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211 F.2d 4 McCULLAGHv.HOUSTON CHRONICLE PUBLISHING CO. No. 14627. United States Court of Appeals Fifth Circuit. March 12, 1954. Rehearing Denied April 9, 1954. Bennett B. Patterson, Cole, Patterson, Cole & McDaniel, Houston, Tex., for appellant; Joseph Kirchheimer, John L. Russell, Houston, Tex., of counsel. Dwight H. Austin, Houston, Tex., for appellee; Liddell, Austin, Dawson & Huggins, Houston, Tex., of counsel. Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges. HOLMES, Circuit Judge. 1 This is a tort action instituted by appellant, a citizen of Great Britain, against the appellee, a corporate citizen of Houston, Texas, for damages sustained by her as the result of a news story and a caricature in the newspaper of appellee. The court sustained appellee's motion to dismiss on the ground that the petition failed to state a claim upon which relief could be granted. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. 2 On January 22, 1951, the appellant, a dancing instructor, received a minor injury while riding as a passenger in a bus of the Houston Transit Company. Subsequently, she filed suit for personal injuries against said company, and the next day the Houston Chronicle, a daily newspaper with a wide circulation, carried on page one of its Sunday edition a story concerning the suit, along with a cartoon or caricature depicting the plaintiff dancing with an animated bus. The headlines of the column read as follows: "Asks $132,500 for `Unreasonable Jerk.' Bus Skips, Dancer Flips, Suit Nips." Appellant also complains of the following phraseology in the article: "A Houston Transit Company bus that did the boomps-a-daisy when it should have been doing a smooth waltz caused a 45-year-old English dancing teacher to file a $132,500 damage suit in federal court Saturday. The lady claimed she did a very ungraceful adagio flip half way up the aisle of a jerky bus * * *" The appellant seeks recovery based on a theory of libel and on a second theory that the article invaded her right of privacy. 3 Libel in Texas has an exclusive statutory definition. The statute, in substance, provides that libel is a defamation expressed in writing or drawing, tending to injure the reputation of one who is alive, thereby exposing him to public hatred, contempt, ridicule, or financial injury, or tending to impeach the honesty, integrity, or reputation of anyone. Article 5430 of Vernon's Ann.Texas Civil Statutes. The courts of Texas have construed said statute to mean that there can be no libel unless the publication claimed to be libelous be a defamation tending to injure or impeach the reputation of the person claimed to have been libeled. Snider v. Leatherwood, Tex.Civ. App., 49 S.W.2d 1107. The appellant does not allege that the article impeached or injured her reputation, and there is no allegation that it impeached her honesty, integrity, or virtue. She alleges only that such caricature and article were defamatory of her, held her up to ridicule, and were libelous because of such fact. 4 A careful examination of the publication complained of convinces us that it fails to contain anything that is defamatory or has a tendency to injure the appellant's reputation. It may be that she has been made the subject of some ridicule but, according to Texas law, this does not give rise to a cause of action for libel. Sweeney v. Caller-Times Pub. Co., D.C., 41 F.Supp. 163. 5 The law of Texas does not recognize a cause of action for a breach of a right of privacy. Some of the earlier Texas cases had inferred that such a cause of action might lie, but the Texas court in Milner v. Red River Valley Publishing Co., Tex.Civ.App., 249 S.W.2d 227, categorically denied the existence of a cause of action on this theory, and held that any right of this nature must arise under the libel statutes. The decisions of Texas courts have foreclosed any cause of action based on the invasion of privacy, and we are constrained to concur in the judgment of the court below. Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732; Harned v. E-Z Finance Co., Tex.Sup., 254 S.W.2d 81. Cf. O'Brien v. Pabst Sales Co., 5 Cir., 124 F.2d 167. 6 The judgment appealed from is affirmed. 7 Affirmed.	{ "pile_set_name": "FreeLaw" }
499 S.W.2d 917 (1973) WOMACK MACHINE SUPPLY COMPANY OF HOUSTON, Appellant, v. FANNIN BANK, Appellee. No. 816. Court of Civil Appeals of Texas, Houston (14th Dist.). September 12, 1973. Rehearing Denied October 3, 1973. Maurice Bresenhan, Jr., Albert H. Wingate, Saccomanno, Clegg, Martin & Kipple, Houston, for appellant. Russell Talbott, Barry N. Beck, Fulbright, Crooker & Jaworski, Houston, for appellee. 918 TUNKS, Chief Justice. "Womack Machine Supply Company of Houston" is the full and correct corporate name of a Texas corporation whose registered office and principal place of business are in Houston, Texas. That corporation will sometimes herein be called the Houston Corporation. "Womack Machine Supply Company" is the name of another Texas corporation whose registered office is in Dallas, Texas. That corporation will sometimes herein be called the Dallas Corporation. There is also a "Womack Machine Supply Company of San Antonio" and a "Womack Machine Supply Company of Louisiana." The Houston corporation is engaged in business as a distributor of fluid power equipment in the Houston area. Apparently the other companies are in the same kind of business in other areas. R. C. Womack owns the controlling share interest in each corporation. Each corporation has other and different shareholders. There is no parent-subsidiary relationship between the corporations. Each has a different set of officers, maintains separate records, has its own bank account and pays its own taxes. In 1966 the Houston Corporation employed one J. L. McIlwain as general office manager. McIlwain had a personal checking account at the Fannin Bank in Houston. His account was number 613-232. The Houston Corporation did not have an account at that bank. In December of 1967 McIlwain presented to someone at that bank a letter on a letterhead that read "Womack Machine Supply Co. Distributors of Fluid Power Equipment". The letter was as follows "December 4, 1967 Fannin Bank P.O. Box 20008 Houston, Texas 77025 Attn: Linda McCollum To Whom it may Concern: This letter is to certify that our employee, Mr. J. L. McIlwain, who is general office manager, is authorized to both cash and deposit checks made payable to Womack Machine Supply Company. Checks that are deposited are to be deposited to account # 613 232. Very truly yours, WOMACK MACHINE SUPPLY COMPANY /s/ R. C. Womack R. C. Womack President RCW/sa cc: J. L. McIlwain cc: WomackDallas" The purported signature of R. C. Womack was, in fact, a forgery. No one with authority to do so ever authorized McIlwain to cash or deposit to his own account checks made payable to either the Houston or the Dallas Corporation. During the period beginning in February, 1967 and ending in May, 1969 McIlwain falsely endorsed and either cashed at Fannin Bank or deposited to his account there about $18,000 worth of checks that belonged to his employer. The checks were given in payment for goods sold or commissions earned by the Houston Corporation. His employer discovered McIlwain's embezzlement in June, 1969. On August 18, 1969, Womack Machine Supply Company filed a motion to perpetuate the testimony of McIlwain and Glenn Harris, Jr., Vice-President of Fannin Bank. On March 25, 1970, suit was filed against Fannin Bank to recover the amount of the checks stolen. In the petition so filed it is recited, "Now comes Womack Machine Supply Company, hereinafter referred to as Plaintiff...." It also recites, "That Womack Machine Supply Company is a corporation duly organized and existing under the laws of the State of Texas and maintains a place of business at 4006 Dennis, Houston, Texas." The name of the plaintiff in the petition was the exact legal name of the 919 existing Dallas Corporation. That name was also used in several amended petitions. The case was tried to a jury. As the evidence was presented it became apparent that the cause of action, if any, proven belonged to the Houston Corporation and not to the Dallas Corporation. After both parties rested the plaintiff on December 7, 1972, requested and was given leave of court to file a trial amendment naming "Womack Machine Supply Company of Houston" as plaintiff. The defendant had already pleaded that all checks negotiated before March 25, 1968, were barred by the two-year statute of limitations. It requested and was given leave to file a trial amendment alleging that the entire cause of action of the Houston Corporation was barred by limitations. Issues were submitted to the jury and a verdict returned. The plaintiff moved for judgment on the verdict and the defendant made a similar motion together with an alternative motion for judgment n. o. v. The trial court rendered judgment for the defendant bank on its motion for judgment n. o. v. reciting that the Dallas Corporation had failed to prove a cause of action and the Houston Corporation's cause of action was barred by limitations. The plaintiff "Womack Machine Supply Company of Houston" has appealed. Most of the cases involving a pleading defect in the naming of a party involve the erroneous naming of a corporate party defendant. The error becomes significant when the wrong party has been sued and served, the correct party does not appear and participate and the statutory period of limitations has run on the cause of action before the error is discovered by the plaintiff. When that occurs, if there is actually existing a corporation with the name of the erroneously named defendant, it is held that the plaintiff sued the wrong party not that he misnamed the correct party and, that since the correct party defendant was not sued within the statutory limitation period, the limitation defense is good. See Stokes v. Beaumont, Sour Lake & Western Railway Co., 161 Tex. 240, 339 S.W.2d 877 (1960); Thomas v. Cactus Drilling Corporation of Texas, 405 S.W.2d 214 (Tex.Civ.App.Austin 1966, no writ) and cases cited there. In Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707, 709 (1901) the Supreme Court set out the following test for the determination of the identity of a cause of action for limitation purposes: "(1) Would a recovery had upon the original bar a recovery under the amended petition? (2) Would the same evidence support both of the pleadings? (3) Is the measure of damages the same in each case? (4) Are the allegations of each subject to the same defenses?" In this case the latter three prongs of the test must all be answered in the affirmative. The real issue centers upon whether the Houston Corporation would have been barred by a recovery under the original petition. It appears from the record that the real party plaintiff was the Houston Corporation from the outset. The plaintiff's original petition stated the address of the plaintiff as 4006 Dennis, Houston, Texas. From the record it appears that the Houston Corporation was the only such entity doing business at this address. On December 17, 1970, attorneys for the appellee took the deposition of Mr. Neal Smith, who stated that he was General Manager and President of Womack Machine Supply Company of Houston, although he owned stock in the Dallas Corporation. The trial judge, in permitting appellant to file a trial amendment changing the name of the plaintiff, stated that: "... the entire pre-trial proceedings in the case show to the Court that that (Womack Machine Supply Company of Houston) was the intended plaintiff and that such was known to Defendant by the records of the case depositions, questions addressed in the Interrogatories, Answers to the Interrogatories, and other proceedings." (Parenthesis added) *920 Therefore, it is apparent that a recovery by the original plaintiff would have barred recovery by the amended plaintiff. Appellee cites a line of cases which draws a distinction between those cases in which the misnomer is that of a nonexistent entity and those in which it is that of an existing entityin the former the action is not barred by limitations and in the latter it sometimes is. Stessel v. Bekins Van & Storage Company, 461 S.W.2d 434 (Tex.Civ.App.San Antonio 1970, no writ); Thomas v. Cactus Drilling Corporation of Texas, 405 S.W.2d 214 (Tex. Civ.App.Austin 1966, no writ); Krenek v. Epps Super Market No. 2, Inc., 377 S. W.2d 753 (Tex.Civ.App.Austin 1964, no writ); Nail v. Wichita Falls & Southern Railroad Co., 294 S.W.2d 431 (Tex.Civ. App.Fort Worth 1956, no writ); Cosand v. Gray Wolfe Co., 262 S.W.2d 547 (Tex. Civ.App.Galveston 1953, no writ). These cases may be distinguished from the present case because they each involve the situation of a misnamed defendant. In this case suit was brought by a plaintiff under a misnomer. The rationale behind this difference was capably stated in Wisconsin Chair Co. v. I. G. Ely Co., 91 S.W	{ "pile_set_name": "FreeLaw" }
220 Cal.App.3d 1286 (1990) 270 Cal. Rptr. 41 JONG T. HUANG, Petitioner and Appellant, v. BOARD OF DIRECTORS, ST. FRANCIS MEDICAL CENTER et al., Defendants and Respondents. Docket No. B037597. Court of Appeals of California, Second District, Division Seven. April 24, 1990. 1288 COUNSEL Robert D. Walker for Petitioner and Appellant. 1289 Weissburg & Aronson, Kenneth M. Stern and Patricia Y. Miller for Defendants and Respondents. OPINION LILLIE, P.J. Jong T. Huang, a licensed and practicing physician, appeals from a judgment denying his petition for writ of mandate (Code Civ. Proc., § 1094.5) to compel St. Francis Medical Center (hospital) to set aside its order suspending his medical staff privileges for six months and imposing conditions upon his resumption of staff privileges at the conclusion of the suspension. FACTUAL AND PROCEDURAL BACKGROUND Hospital Proceedings On February 23, 1987, Sandra Taylor, a registered nurse employed by the hospital, wrote a memorandum to Dr. Celso Chavez, chief of staff, stating that on February 23 she saw Dr. Huang examine a patient in the hospital lobby and that such conduct was "totally unacceptable medical practice." Nurse Taylor subsequently wrote another memorandum (to Dr. Chavez and Sister Elizabeth Keaveney, president of the hospital) complaining that Dr. Huang had threatened her, telling her that "something [was] going to happen to" her if she refused to retract the charge made in her first memorandum. On March 18, 1987, Nurse Taylor was served with process in a small claims court action brought against her by Dr. Huang to secure a judicial determination that he did not examine a patient in the lobby and to have Taylor's accusation that he did so removed from his file. At the hearing on the action (Mar. 26, 1987) Dr. Huang was told that small claims court was not the proper forum for resolution of the issue, and the matter was placed off calendar. On the evening of March 26, Dr. Huang attended a meeting of the hospital's medical executive committee at which he was allowed to give his version of the events about which Taylor had complained to the chief of staff and the hospital president. On March 27, 1987, the medical executive committee summarily suspended Dr. Huang's medical staff membership and clinical privileges at the hospital for six months at the conclusion of which he was required to provide evidence of having completed a behavior modification program approved by the medical executive committee, followed by two years' probation. Written notification of the medical executive committee's action, sent to Dr. Huang, stated that the suspension was imposed "as a result of 1290 the recurrence of your disruptive behavior for which you have previously been counselled and for the reason that your continued disruptive behavior severely impacts hospital operations and staff charged with the responsibility of insuring quality patient care delivery." Pursuant to the hospital's medical staff bylaws Dr. Huang requested a hearing on his summary suspension before a judicial review committee. In response to the request a judicial review committee of five physicians was appointed and Dr. Huang was given written notice of the charges against him, namely: (1) In July 1985 an ad hoc committee at the hospital found that Dr. Huang had exhibited inappropriate behavior toward the nursing staff and improperly examined patients in public rooms; the committee concluded that a 30-day suspension was warranted but instead placed Dr. Huang on probation; however, as indicated below, his conduct condemned in 1985 has continued. (2) On February 23, 1987, despite warnings not to do so, Dr. Huang examined a patient in the lobby of the hospital instead of in a treatment room or private area. (3) Beginning on or about February 23, 1987, and continuing until his suspension, Dr. Huang repeatedly verbally abused and threatened Nurse Taylor, who reported his improper examination of a patient to the chief of staff. (4) Dr. Huang's actions indicate behavioral and attitudinal problems which commenced prior to 1985 and reappeared in 1987; these problems require that he satisfactorily complete a behavior modification program before resuming practice at the hospital. The notice of charges concluded by stating that Dr. Huang's actions "demonstrate a substantial and imminent likelihood of significant impairment to the life, health and safety of patients in this facility, prospective patients and other persons...." At the hearing before the judicial review committee Nurse Taylor testified: On February 23, 1987, she saw a patient seated in a chair off the front lobby of the hospital; one of the legs of the patient's pants was rolled up over her knee and Dr. Huang was "bent over that knee." The same day Nurse Taylor wrote a memorandum to the chief of staff describing what she had seen. About a week later Dr. Huang telephoned Nurse Taylor at work. He was very angry, called her a troublemaker, and insisted that she retract the statements she made in the memorandum. He told her that if she did not, "something was going to happen to" her. The day after the telephone call, Dr. Huang threw open the door of Nurse Taylor's office, entered, and "started yelling." He told Nurse Taylor she had caused a lot of trouble and, pointing his finger in her face, added: "Something's going to happen to you"; he then walked out of the office and slammed the door. Nurse Taylor wrote a memorandum to the chief of staff and the hospital's president describing both the telephone call from Dr. Huang and his visit to her office. On two occasions after he came to Nurse Taylor's office Dr. Huang 1291 stood in the medical records department outside her office and looked at her; he did not say anything but "would just stand there and just look." Under questioning by Dr. Huang's counsel, Nurse Taylor admitted that when Dr. Huang told her something was going to happen to her he could have meant that he was going to file the small claims action against her. She further admitted that she was not injured in any way by Dr. Huang and that to her knowledge he never had attacked anyone at the hospital or damaged anyone's property. Dr. Huang testified: He did not make the statements attributed to him in the 1985 ad hoc committee report, including the statement that he agreed he had problems in his relations with the nursing staff. He did not examine a patient in the lobby of the hospital on February 23, 1987; he merely sat and listened to the patient's complaint. After he learned Nurse Taylor had accused him of examining a patient in the lobby he telephoned her. He tried to convince her that he did not examine a patient in the lobby and requested that she withdraw her complaint that he did; she refused. During the telephone conversation Dr. Huang did not tell Nurse Taylor that something would happen to her; he said he would do his best to have her complaint removed from his file, including taking legal action. Near the end of the call Dr. Huang assured Nurse Taylor that he was not angry at her and apologized for his tone of voice. Dr. Huang went to Nurse Taylor's office because he was curious to know who she was and wanted to try again to convince her to withdraw her complaint against him. He found the door of the office ajar. When he knocked on the door it opened and he entered. Nurse Taylor was very angry and accused him of entering her office without knocking. She asked him to leave and he left; he did not slam the door on his way out. Dr. Huang denied threatening Nurse Taylor or trying to scare her either during the telephone conversation or in her office. The judicial review committee rendered a written decision in which it found: Charge No. 1 (regarding the 1985 report of the ad hoc committee) is true; however, the facts reflected in the report do not support the decision of the medical executive committee to summarily suspend Dr. Huang because those facts do not demonstrate a substantial and imminent likelihood of significant impairment to the life, health and safety of patients, prospective patients or other persons in the hospital. Dr. Huang did not examine a patient in the lobby of the hospital on February 23, 1987, and did not thereafter verbally abuse and threaten Nurse Taylor. Dr. Huang's actions do not indicate behavioral and attitudinal problems which require correction. Based on these findings the judicial review committee concluded that the medical executive committee did not demonstrate by a preponderance of the evidence that its summary suspension of Dr. Huang's medical staff privileges was reasonable. *1292 The medical executive committee appealed the decision of the judicial review committee on the ground it was not supported by substantial evidence.[1] The appeal was heard by a quorum of the hospital's board of directors (appeal board). The appeal board made the following determinations: Dr. Huang made the statements attributed to him in the 1985 ad hoc committee report and his denial that he made those statements raises a question of his credibility. Substantial evidence supports the finding of the judicial review committee that Dr. Huang did not examine a patient in the hospital lobby. However, there is no substantial evidence to support the finding that Dr. Huang did not verbally abuse and threaten Nurse Taylor. The medical executive committee had a sufficient basis for summarily suspending Dr. Huang's medical staff privileges because of his repeated attempts to intimidate and threaten Nurse Taylor. Given Dr. Huang's questionable credibility it is inappropriate to place him back on the staff until he has completed a behavior modification course recommended by the medical executive committee. Based on its determinations the appeal board overruled the action of the judicial review committee and affirmed the action of the medical executive committee. Superior Court Proceedings Dr. Huang filed a petition for writ of mandate directing the hospital to set aside the decision of the appeal board. The petition alleged: The hospital acted unlawfully in suspending petitioner without first giving him a hearing and an opportunity to defend himself	{ "pile_set_name": "FreeLaw" }
550 N.W.2d 577 (1996) 216 Mich. App. 653 Brad Lee TRIERWEILER, a minor, by his Next Friend, Eileen G. TRIEWEILER, Plaintiff-Appellee, v. FRANKENMUTH MUTUAL INSURANCE COMPANY, Defendant-Appellant. Docket No. 179443. Court of Appeals of Michigan. Submitted March 19, 1996, at Lansing. Decided May 17, 1996, at 9:15 a.m. Released for Publication July 12, 1996. 578 Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C. by George T. Sinas and Steven A. Hicks, Lansing, for plaintiff. Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James L. Borin and Anne K. Newcomer, Detroit, for defendant. Before HOLBROOK, P.J., and TAYLOR and NYKAMP,[] JJ. TAYLOR, Judge. In this underinsurance-benefits case, defendant appeals as of right an order of the lower court granting summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(10). We reverse and remand for entry of a judgment in favor of defendant. Plaintiff was a passenger in a farm tractor owned and operated by his father. A speeding, intoxicated driver smashed into the rear of the tractor, causing severe injuries to plaintiff. A civil lawsuit against the driver was settled for the driver's insurance policy limit of $50,000. Plaintiff was considered an insured person under an automobile insurance policy issued by defendant to his father. Plaintiff's injuries were far in excess of the $50,000 he obtained from the driver so he sought underinsurance benefits under his father's policy with defendant. Defendant denied that underinsurance coverage existed because the underinsured-benefits portion of the policy excluded coverage for anyone injured while occupying a "land motor vehicle" owned by a family member and not insured under the policy. As a consequence of defendant's position, plaintiff initiated suit. The parties agreed that plaintiff's entitlement to underinsurance benefits would be determined by the court through summary disposition. Plaintiff claimed that the definition of an "auto" found in the mandatory no-fault portion of the insurance policy, which excluded farm tractors, should control the definition given to "land motor vehicle" in the exclusionary language on which defendant was relying. Accordingly, plaintiff then concluded that a "land motor vehicle" would not include a farm tractor, and he was not excluded from securing benefits under the underinsurance portion of the policy. Defendant, on the other hand, argued that the exclusion was in a nonmandatory portion of the policy so that the no-fault act and its definitions did not apply, and the issue was only one of contract interpretation of the exclusion in the underinsurance agreement. Defendant then continued by arguing that there was no ambiguity in the contract and that the court should rule as a matter of law that a farm tractor is a "land motor vehicle" so that underinsurance coverage did not exist. Following argument, the court agreed with plaintiff's arguments and granted plaintiff's motion for summary disposition. We review de novo the trial court's ruling on a motion for summary disposition to determine whether the pleadings or the uncontroverted documentary evidence established that a party is entitled to judgment as a matter of law. MCR 2.116(I)(1); Asher v. 579 Exxon Co., U.S.A., 200 Mich.App. 635, 638, 504 N.W.2d 728 (1993). The existence of either circumstance merits a grant of summary disposition. Id. The insurance policy at issue is in two sections. Parts A through C pertain to coverages mandated by the no-fault act. In the definitions for parts A through C of the policy, "auto" is defined to mean "a motor vehicle or trailer required to be registered in this state, operated or designed for use on public roads" and specifically excludes farm tractors. This definition is consistent with the statutory definition of motor vehicle found in the no-fault act. M.C.L. § 500.3101(2)(e); M.S.A. § 24.13101(2)(e). As noted by defendant, the Legislature amended the definition of "motor vehicle" in the no-fault act in 1984 to specifically exclude farm tractors. State Farm Mutual Automobile Ins. Co. v. Wyant, 154 Mich.App. 745, 748, n. 2, 398 N.W.2d 517 (1986). Before the 1984 amendment of the definition of "motor vehicle," a tractor was considered a "motor vehicle" under the no-fault act. Pioneer State Mutual Ins. Co. v. Allstate Ins. Co., 417 Mich. 590, 339 N.W.2d 470 (1983). The policy language regarding underinsured-motorist coverage is found in the second section of the policy (part E). The exclusionary language relied on by defendant states as follows: A. We do not provide Underinsured Motorists Coverage for bodily injury sustained by any person: 1. While occupying, or when struck by, any land motor vehicle owned by you or any family member which is not insured for this coverage under this policy. The phrase "land motor vehicle" is not defined in the policy. In interpreting an insurance policy, this Court construes clear and unambiguous provisions according to the plain and ordinary meaning of the terms used in the policy. Id. A provision is ambiguous when its words may reasonably be understood in different ways. An ambiguous insurance policy is to be construed against the drafter and in favor of coverage. Id. Exclusionary clauses in insurance policies are strictly construed in favor of the insured. Auto-Owners Ins. Co. v. Churchman, 440 Mich. 560, 567, 489 N.W.2d 431 (1992). However, coverage under a policy is lost if any exclusion in the policy applies to an insured's particular claim. Id. Clear and specific exclusions must be given effect. Id. An insurance company should not be held liable for a risk it did not assume. Id. An insurer is free to define or limit the scope of coverage as long as the policy language fairly leads to only one reasonable interpretation and is not in contravention of public policy. Heniser v. Frankenmuth Mutual Ins., 449 Mich. 155, 161, 534 N.W.2d 502 (1995). Initially, we find that the trial court erred in looking to the no-fault act's definition of "motor vehicle" in determining that a "land motor vehicle" effectively excluded farm tractors. In Bianchi v. Automobile Club of Michigan, 437 Mich. 65, 68, 467 N.W.2d 17 (1991), the Court construed uninsured-motorist coverage and stated that, because this coverage is not required, the provisions of the no-fault act were not applicable. Thus, this Court looks to the policy language to determine if benefits are provided. Auto-Owners Ins. Co. v. Leefers, 203 Mich.App. 5, 10-11, 512 N.W.2d 324 (1993); Rohlman v. Hawkeye-Security Ins. Co., 442 Mich. 520, 525, 502 N.W.2d 310 (1993). The fact that the policy does not include a definition of "land motor vehicle" does not create an ambiguity. Group Ins. Co. v. Czopek, 440 Mich. 590, 596, 489 N.W.2d 444 (1992) (omitting from an insurance policy the definition of a word that has a common usage does not create an ambiguity within the policy). Indeed, the Legislature's decision to exclude farm tractors from the definition of "motor vehicle" in the no-fault act likewise suggests that, in its popular and ordinary sense, "motor vehicle" is understood to include farm tractors. Auto-Owners Ins. Co. v. Ellegood, 149 Mich.App. 673, 677, 386 N.W.2d 640 (1986). We further note that the exclusionary phrase defendant relies upon is "land motor vehicle" and not just "motor vehicle." The addition of the word "land" must be accorded meaning, Churchman, supra at 566, 489 580 N.W.2d 431. Because a motor vehicle in the no-fault act is, by definition, a vehicle designed for use on public roads, the use of land as an adjective modifying motor vehicle in the underinsurance section of the policy must, by a plain reading, mean the vehicle anticipated was more than a vehicle that would travel only on roads. While most motor vehicles travel only on roads, farm tractors routinely travel on land that is not a highway. It is, therefore, entirely appropriate under principles of contract interpretation to consider a tractor a "land motor vehicle" even though a farm tractor is not an "auto" under the no-fault portion of the insurance policy. In Farm Bureau Mutual Ins. Co. v. Stark, 437 Mich. 175, 183, 468 N.W.2d 498 (1991), the Court said the phrase "land motor vehicle," found in a homeowner's insurance policy, taken and understood in its plain, ordinary, and popular sense, would include a moped and that a "land motor vehicle," simplistically described, is a vehicle with a motor that travels on land. Plaintiff contends that this language from Stark, supra, is inapplicable because the Court was construing a homeowner's policy and because the Stark policy contained	{ "pile_set_name": "FreeLaw" }
815 F.2d 79 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Stephen Wayne RAMSEY, Plaintiff-Appellant,v.P.W. KEOHANE, Warden, et al., Defendants-Appellees. No. 85-5951. United States Court of Appeals, Sixth Circuit. Jan. 20, 1987. Before KEITH, KRUPANSKY and GUY, Circuit Judges. ORDER 1 This pro se federal prisoner appeals from a district court judgment dismissing his habeas corpus petition filed under 28 U.S.C. Sec. 2241. 2 Upon review of the cause in light of the arguments raised by the parties in their respective appellate briefs, this Court concludes that the district court properly dismissed petitioner's action. For the most part, petitioner's claims challenging the accuracy of evidence relied upon by the Parole Commission in determining his presumptive parole date are simply not subject to judicial review. See Farkas v. United States, 744 F.2d 37 (6th Cir.1984). To the extent they are reviewable, we conclude that the Parole Commission's decision is based upon a rational basis and upon reliable hearsay evidence which has sufficient corroborating details to support the agency's action. 3 For these reasons, this panel unanimously agrees that oral argument is not necessary in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The district court's judgment is, accordingly, affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.	{ "pile_set_name": "FreeLaw" }
368 F.3d 49 Luis A. ACEVEDO-GARCIA et al., Plaintiffs, Appellees,v.Roberto VERA-MONROIG, Individually and as Mayor of Adjuntas; Municipality of Adjuntas; Irma M. Gonzalez-Delgado, Individually and as Personnel Director of Adjuntas, Defendants, Appellants. No. 03-2103. No. 03-2292. United States Court of Appeals, First Circuit. Heard May 5, 2004. Decided May 19, 2004. Jorge Martinez Luciano, with whom Johanna Emmanuelli and Law Offices of Pedro Ortiz Álvaraz, P.S.C. were on brief, for the Municipality of Adjuntas and the individual appellants in their official capacities. Luis Villares Sarmiento, with whom Sanchez-Betances & Sifre, P.S.C. was on brief, for the individual appellants in their personal capacities. Gael Mahony, with whom Pamela O'Brien, Holland & Knight LLP and Israel Roldan-Gonzalez were on brief, for appellees. Before SELYA, Circuit Judge; COFFIN, Senior Circuit Judge; and LYNCH, Circuit Judge. LYNCH, Circuit Judge. 1 In these appeals, we address the willful and longstanding efforts of a Puerto Rico municipality, its mayor, and its personnel director to obstruct and delay the payment of a $6.9 million jury award in a civil rights case. This is the fourth time this case has come before this court.1 2 In November 2001, a jury awarded verdicts totaling $6,956,400 against the Municipality of Adjuntas in Puerto Rico (the Town), its mayor, Roberto Vera-Monroig (Vera), and its personnel director, Irma Gonzalez-Delgado (Gonzalez). The jury found that the defendants had engaged in political discrimination in violation of the First Amendment when, after Vera won the 1996 mayoral election, they systematically laid off municipal employees who were members of the opposing political party. Cf. Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (dismissal of a public employee based solely on political allegiance violates the First Amendment). The verdicts won by the twenty plaintiffs in this case — a subset of the 82 employees who sued the defendants after being terminated from career positions with the Town — included punitive damages awards of $300,000 against each of the two individual defendants in their personal capacities. This court upheld the verdicts in December 2003. Acevedo-Garcia v. Vera-Monroig (Acevedo-Garcia III), 351 F.3d 547, 577 (1st Cir.2003) (rehearing and rehearing en banc denied Feb. 17, 2004). 3 These appeals arise more than two years after the plaintiffs' first attempt to collect the judgment, which remains unpaid. Two questions are presented: (1) whether the district court erred when it required the Town to include a sum sufficient to satisfy the judgment in its 2003-2004 budget, and (2) whether the court improperly required the reinstatement of the twenty plaintiffs as a contempt sanction for the Town's failure to comply with that order. We affirm the district court's decision to issue the budget-inclusion order but vacate and remand for recalculation of the amount. As to the contempt sanction, we affirm the finding of contempt but vacate the reinstatement order and remand for consideration of alternative sanctions. I. 4 The jury returned verdicts for the plaintiffs on November 23, 2001, and the district court entered judgment accordingly on December 3, 2001. On December 20, the court awarded the plaintiffs an additional $96,300 in attorneys' fees and costs. A few months later, in March 2002, the court denied the plaintiffs' motion for reinstatement. The defendants did not file a motion to stay the judgment under Fed.R.Civ.P. 62. 5 On April 29, 2002, the plaintiffs made their first effort to execute on the judgment. From Vera and Gonzalez in their personal capacities, the plaintiffs sought immediate payment of the punitive damages awards; from the Town,2 they sought an order requiring the remaining judgment sum and attorneys' fees and costs to be included in the municipality's 2002-2003 budget. The plaintiffs' motion relied on 21 P.R. Laws Ann. § 4303(c), which requires municipalities in Puerto Rico to include outstanding court judgments in their annual budgets, and on Fed.R.Civ.P. 69, which provides that federal judgments shall be executed in accordance with local law. The defendants opposed the motion, arguing that they should be entitled to a stay of execution pending appeal without posting a bond or providing other security because, in light of the Town's recurring budget cycle, there was no risk that the plaintiffs would be unable to collect. 6 On May 16, 2002, the district court granted the plaintiffs' motion. Citing § 4303(c), it ordered the Town to include in its budget for the 2002-2003 fiscal year the sum of $6,956,400, plus the $96,300 fees and costs award, plus appropriate post-judgment interest. In addition, the court required Vera and Gonzalez to pay the punitive damages award immediately, but it permitted them to stay execution pending appeal by posting a $600,000 supersedeas bond. The Town sought an emergency stay of execution from this court. We granted only a temporary ten-day stay to allow the Town to post an appropriate bond or present its arguments for a longer stay to the district court.3 Acevedo-Garcia v. Vera-Monroig (Acevedo-Garcia II), 296 F.3d 13, 18 (1st Cir.2002) (per curiam). 7 The defendants returned to the district court, which generously allowed the Town extra time to develop its arguments. The Town urged the court to grant it a stay of execution pending appeal without any requirement for a supersedeas bond or other judgment security. It represented: 8 Due to the recurring nature of the Municipality's budget and its ability to obtain large scale financing from the Government Development Bank, it has the financial ability to pay the outstanding monetary judgment, shall the same be affirmed. 9 In response, the plaintiffs agreed to drop their objection to a stay of execution if the Town could provide proof that the Government Development Bank was prepared to loan the Town sufficient funds to cover the judgment. 10 On August 26, 2002, the district court accepted the defendants' argument, subject to the condition recommended by the plaintiffs. The court informed the Town that it would stay execution of the judgment if, by October 3, 2002, the Town could produce a certified letter of intent from the Government Development Bank guaranteeing Adjuntas a loan large enough to satisfy the judgment in the event the judgment were affirmed by this court.4 The court specified that the amount of the guaranteed loan had to be at least $6,356,400 (i.e., the full judgment amount minus the punitive damages awards). The court warned: "No extensions of time will be granted. Failure to abide by this order shall result in severe sanctions, including execution of judgment." 11 For whatever reason, the Town did not live up to its representations. The Government Development Bank turned down the Town's request for a loan, and the court was so informed on October 3, 2002. The Town offered no other security, though Vera and Gonzalez in their personal capacities complied with the court's order and posted a supersedeas bond to secure the punitive damages awards. One week later, plaintiffs petitioned for a writ of execution as to the Town. The Town did not respond, however, and the district court did not rule on the motion. And there matters sat. 12 Nearly four months later, on February 4, 2003, the plaintiffs renewed their motion with the district court. They asked the court to order the Town to include the judgment sum in its 2003-2004 budget, pointing out that although nearly nine months had passed since the court's first budget-inclusion order, Adjuntas had neither included the judgment in its 2002-2003 budget nor obtained the promised loan guarantee from the Government Development Bank. Again, there was no response from the Town. 13 On February 13, 2003, the district court granted the plaintiffs' motion. The court ordered the Town to include in its budget for fiscal year 2003-2004 the entire amount of the judgment ($6,956,400), plus the fees and costs award ($96,300), plus post-judgment interest. 14 The Town did not appeal this order. Nor did it comply. Nor, indeed, did it inform the district court of its failure to comply. It was the plaintiffs who finally brought the Town's noncompliance to the court's attention in a July 3, 2003 motion. The plaintiffs appended to their motion a "certification" issued by the Town's Director of Finance stating that the Town had not assigned "any entry of expenditure" to satisfy the judgment. They asked that the court order Vera, as mayor, to show cause why he should not be held in contempt of court. 15 The Town filed an opposition to the show cause order on July 11. It said that Vera had tried to include the judgment in the Town's 2003-2004 budget but was precluded from doing so under Article 19.013 of the Puerto Rico Autonomous Municipalities Act, 21 P.R. Laws Ann. § 4912, pursuant to which (according the Town) the municipality would be "autom	{ "pile_set_name": "FreeLaw" }
