams
was released from jail. Ramos testified that Adams was upset with Appellant
because Appellant continued to be friends with Raz.
Gutierrez testified that, on the day of the offense, as he and Appellant were
walking “to the Stop-N-Go to get some Cokes,” they saw Adams and Ramos driving
around together. Gutierrez testified that he told Appellant, “There’s Dominique
right there,” and that Appellant replied, “I got to dump him.”
Similarly, Ramos testified that she and Adams noticed Appellant and
Gutierrez. When they got closer to Appellant and Gutierrez, and as the car came to
a stop, Appellant made a motion with his hand that indicated that he wanted Adams
to roll down his window. Adams then asked Appellant, “What’s up?” Gutierrez
testified that Adams also asked Appellant “if he still want[ed] that beef s--t,”
meaning that Adams and Appellant were in disagreement about something. In
response, Appellant then told Adams that they, Adams and Ramos, had “better leave
or it was going to end bad for both of [them].” Adams did not have a gun on his
person or in the car. In addition, Gutierrez testified that he never saw a gun in
Adams’s hand.
Ramos testified that, at that point, Adams parked the car and that, as soon as
Adams stepped one foot out of the car, Appellant began to shoot; he shot Adams.
After Appellant shot Adams, Appellant and Gutierrez ran away from the scene and
to Appellant’s house. Luisa Florez, the forensic pathologist who performed the
autopsy on Adams’s body, testified that Adams had two gunshot wounds, one to the
2
left leg and one to the back. Florez determined that the cause of death was the
gunshot wound to the back.
At trial, when the State rested its case-in-chief, Appellant moved for a directed
verdict, which the trial court overruled. Appellant testified in his own defense. He
testified that the reason he had a gun with him on the day of the offense was because
of an encounter with Gutierrez’s neighbor earlier that morning. He stated that he
believed that his life was threatened and that he did not want to “walk around without
a weapon.”
In addition, Appellant claimed that he shot Adams in self-defense and testified
that he had had three prior “interactions” with Adams. The first incident occurred
when Appellant was walking one day and Ramos and Adams pulled up next to him
in a car. Appellant claimed that Adams got out of the car and asked Appellant if he
wanted to fight. Appellant said that he could see that Adams was holding something
behind his back and that he assumed that it was a gun; he decided to keep walking.
Appellant also testified that he had a gun at this time and that he could have shot
Adams then if he had wanted to. Ramos corroborated this incident in her testimony,
but she did not corroborate Appellant’s assertion that Adams was holding something
behind his back during the incident.
Appellant claimed that the second incident occurred one night as he walked
home from his girlfriend’s house. He noticed that a car was coming up behind him.
Appellant testified that the car began to slow down and that he heard a voice he
recognized as Adams’s say, “Hey, what’s up with that.” Appellant immediately ran
away. Appellant claims that, as he ran away, he heard gunshots.
Appellant testified that he encountered Adams for a third time as Appellant
was walking. Adams drove toward Appellant and said, “What’s up with that.”
Again, Appellant immediately ran away. When Appellant ran into a nearby alley,
he heard gunshots and assumed that “[Adams] was letting [Appellant] know
3
[Adams] had a gun or was coming after [Appellant] or something.” No other
witnesses corroborated the second and third incidents, and Ramos testified that she
never saw Adams shoot at Appellant.
Appellant denied that, on the day of the offense, he motioned for Adams to
roll down his window. Appellant also denied that he initiated a conversation with
Adams. Appellant maintained that Adams initiated the confrontation. Appellant
stated that he did not want to shoot Adams but that, as he turned to walk away, he
saw Adams start to reach down and believed that Adams was reaching for a gun.
Appellant testified that Adams had had a gun in their encounters in the past.
Appellant also thought to himself at this time, “He’s not only going to shoot me; I
have another person with me too,” meaning Gutierrez. Indeed, Appellant testified
that he “reasonably believe[d] that [Adams] had a weapon and he was going to
commit the offense of murder against [Appellant] and/or [Gutierrez].” Appellant
testified that he was scared for both his and Gutierrez’s lives. Appellant insisted that
he intended to shoot low at the door to give them time to run away.
Appellant also testified that the gun found in his home was not the gun he used
to shoot Adams and that he did not remember what happened to the gun.
Lieutenant Darrel Williams testified that Gutierrez had said during an interview that,
when he and Appellant arrived at Appellant’s house after the shooting, Appellant
went outside, hid the gun, then came back inside without the gun. However, at trial,
Gutierrez denied that he ever saw Appellant go outside with the gun.
In his sole issue on appeal, Appellant claims that the evidence was legally
insufficient to convict him of murder and that he should have been acquitted of
murder because he acted in self-defense or in defense of a third person.
“When determining whether the evidence is sufficient to support a criminal
conviction, the only standard an appellate court should apply is the Jackson v.
Virginia test for legal sufficiency.” Cary v. State, 507 S.W.3d 761, 765–66 (Tex.
4
Crim. App. 2016); see Jackson v. Virginia, 443 U.S. 307 (1979). This means that
we must review all the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. Thompson v. State, No. 11-16-00300-CR, 2018
WL 4925733, at *2 (Tex. App.—Eastland Oct. 11, 2018, pet. ref’d) (mem. op., not
designated for publication). Thus, we must “defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the witnesses’ credibility and the
weight to be given their testimony.” Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010).
In addition, we defer to the factfinder’s resolution of any conflicts in the
evidence and presume that the factfinder resolved such conflicts in favor of the
verdict. Jackson, 433 U.S. at 326; Brooks, 323 S.W.3d at 899; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). When we review the sufficiency of the
evidence, we look at “events occurring before, during, and after the commission of
the offense and may rely on actions of the defendant which show an understanding
and common design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim.
App. 1985)).
When we review the sufficiency of the evidence when the jury rejected a self-
defense or defense-of-others claim, we “determine whether after viewing all | {
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417 F.2d 1338
Matt KOEHL, Individually and as head of The American NaziParty and on behalf of the Estate of George LincolnRockwell, and George Lincoln Rockwell, Inc., a Virginiacorporation and The American Nazi Party, aka NationalSocialist White Peoples Party, individually and as custodianof the remains of George Lincoln Rockwell, Appellants.v.Stanley R. RESOR, Individually and as Secretary of the Armyof the United States of America, and Robert S.McNamara, Individually and as Secretaryof Defense of the UnitedStates, Appellees.
No. 13474.
United States Court of Appeals Fourth Circuit.
Argued Nov. 6, 1969.Decided Nov. 24, 1969.
Herbert A. Rosenthal, Jr., Washington, D.C., and Philip J. Hirschkop, Alexandria, Va. (Cohen, Hirschkop, Hall & Jackson, Alexandria, Va., Lawrence Speiser, Ralph Temple, Washington, D.C., and David M. Weitzman, Falls Church, Va., on brief), for appellants.
Stephen R. Felson, Atty., Department of Justice (William D. Ruckelshaus, Asst. Atty. Gen., and Robert V. Zener, Atty., Department of Justice, and Brian P. Gettings, U.S. Atty., on brief), for appellees.
Before SOBELOFF, WINTER and BUTZNER, Circuit Judges.
PER CURIAM:
1
The judgment appealed from is affirmed on the opinion of the District Court. 296 F.Supp. 558 (E.D.Va.1969).
2
Affirmed.
| {
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161 Ariz. 195 (1989)
777 P.2d 693
Ned Ramon ROBINSON, Petitioner-Appellee,
v.
Lee A. PRINS, Arizona Department of Transportation, Respondent-Appellant.
No. 1 CA-CV 88-038.
Court of Appeals of Arizona, Division 1, Department C.
January 17, 1989.
Review Granted April 25, 1989.
Robert G. Swan, Phoenix, for petitioner-appellee.
Robert K. Corbin, Atty. Gen. by Joe Acosta, Jr., Asst. Atty. Gen., Phoenix, for respondent-appellant.
OPINION
BROOKS, Presiding Judge.
The state has appealed from a superior court judgment that set aside an administrative suspension of appellee Ned Ramon Robinson's driver's license for refusal to submit to a breath test under A.R.S. § 28-691(E). Although Robinson verbally agreed to submit to an intoxilyzer test, and nothing about his behavior suggested that his cooperation was less than complete, machine printouts characterized the samples that he provided as "deficient." The issue on appeal is whether, under these circumstances, the state was required to establish that the officer administering the test was qualified to do so and that the machine was in proper working order.
The facts are undisputed. On March 25, 1987, Department of Public Safety (DPS) officer M.D. Bonin stopped Robinson because he was speeding and weaving between lanes. The officer detected an odor of alcohol and noted that Robinson's eyes were bloodshot and watery and that his speech was slurred. After performing unsatisfactorily on field sobriety tests, Robinson was arrested and taken to a DPS station.
At the station, Officer Bonin advised Robinson of the implied consent law, and Robinson agreed to submit to an intoxilyzer test. On Robinson's first attempt, the machine registered a blood alcohol level of .132%, but the readout indicated "deficient sample." Robinson's second attempt yielded a reading of .000%, and the machine again characterized the sample as deficient. Based on Robinson's failure to provide a sufficient sample, Bonin filed an "officer's report of refusal to take breath test" to support the suspension of Robinson's license.
Robinson requested a hearing before the department of transportation. The only contested issue was whether he had refused to submit to the breath test. Robinson maintained that he had in fact agreed to take the test. He explained that he had been confident that the result would be below the legal limit. He claimed that he had tried to take the test, but the machine *196 was not operating properly. Describing his attempts to provide a sufficient sample, he stated that blowing into the machine was like trying "to blow up a baloon [sic] that you just could not get started." He reported that the officer had blown into the machine and that he had had to blow quite hard to activate it.
Officer Bonin reported nothing about Robinson's overt behavior that might suggest that he had been attempting to avoid the test or sabotage the results. Proof of Robinson's refusal rested entirely upon the validity of the "deficient sample" readings on the machine printouts.
The officer had no independent recollection of blowing into the machine in order to demonstrate to Robinson that it was working properly, but acknowledged that he usually did so when someone blew an insufficient sample on their first try. He explained that if the machine had failed to register an appropriate reading on him, he would not have made a second attempt with Robinson. He testified that he had observed Robinson for the minimum period before giving him the test and, further, that in administering the test, he had followed the intoxilyzer checklist. He noted that the machine had been calibrated on March 17, 1987, eight days before the incident. No other evidence was offered to show that the machine was in proper operating condition at a time before or after the tests were administered to Robinson. Furthermore, no evidence was offered to show that Officer Bonin was qualified to administer an intoxilyzer test.
The hearing officer found that Robinson had refused to take the test and ordered that his license be suspended for one year. See A.R.S. § 28-691(B) (1988 Supplemental Pamphlet). Robinson moved for a rehearing on several grounds, including insufficiency of the evidence offered to support a finding of refusal absent proof that the officer administering the test was qualified to do so and that the machine had been checked after March 25 to establish that it was in proper working order. The motion for rehearing was denied, and Robinson appealed to the superior court. After concluding that the foregoing evidence was relevant and foundational, the superior court found insufficient evidence to support the hearing officer's decision and, accordingly, reversed it.
On appeal to this court, the state asserts that the evidence presented to the hearing officer was sufficient to make a prima facie case for refusal. The state therefore argues that in order to prevail at the hearing, Robinson was obligated to demonstrate that the machine was not working properly. In any event, the state continues, evidence that the machine had accepted the sample provided by Officer Bonin was sufficient to demonstrate that the machine was operating properly. Furthermore, relying on Halloway v. Martin, 143 Ariz. 311, 693 P.2d 966 (App. 1984), the state argues that neither the officer's certification nor the accuracy of the testing device is an issue at an implied consent hearing. In all respects, we disagree.
SUFFICIENCY OF THE EVIDENCE
In an appeal to the superior court from an administrative decision under the implied consent law, the scope of review is limited to a consideration of whether the hearing officer's action was illegal, arbitrary, capricious, or an abuse of discretion. Ontiveros v. Arizona Department of Transportation, 151 Ariz. 542, 543, 729 P.2d 346, 347 (App. 1986). The hearing officer's decision will be set aside only if it is not supported by competent evidence. Id.
The Arizona Supreme Court has defined refusal under the implied consent law as follows:
It is the opinion of this court that a refusal to submit to the test occurs where the conduct of the arrested motorist is such that a reasonable person in the officer's position would be justified in believing that such motorist was capable of refusal and manifested an unwillingness to submit to the test.
Campbell v. Superior Court, 106 Ariz. 542, 553, 479 P.2d 685, 696 (1971).
Refusal may, of course, be verbal. See, e.g., Halloway. Furthermore, as the state correctly notes, evidence that a licensee verbally refused to submit to a breath test *197 is sufficient, even absent proof that the test, if performed, would have been administered by qualified personnel in accordance with methods prescribed by the department of health services. Id., 143 Ariz. at 313, 693 P.2d at 968. In that context, we observed that "the validity of a test refused is not relevant in determining suspension under the implied consent statute. That issue does not arise until a test is given and the results are offered as evidence." Id. (emphasis in original).
The instant case does not concern verbal refusal, however, and must be distinguished from Halloway on that basis. There is no question but that Robinson verbally agreed to submit to the breath test. Moreover, the test was given, and the result "deficient sample" was offered as evidence.
On the other hand, a refusal need not be verbal; conduct constituting less than cooperation by the licensee is tantamount to a refusal. Ontiveros, 151 Ariz. at 543, 729 P.2d at 347. In Ontiveros, the subject deposited chewing gum on the mouthpiece of the testing device, blew "little puffs of air," and otherwise displayed an attitude of "gamesmanship" rather than cooperation. Id. Similarly, in Kuznicki v. Arizona Department of Transportation, 152 Ariz. 381, 732 P.2d 1119 (App. 1986), the subject, having been given five opportunities to take the test, persisted in blowing out of the sides of his mouth despite instructions not to do so. See also Geer v. Ordway, 156 Ariz. 588, 754 P.2d 315 (App. 1987) (asked eleven times if he would take the test, subject persisted in responding with irrelevant questions and comments).
In the case before us, however, no evidence was presented to suggest that Robinson was uncooperative in any way. In sharp contrast to the cases described above, the finding of Robinson's refusal rested entirely on the presumed validity of machine printouts indicating that he had provided "deficient" breath samples.
We do not mean to imply that such independent evidence of non-cooperation is always necessary. In its absence, however, a finding of refusal cannot rest solely on test results that do not meet statutory foundational requirements. We therefore agree with the superior court's conclusion that the evidence of refusal was insufficient.
The implied consent statute provides:
Any person who operates a motor vehicle within this state gives consent, subject to the provisions of A.R.S. § 28-692, to a test or tests of his blood, breath, or urine for the purpose of determining the alcohol or drug content of his blood if arrested for any offense arising out of acts alleged to have been committed in violation of this chapter while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.
A.R.S. § 28-691(A) (emphasis added). Thus, the validity and admissibility of such test results in an implied consent hearing are conditioned upon compliance with the requirements of A.R.S. §§ 28-692(G)[1] and -692.03.[2]See Fu | {
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[Cite as Kolosai v. Azem, 2019-Ohio-66.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102920
PAULETTE KOLOSAI, ADMINISTRATOR
OF THE ESTATE OF NICHOLAS GIANCOLA
PLAINTIFF-APPELLANT
vs.
HAITHAM MOUAID AZEM, M.D., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-806065
BEFORE: Laster Mays, J., Kilbane, A.J., and Stewart, J.*
RELEASED AND JOURNALIZED: January 10, 2019
__________________
* Editor’s Note: Judge Melody J. Stewart participated in this ruling before her resignation from this court.
-i-
ATTORNEYS FOR APPELLANT
Mark A. DiCello
Mark Abramowitz
Robert F. DiCello
Justin Hawal
The DiCello Law Firm
7556 Mentor Avenue
Mentor, Ohio 44060
Jacques G. Balette
Marks, Balette & Giessel, P.C.
10000 Memorial Drive, Suite 760
Houston, Texas 77024
ATTORNEYS FOR APPELLEES
Rita A. Maimbourg
Jane F. Warner
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, Ohio 44113
Leslie Moore Jenny
Jason P. Ferrante
Kenneth W. McCain
Marshall Dennehey Warner Coleman & Goggi
127 Public Square, Suite 3510
Cleveland, Ohio 44114
ANITA LASTER MAYS, J.:
I. INTRODUCTION
{¶1} The instant appeal is before us pursuant the Ohio Supreme Court’s decision in
Giancola v. Azem, Slip Opinion No. 2018-Ohio-1694 (“Kolosai III”). The court heard an
appeal from this court’s decision in Kolosai v. Mouaid, 8th Dist. Cuyahoga No. 102920,
2016-Ohio-5831 (“Kolosai II”), where we held that the law-of-the-case doctrine, based on our
decision in Kolosai v. Azem, 8th Dist. Cuyahoga No. 100890, 2014-Ohio-4474 (“Kolosai I”),
barred our consideration of the assigned errors set forth in Kolosai II. The Ohio Supreme Court
disagreed and remanded the case for review of the assigned errors.
II. BACKGROUND AND FACTS
{¶2} Paulette Kolosai (“Kolosai”), administrator of the estate of Nicholas Giancola
(“Nicholas”), is the plaintiff-appellant in this nursing home negligence and wrongful death case
against defendants-appellees Cleveland Healthcare Group, Inc., Walton Manor Health Care
Center, Saber Healthcare Group, L.L.C., Saber Healthcare Holdings, L.L.C., and Saber
Healthcare Foundation (collectively “Walton Manor”) and Haitham Mouaid Azem, M.D.
(“Azem”). The pending question is whether the trial court properly determined that Nicholas
signed the Walton Manor arbitration agreement that would result in a stay of the wrongful death
action pending arbitration.
{¶3} Kolosai filed this action against appellees on April 29, 2013, as amended on July
11, 2013, claiming: (1) corporate negligence; (2) corporate recklessness/willfulness; (3) medical
negligence; (4) gross negligence; (5) resident rights violations; (6) wrongful death; and (7)
survivorship damages. Walton Manor responded to the complaint by filing an answer on July
23, 2013. The answer included a number of affirmative defenses; however, there was no
defense referencing an arbitration agreement or lack of jurisdiction though there was a reference
to failure to comply with the admission agreement.
{¶4} On August 27, 2013, Walton Manor filed a motion to stay the proceedings pending
arbitration, asserting that Nicholas signed a Resident and Facility Arbitration Agreement
(“Arbitration Agreement”). Kolosai argued that the deposition testimony of Walton Manor’s
witness and former employee, Stephanie Lewis McCaulley (“Lewis”), who admitted Nicholas to
the nursing home and signed the Arbitration Agreement as the facility representative, established
that Nicholas’s mother, Rose Giancola (“Rose”) executed the Arbitration Agreement without
authority to do so, thus rendering it unenforceable.
{¶5} Though Rose was admitted to Walton Manor just a few weeks after Nicholas,1 no
documents containing Rose’s signature were presented to the trial court supporting Walton
Manor’s argument that Nicholas signed the agreement.
Instead, Walton Manor relied on the copy of the Arbitration Agreement containing a signature
above the name of Nicholas. Walton Manor also argued that Lewis’s testimony was vague and
was not based on actual knowledge.
{¶6} The trial court decided that Rose signed the Arbitration Agreement on behalf of
Nicholas with apparent authority to do so and granted the stay as to Counts 1-5 and 7. The
wrongful death claim set forth in Count 6 was retained for further proceedings on the ground that
a decedent cannot bind beneficiaries to arbitration in a wrongful death claim. Peters v.
Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.2d 1258, ¶ 19.
{¶7} On January 15, 2014, Kolosai appealed the trial court’s order in Kolosai v. Azem,
8th Dist. Cuyahoga No. 100890, 2014-Ohio-4474 (“Kolosai I”). Kolosai argued that the trial
court erred in granting the stay and holding that Rose signed the Arbitration Agreement, which
would render it unenforceable, yet determining the Arbitration Agreement was, in fact,
enforceable under the doctrine of apparent authority, an argument that was not offered by either
1
Nicholas was admitted on October 28, 2011. Rose was admitted on November 21, 2011. Both Rose and Nicholas
are now deceased.
party. Walton Manor at no point during the trial court proceedings offered evidence to support
its argument that Nicholas signed the Arbitration Agreement.
{¶8} While advocating before this court on appeal, Walton Manor proffered documents
that were not part of the record. The documents consisted of Rose’s admission documents that
had been in Walton Manor’s possession since Rose was admitted to the facility in 2011. The
documents had never been introduced as evidence. Walton Manor claimed that the documents
“were not available due to the lack of discovery prior to the Motion to Stay.” Appellee’s Brief
at 2. Kolosai I at ¶ 4.