NO. 07-12-00177-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 16, 2012 _____________________________ KELLY DON FARRAR, Appellant v. THE STATE OF TEXAS, Appellee _____________________________ FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; NO. 21,964-C; HONORABLE ANA ESTEVEZ, PRESIDING _____________________________ Memorandum Opinion _____________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant Kelly Don Farrar pled guilty in 2011 to four counts of endangering a child and was sentenced to twenty-four months confinement and a $500 fine on each count, suspended for three years. On October 25, 2011, the State filed a motion to revoke appellant’s probation. After a hearing, the court found appellant had violated his probation and sentenced him to his original punishment. In challenging those convictions, he claims he received ineffective assistance of counsel. We disagree and affirm the judgments. It is appellant’s burden to prove that his counsel was deficient and that the deficiency caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). Furthermore, he must do so by a preponderance of the evidence, Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999), and there is a strong presumption that counsel’s conduct falls within a wide range of reasonably professional assistance. Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Here, appellant alleged that counsel was ineffective for failing to convey to the State his acceptance of a plea offer prior to the revocation proceeding. The matter was addressed via a hearing upon defense counsel’s motion to withdraw. According to appellant’s own testimony, he was unhappy with his counsel because the latter allegedly failed to accept a plea offer of fifteen months. The fifteen-month offer had been relayed from defense counsel to appellant, and appellant responded by directing his attorney to see if he could “get a lower offer.” Counsel did as directed but met with no success. Instead, he was told by the Randall County District Attorney that the State did not want “to proceed with anything here in Randall County until Lubbock County messed with their charges.” Thereafter, defense counsel told appellant that no lower offer from the State was forthcoming, to which appellant supposedly replied that: “if fifteen months was the best [he] was going to get, that [he] would rather take that than… bring it to trial and risk getting twenty-four months.” Defense counsel then inquired of the State, shortly before the hearing, whether the fifteen-month offer stood, and the State responded no. Instead, it offered appellant 2 a jail term of sixteen months. The offer was rejected, and appellant opted to proceed with the revocation hearing. In view of the foregoing, we make the following observations. The first pertains to the harm or prejudice aspect of the Strickland test. The harm alluded to by appellant involved his having received the maximum sentence of twenty-four months once the decision to revoke probation was made. This sentence is attributable to defense counsel, or so the argument goes. Yet, he says nothing about his rejection of the sixteen-month offer made by the State at the hearing. Instead of accepting it and thereby avoiding the “risk [of] getting twenty-four months” by submitting to “trial,” he decided to submit to trial. Thus, it cannot be said that the conduct attributed to his attorney resulted in the sentence ultimately levied. Our second observation is the tenor of appellant’s own testimony. He posits before us that his testimony was the only evidence before the trial court since his counsel was never sworn as a witness. Assuming, arguendo, that the proposition is correct, it does him no good. 1 This is so because appellant’s own words authorized the trial court to rule as it did. Again, he testified that he 1) informed counsel to inquire into the possibility of a lower offer, and 2) had been told both that no “counteroffer” was forthcoming and that the State would not proceed with the Randall County charges until those in Lubbock County were addressed. The State choosing not to proceed with the Randall County charges hardly connotes that the fifteen-month offer remained available when appellant deigned to accept it. Rather, it suggests the contrary. And, no one can dispute that legal counsel is forbidden from accepting a plea offer for his client unless 1 We think it appropriate to extend appellant’s premise to include any comments uttered by the prosecutor as well for they too were unsworn. It would seem inconsistent to consider unsworn comments from the prosecutor when we supposedly must ignore like comments from defense counsel. 3 and until the client actually accepts it. So, if there was no offer that could be accepted when appellant finally decided to accept it, counsel’s supposed failure to accept the non-existing offer is not improper conduct. Third, as factfinder, the trial court was free to assess appellant’s credibility when making its decision. See Mazratian v. State, 961 S.W.2d 353, 358 (Tex. App.–Houston [1st Dist.] 1997, no pet.) (stating that a trial court possesses broad discretion in assessing the credibility of the witnesses and in weighing the evidence). Because of that, it could well have discredited appellant’s testimony that he did not reject the fifteen- month offer. Appellant’s issue is overruled, and the judgments are affirmed. Brian Quinn Chief Justice Do not publish. 4	{ "pile_set_name": "FreeLaw" }
Third District Court of Appeal State of Florida Opinion filed June 28, 2017. THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY FURTHER MOTION FOR REHEARING AND/OR MOTION FOR REHEARING EN BANC. ANY PREVIOUSLY-FILED MOTION FOR REHEARING EN BANC IS DEEMED MOOT. ________________ No. 3D15-1062 Lower Tribunal No. 14-3721 ________________ MP, LLC, Appellant, vs. Sterling Holding, LLC, etc., et al., Appellees. An Appeal from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge. Joel S. Perwin, P.A., and Joel S. Perwin; Heller Waldman, P.L., and Glen H. Waldman and Jason Gordon, for appellant. Duane Morris LLP, and Harvey W. Gurland, Jr., for appellee TD Bank, N.A. Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.  Judge Fernandez did not participate in oral arguments. ON MOTION FOR REHEARING ROTHENBERG, J. We grant the appellant’s motion for rehearing, withdraw our opinion filed on December 21, 2016, and substitute the following opinion in its place.1 The trial court granted TD Bank, N.A.’s (“TD”) motion to dismiss MP, LLC’s (“MP”) claims against TD based on the conclusion that the complaint fails to allege sufficient facts to support MP’s claims against TD. Because the facts alleged are more than sufficient to withstand dismissal, we reverse. Although MP has sued multiple defendants, its claims against TD are contained in Counts II and VII for civil conspiracy; Count IV for violation of Florida’s RICO Act statute; and Count X for aiding and abetting another defendant’s breach of its fiduciary duties to MP. Before addressing the allegations, it is important to note that TD is the successor in interest to Mercantile Bank (“Mercantile”), and because they represent one entity, they will be referred to either as “the Bank” or, when appropriate, the specific bank will be identified. 1 The appellant, MP, LLC, filed a motion for rehearing en banc of the original panel opinion. Pursuant to this Court’s Internal Operating Procedures, when a motion for rehearing en banc is unaccompanied by a motion for rehearing, the motion for rehearing en banc is treated as including a motion for rehearing which must be ruled upon by the panel. Wade v. State, 57 So.3d 993, 994 (Fla. 3d DCA 2011); see also Romero v. State, 870 So. 2d 816, 818 (Fla. 2004) (“By treating motions for rehearing en banc as including motions for rehearing, the Third District adheres to the spirit of Florida Rule of Appellate Procedure 9.040(d), which is to ‘disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.’”). 2 The operative complaint alleges as follows. While Mercantile was negotiating its takeover by TD, Mercantile realized that it needed to shore up its portfolio of non-performing loans in order to maximize the sales price and to avoid governmental scrutiny. Thus, the complaint alleges that Mercantile conspired with the four majority members (“the Majority Members”) of Sterling Holding, LLC (“Sterling”) and other entities owned by the Majority Members of Sterling (“the Non-Sterling Entities”) without the knowledge and to the detriment of the plaintiff, MP, which was a Minority Member of Sterling. At the time of the alleged conspiracy, the breakdown of Sterling’s membership interests was as follows: Arriaga Enterprises owned a 25% interest; Howard Family Partners owned a 25% interest; Raffaele Williams owned a 25% interest; Scott Weinberg owned a 12.5% interest (combined, “the Majority Members of Sterling”); and MP owned a 12.5% interest. MP claims that in early 2010, when Mercantile was being sold to TD, the Non-Sterling Entities were in financial trouble or in default of their loans with Mercantile and that these loans were the largest non-performing loans in Mercantile’s portfolio. Thus, MP claims that Mercantile conspired with the Non-Sterling Entities and the Majority Members of Sterling (who all had membership interests in the Non-Sterling Entities) to cross-collateralize these non-performing loans with solvent property owned by Sterling. 3 To consummate the transaction, MP’s signature was required. However, because the Majority Members of Sterling and Mercantile believed that MP would never agree to the dilution of Sterling’s interest to benefit the Bank and the Non- Sterling Entities, which MP had no interest in, and that MP would most likely move to enjoin the transaction and draw unwanted attention and scrutiny, MP was not told about the transaction, which closed in April 2010. In addition to not informing MP about the transaction, the complaint alleges that the Sterling defendants created fraudulent documents omitting MP as a member of Sterling, and the Bank, which had full knowledge of MP’s membership interest in Sterling, accepted these fraudulent documents and consummated the cross- collateralization. MP further alleges that in January 2014, the Bank declared a technical default of its loans to Sterling and the Non-Sterling Entities for failure to obtain the requisite insurance and to escrow two months of property taxes. Because Sterling’s loan could not be carved out from the properties owned by the Non- Sterling Entities due to the cross-collateralization, a short sale was conducted and MP’s 12.5% interest in Sterling was rendered worthless. The trial court dismissed with prejudice MP’s fifth amended complaint based on: (1) MP’s failure “to narrow its legal theories to those most likely to sustain legal analysis under the facts”; (2) the trial court’s inability to “identify in 4 this repeated effort at pleading, any duty to MP which TD Bank breached”; (3) MP’s failure to plead any facts demonstrating the Bank’s actual knowledge that the documents it relied on, and which failed to reflect MP’s existence, were false; (4) MP’s failure to plead the elements of conspiracy as to the Bank; and (5) MP’s failure to allege any facts demonstrating any action taken by the Bank to defraud MP. The trial court essentially found that if any fraud, conspiracy, or wrongdoing took place, it was without the Bank’s knowledge and participation. As will be demonstrated below, the complaint clearly and repeatedly alleged the Bank’s actual knowledge and participation in the alleged wrongdoing. The dissent agrees with the trial court that the Bank’s alleged wrongdoing is not actionable in tort. While we agree that generally the relationship between a lender and a borrower is contractual and thus does not normally extend the duties past what are contractually required, in this case, MP has alleged that the Bank conspired with the Sterling defendants to commit tortious acts against MP, and that the Bank itself committed tortious acts against MP for its own benefit. While we recognize that the allegations are just that – allegations, they are sufficiently pled to withstand dismissal for failure to state a cause of action. STANDARD OF REVIEW Because the trial court was ruling on a motion to dismiss the complaint, rather than on a motion for summary judgment, the trial court was “required to 5 ‘treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to the plaintiffs.’” Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 734-35 (Fla. 2002) (quoting Hollywood Lakes Section Civil Ass’n v. City of Hollywood, 676 So. 2d 500, 501 (Fla. 4th DCA 1996)). Whether the allegations in the complaint are sufficient to state a cause of action is an issue of law, which we review de novo. Siegle, 819 So. 2d at 734. THE ALLEGATIONS I. Counts II and VII, Civil Conspiracy The elements of a claim for civil conspiracy are: “(a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas OPINION No. 04-12-00866-CR Larry DIEKEN, Appellant v. The STATE of Texas, Appellee From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 11-1564-CR Honorable Gary L. Steel, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Catherine Stone, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice Delivered and Filed: April 16, 2014 AFFIRMED Appellant Larry Dieken pled guilty to aggravated assault with a deadly weapon, and the jury assessed punishment at life imprisonment and a fine. The trial court imposed the sentence, appointed appellate counsel, and ordered Dieken to pay attorney’s fees for his court-appointed trial counsel. Dieken appealed. His court-appointed appellate counsel filed an Anders brief, and Dieken filed a pro se brief. We agree with Appellant’s court-appointed counsel there are no arguable issues on appeal pertaining to Dieken’s conviction, but we separately address the trial 04-12-00866-CR court’s order for Dieken to reimburse the county for his court-appointed attorney’s fees. We affirm the trial court’s judgment. BACKGROUND Appellant Larry Dieken was indicted for first degree aggravated assault with a deadly weapon causing serious bodily injury to a household member. Dieken pled guilty before the jury, and the jury assessed punishment at confinement in the Texas Department of Criminal Justice— Institutional Division for a term of life and a fine of $10,000.00. The trial court orally ordered the punishment assessed by the jury and further ordered Dieken to pay all fines and court costs. Subsequently, the trial court signed two orders on the same day: (1) a written judgment of conviction assessing costs including $524.50 for attorney’s fees; and (2) an order appointing appellate counsel to represent Dieken on appeal. Appellate counsel filed an Anders brief asserting the record contains no arguable errors to attack the conviction, see Anders v. California, 386 U.S. 738, 744 (1967), but challenging the trial court’s order requiring Dieken to pay the attorney’s fees for his court-appointed trial counsel. Before we address the attorney’s fees question, we consider whether Dieken has any arguable issues on the merits of his conviction. NO ARGUABLE ISSUES ON CONVICTION Dieken’s court-appointed appellate attorney filed a brief containing a professional evaluation of the record in accordance with Anders procedures; counsel also filed a motion to withdraw. See id. In counsel’s brief, counsel raises no arguable appellate issues on the conviction or sentence, and necessarily concludes this appeal is wholly frivolous. Counsel’s brief meets the Anders requirements. See id.; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). As required, counsel provided Dieken with a copy of the brief and counsel’s motion to withdraw, and informed Dieken of his right to review the record and file a pro se brief. See Nichols v. State, 954 S.W.2d 83, 85– -2- 04-12-00866-CR 86 (Tex. App.—San Antonio 1997, no pet.); see also Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). In his pro se brief, Dieken complains about the jury selection process, ineffective assistance of counsel, alleged defects in the clerk’s and reporter’s records, and other issues. After reviewing the record, counsel’s brief, and Dieken’s pro se brief, we conclude there is no reversible error and, except for the question of attorney’s fees, the appeal is wholly frivolous. See Anders, 386 U.S. at 744; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (citing Anders and allowing appellate courts to not address every issue raised if, after reviewing the record, the court finds no reversible error). Therefore, we turn to the question of attorney’s fees. ATTORNEY’S FEES Dieken challenges the assessment of $524.50 in attorney’s fees as part of the costs imposed in the judgment. He asserts the trial court twice found him indigent for purposes of trial, he was presumed to remain indigent, the trial court again found him indigent for purposes of this appeal, and there is no evidence to show he was able to pay the court-appointed trial attorney’s fees. A. Applicable Law “A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2014); accord Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Fulmer v. State, 401 S.W.3d 305, 318 (Tex. App.—San Antonio, pet. ref’d), cert. denied, 134 S. Ct. 436 (2013). On the other hand, [i]f the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, . . . the court shall -3- 04-12-00866-CR order the defendant to pay . . . as court costs the amount that it finds the defendant is able to pay. TEX. CODE CRIM. PROC. ANN. art. 26.05(g); accord Mayer, 309 S.W.3d at 556. “[T]he defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees.” Mayer, 309 S.W.3d at 556. If the trial court imposes court-appointed attorney’s fees as part of court costs, an appellant may challenge the imposition for the first time on appeal by raising a sufficiency of the evidence issue. Id.; Fulmer, 401 S.W.3d at 318. We review the record to determine whether the trial court could have reasonably determined the appellant’s financial circumstances experienced a material change and the appellant was able to pay the court-appointed attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to the judgment. Mayer, 309 S.W.3d at 557. B. Analysis For the first time on appeal, Dieken contends there is insufficient evidence of his ability to pay attorney’s fees. See id. at 556; Fulmer, 401 S.W.3d at 318. Before we review the evidence, we first consider the definition of indigence. 1. Definition of Indigence A criminal defendant who asserts he is “without means to employ counsel of my own choosing,” may petition the court to appoint counsel to represent him at the county’s expense. TEX. CODE CRIM. PROC. ANN. art. 26.04(o) (providing oath of indigence language); id. art. 26.05(f) (requiring counties to pay indigents’ costs and attorney’s fees). On the defendant’s request and affidavit, the court determines whether the defendant has the means to hire counsel—or in abbreviated form, whether the defendant is “indigent.” Id. art. 26.04(m). Courts’ determinations that a defendant is indigent or not indigent may suggest that indigence is a binary condition. See, -4- 04-12-00866-CR e.g., Wiley, 410 S.W.3d at 317 (referring to defendants who were “declared indigent” or “found indigent”); Mayer, 309 S.W.3d at 557 (same). Several statutory provisions also use	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAROLD STANLEY JACKSON, : : Plaintiff, : Civil Action No.: 19-1487 : v. : Re Document No.: 24 : STARBUCKS CORPORATION, : : and : : DAN WHITE-HUNT : : Defendants. : MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO STRIKE I. Introduction This matter comes before the Court on the Defendant’s motion to strike allegations contained in paragraphs 3, 4, 12, 14, 40–58 of Plaintiff’s amended complaint. Starbucks Corp. Mot. to Strike Portions of the First Am. Compl. (“Mot. Strike”), ECF No. 24, ¶ 1. Plaintiff Harold Stanley Jackson initiated this action after an incident that occurred on April 24, 2018, at a Starbucks store located in Washington, DC. Plaintiff has filed a suit against Defendants Starbucks and store manager Dan White-Hunt alleging negligence, battery, race discrimination, and personal appearance discrimination. See First Am. Compl. (“First Am. Compl.”), ECF No. 22, ¶ 1. Starbucks moves to strike the aforementioned allegations from the complaint, claiming that “they are inflammatory and unnecessary for Plaintiff to state his claim, and thus prejudicial to defendant.” Mot. Strike ¶ 1. 1 For the reasons that follow, the Court will deny the Defendant’s motion to strike. II. Factual and Procedural Background 2 On April 24, 2018, Plaintiff, wearing a dark winter coat with the hood over his head, entered the Starbucks store located at 2130 H Street, NW, headed towards the register, picked up two retail items, and began walking towards the end of the line. See First Am. Compl. ¶ 1. The Starbucks cashier then communicated to Plaintiff that he “was not supposed to touch” the items and that he had to pay for them. Id. ¶¶ 1, 19; see also Starbucks Corp. Mem. Supp. Mot. to Strike (“Mot. Strike Mem.”), ECF No. 24-1, ¶ 3. The interaction with the cashier consequently led Plaintiff to ask to speak to a manager. First Am. Comp. ¶ 21. Soon after, Plaintiff had a conversation with Defendant, Mr. White-Hunt, who was the manager of the store. Id. ¶ 23. After a brief encounter with Mr. White-Hunt, Plaintiff walked toward the end of the checkout line to purchase the items. First Am. Compl. ¶¶ 1, 2. However, as Mr. Jackson headed to the end of the line, another Starbucks employee, Richard Washington, approached him and pushed him. First Am. Compl. ¶ 28. Plaintiff subsequently fell and suffered a seizure. Id. Plaintiff further contends that he was subjected to unfair treatment by the Defendants based on his race (Black) and his physical appearance when an employee told him that he could not pick up and hold the retail items with the insinuation that Plaintiff intended to steal the items. See First Am. Compl. ¶ 63, 86. The amended complaint describes Mr. Jackson as “appear[ing] physically in a 1 The other Defendant in this suit, Dan White-Hunt, has not filed a motion or any response to the Amended Complaint. 2 As the Court is denying the Defendant’s motion to strike portions of the Plaintiff’s first amended complaint, the relevant facts are drawn from Plaintiff’s first amended complaint and Defendant’s memorandum supporting the motion to strike. The Court assumes factual allegations in the complaint are true for the purposes of this motion to strike. 2 manner that some might interpret as being indigent, homeless, or otherwise belonging to a protected group of vulnerable people in our society.” Id. ¶ 78. On April 22, 2019, Plaintiff filed a complaint against Defendants, Starbucks Corporation and Mr. White-Hunt, in the Superior Court of the District of Columbia. See Notice of Removal, Superior Court Complaint, ECF No. 1-4, 8. Defendant Starbucks removed the case to this Court on May 21, 2019. Notice of Removal, ECF No. 1. Plaintiff asserts four claims. Count one is a negligence claim against Starbucks and Mr. White-Hunt. Count two is a battery claim against Starbucks and Mr. White-Hunt. Counts three and four are racial discrimination, and physical appearance discrimination claims pursuant to the D.C. Human Rights Act, D.C. Code § 2- 1402.31, and 42 U.S.C. § 1981, both against Starbucks. See First Am. Compl. ¶¶ 64–89. This Court has original jurisdiction over the claim of discrimination in violation of 42 U.S.C. § 1981 and supplemental jurisdiction over Plaintiff’s remaining claims pursuant to 28 U.S.C § 1367(a). See Notice of Removal, ECF No. 1. As noted, Starbucks seeks to strike the allegations contained in paragraphs 3, 4, 12, 14, 40-58 of the complaint (the “disputed allegations”). Mot. Strike ¶ 1. The disputed allegations involve descriptions of other incidents involving racial and physical appearance discrimination that have occurred in other Starbucks stores, as well as a brief discussion of the societal dangers and implications of implicit bias theory. Specifically, paragraphs 3–4, 12–14, 40–41, and 58 contain a narrative of a separate, recorded incident in Philadelphia that occurred two weeks prior to the incident in this case and generated national attention and discussion about racial discrimination. See First Am. Compl. ¶¶ 3–4, 12-14, 40, 41, 58. Paragraph 4 also asks a rhetorical question in response to the Philadelphia incident: “How does Starbucks treat its brown and black customers when the cameras are off?” Id. ¶ 4. Paragraphs 42-55 generally explain the 3 concept of implicit bias but do not mention or refer to Starbucks or Mr. White-Hunt. See id. ¶¶ 42–55. Paragraphs 56 and 57 further provide separate examples of discriminatory treatment of Starbucks customers by Starbucks employees in other stores. See id. ¶¶ 56–57. III. Legal Standard Federal Rule of Civil Procedure 12(f) provides in part that “the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). In considering a motion to strike, the Court “will draw all reasonable inferences in the pleaders favor and resolve all doubts in favor of denying the motion to strike.” Nwachukwu v. Karl, 216 F.R.D. 176, 178 (D.D.C. 2003). A court has broad discretion in considering a motion to strike but granting such a motion is a drastic remedy. Fed. Trade Comm’n v. Cantkier, 767 F. Supp. 2d 147, 159-60 (D.D.C. 2011); Uzlyan v. Solis, 706 F. Supp. 2d 44, 51 (D.D.C. 2010). As a result, motions to strike are disfavored. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981) (per curiam). Motions to strike are also disfavored when irrelevant allegations provide some context or utility to the complaint. See NCB Mgmt. Servs., Inc. v. F.D.I.C., 843 F. Supp. 2d 62, 72 (D.D.C. 2012) (holding that allegations that are not directly relevant nevertheless “provide helpful context about the history of the parties’ dispute”); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 224 F.R.D. 261, 264 (D.D.C. 2004) (“If any other factual statements made . . . supported or otherwise gave context or utility to these statements, then the Court would be less likely to strike them.”). Consequently, because courts view motions to strike with such disfavor, many courts “will grant such motions only if the portions sought to be stricken are prejudicial or scandalous.” Nwachukwu, 216 F.R.D. at 178. Thus, motions to strike are typically granted when the 4 allegations are “indefensible and wholly inappropriate” and undermine the dignity of the Court. Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003); cf. Sec. and Ex	{ "pile_set_name": "FreeLaw" }
37 A.3d 1230 (2011) FLICK v. INLAND WESTERN DUNCANSVILLE HOLLIDAY. No. 1946 WDA 2010. Superior Court of Pennsylvania. October 12, 2011. Quashed.	{ "pile_set_name": "FreeLaw" }
497 S.E.2d 392 (1998) 230 Ga. App. 640 YOH et al. v. DANIEL et al. No. A97A2175. Court of Appeals of Georgia. February 18, 1998. 393 Bandy & Stagg, Lawrence A. Stagg, Ringgold, for appellants. Sawyer & Sawyer, Horace K. Sawyer, Ringgold, for appellees. BEASLEY, Judge. Edward and Alison Yoh reneged on their contract to sell their residence to Frank and Julie Daniel, even though the Daniels (with the consent of the Yohs) had substantially improved the home in anticipation of the sale. The Daniels then received their earnest money back, which cancelled the contract. A jury awarded the Daniels $6,250 in general damages and $5,000 in attorney fees based on claims of unjust enrichment, quantum meruit, and conversion. 1. The Yohs first claim they were entitled to a new trial "because the actual damages awarded by the jury were greater than the damages testified to and presented as evidence at trial." We have often upheld jury awards exceeding the highest amount testified to at trial. Piedmont Builders v. Fullerton[1] upheld a verdict that was 25 percent more than the highest monetary estimate that could form the basis for damages. As stated, "[t]he jury ... is not bound by the exact limits of the evidence.... The jury may consider the nature of the property involved and any other facts or circumstances within their knowledge, and a verdict which exceeds or falls short of the value testified to will be sustained where there are sufficient facts in evidence from which they may draw a legitimate conclusion, and the verdict is not palpably unreasonable under all the evidence so as to be excessive as a matter of law."[2] Following the same reasoning, we upheld a jury verdict in Hogan v. Olivera[3] that was $2,865 more than the highest estimate.[4] The Daniels presented evidence (a) they purchased materials amounting to $2,000 to improve the house; (b) the Yohs had converted $1,000 in oriental rugs stored by the Daniels at the house; and (c) the Daniels had labored over 100 hours in improving and extensively cleaning the house. The jury had pictures and a detailed description of the work done or to be done. This evidence in toto authorized the jury to award the value of improvements to the house,[5] even if it exceeded the cost of the materials and labor. The Yohs argue the jury could not award the Daniels the value of their labor 394 because they testified they were not seeking their labor costs. But the Yohs misapprehend the measure for damages. "The unjustly enriched party should pay for its gain. [Cit.]"[6] 2. The Yohs' contend there was no legal basis for an award of attorney fees. This ignores the conversion claim for the oriental rugs the Yohs had taken or given away. Even though a conversion count was not separately set forth in the original complaint or in the pretrial order, the allegations and the evidence supported such a claim. Based on the evidence presented, the court, with no objection, announced this theory as a basis for recovery and later so instructed the jury, again with no exception.[7] A conversion claim is an intentional tort which will carry an award of attorney fees.[8] 3. The Yohs claim the court erred in not granting their motion for directed verdict on the quantum meruit and unjust enrichment claims. They argue the Daniels failed to show an anticipation of compensation. But there was evidence the parties anticipated there would be compensation. OCGA § 9-2-7 sets forth the statutory presumption that "[o]rdinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof."[9] The Yohs, who authorized the Daniels to improve the house, accepted the improvements by moving back in and living there. The Yohs were aware the Daniels were improving the house beyond the minimum required by the lender. The Daniels improved the house with the intention of personally benefiting therefrom and not as a gratuity to the Yohs. Furthermore, unlike quantum meruit, a claim for unjust enrichment does not require a showing of the anticipation of compensation. Quantum meruit relies on an implied promise of compensation.[10] This is in essence an implied contract.[11] Unjust enrichment differs. "Even if no express or implied contract arose between the parties, an obligation to pay arises upon the theory of unjust enrichment where a benefit has been conferred upon the party sought to be held liable for the value, which is analogous to quantum meruit in that the duty to pay arises out of the receipt of a benefit. A party cannot receive and retain the benefit of another's labor without the duty to pay for the reasonable value of such work."[12] Thus, Regional Pacesetters v. Halpern Enterprises[13] held a jury could find unjust enrichment where the plaintiff had improved the leased premises believing it had a five-year extension on its lease. Whether defendant "induced plaintiff to expend sums of money which unjustly inured to [defendant's] benefit is indeed a question of material fact" for the jury.[14] Because an implied contract is not necessary for unjust *395 enrichment, a showing of an expectation of compensation is not required.[15] The trial court did not err in refusing to grant a directed verdict. 4. Pursuant to OCGA § 5-6-6, the Daniels moved for damages for frivolous appeal. The Yohs never disputed they had unilaterally breached the real estate contract. The Daniels brought this action to recover for the improvements to the Yohs' house in anticipation of the sale and to recoup for items stolen by the Yohs. It does not appear that there was any valid reason for the Yohs to anticipate reversal of the trial court's judgment. We conclude that this appeal was brought only for purposes of delay. The Daniels' motion for ten percent damages for frivolous appeal is granted.[16] The clerk is directed to enter ten percent damages upon the remittitur. Judgment affirmed. SMITH, J., concurs. McMURRAY, P.J., concurs in the judgment only and dissents in part. McMURRAY, Presiding Judge, concurring in the judgment only and dissenting in part. While I agree that the judgment in this case should be affirmed, I cannot agree with all that is said in the majority's opinion and thus concur in the judgment only. Furthermore, I respectfully dissent to the majority's imposition of a penalty upon appellants. In my view, it has not been established that this appeal is wholly frivolous. Moreover, such an endeavor as exercised by the majority serves only to inflict a chill upon the appeal process and thus impedes justice. NOTES [1] 157 Ga.App. 126, 276 S.E.2d 277 (1981). [2] (Citations omitted.) Id. at 127(1), 276 S.E.2d 277. [3] 141 Ga.App. 399, 401-405(1)(d), 233 S.E.2d 428 (1977). [4] See Dept. of Transp. v. Driggers, 150 Ga.App. 270, 257 S.E.2d 294 (1979) (upholding verdict $4,333 more than highest estimate). [5] See Regional Pacesetters v. Halpern Enterprises, 165 Ga.App. 777, 782-783(2), 300 S.E.2d 180 (1983) (defendant must pay value of unjust enrichment). [6] White v. Arthur Enterprises, 219 Ga.App. 124(1), 464 S.E.2d 225 (1995); see Watson v. Sierra Contracting Corp., 226 Ga.App. 21, 28(c), 485 S.E.2d 563 (1997) (look from perspective of recipient). [7] See OCGA § 9-11-15(b) (pleadings are amended to conform to the evidence); Fruin-Colnon Corp. v. Air Door, 157 Ga.App. 804, 806(2), 278 S.E.2d 708 (1981) (evidence of new claim, received without objection, amends pleadings to include claim). [8] Stargate Software Intl. v. Rumph, 224 Ga.App. 873, 878(4), 482 S.E.2d 498 (1997). [9] See Watson, supra, 226 Ga.App. at 28, 485 S.E.2d 563. [10] Fortner v. McCorkle, 78 Ga.App. 76, 80(2), 50 S.E.2d 250 (1948) ("`from all the facts and circumstances it can reasonably be inferred that it is in the contemplation of the parties that the services are to be paid for'"); see Smith Dev. v. Flood, 198 Ga.App. 817, 820(3)(b), 403 S.E.2d 249 (1991) (services rendered gratuitously do not give rise to an implied promise). [11] Watson, supra, 226 Ga.App. at 28, 485 S.E.2d 563. [12] (Citations omitted.) Id.; see White, supra 219 Ga.App. at 124(1), 464 S.E.2d 225 ("The	{ "pile_set_name": "FreeLaw" }
711 F.2d 1059 Slancov.United Counties Carpenters Dist. Council 82-3115, 82-3634, 82-3709 UNITED STATES COURT OF APPEALS Sixth Circuit 5/27/83 N.D.Ohio AFFIRMED	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION DEC 08 2009 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DONALD JEROME GREEN, No. 08-16663 Plaintiff - Appellant, D.C. No. 2:06-cv-02107-FCD- GGH v. M. SHARP, MEMORANDUM * Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Jr., District Judge, Presiding Submitted November 17, 2009 ** Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges. Donald Jerome Green, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that a prison guard violated his Eighth Amendment rights by failing to protect him from * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). tk/Research another inmate. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm. The district court properly granted summary judgment because Green did not raise a triable issue as to whether the prison guard knew that inmate Frazier posed a substantial risk of serious harm to Green. See Farmer v. Brennan, 511 U.S. 825, 837-39 (1994) (holding that a prison official cannot be found liable for deliberate indifference unless the official knows of and disregards an excessive risk to inmate health or safety). Green’s remaining contentions are unpersuasive. AFFIRMED. tk/Research 2 08-16663	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD D. POMEROY, No. 18-35860 Petitioner-Appellant, D.C. No. 3:18-cv-00061-TMB v. MEMORANDUM* STATE OF ALASKA, Respondent-Appellee. Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding Submitted November 18, 2019** Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges. Former Alaska state prisoner Richard D. Pomeroy appeals pro se from the district court’s judgment dismissing his petition for a writ of error coram nobis. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for lack of jurisdiction, United States v. Monreal, 301 F.3d 1127, 1130 * 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). (9th Cir. 2002), and we affirm. The district court properly dismissed Pomeroy’s petition challenging his Alaska state conviction for assault because coram nobis relief is not available in federal court to attack a state court conviction. See Hensley v. Municipal Court, 453 F.2d 1252, 1253 n.2 (9th Cir. 1972) (“Coram nobis lies only to challenge errors occurring in the same court.”), rev’d on other grounds, 411 U.S. 345 (1973). Pomeroy’s motion to waive the jurisdictional requirement is denied. AFFIRMED. 2 18-35860	{ "pile_set_name": "FreeLaw" }
658 P.2d 999 (1983) 104 Idaho 328 STATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant. No. 14062. Court of Appeals of Idaho. February 8, 1983. Douglas R. Whipple of Herman E. Bedke, Burley, for defendant-appellant. David H. Leroy, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Lance D. Churchill, Deputy Atty. Gen., for plaintiff-respondent. 1000 SWANSTROM, Judge. Anthony Carmen Galaviz and a companion committed two armed robberies in the city of Burley on July 23, 1978. Apprehended that day with a pistol and the stolen money in his possession, Galaviz later pled guilty to both counts of robbery. After reviewing the presentence report, which indicated that Galaviz, then twenty-two years of age, had a prior juvenile and misdemeanor record, the district court sentenced him to two five-year concurrent terms for the robberies on September 1, 1978. In addition, pursuant to I.C. § 19-2520, the court imposed a three-year term, to be served consecutively, for Galaviz's use of a firearm during the crimes.[1] Nearly two years later, Galaviz filed a motion in the district court under Idaho Criminal Rule 35 to correct what he claimed was an illegal sentence. Galaviz based his claim on the Double Jeopardy Clause of the Fifth Amendment, asserting that the court illegally had exacted multiple penalties by imposing the two five-year terms for armed robbery and the additional sentence for the use of a firearm. Galaviz also asserted that the imposition of an enhanced sentence under I.C. § 19-2520 violated I.C. § 18-301. Finally, Galaviz challenged his sentence on due process grounds, contending that the information charging him with armed robbery did not give proper notice of the state's intention to rely on I.C. § 19-2520 for enhancement of his sentence. Galaviz contended that the lack of notice deprived him of the basis for making a knowing and intelligent decision to plead guilty to the charges. The district judge conducted a hearing and considered each of the issues raised by Galaviz. After the court entered its order denying Galaviz's motion, this appeal was taken and the same issues are raised again. We affirm the order of the district court. I The Fifth Amendment's Double Jeopardy Clause applies to the states through the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The guarantee against double jeopardy encompasses three distinct constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Galaviz contends that by imposing an "additional" sentence for his use of a firearm the district court violated the third of these guarantees. Galaviz predicates this argument upon the language of the judgment of conviction. After imposing a five-year term for each count of robbery, the judgment continues: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant receive an additional three (3) years pursuant to I.C. § 19-2520 for the use of a firearm in the commission of the aforesaid crimes, said term to run consecutive to Counts I & II. Galaviz argues that the use of the word "additional" in this paragraph shows that he was illegally sentenced twice for the same underlying offense. Our Supreme Court has noted that I.C. § 19-2520 does not define or create a separate offense, but is merely a sentence enhancing statute that comes into play after a defendant is convicted of one of the enumerated 1001 offenses. State v. Cardona, 102 Idaho 668, 670, 637 P.2d 1164, 1166 (1981). In recent years many state and federal courts have had occasion to address constitutional challenges to statutes which, like I.C. § 19-2520, provide for enhanced sentences for felonies committed with the aid of firearms or other deadly weapons. In each case such statutes have survived arguments that the imposition of enhanced penalties violates the constitutional prohibition against multiple punishments. See e.g., May v. Sumner, 622 F.2d 997 (9th Cir.1980); Cordova v. Romero, 614 F.2d 1267 (10th Cir.1980); State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980); People v. Henry, 14 Cal. App.3d 89, 91 Cal. Rptr. 841 (1970); State v. Davison, 614 P.2d 489 (Mont. 1980); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); State v. Gabaldon, 92 N.M. 230, 585 P.2d 1352 (N.M.App. 1978); State v. Foster, 91 Wash.2d 466, 589 P.2d 789 (1979). The rationale the courts generally have adopted, in upholding enhanced penalty statutes, is that the statutes do not provide for multiple penalties but rather provide for a single more severe penalty when an offense is committed with a deadly weapon. In May v. Sumner, supra, for example, the appellant's punishment on each of two counts of robbery was enhanced pursuant to Cal.Pen.Code § 12022.5 because the jury found that he had used a firearm during the commission of both crimes. Rejecting a double jeopardy attack on the statute, the court concluded: The double jeopardy clause does not limit the legislature's power to impose sentences for a given crime. It is uncontested that the California legislature could have created a single offense which provided one sentence for simple robbery, a greater sentence for robbery with a deadly weapon, and a still greater sentence if the deadly weapon were a firearm. California chose to accomplish this result by two statutes instead of one. To strike down the scheme adopted by California in this case would "operate not as a substantive or penological restriction, but as a literary critique of the legislature." Cordova v. Romero, supra at 1269, quoting Note, Twice in Jeopardy, 75 Yale L.J. 262, 302 (1965). 622 F.2d at 999. The U.S. Supreme Court recently has laid to rest any doubt about the result reached in the cases cited above. In Missouri v. Hunter, ___ U.S. ___, 103 S.Ct. 673, 74 L.Ed.2d ___ (1983), the Supreme Court reversed a decision by the Missouri Supreme Court, which had held that Hunter could not be convicted in the same trial of both robbery in the first degree and armed criminal action, where the same acts of the defendant had been used to convict him of each charge. The U.S. Supreme Court upheld Missouri statutes which provided cumulative punishment for two separate crimes arising out of the same criminal conduct. The Court held that where the cumulative punishment is within the legislature's intent, it does not violate the Double Jeopardy Clause of the Fifth Amendment. At page 678 of 103 S.Ct., the Supreme Court said: With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. At page 678 of 103 S.Ct., the Court summarized its holding as follows: Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306] a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. The Idaho legislature has chosen to fix different penalties for the crime of robbery a lesser penalty where the crime is committed without the use of a deadly weapon, and a greater one where a deadly weapon is involved. The legislature has adopted two statutes rather than one to accomplish this result. *1002 The Idaho legislature clearly has intended to authorize the courts, under I.C. § 19-2520, to impose additional punishment for robbery where that crime is accomplished with use of a firearm. The penalty actually imposed upon Galaviz was well within the limits intended by the legislature. Consequently we hold that the sentence in this case did not violate the Double Jeopardy Clause of the Fifth Amendment. II We next consider Galaviz's contention that imposing a five-year sentence for robbery under I.C. § 18-6503 and an additional, consecutive three-year term under § 19-2520 violated § 18-301 of the Code.[2] In State v. Horn, 101 Idaho 192, 197, 610 P.2d 551,	{ "pile_set_name": "FreeLaw" }
354 F.3d 796 Reba HEBERT, Appellee,v.SBC PENSION BENEFIT PLAN, Non Bargained Program by and through the Plan Sponsor and Administrator SBC Communications, Inc., Appellant. No. 02-3671. No. 03-1072. United States Court of Appeals, Eighth Circuit. Submitted: September 12, 2003. Filed: January 12, 2004. Rehearing and Rehearing En Banc Denied: February 19, 2004*. Richard J. Pautler, argued, St. Louis, Missouri (Lewis R. Mills, on the brief), for appellant. Justin D. Pulikkan, argued, Kansas City, Missouri (Steven H. Mustoe, on the brief), for appellee. Before WOLLMAN, HEANEY, and RILEY, Circuit Judges. RILEY, Circuit Judge. 1 Reba Hebert (Hebert) was employed by Southwestern Bell Telephone Company (SW Bell), a subsidiary of SBC Communications, Inc. (SBC). Hebert sued the SBC Pension Benefit Plan (SBC Plan), seeking to add three years to her term of employment in calculating her benefits under the SBC Plan based on an amendment of the benefit plan by her prior employer, Pacific Telesis Group (PTG). SBC is the SBC Plan sponsor and administrator. The district court granted summary judgment to Hebert, concluding SBC abused its discretion in interpreting the SBC Plan. The district court also awarded Hebert attorney fees. SBC appeals, asserting it did not abuse its discretion in interpreting the SBC Plan, and the district court erred in awarding attorney fees. We reverse, vacate the district court's attorney fees award, and remand for entry of summary judgment for the SBC Plan. I. BACKGROUND 2 In 1971, Hebert began working for American Telephone & Telegraph (AT & T) in St. Joseph, Missouri. AT & T offered the Bell System Pension Plan to its employees. In the early 1980s, federal antitrust litigation split AT & T into independent companies. The division to which Hebert was assigned became PTG. Each independent company adopted a pension plan, and the Bell System Pension Plan assets were divided among the newly formed pension plans. To ensure the portability of employee benefits, the new companies entered into the Divestiture Interchange Agreement of January 1, 1984, and the Mandatory Portability Agreement of January 1, 1985 (Portability Agreements), which govern the recognition of pension benefits of certain employees who move between the newly created independent companies. 3 In 1990, PTG offered management employees a retirement incentive, the Management Retirement Opportunity Amendment (MRO Amendment). The MRO Amendment provided each employee a minimum benefit enhancement, adding three years to an employee's term of employment in calculating the employee's minimum pension benefit (three MRO years). Hebert accepted the MRO Amendment. In November 1990, Hebert resigned from PTG with 18 years, 7 months, and 13 days of actual service. Two days after leaving PTG, Hebert became employed by SW Bell, another newly created independent company formed by AT & T's breakup, and transferred her pension benefits under the Portability Agreements to the SBC Plan. 4 In 1999, Hebert contemplated retirement and requested SBC, acting as plan administrator, to calculate Hebert's SBC pension benefits. When calculating Hebert's pension benefits, SBC used paragraph 8.2.1(b) of the SBC Plan, and did not include the three MRO years. SBC did include the three MRO years in an alternative calculation under paragraph 8.2.1(a), although this calculation produced lower benefits. Hebert appealed the calculation to the SBC Plan Review Committee (Review Committee), asserting her term of employment should be increased by three years. The Review Committee denied Hebert's request. 5 Hebert filed this suit against the SBC Plan, asserting SBC abused its discretion by not including the three MRO years in calculating Hebert's pension benefits under paragraph 8.2.1(b). The district court granted summary judgment to Hebert, concluding SBC abused its discretion in interpreting the SBC Plan because SBC's interpretation (1) rendered language in the SBC Plan internally inconsistent by assigning different meanings to the term "all-service credit" and (2) contradicted the SBC Plan's clear language. The district court also awarded Hebert attorney fees. SBC appeals the district court's grant of summary judgment and award of attorney fees. II. DISCUSSION A. SBC's Interpretation of the SBC Plan 6 We review a district court's summary judgment de novo. Interstate Cleaning Corp. v. Commercial Underwriters Ins. Co., 325 F.3d 1024, 1027 (8th Cir.2003). We will affirm a district court's grant of summary judgment if the record demonstrates no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Interstate Cleaning, 325 F.3d at 1027. 7 Because it is undisputed "[the SBC Plan] gives [SBC] discretionary authority to determine eligibility for benefits or to construe the terms of the plan," we review the denial of benefits for an abuse of discretion, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), and reverse SBC's decision only if it is arbitrary and capricious, Brumm v. Bert Bell NFL Ret. Plan, 995 F.2d 1433, 1437 (8th Cir.1993). We uphold SBC's interpretation of the SBC Plan if it is reasonable. Id. SBC's interpretation "is not unreasonable merely because the reviewing court disagrees with it." Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1180 (8th Cir.2001). 8 This controversy involves SBC's interpretation of paragraph 8.2.1 of the SBC Plan, which states as follows: 9 If the [SBC Plan] provides for the computation of monthly pension benefits in a different manner than that provided under [the PTG Plan], [Hebert's] monthly pension benefit under [the SBC Plan] shall equal the greater of 10 (a) the sum of 11 (1) the monthly pension benefit determined for all service credit included in [Hebert's] Pension Service Credit under [the PTG Plan], in accordance with the provisions of such plan ..., plus 12 (2) the monthly pension benefit determined for all periods of Pension Calculation Service [Hebert] was covered by [the SBC Plan], or 13 (b) the monthly pension benefit determined for all service credit included in [Hebert's] Pension Service Credit under [the PTG Plan] and all Pension Calculation Service during which [Hebert] was covered by [the SBC Plan], in accordance with the provisions of the Plan. 14 (Emphasis added). Both parties agree paragraph 8.2.1(b) provides Hebert with the greatest amount of pension benefits, regardless whether the three MRO years are included in paragraph 8.2.1(b)'s calculation. 15 SBC interpreted paragraph 8.2.1(a) to include Hebert's three MRO years in computing Hebert's benefits. However, SBC interpreted 8.2.1(b) not to include Hebert's three MRO years in computing Hebert's benefits. SBC based its differing interpretations on how the "in accordance" phrases are used in paragraphs 8.2.1(a)(1) and 8.2.1(b). 16 To determine if SBC's interpretation of paragraph 8.2.1 is reasonable, we consider five factors: (1) whether SBC's interpretation is consistent with the SBC Plan's goals; (2) whether SBC's interpretation renders any of the SBC Plan's language internally inconsistent or meaningless; (3) whether SBC's interpretation conflicts with ERISA's substantive or procedural requirements; (4) whether SBC has consistently interpreted the words at issue; and (5) whether SBC's interpretation is contrary to the SBC Plan's clear language. Finley v. Special Agents Mut. Benefit Ass'n, 957 F.2d 617, 621 (8th Cir. 1992). The above factors need not be examined in any order as each factor presents us with a discrete inquiry. Hutchins v. Champion Int'l Corp., 110 F.3d 1341, 1344 (8th Cir.1997). 17 SBC's interpretation does not render any of the SBC Plan's language internally inconsistent or meaningless and is not contrary to the SBC Plan's clear language. Under paragraph 8.2.1(a)(1), a portion of Hebert's pension benefit and Pension Service Credit are determined "in accordance with the provisions of such plan." The phrase "in accordance with the provisions of such plan" refers to the PTG Plan as modified by the MRO Amendment. Under the PTG Plan's MRO Amendment, for the purpose of computing benefits, Hebert's "term of employment shall equal [Hebert's] term of employment as of [Hebert's] MRO Effective Date increased by three years." Thus, for computing Hebert's benefit under paragraph 8.2.1(a)(1), Hebert receives the full benefit of the three extra	{ "pile_set_name": "FreeLaw" }
2 Ill. App.3d 837 (1972) 277 N.E.2d 769 GEORGE A. RUSSOW et al., Plaintiffs-Appellants, v. LEON A. BOBOLA et al., Defendants-Appellees. No. 71-24. Illinois Appellate Court Second District. January 11, 1972. 838 839 840 Ostrom & Johnson, of Glen Ellyn, for appellant. Donovan, Dichtl, Atten, Mountcastle & Roberts, of Wheaton, Robert A. Cox and Delbert S. Lyle, both of Glen Ellyn, for appellee. Affirmed in part, reversed in part and remanded. Mr. JUSTICE SEIDENFELD delivered the opinion of the court: This action arises from the sale of a house by the defendant Bobolas to the plaintiff Russows. The plaintiffs seek rescission of the deed and punitive damages, alleging that the defendants fraudulently misrepresented and concealed material information of water and flooding conditions in connection with the sale. In September of 1967 the Russows went to the office of Glenshire, Inc. seeking to purchase a home, and were taken to the Bobola home by Glenshire employee Barbara Wiggins, formerly Barbara Swanson. The listing agreement for the sale of this house named Harold Dato, the president of Glenshire, Inc., as the broker. After five visits to the home, plaintiffs purchased it. Since then the basement and garage have flooded to depths of 30 to 50 inches on ten occasions. Glenshire, Inc., alleged with Dato to be the agent of the Bobolas, was dismissed as a party defendant some five months prior to trial on the ground that no cause of action was stated against it. The trial court hearing the case without a jury found for the remaining defendants at the close of the plaintiffs' evidence. Plaintiffs appeal from both orders. They also contend that the court erred in denying them leave to amend and in disallowing testimony concerning their attorneys fees and expenses. At the trial, testimony established that during the twenty-five months that the Bobolas owned the house, it had twice flooded approximately thirty inches. Glenshire employees were informed in both instances, and Harold Dato may have had personal knowledge of one such incident. However, no mention of the floods was made during the five times plaintiffs visited the house prior to the consummation of the sale. In fact, shortly before the sale, the Bobolas had washed off and painted over all of the water marks left by the floods. While plaintiffs never inquired whether the house flooded, they did ask whether the drain outside the garage was adequate. Mr. Russow says Mr. Bobola answered that it was; while Mrs. Russow says Bobola answered that it was not, but that there was another large sewer across the way, and that there was talk that more sewers would be installed. 1 In ruling on the motion to dismiss at the close of the plaintiffs' evidence, the evidence presented, together with all reasonable inferences, must be considered in the light most favorable to the plaintiffs, and if there is any substantial evidence tending to prove the plaintiffs' allegations, 841 the motion must be denied. City of West Frankfort v. Fullop (1955), 6 Ill.2d 609, 617. 2, 3 Fraud has been said to comprise anything calculated to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another (Majewski v. Galling (1959), 17 Ill.2d 92, 99.) This deception may consist of a single act or combination of circumstances, suppression of truth or suggestion of what is false, direct falsehood or innuendo, speech or silence, look or gesture. People v. Gilmore (1931), 345 Ill. 28, 46; Citizens Savings & Loan Ass'n v. Fischer (1966), 67 Ill. App.2d 315, 322. The trial court found that there was insufficient evidence on which to base an action for misrepresentation against any of the defendants. It appears from his remarks at the time the decision was rendered that the court felt that the only affirmative statement of whether or not the drain was adequate was actually an expression of opinion rather than fact and that the plaintiffs relied on their own judgment when they purchased the home rather than upon any statement or silence by the defendants. 4-6 We cannot agree that this is a proper assessment of the involvement of the Bobolas. What is determinative as to the Bobolas is not merely what they said, but what was left unsaid under the particular combination of circumstances in the record. While silence in a business transaction does not generally amount to fraud, mere silence is quite different from concealment. Silence accompanied by deceptive conduct or suppression of material facts results in active concealment, and it then beomes the duty of a person to speak. In such case, if a party to a contract of sale does not disclose the whole truth, having the requisite intent to deceive, this amounts to fraud equally with an affirmative falsehood. (Forest Preserve Dist. v. Christopher (1943), 321 Ill. App. 91, 105, 106; Leonard v. Springer (1902), 197 Ill. 532, 538; Kohl v. Lindley (1866), 39 Ill. 195, 201.) The Bobolas not only failed to tell the plaintiffs that the house had flooded twice, but washed and painted away all water marks which were visible after the floods, thus leaving no indication that the house had problems of this nature. This conduct tended to mislead the plaintiffs and substantially affected their power to make a knowledgeable judgment in purchasing the house. In addition, the statement by Bobola, in answer to a question by Mrs. Russow as to the reasons for the sale, that he would be moving to the East after he had qualified for a bonus at his place of employment, when in fact he admitted that he at no time intended to go to New York, seemed also calculated to deceive the purchasers. Moreover, Bobola's answer as to the adequacy of the drain indicated that the drainage system was adequate, when in fact he 842 knew the drainage to be inadequate by reason of the two floods he had experienced. While it is true that the plaintiffs had a duty of inquiry regarding the premises and are chargeable with all knowledge which an examination conducted with ordinary care would provide, the matter undisclosed here is of such a nature that it would not be readily apparent from an inspection of the property. (See Hustad v. Cerny (1926), 321 Ill. 354, 359; Halla v. Chicago Title & Trust Co. (1952), 412 Ill. 39, 46.) There is sufficient evidence of active concealment by the Bobolas to require reversal of the trial court's order granting their motion to dismiss at the close of the plaintiff's evidence. 7 Of course, this is not to say that the defendants are guilty of fraud, but only that there is sufficient evidence in the record to preclude a dismissal at this stage of the proceedings. Should the court then find these defendants guilty of fraudulent conduct, it must grant that relief necessary to do equity, which may include an award of damages if rescission is no longer practical under the circumstances of this case. See Industrial Nat. Gas Co. v. Sunflower Nat. Gas. Co. (1947), 330 Ill. App. 343, 361-362; Pritchard v. Wilcox (1942), 314 Ill. App. 132, 139. 8 In contrast, Harold Dato made no statement regarding the flooding or drainage of the house, and took no active steps to conceal the situation. There is controversy over whether he even knew water had entered the house. Plaintiffs have not presented sufficient evidence to require Dato to defend a charge of fraud. 9-12 Plaintiffs contend that the motion judge erred in dismissing Glenshire on the pleadings and also erred in refusing to reinstate it as a party defendant on the day of trial. We cannot agree with either contention. First, in our view the record does not present sufficient evidence to require Glenshire to defend a charge of fraud. No Glenshire employee made any statement as to flooding or drainage, and Barbara Wiggins' silence fell far short of active concealment. In any event, we cannot say that the trial court abused its discretion by denying the motion, when it was not made until more than five months after the order of dismissal was entered, and on the day of trial. (Brockob Const. Co. v. Trust Co. of Chicago (1955), 6 Ill. App.2d 565, 570.) Nor can we say that the motion judge erred in dismissing Glenshire on the pleadings. A motion to dismiss admits facts well pleaded, but not conclusions of law or fact unsupported by allegations of specific facts upon which such conclusions rest. (Pierce v. Carpentier (1960), 20 Ill.2d 526, 531.) Plaintiffs' second amended complaint states that the Bobolas contracted with Harold Dato and Glenshire to become Bobolas' agents in the sale of the house. But Exhibit A, attached to the complaint, sets forth the agency contract, and lists only Dato as the real estate broker. Glenshire's name is not present. Such complaint 843 does not sufficiently allege an agency relationship between the Bobolas and Glenshire, and Glenshire was properly dismissed as a party defendant. 13 The court also did not abuse its discretion in denying the motion of the plaintiffs to amend as the case was called for trial and at the close of the plaintiffs' case. Again, the trial judge was acting within his discretion in denying the amendment because of the delay. Moreover, since we have found that Dato was not liable in fraud, the amendment charging	{ "pile_set_name": "FreeLaw" }
546 F.2d 423 U. S.v.Curry No. 75-2104 United States Court of Appeals, Fourth Circuit 11/8/76 1 E.D.N.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
66 F.3d 336 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.UNITED STATES of America, Plaintiff-Appellee,v.Victor MANZO-FIGUEROA, Defendant-Appellant. No. 94-10575. United States Court of Appeals, Ninth Circuit. Submitted Sept. 11, 1995.Decided Sept. 14, 1995. 1 Before: BEEZER and THOMPSON, Circuit Judges and QUACKENBUSH, District Judge.* ORDER 2 Victor M. Manzo-Figueroa appeals his conviction of illegal reentry after deportation subsequent to a conviction for commission of an aggravated felony in violation of 8 U.S.C. Sec. 1326(b)(2). He argues that because he was not provided with due process at his deportation hearing the district court erred in failing to suppress evidence of the hearing. In this circuit, a defendant who is seeking to exclude evidence of a deportation order must demonstrate both a deprivation of due process and prejudice. United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992) (en banc). Manzo-Figueroa does not contend that he was prejudiced by the denial of due process and instead urges us to ignore circuit precedent and conclude that a showing of prejudice is not required. Because we may not do so, see Nichols v. McCormick, 929 F.2d 507, 510 n. 5 (9th Cir.1991), we affirm. 3 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4 ** The Honorable Justin L. Quackenbush, Senior United States District Judge for the Eastern District of Washington, sitting by designation	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit No. 00-2188 United States of America, Plaintiff-Appellee, v. Ramon L. Cruz, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99-CR-205--Charles N. Clevert, Judge. Argued November 15, 2000--Decided November 30, 2000 Before Posner, Easterbrook, and Kanne, Circuit Judges. Posner, Circuit Judge. The defendant was sentenced to 75 months in prison for possession with intent to distribute 156 grams of heroin. 21 U.S.C. sec. 841(a)(1). He challenges his sentence on the ground that he was eligible for a sentencing discount as a minor or minimal participant in the conduct that resulted in his arrest and conviction. See U.S.S.G. sec. 3B1.2. The defendant carried the 156 grams by train from New York to Milwaukee, where he was arrested. It appears that he was part of a larger operation; he may indeed have been only a courier; but no one else involved in his offense was arrested, and as a result he was charged only with possession with intent to distribute the 156 grams; nor was any other aspect of the larger operation of which his transportation of the heroin may have been a part deemed relevant conduct affecting his sentence. When no conduct of other participants in a criminal scheme is attributed to a defendant for purposes of sentencing, our cases hold that he is not entitled to a sentencing discount because he is a minor or minimal participant in some larger criminal activity of which the conduct for which he is being punished is a part. E.g., United States v. Almanza, 225 F.3d 845, 846 (7th Cir. 2000); United States v. Hamzat, 217 F.3d 494, 497 (7th Cir. 2000); United States v. Isienyi, 207 F.3d 390, 392 (7th Cir. 2000). This is the view of most of the other circuits as well, as noted in United States v. Almanza, supra, 225 F.3d at 846. Cruz asks us to reexamine our position, noting that two other circuits reject it. United States v. Snoddy, 139 F.3d 1224, 1230-31 (8th Cir. 1998); United States v. Demers, 13 F.3d 1381, 1385-86 (9th Cir. 1994). But these decisions have been discussed and either distinguished or rejected in the cases in our court cited above, and so they provide no basis for overruling those cases. In any event we think our position is correct. An example will show why. Imagine two defendants, each a courier for a drug ring. One of the drug rings is very large, is in fact international in scope. The other is very small, is in fact entirely local. Defendant A, who is part of the large ring, possesses 156 grams of heroin with intent to distribute. Defendant B, who is part of the small ring, possesses 156 grams of heroin with intent to distribute. Both are charged just with that possession, and in sentencing the judge gives no weight to the activities of the other members of the ring. Nevertheless, on Cruz’s submission, A should receive a lighter sentence than B because he is part of the larger ring, implying that the other participants are bigger fry relative to him than the other participants in B’s conspiracy are relative to B. We cannot see the logic of that position. The defendants’ conduct is identical, and they are being punished just for that conduct and not for the conduct of anyone else. To differentiate their punishment on the basis of activity unrelated to their culpability would be arbitrary. Indeed, to punish more lightly the participant in the more serious conspiracy strikes us as downright perverse. Affirmed.	{ "pile_set_name": "FreeLaw" }
4 N.Y.3d 836 (2005) PEOPLE v. WEIR Court of Appeals of the State of New York. March 31, 2005. Application in criminal case for leave to appeal denied. (Graffeo, J.).	{ "pile_set_name": "FreeLaw" }
992 So.2d 1034 (2008) SUCCESSION OF Kenneth Eugene CARROLL. No. 2008-C-1631. Supreme Court of Louisiana. October 24, 2008. Denied.	{ "pile_set_name": "FreeLaw" }
Citation Nr: 1132132 Decision Date: 08/31/11 Archive Date: 09/07/11 DOCKET NO. 08-13 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran, M. M. and A. M. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from January 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case has previously come before the Board. In January 2010, the matter was remanded to the agency of original jurisdiction (AOJ) for additional development. The case has been returned to the Board for further appellate review. The Veteran was afforded a hearing before a hearing officer at the RO in September 2008. A transcript of the hearing has been associated with the claims file. FINDING OF FACT The competent and probative evidence does not establish a peripheral neuropathy in the lower extremities. CONCLUSION OF LAW Peripheral neuropathy of the lower extremities was not incurred or aggravated during service and may not be presumed to have been incurred by such service, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson' disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2010); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Initially, the Board finds substantial compliance with the January 2010 remand. The Veteran was afforded a VA examination, additional treatment records have been associated with the claims file, to the extent possible, and the claim was readjudicated. Thus, the Board will proceed with a decision in regard to the matter on appeal. The Veteran asserts he has a peripheral neuropathy of the lower extremities as a result of service. Having reviewed the record, the Board finds service connection is not warranted. In this case, the Board finds the competent and probative evidence does not establish the Veteran has or has had a peripheral neuropathy of the lower extremities at any time during the relevant period. Absent a current disability, service connection is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The July 2010 VA examiner specifically stated that there is no convincing evidence of a peripheral neuropathy of the lower extremities. Rather, the results of EMG (electromyogram) and NCV (Nerve conduction study) were remarkable for prolonged F waves and long duration high amplitude changes consistent with lumbar stenosis. The Board notes that while an October 2006 record states peripheral neuropathy in the feet was diagnosed in 2006, no objective findings accompany the statement. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). In addition, the April 2007 VA examination report reflecting a diagnosis of diabetes mellitus, type II, with "numbness feet" does not establish a diagnosis of peripheral neuropathy. The Board notes that a June 2005 VA record notes no focal weakness or numbness, and an October 2006 VA record reflects degenerative disc disease, cellulitis of the foot and osteoarthritis in multiple sites, disorders for which the Veteran is not service connected. In addition, on examination of the feet in July 2007, the examiner reported that pulses in the feet were palpable, with no feet ulcers or leg edema noted, and monofilament sensation was noted to be intact. Further, no leg edema was reported in January 2008. In addition, Social Security Administration (SSA) records reference arthritis of the spine, anxiety and schizophrenia, as well as service-connected diabetes mellitus, and an August 2010 VA record reflects	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4207 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEO ANTONIO SMITH, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:08-cr-00101-1) Submitted: May 13, 2010 Decided: June 7, 2010 Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Samuel D. Marsh, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leo Antonio Smith pled guilty without a plea agreement to distributing cocaine base (crack), in violation of 18 U.S.C. § 841(a)(1) (2006). The district court imposed a thirty-four- month sentence, an upward variance from the sentencing guidelines range of ten to sixteen months. On appeal, Smith challenges the sentence, claiming that the district court imposed a substantively unreasonable sentence and that the district court should have used a beyond a reasonable doubt standard to justify an upward variance. He also questions whether the district court erred by failing to append a written statement of reasons to its written judgment. We affirm. A sentence is reviewed for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id.; see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After determining whether the district court properly calculated the defendant’s advisory guideline range, this court must decide whether the district court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding that, while the “individualized assessment 2 need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case . . . and [be] adequate to permit meaningful appellate review”). Properly preserved claims of procedural error are subject to harmless error review. Lynn, 592 F.3d at 576. If the sentence is free of significant procedural error, the appellate court reviews the substantive reasonableness of the sentence. Id. at 575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In this case, we conclude that the district court did not err in varying upward to a sentence of thirty-four months. The court considered testimony from eleven witnesses and based its decision on Smith’s extensive pending state criminal charges, propensity for violence toward women, bond violations, drug use, and gunplay. The court analyzed Smith’s behavior within the framework of the § 3553(a) factors and determined that the above sentence was necessary to promote respect for the law, protect the public, and deter Smith’s criminal conduct, as well as the criminal conduct of others. We further find that the district court correctly relied on a preponderance of the evidence standard when considering the facts underlying its decision for an upward variance. See United States v. Morris, 429 F.3d 65 (4th Cir. 2005). In the context of factual proof at sentencing, this court relies on a preponderance of the evidence standard. 3 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 1-25-2008 Ali v. Mcanany Precedential or Non-Precedential: Non-Precedential Docket No. 06-3283 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Ali v. Mcanany" (2008). 2008 Decisions. Paper 1706. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1706 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 University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 06-3283 _________ IMANUEL BASSIL ALI, Appellant v. JOHN MCANANY, Nurse Supervisor; TAMMY HOFFMAN, Nurse; LT. HAYWOOD; CPT. HALL, RHU Commander; DENISE HELVERDING, Nurse; SHARON D’ELETTO, Grievance Coordinator; L.S. FOLINO, Superintendent _________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 06-cv-00096) District Judge: Hon. Donetta W. Ambrose __________________________ Submitted under Third Circuit LAR 34.1(a) on August 16, 2007 Before: BARRY, CHAGARES and ROTH, Circuit Judges (filed: January 25, 2008 ) _________ OPINION _________ PER CURIAM Appellant, Imanuel Bassil Ali, proceeding pro se and in forma pauperis, appeals an order of the United States District Court of Western Pennsylvania dismissing Ali’s civil rights claims. For the reasons stated below, we will affirm the District Court’s order in part, vacate in part, and remand for further proceedings. Ali, an inmate at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania, filed suit under 42 U.S.C. § 1983 alleging violations of the First, Eighth, and Fourteenth Amendments of the United States Constitution. The defendants named in his original and amended complaints are prison nurses Tammy Hoffman and Denise Helverding, Nurse Supervisor John McAnany, Corrections Officers Lt. Haywood and Capt. Hall, Grievance Coordinator Sharon D’Eletto, and Superintendent L.S. Folino. In January 2004, while incarcerated at SCI-Greene, Ali was ordered to undergo a blood extraction procedure for the purpose of providing the Commonwealth with a DNA sample. He alleges that difficulties arose during the course of this procedure because he is afflicted with a medical condition known as rolling veins. According to Ali, Hoffman made two attempts to draw blood by puncturing Ali’s right arm and left hand with a hypodermic needle. After these attempts failed, Hoffman allegedly recommended the use of an oral swab to obtain a DNA sample and stated to those present that no further attempts should be made to 2 draw blood. McAnany allegedly disregarded Hoffman’s advice and tried two more times to draw blood. The second attempt was successful. As a result of the repeated attempts to draw blood, Ali claims that he suffered from severe pain and that visible injuries developed in the area of his puncture wounds. He claims that McAnany violated the Eighth Amendment’s prohibition against cruel and unusual punishment and that Hoffman, Lt. Haywood and Capt. Hall also violated the Eighth Amendment by failing to intervene on Ali’s behalf during the procedure. He also asserts an Eighth Amendment claim against Helverding for failing to process his sick call request slips, and against D’Eletto and Folino for not appropriately responding to his grievances regarding the medical care he was receiving for his injuries.1 The Pennsylvania Department of Corrections, acting on behalf of McAnany, Haywood, Hall, Helverding, D’Eletto and Folino, filed a motion to dismiss Ali’s Eighth Amendment claims for failure to state a claim upon which relief may be granted; Hoffman filed a separate motion to dismiss. The Magistrate Judge assigned to the case issued a Report and Recommendation (“R&R”) advising the District Court to grant the motions to dismiss. Over Ali’s objections, the District Court issued an order adopting the R&R in its entirety. Ali timely appeals that decision.2 1 On appeal, Ali also challenges the constitutionality of the prison’s policy calling for the use of a hypodermic needle rather than a swab kit to obtain a DNA sample. We will not address this claim because he did not assert it in his amended complaint. 2 The order being appealed did not dispose of Ali’s First Amendment claims. Ali has since successfully moved to withdraw his First Amendment claims, thereby rendering the District Court’s order final and appealable. See Aluminum Co. of Am. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir. 1997) (“Even if the appeals court would have lacked jurisdiction 3 Our review of the District Court’s judgment is plenary. Curay-Cramer v. Ursuline Acad., 450 F.3d 130, 133 (3d Cir. 2006). We must liberally construe a complaint filed by a pro se litigant. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Furthermore, we must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff.” Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). First, we address Ali’s claim against Helverding, who is identified in the amended complaint as the nurse responsible for collecting sick call slips from inmates residing in the restricted housing unit at SCI-Greene. Ali claims that Helverding “exercised deliberate indifference to Ali’s serious medical needs by continually refusing to accept/process his sick call slips bearing his true surname in conjunction with his commit name and number.” Amend. Compl. ¶ 29. Ali allegedly submitted a sick call slip to Helverding the day after the blood extraction requesting medical attention for “excruciating pain, swelling, inflam[m]ation, and skin breakage” in the area of his puncture wounds. Amend. Compl. ¶¶ 16-17. He waited two days for a response before submitting a second sick call slip. Helverding then allegedly informed Ali that the first request was discarded because he signed the document with the surname “Ali” rather than his name of commitment and that she would not process the second request for the same reason. Ali maintains that both slips bore his at the time an appeal was filed, the court has jurisdiction if, as a result of subsequent events, there are no longer any claims left to be resolved by the district court.”). We therefore have jurisdiction under 28 U.S.C. § 1291. 4 name of commitment in addition to “Ali,” and that Helverding had previously processed sick call requests containing both surnames. We conclude that the amended complaint states a cognizable Eighth Amendment claim against Helverding. A prison official violates the Eighth Amendment by denying or delaying reasonable requests by an inmate for medical treatment, provided the challenged conduct constitutes deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987). The allegations in the amended complaint indicate that Ali was suffering from a serious medical need at the time he presented the sick call slips to Helverding. See Spruill, 372 F.3d at 235-36. The allegations also suggest that Helverding deliberately and arbitrarily refused to process Ali’s requests for medical attention. In addressing the claim against Helverding, the Commonwealth does not cite to any prison regulations that indicate that the form of Ali’s requests was improper. Nor does the Commonwealth address the allegations regarding Helverding’s prior acceptance of sick call	{ "pile_set_name": "FreeLaw" }
966 So.2d 971 (2007) WYNN v. STATE. No. SC07-1646. Supreme Court of Florida. September 6, 2007. Decision without published opinion. Rev. dismissed.	{ "pile_set_name": "FreeLaw" }
987 So.2d 656 (2006) JENNIFER PENROD TAYLOR v. JOSHUA DALE TAYLOR. No. 2040512. Court of Civil Appeals of Alabama. April 7, 2006. Decision without opinion. Reh. denied.	{ "pile_set_name": "FreeLaw" }
704 N.W.2d 177 (2005) STATE of Minnesota, Respondent, v. Todd SKIPINTHEDAY, Appellant. No. A04-1293. Court of Appeals of Minnesota. September 27, 2005. 179 Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Michelle Dietrich, Redwood County Attorney, Redwood County Courthouse, Redwood Falls, MN, for respondent. John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, Minneapolis, MN, for appellant. Considered and decided by KALITOWSKI, Presiding Judge; SHUMAKER, Judge; and MINGE, Judge. OPINION GORDON W. SHUMAKER, Judge. Appellant challenges his sentence on three counts of being an accomplice after the fact. Appellant argues that there were not multiple victims of his three offenses, even if there were multiple victims for the offenses committed by the principals, and that because the conduct was part of a single behavioral incident, appellant could be sentenced on only one count. Because we hold that the victims of the principal offenses are not victims of appellant's crimes, the single-behavioral-incident rule applies and appellant can receive only one sentence for his three convictions. We affirm in part, reverse in part, and remand. FACTS On July 12, 2003, appellant Todd Skipintheday, James Mata, Itanca Henry, and Kimberley Berry drove from Minneapolis to the Redwood Falls area. Skipintheday brought a bag of clothing into which Mata put a pistol and ammunition. The group obtained a motel room in Morton, where they initially left the pistol. They retrieved the pistol later when they decided to go to a party where they knew members of the Native Mob street gang would be present. Mata and Henry were members of the Native Gangster Disciples, a rival gang. At the party, Henry and Mata argued with Hunter Parker, Michael O'Brien, and Jarvis Wabasha. Ultimately, Parker, O'Brien, and Wabasha were shot. Wabasha died from his wounds. Skipintheday was present during the arguments and shootings but did not participate in them. After the shootings, Henry, Mata, Berry, and Skipintheday fled in a car that Berry drove. Skipintheday yelled to her, "Let's get out of here. We got to go." And he advised her that, "You didn't see anything." Skipintheday noticed that Mata had a pistol different from the one he had brought to the party. The police stopped the fleeing car. Skipintheday removed the ammunition from the pistol and hid it and the gun in separate locations in the car. When the police questioned Skipintheday, he denied involvement in the shootings and any gang connections, and he misidentified Itanca Henry as Robert Henry to protect him from an outstanding federal arrest warrant. The state charged Skipintheday with several crimes relating to the shootings. 180 He entered a plea agreement under which he pleaded guilty to being an accomplice after the fact to first-degree murder, attempted second-degree murder, and first-degree assault for the benefit of a gang. Each charge related to a different victim. The remaining charges were to be dismissed, and there was no agreement as to sentencing. In his plea, Skipintheday admitted that he hid the gun and ammunition and that he gave false statements to the police with the intention of aiding those who had done the earlier shootings. Because these accomplice-after-the-fact crimes were not ranked under the Minnesota Sentencing Guidelines, the district court assigned the following rankings: (1) assault in the first degree for the benefit of a gang Level VII; (2) murder in the first degree Level VIII; and (3) attempted murder in the second degree Level VIII. The court then sentenced each crime consecutively because each involved a separate victim. The sentences were for 48 months, 52 months, and 48 months respectively, for a total of 148 months. On appeal, Skipintheday challenges the propriety of consecutive sentencing and of the enhanced sentence for a crime committed for the benefit of a gang. ISSUES 1. Appellant pleaded guilty to being an accomplice after the fact to first-degree murder, attempted second-degree murder, and first-degree assault, involving three separate victims and arising out of the same behavioral incident. The court imposed three consecutive sentences under the multiple-victim exception to the single-behavioral-incident rule. Did the court properly determine that the victims of the principal crimes were also victims of the after-the-fact crimes? 2. Was it proper for the court to enhance a sentence on the ground that the crime was for the benefit of a gang without allowing appellant to have the facts supporting the enhancement determined by a jury? ANALYSIS A district court's sentencing decision will be overturned on appeal only if there has been a clear abuse of the court's discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999). Skipintheday argues that the district court abused its discretion in various respects in imposing consecutive sentences. He contends that his crimes constituted a single behavioral incident to which no exception applies; that his crimes were not crimes against persons but were against the administration of justice; and that the court improperly determined that he committed accomplice after the fact to an assault committed for the benefit of a gang. He argues that his sentences should be vacated and the matter remanded for resentencing. 1. Single Behavioral Incident When a person's conduct constitutes more than one criminal offense, he may be punished for only one of the offenses. Minn.Stat. § 609.035, subd. 1 (2002). The purpose of the statute is to limit punishment to a single sentence when a single behavioral incident results in the violation of multiple criminal statutes. State v. Brown, 597 N.W.2d 299, 305 (Minn.App.1999), review denied (Minn. Sept. 14, 1999). Skipintheday pleaded guilty to being an accomplice after the fact to three crimes. An accomplice after the fact is someone who, among other things, intentionally aids a criminal by concealing evidence *181 of a crime, providing misleading information about a crime, or otherwise obstructing the investigation or prosecution of a crime. Minn.Stat. § 609.495, subd. 3 (2002). Skipintheday admitted that, after the shootings, he made false statements to the police and he hid Mata's pistol and ammunition. He admitted that he did these things intentionally to aid the participants in the shootings. It is clear that Skipintheday's after-the-fact conduct constituted a single behavioral incident. The state concedes this, and the district court did not find otherwise. Thus, Skipintheday is entitled to a single sentence unless an exception to Minn.Stat. § 609.035 (2002) applies. 2. Multiple-Victim Exception The courts have created an exception to Minn.Stat. § 609.035 which allows the imposition of multiple sentences despite the existence of a single behavioral incident if the offenses involve multiple victims. State v. Bertsch, 689 N.W.2d 276, 286 (Minn.App.2004). The district court applied this exception in sentencing Skipintheday because each count to which he pleaded guilty involved a separate victim. Skipintheday argues that the multiple-victim exception does not apply because none of the victims of the shootings were directly harmed by Skipintheday's after-the-fact conduct. The state contends that no authority requires direct harm before a person may be classified as the victim of a crime. We do not see the concept of "victim" as turning on whether harm is direct or indirect. Absent a statutory or caselaw definition of the word, we turn to a common lexical meaning: A victim is a person harmed by a crime, tort, or other wrong. Black's Law Dictionary, 1561 (7th ed.1999). Applying that definition, the harm to O'Brien, Parker, and Wabasha occurred when the crimes against them occurred. And those crimes were completed before Skipintheday did the acts that constituted his crimes. None of the shooting victims were harmed any further, either directly or indirectly, by Skipintheday's after-the-fact conduct. Thus, there were no personal victims of Skipintheday's crimes, and, therefore, there could not be multiple victims of his crimes. Rather, we agree with Skipintheday's argument that his crimes were against the administration of justice and not against specific persons. The plain sense of section 609.495, subd. 3, is that certain after-the-fact conduct offends the justice system by thwarting the detection, investigation, or prosecution of a crime. Harm to a victim is inflicted when a crime is committed against that victim. That is so whether or not the perpetrator is ever apprehended or prosecuted or convicted. And that harm is addressed through the specific criminal penalties provided in the statute defining the crime that was committed against the victim. Although personal harm to a crime victim cannot be undone by the mechanisms of the law, the core value of justice can be vindicated if the criminal is punished for his nefarious act. Section 609.495, subd. 3, addresses the harm that may be done to society as a whole when after-the-fact conduct obstructs or burdens the vindication of the core value of justice. We note also that a person can be liable for the crimes of another if	{ "pile_set_name": "FreeLaw" }