{¶9} We noted in our opinion that, while new evidence could not be entertained by this
court, the submission of the additional documentation to support the premise that Nicholas
signed the Arbitration Agreement effectively confirmed Kolosai’s position that the trial court’s
finding of apparent authority was erroneous. This court also rejected Walton Manor’s fall-back
position offered during the appeal that the trial court properly granted the stay based on the
doctrine of apparent authority because it directly conflicted with their contrary argument that
Nicholas signed the Arbitration Agreement.2 Id. at ¶ 9-10.
{¶10} Thus, we sustained Kolosai’s first assignment of error that:
The trial court abused its discretion in finding the Arbitration Agreement was
enforceable due to apparent agency principles. The trial court should not have
relied upon this theory because it was an erroneous interpretation of fact and not
addressed in the motion to stay and enforce the binding Arbitration Agreement.
2
“Walton Manor hedges its argument by claiming that even if we ignore its new evidence on appeal, the apparent
agency theory was appropriately relied upon by the court under the circumstances, thus providing sufficient
justification for its decision to enforce the arbitration agreement.” Kolosai I at ¶ 9.
In light of the trial court’s improper reliance on the apparent authority principle, this court
reversed and remanded the case “for further proceedings consistent with the opinion.” Id. at
¶11.
{¶11} Walton Manor filed a renewed motion to stay arbitration on December 12, 2014.
Attached to the motion were copies of Rose’s admission documents that were improperly
proffered during the oral argument | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4484
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRES ESTRADA,
Defendant - Appellant.
No. 06-4804
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PRIMITIVO ABEJA VEGA, a/k/a Roberto Lopez,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00363-JAB)
Submitted: July 11, 2007 Decided: July 20, 2007
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John A. Dusenbury, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina; Benjamin D. Porter, MORROW, ALEXANDER
& PORTER, PLLC, Winston-Salem, North Carolina, for Appellants.
Anna Mills Wagoner, United States Attorney, Randall Stuart Galyon,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
In these consolidated appeals, Andres Estrada and
Primitivo Abeja Vega appeal their convictions and sentences for
conspiracy to distribute 500 grams or more of methamphetamine in
violation of 21 U.S.C. § 846 (2000). On appeal, counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
claiming there are no meritorious issues on appeal, but raising the
question of whether the sentences were reasonable. Neither
Appellant filed a pro se supplemental brief. Finding no error, we
affirm.
We find Appellants’ ranges of imprisonment were properly
calculated under the Sentencing Guidelines. Thus, their sentences
at the low end of the Guidelines range of imprisonment were
reasonable. United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006).
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the convictions and sentences. We require counsel to inform the
clients, in writing, of their right to petition the Supreme Court
of the United States for further review. If a client requests a
petition be filed, but counsel believes such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. We dispense with oral
- 3 -
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid in the decisional process.
AFFIRMED
- 4 -
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774 F.Supp.2d 34 (2011)
OBAYDULLAH, Petitioner,
v.
Barack H. OBAMA,[1] et al., Respondents.
Civil Case No. 08-1173 (RJL).
United States District Court, District of Columbia.
March 23, 2011.
*35 Cindy Panuco, Radhika Sainath, Virginia Keeny, Dan Stormer, Hadsell Stormer Keeny Richardson & Renick, LLP, Anne Richardson, Nagwa Ibrahim, Pasadena, CA, Gaillard T. Hunt, Silver Spring, MD, Kristine Huskey, Ranjana Natarajan, National Security Clinic, Austin, TX, Pardiss Kebriaei, New York, NY, for Petitioner.
Andrew I. Warden, Arthur Laverne Rizer, Ronald James Wiltsie, Scott Michael Marconda, August Edward Flentje, James J. Schwartz, Terry Marcus Henry, U.S. Department of Justice, Civil Division, Washington, DC, for Respondents.
CLASSIFIED MEMORANDUM OPINION
RICHARD J. LEON, District Judge.
For the reasons set forth on the record at the public hearing held on October 19, 2010, and for the following reasons, the Court DENIES Obaydullah's petition for a writ of habeas corpus.
ANALYSIS
Petitioner Obaydullah, an approximately 27-year old Afghan citizen, grew up in the small village of Milani in the Khost province near the Pakistan border. On July 21, 2002. U.S. forces, acting on tips from various intelligence sources, conducted a nighttime raid at the petitioner's home. During that raid, U.S. forces secured from his person a notebook containing certain diagrams that appeared to be wiring designs for building lethal improvised explosive devices ("IEDs"). In addition, U.S. forces found a stash of 23 anti-tank mines buried in an outdoor pit close to petitioner's home. Petitioner was, of course, taken into custody and transported to Champman Airfield for follow-up questioning. Shortly thereafter, he was transferred to Bagram Airfield where he was imprisoned for approximately three months before being transported to the U.S. Naval Base in Guantanamo Bay, Cuba in October 2002.
ANALYSIS
The Government argues that Obaydullah is the type of individual who is detainable *36 under the Authorization for Use of Military Force ("AUMF")or, in other words, is an enemy combatantbecause he was "part of" an Al Qaeda "bomb cell" operating in the Khost region of Afghanistan at the time he was taken into custody by U.S. forces in 2002. (Return ¶ 1 at 1.) In particular, the Government contends that petitioner: (1) was hiding on his property a cache of 23 anti-tank mines and seven plastic mine shells from which explosives had been removed; (2) was captured in possession of a notebook containing instructions and wiring diagrams for how to build a remote-control detonating device (i.e., IED); (3) was storing an automobile that contained dried blood and Taliban propaganda, and that had been used by him and another to ferry to a local hospital certain bomb cell members who had been injured in an accidental explosion; and (4) has repeatedly given false and implausible explanations regarding his knowledge of, and involvement with, these explosives, this notebook, and this automobile. In short, the Government contends that its pre-raid intelligence sources linking Obaydullah to the bomb cell have been more than adequately corroborated and that it is therefore more likely than not that petitioner was indeed a member of that al Qaeda cell.
Petitioner, not surprisingly, disagrees. He denies any ownership interest in the mines and automobile recovered from his property. (Classified Opening 16:12-18:2, 18:4-23.) Moreover, he claims that the notebook contains nothing more than his notes from a bomb detection training he had been required to attend by the Taliban some eight months earlier, as well as notes from his business. (Traverse 5-6.) In essence, he claims that either the Government's pre-raid intelligence has not been adequately corroborated, or that the unidentified sources of the Government's pre-raid intelligence have falsely accused him of membership in this supposed al Qaeda bomb cell. (Classified Opening 20:4-18; 21:4-10.) Upon reviewing the return, the traverse, and oral arguments of counsel during the merits hearing, 1 disagree with the petitioner's contention and conclude for the following reasons that the Government has more than adequately established that it is more likely than not that the petitioner was in fact a member of an al Qaeda bomb cell, and is therefore detainable under the AUMF.
1. The pre-raid intelligence.
The Government's case in large part rests on the pre-raid intelligence reports that link Obaydullah to an al Qaeda bomb cell. However, the Government has not disclosed the source of the pre-raid intelligence. Though, as petitioner points out, raw intelligence reports may not be sufficiently reliable, standing alone, to justify detention (Traverse 17-18), essentially, the government argues that its intelligence has been sufficiently corroborated to conclude that it is accurate, and thus, that it is more likely than not that Obaydullah was, in fact, a member of an al Qaeda bomb cell and is thus detainable under the AUMF. Accordingly, a short description of the information contained in that pre-raid intelligence is appropriate.
[Redacted]
2. The raid on Obaydullah's compound.
U.S. forces, acting on this intelligence, subsequently conducted a night-time raid on petitioner's compound on July 21, 2002.[Redacted]
During the raid,[Redacted] U.S. forces recovered 23 anti-tank mines of Italian and Pakistani origin, as well as seven empty mine shells,[Redacted]from Obaydullah's compound. [Redacted] U.S. forces also *37 found a taxi cab in the compound that was covered by a tarp and contained inside dried blood and Taliban propaganda. (Gov't Exs. 37,[Redacted]110.) Indeed, the Special Forces Staff Sergeant who participated in the raid reported that the blood could have been connected to an earlier incident in which petitioner and Karim Bostan were seen by an intelligence source taking some individuals to the hospital after an accidental explosion that occurred during the construction of a mine-based IED. (Gov't Ex. 37.) Finally, U.S. forces recovered a notebook from Obaydullah's pocket. (Return ¶ 45 at 18-19; Gov't Ex. 110; see also Gov't Ex. 17.) That notebook contained information intended to assist in the construction of a remote-controlled IED that used a mine as its main charge. (Gov't Ex. 13.) Obaydullah, who then identified himself as "Baitullah," was taken into custody along with two of his cousins. (Gov't Ex. 110, Return ¶ 43 at 18).
3. Petitioner's explanations for his possession of the mines and the notebook.
At the scene, the petitioner, by his own admission, lied when confronted with the mines and the notebook. With respect to the mines, Obaydullah claimed that he was holding onto the mines for his business partner and friend, Karim, who he later identified to be Karim Bostan. (Gov't Ex. 37; Return ¶ 46 at 19.) With respect to the notebook, petitioner again lied by telling the soldiers that the notebook contained notes and diagrams regarding, of all things, a power generator. (Gov't Exs. 37, 110.) Petitioner also maintained that the notebook had been given to him by Karim. (Gov't Ex. 110.)
Obaydullah now puts forth very different accounts of the mines as well as the notebook. For the following reasons, however, I find his current explanations for why he was in possession of anti-tank mines and a notebook of instructions on how to generate mine-detonated IEDs, not to be credible.
With respect to the mines, Obaydullah later changed his story on a number of occasions regarding his involvement with, and interest in, the mines. (Hearing Tr., Oct. 1, 2010 AM, 4:24-9:25, 11:10-14:21.) His initial reconfiguration of the events was that the mines had been left behind at his home more than ten years earlier by the Soviet commander Ali Jan, who had used Obaydullah's compound as an operations base. (Id. 8:9-15; Gov't Ex. 29.) However, he has also at times claimed that the mines were instead left by jihad fighters. (Gov't Ex. 30). He claimed that his mother and uncle buried the discarded mines some 300 meters from his compound. (Gov't Ex. 47.) However, at other times he claimed that he buried them himself (Gov't Exs. 30, 46), that just he and his uncle buried them (Gov't Ex. 107), or that just he and his mother buried them (Gov't Ex. 89). Petitioner has also changed his story as to when the mines were buried, at one time saying that they were buried approximately in 1992, ten years prior to his arrest (Gov't Ex. 47), yet also stating that they were buried approximately in 2001, just after Obaydullah's supposed conscripted attendance at a Taliban school (Gov't Ex. 107). Petitioner now even questions whether the mines uncovered by the U.S. | {
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67 So.2d 351 (1953)
MONTAGUE
v.
MILAN.
No. 20008.
Court of Appeal of Louisiana, Orleans.
June 8, 1953.
Rehearing Denied October 19, 1953.
Adrian G. Duplantier, New Orleans, for appellant.
Henry G. Neyrey, Jr., New Orleans, for appellee.
REGAN, Judge.
This is a suit by plaintiff, Charles W. Montague, a subcontractor, against the defendant, Daniel A. Milan, the owner of the property and also an engineer, who acted, on this occasion, as his own contractor, for labor performed and material furnished to the defendant in the amount of $1,366.20.
Defendant answered and admitted the furnishing of labor and material, but denied that he was indebted unto plaintiff in any sum whatsoever and reconvened for the sum of $280 (corrected in brief to $270), representing money expended in correcting errors of construction caused by plaintiff. Defendant additionally requested that the court reserve unto him his right to recover damages from plaintiff for whatever loss he might, in the future, sustain as a result of the errors.
*352 There was judgment in the court, a qua, in favor of the plaintiff in the amount of $1,056.20, which apparently recognized that part of the defendant's suit in reconvention demanding the sum of $270 and rejecting defendant's request for reservation of his right to recover damages from plaintiff for whatever loss he might sustain in the future as a result of the contractor's errors in construction. From this judgment defendant has appealed. Plaintiff has answered the appeal praying that the judgment be increased to the sum of $1,332.60.
The record reveals that defendant visited the offices of plaintiff, where he deposited a set of plans and specifications and requested a bid for the driving of piling, concrete foundation and slab work. Several days thereafter, plaintiff's superintendent, Mike Lanoux, having figured, in writing, the cost thereof, submitted a bid to defendant, which he admits he accepted. The bid offered to perform the following work:
"Drive 62-25 foot pilings at 8.50 527.00
Lay 265 feet of grade beam and
caps (8 × 10) 556.50
Lay 1595 sq. ft. of slab 957.00"
Subsequently, the slab work was cancelled by mutual agreement and, therefore, it is not an issue herein. After the piling had been driven and the grade beam laid, Lanoux discovered that he had laid 319 feet of grade beam in conformity with the plans instead of 265 feet as per the bid. Defendant concedes that plaintiff laid about 320 feet of grade beam, however, he asserts that he accepted plaintiff's bid without rechecking the plans to determine whether the measurements set forth in the quotation coincided with those in the plans. Lanoux' explanation is simply that it was an "honest mistake", which defendant should not be permitted to take advantage of unjustly. In any event, plaintiff is requesting payment for 319 feet of grade beam, which is the lineal measurement of the beam actually laid. Lanoux made no mention of this additional 54 feet of grade beam until he rendered defendant a bill upon the completion of the work.
The foregoing facts relate to the original contract. Subsequently extra work was performed by the plaintiff, at the request of the defendant. He drove five additional pilings for which he charged the agreed price of $8.50 each, or a total of $42.50. He provided 52 feet of additional grade beam for a porch which was laid also at the request of defendant.
The record reflects a stipulation to the effect that insofar as the piling is concerned, they were properly driven and the number thereof furnished was 67, and that the additional grade beam was 52 feet (for the porch) and that the agreed price was $2.10 a foot or a total of $109.20.
Plaintiff also seeks to recover payment for sixteen "pedestals" at a price of $2 each or a total of $32. Lanoux testified that these pedestals were ordered by the defendant's brother, Ed Milan, who acted in the capacity of defendant's superintendent during the course of the work. Ed Milan admitted that he ordered these pedestals, however, defendant refused to pay for them as he was of the opinion that they were "caps" as reflected in the original quotation. Plaintiff testified that a "cap" is a portion of concrete that encases the head of the pile. The purpose of the cap is to transfer the load of the beam to the pile. A "pedestal" is a base for the superstructure. They are not synonymous terms. The "cap" fits around and on top of the piling, the grade beam then fits on top of the cap and the pedestal fits on top of the grade beam, which is apparently admitted by defendant.
Our analysis of the complicated record causes us to understand that plaintiff is endeavoring to recover the following amounts for labor and materials furnished in connection with the contract and for extra work performed incidental thereto.
"For driving 62 pilings as called
for in original quotation 527.00
For driving 5 additional pilings
as extras 42.50
*353
For laying 319 feet of grade beam
(265 ft. @ 2.10 a foot as called
for in original quotation and 54
additional feet at 2.10 a foot as
required by the plans) 669.90
For 52 feet of grade beam for
porch as extras 109.20
For 16 pedestals 32.00
________
1380.60"
Plaintiff concedes that defendant is entitled to a credit of $48 for material used and furnished by defendant. While he sued for $1,414.20 subject to a credit of $48, he now admits that he has only proved that he is entitled to $1,380.60, subject to a credit of $48, or the sum of $1,332.60, the amount he desires to recover in his answer to the appeal.
Defendant insists that he owes plaintiff nothing because plaintiff did not substantially perform the building contract, in that the concrete used in the grade beam did not test 2500 pounds per square inch and, therefore, failed to measure up to the specifications and, in addition, that plaintiff owes him damages of $80 for correcting an error in the level of the grade beam and $190 (he originally claimed $200) expended by him in strengthening the foundation; in the alternative, defendant asserts that even if plaintiff's performance was a substantial compliance with the contract, there is no doubt that plaintiff's work was not an actual compliance therewith and, therefore, defendant is entitled to recover damages which he suffered as a result thereof or the sum of $270; and, in any event, according to defendant's calculations plaintiff's recovery should be limited to the sum of $917.20 or $139 less than the amount awarded by the lower court.
A careful analysis of the pleadings, the lay and expert testimony contained in the record and the briefs of respective counsel reveals that the only factually scientific point of issue in the case relates to the strength of the concrete poured by plaintiff. It is very difficult for us as laymen to comprehend and satisfactorily digest the expert dissertation on the relative strength of the concrete and this fact is emphatically pointed up by virtue of the following interrogation of Cecil M. Shilstone, a partner of Shilstone Testing Laboratories and the response thereto:
"Q. Do you do a lot of concrete testing? A. Considerable.
"Q. Mr. Shilstone, will you tell the Court something about the behavior of concrete after it is poured, something about the relationship between age and strength of concrete? A. You will have to understand, that question could be answered in a series of lectures which would last probably a month * * *."
In view of the foregoing answer, Shilstone's expert dissertation on the subject of concrete was relatively short, however, we shall endeavor to elucidate thereupon as informatively and briefly as possible.
He related that when 2500 pounds per square inch concrete is required by the specifications, that means the concrete should test 2500 pounds per square inch on the 28th day after the pouring of the concrete. The grade beam was poured on July 23, 1951. Thereafter two tests were made of the concrete used in the grade beam. A test was made by Shilstone Laboratories on September 14, 1951, and that concrete tested 1431 pounds. It appears that a legitimate dispute arose over this test because plaintiff insist that the sample was taken in an improper container, a porous one, and defendant while admitting that the sample should not have been placed in a porous container, contends that this error was rectified by virtue of placing the porous container in moistened and shaded sand. The second test was made by Shilstone Laboratories on March 1, 1952 of a core taken from the grade beam itself. This was approximately six months after the date on which the concrete should have tested 2500 pounds, that is, August 20, 1951, the 28th day after the pouring of the concrete. This core tested 2567 pounds.
Shilstone testified that concrete hardens from the 28th day after the pouring some *354 15% in eight or nine months, but that it is possible the core could have hardened less than 15%; that 15% of 2500 pounds is 375 pounds and that, therefore, according to his estimation the grade beam had tested 2125 pounds per square inch on the 28th day after the pouring of the concrete. Later he asserted that the grade beam tested approximately 2000 pounds per square inch after the pour.
Plaintiff, on the other hand, insists that the concrete tested 2232 pounds per square inch on the 28th day after | {
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IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Submitted on Briefs September 19, 2006
IN RE I.C.G., B.M.D., T.N.C., & T.L.C.
Appeal from the Juvenile Court for Hamilton County
No. 192214-18 Suzanne Bailey, Judge
No. E2006-00746-COA-R3-PT - FILED OCTOBER 31, 2006
In this appeal, S.L.B. (“Mother”) contends that the trial court erred in terminating her parental rights
to four of her five children. Mother does not challenge the propriety of the trial court’s order
terminating her parental rights as to the fifth child. After careful review of the evidence and
applicable authorities, we hold that the evidence does not preponderate against the trial court’s
finding by clear and convincing evidence that termination of Mother’s parental rights was in the best
interest of her children. Therefore, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J.,
and CHARLES D. SUSANO , JR., J., joined.
Robert B. Pyle, Chattanooga, Tennessee, for the Appellant, S.L.B.
Paul G. Summers, Attorney General and Reporter, and William N. Helou, Assistant Attorney
General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's
Services.
OPINION
I. Background
This case involves the termination of Mother’s parental rights to five of her children.1 Imari
G. (born September 13, 1991) is the son of Anthony G., who is deceased. Bre’Ana D. (born March
1, 1993) is the daughter of Michael D. The remaining three children, Tyrone C., Jr., (“Tyrone Jr.”)
(born July 30, 1999), Tyshaila C. (born December 3, 2000), and Tyonna C. (born July 7, 2002), were
fathered by Tyrone C., Sr. (“Tyrone Sr.”). The Department of Children’s Services (“DCS”) is not
seeking termination of the parental rights of Michael D. and Tyrone Sr. and is continuing to provide
services to them.