NUMBER 13-08-00643-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN THE INTEREST OF H.M.P. AND B.R.P., CHILDREN On appeal from the 267th District Court of Victoria County, Texas. MEMORANDUM OPINION Before Justices Yañez, Benavides, and Vela Memorandum Opinion by Justice Yañez Appellant, J.C., appeals the termination of her parental rights to her two children, H.M.P. and B.R.P. (1) By three issues, J.C. contends: (1) the evidence is legally and factually insufficient to support the trial court's finding that she committed three statutory grounds for termination; (2) the evidence is factually insufficient to support a finding by clear and convincing evidence that termination of J.C.'s parental rights was in the best interest of the children; and (3) "the trial court erred in its conservatorship determinations." We affirm. I. Background On January 24, 2007, J.C. took her two-month-old daughter, B.R.P., to the hospital because J.C found three nails in B.R.P.'s diaper. X-rays of B.R.P. were taken, and the doctor discovered that two nails remained in B.R.P.'s digestive tract. Fortunately, B.R.P. "passed" the nails without suffering any injury. (2) Based on this incident, a referral was made to the Texas Department of Family and Protective Services (TDFPS) alleging physical abuse and neglectful supervision. (3) On September 19, 2007, TDFPS filed an original petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship requesting that (1) the children be removed from the parents' home, (2) TDFPS be appointed the temporary sole managing conservator of the children, and (3) if reunification with J.C. was not possible, termination of the parent-child relationship. The children were removed, and the trial court appointed TDFPS as temporary sole managing conservator. On November 6, 2007, in its temporary order following an adversary hearing, the trial court ordered J.C. to: (1) perform the requirements outlined in TDFPS's original service plan or any amended service plans filed with the trial court during the pendency of the suit; (2) "attend and cooperate fully in counseling sessions at Child-Family-Adult Counseling to address the specific issues that led to the removal of the children from the home"; (3) attend and successfully complete parenting classes; (4) "submit urine or saliva samples, at times to be determined by [TDFPS], for analysis by a drug testing laboratory"; and (5) pay child support in the amount of twenty dollars per month. On November 30, 2007, in a status hearing order, the trial court ordered that "the permanency plans and recommendations for the children, set out in the service plans filed with the [trial court], are approved and adopted by the [trial court] as if set out verbatim in this order." The trial court advised the parents, J.C. and M.P., that "progress under the service plan will be reviewed at all subsequent hearings, including a review of whether the parties have acquired or learned any specific skills or knowledge in the service plan." Under the terms of the service plan, J.C. was required, among other things, to: (1) "attend, participate in, and successfully complete" parenting classes; (2) "attend and cooperate fully in counseling services with [sic] to address the specific issues that led to the removal of her children and to address any additional issues that rise from the psychological evaluation"; (3) "appear at Mid-Coast Family Services and submit to and cooperate fully in the preparation of a drug and alcohol dependency assessment"; (4) "appear at the office of Dr. Michelle Moran and submit to and cooperate fully in the preparation of a psychc [sic]"; (5) pay child support; (6) participate in Battering Intervention & Prevention ("BIP") with Mid-Coast Family Services; and (7) "submit to random drug screenings performed by the caseworker or any other employee of [TDFPS]." In a permanency plan and permanency progress report filed with the trial court on February 26, 2008, TDFPS documented that although J.C. had not completed all the services in the plan, she was "eager to begin services" and had set up an appointment for parenting classes. It was further noted that J.C. had completed an alcohol and drug assessment, a psychological examination, and one random drug test. However, J.C. had not started parenting classes or individual counseling as ordered by the trial court. On March 7, 2008, in its permanency order, and in its March 7, 2008 permanency hearing order, the trial court found that J.C. had not "demonstrated adequate and appropriate compliance with the service plan." In a permanency plan and progress report filed on July 3, 2008, TDFPS stated that J.C. had completed her drug and alcohol assessment, and recommended that J.C. participate in out-patient treatment, parenting classes, random drug testing, and if she continued testing positive for drugs, inpatient treatment. According to the report, J.C. had submitted two random drug tests; the lab was unable to complete the first test and the second test was negative. On March 21, 2008, when the caseworker asked J.C. to perform a drug test, J.C. refused and admitted that she had used marihuana. Since that date, J.C. had refused to take any more drug tests. J.C. had neither completed nor participated in the BIP program, individual counseling, and parenting classes. On July 11, 2008, in a permanency hearing order, the trial court found that J.C. had "not demonstrated adequate and appropriate compliance with the service plan" and ordered J.C. to pay child support in the amount of $224 per month. The trial court set the suit for trial on August 26, 2008; a continuance was granted, and a bench trial was held on September 17-18, 2008. After hearing evidence, the trial court ordered the termination of J.C.'s parental rights to H.M.P. and B.R.P., appointed M.P. possessory conservator, and appointed TDFPS permanent managing conservator. The trial court found by clear and convincing evidence that termination of J.C.'s relationship with H.M.P. and B.R.P. was in the children's best interest and that J.C. had violated section 161.001 of the family code by: (1) knowingly placing or knowingly allowing the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; (2) failing to support the children in accordance with mother's ability during a period of one year ending within six months of the date of the filing of the petition; and (3) failing to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who were in the permanent or temporary managing conservatorship of TDFPS for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children. (4) J.C. filed a motion for new trial that was overruled by operation of law. This appeal ensued. II. Sufficiency of the Evidence By her first issue, J.C. contends that the evidence is legally and factually insufficient to support the trial court's findings that she violated subsections D, F, and O of section 161.001 of the family code. By her second issue, J.C. contends that the evidence is factually insufficient "for the trial court to conclude by clear and convincing evidence that termination of [J.C.'s] parental rights was in the best interest of the children." A. Applicable Law and Standard of Review Before terminating the parent-child relationship, the trial court must find that the parent committed an act prohibited by section 161.001(1) of the Texas Family Code and that termination is in the child's best interest. (5) Involuntary termination of parental rights involves fundamental constitutional rights and divests the	{ "pile_set_name": "FreeLaw" }
106 F.3d 389 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.Lawrence W. CAMPBELL, Petitioner-Appellant,v.STATE of South Carolina; Attorney General of The State ofSouth Carolina, Respondents-Appellees. No. 96-6580. United States Court of Appeals, Fourth Circuit. Submitted Jan. 23, 1997.Decided Jan. 31, 1997. Appeal from the United States District Court for the District of South Carolina, at Columbia. William B. Traxler, Jr., District Judge. (CA-95-271-3-21BC) Lawrence W. Campbell, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, SC, for Appellee. Before RUSSELL, WILKINS,* and WILLIAMS, Circuit Judges. PER CURIAM: 1 Lawrence W. Campbell seeks to appeal the district court's order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. July 1996, Pamplet 2). We have reviewed the record and the district court's opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of probable cause to appeal; to the extent that a certificate of appealability is required, we deny such a certificate. We dismiss the appeal on the reasoning of the district court. Campbell v. South Carolina, No. CA-95-271-3-21BC (D.S.C. Mar. 27, 1996). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED * Judge Wilkins did not participate in consideration of this case. The opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d)	{ "pile_set_name": "FreeLaw" }
Order Michigan Supreme Court Lansing, Michigan October 11, 2013 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Stephen J. Markman 147175 Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano, Justices TOWNSHIP OF RICHMOND, Plaintiff-Appellee, v SC: 147175 COA: 304444 Macomb CC: 2006-001054-CZ RONDIGO, L.L.C., 2006-004429-CZ Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the March 5, 2013 judgment of the Court of Appeals is considered, and it is DENIED, there being no majority in favor of granting leave to appeal or taking other action. YOUNG, C.J. and VIVIANO, J., would grant leave to appeal. MARKMAN, J. (dissenting). I respectfully dissent. In my judgment, the Court of Appeals erred by holding that defendant could not receive attorney fees and costs pursuant to MCR 286.473b absent compliance by defendant’s farm or farm operation with “generally accepted agricultural and management practices” (GAAMPs). MCR 286.473b states: In any nuisance action brought in which a farm or farm operation is alleged to be a nuisance, if the defendant farm or farm operation prevails, the farm or farm operation may recover from the plaintiff the actual amount of costs and expenses determined by the court to have been reasonably incurred by the farm or farm operation in connection with the defense of the action, together with reasonable and actual attorney fees. [Emphasis added.] 2 MCL 286.473(1) states in part: A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture. The Court of Appeals held that “the plain language of MCL 286.473(1) expressly conditions [Right to Farm Act] immunity from characterization as a nuisance on a farm’s or a farm operation’s conformance to [GAAMPs].” Richmond Twp v Rondigo, LLC, unpublished opinion per curiam of the Court of Appeals, issued March 5, 2013 (Docket No. 304444), p 6. I disagree. The provision in MCL 286.473(1) that a GAAMPs- compliant farm or farm operation is immune from characterization as a “nuisance” constitutes one way, but not the only way, in which a defendant farm or farm operation can prevail in a nuisance action and thus receive costs under MCL 286.473b. Furthermore, MCL 286.473b states that a defendant farm or farm operation that prevails in any nuisance action in which that defendant is alleged to be a nuisance is entitled to expenses. MCL 286.473b contains no language limiting the award of fees and costs to defendants who are compliant with GAAMPs. Simply, if a farm or farm operation is not compliant with GAAMPs but prevails in a nuisance action, nothing in MCL 286.473b suggests that the farm or farm operation cannot receive costs. Because there was no dispute that defendant’s composting activity constituted a “farm or farm operation,” and because defendant prevailed in the litigation of the township’s failed nuisance claims pertaining to defendant’s composting activities, defendant should have been permitted to recover costs and expenses reasonably incurred “in connection with the defense of the action, together with reasonable and actual attorney fees.” MCL 286.473b. Accordingly, I would reverse this portion of the judgment of the Court of Appeals and award attorney fees and costs to defendant. ZAHRA, J., did not participate because he was on the Court of Appeals panel at an earlier stage of the proceedings. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. October 11, 2013 s1008 Clerk	{ "pile_set_name": "FreeLaw" }
917 So.2d 194 (2005) MLECKA v. SIKES. No. SC05-1031. Supreme Court of Florida. November 18, 2005. Decision without published opinion. Mand. denied.	{ "pile_set_name": "FreeLaw" }
930 F.2d 475 6 Indiv.Empl.Rts.Cas. 593 Catherine TANKS, Plaintiff-Appellant,v.GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY, Defendant-Appellee. No. 90-3494. United States Court of Appeals,Sixth Circuit. Argued March 21, 1991.Decided April 12, 1991. Alan Belkin (argued), Shapiro, Turoff, Gisser & Belkin, Cleveland, Ohio, for plaintiff-appellant. Lee J. Hutton (argued), David A. Posner, Andrew C. Meyer, Duvin, Cahn & Barnard, Cleveland, Ohio, for defendant-appellee. Before MILBURN and BOGGS, Circuit Judges, and GILMORE, District Judge*. MILBURN, Circuit Judge. 1 Plaintiff-appellant Catherine Tanks appeals the district court's grant of summary judgment for defendant-appellee Greater Cleveland Regional Transit Authority (GCRTA) in this civil rights action brought under 42 U.S.C. Sec. 1983 challenging GCRTA's drug testing policy. For the reasons that follow, we affirm. I. 2 The district court's opinion is reported. See Tanks v. Greater Cleveland Regional Transit Auth., 739 F.Supp. 1113 (N.D.Ohio 1990). The facts, which are not in dispute, are adopted in part from the district court's opinion. 3 The GCRTA provides public transportation services for approximately 240,000 people daily in Northeastern Ohio. On a typical business day, the GCRTA has over 550 buses in operation. In February 1986, the GCRTA implemented an "Alcohol and Drug Abuse Policy" ("drug policy") designed to detect employees who were using alcohol or drugs on the job, and to deter them from doing so. The drug policy was adopted in response to the widespread problem of alcohol and drug abuse in society in general, and at the GCRTA in particular. 4 The drug policy lists several circumstances under which employees are required to submit to toxicological testing for the presence of alcohol and drugs. One set of circumstances, applicable to bus drivers and rail operators, lists eight separate types of accidents, the occurrence of which will result in drug testing. Included among this list is the occurrence of an accident involving a fixed object. All GCRTA employees received a copy of the drug policy, and the policy was also posted at the four garages which service GCRTA buses. Under the drug policy, employees who test positive for cocaine or other hard drugs are terminated. 5 On September 11, 1986, Catherine Tanks was employed as a bus driver by GCRTA, and she was working a "swing run," whereby she would drive a bus during the morning peak traffic hours, go home for several hours, and return to work to drive during the late afternoon peak traffic hours. After completing her morning run, Tanks struck a stationary pole while driving her bus into a GCRTA garage. Tanks was aware of the drug policy, and she understood that hitting a fixed object was one of the circumstances which required an employee to have a drug test. Tanks reported the accident, and she agreed to accompany GCRTA Zone Supervisor, Edward Butler, to a Southgate Medical Laboratory facility for testing. 6 At the laboratory, Tanks provided blood, saliva and urine samples. The urine specimen was analyzed for the presence of various psychoactive substances, and initial testing revealed a positive showing of cocaine. Pursuant to established procedures, the laboratory ran a second confirming test on Tanks' urine, employing the gas chromatography/mass spectrometry (GC/MS) test, which provides a "fingerprint" of the molecular structure of the metabolites contained in the urine. The GC/MS test revealed the presence of the cocaine metabolite in Tanks' urine. Accordingly, the laboratory contacted James Clark, the Assistant Director of Bus Transportation for the GCRTA, and advised him that Tanks' urine specimen tested positive for cocaine. The following day, September 17, 1986, Tanks was terminated pursuant to the requirements of GCRTA's drug policy. 7 On June 30, 1988, Tanks filed the present action under 42 U.S.C. Sec. 1983 alleging that GCRTA, a governmental entity, violated her Fourth Amendment right to be free from an unreasonable search by requiring her to submit to a drug test following her accident on September 11, 1986. Tanks also asserted that her subsequent discharge was unconstitutional because it was based on the unconstitutional search. 8 After a period of discovery, GCRTA filed a motion for summary judgment on May 1, 1989, asserting that the material facts in the case were not in dispute and that it was entitled to judgment as a matter of law. Tanks filed a brief in opposition to the motion for summary judgment, with no supporting affidavits. On April 25, 1990, the district court granted GCRTA's motion for summary judgment, holding that GCRTA's drug policy was reasonable and did not violate Tanks' constitutional rights as a matter of law. 9 This timely appeal followed. The principal issue on appeal is whether the GCRTA violated Tanks' constitutional rights by requiring her to submit to a drug test after the bus she was driving collided with a stationary object. II. 10 Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This court reviews a grant of summary judgment de novo. Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). Because there is no genuine dispute as to the material facts in this case, one of the parties is entitled to a judgment as a matter of law. See Eberhard Foods, Inc. v. Handy, 868 F.2d 890, 891 (6th Cir.1989). 11 In granting summary judgment for GCRTA, the district court was guided by the Supreme Court's recent decisions in Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). We shall look to those decisions for guidance in analyzing the present case. 12 In Skinner, the Court upheld the constitutionality of Federal Railroad Administration ("FRA") regulations which mandated or authorized drug testing of train crews following certain accidents. The Court initially recognized that the collection and testing of blood and urine specimens constituted a search under the Fourth Amendment, the reasonableness of which was subject to Fourth Amendment analysis. Skinner, 109 S.Ct. at 1413. The Court stated that the reasonableness of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 1414. 13 The Court next determined that the Fourth Amendment did not require a pre-test warrant because the FRA regulations provided little discretion in determining who to test, the testing was conducted for administrative rather than criminal purposes, and the warrant requirement would add little to the certainty and regularity of the process. Id. at 1415-16. The Court then noted that a search performed without a warrant must generally be based on "probable cause to believe that the person to be searched has violated the law." Id. at 1416-17. The Court added that "[w]hen the balance of interests precludes insistence on a showing of probable cause, we have usually required 'some quantum of individualized suspicion' before concluding that a search is reasonable." Id. However, the Court emphasized that "a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable." Id. 14 In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. 15 Id. Thus, to determine the reasonableness of the drug testing in Skinner, the Court balanced the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. 16 Under this analysis, the Court determined that the intrusions on privacy to collect blood, breath, and urine samples under the FRA regulations were limited. The Court noted that although the urine test raised greater privacy concerns than did the blood and breath tests, the FRA regulations reduced the intrusiveness of the collection process in that the samples were collected in a medical environment by personnel unrelated to the employer through procedures often encountered in the context of a regular physical examination. Id. at 1418. 17 The Court also determined that the employees covered by the FRA regulations had a diminished expectation of privacy because the railroad industry is pervasively regulated "to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Id. at 1418. The Court noted that railroad employees have long been a principal focus of regulatory concern because a locom	{ "pile_set_name": "FreeLaw" }
NO. 12-13-00332-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § SAMUEL EARL LEE, JR., § ORIGINAL PROCEEDING RELATOR § MEMORANDUM OPINION In this original proceeding, Relator, Samuel Earl Lee, Jr., seeks a writ of mandamus directing the trial court to rule on his “11.05 habeas.” We deny the petition. BACKGROUND Relator alleges that on September 10, 2013, he filed an “11.05 Writ of Habeas Corpus Application.”1 The purpose of the application was to request a free copy of the trial record, or a loan of the record, for use in preparing a postconviction application for writ of habeas corpus. In response, he received a form for an “11.07 application for a Writ of Habeas Corpus” and a letter from the trial court clerk instructing that “[t]he form must be filled out properly and signed.” Relator did not complete the form, and the record does not indicate that he had any further communication from the clerk. 1 This is an apparent reference to Texas Code of Criminal Procedure, Article 11.05. AVAILABILITY OF MANDAMUS2 Generally, mandamus is appropriate in a criminal case when a relator shows that he has no adequate remedy at law to redress his alleged harm, and what he seeks is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). It is well settled that consideration of a motion that is “properly filed and before a court” is a ministerial act. See, e.g., State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding) (op. on reh’g). Thus, in appropriate cases, mandamus may issue to compel a trial court to rule on a motion. See In re Keeter, 134 S.W.3d 250, 252 (Tex. App.– Waco 2003, orig. proceeding). But to be entitled to mandamus relief for a trial court’s failure to rule on a motion, a relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so. Id. In this case, Relator has not established that the trial court was asked to rule on the motion or failed to do so after the request. And in light of the trial court clerk’s response to Relator’s “11.05 Writ of Habeas Corpus Application,” there is at least a possibility that the “application” has not been called to the trial court’s attention. Therefore, Relator has not shown that he is entitled to mandamus relief. Accordingly, we deny Relator’s petition for writ of mandamus. All pending motions are overruled as moot. SAM GRIFFITH Justice Opinion delivered September 24, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 2 Article 11.05 identifies the Texas courts that are empowered to issue or grant a writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.05 (West 2005). It does not create a procedure for obtaining habeas relief. See id. Relator’s conclusion to the contrary is misplaced. Generally, a request for a free record to be used in preparing a postconviction habeas application is made by motion. See, e.g., Poole v. State, No. 14-14-00081-CR, 2014 WL 1268617, at 1 (Tex. App.–Houston [14th Dist.] Mar. 27, 2014, no pet.) (mem. op., not designated for publication) (attempted appeal from denial of motion to obtain free record for use in pursuing postconviction habeas relief); In re Rodriguez, No. 10-13-00201-CR, 2013 WL 3481950, at 1 (Tex. App.–Waco July 11, 2013, orig. proceeding). Therefore, we construe Relator’s “11.05 Writ of Habeas Corpus Application” as a motion for a free record. 2 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT SEPTEMBER 24, 2014 NO. 12-13-00332-CR SAMUEL EARL LEE, JR., Relator v. HON. CHRISTI J. KENNEDY, Respondent ORIGINAL PROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by SAMUEL EARL LEE, JR., who is the defendant in Cause No. 4-93-1229, pending on the docket of the 114th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on November 1, 2013, and the same having been duly considered, because it is the opinion of this Court that a writ of mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby DENIED. Sam Griffith, Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.	{ "pile_set_name": "FreeLaw" }
548 F.2d 353 Guttelmanv.Stewart# No. 75-4474 United States Court of Appeals, Fifth Circuit 2/24/77 1 S.D.Fla. 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.	{ "pile_set_name": "FreeLaw" }
255 Ga. 699 (1986) 342 S.E.2d 308 THE TRAVELERS INSURANCE COMPANY v. BLAKEY. 42999. Supreme Court of Georgia. Decided April 24, 1986. Greene, Buckley, DeRieux & Jones, Daniel A. Angelo, Newton M. Galloway, for appellant. Orr & Kopecky, Wilbur A. Orr, for appellee. PER CURIAM. This case involves a contract of medical insurance. The facts are set out in the opinion of the Court of Appeals, Travelers Ins. Co. v. Blakey, 177 Ga. App. 1 (1) (338 SE2d 451) (1985), and will be repeated or supplemented herein only as necessary. The dispute between the parties concerns the interpretation of a group policy's definition of the term "covered medical expenses." The policy defined that term as including "physician's or surgeon's services for a surgical procedure and other medical care and treatment. ..." (Emphasis supplied.) The trial court submitted the construction of the emphasized language to the jury, and the Court of Appeals affirmed that ruling, holding as follows: "Appellant argues that the language of the policy is unambiguous and as such was to be construed by the trial court. OCGA § 13-2-1. Looking at the entire provision, we agree with appellee that the policy language is ambiguous, there being more than one way it could have been construed, and that, accordingly, it was within the province of the jury to construe it. [Cits.]" Travelers Ins. Co. v. Blakey, supra, 177 Ga. App. at 2. (Emphasis supplied.) We granted certiorari to determine "[w]hether or not the construction of a written contract is the responsibility of the court, or within the province of a jury." The foregoing language of the Court of Appeals is premised on a two-step procedure: first, the trial court determines whether a contract is ambiguous, and second, if the court finds that it is ambiguous, *700 then the question of its construction is submitted to the jury. However, as has been recognized and well-stated in numerous earlier decisions of the Court of Appeals, the process of contract construction actually is composed of three steps. See, e.g., Ga. Farm Bureau Mut. Ins. Co. v. Burnett, 167 Ga. App. 480 (2) (306 SE2d 734) (1983); Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333 (3) (291 SE2d 410) (1982); Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874 (3) (285 SE2d 566) (1981). Thus, in Transamerica Ins. Co. v. Thrift-Mart, Inc., id. at 880-881, the Court of Appeals opined that "`"[t]he construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper reading of an obscurely written word), the jury should find the fact." [Cit.] Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. [Cits.] Insurance policies being contracts, the decisions have held that the matter of construction is for the court. [Cits.]' American Cas. Co. v. Crain-Daly Volkswagen, 129 Ga. App. 576, 579 (200 SE2d 281) (1973). `The rules of law set forth in the Code with respect to the construction of contracts are framed for the guidance and direction of the courts. Except in cases where the meaning of obscurely written words is involved, and where there is evidence tending to show that the meaning of such words was differently understood in one way or another by the parties to the contract, it is ... improper for the court to give the jury any instruction with regard to the manner in which the contract should be construed. [Cits.]' California Ins. Co. v. Blumburg, 101 Ga. App. 587, 591 (115 SE2d 266) (1960)." (Emphasis supplied.) Inasmuch as the Court of Appeals' decision in the case sub judice does not expressly acknowledge the principle that even ambiguous contracts are to be construed by the court unless an ambiguity remains after application of applicable rules of construction, we therefore vacate the judgment of the Court of Appeals and remand this case for reconsideration in light of this opinion. Judgment vacated and remanded. All the Justices concur, except, Hunt, J., not participating.	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit February 4, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT KENDRA COBB, Plaintiff-Appellant, v. No. 09-3079 (D.C. No. 5:07-CV-04119-JAR) MICHAEL J. ASTRUE, Commissioner (D. Kan.) of Social Security, Defendant-Appellee. ORDER AND JUDGMENT * Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges. Kendra Cobb appeals from a district court judgment affirming a decision by the Commissioner of Social Security to deny her applications for disability insurance benefits (DIB) and supplemental security income (SSI). Ms. Cobb raises two issues regarding an administrative law judge’s (ALJ) credibility finding: (1) that the ALJ failed to specify which parts of her testimony he * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. credited and which parts he rejected and (2) the ALJ applied an erroneous legal standard evidenced when he stated that Ms. Cobb’s ability to perform activities of daily living (ADLs) “to any degree suggests that she retains some capacity to perform activities such as sitting, standing, walking and functioning in a work environment,” Admin R. at 29 (emphasis added). Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. Background 1 Ms. Cobb was 38 years old at the time of the Commissioner’s decision. She completed high school, attended two years of college, and has past relevant work experience as a sales clerk, general clerk, cashier-checker, and book sorter. Ms. Cobb claimed disability stemming from injuries sustained in a single-car rollover accident in December 2002 in which she fractured a number of spinal discs and two ribs, including a compression fracture at the T3 level accompanied by mild kyphosis, or hunchback. She was discharged from the hospital after several days, agreeing with a neurologist’s nonsurgical option that she spend six weeks in a cervical collar and three months in a back brace. She was prescribed Flexeril, Motrin, and Lortab. In April 2003, she attended four sessions of physical therapy and showed improvement, reporting that she felt remarkably 1 Because the issues in this appeal are confined to the ALJ’s credibility finding, our summary of the medical evidence excludes that to which the ALJ gave no weight. -2- better and was able to walk a mile, but she elected to forego any further sessions because of her improvement and for financial reasons. Thereafter, she was seen sporadically through December 2005 by a variety of doctors. She tried acupuncture with poor results. X-rays and MRIs generally showed a moderately severe compression fracture at the T3 level accompanied by accentuated kyphosis without spinal cord abnormalities. Exams indicated good range of motion (ROM), except in her cervical spine and neck, with some pain on thoracic extension and flexion; normal reflexes; and good strength in all extremities. She generally presented without signs of distress and moved about the examining room and table easily. Surgery was discussed but largely ruled out. A one-time epidural steroid injection in the T3-4 region was considered to provide temporary relief, but there is no indication in the record that Ms. Cobb ever received one. A permanent 25-pound limitation on lifting was considered reasonable, and she was advised to avoid stooping. She treated pain with ibuprofen. One physician considered her to be at maximum medical improvement in June 2004. A Physical Residual Functional Capacity Assessment form completed by nonexamining state agency physicians in August 2004 indicated that Ms. Cobb could lift and/or carry 20 pounds occasionally and 10 pounds frequently; could stand and/or walk for about 6 hours in an 8-hour workday; could -3- sit for about 6 hours in an 8-hour workday; and should not perform work above her head due to limitations on reaching. Meanwhile, in March 2004, Ms. Cobb filed her benefits applications and completed a form describing her ADLs dated April 15, 2004. She reported sleeping 8 hours a night, taking Tylenol P.M. on occasion and ibuprofen for pain. She stated she spent between 30 and 60 minutes cooking meals 10-12 times a week; 10-15 minutes doing a load of laundry 5 times a week; 1-2 hours cleaning the house; 1-2 hours paying bills; 2 hours a week grocery shopping; 2-3 hours a night watching television; 2-3 hours a week reading; 7-14 hours a week using a computer; 1 hour a week attending church; 1 hour a week visiting with friends and relatives; and up to 1.5 hours a week dining out, seeing movies, or attending medical appointments. She wrote: “Don’t do much lifting. Hurt a lot when standing or walking for any length of time. Hurt when cooking [and] doing dishes for any length of time. Hurt when doing paperwork any length of time.” Admin. R. at 144. In December 2005, Ms. Cobb had the first of two hearings before the ALJ. She testified that she had a lot of nerve problems, numbness, and tingling, and a lot of pain if she uses her arms or bends or twists for any length of time. She stated that if she were to lift 5 or 10 pounds for 2 or 3 minutes, her pain level would be a 5 or 6 on a 10-point scale with a lot of tingling. Depending on the -4- pain level when she stopped lifting the weight, she would have to wait anywhere from 10 to 60 minutes before being able to resume, and then would have to stop and rest again after a matter of minutes. She testified that she experienced tingling and burning, presumably in her upper back, when standing in a fixed position for 10 or 15 minutes or when walking any length of time, but she estimated she could walk for up to an hour. She admitted being able to sit for about 6 hours in an 8-hour day in a high-backed chair. Regarding her ADLs, she testified that she vacuums or dusts once a week and cooks, but cooking for a 30-60 minute period triggers severe upper-back cramps. She went grocery shopping once or twice a week but leans on the cart for support and can only shop for an hour before needing a break. If she pushes herself too hard one day, she needs the next day to rest and recover. At the conclusion of the hearing, the ALJ referred Ms. Cobb for an additional consultative examination, which was performed in February 2006 by Dr. James Shafer, who had examined her in June 2004. As in the previous exam, Dr. Shafer noted that she was in no apparent distress, had normal gait and station, and moved easily in the examining room without any assistive device. She had good ROM in her back and neck, and Dr. Shafer could detect no weakness. He completed a medical source statement, finding that she could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand about 6 hours in an -5- 8-hour workday; sit about 6 hours in an 8-hour workday; and push and pull no more than 40-50 pounds with her arms. He limited her to only occasional climbing. In July 2006, Ms. Cobb saw Dr. Raymond Grundmeyer for a neurological evaluation. She reported her pain at level 3 and explained that her pain increases with activity and improves with counter-pressure and heat. She described difficulty sleeping and was taking ibuprofen for pain. On exam, Dr. Grundmeyer found her cranial nerves intact. Motor exam revealed 5/5 in upper and lower extremities bilaterally. Her reflexes were +2 in all extremities	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) RODNEY BELLE, SR., ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0726 (PLF) ) TEMECULA/RIVERSIDE/SAN DIEGO ) SUPERIOR COURT COMMISSIONER & ) PRESIDING JUDGE/JUSTICE, et al., ) ) Defendants. ) __________________________________________) MEMORANDUM OPINION On March 31, 2011, the Court dismissed a complaint filed in a separate case by the plaintiff in this matter, Rodney Belle, Sr., against most or all of the same defendants that are named in the instant litigation. See Belle v. Temecula/Riverside/San Diego Superior Court/Nevada Township Commissioners & Presiding Judges, Civil Action No. 10-0616, Order (D.D.D. Mar. 31, 2011). Like the complaint dismissed in Civil Action No. 10-0616, Mr. Belle’s complaint in this case is largely incoherent and presents no comprehensible theory of the defendants’ legal liability. See id., Memorandum Opinion at 1-3 (D.D.C. Mar. 31, 2011). The Court therefore will dismiss the complaint sua sponte pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Boritz v. United States, 685 F. Supp. 2d 113, 126 (D.D.C. 2010) (sua sponte dismissal appropriate where plaintiff’s claims are such that he “cannot possibly win relief” (quoting Best v. Kelly, 39 F.3d 328, 331 (D.C. Cir. 1994)) (internal quotation marks omitted)). An Order consistent with this Memorandum Opinion shall issue this same day. SO ORDERED. /s/_______________________________ PAUL L. FRIEDMAN United States District Judge DATE: April 5, 2011	{ "pile_set_name": "FreeLaw" }
247 F.2d 781 Mary W. WALSH, Appellant,v.NATIONAL SAVINGS & TRUST COMPANY et al., Appellees. No. 13510. United States Court of Appeals District of Columbia Circuit. Argued April 12, 1957. Decided May 29, 1957. Petition for Rehearing In Banc Denied June 20, 1957. Mr. Dean F. Cochran, Washington, D. C., for appellant. Mr. John Lord O'Brian, Washington, D. C., for appellee Grace Dexter Burgher and certain other appellees and for appellee Lee Mitchell and certain other appellees. Mr. Hugh B. Cox and Mrs. Virginia G. Watkin, Washington, D. C., were also on the brief for appellee Lee Mitchell and certain other appellees. Mr. O. R. McGuire, Washington, D. C., for appellees Rutherford and Snodgrass. Messrs. Arthur P. Drury, John M. Lynham and John E. Powell, Washington, D. C., entered appearances for appellee National Savings & Trust Co. Before PRETTYMAN, WILBUR K. MILLER, and WASHINGTON, Circuit Judges. PRETTYMAN, Circuit Judge. This appeal is a sequel to the appeal in Walsh v. National Savings and Trust Company, decided by this court in 1956.1 The action was one for instructions brought by trustees under a trust. Our present appellant, Mary W. Walsh, contended that the trust had terminated and that she was entitled to the full corpus of the trust. Contingent remainder beneficiaries of the trust contended that the trust estate remained in existence and, under the terms of the trust, was to remain in existence until twenty years after the death of Mary W. Walsh, so long as any lineal descendant of the trustor should survive, Mary W. Walsh receiving the income for life. This court agreed with the latter contention. Thereafter the appellee remaindermen moved the District Court for an order allowing compensation from the trust for their attorneys. That court granted the motion in part, holding in a memorandum that the contingent remaindermen were the defenders of the life of the trust and that they bore the entire burden of the defense of the life of the trust. The court was of the opinion that under the general principle that a trust estate should bear the expenses of its administration the trust estate in the case at bar should bear the expense of reasonable counsel fees for the successful defenders of the life of the trust. This appeal followed. We are of opinion that the view of the District Court was reasonable. The action was in substance an effort on the part of Mary W. Walsh to terminate the trust. The remaindermen who defended the trust acted not only in their own behalf but in behalf of any then-unborn lineal descendant of the trustor. So the contest was not purely a contest between two parties as to which should receive the corpus of the trust. Under the circumstances it is an equitable conclusion that the corpus of the trust should bear the costs incurred for its preservation. In an opinion dealing with a fund created for other members of a class solely through the operation of stare decisis, Mr. Justice Frankfurter stated: 1 "Plainly the foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation. * * * As in much else that pertains to equitable jurisdiction, individualization in the exercise of a discretionary power will alone retain equity as a living system and save it from sterility."2 2 These equitable principles are applicable in suits which involve the construction of trusts.3 An attorney who creates, increases, preserves or protects a trust fund, with an accompanying benefit to all who are entitled to participate in the trust, is entitled to receive his fee from the corpus of the trust.4 On the other hand it is also true that a litigious party or one who seeks a construction in bad faith is not entitled to costs out of the corpus.5 Between these extremes lies the large body of cases which call into play the chancellor's discretion as to whether or not some or all of the costs of litigation should be charged to the corpus of the trust. The case at bar is in this area. 3 We adhere to our decisions in Caine v. Payne, Abbott, Puller & Myers v. Peyser, and Thomas v. Peyser,6 holding merely that in the circumstances of the case at bar the award of attorneys' fees out of the trust corpus was within the equitable powers of the District Court. 4 Affirmed. Notes: 1 97 U.S.App.D.C. 337, 231 F.2d 496 2 Sprague v. Ticonic Bank, 307 U.S. 161, 166-167, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) 3 In re Atwood's Trust, 227 Minn. 495, 35 N.W.2d 736, 9 A.L.R.2d 1126 (1949). See, in particular, Annot., 9 A.L.R.2d 1132, at 1184-1189 4 Caine v. Payne, 89 U.S.App.D.C. 260, 191 F.2d 482 (1951); Abbott, Puller & Myers v. Peyser, 75 U.S.App.D.C. 162, 124 F.2d 524 (1941); Thomas v. Peyser, 73 App.D.C. 155, 118 F.2d 369 (1941) 5 In re Atwood's Trust, supra note 3; Cleveland v. Second Nat. Bank & Trust Co., 149 F.2d 466 (6th Cir.1945), certiorari denied, 326 U.S. 775, 66 S.Ct. 231, 90 L.Ed. 468 (1945) 6 All supra note 4 5 WILBUR K. MILLER, Circuit Judge (dissenting). 6 I do not agree that the action brought by the trustees for a construction of the trust instrument "was in substance an effort on the part of Mary W. Walsh to terminate the trust." The trustees were in doubt as to how to interpret the declaration of trust and were unwilling to take the responsibility of resolving their doubt. In these circumstances, they very properly sought judicial guidance. 7 Mary W. Walsh did not initiate the litigation, and neither attacked the integrity of the declaration of trust nor sought to terminate the trust contrary to its terms. She merely tried to induce the courts to agree with her interpretation of it, just as the contingent remaindermen argued for the adoption of their contrary view. Meanwhile the trustees looked on, with the trust fund securely in their possession, ready to retain or distribute it as directed. The fund had already been created and was intact at the original amount. It was not in need of preservation or protection by others than the trustees. The latter simply awaited judicial direction; the controversy was solely between the antagonistic parties. 8 It may be the trustees filed the action because of the conflicting contentions of Mrs. Walsh and the contingent remaindermen as to the trustor's intention. If so, the fact serves to point up the adversary nature of the proceeding. Certain it is that in the trial court and in this court they were antagonists, each taking a selfish position which was unfavorable to the other. 9 The remaindermen's success did not redound to her benefit but rather to her prejudice. Allowance of their attorneys' fees out of the corpus will further prejudice her by curtailing the income from the trust which she is entitled to receive as long as she lives. 10 I agree that "An attorney who creates, increases, preserves or protects a trust fund, with an accompanying benefit to all who are entitled to participate in the trust,1 is entitled to receive his fee from the corpus of the trust." But that is not this case, as the majority concede. I also agree that "a litigious party or one who seeks construction in bad faith is not entitled to costs out of the corpus." But this case does not fall in that category, as my brothers admit. 11 They find, however, "[b]etween these extremes" a twilight zone where the chancellor has discretion to allow from the trust fund the attorney's fees of a party who did not in any way create, increase, preserve or protect the fund. I doubt the existence of such an area in which the majority say lies a "large body of cases," and I note they cite no authority for it. It seems to me that the chancellor's discretion is exhausted when he determines whether the claimant meets the test of Caine v. Payne, 1951, 89 U.S.App.D.C. 260, 191 F.2d 482. 12 In citing the Caine case to support the first of the two "extremes": that one who creates, increases, preserves or protects a trust fund to the benefit of all concerned is entitled to costs from the corpus, my brothers of the majority overlook the fact that in the Caine opinion we held the converse or negative of that proposition. We said one who did not create, increase, preserve or protect the trust fund for all beneficiaries is not entitled to have his attorney paid from the fund. Thus the true test was established. 13 The Caine case is so factually similar to the situation here that I think its holding is dispositive of the case before us. I quote from the Caine opinion: 14 "National Savings and Trust Company sued for construction of the residuary cause of	{ "pile_set_name": "FreeLaw" }