On May 4, 2002, Mother brought Tyrone Jr. to the emergency room of T.C. Thompson
Children’s Hospital in Chattanooga. The child was treated for second-degree burns on the tops and
sides of his feet, his left elbow, his left buttock, and part of his back. He also had first-degree burns
on his shoulders. According to Mother, who was approximately seven months pregnant at the time
of the incident, she was taking a nap around 11 a.m. on either May 1 or 2, 2002,2 when she awoke
to the sound of Tyrone Jr. screaming. Mother said that she found the two-year-old in the bathtub,
and he had been burned by hot water in the tub.3 Mother testified that her elderly grandparents were
supposed to be watching the children while she slept.4 Tyrone Jr.’s pediatrician reported that Mother
called him late on the night of May 3, 2002, to request a prescription for ointment to treat the burns,
and then brought the child to his office the following morning. Mother was told to take Tyrone Jr.
to the emergency room, which she did that same day. Doctors told DCS that the burns on Tyrone
Jr.’s body were not water burns. Mother had previously been investigated by DCS because of burns
on Bre’Ana D. and bruises on Tyrone Jr.
On May 8, 2002, the Juvenile Court of Hamilton County entered a protective custody order
which vested DCS with temporary custody of Imari G., Bre’Ana D., Tyrone Jr., and Tyshaila C. The
court found probable cause to believe that the children were dependent and neglected based on the
severe injuries sustained by Tyrone Jr. while in his Mother’s care. On July 9, 2002, the trial court
entered a protective custody order regarding Tyonna C., then two days old, and placed her in the care
of DCS based upon the same episode of alleged abuse.
1
Since DCS filed its Petition to Terminate Parental Rights on May 19, 2004, Mother has given birth to two
additional children, Jomanna and Jacob. Both children were removed from Mother’s custody shortly after their birth
and placed in the custody of DCS. M other’s parental rights to these two children are not at issue in this case. At the time
the trial court rendered its judgment on February 24, 2006, Mother was pregnant with her eighth child.
2
According to the record, Mother is unable to remember the exact date of the incident.
3
A test of the water temperature in Mother’s apartment indicated that the water could get as hot as 151 degrees.
4
Tyrone Sr., M other’s husband and the father of three of the children at issue in this case, was incarcerated for
domestic violence at the time of Tyrone Jr.’s injury.
-2-
DCS drafted permanency plans for the children.5 Mother signed the permanency plans for
her four oldest children on June 20, 2002, noting that she did not agree to the requirement that she
“admit to child abuse or any other criminal conduct.” The permanency plan for the infant, Tyonna
C., was not signed by Mother. There is no indication in the record as to why she did not sign the
final permanency plan, which was developed in September of 2002. However, the requirements for
Tyonna C.’s plan were essentially the same as those of the other four children.
On September 9, 2003, the trial court found Mother’s five children to be dependent and
neglected. Furthermore, the court entered a finding of severe abuse against Mother, stating that clear
and convincing evidence persuaded the court that Mother had intentionally inflicted Tyrone Jr.’s
burns. The trial court’s findings were affirmed by the Circuit Court of Hamilton County.
On April 14, 2004, the trial court terminated Mother’s visitation because of Mother’s
inappropriate behavior during supervised visits with her children. During one of the visits, Mother
lost her temper, and DCS had to call security to remove Mother from the premises. The following
month, DCS filed a petition to terminate the parental rights of Mother on the grounds that Mother
abandoned the children by willfully failing to support them; Mother committed severe abuse against
Tyrone Jr.; Mother failed to substantially comply with the permanency plans drafted by DCS; the
children have been removed from Mother’s home by court order for more than six months and the
conditions which led to the removal persist and are unlikely to be remedied in the near future, and
the continuation of the mother/child relationship greatly diminishes the children’s chances of early
integration into a safe, stable, and permanent home; and Mother was sentenced to more than two
years’ imprisonment for conduct against Tyrone Jr.6 DCS further asserted that the termination of
Mother’s parental rights would be in the best interests of her five children.
The trial court granted a default judgment to DCS on September 26, 2005, because Mother
failed to appear in court and did not provide an excuse for her absence. Mother’s attorney filed a
motion to set aside the default judgment, which the trial court denied when Mother once again failed
to appear in court for the motion hearing. Mother’s attorney filed a second motion to reconsider the
termination, which was granted on November 9, 2005.
Following a bench trial, the court entered a Termination of Parental Rights and Final Decree
of Complete Guardianship on February 24, 2006. The trial court found, by clear and convincing
5
The permanency plans required, among other things, that Mother: undergo a parenting assessment; complete
a psychological examination; actively participate in any counseling recommended as a result of the pyschological
assessment and attend such counseling until all treatment goals have been met; complete counseling designed to deal with
domestic abuse issues; admit to abusing her children; have gainful, stable employment for at least six months prior to
her children returning home; provide a safe, clean, and stable home for her children; cooperate with all DCS case workers
and other professionals assigned to work with her; and pay child support to the state in accordance with current
guidelines.
6
Mother pleaded guilty to attempted aggravated child neglect, for which she received a ten-year sentence. The
Criminal Court of Hamilton County suspended Mother’s sentence and placed her on active probation.
-3-
evidence, all of the grounds for termination of Mother’s parental rights alleged by DCS with the
exception of abandonment by failure to pay child support.7 Furthermore, the court found by clear
and convincing evidence that it was in the best interests of the children that Mother’s parental rights
be terminated. Mother appeals. | {
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98 F.3d 1359
78 A.F.T.R.2d 96-6705, 96-2 USTC P 50,540
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.The SWIG INVESTMENT COMPANY, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee.
No. 95-5051.
United States Court of Appeals, Federal Circuit.
Oct. 10, 1996.
Before ARCHER, Chief Judge, MICHEL, and RADER, Circuit Judges.
DECISION
ARCHER, Chief Judge.
1
Swig Investment Company (Swig) appeals from the December 14, 1994 judgment of the United States Court of Federal Claims, No. 92-50 T, dismissing its complaint. We affirm.
BACKGROUND
2
Swig brought a refund suit to contest the Internal Revenue Service's (IRS) disallowance of a business expense deduction claimed by the Fairmont Hotel Company in San Francisco, California, for the 1984 tax year.1 Swig's refund claim pertains to a $3,023,347 expenditure to replace an entablature, which had been constructed in 1907 and consisted of five foot high unreinforced terra cotta and concrete parapets with overhanging cornices around the entire roof perimeter.
3
In 1969, the City of San Francisco (the city) passed an ordinance setting higher safety standards for parapets and cornices because of the hazardous conditions caused by earthquakes. In 1980, the city notified the Fairmont Hotel that its parapets and cornices were potentially hazardous in a major earthquake.2 The notice required corrective action which could include strengthening, reconstructing, bracing or removing the parapets and cornices. Fairmont hired an engineer, an architect and a construction company to determine the extent of the necessary repairs. This investigatory team, however, recommended that the parapets and cornices be replaced. The construction company was then authorized to replace these old structures with new parapets and cornices made of glass fiber reinforced concrete (GFRC), which made them lighter and stronger than the original ones. They were also attached to the hotel using welded connections instead of wire supports, making them more resistant to damage from lateral movement. The cost of this replacement was $ 3,023,347 and the Fairmont deducted it from its 1984 gross income as an ordinary and necessary business expense pursuant to 26 U.S.C. § 162(a) (1994) (IRC).
4
The IRS disallowed the deduction, ruling that the amount should be treated as a capital expenditure pursuant to IRC § 263. The disallowance resulted in the assessment of additional tax and interest. Fairmont paid the resulting deficiencies and filed a claim for a refund. When the IRS denied the claim, Fairmont filed a refund suit in the Court of Federal Claims on January 23, 1992.
5
After trial, the Court of Federal Claims delivered its opinion from the bench on May 16, 1994. The court found:
6
The project significantly improved the structural soundness of the building. In addition, the project cured a defect and brought the hotel into compliance with the San Francisco requirements in the Parapet Safety Program. The project removed a hazardous structural deficiency....
7
The structure and construction of the hotel was changed substantially. The new parapets and cornices will last an indefinite time in the future....
8
The new installation cannot be considered as a deferred repair and maintenance. R & M [repair and maintenance] would have repaired existing terra cotta and fastenings. R & M would not include installation of new and different fastenings. The new installation is integral to the hotel building, it is not an appendage.
9
The Court of Federal Claims held that the $ 3,023,347 expenditure was a capital expenditure subject to depreciation and not an ordinary and necessary business expense fully deductible in 1984.
DISCUSSION
I.
10
In an appeal of a judgment from the Court of Federal Claims, we review the questions of law de novo and the factual findings for clear error. See Columbia Gas System, Inc. v. United States, 70 F.3d 1244, 1246 (Fed.Cir.1995); Shelden v. United States, 7 F.3d 1022, 1026 (Fed.Cir.1993). The proper interpretation of a statute is a question of law. Columbia Gas, 70 F.3d at 1246.
II.
11
We agree with the Court of Federal Claims that the parapet and cornice replacement expenditure should be classified as a capital investment rather than an ordinary and necessary business expense. Swig has not demonstrated that the expenditures at issue are deductible as ordinary and necessary business expenses under IRC Section 162(a). Swig attempts to dismiss the benefits that accrued to the hotel from the replacement of the parapets and cornices as "incidental," but the Court of Federal Claims found that these expenditure produced significant benefits to the hotel which extended beyond the tax year in question. This finding is amply supported by the record.
12
IRC Section 162(a) provides: "There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business...." Section 263(a) provides: "No deduction shall be allowed for--(1) Any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate...." If a payment is properly characterized as a business expense, it is currently deductible. Indopco, Inc. v. Commissioner, 503 U.S. 79, 83 (1992). A payment properly characterized as a capital expenditure, however, must be capitalized and depreciated, generally over the useful life of the asset. Id. at 83-84. "Through provisions such as these, the Code endeavors to match expenses with the revenues of the taxable period to which they are properly attributable, thereby resulting in a more accurate calculation of net income for tax purposes." Id. at 84.
13
Determining whether a payment is a business expense or a capital expenditure is a fact intensive inquiry. The regulations establish the criteria for distinguishing between deductible expenses and capital expenditures. Treas. Reg. § 1.162-4 states:
14
The cost of incidental repairs which neither materially add to the value of the property nor appreciably prolong its life, but keep it in an ordinarily efficient operating condition, may be deducted as an expense, provided the cost of the acquisition or production or the gain or loss basis of the taxpayer's plant, equipment, or other property, as the case may be, is not increased by the amount of such expenditures. Repairs in the nature of replacements, to the extent that they arrest deterioration and appreciably prolong the life of the property, shall ... [be capitalized].
Treas. Reg. § 1.263(a)-1 explains:
15
1 ... no deduction will be allowed for--
16
1 any amount paid out for new buildings, or for permanent improvements or betterments made to increase the value of any property or estate, or
17
* * *
18
* * *
19
(b) In general, the amounts referred to in paragraph (a) of this section include amounts paid or incurred (1) to add to the value, or substantially prolong the useful life of the property owned by the taxpayer.... Amounts paid or incurred for incidental repairs and maintenance of property are not capital expenditures....
20
Treas. Reg. § 1.263(a)-2 provides examples of capital expenditures:
21
(a) The cost of acquisition, construction, or erection of buildings, machinery and equipment, fixtures, furniture and fixtures and similar property having a useful life substantially beyond the taxable year.
22
Under these regulations, a payment is a capital expenditure if it materially prolongs the life of the property or increases its value. Both are true in this case. The new parapets and cornices increased the value of the property and they were expected to last an indefinite time into the future.
23
The new parapets and cornices are lighter and stronger than the old ones and the welded connections provide additional strength and increased protection from stress. The Court of Federal Claims found that the new parapets and cornices, which were made of different material with different fastening and additional steel, significantly improved the structural soundness of the hotel. The city found the old parapets and cornices a potential hazard. Hence, the court's finding that their replacement improved the structural soundness of the building is well supported. Doubtless, removing a potential hazard and replacing it with lighter, stronger material with increased supports which improves the structural soundness of the building also improves the value of the building. In fact, the court found that the hotel management rejected the option of simply removing the non-complying parapets and cornices because such a removal would alter the classical appearance of the hotel and destroy its identity as a "landmark" and a "grand hotel of the world." The hotel management clearly considered the parapets and cornices to | {
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477 F.3d 347
Thomas LEONARD, Plaintiff-Appellant,v.Stephen ROBINSON, in his individual capacity, Defendant-Appellee.
No. 05-1728.
United States Court of Appeals, Sixth Circuit.
Argued: June 2, 2006.
Decided and Filed: February 2, 2007.
ARGUED: Michael E. Freifeld, Law Office of Glen N. Lenhoff, Flint, Michigan, for Appellant. Frank A. Misuraca, Kaufman & Payton, Farmington Hills, Michigan, for Appellee. ON BRIEF: Michael E. Freifeld, Law Office of Glen N. Lenhoff, Flint, Michigan, for Appellant.
Frank A. Misuraca, Kaufman & Payton, Farmington Hills, Michigan, for Appellee.
Before: BOGGS, Chief Judge; and KEITH and SUTTON, Circuit Judges.
BOGGS, C.J., delivered the opinion of the court, in which KEITH, J., joined. SUTTON, J. (pp. 363-68), delivered a separate opinion concurring in part and dissenting in part.
OPINION
BOGGS, Chief Judge.
1
Thomas Leonard appeals the judgment of the district court granting summary judgment to the defendant, Stephen Robinson, in this civil rights action resulting from Leonard's arrest at a township board meeting. The district court dismissed the case, holding that Robinson was entitled to qualified immunity on claims for wrongful arrest and that Leonard could not make out a prima facie case on his claim for First Amendment retaliation in violation of his civil rights. We reverse both holdings. The district court's application of state law to Leonard's conduct overlooked the First Amendment and its evaluation of Leonard's retaliation claim ignored evidence indicating that Robinson did have an improper motive. We hold that 1) no reasonable officer would have found probable cause to arrest Leonard solely for uttering "God damn" while addressing the township board because the First Amendment protects this sort of uninhibited debate, and 2) Leonard's retaliation claim survives summary judgment because Robinson's motive for the arrest is a genuine issue of material fact in dispute.
2
* This case presents the question of whether an arrest for obscenity, vulgarity, or disturbing the peace, when based upon speech and not conduct, is valid when it occurs during a democratic assembly where there is no evidence that the individual arrested was out of order and some evidence of improper motive by the arresting officer. With due regard to the procedural disposition of the case, the facts are here recounted in the light most favorable to Leonard.
3
Leonard's wife Sarah operates a towing company called Leonard's Auto Works. Auto Works was the exclusive towing company for the township of Montrose, Michigan until around 2000. At that time, the Montrose Township Chief of Police, Charles Abraham, was promoting his own plan with the city board to extend township police jurisdiction to include the city of Montrose as well as the surrounding township. Agnes Johnson, Sarah Leonard's mother, was a member of the City Council and opposed Abraham's plan. Abraham asked Sarah to lobby her mother in support of the plan. In return, he offered, Auto Works could continue to tow for the Township. When Sarah refused, Auto Works lost its business with the Township. Sarah sued the Township and Chief Abraham in Genesee County Circuit Court under 42 U.S.C. § 1983 for violating her First Amendment rights. The case was removed to federal court and settled in February 2003. Leonard v. Montrose, No. 02-71084 (E.D.Mich. Feb. 11, 2003) (stipulation dismissing case). As a result of the lawsuit, according to Leonard, Chief Abraham hated him and his wife.
4
Before the settlement, on October 15, 2002, Thomas, Sarah, and their child attended a Township Board meeting. Officer Robinson testified that he was ordered by Chief Abraham to attend the meeting. Thomas Leonard believes that Abraham ordered Robinson to attend so that he might arrest Sarah in retaliation for her suit against him. Much of the meeting was recorded on videotape. When he arrived, Robinson took his seat at the back of the meeting hall because he "do[esn't] really like anyone behind [him]." Near the beginning of the meeting, Robinson was asked by another attendee why he, a police officer, was present. Robinson lied in response—he did not disclose that the Chief had ordered him to attend. Instead, he said, "I'd like to see what's going on."
5
Later in the meeting, during the portion known as Citizen Time, Sarah addressed the council about the actions the Township had taken that had affected her business: Auto Works was not selected for several police car repair contracts, even though it was the low bidder, and Auto Works was no longer called to tow wrecked municipal vehicles. When she finished, Thomas Leonard was recognized by the Township Supervisor, Don Papineau. Thomas arose and spoke:
6
LEONARD: It's not right and you guys know it. We want an answer. We're sick and tired of getting screwed. You guys are screwing us and we know it. We're sitting, the attorneys are sitting here, he hasn't read about it, nobody knows nothing about it. I'm sick of it.
7
PAPINEAU: I, I disagree that we screwed Leonard's [Auto Works] or—
8
LEONARD: You do? Do it right now.
9
PAPINEAU: Yes, sir, I do.
LEONARD: (inaudible)
10
PAPINEAU: I disagree with that.
11
LEONARD: Well, that's good. That's why you're in a God damn lawsuit —
12
Thomas then sat down. After he had taken his seat, Papineau said, "Hey, do not use the Lord's name in vain." Leonard responded, "I'll do whatever I want, Don, just like you." At that point, Officer Robinson entered the conversation:
ROBINSON: (inaudible)
13
LEONARD: You stay out of it. I'm not talking to you.
ROBINSON: (inaudible)
14
LEONARD: No, you come in here, you come here —
15
ROBINSON: No, I come here as a police officer.
16
LEONARD: No, you didn't. Don't give me a hard time.
17
ROBINSON: If I'm going to (inaudible) I'm going to take you with me.
18
LEONARD: I'm ready to go, so, let's go.
19
Robinson took Leonard outside the meeting room and placed him under arrest. Leonard was transported to the police station and charged with violations of Michigan Compiled Laws §§ 750.167 (disorderly person) and 750.337 (obscenity). He was released after a one-hour detention. One month later the citation was voided and dismissed.
20
On June 6, 2003, Leonard filed this action against Robinson in his personal capacity in the United States District Court for the Eastern District of Michigan, alleging that Robinson, under color of law, violated his Fourth Amendment right to be free of unreasonable seizure. The complain also raised three state law torts: battery, false arrest, and false imprisonment. Robinson filed a motion for summary judgment on November 20, 2003. He argued that he was entitled to qualified immunity on the constitutional allegations and that the state law claims must be dismissed because the arrest was supported by probable cause. To bolster this claim, Robinson cited two additional Michigan statutes that Leonard may have violated, Michigan Compiled Laws §§ 750.103 (cursing and swearing) and 750.170 (disturbance of lawful meetings). Leonard filed a response to the motion, defending his claims under a First Amendment retaliation theory and generally asserting the same grounds he does here on appeal.
21
On May 4, 2005, the district court granted the motion for summary judgment and dismissed the case. Leonard v. Robinson, No. 03-72199, slip op. at 26 (E.D.Mich.) [hereinafter D. Ct. Op.]. The district court held that Robinson did not violate the Fourth Amendment because he had probable cause to arrest Leonard. Id. at 7. The court declined to exercise supplemental jurisdiction over the state law claims. D. Ct. Op. at 27 n. 17. The court found that even though Michigan Compiled Laws § 750.337 (criminalizing indecent language in the presence of women or children) had been invalidated by the Michigan Supreme Court, other statutes, criminalizing conduct for which Leonard had not been charged, supported the arrest, viz., §§ 750.103 (swearing), 750.170 (disturbing a meeting), and 750.167 (disorderly person). Therefore, based upon these statutes, Robinson had probable cause to arrest Leonard because he had violated the plain language of those statutes and Robinson was "to enforce laws until and unless they are declared unconstitutional." D. Ct. Op. at 12. See also Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (holding that an officer's subjective reason for making an arrest need not include the criminal offense that later establishes probable cause).
22
The district court denied Leonard's First Amendment retaliation claim by holding that there was no "causal connection between Plaintiff's protected speech and his arrest." D. Ct. Op. at 25. The court held that our preced | {
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FILED
NOT FOR PUBLICATION
NOV 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANINE BUELL, No. 14-35874
Plaintiff-Appellant, D.C. No. 6:13-cv-01794-AA
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann Aiken, Chief District Judge, Presiding
Submitted November 22, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Janine Buell appeals the district court’s affirmance of the Commissioner of
Social Security’s denial of her application for disability insurance benefits under
Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d
872, 875 (9th Cir. 2016), and we reverse and remand for further proceedings.