618 F.2d 118 Whitlock, In re 78-1972 UNITED STATES COURT OF APPEALS Ninth Circuit 4/4/80 1 C.D.Cal. AFFIRMED	{ "pile_set_name": "FreeLaw" }
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 12 2016, 8:21 am 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 APPELLANTS ATTORNEY FOR APPELLEE Dale W. Arnett Meeks Cockerill Winchester, Indiana Winchester, Indiana IN THE COURT OF APPEALS OF INDIANA Larry D. Rittenhouse and February 12, 2016 Linda C. Rittenhouse, Court of Appeals Case No. 68A01-1507-MI-1014 Appellants-Defendants, Appeal from the Randolph v. Superior Court The Honorable Peter D. Haviza City of Winchester, Trial Court Cause No. 68D01-1011-MI-649 Appellee-Plaintiff Vaidik, Chief Judge. Court of Appeals of Indiana \| Memorandum Decision 68A01-1507-MI-1014 \| February 12, 2016 Page 1 of 10 Case Summary [1] The Rittenhouses, who own real property that was platted by Silas Colgrove in 1870, filed first a complaint and then a motion for summary judgment against the City of Winchester, claiming ownership of a portion of Meridian Street. Finding no merit to the Rittenhouses’ contention that a prior railroad right-of- way precluded Colgrove from platting an easement for Meridian Street, and that a class-action declaratory judgment cited as support by the Rittenhouses does not pertain to the property at issue in this matter, we find the Rittenhouses have failed to demonstrate a genuine issue of material fact. We further conclude that although the Rittenhouses may have a fee interest in a portion of what is now Meridian Street, subsequent to the railroad right-of-way the Colgrove Plat gave to Winchester an easement for public-street purposes— Meridian Street—the dimensions of which can be determined by looking at Mumma’s Addition in conjunction with Colgrove’s Addition. Thus the City of Winchester has an easement on the disputed property. [2] We affirm. Facts and Procedural History [3] This case was initiated in November 2010, when Larry Rittenhouse filed a complaint against the City of Winchester requesting a judgment declaring that the Rittenhouses are the rightful owners of certain real estate, orders to quiet title and prohibit condemnation of the real estate for a period of two years, and Court of Appeals of Indiana \| Memorandum Decision 68A01-1507-MI-1014 \| February 12, 2016 Page 2 of 10 damages. See Appellants’ App. p. 155. Specifically the real estate of which the Rittenhouses are claiming ownership is presently a platted, paved city street called Meridian Street in Winchester, Indiana. [4] The real estate in question has a long and complicated history. In January 1856, Andrew Aker received a deed for certain real property, which included what is now Lots 6,13,14, and 15 of Colgrove Addition and 100 feet to the east of the lots. A document signed by Aker, dated July 11, 1856, gave the Cincinnati and Fort Wayne Railroad a right-of-way across 100 feet east of the lots; the right-of-way was for fifty feet on either side of the railroad track. Aker had the privilege of using and cultivating any part of the one-hundred feet not needed by the railroad “for the construction, repair, or use of the [rail]road.” Id. at 158. [5] Later in November 1868, Aker and his wife, Hannah, conveyed to Silas Colgrove by warranty deed what is now Lots 6,13,14, and 15 and up to the centerline of the railroad subject to the conveyance of the right-of-way granted by Aker to the railroad. In May 1870 Colgrove platted the Colgrove Addition, including Lots 6, 13, 14, and 15. The plat of Colgrove Addition platted subdivision streets as follows: “All the lines of the Streets, Alleys, & Lots have the same bearings of the lines of Streets, Alleys & Lots in said Mumma’s Addition.” Id. at 33, 124. The contemporaneous Colgrove Addition plat map, see id. at 17, together with the contemporary map of John Mumma’s Addition, see id. at 17, shows Meridian Street immediately to the east of Lots 6,13,14, and 15. While no railroad easement is shown on the contemporaneous subdivision Court of Appeals of Indiana \| Memorandum Decision 68A01-1507-MI-1014 \| February 12, 2016 Page 3 of 10 plat, the original deed granted the railroad right-of-way immediately to the east of the lots in Colgrove Addition and is shown on an earlier plat, see id. at 16. Therefore, Meridian Street was platted on the railroad’s right-of-way. Court of Appeals of Indiana \| Memorandum Decision 68A01-1507-MI-1014 \| February 12, 2016 Page 4 of 10 [6] Sometime in the mid-1980s the railroad abandoned its easement and, shortly thereafter, the City of Winchester paved the western-most portion of the easement. For over forty years the paved portion of North Meridian Street adjacent to Lots 6, 13, 14, and 15 in the Colgrove Addition has been in its present location and used by the public as a right-of-way. See id. at 80-81, 86- 87. [7] Larry Rittenhouse filed a complaint in November 20101, and thereafter the City of Winchester filed a counterclaim. Rittenhouse claimed that he owed fee simple ownership of the abandoned railroad easement east of Lots 6, 13, 14, and 15. Both parties then filed motions for partial summary judgments, and responses to the same. In June 2015, the trial court issued a summary declaratory judgment, finding that the Meridian Street easement existed at the same time as the railroad right-of-way, that the Meridian Street easement was subservient to the railroad right-of-way, and that the Rittenhouses have the fee interest in the property subject to the still-existing Meridian Street easement. The Rittenhouses now appeal. Discussion and Decision [8] On appeal the Rittenhouses appeal the trial court’s grant of summary judgment in favor of the City of Winchester, contending first that the railroad’s right-of- 1 Linda Rittenhouse was added as a necessary third party in December 2012. Court of Appeals of Indiana \| Memorandum Decision 68A01-1507-MI-1014 \| February 12, 2016 Page 5 of 10 way was granted before Colgrove took possession; consequently, Colgrove had no legal authority to plat an easement for a street on railroad property. Second the Rittenhouses argue that the Firestone v. American Premier Underwriters, Inc. (formerly known as the Penn Central Corp.), Cause No. 06C01-9912-CP-379, from the Boone Circuit Court gives them ownership of the disputed property. [9] When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Wise v. Hays, 943 N.E.2d 835, 839-40 (Ind. Ct. App. 2011). All facts established by the designated evidence and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Wise, 943 N.E.2d at 840. [10] The Rittenhouses argue first that Colgrove could not plat Meridian Street on railroad property because the railroad’s right-of-way was granted before Colgrove took possession. In support of this argument, the Rittenhouses cite Indiana Code section 8-3-15-1, which provides as follows: The use by the public (of the) right of way or depot grounds of any railroad in this state by riding, driving or walking thereon, shall not ripen into a right to continue to do	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/06/2020 08:05 AM CST - 185 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 Millard R. Seldin, individually and as Trustee of the Millard R. Seldin Revocable Trust, dated October 9, 1993, et al., appellants and cross-appellees, and Scott A. Seldin, individually and as Trustee of the Seldin 2002 Irrevocable Trust, dated December 31, 2002, appellant, cross-appellant, and cross-appellee, v. Estate of Stanley C. Silverman et al., appellees, cross-appellants, and cross-appellees. Theodore M. Seldin, individually and as Trustee of the Amended and Restated Theodore M. Seldin Revocable Trust, dated May 28, 2008, et al., appellees, cross-appellants, and cross-appellees, v. Millard R. Seldin, individually and as Trustee of the Millard R. Seldin Revocable Trust, dated October 9, 1993, et al., appellants and cross-appellees, and Scott A. Seldin, individually and as Trustee of the Seldin 2002 Irrevocable Trust, dated December 31, 2002, appellant, cross-appellant, and cross-appellee. ___ N.W.2d ___ Filed March 6, 2020. Nos. S-19-310, S-19-311. 1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 2. Judgments: Arbitration and Award: Federal Acts: Appeal and Error. In reviewing a decision to vacate, modify, or confirm an arbi- tration award under the Federal Arbitration Act, an appellate court is - 186 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 obligated to reach a conclusion independent of the trial court’s ruling as to questions of law. However, the trial court’s factual findings will not be set aside on appeal unless clearly erroneous. 3. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 4. ____: ____. When an attorney fee is authorized, the amount of the fee is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. 5. Pleadings: Judgments: Appeal and Error. A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose deci- sion will be upheld in the absence of an abuse of that discretion. 6. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in mat- ters submitted for disposition. 7. Arbitration and Award: Federal Acts: Contracts. Arbitration in Nebraska is governed by the Federal Arbitration Act if it arises from a contract involving interstate commerce; otherwise, it is governed by Nebraska’s Uniform Arbitration Act. 8. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it. 9. Arbitration and Award: Federal Acts: Jurisdiction: Notice. The Federal Arbitration Act’s notice requirements are jurisdictional, and fail- ure to strictly comply deprives the district court of authority under the Federal Arbitration Act to vacate the arbitration award. 10. Arbitration and Award: Federal Acts: Notice. The Federal Arbitration Act’s notice requirements are satisfied if the notice provided complies with Nebraska’s statutory notice requirements. 11. Arbitration and Award: Federal Acts: Legislature. The Federal Arbitration Act favors arbitration agreements and applies in both state and federal courts. It also preempts conflicting state laws and fore- closes state legislative attempts to undercut the enforceability of arbitra- tion agreements. 12. Arbitration and Award: Motions to Vacate. When arbitration has already occurred and a party seeks to vacate, modify, or confirm an award, an extraordinary level of deference is given to the underlying award itself. 13. Arbitration and Award: Federal Acts: Motions to Vacate. The Federal Arbitration Act sets forth four grounds under which a court may vacate an arbitration award, and in the absence of one of these grounds, the award must be confirmed. - 187 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 14. Arbitration and Award: Federal Acts: Motions to Vacate: Proof. A party seeking to vacate an award for misconduct under 9 U.S.C. § 10(a)(3) (2018) of the Federal Arbitration Act must show that he or she was deprived of a fair hearing. 15. Arbitration and Award: Federal Acts. Under 9 U.S.C. § 10(a)(2) (2018) of the Federal Arbitration Act, evident partiality exists where the nondisclosure at issue objectively demonstrates such a degree of partiality that a reasonable person could assume that the arbitrator had improper motives. 16. Arbitration and Award: Federal Acts: Motions to Vacate. Under the Federal Arbitration Act, courts lack authority to vacate or modify arbitration awards on any grounds other than those specified in 9 U.S.C. §§ 10 and 11 (2018) of the Federal Arbitration Act. 17. Arbitration and Award: Federal Acts: Motions to Vacate: Public Policy. Under the Federal Arbitration Act, a court is not authorized to vacate an arbitration award based on public policy grounds because public policy is not one of the exclusive statutory grounds set forth in 9 U.S.C. § 10 (2018) of the Federal Arbitration Act. 18. Arbitration and Award: Federal Acts: Contracts: Proof. Pursuant to 9 U.S.C. § 10(a)(4) (2018) of the Federal Arbitration Act, a court is authorized to set aside an arbitration award where the arbitrator exceeded his or her powers. However, it is not enough to show that the arbitrator committed an error—or even a serious error. The analysis is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he or she got its meaning right or wrong. 19. Attorney Fees. Attorney fees shall be awarded against a party who alleged a claim or defense that the court determined was frivolous, inter- posed any part of the action solely for delay or harassment, or unneces- sarily expanded the proceeding by other improper conduct. 20. Actions: Attorney Fees: Words and Phrases. A frivolous action is one in which a litigant asserts a legal position wholly without merit; that is, the position is without rational argument based on law and evidence to support the litigant’s position. The term frivolous connotes an improper motive or legal position so wholly without merit as to be ridiculous. 21. Actions. Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question. 22. Appeal and Error. An appeal or error proceeding, properly perfected, deprives the trial court of any power to amend or modify the record as to matters of substance. 23. Arbitration and Award: Federal Acts: Contracts. Under the Federal Arbitration Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. - 188 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 24. Arbitration and Award. An evident material mistake is an error that is apparent on the face of the record and would have been corrected had the arbitrator known at the time. 25. Attorney Fees:	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-40983 Conference Calendar DANIEL JOHNSON; SAMUEL G. NEWTON; LARRY DOUGLAS, Plaintiffs-Appellants, versus DAVID STACKS, Senior Warden, individually and in his official capacity; J.E. ALFORD, former Senior Warden and presently Regional Director, individually and in his official capacity; GARY JOHNSON, Director of Texas Department of Criminal Justice, Institutional Division, individually and in his official capacity; WAYNE SCOTT, Executive Director, individually and in his official capacity; TERESA MCKNIGHT, Correctional Officer, individually and in her official capacity; JEREMIAH DAVIS, Correctional Officer, individually and in his official capacity; JAMES DEFRANCE, Correctional Officer, individually and in his official capacity, Defendants-Appellees. -------------------- Appeals from the United States District Court for the Eastern District of Texas USDC No. 9:01-CV-56 -------------------- December 11, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges. PER CURIAM:* Daniel Johnson, Texas prisoner #274157, Samuel G. Newton, III, Texas prisoner #477341, and Larry Douglas, Texas prisoner #504213, appeal from the denial of their motions for a preliminary injunction against what they allege is retaliation by * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-40983 -2- prison officials. The denial of their motions was not an abuse of discretion. Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). Johnson, Newton, and Douglas have not carried their “heavy burden” of showing that they likely will prevail on the merits of their claims. See Enter. Int’l v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985). We express no opinion on the ultimate determination of the claims of Johnson, Newton, and Douglas on their merits. The requests for mandamus relief and to expedite the appeal are DENIED. We note that Newton and Douglas were added as plaintiffs through Johnson’s amendment of right. See FED. R. CIV. P. 15(a). Additionally, we note that the district court has yet to rule on the magistrate judge’s recommendation that Johnson’s claims be dismissed for failure to exhaust administrative remedies. AFFIRMED.	{ "pile_set_name": "FreeLaw" }
Case: 12-11100 Document: 00512202660 Page: 1 Date Filed: 04/09/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 9, 2013 No. 12-11100 Summary Calendar Lyle W. Cayce Clerk ABDEL ELTAYIB, Plaintiff-Appellant v. CORNELL COMPANIES INC; GEO GROUP, INC.; DAVID JUSTICE; STEVE MCDANIEL; JOHN FARQUHAR; JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; HARLEY LAPPIN; DONNA MELLENDICK; GLENN BALINAO; LOUIE ESCOBELL; FEDERAL BUREAU OF PRISONS, Defendants-Appellees Appeals from the United States District Court for the Northern District of Texas USDC No. 1:10-CV-296 Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM:* Abdel Eltayib, formerly federal prisoner # 13882-050, appeals the dismissal of a civil rights complaint he filed while imprisoned at Big Spring Correctional Center (BSCC). Eltayib relied mainly on 42 U.S.C. § 1983, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Defendants included Cornell Companies, Inc. (Cornell) and GEO * 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: 12-11100 Document: 00512202660 Page: 2 Date Filed: 04/09/2013 No. 12-11100 Group, Inc. (GEO), private corporations that were or are managing BSCC. Eltayib also named several former or current employees of Cornell or GEO at BSCC, and he sued Federal Bureau of Prisons (BOP) director Harley Lappin, BOP privatization administrator Donna Mellendick, and the BOP. Cornell, GEO, and their employees are not subject to suit as state actors under § 1983. BSCC is a federal prison and “§ 1983 applies to constitutional violations by state, rather than federal, officials.” Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir.1999) (emphasis added), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003). In addition, Cornell, GEO, and their employees cannot be liable as private actors under Bivens. See Minneci v. Pollard, 132 S. Ct. 617, 626 (2012); Correctional Services Corp. v. Malesko, 534 U.S. 61, 63-64 (2001). The BOP itself also cannot be sued under Bivens. Malesko, 534 U.S. at 72. The Bivens claims against BOP defendants Lappin and Mellendick, were properly dismissed because they cannot be vicariously liable and because Eltayib failed to allege facts that would show that their “own individual actions . . . violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In support of his Fifth Amendment Equal Protection claim, Eltayib asserts that the district court erred because the defendants had “policies . . . to transfer [a] certain class of inmates to private facilities.” He does not identify this “certain class” or explain why it was wrong to send anyone to a privately managed prison. His amorphous conclusion of discrimination fails to show that the district court erred by dismissing this claim. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 336 (5th Cir. 2009). Although Eltayib concedes that his request for a transfer is moot in light of his release from prison, he argues that the court erred by dismissing as moot his request for injunctive relief seeking the immediate cessation of all prisoner transfers to BSCC. He does not offer any basis for the district court to make such a sweeping order. Except for the limited purpose of correcting proven 2 Case: 12-11100 Document: 00512202660 Page: 3 Date Filed: 04/09/2013 No. 12-11100 constitutional violations, federal courts are neither empowered nor equipped to second-guess prison administrators or to engage in prison management. Ruiz v. Estelle, 679 F.2d 1115, 1126 (5th Cir. 1982) (and cases cited therein), vacated in part on other grounds 688 F.2d 266 (5th Cir. 1982). This contention is frivolous. The district court did not abuse its discretion by dismissing Eltayib’s state- law claims because it properly dismissed any federal claims that might have supported supplemental jurisdiction. See Noble v. White, 996 F.2d 797, 799-800 (5th Cir. 1993). Eltayib’s vague and conclusional assertions also fail to establish diversity jurisdiction. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1254 (5th Cir. 1998). Because Eltayib raises no relevant, nonfrivolous challenge to the dismissal of his claims, the judgment of the district court is AFFIRMED. Eltayib’s motion for the appointment of counsel is DENIED. 3	{ "pile_set_name": "FreeLaw" }
Case: 11-10799 Document: 00511823859 Page: 1 Date Filed: 04/17/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 17, 2012 No. 11-10799 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MICHAEL CHRISTOPHER WARD, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:08-CR-56-1 Before JONES, Chief Judge, and JOLLY and SMITH, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Michael Christopher Ward 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). Ward has not filed a response. 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, * 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: 11-10799 Document: 00511823859 Page: 2 Date Filed: 04/17/2012 No. 11-10799 counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2	{ "pile_set_name": "FreeLaw" }
301 So.2d 541 (1974) Clarence HUNTER, Jr. v. STATE of Alabama. SC 754. Supreme Court of Alabama. October 3, 1974. Parker, Wilkinson & Purvis, Birmingham, for appellant. William J. Baxley, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for the State. BLOODWORTH, Justice. After a jury trial in the Circuit Court of Jefferson County, appellant, Clarence 542 Hunter, Jr., was adjudged guilty of being the father of three illegitimate children born to Ms. L______. Following separate verdicts of paternity, the trial judge entered a judgment thereon and ordered appellant to pay support for the children. The appeal is from this judgment. Two issues are presented to us by this appeal: whether the trial court properly charged the jury that defendant had the burden of proof as to the statute of limitations; and, whether the trial court properly sustained objection to defendant's question to the children's mother as to whether she had hired a special prosecutor. We have concluded the trial judge was in error in both instances and reverse and remand. We now proceed to deal with these two issues. Tit. 27, § 12(9), Code of Alabama 1940 (Recompiled 1958), provides: "§ 12(9). Limitation on paternity proceedings. Proceedings under this chapter shall not be brought after the lapse of two years from the birth of the child, unless in the meantime, the reputed father has legally acknowledged paternity or has supported said child." The appellant properly raised this issue as to the statute of limitation, for the undisputed evidence shows (and the original complaint shows on its face) that two of the children were born more than two years prior to the filing of the original complaint. The jury was orally charged by the trial judge that before it could decide the ultimate issue of paternity, it must first determine whether the defendant had supported the two children before the expiration of two years from the birth of the children and within two years prior to the filing of the complaint. The appellant finds no fault with these instructions. However, the trial judge went further, and with respect to the burden of proof as to such issue, charged the jury, viz.: "The burden of proof is on the defendant to satisfy you as to the statute of limitations and the burden of proof is on the State to prove to your reasonable satisfaction with reference to the first child, the paternity of the first child as it respects the former husband of Ms. L______ and I just repeat that the law presumes innocence in`this case." "Now ladies and gentlemen, I said it was a little complicated and it is. I have prepared, or have had prepared, forms of verdict which you all will take out with you in this case. In the case of J______ and in the case of T______, you are going to be asked a question, and it is written out here; in the case of T______, who is the oldest child, the question is did the defendant support the minor child, T______ L______, before the expiration of two years from the birth of said child and within two years before filing the Complaint on July 31, 1973. Now this question which you are going to take out with you, thisthe defendant is asserting the statute of limitations. In so asserting, the burden of proof is on the defendant to reasonably satisfy you from the evidence that he did not support these two children within the time set forth in this question here." [Our emphasis.] Appellant, out of the presence of the jury,[1] duly excepted to those portions of the oral charge dealing with the burden of proof. The basis of appellant's contention is that the second clause of the statute [Tit. 27, § 12(9)] carves out an exception to the two-year period of limitation; and, thus, the plaintiff-state had the burden of proving (in the instances of the two children) that its case against appellant fell within this exception. With this contention we must agree. 543 Although this Court has never directly passed on this issue, the correctness of appellant's contention is implicit in the construction placed by this Court, and the then Court of Appeals, on the corresponding section of the now repealed "bastardy" statute [Tit. 6, § 7, Code of Alabama 1940 (Recompiled 1958)]. With the exception that it lengthens the period of limitation from one year to two years, the limitation provisions of the paternity statute [the "DeGraffenreid Act"] are identical with like provisions of the older "bastardy" statute. [See comparison of the two statutes by Judge Cates for the then Court of Appeals, in Ward v. State, 42 Ala.App. 529, 170 So.2d 500 (1964).] It is the rule of our cases that he who has the burden of proof on an issue will lose if no evidence is presented on such issue or if the evidence is equally balanced. Lester v. State, 270 Ala. 631, 121 So.2d 110 (1960); Ex parte State of Alabama (Vaughn v. State), 293 Ala. 365, 304 So.2d 6, [M.S., September 12, 1974]. In Roszell v. State, 19 Ala.App. 462, 98 So. 35 (1923), the Court of Appeals held, in an appeal from a bastardy proceeding, viz.: "In the instant case the complaint made November 25, 1921, upon which the warrant of arrest was issued, which brought the defendant into court, was the commencement of a new prosecution against the defendant. There was no evidence that the defendant had contributed to the support of the bastard child or that he had acknowledged its paternity. The complaint of March 19, 1918, was not introduced in evidence on the hearing before the justice of the peace, and did not come into the trial until the case reached the circuit court. The defendant made appropriate objection at every stage of the proceedings before the justice of the peace and in the circuit court. Having been put to trial in the justice court on the complaint made November 25, 1921, the defendant was entitled to the general affirmative charge on his plea of statute of limitations of one year. Section 6370, Code 1907." Of like import is Crawford v. State, 25 Ala.App. 417, 147 So. 686 (1933), similarly a "bastardy" case, wherein it was held: "* * * The child was born December 3, 1930, more than twelve months before the beginning of the prosecution. The evidence tended to prove that the defendant recognized his responsibility for the pregnancy of prosecutrix, before the birth of the child, but not afterwards." * * * * * * "The prosecution in this case having been begun more than twelve months after the birth of the child, and the defendant not having, after the birth of the child and within twelve months of the beginning of the prosecution, acknowledged or supported the child, the defendant was entitled to be discharged." See also, Stanford v. State, 27 Ala.App. 543, 176 So. 315 (1937), cert. den., 234 Ala. 544, 176 So. 316 (1937). In each of these decisions, it affirmatively appeared that the action had been brought after the lapse of the statutory period. In each case, no evidence was adduced that the putative father had or had not supported the child within a year [the then statutory limitation] before the bringing of the action. If, as the State contends, the burden of proof as to this issue rests with the appellant, then in each of these cases cited, the defendant would not have been entitled to be discharged on a mere showing of the running of the statutory period. Rather, he would have been put to proving the "negative," that he had "not supported" the child after the running of the one-year bar. The statute itself by the use of the words "unless in the meantime" carves out the exception or saving provision which tolls the running of the period of limitation. *544 We have held that when it affirmatively appears that a cause of action is time barred, the plaintiff has the burden of proof to show any special circumstances existing which would prevent the running of the statute. Tarlton v. Tarlton, 262 Ala. 67, 77 So.2d 347 (1955); Woods v. Sanders, 247 Ala. 492, 25 So.2d 141 (1946); Hall v. Hulsey, 271 Ala. 576, 126 So.2d 217 (1961); Thompson v. Collier, 170 Ala. 469, 54 So. 493 (1911); Smith v. Duvall, 201 Ala. 425, 78 So. 803 (1918); Knight v. Clements, 45 Ala. 89 (1871); Land v. Craig, 271 Ala. 580, 126 So.2d 221 (1961). This Court has held, in a suit on a note brought after the expiration of the statutory period, that the plaintiff has the burden of proving part payment to remove the bar of the statute. Knight v. Clements, supra; Thompson v. Collier, supra; Land v. Craig, supra. We can perceive of no good reason why the same burden of proof should not apply as to the instant statute of limitations, particularly in view of the wording of the statute to which we have already alluded. Therefore, we hold that the trial court erred in charging the jury that the defendant had the burden of proving that he did not support the two children before the expiration of two years from the birth of the children and within two years of the bringing of the action. The cause is	{ "pile_set_name": "FreeLaw" }
978 So.2d 81 (2006) MICHAEL LINDSEY v. STATE. No. CR-05-0771. Court of Criminal Appeals of Alabama. June 23, 2006. Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
150 Cal.App.2d 435 (1957) FRANK H. DEA, Appellant, v. DOLORES M. DAVY, Respondent. Civ. No. 22162. California Court of Appeals. Second Dist., Div. Two. Apr. 24, 1957. Anderson, Adams & Bacon for Appellant. Earl D. Reese for Respondent. ASHBURN, J. Appeal from judgment of nonsuit in action to recover a real estate broker's commission. On September 23, 1955, defendant owner signed an authorization for plaintiff broker to sell her "Trailer Park" for a price of $76,500, with a down payment of $15,000. On October 4, 1955, defendant signed a new "Owner's Statement" setting forth the terms upon which she would dispose of her property. The terms of sale included in this writing are substantially different from those of September 23d and we look to the later one as a basis for determining whether the agent performed such acts as would entitle him to collect a commission. The instrument of October 4 essentially provides for a lease 436 for three years with an option to purchase at the expiration of that period. The price is fixed at $76,500, and the body of the seller's authorization says: "I agree to the following $6000.00 Cash--$650.00 per month rental for three years or a total of $29,400.00 has been paid: At that time buyer may exercise his option to purchase, the $29,400.00 to be then considered as a down payment. Price to be the same as previous listing. Renter to pay taxes, insurance and upkeep. Owner to pay loans until such time as renter exercises option. Owner to pay Dea Realty Company ($1000.00) one thousand dollars at time above arrangement is made and the balance of commission ($2825.00) twenty eight hundred and twenty five dollars. When buyer exercises option to purchase. At that time buyer to pay ($3000.00) in cash, three thousand dollars, making a total of $32,400.00 to be applied against total purchase price. At time option is executed buyer to purchase subject to existing trust deeds, as paid down at that time, and seller to execute a purchase price trust deed to buyer for any difference there may be at that time, said trust deed to be payable at the rate of 1% per month including 6% interest." There is no mention of a policy of title insurance [fn. 1] and no reference to an escrow; no indication that payment of the $6,000 is to be deferred at all. That sum, plus the cash rentals and $3,000 payable upon exercise of the option, aggregate $32,400, the full amount of cash to be paid. There appears to be no occasion to bring down title until that time arrives, and certainly no indication in the writing that it would be done sooner, or that the "$6,000 cash" payment should be held in escrow awaiting that event or any other one. Plaintiff procured from one Cuthill and wife a written offer dated October 21, 1955, a "Deposit Receipt," signed by the broker and the buyers, which acknowledges payment of $600 as a deposit on account of the purchase price, and says: "Balance of ($5400.00) fifty four hundred dollars to be deposited in escrow within thirty days from date. Rents to be pro rated outside of escrow. Possession when deal comes out of escrow." The other terms square with the owner's authorization except that the printed portions call for a policy of title insurance, a return of the deposit in event of failure of seller to perfect title within a reasonable time, and further says: 437 "Seventh--Place of escrow__________." It also provides "that the property is sold subject to approval of the owner." This approval was never forthcoming. The owner did not execute the deposit agreement and refused to sign escrow instructions when presented to her. [1] This deposit receipt, with its provision for cash payment of $600 and deposit of $5,400 in escrow (instead of $6,000 in cash), amounted to a rejection of defendant's terms and the making of a new proposal which defendant declined to accept. Hence the broker failed to perform. The case of Andrews v. Waldo, 205 Cal. 764, 770 [272 P. 1052], is in point. Appellant relies on an asserted custom to handle the agreed down payment in the manner of the deposit receipt. His proof on that subject fell short of the goal. After testifying to same he said, on cross-examination: "Q. Mr. Dea, is it not a fact that this custom you spoke of, that the listing agreements which real estate brokers use, provide that an escrow will be opened in a reliable escrow company? A. Yes. Q. And isn't it a fact that these escrow agreements also provide that a policy of title insurance would be deposited in escrow by a reliable title insurance company? A. Yes. Q. Then isn't it a fact that the reason these escrows are opened is because the contract so provides? A. Yes." [2] The Andrews case, supra, says, at page 770: "But by express code provision stipulations which are necessary to make a contract conformable to usage are implied only in respect to matters concerning which the contract manifests no contrary intention. (Civ. Code, 1655.) In other words, where the known usage and the contract are in conflict the contract prevails." That is the situation at bar. The court properly granted a nonsuit. Judgment affirmed. Moore, P. J., and Fox, J., concurred. NOTES [fn. 1] 1. The first authorization did contain an agreement to furnish satisfactory policy of title insurance, but this provision was not incorporated in the document of October 4, either expressly or by reference.	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas July 31, 2017 No. 04-17-00249-CR EX PARTE COBY STEWART, Appellant From the County Court at Law No. 15, Bexar County, Texas Trial Court No. 486896 The Honorable Robert Behrens, Judge Presiding ORDER Before the Court is appellant’s motion for extension of time to file a brief and motion to supplement the appellate record. Appellant’s motion for extension of time is GRANTED. Appellant’s motion to supplement the record is DENIED as moot. _________________________________ Irene Rios, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 31st day of July, 2017. ___________________________________ Luz Estrada Chief Deputy Clerk	{ "pile_set_name": "FreeLaw" }
376 U.S. 191 (1964) COX v. KANSAS. No. 453, Misc. Supreme Court of United States. Decided February 17, 1964. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. Petitioner pro se. William M. Ferguson, Attorney General of Kansas, for respondent. PER CURIAM. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Kansas for further consideration in light of Douglas v. California, 372 U. S. 353, and Daegele v. Kansas, 375 U. S. 1.	{ "pile_set_name": "FreeLaw" }
46 F.3d 1143 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.Larry J. OLSON, Plaintiff-Appellant,v.Charles CRAGIN; Daniel J. Stein; U.H. Ang, M.D.,Defendants-Appellees. No. 94-35390. United States Court of Appeals, Ninth Circuit. Submitted Dec. 19, 1994.Decided Jan. 11, 1995. Before: SNEED, D.W. NELSON and TROTT, Circuit Judges. 1 MEMORANDUM* 2 Larry J. Olson appeals pro se the district court's dismissal of his claim against Board of Veterans' Appeals officials for denying him additional disability benefits. The district court dismissed Olson's complaint for lack of subject matter jurisdiction and failure to state a claim under Fed.R.Civ.P. 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm. 3 We review de novo a district court's dismissal for lack of subject matter jurisdiction, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937 (1990), and for failure to state a claim upon which relief can be granted, Everest and Jennings v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). 4 The United States as a sovereign may not be sued without its consent. United States v. Testan, 424 U.S. 392, 399 (1976). Any governmental waiver of immunity must be expressed unequivocally. United States v. Mitchell, 445 U.S. 535, 538 (1980). The district court is without jurisdiction to review Veterans Administration ("VA") benefits determinations. 38 U.S.C. Sec. 511(a).1 Section 511(a) provides: 5 The Secretary [of Veterans Affairs] shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.... Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by action in the nature of mandamus or otherwise. 6 Id. Section 511(a) does not bar judicial review of "constitutional attacks on legislation governing the provision of VA benefits." Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir.1983). Nevertheless, because the determination of veterans benefits is exclusively within the province of the VA, an attempt to challenge the allocation of benefits under the guise of a constitutional attack will not be permitted. Tietjen v. United States Veterans Admin., 884 F.2d 514, 515 (9th Cir.1989); Rosen, 719 F.2d at 1423. Thus, whether the district court has jurisdiction over Olson's action rests on "whether [the action] challenges a decision of the Administrator on a question of law or fact concerning a benefit provided by a law administrated by the Veterans Administration, or instead challenges the constitutionality of an Act of Congress." Tietjen, 884 F.2d at 515 (internal quotations omitted). 7 Olson contends that the defendants violated his due process rights by fraudulently denying him an increase in his service-connected benefits. Because Olson essentially seeks to challenge the VA's decision denying his application for benefits, the district court properly dismissed Olson's complaint for lack of jurisdiction. See 38 U.S.C. Sec. 511(a); Rosen, 719 F.2d at 1425. 8 Olson further alleges that the defendants are liable in their individual capacities under Bivens2 for the alleged constitutional violations that occurred during the course of his benefits determination proceedings. This contention lacks merit. We lack jurisdiction over Olson's due process claim seeking damages for procedural violations that allegedly occurred during his benefits determination proceedings because such determinations are "exclusively within the province of the VA." See Tietjan, 884 F.2d at 515. Accordingly, we refuse to assume jurisdiction over Olson's claims by way of a Bivens action. See id.; see also Sugrue v. Derwinski, 26 F.3d 8, 12 (2nd Cir.1994) (challenges to benefits determinations under Bivens not available because of "comprehensive remedial structure to address disputes regarding disability ratings and benefits claims by veterans"). 9 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 Formerly 38 U.S.C. Sec. 211(a) 2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 391 (1971)	{ "pile_set_name": "FreeLaw" }
900 F.2d 260 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.William C. STEVENHAGEN, et al. Plaintiffs-Appellants,v.James J. HELMS, et al. Defendants-Appellees. No. 89-3636. United States Court of Appeals, Sixth Circuit. April 18, 1990. Before BOYCE F. MARTIN, Jr. and NATHANIEL R. JONES, Circuit Judges, and JOHN FEIKENS, Senior District Judge.* PER CURIAM. 1 William and Mary Stevenhagen appeal the summary judgment against them in the amount of $39,376.09 and seek to avoid a judicial lien on their residence in this bankruptcy action. 2 James Helms won a judgment of $133,829.13 in an action against the Stevenhagens and Andy and Katherince Slabaugh in Ohio Summit County Common Pleas Court. The liability to Helms of the Slabaughs and the Stevenhagens stemmed from a loan that Helms had made to finance a real estate deal. When the real estate deal failed, the property that was the basis of the deal was insufficient collateral to cover the entire loan. 3 Helms entered into a partial settlement of the judgment with the Slabaughs, accepting assets totalling $103,000 in exchange for a total release for the Slabaughs. Because the Stevenhagens had filed for bankruptcy, Helms sought approval for the remainder of the judgment as a claim against them in bankruptcy court. 4 The bankruptcy court granted summary judgment on the claim for the remainer of the state court judgment, but held that the debt was dischargeable in the bankruptcy settlement. The bankruptcy court then refused to avoid the lien that Helms had filed against the Stevenhagens' home, relying on In re Peck, 55 B.R. 752 (N.D.Ohio 1985). The district court affirmed the judgments of the bankruptcy court. 5 Helms admits that any personal obligation of the Stevenhagens for the $39,376.09 claim was discharged by the bankruptcy proceedings. Thus, the only real issue on appeal is whether the lien on the Stevenhagens' home should have been avoided. 6 Whether the lien may be avoided is governed by 11 U.S.C. Sec. 522(f), which provides: 7 Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is-- 8 (1) a judicial lien; ... 9 Subsection (b) of section 522 has been superceded in Ohio by the state law provision, Ohio Rev.Code Sec. 2329.66. In re Peck, 55 B.R. 752 (N.D.Ohio 1985). Under Ohio Rev.Code Sec. 2329.66, a debtor may hold property exempt only from execution, garnishment, attachment, or sale to satisfy a judgment or order. Peck, 55 B.R. at 755. Cf. In re Owen, 877 F.2d 44 (11th Cir.1989) (debtor could not avoid judicial lien on homestead property where state had opted out of federal exemptions and superceding state law exemptions allowed judicial lien to be enforced). 10 In this case, the bankruptcy court correctly found that the Stevenhagens's home was not protected by an exemption under Ohio law. Thus, Helms's judicial lien is still enforceable under 11 U.S.C. Sec. 522(f). Although the Stevenhagens' debt to Helms has been discharged, the discharge does not affect a creditor's right to enforce liens against property of the estate. Estate of Lellock v. Prudential Ins. Co., 811 F.2d 186 (3d Cir.1987). 11 The Stevenhagens rely on Matter of Shields, 24 B.R. 219 (Bankr.S.D.Ohio 1982), to argue that the lien may be avoided because the property has been abandoned by the trustee and is no longer part of the estate. This reliance is unfounded because in Shields, the lien was unperfected at the time the property was abandoned. Here, there is no contention that the lien was unperfected. 12 The judgment of the district court is affirmed. * The Honorable John Feikens, Senior United States District Judge for the Eastern District of Michigan, sitting by designation	{ "pile_set_name": "FreeLaw" }
380 P.2d 943 (1963) Linda HINES, a Minor by her Father, Next Friend and Natural Guardian, Oscar Lee Hines, and Dependent School District No. 21, Grant County, Oklahoma, Plaintiffs in Error, v. INDEPENDENT SCHOOL DISTRICT NO. 50, GRANT COUNTY, Oklahoma, Defendant in Error. No. 40003. Supreme Court of Oklahoma. April 16, 1963. Drennan & Drennan, Medford, for plaintiffs in error. John L. Pollard, Medford, for defendant in error. 944 DAVISON, Justice. This is an appeal by Linda Hines, a minor, and Department School District No. 21, Grant County, Oklahoma (plaintiffs below) from an order and judgment sustaining the demurrer of Independent School District No. 50, Grant County, Oklahoma (defendant below) to plaintiffs' amended petition. The parties will be referred to by name or as they appeared in the lower court. Plaintiffs' action sought equitable relief in the nature of a mandatory injunction to approve Linda's application to transfer from her Oklahoma school district (plaintiff School District No. 21) to School District No. 20, Caldwell, Kansas, in order that she could attend high school in Caldwell, Kansas. The lower court sustained the demurrer to the amended petition on the ground that it did not state a cause of action. The petition of plaintiffs and the judgment of the trial court are founded upon the provisions of 70 O.S. 1961 §§ 8-1, 8-2, and 8-3. Plaintiffs' amended petition alleged that Linda was 15 years of age and lived with her parents in plaintiff School District No. 21, Grant County, and that during the school term 1961-1962 Linda would be a sophomore (grade 10) in high school, which grade was not offered by said District No. 21; that her residence was within the high school transportation area served by the defendant, with the high school located at Deer Creek, Oklahoma, but that her residence was 2 miles (by all-weather road) from Caldwell, Kansas, and 23 miles from Deer Creek in dry weather and 30 miles from Deer Creek in wet weather by all-weather road, and that the topography was such that her best interests could not be served by attending high school in Deer Creek. It was further alleged that the mailing address of Linda and her family was R.F.D., Caldwell, Kansas, and that their telephone service, town activities, trading, church attendance and home-town connections were with and centered around Caldwell, Kansas, and was where Linda was active in Rainbow; that Linda had attended Caldwell High School for a prior year of high school work, and had planned her curriculum for continued attendance, where she participates in school activities and where all her friends attend; that if required to attend school in Deer Creek she would be required to ride a bus and miss after-school activities and lose valuable studying time, and that she suffers from bus riding sickness, and that in wet weather the Deer Creek buses often do not run. The amended petition further alleged that plaintiff District No. 21 had approved Linda's application for transfer to Caldwell School District No. 20; that defendant had not granted a hearing on notice, had refused to approve the transfer because of a policy of defendant not to approve any out of state transfers, and had returned the application with the explanation that no out of state transfers could be granted by defendant; that the State Board of Education, after reviewing the application, had returned the same for completion and approval by 945 defendant; and that the plaintiff School District No. 21, is a self-supporting school district, receives no funds from the State of Oklahoma, and is ready, willing and able to pay the transfer fees of Linda. It was further alleged that the defendant unreasonably, arbitrarily, unlawfully and capriciously refused and failed to consider the best interests of Linda, as required by law; that because of the attitude, bias and prejudice of the board of the defendant, it would be fruitless to remand the matter to defendant for hearing; and that Linda has exhausted all her administrative remedies, has no adequate remedy at law, and will be irreparably damaged unless the court exercises its equitable powers and finds it is to the best interests of Linda to grant her transfer to Caldwell, Kansas, School District No. 20. There are further allegations that 70 O.S. 1961 § 8-1 et seq., are, as to Linda and her application for out of state transfer, discriminatory and unconstitutional. Our conclusion makes it unnecessary to consider the sufficiency of such allegations. Under 70 O.S. 1961 § 8-1, it is provided in part that a child, residing in a school district maintaining a school within the district, that does not offer the grade the child is entitled to pursue, is entitled to be transferred to a district which offers such grade, and for payment by the residence district to the transfer district of the amount of the per capita cost of the latter district. The next Section 8-2, provides in part for applications for transfers within the state to be filed with the County Superintendent of Schools and for applications for transfers to school districts in another state to be filed with the State Board of Education. As to those applications filed with and determined by the Superintendent there is provision for appeal to the district court, but there is no such provision relative to applications filed with the State Board of Education. In Section 8-3, it is provided inter alia, that the County Superintendent shall grant transfers if the residence district does not offer the required grade, or if the topography of the residence district or health of the child is such that the best interests of the child cannot be served by attendance in the child's residence district, or if the school board of the residence district determines the child's best interest will be served by such transfer, and that: "* * * Provided a child may be transferred by the State Board of Education to a school district in another state, if the board of education of the school district in which the child resides and the board of education of the high school district in whose transportation area the child resides determines that, the best interests of the child will be best served by such transfer. No transfer shall be granted for any reason not hereinbefore specified. No child shall be transferred under the provisions of this Article to a school district other than the one designated in the application for his transfer." Under the provisions of the above quoted statute the approval or lack of approval of the transfer by the board of education of the defendant was required to be based upon a determination of how the best interests of the child will be best served. The allegations of the amended petition negates any such determination but state the action of the defendant was based on a policy of denying any out of state transfers. Such alleged action was not in accordance with the statute. Furthermore, we are of the opinion that the allegations are sufficient to state that the transfer to the Caldwell High School will best serve the best interests of Linda. We base this conclusion mainly upon the great difference between the distances she would have to travel in attending the respective high schools and the consequential loss of time, inconvenience and uncertainty of regular attendance connected with attending the Deer Creek High School and the alleged fact that she is subject to bus sickness. The fact that her residence school district has approved the transfer 946 to Caldwell and the other alleged facts also support the conclusion that her best interests would be served by such transfer. In Moore v. Porterfield, 113 Okl. 234, 241 P. 346, we stated: "As a general rule, where public officials are intrusted with discretionary power in certain matters, an exercise of such discretion will not be controlled by injunction, but injunction may be issued in a case of a gross abuse of discretion, where it appears that such action was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. * *" See also Joachim v. Board of Education of Walters, 207 Okl. 248, 249 P.2d 129. We believe the allegations of the amended petition state facts rendering the refusal to approve the transfer clearly untenable and unreasonable and a manifest abuse of discretion. Defendant argues in support of the trial court's action that the amended petition does not allege facts sufficient to support the conclusion that Linda will be irreparably damaged. This tenders the question of what damages would arise by reason of the wrongful denial of the application for transfer. We do not know of any rule or measure of damages by which the detriment or loss to Linda's best interests in securing an education may be measured. The detriment would be intangible and conjectural. In Baker v. Lloyd, 198 Okl. 512, 179 P.2d 913, 915, 171 A.L.R. 217, this court held that injury or detriment is irreparable when it is incapable of being fully compensated for in damages or where the measure of damages is so speculative that it would be difficult if not impossible to correctly arrive at the amount of the damages. See also 43 C.J.S. Injunctions § 23, p. 447. Defendant also urges as grounds for sustaining the demurrer that there is a defect of parties defendant in that the State Board of Education was not made a defendant. The defendant cites no authority as to the necessity of making that Board a defendant. The answer to this contention is that the amended petition reflects that such Board returned the application only for the purpose of completion and approval by the defendant as required by the statute, supra. The purpose of this action is to comply with such requirement to secure approval of the application. The proceedings had not progressed to the point which would require the State Board of Education to be made a necessary party. The judgment of the lower court is reversed and	{ "pile_set_name": "FreeLaw" }
737 F.2d 134 Elliot W. TAYLOR, Plaintiff, Appellant,v.Robert J. GALLAGHER, et al., Defendants, Appellees. No. 84-1098. United States Court of Appeals,First Circuit. Argued May 7, 1984.Decided June 25, 1984. Eric I. Zucker, Boston, Mass., with whom Gary R. Greenberg, and Goldstein & Manello, Boston, Mass., were on brief, for appellant. Joseph D. Steinfield, Boston, Mass., with whom Hill & Barlow, Boston, Mass., was on brief, for Robert J. Gallagher. Before COFFIN and BREYER, Circuit Judges, and PETTINE,* Senior District Judge. COFFIN, Circuit Judge. 1 Plaintiff Elliott Taylor appeals from an award of summary judgment in a malpractice action against attorney Robert Gallagher, who had represented Taylor in litigation against International House of Pancakes (IHOP). Taylor's complaint against Gallagher alleged negligence, breach of fiduciary duty, and breach of contract. 2 The essential facts are not in dispute. Taylor owned two IHOP franchises and in the early 1970's had a dispute with IHOP concerning money owed IHOP under the franchise agreements. On March 15, 1974, the parties entered into an agreement under which Taylor paid IHOP $5,000 and signed a promissory note for $35,000, an amount representing a preliminary determination of Taylor's indebtedness to IHOP as of December 9, 1973. The parties also agreed to submit the issue of Taylor's indebtedness prior to December 9, 1973, to arbitration and to substitute the arbitrators' determination of Taylor's indebtedness as of December 9, 1973, if any, for the promissory note figure of $35,000. The March 15, 1974, agreement also obligated Taylor to pay on a current basis all open account indebtedness arising on or after December 10, 1973. The agreement gave IHOP judgments for possession of both of Taylor's franchises, but the judgments were to be stayed so long as Taylor remained in compliance with the terms of the agreement. 3 In January 1975, IHOP took possession of one of Taylor's franchises and gave notice that it intended to take possession of the other. Gallagher filed suit on Taylor's behalf in Worcester Superior Court to enjoin IHOP from taking possession. IHOP counterclaimed in three counts: two counts claiming recovery for Taylor's open account indebtedness incurred since December 10, 1973, and the third count claiming approximately $17,000, the amount allegedly remaining due on the $35,000 promissory note. The superior court appointed a master. 4 In December 1976, the arbitrators found that the net amount owed by Taylor to IHOP as of December 9, 1973, equalled $13,025.23. Under the March 15, 1974, agreement, this figure should have replaced the $35,000 amount in the promissory note. On February 14, 1977, Gallagher had the arbitral award confirmed in a separate action in superior court. The next day the master in Taylor's suit against IHOP filed a report essentially adverse to Taylor on each of IHOP's three counterclaims. 5 Gallagher then filed two motions, with accompanying briefs and attachments, that attempted to convince the superior court to substitute, pursuant to the parties' March 15, 1974, agreement, the arbitral award for the $35,000 promissory note. The present suit focuses on the adequacy vel non of Gallagher's attempts to bring the arbitral award and its significance to the attention of the superior court. 6 Gallagher filed the first motion, a "Motion for Leave to File Supplemental Pleading--Answer to Counterclaim", on February 23, 1977. The supplemental pleading alleged overpayment on the modified promissory note as a further defense to IHOP's third counterclaim. The superior court denied this motion on April 15, 1977. 7 A year later, on May 1, 1978, Gallagher filed a "Motion for Judgment". The proposed judgment would have dismissed IHOP's third counterclaim and awarded Taylor a sum equivalent to his alleged overpayments on the promissory note. The superior court denied this motion on May 9, 1978. Soon thereafter, the court entered judgment in favor of IHOP as recommended by the master. 8 Taylor then retained a new attorney, Douglas Moxham of Hale & Dorr, for his appeal from the superior court judgment. On appeal, Taylor (through Moxham) did not challenge the superior court's failure to substitute the arbitral award for the $35,000 promissory note. The appeals court affirmed, Taylor v. International Industries, Inc., 8 Mass.App. 865, 398 N.E.2d 501 (1979), and the Supreme Judicial Court denied further appellate review. 379 Mass. 928 (1980). 9 Undaunted, Taylor (through Moxham) filed a motion for relief from judgment in the superior court, arguing that the superior court record "did not include reference to an arbitration award and judgment". The court denied this motion, and Taylor again appealed. While the appeal was pending, Taylor, who by this time had replaced Moxham with another attorney, filed the instant action against Gallagher in federal district court. The state appellate court summarily affirmed the denial of Taylor's motion for relief from judgment and assessed double costs and 12% interest against Taylor. 10 Taylor's main criticism of Gallagher's performance in the original superior court action concerns Gallagher's failure explicitly to mention the arbitral award on the face of either the supplemental pleading or the proposed judgment. Taylor argues that in Gallagher's two attempts to notify the superior court of the arbitral award, Gallagher did "no more than briefly note" in accompanying memoranda the existence or outcome of the arbitration. 11 If by "briefly noted" Taylor means that Gallagher noted the arbitral award only in a brief, then Taylor may have a point. But Taylor's factual claims and legal analysis otherwise have no merit, as an examination of the superior court record amply demonstrates. In briefs accompanying both motions, Gallagher clearly explained the significance of both the arbitral award and the promissory note under the March 15, 1974, agreement. In both briefs, Gallagher noted the amount of the arbitral award and stated, "It is this figure [$13,025.23] which should be substituted for the $35,000.00 note." Gallagher attached to his briefs copies of the arbitrators' decision and of the separate superior court judgment confirming the arbitrators' award. 12 Despite Gallagher's efforts, the superior court entered judgment for IHOP in an amount that did not reflect the arbitrators' decision. While the record contains no explanation of why the superior court ignored the arbitrators' decision, we suppose that if Gallagher's performance had been so egregiously inadequate as to cause the superior court to treat Taylor unjustly, then Taylor's new attorney Moxham would have mentioned the arbitral award in Taylor's first appeal. But he did not. The state appellate court found Taylor's second appeal, which focused on the superior court's lack of recognition of the arbitral award, to be frivolous.1 13 In the present action, the district court held, in granting Gallagher's motion for summary judgment, that "these facts reveal no genuine issue of material fact for a jury to resolve". We agree. Taylor's conclusory (mis)characterizations of Gallagher's submissions to the superior court do not suffice to raise genuine issues of material fact that would preclude summary judgment against Taylor. See Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 819-20, (1st Cir.1980) (citing cases). 14 Given the absence of genuine, material factual issues, summary judgment is appropriate where, as here, only one inference can be drawn from the facts. See, e.g., Wallace v. Shade Tobacco Growers Agricultural Ass'n, 642 F.2d 17, 20 (1st Cir.1981); O'Neill v. Dell Publishing Co., 630 F.2d 685, 690 (1st Cir.1980). Taylor argues that the district court usurped the jury's role in determining that the facts presented by Taylor could not prove malpractice. Taylor contends that a malpractice suit "requires a determination as to reasonableness, which determination must be left to the jury and is therefore wholly inappropriate for resolution by summary judgment". 15 Although a court may not weigh the evidence or make credibility determinations in granting summary judgment, the court may end a suit before trial if the court determines that, taking the facts and reasonable inferences therefrom in the light most favorable to the non-moving party, no reasonable juror could find for that party. E.g., O'Neill v. Dell Publishing Co., 630 F.2d at 690; Manganaro v. Delaval Separator Co., 309 F.2d 389, 392-93 (1st Cir.1962). Summary judgment is inappropriate in negligence actions only if genuine issues of material fact exist or if reasonable jurors could draw different inferences from agreed facts. See Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir.1970). If the facts of this case admitted of more than one inference regarding the reasonableness of Gallagher	{ "pile_set_name": "FreeLaw" }
UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES v. Senior Airman ROBERT S. BOERS United States Air Force ACM 38855 7 September 2016 Sentence adjudged 8 April 2015 by GCM convened at Kadena Air Base, Okinawa, Japan. Military Judge: Gregory O. Friedland (sitting alone). Approved Sentence: Bad-conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to E-1. Appellate Counsel for Appellant: Major Thomas A. Smith and Captain Virginia M. Bare. Appellate Counsel for the United States: Major Jeremy D. Gehman and Gerald R. Bruce, Esquire. Before MAYBERRY, SPERANZA, and JOHNSON Appellate Military Judges OPINION OF THE COURT This opinion is issued as an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. JOHNSON, Judge: At a general court-martial composed of a military judge sitting alone, Appellant was found guilty, in accordance with his pleas, of two specifications of attempting to commit lewd acts upon a child, and of resisting apprehension by a special agent of the Air Force Office of Special Investigations, in violation of Articles 80 and 95, UCMJ, 10 U.S.C. §§ 880, 895.1 The court sentenced Appellant to a bad-conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to E-1. The convening authority approved the sentence as adjudged. Before us, Appellant requests relief for unreasonable delay in the post-trial processing of his case. Finding such relief is not warranted in this case, we affirm the findings and sentence. Background Appellant’s court-martial concluded on 8 April 2015 at Kadena Air Base, Okinawa, Japan. The convening authority took action on the case 79 days later, on 26 June 2015. The wing legal office received the signed action from the convening authority’s staff judge advocate on 29 June 2015, but the wing legal office did not receive the signed promulgating order until over a week later. On 10 July 2015, the wing legal office put the completed record of trial into the mail from Japan to the Military Justice Division, Air Force Legal Operations Agency, located at Joint Base Andrews, Maryland, where it was received on 28 July 2015. The record of trial was docketed with this court the following day, 29 July 2015, 33 days after the convening authority’s action. Post-trial Processing Delay In United States v. Moreno, our superior court established a presumption of unreasonable post-trial delay when the convening authority does not take action within 120 days of the completion of trial, and when the record of trial is not docketed with the service court within 30 days of the convening authority’s action. 63 M.J. 129, 142 (C.A.A.F. 2006). Appellant asserts we should grant meaningful relief because the 33 days that elapsed between action and docketing with this Court exceeded the Moreno standard by three days. There are two phases to our analysis of whether Appellant is entitled to relief. First, we determine whether the delay in this case amounts to a denial of Appellant’s due process right to speedy post-trial review and appeal. Id. at 135. Next, even if we find no due process violation, we also consider whether this court should exercise its power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to grant relief for excessive post-trial delay. United States v. Tardif, 57 M.J. 219, 224-25 (C.A.A.F. 2002). Our superior court has identified four factors to consider in determining whether post-trial delay amounts to a violation of due process rights: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to a timely review; 1 Pursuant to Appellant’s pretrial agreement with the convening authority, one specification of attempting to commit a sexual act on a child in violation of Article 80, UCMJ, 10 U.S.C. § 880, was withdrawn and dismissed at trial. 2 ACM 38855 and (4) prejudice to the appellant. Moreno, 63 M.J. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding.” Moreno, 63 M.J. at 136 (citing Barker v. Wingo, 407 U.S. 514, 533 (1972)). However, where an appellant has not shown prejudice from the delay, there is no due process violation unless the delay is so egregious as to “adversely affect the public’s perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In the instant case, although the delay between action and docketing with this court was facially unreasonable per Moreno, Appellant does not allege any prejudice from that delay, and we find none. Balancing the other factors, we do not find the delay so egregious as to undermine the appearance of fairness and integrity within the military justice system. Therefore, we find no due process violation. Next we consider whether Article 66(c), UCMJ, relief pursuant to Tardif is appropriate. 57 M.J. at 224–25. We are guided by factors enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), with no single factor being dispositive. These factors include the length of the delay, the reasons for the delay, evidence of harm to Appellant or the justice system caused by the delay, and evidence of institutional neglect. Id. We are mindful of our superior court’s admonition that “delay in the administrative handling and forwarding of the record of trial and related documents to an appellate court—is the least defensible of all [post-trial delays] and worthy of the least patience.” United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990). In this case, the 33 days that elapsed between action and docketing exceeded the Moreno standard, but only by three days. As noted above, the trial-to-action phase of the processing was accomplished in a relatively expeditious 79 days, far below the 120-day Moreno standard. Although we recognize Moreno did not establish a trial-to-docketing time standard, and although efficiency in one phase of the process does not necessarily excuse neglect in another phase, on the whole Appellant’s case has not been subjected to severe post-trial delay. As for the reasons for the delay, the majority—18 days—of the delay between action and docketing occurred when the record of trial was traveling through the mail from Okinawa, Japan to Maryland. The Government asserts that such delays are typical in mailing material from Japan to the United States. We recognize that geography may impact the amount of time required to deliver a record of trial so that it may be docketed with this court. However, this is merely one factor among several to be considered in our case-by- case analysis of potential Article 66(c), UCMJ, relief for post-trial delay. Indeed, awareness of such conditions underscores the need for vigilance in those parts of the process that are more directly under the Government’s control. We are not inclined, and do not encourage the Government, to view a relatively long mail transit period as a rationalization for violating the Moreno standards. The affidavit of the then-Chief of 3 ACM 38855 Litigation at Kadena Air Base offered by the Government does not provide a thorough or compelling explanation for other periods of the post-action delay in this case, such as the delay between action and delivery of a signed promulgating order to the wing legal office. In another case, such imprecise accounting could contribute to a different result. However, turning to the remaining factors, in this case we discern no particular harm to either Appellant or the justice system, nor are we presented with evidence of systemic institutional neglect. Considering all the circumstances together, we do not find relief appropriate. Conclusion The approved findings and sentence are correct in law and fact, and	{ "pile_set_name": "FreeLaw" }
125 F.3d 1287 97 Cal. Daily Op. Serv. 7453, 97 Daily JournalD.A.R. 12,013UNITED STATES of America, Plaintiff-Appellee,v.Gerald C. BARNES, aka Gerald Charles Barnes; Gerald Barnes;Jerald C. Barnes; Jerald Charles Barnes; Jerry C. Barnes;Jerry Donald Barnes; Jerry Barnes; Jerald CharlesBarnbaum; Jerald Barnbaum; Gerald Barnbaum; GeraldBirnbaum; "Doc" Barnes, Defendant-Appellant. No. 96-50611. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 8, 1997.Decided Sept. 18, 1997. Korey House, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant. Daniel A. Saunders, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CR-96-00443-JSL-(01). Before: BROWNING, BRUNETTI, and TROTT, Circuit Judges. BRUNETTI, Circuit Judge: 1 Appellant Gerald Barnes appeals the sentence imposed by the district court following his guilty plea for charges stemming from his fraudulent impersonation of a medical doctor. Appellant contends that the district court misapplied the United States Sentencing Guidelines ("Guidelines") to his case. Except for the court's application of the Guidelines' amount of loss provision, we affirm the decision. Accordingly, we remand for recalculation of the loss suffered by the victims and resentencing of Appellant. I. Facts 2 The facts in this case are undisputed. Appellant, a trained pharmacist, was born Jerald Barnbaum; he later changed his name to Gerald Barnes. In 1976, after his indictment for mail fraud in Illinois, Appellant's pharmaceutical license was revoked. He subsequently moved to Southern California and began to practice medicine, although he had never attended medical school nor received a medical license. To impersonate a trained physician, Appellant fraudulently obtained documents pertaining to the qualifications of a legitimately licensed doctor, also named Gerald Barnes. He then used these documents to acquire medical positions. 3 The media has written extensively about Appellant's conduct over the past two decades, and the details are not relevant to this decision and need not be recounted. See, e.g., Kenneth B. Noble, Doctor's Specialty Turns Out to Be Masquerade, N.Y. Times, Apr. 17, 1996, at A1; John Carlova, "A Loaded Gun Waiting to Go Off", Medical Economics, Jan. 21, 1985, at 56. Appellant's prior malfeasance resulted in three convictions for practicing without a license and at least one patient's death. 4 In October 1991, after his release from state custody, Appellant obtained employment as a medical doctor with a medical clinic in the Los Angeles area. Over the next five years, he worked at six area medical clinics and doctor's groups and received a salary from his employers for examining and treating patients. In short, Appellant fraudulently represented himself as Doctor Gerald Barnes. 5 In April 1996, Appellant was indicted for his fraudulent actions. In May, the grand jury issued a thirty-one count superseding indictment charging Appellant with mail fraud in violation of 18 U.S.C. § 1341, distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1), and use of a Drug Enforcement Administration registration issued to another person in violation of 21 U.S.C. § 843(a)(2). In June, Appellant entered into an agreement with the government, pleading guilty to counts covering each of the three charges. In October, the district court sentenced Appellant to 150 months in prison. Appellant timely appealed. II. Discussion A. Standard of Review 6 We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996). The district court's application of the Sentencing Guidelines to the facts is reviewed for abuse of discretion. Id. Factual findings underlying the sentencing decision are reviewed for clear error. Id. B. Calculating the Amount of Loss 7 Appellant contends that the district court erred under U.S.S.G. § 2F1.1 in calculating the amount of loss due to his fraud. The Sentencing Guidelines provide a base offense level of six for offenses involving fraud and deceit. See U.S.S.G. § 2F1.1(a). The Guidelines increase this level incrementally based upon the amount of monetary loss attributable to the fraud. See U.S.S.G. § 2F1.1(b)(1). The government and the probation officers calculated losses by using the total amount of billings attributable to Appellant's services. Here, the district court found that Appellant's fraud resulted in a loss of more than $2,500,000 but less than $5,000,000. Although the district court failed to specify the exact amount of loss it found, the court stated at the sentencing hearing that it agreed with the government's valuation of loss. In various documents, the government listed a total loss ranging from $3,496,323.10 to 5,551,167. Because the court increased Appellant's offense level by thirteen steps, we know that it found between $2,500,000 and $5,000,000 in losses. See U.S.S.G. § 2F1.1(b)(1)(n) & (o). Appellant takes issue with the court's evaluation of the total loss caused by his actions and the resulting sentence. 8 Under the Sentencing Guidelines, loss is "the value of the money, property, or services unlawfully taken." U.S.S.G. § 2F1.1, comment. (n.7). When the government seeks an upward adjustment of the offense level it bears the burden of proving loss by a preponderance of the evidence. United States v. Joetzki, 952 F.2d 1090, 1096 (9th Cir.1991). Although "the loss need not be determined with precision" and a "reasonable estimate" is enough, mere speculation is insufficient. U.S.S.G. § 2F1.1, comment. (n.8). 9 Here, the district court used the "recision method" to calculate the total loss caused by Appellant's fraud. In doing so, the court calculated the amount necessary to refund the total charges billed by Appellant's employers for all patients Appellant treated or examined. The court, however, ignored any benefit which Appellant may have provided to the clinics. 10 Because the loss caused by Appellant's employment at Bio-Medics presents the only real issue, we will concentrate on that calculation. From October 1991 through June 1994, Appellant worked part-time at the Bio-Medics plasma center, which sells donated plasma to third parties. During his employment, Appellant performed physical examinations on potential blood donors and reviewed and signed quarterly lab reports containing the results of tests performed on the donated plasma. The government estimated that Appellant's work accounted for $4,214,655 of the center's gross revenues during his tenure. Appellant received $181,989 in total wages for this work. It is important to note that no Bio-Medics customers demanded a refund for monies paid for plasma donated by people examined by the Appellant. In addition, the clinic billed neither the plasma donors nor their insurance companies for the physical examination or the blood tests performed by Appellant or any other employee. Apparently, Appellant's fraudulent actions resulted in no harm to either patients or plasma customers. In short, absent his total salary, Appellant's fraud imposed no monetary loss upon the clinic, donors, or customers. 11 Despite this evidence of Appellant's satisfactory, albeit illegitimate service, the district court accepted the government's valuation of loss, which was based on the revenue generated by Appellant's services. The court found that the total loss to Bio-Medics exceeded $4,000,000. This approach, however, runs counter to established precedent. 12 In United States v. Maurello, 76 F.3d 1304 (3d Cir.1996), the Third Circuit closely examined the Guidelines as applied to an analogous situation. There, the court assessed the amount of damage caused by a disbarred attorney who continued to provide legal services to clients. See Maurello, 76 F.3d at 1308-13. The court rejected the government's argument that Maurello should be liable for "every dollar paid to defendant during his illegitimate practice" despite the satisfactory nature of some services. Instead, it held that 13 [a] client who obtains a satisfactory contract, settlement, or verdict has received something of value, irrespective of whether the lawyer was licensed at the time. 14 * * * 15 [T]he victim has sustained no loss because he has received the services for which he bargained, despite the fact that he has received them from a person who was not legally authorized to offer them. 16 Id. at 1311-12.	{ "pile_set_name": "FreeLaw" }
No. 113,881 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DERRICK BUELL, Appellant. SYLLABUS BY THE COURT 1. A legal challenge to the classification of a prior burglary adjudication can be raised for the first time on appeal. 2. A defendant's admission to each of the elements of a criminal offense in conjunction with a guilty plea is in no way an admission that the sentencing factors used to increase his or her sentence were proved beyond a reasonable doubt. 3. While a defendant may specifically waive the right to have a jury decide sentence- enhancing factors, a waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury decide facts which increase his or her sentence beyond the statutory maximum. 4. The Kansas Sentencing Guidelines Act (KSGA) provides that criminal sentences are essentially based on two controlling factors: the criminal history of a defendant and 1 the severity level of the crime committed, with person crimes having a greater impact. A defendant's criminal history score is calculated by tabulating the offender's prior convictions, with A being the highest score and I being the lowest. Prior convictions or juvenile adjudications are classified as either misdemeanors or felonies, person or nonperson, with some exceptions. The more extensive a defendant's criminal history and/or the greater the severity level of the crime, the lengthier the guideline sentence. 5. K.S.A. 2015 Supp. 21-6811(e) is applicable to scoring and classifying out-of-state burglary convictions or adjudications because the language in that portion of the statute plainly defines out-of-state convictions or adjudications as those occurring in other state systems. 6. Under K.S.A. 2015 Supp. 21-6811(e), a prior out-of-state conviction or adjudication is classified as a misdemeanor or felony based upon how the convicting state classifies the crime. A prior out-of-state conviction or adjudication is classified as person or nonperson by referring to comparable Kansas offenses in effect at the time the defendant committed the underlying crime. If there is no comparable Kansas offense, then the out-of-state conviction or adjudication is scored as a nonperson offense. 7. In evaluating what is a comparable offense under the KSGA, the essential question is whether the offenses are similar in nature and cover similar conduct. In making this comparison, the elements of each out-of-state conviction or adjudication do not need to be identical to the elements of a Kansas offense for them to be comparable. Offenses may be comparable even when the out-of-state statute encompasses some acts not necessarily encompassed by the Kansas statute. 2 8. The comparable Kansas offense for a Florida burglary under K.S.A. 2015 Supp. 21-6811(e)(3) is the Kansas version of burglary. 9. The element of intent is irrelevant to the determination of whether an out-of-state burglary conviction or adjudication should be properly classified as a person or nonperson felony because the only material difference between person felony burglary and nonperson felony burglary in Kansas is whether the burglary was committed in a dwelling. 10. The Descamps categorical and noncategorical approach is to be utilized in determining whether a defendant's out-of-state burglary conviction or adjudication should be classified as a person or nonperson crime, i.e., whether the out-of-state burglary involved a dwelling. See Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). 11. In the present case, the defendant's two 2002 juvenile adjudications for burglary in the state of Florida were properly classified as person felonies as the Florida burglary statute is divisible, with one or more of the elements containing burglary in a dwelling, and because the defendant admitted the burglaries were committed in a dwelling. Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed June 24, 2016. Affirmed. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. 3 Jodi Litfin and Kyle Edelman, assistant district attorneys, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee. Before POWELL, P.J., ARNOLD-BURGER, J., and BURGESS, S.J. POWELL, J.: Derrick Buell appeals from his sentences for robbery and attempted kidnapping, arguing the district court erred in classifying his 2002 Florida juvenile adjudications of burglary of a dwelling and burglary of a dwelling while armed as person offenses. Buell claims that by doing so, the district court violated his constitutional rights as articulated in Apprendi and Descamps. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND In February 2015, pursuant to a plea agreement, Buell pled guilty to robbery and attempted kidnapping. According to the presentence investigation report (PSI), Buell's criminal history included two 2002 Florida juvenile adjudications, one labeled as burglary of a dwelling and one labeled as burglary of a dwelling while armed. At his sentencing, Buell objected to the classification of the adjudication for burglary of a dwelling while armed as a person felony, arguing there was no comparable Kansas offense because of the different intent requirements of burglary in Florida and Kansas. After examining the Florida charging document and a deposition, the district court overruled this objection. Buell did not object before the district court to the classification of his adjudication for burglary of a dwelling as a person felony. Accordingly, the district court scored Buell's criminal history as A and sentenced him on both counts to a total of 122 months' imprisonment with 24 months' postrelease supervision. Buell timely appeals. 4 DID THE DISTRICT COURT INCORRECTLY CLASSIFY BUELL'S PRIOR FLORIDA JUVENILE ADJUDICATIONS WHEN CALCULATING BUELL'S CRIMINAL HISTORY SCORE? On appeal, Buell argues the district court erred in classifying both of his 2002 Florida burglary juvenile adjudications as person offenses. Specifically, Buell argues the district court had to make improper factual determinations in order to find these Florida burglaries comparable to Kansas' burglary statute, violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution as articulated by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In response, the State makes a number of arguments: First, the issue is not properly preserved for appeal; second, Buell waived his right to a jury at sentencing and, therefore, there was no error in the district court's failure to submit any facts to a jury; and third, the district court did not err in calculating Buell's criminal history score. We will address each argument in turn. A. Preservation The State first argues the issue was not properly preserved for appeal because Buell's failure to object to the inclusion of his Florida adjudication for burglary of a dwelling in calculating his criminal history score was a de facto admission that the prior adjudication was comparable to Kansas' burglary statute to make it a person felony. The State is correct that, in general, a party's failure to raise an issue below precludes appellate review. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However, the State's argument falls short for two reasons. First, Buell did object to the classification of his Florida adjudication for burglary of a dwelling while armed as a person felony before the district court; second, as to the other Florida adjudication, our Supreme Court has recently held that a "legal challenge to the classification of [a] prior 5 burglary adjudication can be raised for the first time on appeal." State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054 (2015). To this, the State argues that Dickey was wrongly decided. However, we are "duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position." State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. ___ (September 14, 2015). As there is no such indication from our Supreme Court that it is departing from Dickey, we are bound to follow it. Therefore, Buell may raise this argument for the first time on appeal. B. Waiver of Right	{ "pile_set_name": "FreeLaw" }