The administrative law judge (“ALJ”) did not support with substantial
evidence his finding under Step Two of the sequential analysis that the
constellation of Buell’s fibromyalgia symptoms failed to amount to a severe
medically determinable impairment (“MDI”). The ALJ found that the medical
evidence in the record (1) did not fulfill the American College of Rheumatology’s
(“ACR’s”) diagnostic criteria for fibromyalgia, and (2) that there was no evidence
of a proper tender point test. However, examining physician Dr. Nolan determined
that Buell suffered from fibromyalgia based on a clinical finding that she exhibited
fourteen tender points, three more than necessary to support his opinion. He
located bilateral “local tenderness” involving the mid trapezius and scalene areas
(two points each), the infrascapular area (two points), the intercostal area (two
points), the lateral epicondyles (two points), the trochanteric area (two points), and
the sternocleidomastoid muscle (two points), for a total of fourteen points. This
evidence, combined with other medical evidence of record indicating Buell’s
history of widespread pain and that other disorders that could cause similar
symptoms had been excluded, conform to the ACR’s diagnostic requirements. See
2
SSR 12-2P, 2012 WL 3104869, at *2-3 (July 25, 2012) (summarizing ACR
guidelines for diagnosing fibromyalgia).
The ALJ stated in support of his decision that Dr. Nolan noted “a number of
positive Waddell’s signs,” which may indicate non-organic sources of back pain.
The ALJ relied on this information to discount Dr. Nolan’s opinion. However, Dr.
Nolan’s exam identified just two Waddell’s signs. Only a finding of three or more
is considered “clinically significant,” such that these signs can weigh against a
diagnosis of fibromyalgia. See Gordon Waddell et al., Nonorganic Physical Signs
in Low-Back Pain, 5 Spine 117, 118 (Mar.-Apr. 1980); accord Reinertson v.
Barnhart, 127 F. App’x. 285, 289 (9th Cir. 2005). As a result, this was not a clear
and convincing reason supported by substantial evidence for discounting Dr.
Nolan’s diagnosis. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1164 (9th Cir. 2008).
The ALJ also did not afford Dr. Nolan’s fibromyalgia diagnosis1 weight
because the diagnosis was made based upon Buell’s self-reported symptoms and
responses, and the ALJ found Buell’s description of her symptoms was not fully
credible. However, fibromyalgia “is diagnosed entirely on the basis of patients’
1
We do not accept the Commissioner’s suggestion that Dr. Nolan’s opinion
is less than a diagnosis.
3
reports of pain and other symptoms.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th
Cir. 2004). Therefore, Dr. Nolan appropriately relied upon Buell’s reports in
diagnosing Buell with fibromyalgia, and the fact that he did so is not a clear and
convincing reason for discrediting his diagnosis. See Carmickle, 533 F.3d at 1164.
Moreover, the ALJ arrived at his adverse credibility finding after first
determining at Step Two that Buell did not have a fibromyalgia-related severe
MDI. If the ALJ had in front of him a valid diagnosis of fibromyalgia, it stands to
reason that Buell’s symptoms and behavior would have appeared in a different and
more favorable light. Accordingly, we vacate the ALJ’s adverse credibility finding
without prejudice to revisiting this issue on remand.
The ALJ’s unsupported finding at Step Two does not amount to harmless
error because it affected the ALJ’s determinations in subsequent steps of the
sequential analysis and may have influenced the ultimate determination of Buell’s
nondisability status. Under Step Three, the ALJ found Buell’s impairments did not
meet or equal a listed impairment. Because the ALJ improperly found Buell’s
fibromyalgia was not a severe MDI, he also did not analyze under Step Three
whether Buell’s fibromyalgia, coupled with other impairments, medically equaled
a listed impairment. See SSR 12-2P, 2012 WL 3104869, at *6 (explaining
fibromyalgia is not a listed impairment, and so ALJs determine whether it equals a
4
listed impairment). Thus, the ALJ’s error in not supporting with substantial
evidence his finding that Buell’s fibromyalgia did not constitute a MDI was not
“inconsequential to the ultimate nondisability determination” and, as a result, was
not harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
The ALJ’s error at Step Two may have affected the Residual Functioning
Capacity (“RFC”) analysis as well. If the ALJ had properly analyzed the
fibromyalgia-related evidence, it may have been necessary for him to examine,
under Step Three, whether Buell’s fibromyalgia medically equaled a listed
impairment. In turn, if the ALJ had found Buell’s fibromyalgia equaled a listed
impairment, inquiry into Buell’s RFC would have been superfluous. See Kennedy
v. Colvin, 738 F.3d 1172, 1174-75 (9th Cir. 2013) (explaining that if the ALJ finds
a claimant’s impairments meet or equal a listed impairment under Step Three, “the
claimant is considered disabled and benefits are awarded, ending the inquiry”).
Because the ALJ’s error may have influenced the outcome of the case by leading
the ALJ to proceed unnecessarily to Step Four, it was not harmless. See Molina,
674 F.3d at 1115.
Buell does not satisfy the credit-as-true rule, which requires that the record
already be fully developed with “no outstanding issues to be resolved,” as the issue
5
of evaluating Buell’s fibromyalgia evidence remains. See Dominguez v. Colvin,
808 F.3d 403, 407 (9th Cir. 2015).
REVERSED AND REMANDED.
6
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187 B.R. 676 (1995)
In re Ronald Arthur YENSEN, fdba Dirty Shame Saloon, fdba C & R Logging, Debtor.
Bankruptcy No. 95-00466.
United States Bankruptcy Court, D. Idaho.
July 17, 1995.
*677 John H. Krommenhoek, Trustee, Boise, ID.
Randal J. French, Boise, ID, for Debtor.
SUMMARY ORDER
ALFRED C. HAGAN, Bankruptcy Judge.
Presently before the Court is the Chapter 13 Trustee's motion to dismiss.
The debtor, Ronald Arthur Yensen's previous Chapter 13 proceeding[1] was dismissed in February of 1995 for failure to attend the § 341 meeting of creditors. The debtor testified at the hearing held July 10, 1995 that he deliberately chose not to attend because he was afraid he would be arrested at the meeting on state criminal charges. The debtor filed the petition is the present case on February 23, 1995.
DISCUSSION
Code section 109(g)(1) provides:
(g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if
(1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case;. . . .
11 U.S.C. § 109(g)(1).
Failure to attend a section 341 meeting is "failure to abide by a court order" within the meaning of § 109(g). In re Basile, 142 B.R. 931, 932 (Bankr.D.Idaho 1992); In re Armwood, 175 B.R. 779 (Bankr.N.D.Ga. 1994); In re Pappalardo, 109 B.R. 622, 625 (Bankr.S.D.N.Y.1990). The burden of proof is on the debtor to show the failure to abide by a court order was not "willful." In re Huerta, 137 B.R. 356, 375 (Bankr.C.D.Cal. 1992).
The term "willful" as used within the meaning of 11 U.S.C. § 109(g)(1) means deliberate or intentional rather than accidental or beyond the debtor's control.
In re Pappalardo, 109 B.R. at 625. See also In re Basile, 142 B.R. at 932 (absent opportunity to cross-examine the debtors the debtors' affidavit explaining that they failed to attend the 341 meeting because they were confused about the time of the meeting was insufficient to prove the debtors' failure was not "willful").
Here the debtor's only excuse for his failure to attend the hearing is that he was afraid he might be lawfully arrested. If the debtor had been arrested before the meeting, *678 that would have been a circumstance beyond the debtor's control. However, fear (even legitimate fear) of arrest is not valid excuse for failure to abide by court orders. Accordingly, the Court concludes the debtor's failure to attend the hearing was "willful". Therefore, the debtor is not eligible for relief under title 11.
Accordingly, it is hereby,
ORDERED:
The trustee's motion to dismiss is granted and the case is DISMISSED.
NOTES
[1] In re Yensen, 94-03151.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 17 2015, 6:28 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristina J. Jacobucci Gregory F. Zoeller
Newby, Lewis, Kaminski & Jones, LLP Attorney General of Indiana
La Porte, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marzano Shelly, March 17, 2015
Appellant-Defendant, Court of Appeals Case No.
46A03-1404-CR-133
v. Appeal from the La Porte Superior
Court.
The Honorable Kathleen B. Lang,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 46D01-1201-MR-31
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 1 of 25
[1] Marzano Shelly appeals his convictions for Murder, 1 a felony, Felony Murder,2
a felony, Robbery,3 a class A felony, and Serious Violent Felon in Possession of
a Firearm,4 a class B felony. Shelly raises a number of issues, including whether
his convictions violate the constitutional prohibition against double jeopardy.
Finding that they do, we reverse and order the trial court to vacate Shelly’s
convictions for felony murder and class A felony robbery. On remand, the trial
court is instructed to enter judgment of conviction on class C felony robbery
and revise Shelly’s sentence accordingly. We affirm the judgment of the trial
court as to all other issues raised.
Facts
[2] In 2012, seventy-three-year-old Charles Harper lived in a house in Michigan
City with his friend, Vincent Fayson. On January 19, 2012, Shelly arrived at
Harper’s house and asked Fayson if Harper was available. Harper asked Shelly
to come inside and gave Fayson some money so that he could leave the house
and go out with his friends. Fayson left the house sometime around eight
o’clock at night.
1
Ind. Code § 35-42-1-1(1).
2
I.C. § 35-42-1-1(2).
3
I.C. § 35-42-5-1.
4
Ind. Code § 35-47-4-5.
Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 2 of 25
[3] Around 10:30 p.m., Fayson, still out with his friends, called Harper and
received no answer. When Fayson returned to Harper’s house later that night,
Harper’s truck was gone, but the lights and television were still on and the door
to the house was unlocked. Fayson entered the house and noticed that a chair
was propped underneath the doorknob to the kitchen door. Fayson removed
the chair, opened the door, and found Harper lying in a pool of blood.
[4] Harper had been shot five times, including once in the back of the head and
once in the face. Fayson contacted the police and informed them that Shelly
was the last person he had seen with Harper. Later that evening, officers
discovered Harper’s truck parked at an apartment complex. The next morning,
officers knocked on the door of an apartment at the complex belonging to Doris
Parr, who invited them inside. The officers soon discovered Shelly hiding in
the furnace room and arrested him.
[5] Officers then spoke with a woman who was in Parr’s apartment when Shelly
was arrested. She informed them that Shelly had been carrying a twelve-pack
box of Icehouse beer and that he had attempted to hide the box when police
arrived. After Parr consented to a search of her apartment, the officers found
the Icehouse box hidden underneath Shelly’s jacket in the furnace room. They
searched the box and found, among other things, Harper’s wallet, keys, two
handguns, and ammunition.
[6] The State charged Shelly with murder, felony murder, class A felony robbery,
and class B felony serious violent felon in possession of a firearm. The State
Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 3 of 25
later requested an habitual offender sentence enhancement. Shelly filed a
motion to suppress the evidence found inside the Icehouse box, which the trial
court denied. Shelly also filed a motion asking the trial court to declare Jury
Rule 20(a)(8), which allows jurors and alternates to discuss the evidence
amongst themselves during recesses prior to the commencement of
deliberations, unconstitutional. The trial court denied this motion as well.
[7] During the jury selection process, one of the prospective jurors, Gorski,
informed the trial court that he believed one of Shelly’s tattoos signified that he
had previously murdered someone. Gorski said that he had shared these
thoughts with other prospective jurors.
[8] Shelly moved for a mistrial. The trial court denied the motion, finding that any
taint could be cured by individually questioning all of the prospective jurors.
When questioned, only two prospective jurors indicated that they had discussed
Shelly’s tattoo with Gorski. Both prospective jurors, along with Gorski, were
dismissed. No other prospective juror indicated that they had participated in or
overheard such discussions and the trial court admonished all that remained
that they must not speak about the case with anyone.
[9] Following jury selection, Shelly moved to discharge the jury panel, alleging that
the prosecutor had made statements that improperly informed the jury of the
facts of the case, misinformed the jury as to the elements of the crimes charged,
and improperly commented upon Shelly’s exercise of his right against self-
incrimination. The trial court denied this motion as well.
Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 4 of 25
[10] On August 12, 2013, Shelly was tried before a jury. At the close of evidence,
Shelly moved for a mistrial, alleging that the State had failed to disclose
evidence of Harper’s past criminal activity, about which Shelly had just learned.
The trial court denied the motion, finding that there was not a reasonable
probability that the evidence would have affected the outcome of the trial. The
trial court also denied Shelly’s request to instruct the jury on involuntary
manslaughter.
[11] The jury found Shelly guilty on all counts, and the trial court later found him to
be an habitual offender. The trial court merged Shelly’s conviction for felony
murder with his conviction for murder. Shelly was sentenced to sixty-five years
for the murder conviction, thirty years for the class A felony robbery conviction,
ten years for the class B felony violent felon in possession of a firearm
conviction, and thirty years for the habitual offender finding. With the
exception of the class B felony violent felon in possession of a firearm sentence,
which was to be served concurrently to the murder sentence, the trial court
ordered all sentences to be served consecutively, resulting in a total executed
sentence of 125 years. Shelly now appeals.
Discussion and Decision
I. Double Jeopardy
[12] Shelly claims that the trial court has placed him in double jeopardy by entering
judgments of conviction for murder, felony murder, and class A felony robbery.
Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 5 of 25
Article 1, Section 14 of the Indiana Constitution provides that “[n]o person
shall be put in jeopardy twice for the same offense.”
[13] Shelly first argues that the trial court placed him in double jeopardy when it
entered judgments of conviction for both murder and felony murder. Although
the trial court merged the counts, Shelly points out that “[a] trial court’s act of
merging, without also vacating the conviction, is not sufficient to cure a double
jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008). | {
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Charmain T. Willis,
Petitioner Below, Petitioner FILED
August 31, 2015
vs) No. 14-0445 (Fayette County 13-C-268) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Lori Nohe, Warden, Lakin
Correctional Center, Respondent Below,
Respondent
MEMORANDUM DECISION
Petitioner Charmain T. Willis, by counsel Brandon S. Steele, appeals the Circuit Court of
Fayette County’s December 30, 2013, order denying her petition for post-conviction habeas
corpus relief.1 Respondent warden, by counsel Shannon Frederick Kiser, filed a response in
support of the circuit court’s order. On appeal, petitioner asserts that the circuit court erred in
denying her habeas petition because (1) her 2011 guilty plea was “unlawfully induced” where
her counsel failed to obtain an independent chemical test of the alleged controlled substance; (2)
her 2009 trial counsel was constitutionally ineffective for several alleged deficiencies both before
and during trial;2 (3) “there were no African Americans on the jury, and . . . the State failed to
disclose favorable evidence”; (4) the circuit court made racially charged comments at petitioner’s
sentencing hearing on January 17, 2012; and (5) her sentence was constitutionally excessive or
more severe than expected.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In 2008, petitioner was indicted on two counts of delivery of a controlled substance in
violation of West Virginia Code § 60A-4-401. Prior to trial, in a jury questionnaire sent to
potential jurors, Juror 16 indicated that he was African American. The jury trial commenced in
2009, and, at the conclusion of jury vior dire, the State used a peremptory strike to remove Juror
1
Petitioner’s counsel filed a brief in this matter pursuant to Anders v. California, 386 U.S.
738, (1967).
2
As explained below, a jury found petitioner guilty of two felony offenses in 2009, and
she pled guilty to a separate felony offense in 2011. Both the 2009 and 2011 convictions are at
issue in this appeal.
1
16 from the jury panel. Petitioner challenged that strike on Batson grounds.3 In articulating race-
neutral grounds for the strike, the State explained that Juror 16 had voted to acquit another
criminal defendant weeks earlier and that an officer involved in petitioner’s case had made a
controlled drug purchase from Juror 16 within the last year. The circuit court denied petitioner’s
Batson challenge, and Juror 16 was stricken from the jury panel. During the State’s case-in-chief,
a confidential informant (“CI”) claimed that police “already had eight other purchases on
[petitioner].” The circuit court sustained petitioner’s objection to the statement and directed the
jury to disregard it. At the conclusion of the State’s case-in-chief, petitioner moved for judgment
of acquittal or, in the alternative, a mistrial based, in part, on the CI’s statement. The circuit court
denied the motions. The jury found petitioner guilty on both counts.
In April of 2009, the circuit court sentenced petitioner to two consecutive prison terms of
one to fifteen years, but it suspended that sentence and imposed a three-year probationary term.
Only three months later, in July of 2009, petitioner’s probation officer filed a notice of probation
revocation alleging multiple violations of the alcohol and drug conditions of her probation.
Petitioner admitted to the allegation that she used cocaine, but, nevertheless, the circuit court
permitted her to return to probation with no additional terms or conditions.
In 2011, petitioner was arrested for delivery of a controlled substance. Petitioner’s
probation officer filed a second notice of probation revocation based on that arrest, and, in
December of 2011, the circuit court held a joint plea and probation revocation hearing. Pursuant
to her plea agreement with the State, petitioner admitted that she violated her probation as
alleged, and she pled guilty to delivery of a controlled substance, by information.4 During her
plea colloquy with the circuit court, petitioner stated that she understood the consequences of her
guilty plea and the rights she was waiving by pleading guilty, and, with that understanding and
with advice of counsel, she still wished to plead guilty. Her signed plea agreement stated, in
relevent part, that
[b]efore being called upon to enter any plea in this case, I fully understand the
following . . . [t]hat I have a right to challenge in the [t]rial [c]ourt and on appeal
all pre-trial proceedings, but by pleading guilty I waive all pre-trial defects with
regards to, among others, my arrest, the gathering of evidence against me and
prior confessions, as well as, all non-jurisdictional defects in this criminal
proceeding.
She also signed a waiver of rights statement in which she stated that her trial counsel “to [her]
complete and total satisfaction, represented, advised and consulted with [her][.]” The circuit
3
See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that prosecution’s purposeful
exclusion of members of jury panel due to race is constitutional violation where defendant
establishes prima facie case of the same and prosecution cannot articulate race-neutral
explanation for the exclusion).
4
Petitioner waived her right to a grand jury indictment in this matter, and the parties
proceeded by information. The State dismissed the felony offense as charged in September of
2011.
2
court accepted petitioner’s admission that she violated the conditions of her probation and
accepted her guilty plea to the felony of delivery of a controlled substance.
In January of 2012, the circuit court held a joint sentencing and dispositional probation
revocation hearing. For petitioner’s probation violation, the circuit court imposed her original
2009 sentence of two terms of one to fifteen years in prison. For the 2011 conviction, the circuit
court sentenced her to a third term of one to fifteen years in prison. All terms were ordered to run
consecutive to one another. Petitioner did not directly appeal her convictions or sentences.
In October of 2013, petitioner filed a pro se habeas petition asserting three grounds: (1)
“unlawfully induced” plea in 2011 because her counsel failed to obtain an independent chemical
test of the alleged controlled substance; (2) ineffective assistance of trial counsel in 2009 due to
several alleged deficiencies both before and during trial; and (3) “there were no African
Americans on the jury, and . . . the State failed to disclose favorable evidence[.]” By order
entered on December 30, 2013, the circuit court denied her habeas petition. The circuit court
explained that petitioner’s grounds were either waived and/or lacked merit. This appeal followed.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:
[i]n reviewing challenges to the findings and conclusions of the circuit
court in a habeas corpus action, we apply a three-prong standard of review. We
review the final order and the ultimate disposition under an abuse of discretion
standard; the underlying factual findings under a clearly erroneous standard; and
questions of law are subject to a de novo review.
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009) (internal
citations omitted).
On appeal, petitioner assigns error to allegedly “racially charged” comments made by the
circuit court at her sentencing hearing and to the amount of prison time she received as her
sentence for these offenses. However, in her argument to this Court, petitioner failed to include
“citations that pinpoint when and how the issues in the assignments of error were presented to
the lower tribunal.” W.Va. R. App. P. 10(c)(7). This Court has often held that it will not consider
issues raised for the first time on appeal. See In re Michael Ray T., 206 W.Va. 434, 444, 525
S.E.2d 315, 325 (1999) (stating that “a constant refrain of this Court is that we will not consider,
for the first time on appeal, a matter that has not been determined by the lower court from which
the appeal has been taken.”); see also Syl. Pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334
(1971) (holding that “this Court will not decide nonjurisdictional questions which were not
considered and decided by the court from which the appeal has been taken | {
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Case: 12-10149 Document: 00512307651 Page: 1 Date Filed: 07/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2013
No. 12-10149
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICKY LYNN COLE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:09-CV-186
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Following a jury trial, Ricky Lynn Cole, federal prisoner # 31788-177, was
convicted of 107 counts of interstate transportation of child pornography,
distribution of child obscenity, transportation of obscene matter, and aiding
and abetting and was sentenced to a total 365-month term of imprisonment.
On direct appeal, this court vacated and remanded for clarification of the
sentence, and on remand, the district court reimposed the original 365-month
*
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: 12-10149 Document: 00512307651 Page: 2 Date Filed: 07/15/2013
No. 12-10149
sentence, amending the judgment by removing the double terms of
imprisonment originally imposed on count 98. This court affirmed. United
States v. Cole, 281 F. App’x 277, 278 (5th Cir. 2008). Cole then filed a motion
under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence on various
grounds, including ineffective assistance of counsel. The district court denied
the motion and denied a certificate of appealability (COA). A judge of this
court granted Cole a COA only on the issue whether the district court abused
its discretion by denying, without conducting an evidentiary hearing, Cole’s
claim that trial counsel rendered ineffective assistance in failing to object in the
trial court to substantial government interference with defense witness Tina
Cox-Cole.
In addition to arguing the issue upon which COA was granted, Cole
asserts in his appellate brief that the Government engaged in misconduct with
respect to other witnesses and that his trial counsel was ineffective in failing
to object in the trial court to government interference with witnesses besides
Cox-Cole. We have jurisdiction to address only the issue specified in the order
granting Cole a COA. See United States v. Daniels, 588 F.3d 835, 836 n.1 (5th
Cir. 2009). Thus, to the extent that Cole raises other issues, we do not address
them. See id.
In an appeal from the denial of a § 2255 motion, we review a district
court’s factual findings for clear error and its legal conclusions de novo. United
States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). We review the district
court’s decision not to grant an evidentiary hearing for abuse of discretion. Id.;
see also United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). The
district court should conduct an evidentiary hearing only if the defendant
produces “independent indicia of the likely merit of [his] allegations.” United
States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (internal quotation marks
2
Case: 12-10149 Document: 00512307651 Page: 3 Date Filed: 07/15/2013
No. 12-10149
and citation omitted). “Once such independent evidence is presented, ‘[a]
motion brought under . . . § 2255 can be denied without a hearing only if the
motion, files, and records of the case conclusively show that the prisoner is
entitled to no relief.’” Cavitt, 550 F.3d at 442 (quoting United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)); see § 2255(b).
The district court denied Cole’s claim that trial counsel was ineffective
in failing to object to prosecutorial misconduct on the ground that Cole had
failed to demonstrate any misconduct by the Government warranting an
objection by trial counsel. Speculative allegations or conclusional assertions do
not entitle a defendant to an evidentiary hearing. See, e.g., Edwards, 442 F.3d
at 264; United States v. Auten, 632 F.2d 478, 480 (5th Cir. 1980). By contrast,
Cole’s allegations are not speculative or unsupported by evidence but are
supported by the affidavits of Cox-Cole and Lesley Androes. See, e.g., United
States v. Whittington, 783 F.2d 1210, 1219 (5th Cir. 1986); United States v.
Hammond, 598 F.2d 1008, 1012-13 (5th Cir. 1979). The record does not contain
any “sworn record testimony from counsel explaining the strategy behind his
decision” not to raise the issue of substantial interference with Cox-Cole in the
trial court or addressing whether counsel considered raising the issue. Cavitt,
550 F.3d at 441; see Strickland v. Washington, 466 U.S. 668, 687 (1984). Based
on the information known to counsel at the time of trial, the decision not to
raise the issue of substantial government interference with Cox-Cole may well
have been a reasonable one, but without additional evidence, we cannot say
that “the motion and the files and records of the case conclusively show that
[Cole] is entitled to no relief.” § 2255(b); see also Cavitt, 550 F.3d at 442.
Accordingly, we VACATE the district court’s order dismissing Cole’s
§ 2255 motion only with respect to Cole’s claim that counsel was ineffective in
failing to object in the trial court to substantial government interference with
3
Case: 12-10149 Document: 00512307651 Page: 4 Date Filed: 07/15/2013
No. 12-10149
Tina Cox-Cole and REMAND the case to the district court for further
proceedings, to include an evidentiary hearing. We express no view on the
merits of Cole’s claim.
VACATED IN PART AND REMANDED FOR FURTHER
PROCEEDINGS.
4
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No. 2--06--0999 Filed: 7-5-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re RANDALL M., a Minor ) Appeal from the Circuit Court
) of Lake County.
)
) Nos. 05--JD--264
) 06--JD--498
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Randall M., ) Raymond D. Collins,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE GROMETER delivered the opinion of the court:
This appeal presents two issues involving section 5--410 of the Juvenile Court Act of 1987
(Act) (705 ILCS 405/5--410 (West 2004)). The first issue is whether section 5--410 authorizes the
automatic transfer of a minor with pending delinquency matters from a juvenile detention facility
to an adult detention facility upon the minor's seventeenth birthday. The second issue is whether,
under section 5--410, a minor 17 years of age or older with pending delinquency matters may be
housed in the general population of a county jail.
On April 20, 2005, a petition for adjudication of wardship was filed in the circuit court of
Lake County, as case number 05--JD--264. The petition alleged that the minor, Randall M., born
on October 2, 1989, was delinquent in that he had committed the offense of domestic battery (720
ILCS 5/12--3.2(a)(2) (West 2004)). On May 18, 2005, Randall admitted to the offense and was
No. 2--06--0999
placed on probation for a period of one year. For reasons not relevant here, the period of probation
was later extended until November 8, 2006.
On September 26, 2006, the State filed a petition for adjudication of wardship as case number
06--JD--498 and a corresponding petition to revoke Randall's probation in case number 05--JD--264.
With respect to the former petition, the State alleged that Randall had possessed a firearm without
the requisite firearm owner's identification (FOID) card (430 ILCS 65/14(c)(3) (West 2004)) and that
he had committed the offense of unlawful use of a weapon (720 ILCS 5/24--1(a)(2) (West 2004)).
At the detention hearing held later the same day, the trial court found "sufficient probable cause" to
believe that Randall was delinquent. The court further determined that it was a matter of "immediate
and urgent necessity" for the protection of both Randall and the community that Randall be held in
"secure detention." See 705 ILCS 405/5--410(2)(a) (West 2004). Pursuant to a local court rule, a
minor determined to require "secure detention" is lodged in the Hulse Detention Center unless
otherwise ordered by a juvenile court judge. 19th Judicial Cir. Ct. R. 9.13 (eff. January 2, 1997).
At the conclusion of the detention hearing, the trial court asked about the date of Randall's birthday,
noting that he would be turning 17 in October. The assistant State's Attorney responded that Randall
would turn 17 on the following Monday. The court then stated, "Monday? Monday you will be
transferred to Lake County."
On September 29, 2006, Randall's attorney filed an emergency motion to enjoin the
automatic transfer of Randall from the Hulse Detention Center to the Lake County jail. The motion
averred that Randall would turn 17 years old on October 2, 2006, and that "[b]ased upon information
and belief from past practices, because the minor will have attained the age of 17 the Juvenile
Detention Center will automatically transfer the minor to the custody of the Lake County Sheriff,
-2-
No. 2--06--0999
who will then incarcerate the Minor [sic] within the general population of the jail with adult arrestees
and criminals." The matter proceeded to a hearing on October 2, 2006.
At the hearing on the emergency motion, Randall's attorney told the court that Randall was
turning 17 that day and that based on what counsel had "seen throughout [his] career and years in
juvenile court they're going to move [Randall] to the Lake County Jail." Randall's attorney further
asserted that there was no basis in law for the transfer to occur. The State informed the court of its
belief that the court was "within [its] rights to transfer [Randall] who *** turns 17 today as we have
been doing in the past to keep him separate now from the juveniles that are out at the Hulse
Detention Center." Ultimately, the trial court denied the emergency motion, stating:
"Pursuant to 705 ILCS Section 405/5--410, Subsection V, minors under the age of
17 shall be kept separate from confined adults and may not at any time be kept in the cell,
room or yard with adults confined pursuant to criminal law. Persons 17 years of age and
older who have a petition of delinquency filed against them shall be confined in an adult
detention facility.
In making a determination whether to confine a person 17 years of age or older who
has a petition of delinquency filed against the person these factors have to be considered, the
age of the person. He's obviously 17 years old today and any--any previous delinquent
history. In looking at the past socials that have been filed on the two cases he has a domestic
battery from '05 and he has a criminal trespass to real property in '05 and he has unlawful
possession of a stolen motor vehicle from '05 and then the present pending petitions against
him.
-3-
No. 2--06--0999
Based on those two--the other two factors, any previous neglect or abuse history of
the person, which I don't think there is any, any mental health or education history of the
person, but based on the first two factors I am going to deny the motion of the public
defender's office and transfer--have the minor transferred to the Lake County Jail pursuant
to statute."
On October 10, 2006, Randall filed a petition for leave to appeal to this court (see 210 Ill.
2d R. 306(a)(5)) as well as a notice of interlocutory appeal. On November 7, 2006, this court
allowed Randall's petition for leave to appeal. During the pendency of this appeal, Randall admitted
to possessing a firearm without a FOID card (430 ILCS 65/14(c)(3) (West 2004)) and testified at his
sentencing hearing that while housed in the Lake County jail, he was "kept in population" with
"adults."
As noted, we are presented with two principal issues in this case. The first is whether section
5--410 of the Act (705 ILCS 405/5--410 (West 2004)) authorizes the automatic transfer of a minor
with pending delinquency matters from a juvenile detention facility to an adult detention facility
upon the minor's seventeenth birthday. The second is whether the same statute allows a minor 17
years of age or older with pending delinquency matters to be housed in the general population of a
county jail. Before turning to these matters, we must address the State's suggestion that this appeal
is moot. The State points out that Randall was sentenced subsequent to the date he filed his notice
of appeal and that he is no longer subject to the statutory provisions in question.
An issue becomes moot when an actual controversy no longer exists and the interests of the
parties no longer are in controversy. In re Dexter L., 334 Ill. App. 3d 557, 558 (2002). As a general
rule, a reviewing court will not decide moot or abstract questions. In re J.T., 221 Ill. 2d 338, 349
-4-
No. 2--06--0999
(2006). However, reviewing courts may examine an otherwise moot issue pursuant to the public-
interest exception. This exception applies if the following three criteria are present: (1) the question
is of a public nature; (2) an authoritative determination on the question will help guide public
officers in the performance of their duties; and (3) the question is likely to recur. In re Dru G., 369
Ill. App. 3d 650, 654 (2006). This case satisfies all three of the foregoing requirements. First, the
questions we are asked to address are undoubtedly of a public nature, as they deal in general with
the status and welfare of minors in detention and in particular with whether such minors may be
automatically transferred to an adult facility upon their seventeenth birthdays and housed within the
general population of a county jail. Second, we have found no cases interpreting the statutory
provisions at issue, and Randall has provided this | {
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718 S.E.2d 362 (2011)
STATE of North Carolina
v.
Thomas John STARR.
No. 64PA11.
Supreme Court of North Carolina.
December 9, 2011.
*363 Roy Cooper, Attorney General, by Karen A. Blum, Assistant Attorney General, for the State.
Thomas Reston Wilson, New Bern for defendant-appellant.
MARTIN, Justice.
This case presents the question of whether the trial court exercised its discretion in accordance with N.C.G.S. § 15A-1233(a) when it denied the jury's request to review the trial transcript. For the reasons stated herein, we modify and affirm the decision of the Court of Appeals finding no error in the trial court's denial of the jury's request.
*364 On 27 September 2007, members of the Wilmington Fire Department arrived at an apartment complex in response to a 911 call reporting water leaking into one of the units. Concerned that defendant, the upstairs resident, might need medical assistance, four firefighters and a police officer knocked loudly on his door and identified themselves. When there was no response from defendant's apartment, they forced entry with a Halligan tool. Firefighters Spruill, Lacewell, Chadwick, and Comer, along with the police officer, stood directly in front of defendant's door during this process. Spruill wedged the Halligan tool between the door and the jamb, while Chadwick hammered the tool with an axe to break the lock. As Chadwick hammered, Spruill, Lacewell, and he heard a "pop" sound. When Spruill pushed the door open, he heard a second "pop" just before entering the apartment. He then saw defendant standing about twelve feet away, pointing a gun at him. Defendant fired at Spruill, who quickly exited and shouted, "He's got a gun[!]" Chadwick also saw defendant pointing his gun and ducked out of the doorway just as another "pop" sounded. The police officer entered the apartment with his gun drawn and ordered defendant to drop his weapon. Defendant complied and was promptly arrested.
Defendant was charged with one count of assaulting a law enforcement officer with a firearm and four counts of assaulting a firefighter with a firearm. Defendant pleaded not guilty and the case proceeded to trial. Corporal Musacchio and three of the four firemen testified. The jury acquitted defendant of the charge of assaulting a law enforcement officer with a firearm, but convicted him of all four counts of assaulting a firefighter with a firearm. The trial court sentenced defendant to two consecutive active terms of nineteen to twenty-three months, suspended for thirty-six months with supervised probation.
Defendant filed a petition for writ of certiorari with the Court of Appeals on 26 August 2010. Among other things, defendant argued that the trial court erred in failing to follow the procedures of N.C.G.S. § 15A-1233 when it denied the jury's request to review Firefighter Spruill's testimony. The Court of Appeals stated that a "trial court properly exercises its discretion in denying the jury's request to review testimony when the court instructs the jurors to rely on their recollection of the evidence in reaching a verdict." State v. Starr, ___ N.C.App. ___, ___, 703 S.E.2d 876, 882 (2011) (citing State v. Harden, 344 N.C. 542, 563, 476 S.E.2d 658, 669 (1996), cert. denied, 520 U.S. 1147, 117 S.Ct. 1321, 137 L.Ed.2d 483 (1997), and State v. Corbett, 339 N.C. 313, 338, 451 S.E.2d 252, 265 (1994)). The court held that because the trial court instructed the jurors to rely on their recollection of the evidence, the trial court "properly exercised its discretion in denying the jury's request to review Firefighter Spruill's trial testimony." Id. at ___, 703 S.E.2d at 882 (citing State v. Lawrence, 352 N.C. 1, 27, 530 S.E.2d 807, 824 (2000), cert. denied, 531 U.S. 1083, 121 S.Ct. 789, 148 L.Ed.2d 684 (2001)). On 15 June 2011, we allowed defendant's petition for discretionary review on that issue.
Jury requests for review of evidence during deliberations are governed by section 15A-1233(a), which states:
If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.
N.C.G.S. § 15A-1233(a) (2009). This statutory provision is a codification of the common law rule that "the decision whether to grant or refuse the jury's request for a restatement of the evidence lies within the discretion of the trial court." State v. Ford, 297 N.C. 28, 30, 252 S.E.2d 717, 718 (1979) (citations omitted); see also State v. Ashe, 314 N.C. 28, 34-35, 331 S.E.2d 652, 656-57 (1985). Under this rule, the trial court "must exercise its discretion in determining whether to permit *365 requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue." Ashe, 314 N.C. at 34, 331 S.E.2d at 656.
When a trial court violates this statutory mandate by denying the jury's request to review the transcript "`upon the ground that the trial court has no power to grant the motion in its discretion, the ruling is reviewable,'" and the alleged error is preserved by law even when the defendant fails to object. State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999) (quoting State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 375-76 (1997)). "[T]here is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented." Id. (quoting Johnson, 346 N.C. at 124, 484 S.E.2d at 376 (quotation marks omitted)).
Here, after the jury retired to deliberate, the following exchange took place:
THE COURT: They've got a question. Let the record reflect that they have sent another note saying, "We are requesting the testimony of Marvin Spruill."
Of course, we don't have that. We don't have that capability and I thought if it was okay with you, since we're in the middle of jury selection in this one, that we would open the door without y'all being seen and let [the court reporter] take everything down and me just inform them to rely on their recollections. We don't have the modern day equipment to provide realtime transcript or something.
(NO VERBAL RESPONSE.)
(THE FOLLOWING TOOK PLACE AT THE JURY ROOM DOOR.)
THE COURT: Hey, freeze what you're doing right now. I have received this note, "We are requesting the testimony of Marvin Spruill." In North Carolina we don't have the capability of realtime transcripts so we cannot provide you with that. You are to rely on your recollection of the evidence that you have heard in your deliberations. That's my instruction to you. Okay. Thank you. [Emphasis added.]
When the trial court gives no reason for a ruling that must be discretionary, we presume on appeal that the court exercised its discretion. Johnson, 346 N.C. at 126, 484 S.E.2d at 376. "However, where the statements of the trial court show that the trial court did not exercise discretion, as is evident in the present case, the presumption is overcome, and the denial is deemed erroneous." Id. The trial court's statement "we don't have the capability ... so we cannot provide you with that" overcomes the presumption the court exercised its discretion.
A trial court's statement that it is unable to provide the transcript to the jury demonstrates the court's apparent belief that it lacks the discretion to comply with the request. Barrow, 350 N.C. at 646, 517 S.E.2d at 378. Because "[a] court does not exercise its discretion when it believes it has no discretion," State v. Maness, 363 N.C. 261, 278, 677 S.E.2d 796, 807 (2009) (citations omitted), cert. denied, ___ U.S. ___, 130 S.Ct. 2349, 176 L.Ed.2d 568 (2010), a response indicating the inability to provide a transcript constitutes erroneous failure to exercise discretion.
This Court has examined exchanges nearly identical to the exchange in this case and concluded that the trial court did not properly exercise its discretion in denying the jury's request to review the transcript. Those cases compel our decision in the present case. For example, the trial court did not exercise discretion when it responded: "[ | {
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859 F.Supp. 1168 (1994)
Wilma TIBBITTS, Plaintiff,
v.
VAN DEN BERGH FOODS COMPANY, a division of Conopco, Inc., a New York corporation, Defendants.
No. 92 C 1559.
United States District Court, N.D. Illinois, Eastern Division.
July 15, 1994.
*1169 Roger J. McFadden, Thomas J. Dillon, Tyrrel J. Penn, McFadden & Dillon, Chicago, IL, for plaintiff.
Ralph Andrew Morris, Brittain, Sledz, Morris & Slovak, Chicago, IL, Robert J. Kartholl, Jr., Van Den Bergh Foods Co., Lisle, IL, for defendants.
*1170 MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
Plaintiff Wilma Tibbitts ("Tibbitts") sues defendant Van Den Bergh Foods Company ("Van Den Bergh") for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq., alleging that Van Den Bergh willfully discriminated against her on the basis of age when it terminated her.[1] Van Den Bergh moves for summary judgment.
BACKGROUND
The parties have submitted the following facts as to which there is no genuine issue. Tibbitts was an employee of Durkee Foods in the accounting department at the Joliet, Illinois plantan edible oils manufacturing facilityfrom February 22, 1977, to December 5, 1988, at which time Van Den Bergh purchased certain of Durkee's assets including the Joliet plant. Defendant's Statement of Material Facts as to Which There is No Material Issue ("Defendant's Facts"), ¶¶ 6, 10-13[2]. Plaintiff continued to work at the Joliet plant, now under Van Den Bergh's control, from December 5, 1988, until her termination on October 22, 1990. Id., ¶ 7. At the time of her termination, Tibbitts held the position of Chief Accounting Clerk and was 60 years of age. Id., ¶¶ 5, 8.
In early 1990, Van Den Bergh undertook a staffing evaluation at the Joliet facility. Id., ¶ 15. Management determined that a reduction-in-force ("RIF") of ten employees should be implemented effective October, 1990. Id., ¶¶ 16, 17.
R. Bishop, Director of Cost Accounting, directed Robert Dudzik ("Dudzik") to evaluate the accounting/finance department at the Joliet facility and make recommendations for the elimination of jobs within that department. Id., ¶ 25. Dudzik was the Cost Controller of oils and was responsible for the financial reports for the margarine and oil business. He also assisted plant managers in the profitability of their own facilities. Id., ¶ 18. From 1984 to 1989, Dudzik was the Plant Controller at the Joliet facility. Id., ¶ 24.
Over the course of several weeks, in consultation with Bishop and R. Lundin (Joliet Plant Controller), Dudzik analyzed the duties of each accounting/finance position at the Joliet facility. Id., at ¶ 27. Dudzik prepared a detailed written evaluation of the job tasks of each position, id., ¶ 28, and submitted a written recommendation to Bishop recommending the elimination of the Senior Cost Accounting Clerk position (a position that was vacant as the result of a voluntary resignation). Id., ¶¶ 30, 31. Dudzik also recommended that, if necessary, certain duties of the Chief Accounting Clerk could be eliminated and the remaining duties could be split up amongst the other members of the department thereby eliminating that position. Id., ¶¶ 29-32. Bishop evaluated Dudzik's recommendations, concurred in them and passed them on to his supervisor D. Peffer who also concurred and passed them on to T. Stephens, Vice President, Finance and Administration. Id., ¶¶ 33-34. Subsequently, Dudzik was informed that the positions of Senior Cost Accounting Clerk and Chief Accounting Clerk would be eliminated and he was instructed to terminate Tibbitts which he *1171 did on October 22, 1990. Id., ¶¶ 35-37. During all relevant times, Dudzik was 37 years old. Id., ¶ 18.