380 S.E.2d 772 (1989) 324 N.C. 544 STATE of North Carolina. v. Vincent Brady ALLEN. No. 169P89. Supreme Court of North Carolina. June 8, 1989. Vincent Brady Allen, pro se. Thomas G. Meacham, Jr., Asst. Atty. Gen., for the State. ORDER Upon consideration of the petition filed by Defendant in this matter for a writ of certiorari to review the decision of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 8th day of June 1989."	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-23-2006 USA v. Cartwright Precedential or Non-Precedential: Non-Precedential Docket No. 04-1605 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Cartwright" (2006). 2006 Decisions. Paper 1733. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1733 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 University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 04-1605 UNITED STATES OF AMERICA v. JEROME CARTWRIGHT, Appellant ________________________________ On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. No. 01-cr-00190) District Judge: Honorable Petrese B. Tucker _______________________________________ Submitted Under Third Circuit LAR 34.1(a) January 18, 2006 Before: ROTH, FUENTES and BECKER, Circuit Judges (Filed: January 23, 2006) OPINION BECKER, Circuit Judge. Jerome Cartwright appeals from the sentence imposed following his conviction by a jury on drug and firearms charges. The sentence of 144 months was calculated in part on the basis of a two level increase in his base offense following a judicial finding that Cartwright has obstructed justice. Cartwright challenges the sentence under United States v. Booker, 125 S. Ct. 738 (2005), inasmuch as these findings were not made by a jury or admitted by the defendant. Having determined that the sentencing issues that Cartwright raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker. See United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc). 2	{ "pile_set_name": "FreeLaw" }
396 F.3d 1074 UNITED STATES of America, Plaintiff-Appellee,v.Elvira CHARLEY, Defendant-Appellant. No. 03-10579. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2004. Filed February 3, 2005. COPYRIGHT MATERIAL OMITTED Patrick E. McGillicuddy, Phoenix, AZ, for the defendant-appellant. Paul K. Charlton, United States Attorney, District of Arizona, Michael T. Morrissey, Chief, Appellate Section, and Joan G. Ruffennach, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CR-02-00081-1-EHC. Before: D.W. NELSON, KLEINFELD, and GOULD, Circuit Judges. GOULD, Circuit Judge. 1 A federal jury convicted Elvira Charley of three counts of first degree murder in violation of 18 U.S.C. §§ 1111, 1153(a), and three counts of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c), (j). Charley appeals her conviction alleging that the district court erred in denying motions to suppress her statements to law enforcement officers because the statements were obtained in violation of her rights under the Fourth and Fifth Amendments.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 2 * On the tragic morning of January 1, 2002, Elvira Charley shot three of her six children to death with a .22 caliber semi-automatic rifle, as they slept in the Charley family home located on the Navajo Indian Reservation in Klagetoh, Arizona. When the children were dead, Charley covered their bodies with blankets and went to the home of her aunt, Minnie Begay. After visiting with the Begays for more than an hour, Charley left, telling those present that she was going home to "check on her kids." 3 Charley later returned to the Begay residence with one of her remaining children, and then left again to make phone calls. She first called her estranged husband and told him that she had shot their three older children. After hanging up with her husband, Charley called the police dispatcher and asked for police assistance because, as she said, she had "done something bad." She gave the dispatcher directions to the Begay residence and asked the dispatcher to send someone quickly. 4 Charley then went back to the Begay residence and gave her children's birth certificates to one of her cousins saying, "take care of my kids, here [is] all the information you need." Charley did not explain why she needed someone to care for her children. When the police arrived, Charley began hugging her relatives, saying, "I'm sorry ... I wasn't strong enough." 5 Sergeant Wallace Billie and Peter Lincoln, an Emergency Medical Technician ("EMT") from the local fire department, were among the government officers dispatched to the Begay residence. Upon his arrival at the Begay home, Sergeant Billie observed Charley crying and hugging another female. Charley then handed Sergeant Billie the keys to her house, stating "that she'd done something very bad, and that she needed [Sergeant Billie] to check on her children." Charley also told Sergeant Billie that he was "going to have to put [her] away for a long time." 6 Several of Charley's relatives who were present at the Begay residence began asking Sergeant Billie what was going on. Sergeant Billie asked EMT Lincoln to escort Charley from the house so that Sergeant Billie could talk to Charley's relatives and explain what was happening. 7 While waiting for Sergeant Billie outside the Begay residence, Charley initiated a conversation with EMT Lincoln, whom she had known in a personal capacity for about twenty years. Charley addressed EMT Lincoln as "Peter" and volunteered that she had done "something very bad." Charley further told EMT Lincoln that she had killed her children and that the bodies were still at her house. 8 When Sergeant Billie came out to his patrol car, he told Charley, "You're not under arrest. You're being detained. I need to take you to your house and find out what's going on." She replied, "You're going to have to take me away for a long time." Sergeant Billie placed Charley in the patrol car and she gave him directions to her house. When Sergeant Billie asked for permission to enter Charley's house, Charley responded, "Yes," urging him to hurry because the children were inside. 9 After finding the lifeless bodies of three of Charley's children inside the house, Sergeant Billie secured the scene, and proceeded to question Charley as she sat in his patrol car. The district court found that Charley received Miranda warnings before the interrogation began and that Charley "knowingly and voluntarily waived her rights and made statements" to Sergeant Billie. According to Sergeant Billie, Charley was coherent and did not appear to be under the influence of drugs or alcohol at this time. Moreover, there was no language barrier, and Charley was not handcuffed, threatened, or abused in any way. During the interview by Sergeant Billie in his car, Charley admitted to killing her children as they slept, and described the manner and order in which she had shot them. When the questioning ended, Sergeant Billie arrested Charley and escorted her to the tribal jail. 10 Charley made several unsolicited statements regarding her children to the booking personnel at the tribal jail as they were taking down her medical information. For example, she said, "Poor things. They had no choice. I could not take care of them." When asked if she had ever considered killing herself, Charley responded, "no," but further remarked, "[b]ut now I killed my own kids." 11 Charley was interviewed on the evening of January 1, 2002, by Special Agent Bradley Purscell of the FBI. Agent Purscell prefaced the interview by reading Charley the standard FBI advice of rights form. Charley reviewed and signed the form, telling Agent Purscell that she understood her rights and wished to waive them. The interview was conducted in English, with no language problems. Agent Purscell reported that Charley seemed coherent and did not appear to be under the influence of drugs or alcohol. Agent Purscell did not abuse or threaten Charley to make her talk. 12 During the session with Agent Purscell, Charley again admitted to shooting her three oldest children while they slept. She described the manner and order in which she had shot them, and told Purscell how she had covered the children's bodies with their blankets because she could not stand the sight of their blood. She also said, "you know what, I brought them into this world, and I took them from it, but they will always be with me." 13 Charley was arraigned in tribal court on January 2, 2002, for endangering the welfare of minors and for criminal homicide. Charley then told the tribal court that she wanted to consult with a lawyer before pleading to the tribal court charges against her.2 The tribal court entered a default plea of not guilty and scheduled a pretrial conference for Charley to attend at a later date after she had secured an attorney. 14 On January 3, 2002, Agent Purscell escorted Charley to her initial appearance in federal district court. During this trip, Agent Purscell again interviewed Charley. Before commencing this second interview, Agent Purscell again read Charley the Miranda warnings, and Charley again waived her rights by executing a written waiver. The responsive information that Charley gave in this second interview was substantially the same as the information she had given Agent Purscell on January 1, 2002. 15 Charley was subsequently indicted on three counts of first degree murder in violation of 18 U.S.C. §§ 1111, 1153(a), and three counts of use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c), (j). After her indictment, Charley filed motions to suppress the statements that she had made to law enforcement personnel on January 1, 2002, and on January 3, 2002. The district court conducted hearings on the motions to suppress, took the motions under advisement, and then denied them both. 16 In a seven-day trial, the government presented evidence including Charley's statements to Sergeant Billie and Agent Purscell which had not been suppressed.3 The jury found Charley guilty on all counts, three of first degree murder and three for firearm use in the murders. The district court then provisionally sentenced Charley to six consecutive life terms under 18 U.S.C. § 4244, and we consider in this opinion whether the district court committed reversible error in denying Charley's motions to suppress. II 17 We review Charley's motions to suppress de novo. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.2004) (en banc). The determination of whether a seizure exceeds the bounds of an investigatory Terry stop and becomes an arrest is also reviewed de novo. United States v. Miles, 247 F.3d 1009, 1012 (9th Cir.2001).	{ "pile_set_name": "FreeLaw" }
[Cite as State v. F.F., 2019-Ohio-455.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 107013 STATE OF OHIO PLAINTIFF-APPELLEE vs. F. F. DEFENDANT-APPELLANT JUDGMENT: REVERSED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-620306-A BEFORE: Kilbane, A.J., E.A. Gallagher, P.J., and Celebrezze, J. RELEASED AND JOURNALIZED: February 7, 2019 ATTORNEY FOR APPELLANT John T. Castele 565 W. Bagley Road Berea, Ohio 44017 ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor Fallon Radigan Geoffrey S. Minter Assistant County Prosecutors The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, A.J.: {¶1} Defendant-appellant, F.F., appeals the trial court’s imposition of consecutive sentences. For the reasons set forth below, we vacate his consecutive sentence and remand the case to the trial court for the limited purpose of complying with the requirements of R.C. 2929.14(C) for the imposition of consecutive sentences. {¶2} In August 2017, F.F. was charged in a 17-count indictment. The charges included ten counts of gross sexual imposition (“GSI”), six counts of kidnapping, and one misdemeanor count of importuning. F.F. was also indicted on sexually violent predator specifications and sexually motivated specifications. {¶3} The indictment lists two victims. The first is F.F.’s daughter, Y.F., born on December 5, 1985, with offense dates from 1997 through 1998. The second is Y.F.’s daughter (F.F.’s granddaughter), Y.R., born on April 20, 2005, with offense dates from 2011 through 2017. {¶4} On January 19, 2018, under a plea agreement, F.F. pled guilty to ten counts of GSI and a single misdemeanor count of importuning. In exchange, the state dismissed the six counts of kidnapping and the attached specifications. {¶5} At sentencing, the trial court imposed a prison term of four years on the two GSI counts and six months on the importuning count as they pertain to F.F.’s daughter, Y.F. The trial court ordered F.F. to serve those sentences concurrently. The trial court imposed a prison term of four years on the eight GSI counts pertaining to F.F.’s granddaughter, Y.R. The trial court ordered F.F. to serve those counts concurrently. The trial court ordered F.F. to serve the separate sentences imposed for each victim consecutively for a total of eight years in prison. {¶6} F.F. now appeals, assigning the following error for our review. Assignment of Error The trial court erred in sentencing [F.F.] to consecutive sentences without first making the proper statutory findings on the record and was contrary to law. Consecutive Sentences {¶7} In his sole assignment of error, F.F. argues that the trial court failed to make the findings required for the imposition of consecutive sentences under R.C. 2929.14(C)(4). {¶8} We review consecutive sentences using the standard set forth in R.C. 2953.08. State v. Perry, 8th Dist. Cuyahoga No. 104751, 2018-Ohio-1760, citing State v. Wells, 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307, 2013-Ohio-3809, ¶ 11, citing State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 10. R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn the imposition of consecutive sentences: (1) the appellate court, upon its review, clearly and convincingly finds that “the record does not support the sentencing court’s findings” under R.C. 2929.14(C)(4); or (2) the sentence is “otherwise contrary to law.” Venes at ¶ 11. {¶9} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive sentences, the trial court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender, that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and that at least one of the following also applies: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. R.C. 2929.14(C)(4). {¶10} The court must make the statutory findings as stated above at the sentencing hearing and incorporate those findings into its sentencing entry. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. {¶11} Moreover, Bonnell holds that the trial court must make the statutory findings on the record before imposing consecutive sentences on a defendant. State v. Williams, 8th Dist. Cuyahoga No. 106570, 2018-Ohio-4426, citing Bonnell at ¶ 28 (“[T]he record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by R.C. 2929.14(C)(2) before it imposed consecutive sentences.”). {¶12} In the instant case, at the outset, the trial court appropriately outlined the principles and purposes of felony sentencing. In so doing, the trial court stated: [B]efore I impose a sentence here, I always talk about what the purposes and principles of sentencing are. The sentence I impose must comply with these purposes and principles. The overriding purpose is to punish you, protect the public from future crimes by you and others using the minimum sanctions that the Court determines accomplishes the purposes without imposing unnecessary burden on state or local government resources. The sentence I impose here should be commensurate with and not be demeaning to the seriousness of your conduct, its impact on the victims and consistent with sentences for similar crimes by similar offenders. {¶13} Prior to imposing the consecutive sentences, the trial court stated: I believe that consecutive sentences are necessary here, and I am going to tell you why. I believe consecutive sentences are necessary to punish you. It is not disproportionate, and I find that the harm to the two victims is so great or unusual that a single term does not adequately reflect the seriousness of your conduct. Further, I believe that these crimes violate your own daughter and granddaughter. The fact that it is at first your daughter and then your granddaughter. I believe due to the harm that was caused to these two, consecutive sentences are appropriate to serve in this matter, and it is necessary to protect the public. {¶14} The above excerpt embodies two of the three required findings to impose consecutive sentences. First, the trial court found that consecutive sentences were necessary to punish F.F. Second, the trial court found that the harm to F.F.’s daughter and granddaughter was so great that a single term would demean the seriousness of F.F.’s conduct. However, as to	{ "pile_set_name": "FreeLaw" }
677 F.Supp. 1284 (1987) John M. HEALY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Ralph R. Franzese and J.W. Roberts, individually and in their official capacities, Defendants. No. CV-86-2640. United States District Court, E.D. New York. August 19, 1987. 1285 1286 Steiner & Masonson, New York City, for plaintiff. Andrew Maloney, U.S. Atty., Charles Knapp, Asst. U.S. Atty., of counsel, for defendants. MEMORANDUM OF DECISION AND ORDER COSTANTINO, District Judge. Defendants United States Postal Service, Ralph R. Franzese and J.W. Roberts move this court to dismiss the plaintiff's complaint pursuant to Fed.R.Civ.P. 12(c), or in the alternative, for summary judgment pursuant to Rule 56(b). Plaintiff has cross-moved this court to amend his complaint pursuant to Fed.R.Civ.P. 15(c). FACTS Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act of 1967 (hereinafter "ADEA"), 29 U.S.C. § 633a, alleging that he was wrongfully denied consideration for promotion on the basis of his race and age. Plaintiff, John M. Healy, has been an employee of the Postal Service and its predecessor, the United States Post Office for approximately thirty-one years. In November 1984, Mr. Fazekas, who was then the General Supervisor of Mails was sent from the Flushing, New York facility to investigate mail processing problems which were occurring at the Main Postal Facility in Jamaica. The plaintiff was and is manager of plant maintenance at the Jamaica Plant. As a result of a report issued by Mr. Fazekas, a meeting was held to discuss mail processing problems at the Jamaica Post Office. At this meeting the plaintiff informed defendant Ralph Franzese and others that the cause of certain machine malfunctions was due to employees throwing refuse into the machines. At subsequent meetings held for similar reasons, the plaintiff reported that machine jamming at the facility was being caused by improper operation by employees. As a result of his participation in these meetings, the plaintiff was given authority over the operation of these machines. The plaintiff continued to report safety and procedure violations to his superiors as well as other plant managers. In or about December of 1985, the position of Manager of Mail Processing became available at the Jamaica Plant. The plaintiff applied for the position but was turned down. On March 4, 1986, the plaintiff brought a complaint before the Equal Employment Opportunity Commission (EEOC), alleging that he had wrongfully been denied consideration for promotion based on his race and age. Specifically, the plaintiff alleged that the defendants acted to "insure that the position of manager of Mail Processing would be awarded to a block [sic] male." The Postal Service, in a final order dated May 20, 1985 and received by the plaintiff on July 8, 1986, closed the plaintiff's case with a finding of no discrimination. The plaintiff commenced this action on August 7, 1986 and served copies of the summons and complaint on the United States Attorney for the Eastern District of New York and the Attorney General of the United States on October 7, 1986. The plaintiff did not serve, nor has he served the Postmaster General of the United States or any of his authorized agents. DISCUSSION For the purposes of a Fed.R.Civ.P. 12(b)(6) motion, the facts as alleged by the plaintiff's complaint are taken as true. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 (2nd Cir.1977). The complaint 1287 should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). However, even when viewed in the most favorable light, the plaintiff's complaint fails to state a claim. PLAINTIFF'S TITLE VII CLAIM Title VII provides federal employees with a cause of action against the United States Government or one of its agencies for any alleged discrimination based on race, color, religion, sex, or national origin. In commencing a civil action against a department of the United States, the "head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(c) (1976). To withstand a motion to dismiss a complaint under Title VII, the party bringing the action must name the head of the agency or department as this is the only proper party defendant in a Title VII action. Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986); Hall v. Small Business Administration, 695 F.2d 175, 180 (5th Cir.1983); Newbold v. United States Postal Service, 614 F.2d 46, 47 (5th Cir.) (per curiam) cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980); Canino v. Equal Employment Opportunity Commission, 707 F.2d 468, 472 (11th Cir.1983). In actions against the Postal Service by an aggrieved employee claiming discrimination under Title VII, a motion to dismiss will be proper where the plaintiff has failed to name the head of the United States Postal Service, that is, the Postmaster General of the United States. Cooper v. United States Postal Service, 740 F.2d 714, 716 (9th Cir.1984) cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985); Hymen v. Merit Systems Protection Bd., 799 F.2d 1421, 1422 (9th Cir.1986); McGuinness v. United States Postal Service, 744 F.2d 1318, 1322 (7th Cir.1984); Stewart v. United States Postal Service, 649 F.Supp. 1531, 1535-1536 (S.D.N.Y.1986). In this action, the plaintiff named the United States Postal Service, Ralph Franzese, the Postmaster of the Jamaica Main Office, and J.W. Roberts, the manager of Mail Processing, as defendants. The plaintiff has not named Preston R. Tisch, the Postmaster General. Since the plaintiff has not complied with the pleading requirements set forth in 42 U.S.C. § 2000e-16(c), his Title VII claim must be dismissed. Furthermore, since the Postmaster General is the only proper defendant the complaint must be dismissed against the United States Postal Service. Cooper v. United States Postal Service, 740 F.2d at 716. The plaintiff's complaint is also dismissed against the defendants Ralph Franzese and J.W. Roberts. In view of Healy's conceded failure to file a complaint against the Postmaster General within the statutory period, his claim must be barred unless his attempt to substitute the Postmaster General as a defendant relates back to the date his original complaint was filed. Rule 15(c), which governs the relation back of amendments to pleadings states: Whenever a claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Prior to 1986, some circuits had construed Rule 15(c) to include a reasonable time after the lapse of a limitations period for the service of process. See Ingram v. Kumar, 585 F.2d 566, 572 (2nd Cir.1978); Kirk v. Cronvich, 629 F.2d 404, 408 (5th 1288 Cir.1980). The Supreme Court's literalist interpretation of Rule 15(c) in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) seems to foreclose this result. Schiavone v. Fortune, 106 S.Ct. 2379 at 2385 (1986). Given the Supreme Court's holding in Schiavone, an amendment which seeks to name the proper federal defendant will not relate back to the original complaint unless the notice requirement of Rule 15(c) is met. Stewart v. United States, 655 F.2d 741, 742 (7th Cir.1981); Lofton v. Heckler, 781 F.2d 1390 (9th Cir.1986); Hughes v. U.S.A., 701 F.2d 56, 58-59 (7th Cir.1982). In the present case, the plaintiff received the Postal Service's	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Hignite, 2015-Ohio-5204.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY STATE OF OHIO, : CASE NO. CA2015-07-063 Plaintiff-Appellant, : OPINION : 12/14/2015 - vs - : DARRYL HIGNITE, : Defendant-Appellee. : CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 15CR30825 David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellant Helbling Law Firm, LLC, John J. Helbling, 6539 Harrison Avenue, Cincinnati, Ohio 45247, for defendant-appellee S. POWELL, J. {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the decision of the Warren County Court of Common Pleas granting two motions in limine in favor of defendant- appellee, Darryl Hignite. For the reasons outlined below, we reverse the trial court's decision and remand for further proceedings. Facts and Procedural History {¶ 2} On March 23, 2015, the Warren County Grand Jury returned an indictment Warren CA2015-07-063 charging Hignite with one count of robbery in violation of R.C. 2911.02(A)(3), a third-degree felony. According to the bill of particulars, the charge stemmed from allegations Hignite entered a US Bank located in Warren County at approximately 1:00 p.m. on August 5, 2014 and presented a teller with a note demanding $5,000 in cash "with no dye packets." Hignite is then alleged to have received approximately $4,000 in cash from the teller before fleeing from the scene. {¶ 3} On May 29, 2015, the state filed a notice of its intent to introduce so-called "other acts" evidence at trial pursuant to Evid.R. 404(B). Specifically, the state provided notice that it planned to introduce photographic and video evidence Hignite attempted to rob an LCNB National Bank located in Butler County on September 13, 2014 before successfully robbing a Chase Bank also located in Butler County later that same day. Hignite ultimately pled guilty to both crimes in State v. Hignite, Butler C.P. No. CR2014-09-1473. According to the state, this evidence was admissible because it established Hignite's modus operandi and identity by depicting him wearing similar clothing to the individual shown robbing the US Bank now at issue.1 {¶ 4} On June 25, 2015, Hignite filed a motion in limine seeking to exclude the photographic and video evidence at trial by claiming it was inadmissible under both Evid.R. 404(B) and Evid.R. 403(A). Hignite then filed an additional motion in limine seeking to exclude a summary of an interview Hignite had with police, wherein he is alleged to have made a statement implicating himself in the US Bank robbery. On the morning of trial, the trial court issued a decision from the bench granting Hignite's two motions in limine. In reaching its decision, the trial court found the disputed evidence, although relevant and 1. The state also provided notice that it planned to introduce photographic and video evidence that Hignite robbed another US Bank located in Hamilton County several years earlier on July 7, 2007. Hignite pled guilty to this robbery in State v. Hignite, Hamilton C.P. No. B0705843. That evidence, however, is not a subject of this appeal. -2- Warren CA2015-07-063 generally admissible, would nevertheless be excluded at trial under Evid.R. 403(A) because its probative value substantially outweighed the danger of unfair prejudice to Hignite. {¶ 5} Specifically, as the trial court stated in regards to the photographic and video evidence from LCNB National Bank and Chase Bank: With respect to the pictures and videos from September 13th, specifically from LCNB and from the Chase Bank, the Court finds that there are similarities in the way the defendant presents himself the way he acts and the way he – his gait, his appearance, that there are similarities that would be probative as to the issue of identification. That being said, the evidence is so unfairly prejudicial, that I find that even a limiting instruction will not be sufficient to prevent the jury from drawing an inference as to the defendant's character and that he acted in conformity with that character on August [5], 2014, so I am going to exclude the videos and the still photos from the incidents of September 13, 2014. {¶ 6} In addition, as it relates to the summary of the interview containing Hignite's alleged statement he made to police implicating himself in the US Bank robbery, the trial court stated: But, having reviewed the statement, itself, I find that the statement, the context of the statement, if provided to the jury in a limited fashion that I would have to do to carve it up so as not to bring in his prior convictions or his other bad acts, to carve that up in such a way would have to be done to the point where the evidence that would remain would not be in proper context, it would not be reliable, and there is a high probability again that the jury would seize upon this evidence as character evidence, and invite them to really to lose their way. So, I'm going to exclude the interviews of the defendant, statements made by the defendant, again in the State's case in chief, for those reasons. {¶ 7} On June 30, 2015, the trial court issued a written decision incorporating its ruling granting Hignite's motions in limine. After issuing its written decision, the state filed a timely certification pursuant to Crim.R. 12(K) and a notice of appeal, raising two assignments of error for review. Denial of a Motion in Limine as a Final Appealable Order -3- Warren CA2015-07-063 {¶ 8} Prior to addressing the merits of the state's two assignments of error, we must first consider whether the trial court's decision is a final appealable order. Pursuant to R.C. 2945.67, the state "may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants * * * a motion to suppress evidence[.]" Crim.R. 12(K) supplements and formalizes this statutory procedure. State v. Hatter, 1st Dist. Hamilton Nos. C-130326, C-130331, C-130332 and C-130353, 2014-Ohio-1910, ¶ 7. Specifically, Crim.R. 12(K) provides that when the state takes an appeal from an order suppressing or excluding evidence, "the prosecuting attorney must certify that (1) the appeal is not taken for the purpose of delay, and (2) the ruling on the motion or motions has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed." Id. {¶ 9} "The purpose and effect of a motion to suppress and a motion in limine are distinct." State v. French, 72 Ohio St.3d 446, 449 (1995). A motion to suppress is the proper vehicle for raising constitutional challenges. State v. Miller, 11th Dist. Portage No. 2012-P- 0032, 2012-Ohio-5585, ¶ 14. In contrast, "[a] motion in limine is tentative and precautionary in nature, reflecting the court's anticipatory treatment of an evidentiary issue at trial." City of Defiance v. Kretz, 60 Ohio St.3d 1, 4 (1991). In turn, a trial court's decision ruling on motion in limine is generally not a final appealable order. State v. Grubb, 28 Ohio St.3d 199, 201- 202 (1986). However, in cases involving appeals under R.C. 2945.67, such as the case here, the Ohio Supreme Court has taken a "look beyond the label" approach in determining whether an order is subject to appeal. State v. Elqatto, 10th Dist. Franklin No. 11AP-914, 2012-Ohio-4303, ¶ 9. {¶ 10} For instance, in State v	{ "pile_set_name": "FreeLaw" }
822 F.Supp.2d 843 (2011) Robin EASTES, Plaintiff, v. ACS HUMAN SERVICES, LLC, Defendant. No. 1:09 CV 203 PPS. United States District Court, N.D. Indiana, Fort Wayne Division. September 30, 2011. Andrew G. Jones, Philip J. Gibbons, Jr., Gibbons Jones PC, Indianapolis, IN, for Plaintiff. 844 Germaine Winnick Willett, Tami A. Earnhart, Ice Miller LLP, Indianapolis, IN, for Defendant. OPINION AND ORDER PHILIP P. SIMON, Chief Judge. Plaintiff Robin Eastes brought this action under 42 U.S.C. § 1983 alleging that Defendant ACS violated her first amendment rights when it terminated her employment at a call center that ACS operates as a subcontractor to the State of Indiana. ACS previously moved to dismiss Eastes' complaint arguing that Eastes was not entitled to relief under Section 1983 because ACS was not a state actor. I denied the motion finding that Eastes' complaint stated a cause of action under a joint actor theory. This allowed Eastes to conduct discovery and establish facts showing that ACS and the State of Indiana acted together to terminate Eastes' employment assignment. At the time, Eastes also argued that ACS could be liable under Section 1983 because its operation of the call center was a traditionally public function. I did not address the public function argument in my ruling on the motion to dismiss, but it is now before me on summary judgment. The issue remains essentially the same: was ACS a state actor for purposes of Section 1983? Eastes was apparently unable to establish facts in support of her joint actor theory and has abandoned that argument leaving before me the question of whether ACS was a state actor under a public function theory. For the following reasons, I find that it was not. Background In recent years, the State of Indiana has been on a privatization kick. For example, the operation of the Indiana Toll Road has been leased to a private company on a long term lease. As part of the privatization movement, the State contracted with IBM to handle some of the services previously provided by the Family and Social Services Administration ("FSSA").[1] IBM, in turn, contracted with ACS to run a call center at the Grant County Service Center in Marion, Indiana. The primary function of the call center is to answer applicants' questions about the status of benefits requests as well as to process paperwork pertaining to those requests. ACS does not determine benefit eligibility or distribute benefits to citizens of Indiana. ACS makes its personnel and staffing decisions independent of both the State of Indiana and IBM. Eastes was actually employed by Alpha Rae Personnel Incorporated, a staffing company. Alpha Rae assigned Eastes to ACS's call center in August 2008. Upon her assignment, Eastes received two weeks of training from ACS. This training was provided solely by ACS and did not include anyone from the State of Indiana or from IBM. Eastes began work as a call center operator after she completed her two week training period. During the next nine months of her employment, Eastes came to believe that the privatization of the FSSA benefits system was detrimental to benefit recipients. She was admittedly pretty opinionated on the subject and didn't keep her concerns to herself. She frequently challenged ACS's policies and procedures by complaining to her coworkers and management personnel, she complained to a member of the local media, and she encouraged two additional call center employees to speak with the media. ACS terminated her employment assignment at the call center in May 2009 after 845 receiving reports that Eastes had, once again, criticized ACS's operation of the call center. Eastes claims that she was sacked in retaliation for exercising her First Amendment right to speak out on a matter of public importance. ACS now seeks summary judgment on the grounds that it is not a state actor and therefore not subject to liability under Section 1983.[2] Discussion Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On summary judgment, facts and inferences are construed in favor of the non-moving party. Trentadue v. Redmon, 619 F.3d 648, 652 (7th Cir.2010). But if no reasonable jury could find for the nonmoving party, there is not a genuine issue of material fact. Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir.2010). Section 1983 exists to protect citizens who have been deprived of a constitutional or statutory right by persons acting "under color of any statute, ordinance, regulation, custom, or usage of any State." 42 U.S.C. § 1983. "To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citation omitted). The parties agree that ACS is a private entity. Therefore, for Section 1983 to apply, we must determine whether the alleged infringement can be fairly attributable to the State of Indiana. Both the Supreme Court and the lower federal courts have recognized the difficulty of this task. There are a myriad of facts and circumstances that can transform private action into state action. These include: when private actors conspire or are jointly engaged with state actors to deprive a person of constitutional rights; where the state compels the discriminatory action; when the state controls a nominally private entity; when it is entwined with its management or control; when the state delegates a public function to a private entity; or when there is such a close nexus between the state and the challenged action that seemingly private behavior reasonably may be treated as that of the state itself Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815-16 (7th Cir.2009) (citations omitted). The Seventh Circuit provided further guidance by categorizing these circumstances into four broad tests: (1) the symbiotic relationship test (satisfied when private and public actors carry out a public function); (2) the state command and encouragement test (satisfied when the state requires the actions of the private actor); (3) the joint participation doctrine (satisfied when the private action is the same as the state action); and (4) the public function test (satisfied when private activity is fairly attributable to the state). Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 823-24 (7th Cir.2009). Of course, these tests are not cut-and-dried, and the application of any such test is multi-faceted and *846 fact-sensitive. Hallinan, 570 F.3d at 816 (citations omitted). There is no evidence in this case that Indiana conspired with, controlled, directed, or managed how ACS dealt with its employees in general or Eastes in particular. Indeed, Eastes concedes this point. (DE 42 at 7.) Eastes argues instead that because ACS's operation of the FSSA call center is a traditionally public function, it acted under color of state law when it terminated her job assignment. The public function test examines whether a private actor performs a function that is exclusively reserved to the State. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). While a private actor may perform some public functions, it does not follow that its every move is attributable to the state. Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (explaining that private entities' acts "do not become acts of the government by reason of their significant or even total engagement in performing public contracts."). It is for this reason that "(a)n entity may be a state actor for some purposes but not for others." George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir.1996). So courts must be careful to identify the specific function about which the plaintiff complains and then ask whether that particular conduct "is fairly attributable to the state." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-51, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). This inquiry is undertaken by examining whether there is a "close nexus" between the State and the challenged action. Id. at 52, 119 S.Ct. 977; see also Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). In this case, no such nexus exists between Eastes' termination and the State. ACS and Eastes disagree about the scope of the public function that ACS performs. ACS argues that to the extent it performs a public function, that public function relates only to questions concerning FSSA benefits. In other words, ACS believes that the plaintiff would have to allege some sort of constitutional infringement relating to FSSA benefits (such as her entitlement to public assistance) in order for ACS to be accountable as a state actor. (DE	{ "pile_set_name": "FreeLaw" }