Van Den Bergh maintained a company-wide management policy in connection with any non-union RIF, that an individual whose position is eliminated be terminated. Id., ¶ 38. A collective bargaining agreement covering union employees provided that more senior employees faced with layoff could displace (or "bump") less senior employees. Id., ¶¶ 39, 41. Tibbitts was a nonunion employee. Id., ¶ 40.
At the time of the RIF, Betty Damon was employed in the accounting department as the Accounts Payable Clerk. Ms. Damon, 60 years of age in October, 1990, did not lose her position as part of the RIF; however, she gave notice of her voluntary retirement on January 7, 1991, and retired effective January 18, 1991. Id., ¶¶ 48-53. On January 18, 1991, Tibbitts left two copies of a letter with a Joliet plant security guard concerning her interest in filling the position vacated by Damon. Id., ¶ 54. The security guard left one copy on the desk of Chris Cole, Human Resource Manager, and gave the second copy to V. Smoots, Human Resources Assistant (and Tibbitts' daughter), who placed the letter in the interoffice mail addressed to Dudzik. Id., at ¶¶ 55-57. Tibbitts never received any response to her letters. Id., ¶ 58. Damon's position was filled by a temporary employee, Mariann Buczyna (age 44), beginning January 14, 1991. Buczyna was made a permanent employee on March 11, 1991. Id., ¶¶ 60-61. Van Den Bergh's personnel policy prohibits the rehire of any former employee without the express permission of the Senior Vice President of Human Resources. Id., ¶ 59.
Van Den Bergh moves for summary judgment contending that there is no genuine issue of material fact as to whether age was a factor in Tibbitts' termination or as to whether Van Den Bergh's legitimate nondiscriminatory justification for terminating Tibbitts was a pretext.
DISCUSSION
Summary Judgment Standard
Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must view all evidence in a light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11; Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988). In determining whether a genuine issue exists, the court "must view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254, 106 S.Ct. at 2513. In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14.
I. Establishing Age Discrimination
The plaintiff's burden in an age discrimination action is to prove that he or she was discharged (or otherwise adversely treated in employment) as a result of his or her age. Age need not be the only factor motivating the adverse action, but it must be a determining factora "but for" cause; that is, "but for" age discrimination, the plaintiff would not have been treated adversely. Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir.1992); Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988); Ayala v. Mayfair Molded Prods. Corp., 831 F.2d 1314, 1318 *1172 (7th Cir.1987). The plaintiff may attempt to prove discrimination directly by presenting direct or circumstantial evidence that age was the determining factor in the employment action; or, the plaintiff may employ the indirect (or "burden-shifting") method of proof originally set out for Title VII actions in McDonnell Douglas Corp. v. | {
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FILED
NOT FOR PUBLICATION APR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ANISHA WASHINGTON, No. 10-17629
Plaintiff - Appellant, D.C. No. 2:10-cv-00186-FCD-
KJM
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM *
EDUCATION; CALIFORNIA
DEPARTMENT OF MENTAL HEALTH;
CALIFORNIA DEPARTMENT OF
SOCIAL SERVICES, Community Care
and Licensing Division; JACK
O'CONNELL, Superintendent of CA
Dept. of Education; STEPHEN W.
MAYBERG, Director of CA Dept. of
Mental Health; JOHN A. WAGNER,
Director of CA Dept. of Social Services,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Franµ C. Damrell, Senior District Judge, Presiding
Argued and Submitted December 7, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.**
Appellant Anisha Washington appeals the district court's dismissal of her
claims--brought under the Individuals with Disabilities Education Act ('IDEA')
and the Rehabilitation Act--for failure to exhaust administrative remedies. We
have jurisdiction pursuant to 28 U.S.C. y 1291, and we affirm.1
The district court concluded that Washington's failure to exhaust deprived
the court of subject matter jurisdiction. After that decision, our en banc court
overturned prior circuit precedent and held that the IDEA's exhaustion requirement
is not jurisdictional. Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir. 2011)
(en banc), cert. denied, 2012 WL 538336 (Feb. 21, 2012). But Payne made clear
that IDEA defendants could challenge claims for failure to exhaust in an
unenumerated motion to dismiss. 653 F.3d at 881. We may affirm on any ground
supported by the record, Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001), and we
**
The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for Northern Florida, sitting by designation.
1
Because the parties are familiar with the facts of this case, we recite them
only as necessary to explain our decision.
2
conclude that the district court properly dismissed the claims for failure to
exhaust.2
Washington settled her initial administrative due process complaint with
various school district and local agency defendants, who agreed to place her in a
residential treatment facility in Colorado. She voluntarily discharged herself from
the Colorado facility, and subsequently brought a complaint in federal district
court. Washington did not first avail herself of the IDEA's administrative
procedures, as required by 20 U.S.C. y 1415(l). Further, Washington has not
demonstrated that exhaustion would be futile or that any other exception to
exhaustion applies. Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1303-04
(9th Cir. 1992). She does not show that the administrative process cannot address
her claims--namely, whether she is entitled to in-state residential treatment.
AFFIRMED.
2
Dismissals of IDEA claims for failure to exhaust are without prejudice.
Kutasi v. Las Virgenes Unified School Dist., 494 F.3d 1162, 1170 (9th Cir. 2007).
3
FILED
APR 05 2012
Page 1 of 4
Washington v. California Department of Education 10-17629 MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
STAFFORD, District Judge, dissenting.
Because I do not agree that this case was appropriately dismissed for failure to
exhaust, I must respectfully dissent.
Washingtonùs underlying claim in this case is that the State of California has
failed to maµe in-state residential treatment available to emotionally-disturbed IDEA-
eligible students who, liµe Washington, are between the ages of 18 and 22.
According to the plaintiff, Californiaùs failure to maµe such services available to her
constitutes a violation of the IDEA. The plaintiffùs claim arises from a regulation
promulgated by the California Department of Social Services (þCDSSþ), 22 Cal. Code
Regs. y 84022(b)(2)(E), which requires California-certified residential facilities to
discharge students upon reaching age eighteen. The regulation is based upon
language in the California Health and Safety Code that prohibits the housing of minors
with adults. Washington asserts that þstudents ages eighteen through twenty-one are
regularly denied residential placements in the state of California based on these
licensing restrictions, even when required by their IEPs.þ
Washington has alleged that those local agencies most recently responsible for
her Individualized Education Program (þIEPþ) þacµnowledge that [she] needs to be
placed in a residential program in California . . . , [yet] it is impossible for the local
agencies to maµe such a placement because no such placement exists that is
authorized by the State of California.þ She challenges no other aspect of her IEP.
Washington raised the same claim in a 2009 administrative due process
complaint. In addition to naming the relevant local educational agencies as defendants
Page 2 of 4
in the administrative case, Washington named two state educational defendants, the
California Department of Education (þCDEþ) and the California Department of Mental
Health (þCDMHþ). The Office of Administrative Hearings (þOAHþ) quicµly dismissed
CDE from the case on the ground that CDE was not a þresponsible local educational
agencyþ within the meaning of the California Education Code. Washington then entered
into a settlement agreement with the local educational agencies, accepting the only
placement the local educational agencies were authorized to maµe--namely, an out-of-
state residential placement. She nonetheless continued to pursue her claim against
CDMH, arguing that the Stateùs failure to allow her local educational agencies to place
her in a California residential program violated the IDEA. After a two-day hearing, the
OAH dismissed CDMH, finding that CDMH had no responsibility for providing a free
appropriate public education to Washington. The OAH thus failed to rule on the
question of whether the State of California has a responsibility under the IDEA to ensure
that local educational agencies are authorized to place emotionally-disturbed IDEA-
eligible adult students such as Washington in California residential facilities.
After Washington filed her complaint in federal court, the defendants moved to
dismiss, arguing that the court lacµed jurisdiction based on Washingtonùs failure to
adequately plead exhaustion of administrative remedies. Relying on Blanchard v.
Morton Sch. Dist., 420 F.3d 918, 920-21 (9th Cir. 2005),1 the district court granted the
motion, explaining that þ[t]o establish jurisdiction in a case brought pursuant to the
1
As noted by the majority, this circuit has since overruled Blanchard and its
progeny, holding that the IDEAùs exhaustion requirement is not jurisdictional but is,
instead, an affirmative defense to be pleaded and proved by IDEA defendants. Payne,
653 F.3d at 870-71.
Page 3 of 4
IDEA, a plaintiff must show that he or she has exhausted all available administrative
remedies prior to commencing her action in federal district court.þ Placing the burden
on Washington, the district court concluded that Washington failed to establish either (1)
that she exhausted her administrative remedies, or (2) that exhaustion would be futile. I
do not agree with the majorityùs conclusion that the result reached by the district court is
supported by the record.
The existence of a futility exception to the IDEAùs exhaustion requirement can be
traced to the legislative history of the IDEA. Senator Harrison Williams, the author and
floor manager of the Senate bill, stated that þexhaustion of the administrative
procedures established under this part should not be required for any individual
complainant filing a judicial action in cases where such exhaustion would be futile either
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4227
STEVEN L. HEARD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4228
STEVEN L. HEARD,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-96-16)
Submitted: January 30, 1998
Decided: February 23, 1998
Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James R. Fox, JORY & SMITH, L.C., Elkins, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Robert H.
McWilliams, Jr., Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following a jury trial, Steven L. Heard was convicted on four
counts of tax evasion in violation of 26 U.S.C.§ 7201 (1994), and the
district court sentenced him to thirty-six months imprisonment. Heard
appeals, claiming errors both at trial and sentencing. We find no merit
to his claims. Consequently, we affirm.
Heard was an independent contractor who sold business forms to
local businesses in the Clarksburg, West Virginia, area. A grand jury
indicted Heard on four counts of violating 26 U.S.C.§ 7201, for evad-
ing income tax in the years 1989 to 1992. Heard did not deny failing
to pay taxes. His sole defense at trial was that he had an honest but
mistaken belief that the income tax laws did not apply to him.
Heard first contends that the trial court erred in admitting into evi-
dence statements he made reflecting his rejection of the tax laws.
When the government subpoenaed Heard before the grand jury, he
filed a "Non-statutory Abatement." This preprinted form, which
Heard characterizes as being synonymous with a motion to quash the
subpoena, referred to the Clerk of the United States District Court and
the United States Attorney as "Alien Enemy agents of a statutorily
created, [sic] foreign de facto corporation, known as THE UNITED
STATES OF AMERICA." (emphasis in original). Heard filed a
motion in limine to bar introduction of the abatement at trial. The dis-
trict court ruled that the government could use the abatement only for
two purposes. First, if Heard attempted to claim he did not believe the
tax laws applied to him, the document could be used to show that he
2
did not sincerely believe that these laws were inapplicable to him.
Second, the government could use the abatement to cross-examine
Heard's character witnesses if they testified that he was law-abiding,
because the document was relevant to show that Heard rejected the
authority of the United States. We find that the district court did not
exceed its discretion in finding that the abatement was admissible
under Fed. R. Evid. 404(b) to show such things as proof of intent and
the absence of mistake or accident. See United States v. Queen, ___
F.3d ___, ___, 1997 WL 790470, at *3 (4th Cir. Dec. 29, 1997) (No.
96-4085).
Heard argues that by filing the abatement, he was asserting his
Fifth Amendment privilege against self-incrimination and that the
government improperly used this against him during the trial. How-
ever, the abatement never was mentioned during the government's
case-in-chief. Instead, defense counsel engaged in a lengthy direct
examination of Heard concerning the document, during which coun-
sel elicited from Heard that he filed the abatement in order to invoke
his Fifth Amendment privilege against incriminating himself before
the grand jury. Because he introduced this testimony himself, any
error which may have resulted is nothing more than invited error and
thus is not reversible. See, e.g., United States v. Neal, 78 F.3d 901,
904 (4th Cir.) (no reversible error where defendant invited error him-
self by eliciting statements he challenged on appeal), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9410).
During cross-examination, the government asked Heard about the
abatement but, as directed by the district court in its order denying
Heard's motion in limine, limited its questions to whether he believed
the language of the document, particularly where it called the United
States Attorney an alien enemy agent of a statutorily created foreign
de facto corporation known as the United States. When questioning
Heard's character witnesses, the government also limited its questions
in accordance with the court's order concerning the motion in limine.
Thus, we find no error in the court's admission of this evidence.
Next, Heard challenges the admissibility of two letters in which he
urged two businesses to ignore summonses from Internal Revenue
requesting financial records concerning him. In these letters, Heard
questioned the authority of Internal Revenue and stated that he
3
believed the summonses could be ignored because process was ille-
gally served. The mailing of these two letters was charged as specific
acts of tax evasion in Count Four of the indictment. Heard argues that
these letters constitute permissible conduct under 26 U.S.C.A. § 7609
(West 1989 & Supp. 1997), in that he claims that they were legitimate
acts performed to quash the summonses.
Section 7609(b) allows an individual identified in business records
summonsed by Internal Revenue to file a motion to quash the sum-
mons and then serve a copy of the motion to quash upon the third
party record keeper. Even if the parties upon whom the summonses
were served could be characterized as third party record keepers,
Heard failed to file a motion to quash the summonses. We find that
Heard's letters do not constitute the type of activity sanctioned under
§ 7609(b).
As the government argues in its brief, Heard's letters were relevant
because they constituted overt acts of tax evasion charged in the
indictment. Moreover, as Heard's key defense was that he was under
the mistaken belief that he did not have to pay taxes, the letters were
relevant evidence for the government to show that Heard rejected,
rather than misunderstood, the tax laws. Thus, the district court did
not exceed its discretion by admitting the letters into evidence. See
Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996).
In five separate instances, a social security number other than
Heard's real one appeared on documents pertaining to him. Specifi-
cally, five different social security numbers similar to Heard's true
one, but with two or more numbers transposed, appeared on:
(1) Heard's 1099 forms submitted to Internal Revenue by the com-
pany paying Heard's commission; (2) Heard's bank signature card
for his checking account; (3) a utility service application for Heard's
residence; (4) a loan application; and (5) a credit report for Heard.
Heard argues that the introduction into evidence of the five incorrect
social security numbers unfairly prejudiced him because there was no
direct evidence that he was the one who supplied the false numbers.
Because there was no direct evidence showing that Heard supplied
a false social security number to the company paying his commission
in order to evade taxes, the government utilized the five different false
4
social security numbers to show through circumstantial evidence that
Heard was the person who provided the false number for the 1099
forms. We find that these social security numbers were admissible
under Fed. R. Evid. 404(b) to show that it was Heard who provided
the false number to his company and to show that he did so intention-
ally rather than by mistake or accident.
Both in his direct testimony and on cross-examination, Heard
denied responsibility for any of the five false social security numbers.
At sentencing, the district court found this testimony to be both mate-
rial and false and enhanced Heard's sentence two levels for perjury.
Heard challenges this enhancement.
In order to enhance a defendant's offense level for perjury follow-
ing an objection on that basis, a district court must review the evi-
dence and "make independent findings necessary to establish a willful
impediment to or obstruction of justice." United States v. Smith, 62
F.3d 6 | {
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70 F.3d 113
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Porter Jacob COLE, Jr., a/k/a Porter Cole, a/k/a Billy Wade,Defendant-Appellant.
No. 94-5639.
United States Court of Appeals, Fourth Circuit.
Submitted: October 17, 1995Decided: November 14, 1995
Daniel S. Johnson, Winston-Salem, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, David B. Smith, Assistant United States Attorney, Timika Shafeek, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
Before HALL, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
OPINION
PER CURIAM:
1
Porter Cole pled guilty to conspiring to manufacture and possession with intent distribute marijuana. Prior to entering his plea, Cole moved to suppress the evidence against him. The district court denied the motion. Cole entered a conditional guilty plea, preserving his right to appeal the denial of his suppression motion. We affirm the denial of the motion and Cole's conviction.
I.
2
Deputy Sheriff Jerry Boles was conducting an investigation into a marijuana growth operation. As part of the investigation, law enforcement officers set up a surveillance at one of the residences where the officers suspected growing was taking place. The officers observed a white van parked outside the residence. Boles followed the van after it left the residence. While he was following the van, the van reached speeds of up to eighty miles per hour.
3
The next day the officers executed a search warrant at the residence where they saw the van. The officers discovered marijuana plants inside. The officers met at a staging area near the other suspected residence to execute a second search warrant. While they were waiting to execute the warrant, Boles noticed the white van drive by and slow down. The officers pulled the van over to identify the driver. Boles approached the driver's side of the car and instructed the driver, Cole, to step out of the van with his driver's license and registration. Another deputy approached the passenger side with his gun drawn.
4
When Cole stepped out, Boles patted him down for weapons. Cole told Boles that he did not have a registration because the tag on the van belonged to another vehicle. Boles asked Cole whether the van contained any bombs, guns, hand grenades, drugs, or other contra band. Cole said no. Boles then asked, "Do you mind if we look?" Cole replied, "No, go ahead." The officers searched the vehicle and discovered an electric bill that connected Cole to the residence where the marijuana was discovered. Boles advised Cole of his Miranda* rights. Cole refused to answer any more questions without an attorney present.
II.
5
Cole first contends that the district court erred in denying his motion to suppress because the vehicle stop was unwarranted. He claims that, in any event, the officers' activities after the stop exceeded the scope of Terry v. Ohio, 392 U.S. 1 (1968).
6
In Terry, the Supreme Court held that an officer who has a reasonable belief that crime is afoot may stop an individual and conduct a limited pat down search for weapons. Additionally, police officers may stop a vehicle upon a reasonable and articulable suspicion that the occupants are involved in past or present criminal activity. United States v. Hensley, 469 U.S. 221, 226 (1985); United States v. Mobley, 699 F.2d 172, 173-76 (4th Cir.), cert. denied, 461 U.S. 909 (1983).
7
In this case, the officers had observed Cole's van in front of residence where they discovered a marijuana growth operation. Furthermore, Deputy Boles observed the van speeding the previous day, and officers saw the van a second time in front of another residence where they suspected a marijuana growth operation was located. This information provided the officers with the articulable suspicion to stop the vehicle. United States v. Taylor, 857 F.2d 210, 213 (4th Cir.1988). After they made an authorized, investigatory stop of the vehicle, the officers were authorized to conduct a limited frisk search of the occupants of the vehicle if there was reason to believe the occupants were armed and dangerous. See Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977); Adams v. Williams, 407 U.S. 143, 146 (1972); United States v. Crittendon, 883 F.2d 326, 328 (4th Cir.1989).
8
There is no bright line separating a Terry stop from an arrest. United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837 (1985). Whether an official detention is a Terry stop or an arrest depends upon whether the "methods of restraint used are reasonable to the circumstances," so as to maintain the status quo and protect the officers' safety. Crittendon, 883 F.2d at 329; Taylor, 857 F.2d at 213. Brief deprivations of liberty do not convert a Terry stop into an arrest, provided the methods of restraint used are reasonable under the circumstances. United States v. Perate, 719 F.2d 706, 708-09 (4th Cir.1983). Specifically, approaching a suspect's car with weapons drawn does not elevate the stop into an arrest. Id.
9
The officers who stopped Cole's van were acting on information that the vehicle had connections to a large marijuana growth operation. It was reasonable for the officers to believe that the occupants of the van may have been armed and dangerous. United States v. Moore, 817 F.2d 1105, 1107-08 (4th Cir.), cert. denied, 484 U.S. 965 (1987). Because of the potential danger involved in stopping the vehicle, approaching the vehicle with drawn weapons was reasonable. See Taylor, 857 F.2d at 214; Moore, 817 F.2d at 1108. Contrary to Cole's contention, the officers' actions in this situation did not exceed the scope of a Terry stop.
III.
10
Cole also claims that the deputies should have given him Miranda warnings prior to asking him any questions. Miranda warnings, however, are only required when there is a custodial interrogation. See Beckwith v. United States, 425 U.S. 341, 345-46 (1976).
11
Whether a suspect is in custody depends upon the reasonable perception of a person in the suspect's position. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). Cole claims that because he was approached by three to five officers and one of the officers had his gun drawn, Cole believed he was in custody. Cole never presented any evidence to show that he was aware of the drawn gun, or that he felt compelled to answer Boles' questions because of the presence of the other officers. Moreover, preliminary investigatory questions following a Terry stop do not normally present a custodial situation calling for Miranda warnings. Berkemer, 468 U.S. at 440. Hence, the district court did not err in refusing to suppress Cole's response to these questions on Miranda grounds.
IV.
12
Finally, Cole claims that he did not voluntarily consent to the search of the van. Rather, he alleges that he merely acquiesced in the face of apparent lawful authority.
13
The district court's finding regarding the voluntariness of consent is a factual determination which must be affirmed on appeal unless clearly erroneous. United States v. Gordon, 895 F.2d 932, 938 (4th Cir.), cert. denied, 498 U.S. 846 (1990). Whether the consent was voluntary is determined by examining the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). The government must prove voluntariness by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974). But "the government need not demonstrate that the defendant knew of the right to refuse to consent for the search to be deemed a voluntary one." Gordon, 895 F.2d at 938.
14
Cole offered no evidence to support his contention that his consent was involuntary or that the officers somehow coerced him into consenting. There was no evidence that any of the officers told Cole that they would search the van regardless of whether he consented. Absent such evidence, the district court properly concluded that Cole voluntarily consented to the search. See United States v. Wilson, 895 F.2d 168, 171-73 (4th Cir.1990).
15
Accordingly, we affirm the district court's denial of Cole's motion to suppress and we uphold his conviction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument | {
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841 F.2d 770
1988-1 Trade Cases 67,920
UNITY VENTURES, an Illinois partnership, LaSalle NationalBank, as Trustee under Trust No. 103331, andWilliam Alter, Plaintiffs-Appellants,v.COUNTY OF LAKE, Village of Grayslake, Norman C. Geary,George Bell and Edwin M. Schroeder, Defendants-Appellees.
Nos. 86-1620, 86-1706.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 25, 1987.Decided March 9, 1988.Rehearing and Rehearing En Banc Denied May 5, 1988.
Clifford L. Weaver, Burke, Bosselman & Weaver, Chicago, Ill., for defendants-appellees.
James P. Chapman, James P. Chapman & Assoc. Ltd., Chicago, Ill., for plaintiffs-appellants.
Before CUMMINGS and WOOD, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
HARLINGTON WOOD, Jr., Circuit Judge.
1
The plaintiffs, Unity Ventures, LaSalle National Bank, and William Alter, sued defendants Village of Grayslake, Lake County, and three officials under the fourteenth amendment to the United States Constitution, 42 U.S.C. Sec. 1983, and the Sherman Act, 15 U.S.C. Sec. 1. The plaintiffs allege that the defendants improperly denied plaintiffs' request for sewage service in order to control the use of plaintiffs' property, violating the plaintiffs' rights to equal protection, substantive and procedural due process, and section one of the Sherman Act. After trial, the jury returned verdicts against all defendants on the equal protection, substantive due process, and antitrust claims. The court trebled the jury's award of $9,500,000 in damages under the antitrust count and on January 16, 1984, entered judgment on the verdict in favor of plaintiffs in the amount of $28,500,000. Defendants filed a timely motion for judgment notwithstanding the verdict or a new trial. On March 19, 1986, the district court granted defendants' motion for judgment n.o.v., denied their motion for a new trial, and denied plaintiffs' procedural due process claims and their request for injunctive relief. Plaintiffs have appealed, raising the following issues: (1) whether there was sufficient evidence to support the jury's finding that defendants violated plaintiffs' rights to substantive due process and equal protection; (2) whether defendants violated plaintiffs' rights to procedural due process by failing to provide plaintiffs with notice and an opportunity to be heard before denying their request for sewer hookups, and by failing to articulate standards for their decision; (3) whether the evidence supported the jury's finding that defendants' agreement on the provision of sewage treatment services eliminated competition between municipalities and between developers, in violation of section one of the Sherman Act; and (4) whether defendants' anticompetitive conduct constituted state action and was therefore immune from the antitrust laws. Defendants have cross-appealed from the denial of their motion for a new trial. We affirm the district court's judgment notwithstanding the verdict on the grounds that the plaintiffs' claims were not ripe for adjudication.
I. STANDARD OF REVIEW
2
Our review of the "district court's decision to enter a judgment n.o.v. must be ... de novo." Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 15 (7th Cir.1987). We do not, however, judge the credibility of the witnesses, or substitute our judgment on the weight of the evidence for that of the jury. La Montagne v. American Convenience Prods., 750 F.2d 1405, 1410 (7th Cir.1984). Our task is to determine whether the evidence, and all reasonable inferences which may be drawn from it, is substantial enough to support the jury's verdict, "when viewed in the light most favorable to the non-moving party." Graefenhain, 827 F.2d at 15. With this standard in mind, we turn to a brief discussion of the facts of the case.
II. FACTUAL BACKGROUND
3
We draw our discussion of the facts, in large part, from the district court's opinion. Unity Ventures v. County of Lake, 631 F.Supp. 181 (N.D.Ill.1986).
4
In 1972, Alter obtained an option to purchase 585 acres of farmland (the Unity property) in an unincorporated area of Lake County, Illinois. The Unity property was south of Grayslake and southeast of Round Lake Park. On August 15, 1976, Alter and Round Lake Park entered into an annexation agreement providing for development of the Unity property. The Village adopted an ordinance annexing the property and Alter contributed land and money to the Village for municipal facilities. Alter exercised his option to purchase the Unity property on October 21, 1976.
5
In 1973 Lake County completed a plan for a system of regional sewage treatment plants. Under the plan, unincorporated and annexed properties would be served through an off-site connection: an underground pipe would extend from the property or municipality to the main interceptor, a larger underground pipe that connected to the treatment plant serving that area. Two principal interceptors would serve central Lake County. The Northeast Central Interceptor was designed to serve the area of Grayslake and communities along its path to a new sewage treatment plant in Gurnee, Illinois. The Northwest Central Interceptor would serve the area of Round Lake Park and communities along its path to another new treatment plant in Fox Lake, Illinois. The Unity property, under grants approved by the Illinois Environmental Protection Agency (IEPA), the terms of the revenue bond issue, and regional construction plans, was located in the proposed Northeast Interceptor's service area.
6
Lake County and the Village of Grayslake agreed, on April 20, 1976, that the County would provide service to Grayslake through the Northeast Interceptor. The County granted to Grayslake jurisdiction over a "sphere of influence" including unincorporated areas in Lake County adjacent to Grayslake. The Village had the right to approve all connections to the County's Northeast Interceptor from this area. The County and the Village agreed that "[t]he County shall preserve the function of County interceptors located within the sphere of influence of the Village ... by not permitting any direct connection hereto by any person, firm, corporation or municipality unless the Village consents in writing to such direct connection." Unity Ventures, 631 F.Supp. at 185. The 1976 agreement reflected some changes in the sewage disposal arrangement that the parties had reached in 1973. The word "municipality" was an addition, and Grayslake's sphere of influence was increased to include the Unity property and a 2,500-acre parcel in unincorporated Lake County known as the Heartland property. The district court found that neither the plaintiffs nor Round Lake Park officials knew of the sphere of influence agreement between Grayslake and Lake County until October of 1978. Id. at 186.
7
In August of 1978 Alter submitted to the Lake County Public Works Department two plans for the construction of a connection between the Unity property and the Northeast Interceptor. One plan provided for a connection to serve only the Unity property for which Alter would pay the construction costs. The second plan provided for a connection to serve both the Unity property and the Heartland property which lay between Unity and Grayslake. Alter would pay for the bulk of this sewer with Grayslake paying only for the additional costs of oversizing to accommodate the larger area. Martin Galantha, Director of the Lake County Public Works Department, approved the plans and sent them on to Mayor Edwin M. Schroeder for Grayslake's approval according to the sphere of influence agreement. Galantha also sent a letter indicating that although Round Lake Park generally would be served by the Northwest Interceptor, the Unity property, because it lay within the Des Plaines River basin, "should be tributory [sic] to the County's Northeast Central interceptor system." Id. (quoting Plaintiffs' Exhibit 50).
8
The plaintiffs learned of the sphere of influence agreement on October 31, 1978, at a meeting with Galantha, Mayor Schroeder, Mayor Walter Bengson of Round Lake Park, and others to discuss Alter's proposals. Mayor Schroeder declined to consent to Unity's connection into the Northeast Interceptor at that time.
9
Round Lake Park appealed Grayslake's veto of Alter's requested sewage connection to the Lake County Board through Joseph Tobolik, Round Lake Park's representative on the Board. On March 16, 1979, the Board's Public Service Committee obtained a legal opinion from the law firm of Chapman & Cutler as to the propriety of Grayslake's veto power. Chapman & Cutler found the sphere of influence agreement to be of questionable legality. Because it vested Grayslake with arbitrary authority, the agreement could violate the requirements of due process and, moreover, according to the opinion, if the agreement was not considered to be an exercise of state action it might violate the antitrust laws as well. After receiving this opinion, the Public Service Committee sought the State's Attorney's advice about its legal options. Ultimately, the Committee abandoned further inquiry into the legality of Grayslake's veto power and instructed the County to take the necessary steps to support the contract's validity.
10
Following Grayslake's rebuff, plaintiffs and Round Lake Park proceeded with alternate plans | {
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 13-167V
Filed: March 21, 2014
********************************
LORIN FORCINE and BLAISE FORCINE, *
legal representatives of minor child *
William Forcine, * Stipulation; Attorney Fees and Costs
Petitioners, *
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
Respondent. *
********************************
Paul R. Brazil, Esq., Muller Brazil, LLP, Philadelphia, PA for petitioners.
Lisa Ann Watts, Esq., U.S. Dept. of Justice, Washington, D.C. for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Vowell, Chief Special Master:
In this case under the National Vaccine Injury Compensation Program,2 I issued
a decision on December 17, 2013, that awarded compensation pursuant to
respondent’s proffer. On March 14, 2014, the parties filed a stipulation for attorney fees
and costs. The stipulation indicates that respondent does not object to the amount
petitioners are requesting. Additionally, pursuant to General Order #9, the stipulation
notes that petitioners incurred no personal litigation costs.
I find that this petition was brought in good faith and that there existed a
reasonable basis for the claim. Therefore, an award for fees and costs is appropriate,
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioners have 14 days to identify
and move to delete 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
delete such material from public access.
2
The applicable statutory provisions defining the program are found at 42 U.S.C. § 300aa-10 et seq.
(2006).
1
pursuant to 42 U.S.C. §§ 300aa-15(b) and (e)(1). Further, the proposed amount seems
reasonable and appropriate. Accordingly, I hereby award the total $23,878.263 in
the form of a check payable jointly to petitioners and petitioners’ counsel of
record, Paul Brazil, for petitioners’ attorney fees and costs.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/ Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
2
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42 Wis.2d 429 (1969)
167 N.W.2d 226
McCONNELL, Respondent,
v.
L. C. L. Transit Company and others, Appellants.
No. 201.
Supreme Court of Wisconsin.
Argued March 31, 1969.
Decided May 6, 1969.
*434 For the appellants L. C. L. Transit Company and Helen E. Pomprowitz there was a brief by Cornelisen, Denissen, Kranzush, Kuehn & Condon, attorneys, and David J. Condon of counsel, all of Green Bay, and oral argument by David J. Condon.
For the appellant Kellogg-Citizens National Bank there were briefs by Wilmer & Surplice of Green Bay, and oral argument by Alex Wilmer.
For the respondent there was a brief by Kaftan, Kaftan & Kaftan of Green Bay, and oral argument by Fred F. Kaftan.
HANLEY, J.
On this appeal L. C. L. and Mrs. Pomprowitz contend:
(1) That the employment contract is plain, complete and unambiguous on its face, and that it must be construed without reference to parol evidence;
(2) That the liquidated damages provision of the employment contract sets the sole amount of damages recoverable upon the company's termination of the contract; and
(3) That there is no factual issue in the case which must be decided before judgment can be entered.
The third defendant, the bank, has raised further issues on this appeal. Before any discussion of those questions, it is necessary to explain why the bank was named as a party to this case.
At all times pertinent, the bank and Mrs. Pomprowitz were cotrustees of several trusts created under the will of Joseph Pomprowitz. In addition, the bank and Mrs. Pomprowitz were cotrustees of a voting trust agreement. These trust arrangements involved 100 percent of the voting stock of L. C. L. Plaintiff has alleged that Mrs. Pomprowitz and the bank's representative promised him that they would always vote the stock so that plaintiff *435 would continue to be employed as long as L. C. L. made a profit.
In response to plaintiff's allegations, the bank raises the arguments proposed by the other defendants. In addition, the bank contends:
(1) That none of its officers or employees had authority to make any promise to plaintiff; and
(2) That in performing its function as trustee, the bank could not become personally liable because of L. C. L.'s breach of an employment contract.
Summary Judgment Generally.
In Hardscrabble Ski Area, Inc. v. First National Bank of Rice Lake, ante, p. 334, 166 N. W. 2d 191, the court cited numerous recent cases which have extended the use of summary judgment beyond its original purpose. Also noted therein was the court's concern with the number of appeals from orders overruling motions for summary judgment. Again, setting forth the discretionary language of sec. 270.635, Stats., the court stated that the summary judgment statute:
". . . vests discretion in the trial court as to whether the case should be tried. It follows that an order denying a motion for summary judgment will not be reversed until it appears that the trial court has abused its legal discretion or has not exercised it."
Clearly, the trial court has not abused its discretion when denying a motion for summary judgment unless it either incorrectly decides a legal issue or it declines to decide a legal issue which is capable of resolution in a factual vacuum. A litigant is not entitled to summary judgment merely because the parties to a lawsuit have stipulated to the facts. This court pointed out in Zimmer v. Daun (1968), 40 Wis. 2d 627, 630, 162 N. W. 2d 626, that:
*436 ". . . A trial court need not decide a question of law on a motion for summary judgment . . . ."
In the Zimmer Case, supra, this court approved the trial court's failure to decide a clear legal question because this court, at page 631, was:
" . . . not convinced the affidavits set forth all the relevant facts which should be considered."
Taking all of these considerations into mind, it is quite apparent that a trial court denying summary judgment will generally be sustained.
Applicability of Summary Judgment to this Case.
L. C. L. generally rested its motion for summary judgment upon the written employment contract, the provisions therein for termination, and the clause referring to liquidated damages. To grant this motion, it would have been necessary for the trial court to hold, as a matter of law, that the language of the written employment contract precluded a consideration of any other evidence in this case. Thus, L. C. L. relies on the general rules that:
"Where preliminary negotiations are consummated by a written agreement, or an oral contract is evidenced by a subsequent agreed memorandum in writing, the writing supersedes all previous understandings, and the intent of the parties must be ascertained therefrom. . . ." 17 A C. J. S., Contracts, p. 215, sec. 322.
"An oral agreement collateral to a written contract will not be construed or held to be valid and enforceable in so far as it conflicts with, changes, or devitalizes the written contract . . . ." 17A C. J. S., Contracts, p. 217, sec. 323.
The trial court pointed out that under plaintiff's theory of reformation, plaintiff's theory of promissory estoppel, or even under some other theories, it would be possible *437 to receive evidence of the alleged oral promise involved here. Such an observation is certainly in conformity with Wisconsin law.
". . . Parol evidence is admissible to establish mutual mistake in a reformation action. Thus it is not a valid objection to interpose to the offer of such evidence that it tends to vary the terms of the written instrument sought to be reformed." Newmister v. Carmichael (1966), 29 Wis. 2d 573, 577, 139 N. W. 2d 572.
Nor does the fact that a promise is only oral prevent its proof under a theory of promissory estoppel. See Hoffman v. Red Owl Stores, Inc. (1965), 26 Wis. 2d 683, 133 N. W. 2d 267. It is not necessary for this court to decide whether the making of a written contract after a person relies on an oral promise prevents said person from raising a promissory estoppel argument. In this case the plaintiff has alleged that the promise of "continual employment during profits" was repeatedly made as late as November, 1966. Plaintiff further alleged that the later and continual making of the promise induced him to forego terminating his employment contract in order to accept other employment.
L. C. L. also contends that even if plaintiff successfully proves the oral agreement which was allegedly made, nevertheless, the liquidated damages clause of the written employment contract fixes the maximum amount which the plaintiff can recover in the event of L. C. L.'s breach.
This court has stated:
". . . Where . . . the parties intended to agree upon liquidated damages, it is the duty of the court to enforce it though it may appear somewhat harsh. Parties have a right to make harsh provisions in their contracts if they see fit. . . ." Grant Marble Co. v. Marshall & Ilsley Bank (1918), 166 Wis. 547, 555, 165 N. W. 14. See also Keehn v. Saxe (1935), 219 Wis. 84, 261 N. W. 25. *438 Wisconsin has always recognized, however, the distinction between liquidated damages and a penalty.
"Courts will ascertain for themselves the real intent of the parties to the contract, and are not bound by the assertions of the parties themselves as to that intent, and the stipulated damages must appear to be grossly in excess of the actual damages, or have no relation thereto, before the court can say within established principles that the damages stipulated are a penalty. . . ." Sheffield-King Milling Co. v. Jacobs (1920), 170 Wis. 389, 398, 175 N. W. 796.
"In determining whether a stipulated sum payable on breach of a contract is to be considered as liquidated damages or a penalty the reasonableness of the amount provided for, including the relation which the sum stipulated bears to the extent of the injury, and whether it violates the fundamental rule of compensation, must be considered. The court will compare the amount stipulated with the probable damages from a breach to determine whether the stipulated sum was arrived at as the result of a good faith endeavor to estimate damages or was fixed for some other purpose. . . ." 25 C. J. S., Damages, p. 1051, sec. 108.
"Where it appears that the amount fixed was evidently not intended to be a full compensation for a breach of contract, or would be grossly inadequate as such, it will, as a rule, be considered as a penalty." 25 C. J. S., Damages, p. 1056, sec. 108.
Whether or not a contractual provision calls for a penalty or liquidated damages is a question of law for the court. However, in resolving that question, the intention of the parties at the time of the making of the contract is an important factor. In this case the plaintiff has alleged that he never understood the provision in the employment contract calling for liquidated damages. Moreover, he never worried about it because he had been promised that L. C. L. would not terminate the contract as long as the company was making a profit. *439 The trial court did not abuse his discretion | {
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1486
GARY R. JONES,
Plaintiff - Appellant,
versus
SHAWN R. ARLEDGE; CITY OF CHESAPEAKE,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. Rebecca B. Smith, District Judge.
(CA-98-482-2)
Submitted: September 30, 1999 Decided: October 5, 1999
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary R. Jones, Appellant Pro Se. Alan Brody Rashkind, FURNISS,
DAVIS, RASHKIND & SAUNDERS, Norfolk, Virginia; Thomas Jeffrey Salb,
BREEDEN, MACMILLAN & GREEN, Norfolk, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary R. Jones appeals the district court’s order dismissing
his 42 U.S.C.A. § 1983 (West Supp. 1999) action, following a jury
trial. On appeal, Jones alleges his counsel was ineffective.
Because claimants are not entitled to counsel in a § 1983 action,
there is no right to constitutionally effective counsel. See
Sanchez v. United States Postal Serv., 785 F.2d 1236, 1237 (5th
Cir. 1986); Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.
1985). Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
2
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614 S.E.2d 775 (2005)
279 Ga. 460
BERNOCCHI et al.
v.
FORCUCCI.
No. S05A0483.
Supreme Court of Georgia.
June 16, 2005.
*776 Michael W. Higgins, Higgins & Dubner, Atlanta, for Appellants.
Charlotte Kathleen Perrell, Perrell & Wright, LLC, Atlanta, for Appellee.
BENHAM, Justice.
In this appeal, we are called upon to review the propriety of the trial court's issuance of injunctive relief and the trial court's disqualification of counsel from simultaneously representing the corporate appellants and the individual appellant. We reverse the entry of injunctive relief, vacate the order granting the motion to disqualify counsel, and remand the case to the trial court for further proceedings.
Appellant Riccardo Bernocchi is an Italian clothing designer. He and appellee Anthony Forcucci and the late Irene Volpi formed appellant Berik Design USA ("BDUI"), with Forcucci as president, in 1995. Six years later, Bernocchi and Forcucci formed a limited liability corporation, appellant The Berik Group, LLC ("TBGL"). In 2004, after Volpi died, a third party purchased her interest in *777 BDUI and Forcucci was removed as a director and voted out of BDUI's management. Bernocchi was elected the sole officer and director of BDUI and approved an offering of shares of BDUI stock. In June 2004, Forcucci, still the owner of one-third of the BDUI stock, filed a petition for a temporary restraining order to stop the stock offering. The parties entered into a consent TRO which restrained Bernocchi and BDUI from issuing more stock and from disposing of the trademarks or assets of TBGL. The parties extended the life of the consent TRO twice, with an attorney from the firm of Higgins and Dubner signing one of the consent orders as the attorney for Bernocchi, BDUI, and TBGL. Contending Bernocchi's interests were adverse to those of BDUI, and TBGL, Forcucci filed a motion to disqualify Higgins and Dubner from simultaneously representing the three defendants. At a hearing on September 10, 2004, the expiration date for the last consent TRO, the trial court found the corporate defendants and Bernocchi to have conflicting interests and granted the motion to disqualify counsel. The trial court issued a certificate of immediate review of its ruling and, in response to Forcucci's inquiry about the status of the TRO, issued an order continuing the restraints set forth in the consent TROs until further order of the court. Bernocchi filed a direct appeal to this Court on the basis that the trial court's latter order was, in fact, an interlocutory injunction. See OCGA 5-6-34(a)(4).
1. "An interlocutory injunction is a device to keep the parties in order to prevent one from hurting the other whilst their respective rights are under adjudication. There must be some vital necessity for the injunction so that one of the parties will not be damaged and left without adequate remedy." Chambers v. Peach County, 268 Ga. 672(1), 492 S.E.2d 191 (1997). Trial courts enjoy broad discretion in deciding whether an interlocutory injunction should be imposed, though the power to do so "shall be prudently and cautiously exercised...." OCGA § 9-5-8. In determining whether to issue an interlocutory injunction, the trial court must balance the conveniences of the parties pending final adjudication. Univ. Health Services v. Long, 274 Ga. 829, 561 S.E.2d 77 (2002). An interlocutory injunction may be issued to maintain the status quo if, after balancing the relative equities of the parties, it appears the equities favor the party seeking the injunction. Lee v. Environmental Pest Control, 271 Ga. 371(2), 516 S.E.2d 76 (1999). The trial court's exercise of its discretion will not be disturbed by an appellate court "unless a manifest abuse of that discretion is shown [or] unless there was no evidence on which to base the ruling." Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145, 146(1), 401 S.E.2d 515 (1991).
In the case at bar, the order granting the interlocutory injunction does not reflect that the trial court balanced the relative equities of the parties. The hearing transcript reflects the trial court recognized the need for an evidentiary hearing, but scheduling conflicts prevented the hearing from taking place on the day the consent TRO expired. As a result, the trial court entered the interlocutory injunction in the absence of an evidentiary hearing at which the party seeking the relief would have to demonstrate entitlement thereto (see Treadwell v. Investment Franchises, 273 Ga. 517, 519, 543 S.E.2d 729 (2001) (burden is on the party seeking injunctive relief to demonstrate entitlement to the relief)), and the parties against whom relief was sought could present evidence showing the inequity in imposing interlocutory injunctive relief. Since the grant of injunctive relief occurred without a balancing of the equities and without evidentiary support, the entry of injunctive relief must be reversed for lack of evidentiary support. Kennedy v. Sheppard Lumber Co., supra, 261 Ga. 145, 146(1), 401 S.E.2d 515.
2. Appellants next take issue with the trial court's order granting Forcucci's motion to disqualify Higgins & Dubner from simultaneous representation of appellant Bernocchi and the two corporate defendants. The trial court's written order contained no findings, but the hearing transcript reflects the trial court believed the corporations to have "a divergence of interests" from both Forcucci and Bernocchi, and granted the motion to disqualify because "there is a conflict on behalf of Mr. Bernocchi with whether or *778 not the corporations' ownerships interest in... designs and royalties would be protected."
"[T]he right to counsel is an important interest which requires that any curtailment of the client's right to counsel of choice be approached with great caution." Blumenfeld v. Borenstein, 247 Ga. 406, 408, 276 S.E.2d 607 (1981). "[D]isqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and ... inevitably cause[s] delay." Reese v. Ga. Power Co., 191 Ga.App. 125(2), 381 S.E.2d 110 (1989). "[A] client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and `may lose the benefit of its longtime counsel's specialized knowledge of its operations.'" Bergeron v. Mackler, 225 Conn. 391, 398, 623 A.2d 489 (Conn.1993). Because of the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly. Anderson Trucking Service v. Gibson, 884 So.2d 1046, 1049 (Fla.App.2004). See also Meehan v. Antonino, 2002 WL 31559712 (Conn.Super.2002) (unpub. op.).
The simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by Rule 1.7(b) of the Georgia Rules of Professional Conduct. Comment 7 to Rule 1.7(b). Rule 1.7 permits a lawyer to represent a client
notwithstanding a significant risk of material and adverse effect if each affected or former client consents, preferably in writing, to the representation after: (1) consultation with the lawyer, (2) having received in writing reasonable and adequate information about the material risks of the representation, and (3) having been given the opportunity to consult with independent counsel.
Client consent is not permissible if, among other things, the representation "involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients." Rule 1.7(c)(3).
Citing Reese v. Georgia Power Co., supra, 191 Ga.App. 125, 381 S.E.2d 110, appellants contend Forcucci lacks standing to raise any conflict of interest issue with regard to appellants' counsel since Forcucci does not have an attorney-client relationship with appellants' counsel. In Reese, at 127, 381 S.E.2d 110, the Court of Appeals held that the plaintiff lacked standing to assert opposing counsel had a conflict of interest in representing simultaneously a corporate defendant and an employee of that corporation in a personal injury action because that objection "`is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client.'" See also Piedmont Hosp. v. Reddick, 267 Ga.App. 68(7)(c), 599 S.E.2d 20 (2004); Johnson v. Prime Bank, 219 Ga.App. 29, 464 S.E.2d 24 (1995). On June 12, 2000, however, this Court issued an order which adopted the afore-mentioned Georgia Rules of Professional Conduct in place of the Canon of Ethics, effective January 1, 2001. The Rules prescribe terms for resolving conflict "among a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person[,]" and are "rules of reason ... designed to provide guidance to lawyers." Ga. Rules of Prof. Conduct, Preamble, Par. 8, 13, 18. Each Rule is accompanied by a Comment which "explains and illustrates the meaning and purpose | {
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50154
Plaintiff-Appellee, 14-50157
v. D.C. Nos.
13-CR-3970-LAB
RAUL ANTONIO CRUZ-MENDEZ, 08-CR-3618-LAB
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted October 21, 2015*
Pasadena, California
Filed January 27, 2016
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges, and Michael A. Ponsor, Senior District
Judge.**
Opinion by Judge Ponsor
*
The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
2 UNITED STATES V. CRUZ-MENDEZ
SUMMARY***
Criminal Law
The panel affirmed a sentence for possession of 100
kilograms or more of marijuana on a vessel, and a
consecutive sentence for violation of the terms of supervised
release imposed in a prior case.
The panel held that the district court did not err in
applying a two-level “pilot/captain” enhancement under
U.S.S.G. § 2D1.1(b)(3)(C), which applies where the
defendant “acted as a pilot, copilot, captain, navigator, flight
officer, or any other operation officer aboard any craft or
vessel carrying a controlled substance.” The panel rejected
the defendant’s assertion that, because he simply operated a
panga by standing at the tiller of the outboard motor, he
lacked the requisite special skills or authority on the vessel to
support the imposition of the enhancement. The panel
explained that the fact that the Guidelines commentary
acknowledges that pilots and boat captains may use “special
skills” also subject to an adjustment under U.S.S.G. § 3B1.3
and dictates that the two sections may not both apply to the
same conduct does not mean that § 2D1.1(b)(3) can only
apply where such special skills are demonstrated by a pilot or
captain.
The panel concluded that the 92-month total sentence was
not substantively unreasonable.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CRUZ-MENDEZ 3
COUNSEL
Sarah R. Weinman, Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney; Bruce R. Castetter
and Steve Miller, Assistant United States Attorneys, San
Diego, California, for Plaintiff-Appellee.
OPINION
PONSOR, Senior District Judge:
Defendant Raul Cruz-Mendez received an eighty-month
sentence after pleading guilty to possessing one-hundred
kilograms or more of marijuana on a vessel. In the same
sentencing proceeding, he received a consecutive twelve-
month sentence for violation of the terms of supervised
release imposed in a prior case. On appeal, he raises two
issues. First, Cruz-Mendez challenges the district court’s
imposition of a two-level enhancement to his offense level for
the marijuana conviction, as contemplated under U.S.S.G.
§ 2D1.1(b)(3)(C) (the “pilot/captain” enhancement). Second,
he contends that the combined sentence of ninety-two months
was substantively unreasonable.
We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). We affirm.
BACKGROUND
The underlying facts are not significantly disputed. On
October 5, 2013, Customs and Border Protection agents
4 UNITED STATES V. CRUZ-MENDEZ
aerially observed two men operating a so-called “panga”
vessel1 off the coast of Ensenada, Mexico, heading northwest
toward the United States. They also spotted several bales of
suspected narcotics visible in the open hull. Shortly
afterwards, a U.S. Coast Guard vessel initiated an
interception of the panga, during which the helicopter crew
observed defendant and another man dumping bales
overboard. Warning shots from the Coast Guard vessel, and
finally disabling gunfire directed at the engine, ultimately
succeeded in bringing the panga to a stop, whereupon law
enforcement agents recovered thirty-one bales of marijuana
totaling over 568 kilograms. Cruz-Mendez and a co-
defendant were arrested for possession of marijuana with
intent to distribute, on a vessel, in violation of 46 U.S.C.
§§ 70503 and 70506. At the time of his arrest, Cruz-Mendez
was on supervised release for a 2008 conviction for
transporting undocumented aliens in a vessel, in violation of
8 U.S.C. § 1324.2
On December 5, 2013, Cruz-Mendez pled guilty to the
marijuana charge, and on January 6, 2014, he admitted to a
violation of the terms of supervised release imposed in
connection with his 2008 conviction. A consolidated
sentencing hearing took place on April 1, 2014.
The presentence report filed by the probation department
included application of the two-level “pilot/captain”
enhancement for the specific offense characteristic of acting
1
A panga boat is “an open-bow vessel commonly used for smuggling.”
United States v. Ramos-Atondo, 732 F.3d 1113, 1117 (9th Cir. 2013).
2
Cruz-Mendez had one additional earlier conviction in 2007 for
possession with intent to sell marijuana.
UNITED STATES V. CRUZ-MENDEZ 5
“as a pilot, copilot, captain, navigator, flight officer, or any
other operation officer aboard any craft or vessel carrying a
controlled substance[.]” U.S.S.G. § 2D1.1(b)(3)(C). With
the enhancement, the probation department calculated Cruz-
Mendez’s guideline range to be seventy to eighty-seven
months. After Cruz-Mendez objected to the two-level
increase, the probation department filed an addendum
asserting that, because Cruz-Mendez and his co-defendant
possessed the skill of being able to pilot a vessel and
exercised that skill in furtherance of their crime, the two-level
increase was warranted. The government recommended a
sentence of sixty months, based on a sentencing guidelines
range of sixty to seventy-one months, which did not include
the two-level upward adjustment.
At the hearing, the district court overruled Cruz-Mendez’s
objection to the application of the “pilot/captain”
enhancement. Specifically, Cruz-Mendez argued that he and
his co-defendant had equal responsibility on the boat, with
each piloting the boat at different points of the voyage. The
court determined that, by the Coast Guard’s observation and
by his own admission, Cruz-Mendez was operating the panga
and was therefore the pilot of the vessel under the plain text
of the enhancement. After recognizing the parties’ agreement
that the starting offense level was twenty-eight, the district
court increased the level by two with the application of the
“pilot/captain” enhancement.
With a three-level reduction for acceptance of
responsibility and a four-level reduction based on the
district’s “fast track” program, the offense level was twenty-
three, with a criminal history category of IV, generating a
sentencing guideline range of seventy to eighty-seven
months. The court imposed upon Cruz-Mendez a sentence in
6 UNITED STATES V. CRUZ-MENDEZ
the middle of this range: eighty months. With regard to the
violation of supervised release the district court found,
without objection, that the sentencing guideline range was
fifteen to twenty-one months, but varied to a below-guideline
sentence of twelve months, consecutive to the eighty-month
sentence on the marijuana charge, resulting in a total of
ninety-two months.
Cruz-Mendez filed a timely notice of appeal contesting
both the application of the “pilot/captain” enhancement and
the substantive reasonableness of the total sentence.
STANDARD OF REVIEW
We review the district court’s interpretation of the
Sentencing Guidelines de novo and its application of the
Guidelines to the facts of the case for abuse of discretion.
United States v. Garcia-Guerrero, 635 F.3d 435, 438 (9th | {
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308 So.2d 382 (1975)
Fred McCOY
v.
TANGIPAHOA PARISH SCHOOL BOARD.
No. 10123.
Court of Appeal of Louisiana, First Circuit.
February 10, 1975.
Rehearing Denied March 10, 1975.
Writ Refused April 24, 1975.
*383 Joseph H. Simpson, Amite, for appellant.
Hobart O. Pardue, Jr., Springfield, for appellee.
Before LANDRY, BLANCHE and NEHRBASS, JJ.
LANDRY, Judge.
Defendant (School Board) appeals from judgment awarding Plaintiff (Appellee), a tenured school teacher, the difference between the salary of a principal and that of *384 a classroom teacher following Appellee's demotion from Principal, Midway Elementary School, Tangipahoa Parish, to classroom teacher upon closure of the school. Appellee has answered the appeal seeking damages for a frivolous appeal. We affirm the judgment declaring Appellee entitled to the difference in pay; we reject Appellee's demand for damages for frivolous appeal.
The facts are virtually undisputed. Appellee is a tenured teacher in the Tangipahoa Parish School System, having been employed therein for more than 17 years. On July 2, 1969, Appellee held the position of Principal, Midway Elementary School, to which post Appellee was appointed eight years and six months previously. Midway School was closed July 2, 1969, pursuant to a Federal Court order rendered in an integration action brought against School Board. Following closure of the school, Appellee was demoted to the status of fourth grade classroom teacher without the benefit of a hearing.
Upon his demotion, Appellee instituted proceedings in the Federal Court seeking reinstatement to the position of principal on the ground that his demotion was illegal in that it was motivated by racial discrimination. In his Federal Court action, Appellee did not seek any decree respecting compensation. On September 2, 1970, judgment was rendered in Appellee's Federal Court action denying Appellee's demand for reinstatement as principal. Appellee's appeal from said adverse judgment is presently pending in the Federal Court system.
This present action was instituted by Appellee on March 19, 1973. The only relief sought by Appellee herein is that he be awarded the difference between the salary of principal and classroom teacher from July, 1969, to the present. On October 2, 1973, in an apparent effort to comply with LSA-R.S. 17:422, Edwin Newman, Superintendent of Schools, Tangipahoa Parish, wrote Henry Dunn, President, Tangipahoa Parish School Board, recommending Appellee's termination as principal, retroactive to July 2, 1969. Newman assigned as reasons for said recommendation, Appellee's lack of the required certificate of eligibility as principal, and also the closing of the Midway School by Federal Court order, which action allegedly abolished Appellee's job as principal.
School Board filed herein Exceptions of Res Judicata, Lis Pendens, No Cause of Action and Prescription of Three Years pursuant to LSA-C.C. art. 3538, all of which were overruled below. The trial court rendered judgment in favor of Appellee in the sum of $12,096.22. On appeal School Board reurges all of its exceptions save that of Lis Pendens. Alternatively, School Board suggests a remand to fix the amount due Appellee because the record does not show with clarity the salary paid principals during the period involved herein.
THE EXCEPTION OF RES JUDICATA
We are in accord with School Board's contention that a final judgment of a Federal Court may form the basis of a plea of Res Judicata in the courts of this state, Harrell v. Rockett, La.App., 65 So.2d 670. It is elementary, however, that an exception of Res Judicata (the authority of the thing adjudged) must be predicated upon a final judgment.
In this instance, it is conceded that the judgment of the United States District Court rejecting Appellee's demand for reinstatement as principal has been appealed by Appellee. Inasmuch as said judgment has been appealed, and consequently is not final because it is not presently executory, it does not constitute the basis of a plea of Res Judicata.
THE EXCEPTION OF NO CAUSE OF ACTION
This exception is based on the premise that Appellee's petition alleged Appellee to *385 be a tenured teacher, whereas Appellee is requesting payment of salary due a principal without alleging that Appellee is a tenured principal.
In disposing of an exception of no cause of action, all well pleaded allegations of plaintiff's petition must be accepted as true. Leatherman et al. v. Parish of East Baton Rouge, La.App., 275 So.2d 806, and authorities therein cited.
Allegations of a petition must be construed liberally in favor of plaintiff in disposing of an exception of no cause of action. LSA-C.C.P. art. 931.
The crucial issue on trial of an exception of no cause of action is whether plaintiff has alleged facts entitling him to relief under any theory, rule of law or statute whatsoever. Consequently, a trial court may consider pertinent statutes and jurisprudence in deciding an exception of no cause of action. Leatherman, above.
We find the allegation that Appellee is a tenured teacher suffices in this instance. Appellee was appointed principal in or about November, 1960. At the time of Appellee's said appointment, our jurisprudence was established to the effect that a teacher having served his initial three year probationary period, acquired tenure which attached to any subsequent position to which he was promoted and which followed him throughout his entire teaching career. See State ex rel. Bass v. Vernon Parish School Board, La.App., 194 So. 74 (1940); Charbonnet v. Jefferson Parish School Board, La.App., 188 So.2d 143 (1966), and Hayes v. Orleans Parish School Board, La.App., 225 So.2d 131 (1969). These same authorities held that once tenure is acquired, it is not necessary for a teacher to serve a three year probationary period in each successive position to which he might be promoted.
We are cognizant that Act 494 of 1968 (effective July 31, 1968) amended LSA-R.S. 14:444, to provide a three year probationary period for each position to which a teacher might be promoted before permanent status may be achieved therein. It seems clear beyond doubt that Act 494 of 1968 was enacted to supercede the Bass, Charbonnet and Hayes decisions, above. However, Act 494 of 1968 is not retroactive. Hayes v. Orleans Parish School Board, above.
Under the circumstances of this case, Appellee's allegation of tenure must be construed to encompass an allegation of tenure in the position which forms the basis of his demand for salary allegedly due.
THE EXCEPTION OF PRESCRIPTION OF THREE YEARS
In urging that Appellee's claims are barred insofar as concerns salary allegedly due for services rendered more than three years prior to filing of this action, School Board relies upon LSA-C.C. art. 3538 which, in pertinent part, reads as follows:
"Art. 3538. The following actions are prescribed by three years:
. . . . . .
That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences who give lessons by the year or quarter."
We have been cited no case which has had occasion to interpret the foregoing codal provision with respect to the claim of a modern day school teacher.
We begin our consideration of the problem by noting that prescriptive laws are in derogation of common rights and therefore must be strictly construed. Pelican State Associates, Inc. v. Winder, 253 La. 697, 219 So.2d 500; Georgia-Pacific Plywood Co. v. Miller, La.App., 94 So.2d 531.
We note, however, Alexander Hamilton Institute v. Morrison, 8 La.App. 226, which held that the three year prescriptive period provided by Article 3538, above, does not apply to a claim for the balance due on a *386 written contract for a mail order correspondence course. We also note Hughes v. Grant Parish School Board, La.App., 145 So. 794, which held that LSA-C.C. art. 3534, which stipulates a period of one year's prescription on the claims of "masters and instructors in the arts and sciences for lessons which they give by the month", does not apply to a teacher who was employed for a term of 8 months.
In this instance, Appellee does not seek compensation as a teacher, but as a principal. Article 3538, relied upon by School Board, makes no mention or reference to principals. It applies to "teachers ... who give lessons by the year or quarter." In this instance, the record shows that, as a principal, Appellee is paid by the year. There is, however, no showing that as a principal, Appellee gives lessons. Moreover, we judicially note that, as a general rule, the primary function of a principal is that of an administrator or executive rather than the giver of lessons.
We hold, therefore, that Article 3538, sought to be invoked by School Board, is inapplicable herein. We further hold that plaintiff's claim for wages of a school principal is subject to the ten year prescriptive period provided for by LSA-C.C. art. 3544, which provides in effect that all personal actions not otherwise provided for, are prescribed by ten years.
APPELLEE'S CLAIM FOR SALARY DIFFERENTIAL
It is conceded that Appellee lacks a master's degree required by law as one of the qualifications of a principal. The | {
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