794 F.2d 1026 1987 A.M.C. 2112 REELED TUBING, INC., Plaintiff-Appellant,v.M/V CHAD G, her engines, etc., in rem, Guilbeau Marine,Inc., Grand Isle Shipyard, Inc., in personam,Defendants-Appellees. No. 85-3671 Summary Calendar. United States Court of Appeals,Fifth Circuit. July 21, 1986. Deutsch, Kerrigan & Stiles, Francis J. Barry, Jr., Philip J. Kaplan, New Orleans, La., for plaintiff-appellant. Henderson, Hanemann & Morris, Joseph Reilly, Jr., Houma, La., for Grand Isle Shipyard, Inc. Lugenbuhl, Larzelere & Ellefson, W.J. Larzelere, Jr., Douglas B. Habig, Russell D. Pulver, New Orleans, La., for Gilbeau Marine, & C & G Marine Service. Appeal from the United States District Court for the Eastern District of Louisiana. Before RUBIN, JOHNSON and JONES, Circuit Judges. JOHNSON, Circuit Judge: 1 Reeled Tubing, Inc., appeals from the trial court's judgment denying prejudgment interest from the date of Reeled Tubing's loss. Instead, the trial court awarded prejudgment interest only from the date of judicial demand. Reeled Tubing also challenges the method used by the trial court to calculate the interest rate on that interest actually awarded. We conclude that the trial court abused its discretion in the circumstances presented here in denying prejudgment interest from the date of Reeled Tubing's loss. However, the method used by the trial court to calculate that interest actually awarded was within its discretion. Thus, the trial court's judgment limiting prejudgment interest is vacated and remanded with instructions to award Reeled Tubing interest, at the rate specified by the trial court, commencing from the date of loss. I. 2 On October 28, 1983, plaintiff Reeled Tubing purchased a Power Package Unit ("power pack"), for use in conjunction with oil drilling, from Hydradyne Hydraulics for the sum of $53,500. On December 26, 1983, the power pack was loaded aboard the M/V CHAD G at Grand Isle, Louisiana, by defendant Grand Isle Shipyard, Inc. pursuant to a stevedoring contract. Grand Isle's workers did not secure the power pack to the deck of the vessel and no crew member of the vessel inspected the cargo to determine whether the power pack was properly secured. After an approximately three hour voyage across the Gulf of Mexico the M/V CHAD G reached its destination minus the power pack, which had evidently fallen overboard. Reeled Tubing immediately purchased a replacement for the power pack and eventually paid the full purchase price for that replacement. 3 On March 30, 1984, Reeled Tubing informed defendants Grand Isle and Guilbeau Marine, Inc. (the M/V CHAD G owner) that Reeled Tubing held them fully accountable for the loss. Grand Isle's insurer responded promptly, and denied liability. The M/V CHAD G's insurer did not respond fully until September 10, 1984, when it too denied liability. 4 On December 26, 1984, one year after the loss, Reeled Tubing filed the instant case against the M/V CHAD G, in rem, Guilbeau Marine, and Grand Isle. With the consent of the parties, the case was tried before a United States magistrate without a jury. In an opinion issued on September 30, 1985, the trial court (the magistrate) found the defendants Guilbeau Marine and Grand Isle negligent. The trial court also found that the defendants' negligence was the proximate cause of the power pack being lost overboard. The trial court apportioned fault equally between the defendants and entered judgment in favor of Reeled Tubing in the amount of $53,500. Initially, the trial court refused to award any prejudgment interest due to (1) plaintiff's delay of one year in filing suit; (2) the existence of a good faith dispute over liability and damages; and (3) Reeled Tubing's failure to establish loss of use. The trial court subsequently and without explanation amended its judgment to grant prejudgment interest; the prejudgment interest awarded by the trial court was specified to run only from the date Reeled Tubing had filed its complaint. The trial court fixed the rate of interest in accordance with the postjudgment interest rate prescribed in 28 U.S.C. Sec. 1961. II. 5 Under maritime law, the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic. Inland Oil & Transport Co. v. Ark-White Towing Co., 696 F.2d 321, 327 (5th Cir.1983). A trial court has the discretion to deny prejudgment interest only where peculiar circumstances would make such an award inequitable. Inland Oil & Transport, 696 F.2d at 327. Peculiar circumstances may be found where plaintiff improperly delayed resolution of the action, where a genuine dispute over a good faith claim exists in a mutual fault setting, where some equitable doctrine cautions against the award, or where the damages award was substantially less than the amount claimed by plaintiff. United States v. Central Gulf Lines, Inc., 747 F.2d 315, 320 (5th Cir.1984); Inland Oil & Transport Co., 696 F.2d at 327-28; Noritake Co., Inc. v. M/V HELLENIC CHAMPION, 627 F.2d 724, 728-29 n. 3 (5th Cir.1980). Moreover, in this Circuit prejudgment interest is ordinarily awarded from the date of loss. See Platoro Ltd., Inc. v. Unidentified Remains, Etc., 695 F.2d 893, 906-07 (5th Cir.1983), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); see also King Fisher Marine Service, Inc. v. NP Sunbonnet, 724 F.2d 1181, 1187 (5th Cir.1984). Prejudgment interest is usually awarded to the date of loss to ensure that the injured plaintiff is compensated for the use of funds to which the plaintiff was entitled, but which the defendant had use of prior to judgment. Cf. Walsh Stevedoring v. James Marine Service, et al., 792 F.2d 489, 492-93 (5th Cir.1986). 6 The trial court failed to specify its reasons for refusing to award prejudgment interest to the date of loss. However, to the extent the trial court's reasons were the same as its reasons for initially denying prejudgment interest altogether, the trial court must be said to have abused its discretion. Reeled Tubing's failure to file suit for one year following the loss was not the result of improper delaying tactics which would justify denying prejudgment interest to the date of loss. Reeled Tubing notified defendants of the fact and circumstances of the loss and the likelihood of a claim within three months of the loss. Following notification, one of the defendants delayed five months before responding. Reeled Tubing commenced the instant case within four months of learning that both defendants denied liability. Thus, Reeled Tubing's one year delay in filing suit was entirely reasonable. 7 Moreover, the existence of a good faith dispute as to liability did not justify denying prejudgment interest to the date of loss. While such a dispute may justify denying prejudgment interest in a mutual fault setting, see e.g., Inland Oil & Transport Co., 696 F.2d at 328, there was no finding that Reeled Tubing was in any way at fault. See General Intermodal Logistics Co. v. Mainstream Shipyards & Supply, Inc., 791 F.2d 930 (1986, 5th Cir.). Moreover, no more evidence of a "good faith" dispute exists here than would exist in virtually any nonfrivolous admiralty suit. Thus, the existence of such a dispute did not justify departure from the usual rule requiring an award of prejudgment interest to the date of loss. 8 Certainly there are circumstances when a trial court may properly exercise its discretion to award prejudgment only to the date of judicial demand. Cf. Howell v. Marmpegaso Compania Naviera, S.A., 578 F.2d 86 (5th Cir.1978). An unreasonable delay in filing suit may constitute such a circumstance. However, the trial court failed to specify and we are aware of no such circumstances which would justify departing in the instant case from our usual rule requiring prejudgment interest from the date of loss.1 Reeled Tubing purchased a power pack for $53,500 and entrusted it to defendants, who were found jointly responsible for its loss. Reeled Tubing has had neither the power pack nor the $53,500 since the date of the loss or shortly thereafter. The fact that Reeled Tubing may have purchased another power pack on advantageous terms does not alone alter the fact that Reeled Tubing was denied the use of the funds that paid for the first pack and is entitled to prejudgment interest as compensation for loss of the	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ BEVERLY D. TROTTER-LOW, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2015-3147 ______________________ Petition for review of the Merit Systems Protection Board in No. DA-0845-15-0145-I-1. ______________________ Decided: November 6, 2015 ______________________ BEVERLY D. TROTTER-LOW, Buda, TX, pro se. SARA B. REARDEN, Office of the General Counsel, Mer- it Systems Protection Board, Washington, DC, for re- spondent. Also represented by BRYAN G. POLISUK. ______________________ Before MOORE, O’MALLEY, and CHEN, Circuit Judges. 2 TROTTER-LOW v. MSPB PER CURIAM Beverly Trotter-Low appeals from a Merit Systems Protection Board (“Board”) decision dismissing her appeal as untimely filed. Because the Board’s dismissal is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm. BACKGROUND Ms. Trotter-Low receives annuity benefits under the Federal Employees Retirement System. Because the Office of Personnel Management (“OPM”) had not adjust- ed her annuity based on her receipt of a Social Security Disability Insurance Benefit, it calculated that it overpaid her $29,320 for the period from July 1, 2010 to April 30, 2014. It informed Ms. Trotter-Low that it intended to collect this overpayment by deducting monthly install- ments from her annuity. Ms. Trotter-Low timely request- ed reconsideration of the OPM’s decision. On September 30, 2014, the OPM sent Ms. Trotter- Low a letter denying her request for reconsideration. The OPM rejected Ms. Trotter-Low’s offer to repay a lesser amount, finding it unreasonable. The OPM did conclude that the original repayment schedule would cause Ms. Trotter-Low financial hardship and set a new repayment schedule to begin January 1, 2015 absent a timely filed appeal with the Board. The letter included a paragraph titled “Appeal Rights,” which explained that Ms. Trotter- Low must file any Board appeal “within 30 calendar days from the date of this letter, or from receipt of this letter, whichever is later.” Resp’t App. (“R.A.”) at 46. As evi- denced by a Certified Mail tracking receipt, Ms. Trotter- Low received the OPM letter on October 4, 2014. Thus, the deadline for Ms. Trotter-Low to file an appeal was November 3, 2014. On December 11, 2014, the Board received an appeal from Ms. Trotter-Low. While Ms. Trotter-Low signed the TROTTER-LOW v. MSPB 3 appeal form on October 31, 2014, the envelope in which it was mailed is postmarked December 2, 2014. In re- sponse, the Board mailed Ms. Trotter-Low an Order on December 24, 2014, explaining that there was a question regarding whether her appeal was untimely and should be dismissed. The Order stated that if Ms. Trotter-Low did not file her appeal on time she should “file evidence and/or argument showing that good cause exists for the delay in filing” and explained what constitutes “good cause.” R.A. at 13. Ms. Trotter-Low did not respond to this Order. On February 26, 2015, the Board dismissed Ms. Trotter-Low’s appeal as untimely filed. Ms. Trotter- Low timely appealed to this Court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION Whether the regulatory time limit for filing an appeal to the Board should be waived based on a showing of good cause is committed to the Board’s discretion. Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). “[W]e will disturb the grant or denial of such a waiver only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Id. (citing 5 U.S.C. § 7703(c)). On appeal, Ms. Trotter-Low only argues the merits of her case—that the four years it took the OPM to process her paperwork was unreasonable and caused her severe financial and personal hardship. She does not address whether there was good cause for her delay in filing her Board appeal. As the Board explained in its December 24, 2014 Order, the burden is on Ms. Trotter-Low to come forward with evidence or argument explaining that good cause existed for her untimely filing. Ms. Trotter-Low did not respond to the Board’s Order. Under the facts pre- sented, we cannot say the Board abused its discretion in dismissing her appeal as untimely filed. Id. at 653–64 (holding that the Board did not abuse its discretion by 4 TROTTER-LOW v. MSPB dismissing an untimely appeal where the appellant failed to respond to a Board order to show cause). CONCLUSION For the foregoing reasons, the judgment of the Board is affirmed. AFFIRMED COSTS No costs.	{ "pile_set_name": "FreeLaw" }
239 P.3d 36 (2010) In the Matter of the Driver's License Suspension of Bryan Lee McDaniel. Bryan Lee McDANIEL, Petitioner-Appellant, v. STATE of Idaho, DEPARTMENT OF TRANSPORTATION, Respondent. No. 36744. Court of Appeals of Idaho. August 26, 2010. As Amended August 27, 2010. 37 Richard L. Harris, Caldwell, for appellant. Hon. Lawrence G. Wasden, Attorney General; Timothy J. Stover, Special Deputy Attorney General, Boise, for respondent. Timothy J. Stover argued. GUTIERREZ, Judge. Bryan Lee McDaniel appeals from the district court's order affirming the administrative suspension of his driver's license. Specifically, he argues that the hearing officer erred in not taking into consideration the margin of error in the breathalyzer. For the reasons set forth below, we affirm. I. BACKGROUND Officer Shearn was dispatched to the area of Logan Street and Farmway Road in Canyon County in response to a report of a dune buggy cutting off a driver on the roadway. Officer Shearn arrived at the area within a few minutes and located the dune buggy containing four occupants. Officer Shearn observed the dune buggy exit the driveway, but was unable to locate a license plate on the vehicle. After following the vehicle for a short time, it turned off onto a dirt lane at which point Officer Shearn stopped the dune buggy. Officer Shearn approached McDaniel from the driver's side of the vehicle and observed that McDaniel's eyes were bloodshot and glassy, and could smell the odor of alcohol coming from McDaniel. McDaniel did not have his driver's license with him, but verbally identified himself and his driver's license number. McDaniel admitted to having consumed three beers. McDaniel also failed a field sobriety test. Officer Shearn arrested McDaniel and took him to the jail where a breath test was administered. The results of the Intoxilyzer 5000 breath test were 0.083/0.083 blood alcohol concentration (BAC). McDaniel was subsequently charged with driving under the influence pursuant to I.C. § 18-8004, and his driving privileges were suspended for ninety days pursuant to I.C. § 18-8002A. McDaniel requested an administrative hearing. The hearing officer sustained the suspension of McDaniel's driving privileges. McDaniel filed a petition for judicial review and his suspension was stayed pending the district court's review. The district court affirmed the hearing officer's decision. McDaniel now appeals. II. STANDARD OF REVIEW The Idaho Administrative Procedures Act (I.D.A.P.A.) governs the review of department decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person's driver's license. See I.C. §§ 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the decision of the district court acting in its appellate capacity under I.D.A.P.A., this Court reviews the agency record independently of the district court's decision. Marshall v. Idaho Dep't of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct.App.2002). This Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. § 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court instead defers to the agency's findings of fact unless they are clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. 38 In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, so long as the determinations are supported by substantial, competent evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm'rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669. Review of a suspension of a driver's license under I.C. § 18-8002 presents a mixed question of law and fact. In re Goerig, 121 Idaho 26, 28, 822 P.2d 545, 547 (Ct.App.1991). This Court will defer to findings of fact supported by substantial evidence but will freely review conclusions of law and their application to the findings of fact. Id. III. DISCUSSION McDaniel asserts that the hearing officer's decision should be reversed because an inherent error exists in the Intoxilyzer 5000 and as a result there is doubt that his BAC actually exceeded the maximum concentration level of 0.08 as set forth in I.C. § 18-8004. More specifically, McDaniel asserts that there is an inherent 0.004 plus or minus error in the Intoxilyzer 5000, and that the benefit of the error factor should be in his favor. McDaniel presented expert testimony from a toxicologist at the administrative suspension hearing. The toxicologist stated that based on his experience, background, and knowledge of the Intoxilyzer 5000, there is a variable that is inherent in the machine and that it is possible that even though a reading is 0.083, it could be less than 0.08. ITD asserts that McDaniel's driver's license suspension should be upheld because the hearing officer was not required to consider the inherent margin of error in the Intoxilyzer 5000. Idaho appellate courts have not previously addressed the question of whether the margin of error in the Intoxilyzer 5000 should be considered in administrative license suspension rulings. Therefore, we look to other jurisdictions for guidance. When statutory language is interpreted to require license suspension upon test results indicating a certain BAC, courts have ruled that a driver's license can still be revoked irrespective of the margin of error. Consequently, any inherent margin of error is disregarded. See Wieseler v. Prins, 167 Ariz. 223, 805 P.2d 1044, 1047 (App.1990) (holding that the license revocation statute does not require consideration of margin of error before determining a person's blood alcohol level); Nugent v. Iowa Dep't of Transp., 390 N.W.2d 125, 128 (Iowa 1986) (holding that consideration of margin of error is not required where the license suspension statute did not on its face require it); Hrncir v. Comm'r of Public Safety, 370 N.W.2d 444, 445 (Minn.Ct.App.1985) (holding that consideration of margin of error is not required where statute says "concentration of .10 or more, not .10 plus or minus a margin of error"). On the contrary, when statutory language is interpreted to require license suspension upon actual levels of BAC, courts have ruled that any inherent margin of error in breath testing machines must be considered. See State v. Boehmer, 1 Haw.App. 44, 613 P.2d 916, 917-18 (1980) (holding that any inherent margin of error must be considered where the statute specifies that the actual weight of alcohol in the defendant's blood must be above a specified level); State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839, 840 (1978) (stating that the legislature has selected a particular percent of alcohol to be a criminal offense, so it is not unreasonable to require that the test do so outside of any error inherent in the testing process); State v. Keller, 36 Wash.App. 110, 672 P.2d 412, 414 (1983) (holding that the margin of error in the breathalyzer should be considered by the trier of fact in deciding whether the defendant had a blood alcohol content of .10 percent or greater).[1] The conclusion of these courts has primarily hinged on whether the license suspension statute is interpreted to require a driver's license to be suspended upon test results indicating a blood alcohol level in excess of the statutory limit, or alternatively, upon an actual level of alcohol in excess of the statutory *39 limit. Haynes v. State, Dep't of Public Safety, 865 P.2d 753, 755 (Alaska 1993). Idaho Code § 18-8002A contains language paralleling the former. It provides that an individual's driver's license will be suspended if that individual submitted to an evidentiary test and "the test results indicated an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004...." I.C. § 18-8002A(4)(a) (emphasis added).[2] The plain meaning of the statutory language is that a driver's license will be suspended upon test results indicating a BAC of 0.08 or more, not 0.08 plus or minus any margin of error. See Callies v. O'Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009) (holding that issues of statutory interpretation begin with an examination of the literal language of the statute; if the language is unambiguous, we need not engage in statutory construction and are free to apply the statute's plain meaning). Nowhere does I.C. § 18-8002A contain language that requires the hearing officer to take into account any inherent error within the breath test machine before a license can be suspended, it simply requires that the test results indicate a BAC in excess	{ "pile_set_name": "FreeLaw" }
95 F.3d 1076 In re Fred Paul SOLOMON, Debtor.GUARDIAN LIFE INSURANCE COMPANY, Plaintiff-Appellant,v.Fred Paul SOLOMON, Defendant-Appellee. No. 95-5144. United States Court of Appeals,Eleventh Circuit. Sept. 23, 1996. Maxine M. Long, Shutts & Bowen, Miami, FL, for appellant. Ronald George Neiwirth, Ronald G. Neiwirth, P.A., Coral Gables, FL, for appellee. Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT, Chief Judge, COX, Circuit Judge, and HANCOCK, Senior District Judge. PER CURIAM: 1 Guardian Life Insurance Company appeals an order of the district court concluding that Fred Paul Solomon's interest in a settlement agreement resolving a 1984 lawsuit is exempt, under Florida law, from Solomon's bankruptcy estate. We reverse and remand for further proceedings. BACKGROUND 2 The relevant facts are discussed in the opinions of the district court, Solomon v. Guardian Life Ins. Co. of America, 186 B.R. 535, 535-36 (S.D.Fla.1995), and the bankruptcy court, In re Solomon, 166 B.R. 998, 998-99 (Bankr.S.D.Fla.1994). We summarize them here only as pertinent to this appeal. In December 1985, Solomon settled a lawsuit against Union Mutual Life Insurance Company. The settlement agreement required Union Mutual to pay Solomon $50,000, followed by monthly payments of $6,507.97 for ten years and a lump-sum payment of $450,000, payable January 1, 1996. Union Mutual also agreed to pay Solomon's attorney's fees, which totaled $344,250. Union Mutual was required by the settlement agreement to purchase a commercial annuity contract from Transamerica Annuity Service Corporation to ensure that the agreement's payment schedule was complied with. Union Mutual was named as the payee under the Transamerica annuity contract; Solomon is not a party to that annuity contract. 3 Solomon filed a Chapter 7 bankruptcy petition in December 1993. Solomon listed the settlement agreement as property exempt from his bankruptcy estate as an annuity under Fla.Stat. § 222.14 (West 1989), which provides, in relevant part: 4 the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor ... of any creditor of the person who is the beneficiary of such annuity contract.... 5 Guardian Life, a creditor, objected to the claimed exemption. After a hearing, the bankruptcy court sustained the objection, concluding that the "Florida exemption applies only to annuity contracts issued to citizens or residents of the state and of which the debtor is the beneficiary." Solomon, 166 B.R. at 999. The bankruptcy court held that Solomon's settlement agreement was not exempt, both because of its payment structure and because Solomon had no interest in the Transamerica annuity. Id. 6 The district court affirmed in part and reversed in part. The court agreed with the bankruptcy court that the payment earmarked as attorney's fees by the agreement did not qualify under section 222.14 for an exemption. But the court concluded that, under the broad definition of "annuity" provided by the Florida Supreme Court, see LeCroy v. McCollam (In re McCollam ), 612 So.2d 572 (Fla.1993), answering question certified in 955 F.2d 678 (11th Cir.1992), answer conformed to, 986 F.2d 436 (11th Cir.1993), it was bound to hold that the payments other than the attorney's fees required by the settlement agreement constituted an annuity contract, exempt under section 222.14 from Solomon's bankruptcy estate. Guardian Life, 186 B.R. at 538. Guardian Life appeals the district court's order to the extent that it reversed the bankruptcy court. DISCUSSION 7 On appeal, we are presented with the same issue addressed by the district court: whether Solomon's settlement agreement with Union Mutual constitutes an annuity contract within the meaning of Fla.Stat. § 222.14, so that it is exempt from Solomon's bankruptcy estate. We review de novo determinations of law, whether made by the bankruptcy court or the district court. Reider v. Federal Deposit Ins. Corp. (In re Reider ), 31 F.3d 1102, 1104 (11th Cir.1994) (citing Equitable Life Assurance Soc. v. Sublett (In re Sublett ), 895 F.2d 1381 (11th Cir.1990)). 8 Guardian Life contends that the district court erred in concluding that the settlement agreement is an annuity contract exempt from Solomon's bankruptcy estate.1 Guardian Life asserts that the agreement is not exempt because it is not an annuity contract at all. Guardian Life alleges that neither Solomon nor Union Mutual intended for the agreement to be considered an annuity contract, and it asserts that, except for the monthly payments, none of the agreement's other provisions bear any similarity to an annuity. By contrast, Solomon urges that we affirm the district court, arguing that the court correctly relied upon McCollam 's broad definition of "annuity" to conclude that the settlement agreement qualifies for the section 222.14 exemption. 9 We conclude that the agreement between Union Mutual and Solomon does not qualify for the exemption provided by section 222.14. We recognize that the Florida Supreme Court has broadly defined section 222.14 to include "all annuity contracts," stating that "had the legislature intended to limit the exemption to particular annuity contracts, it would have included such restrictive language [in the statute]." McCollam, 986 F.2d at 437-38 (quoting Florida Supreme Court's opinion with regard to question certified). But the statute does not shield all debts or "accounts receivable" structured to resemble annuities from a debtor's bankruptcy estate. We read McCollam to require the existence of an actual annuity contract before a series of payments may be exempt under section 222.14. Accord In re Conner, 172 B.R. 119, 121 (Bankr.M.D.Fla.1994) (stating that "[i]f all that is required to establish an annuity contract is a stream of payments over time, all installment contracts would qualify as an annuity and that is clearly not what the McCollam decision requires"). 10 The district court concluded that, because McCollam 's broad definition of "annuity" includes "debts structured as annuities," "the settlement agreement in this case constitutes proceeds of an annuity contract exempt under Fla.Stat. § 222.14." Solomon, 186 B.R. at 538. The district court read McCollam too broadly; the fact that Solomon received a series of payments under the settlement agreement does not necessarily transform the agreement into an annuity contract exempted by section 222.14. To qualify for the exemption, the parties to the agreement must have intended to create an annuity contract. See Conner, 172 B.R. at 121; In re Dillon, 166 B.R. 766, 769 (Bankr.S.D.Fla.1994). 11 The language of the agreement between Solomon and Union Mutual reveals that the parties did not intend to create such a contract. See Conner, 172 B.R. at 121 (agreement must be identified as an annuity within four corners of the contract); Dillon, 166 B.R. at 768 ("Had the Debtor intended the settlement payments to be paid under an annuity contract, he had the ability to create such a document."); Pizzi, 153 B.R. at 362 (lottery winnings never termed proceeds of an annuity; winner never called "beneficiary" or "payee"). The settlement agreement wholly concerns itself with resolving Solomon's 1984 claims against Union Mutual; it is a garden variety release of liability. The district court therefore erred by concluding that section 222.14 applies to exempt the payments made under the agreement from Solomon's bankruptcy estate. CONCLUSION 12 We reverse the district court's order overruling Guardian Life's objection to the claimed exemption and remand to the district court for further proceedings consistent with this opinion. 13 REVERSED and REMANDED. Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation 1 Guardian Life also argues that the Transamerica annuity purchased by Union Mutual to ensure adequate funding of the agreement does not qualify for an exemption under § 222.14. But Solomon concedes that the Transamerica annuity cannot be the basis for an exemption, because he has never had a legal or equitable interest in that annuity contract. See In re Pizzi, 153 B.R. 357, 360-61 (Bankr.S.D.Fla.1993) (construing § 222.14 to require that debtor be the beneficiary of annuity contract in question in order to qualify for exemption). In this appeal, then, we address only the character of the settlement agreement between Solomon and Union Mutual Guardian Life contends that, even if we conclude that the monthly payments constitute an exempt	{ "pile_set_name": "FreeLaw" }
80 F.Supp. 683 (1948) LATVIAN STATE CARGO & PASSENGER S. S. LINE v. CLARK. Civ. No. 2610-48. United States District Court District of Columbia. November 4, 1948. Horace S. Whitman, of Washington, D. C., and Charles Recht, of New York City, for plaintiff. David L. Bazelon, George B. Searls and Victor R. Taylor, all of Washington, D. C., for defendant. PINE, District Judge. This is an action under Section 9(a) of the Trading with the Enemy Act, as amended, 50 U.S.C.A.Appendix, § 9(a). Defendant has moved for a summary judgment. The following facts are undisputed: In June 1940 the armies of Soviet Russia invaded and occupied the territory of the then Republic of Latvia. Thereafter a soviet form of government was set up in Latvia, and the new government incorporated Latvia into the Union of Soviet Socialist Republics. In the same year the soviet government of Latvia issued decrees "nationalizing" Latvian shipping enterprises. These decrees included three ships then in private ownership, and purportedly vested title thereto in the plaintiff, a corporate entity organized under the laws of the U.S. S.R. At the time of these decrees, none of these ships was in Latvian waters, and there was no physical seizure of them by the government of Latvia. In 1942 all of them were sunk. They were insured, and the proceeds of the insurance, together with certain accrued earnings, were turned over to court-appointed trustees in New York. In 1943 Latvia was occupied by the 684 German armies, and defendant's predecessor in office, by vesting orders, seized these funds. Plaintiff has claimed them by virtue of title to these ships under the "nationalization" decrees above mentioned. Defendant has dismissed its claim, and this action has ensued. The certificates of the Secretary of State, made a part of this record, disclose that the United States does not recognize the Soviet regime in Latvia, nor the incorporation of that country into the Union of Soviet Socialist Republics, nor the legality of any of the acts or decrees of that regime. It is defendant's contention that the courts of the United States may not give effect to the decrees of a regime in Latvia which has not been recognized by the United States, and that plaintiff therefore has no title to the funds in controversy. Questions of the recognition or non-recognition of foreign governments are beyond the reach of the courts. They are committed exclusively to the political department of government, and the courts are bound by its decisions thereon. This rule is equally applicable to de jure or de facto recognition. Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 137, 138, 58 S.Ct. 785, 82 L.Ed. 1224. Lehigh Valley R. R. Co. v. State of Russia, 2 Cir., 21 F.2d 396. As a corollary of this principle, a court may not give effect to an act of an unrecognized government, for by so doing it would tacitly recognize the government, invade the domain of the political department, and weaken its position. It would therefore appear that this court may not sustain the plaintiff's title, which stems from an act of an unrecognized government, and being without a title which can be upheld by the courts, its claim to property based thereon must fall. But it is not necessary to depend solely on deduction, unsupported by legal authorities, in reaching a decision adverse to the plaintiff. As early as 1822, the Supreme Court had a similar question before it in the case of The Nueva Anna, 6 Wheat. 193, 5 L.Ed. 239. This was an appeal from the District Court of Louisiana, and involved cargoes of two Spanish ships condemned by "a pretended court of admiralty at Galveztown * * under the alleged authority of the Mexican Republic." The goods, after this proceeding, were brought into the port of New Orleans and libeled by the original Spanish owners in the District Court. That court decreed restitution to the original owners, and the captors appealed to the Supreme Court, which held that it "did not recognize the existence of any court of admiralty sitting at Galveztown * * * nor had the government of the United States hitherto acknowledged the existence of any Mexican republic or state at war with Spain; so that the court could not consider as legal, any acts done under the flag and commission of such republic or state." Passing to recent authority, the United States Court of Appeals for the 3d Circuit had the identical question before it in 1944 in The Maret, 145 F.2d 431, 442. In that case it was established that after the armies of the U.S.S.R. occupied Estonia in 1940 the Soviet Socialist Republic of Estonia was created. This Government promulgated decrees purporting to nationalize ships of Estonian registry, and by proclamation The S. S. Maret, one of such ships, was purportedly transferred to the Estonian State Steamship Line organized by the People's Commissar of the Maritime Fleet. The Soviet Socialist Republic of Estonia had not been recognized by the United States. The Court, in an opinion by Judge Biggs, held, on the question of the ownership of The Maret, that "When the fact of nonrecognition of a foreign sovereign and nonrecognition of its decrees by our Executive is demonstrated * * , the courts of this country may not examine the effect of decrees of the unrecognized foreign sovereign and determine rights in property, subject to the jurisdiction of the examining court, upon the basis of those decrees." The court referred to and relied heavily upon the doctrine announced by the Supreme Court in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796, decided in 1942. That case is the converse of the instant case, but the principle announced therein would appear to be conclusive of the question here involved. In the Pink case the executive had decided, as 685 part of the settlement with Russia in 1933, to permit the application of the Russian nationalization decrees to property located in New York. That determination with respect to these decrees was expressed in the recognition of the soviet government as the government of Russia and the concurrent Litvinov Assignment. The Supreme Court, speaking through Mr. Justice Douglas, held that that determination was binding on the Court, and that the power of the executive in the field of foreign relations is not limited to the "recognition" of foreign governments as manifested by the receiving or sending of diplomatic representatives, but includes the power "to determine the public policy of the United States with respect to the Russian nationalization decrees * * *. We would usurp the executive function if we held that that decision was not final and conclusive in the courts." 315 U.S. at pages 229, 230, 62 S.Ct. at page 565. The contention of plaintiff that it is entitled to "just compensation under the Fifth Amendment to the Constitution," is untenable, by reason of the fact that this is an action to recover property seized by the Alien Property Custodian and is not a suit for just compensation. Pflueger v. United States, 73 App.D.C. 364, 121 F.2d 732, certiorari denied, 314 U.S. 617, 62 S.Ct. 98, 86 L.Ed 497. Becker Steel Co. v. Cummings, 296 U.S. 74, 56 S.Ct. 15, 80 L.Ed. 54, cited by the plaintiff, is not to the contrary. Its contention that the ships in question, being ships at sea, were constructively part of the territory of Latvia and subject to its decrees, is not relevant to this case, as the doctrine referred to "partakes more of the characteristics of personal than of territorial sovereignty." Cunard S. S. Co. v. Mellon, 262 U.S. 100, 123, 43 S.Ct. 504, 507, 67 L.Ed. 894, 27 A.L.R. 1306. Moreover, these contentions overlook the threshhold barrier that plaintiff has no title recognizable by the courts to support its claim. The cases cited by plaintiff in respect of the treatment by the courts after the Civil War to acts of the Confederacy and the Confederate States are not apposite. The motion of defendant for summary judgment will therefore be granted. Counsel will submit judgment in accordance herewith.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6947 HIRAM LOPEZ, Plaintiff - Appellant, v. WARDEN TIMOTHY S. STEWART; LIEUTENANT MARK LATHROP, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:15-cv-02747-RDB) Submitted: December 15, 2016 Decided: December 20, 2016 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Hiram Lopez, Appellant Pro Se. Rebecca Ann Koch, Assistant United States Attorney, Katherine Anne Day, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hiram Lopez appeals the district court’s order denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Lopez v. Stewart, No. 1:15-cv-02747-RDB (D. Md. filed June 14, 2016; entered June 15, 2016). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
574 F.3d 1250 (2009) Scott PHELAN, Plaintiff-Appellee, v. WYOMING ASSOCIATED BUILDERS, Defendant-Appellant. No. 08-8055. United States Court of Appeals, Tenth Circuit. July 31, 2009. 1251 Timothy M. Stubson, Brown, Drew & Massey, LLP, Casper, WY, for Defendant-Appellant. Jessica Rutzick, Rutzick Law Office, Jackson, WY, for Plaintiff-Appellee. Before BRISCOE, BRORBY and McCONNELL, Circuit Judges. McCONNELL, Circuit Judge. Scott Phelan, recently diagnosed with bone cancer at age twenty-six, was covered by the healthcare plan of his former employer, which in turn was a member of Wyoming Associated Builders, Inc. ("WAB"), a trade organization that maintained a trust to provide health insurance benefits for its members' employees. Just as Mr. Phelan was about to submit an unusually large claim relating to his cancer treatment, WAB terminated his employer's membership in the insurance trust, purportedly because that employer had submitted a payment that was both late and in the wrong form. Mr. Phelan was denied health benefits as a result. He brought a number of claims against both WAB and his employer, one of which alleged that WAB had breached its fiduciary duty, thus entitling him to equitable relief under 29 U.S.C. § 1132(a)(3) of the Employee Retirement Income Security Act (ERISA). The district court found that WAB's stated reasons for terminating Mr. Phelan's employer were a pretext for avoiding payment on Mr. Phelan's pending claim and that the termination was arbitrary and capricious. It ordered retroactive reinstatement of his employer's health care coverage as a remedy. WAB now appeals, arguing that retroactive reinstatement is a legal remedy (and thus impermissible under § 1132(a)(3)), and also that the termination was not arbitrary and capricious. We disagree on both grounds and affirm the district court. I. BACKGROUND The Lock Shop of Cheyenne operates a locksmith business in Cheyenne, Wyoming. It provides health insurance for its employees through Wyoming Associated 1252 Builders, Inc., a non-profit trade organization that provides more than fifty other businesses with health insurance for their employees. WAB, in turn, provides this coverage through the Wyoming Associated Builders Insurance Trust ("WABIT"). WABIT is administered by a board of trustees who are authorized to construe the provisions of the trust agreement, promulgate rules, and delegate ministerial powers and duties. The WABIT board hired Josh Carnahan to serve as plan administrator; Mr. Carnahan then delegated the day-to-day management of the trust to Benefit Administrators, Inc., a company owned and operated by Lynn Johnson. Plan participants were required to pay premiums on the first day of each month. In June 2006, WABIT promulgated a late payment policy for the first time. The policy provided for both late payment penalties and eventual termination. While premiums were still due on the first of each month, "Premiums not received (postmarked) by the 10th of each month will have a 25% of premium due, up to a maximum of $500 penalty applied. The Trust Board also recommends the use of ACH [Automated Clearing House] transfers for premium payment, which is available from Benefit Administrators." Dist. Op. 8-9 (formatting omitted). As for termination, "If premiums are not paid by the 15th of the month, the Plan Administrator is notified and if premiums are still not received by the 20th of the month, the group is recommended by the Plan Administrator for termination by the Trust Board, with the termination effective retroactive back to the 1 st of the month." Id. at 9 (formatting omitted). The Lock Shop ran into financial difficulties in 2006 and struggled to make its payments on time. In June 2006, its premium check bounced. So did its October payment. On October 30, Lynn Johnson mailed the Lock Shop a letter informing it that its October payment had been returned for insufficient funds and requesting repayment by either money order or cashier's check. The Lock Shop made its October payment on November 6. The Lock Shop was not the only one in bad financial shape that year. In the summer of 2006 a consultant had informed the WAB participants that use of the plan was higher than expected. In the past year, WABIT had spent almost $4.5 million paying out claims, but it had collected only a bit over $3.3 million in premiums. Two claims alone totaled over $1.2 million. Although the Trust carried stop-loss insurance that would pay claims over $75,000, the existence of such claims would have ramifications for renewal of the stop-loss policy. Terminating the Lock Shop's coverage would therefore eliminate Mr. Phelan's very expensive claim at a time when the Trust badly needed it. In December, the Lock Shop was again behind in its payments. Ms. Johnson called the Lock Shop on December 13 and notified it that if its premium payment was not posted to the account by December 20, the Lock Shop would be terminated. Ms. Johnson also told the Lock Shop that the payment should be made by cashier's check or ACH. After scrambling to raise funds, Tami Austin of the Lock Shop mailed a personal check to WAB's bank, Hilltop National Bank, on the afternoon of December 19. She sent the check by Federal Express, which assured her that the check would be delivered by the next morning. Unfortunately for the Lock Shop and its employees, Mother Nature intervened: a severe snowstorm hit Cheyenne that night and delayed all deliveries. The check arrived at Hilltop National Bank at 3:15 p.m. on December 20, but the snowstorm had forced the Cheyenne banks to close at noon. Thus, while Hilltop National Bank had physically received the *1253 check, it was unable to post the payment into WABIT's account until the next day. When Ms. Johnson and Mr. Carnahan had spoken about Lock Shop the night before payment was due, Mr. Carnahan told Ms. Johnson to terminate Lock Shop if the payment was not received the next day. Benefit Administrators checked the WABIT bank account on the afternoon of December 20 and saw that no payment had posted, so it contacted Mr. Carnahan. He immediately took action to terminate Lock Shop from the plan. As soon as the Lock Shop learned of its termination it appealed to the WABIT board, explaining that the payment did indeed make it to the bank by the deadline, but that the snowstorm had unexpectedly prevented it from making it in time to be posted on that day. The trustees nevertheless denied the appeal on the grounds that the Lock Shop's payment was late and, even if it had been timely, was made by personal check rather than cashier's check or ACH. As noted above, the Lock Shop's termination did not occur in a vacuum. WABIT was facing some serious financial liabilities, and the elimination of Mr. Phelan's claim would provide much-needed financial relief. Both Ms. Johnson and Mr. Carnahan claimed not to have been aware of Mr. Phelan's pending claim, but the district court found that this strained credulity. Ms. Johnson had spoken to Mr. Phelan's father on November 30, and on December 8just days before the decision was made to terminate Lock ShopMr. Phelan's father had sent Benefit Administrators notification by certified mail that his son had been undergoing chemotherapy and radiation therapy since October and would soon have to undergo surgery to remove a cancerous tumor. After a bench trial, the court found that it was this desire to avoid paying Mr. Phelan's expensive claim that truly motivated the Lock Shop's termination. While WAB contended that the termination was a reasonable application of its administrative policies and was necessary to ensure prompt and timely payments to the Trust, the district court found that, in truth, "the termination was prompted by a desire to avoid further financial risk to the Trust by the payment of [Mr. Phelan's] cancer expenses," Dist. Op. 30, and that "Wyoming Associated Builders' actions were a deliberate attempt to thwart the Lock Shop's payment of its premium in order to terminate the Lock Shop's ability to provide coverage for its employees." Id. at 29. The district court concluded that two specific interpretations of the policy by the benefits administrator were arbitrary and capricious in the sense of being a pretext for WAB's true motivation of eliminating an expensive cancer claim: interpreting the word "received" in WAB's late payment policies as requiring that the payment be actually "posted" to the bank account, even in the midst of a huge snowstorm, and requiring that payment be made by cashier's check or ACH rather than personal check. Id. at 30-31. As a remedy, the court ordered WAB to "reinstate the Lock Shop's group coverage for the month of December, 2006." Id. at 35. At the same time, Lock Shop would have to pay WAB the December premium that would have been due had WAB not terminated it from the plan. Id. at 36. Doing so would effectively restore Mr. Phelan's health benefits for the month of December 2006. WAB now appeals that decision on two principal grounds. First, it argues that a retroactive reinstatement of benefits is in fact a legal remedy masquerading as an equitable remedy, and thus beyond the authority of the court under § 1132(a)(3) of ERISA. Second, WAB argues that	{ "pile_set_name": "FreeLaw" }
276 U.S. 6 (1928) IN RE GILBERT. Supreme Court of United States. Argued January 16, 1928. Decided January 23, 1928. ON RULE TO SHOW CAUSE. Mr. James M. Beck for respondent. 7 MR. CHIEF JUSTICE TAFT announced the opinion of the Court. Under our order of November 21st, 1927, the clerk issued a rule to the respondent, Abraham S. Gilbert, of New York City, a member of this bar, which directed That he make written report to this Court showing what fees or allowances have been paid to him (also when and by whom paid) for services as master in the several causes reviewed here during the October term, 1921, and reported in 259 U.S. 101, under the following titles: Newton, as Attorney General of the State of New York, et al., v. Consolidated Gas Company of New York; Same v. New York & Queens Gas Company; Same v. Central Union Gas Company; Same v. Northern Union Gas Company; Same v. New York Mutual Gas Light Company; Same v. Standard Gas Light Company of the City of New York; Same v. New Amsterdam Gas Company; Same v. East River Gas Company of Long Island City. That he likewise report whether he has returned or repaid any portion of the fees or allowances received by him as such master, with dates and names of the parties. That if he has received fees or allowances as master in any of the specified causes exceeding the maximum amount held by us to be permissible, and has not returned or repaid the excess, then he shall show cause why his name ought not to be stricken from the roll of attorneys permitted to practice here and he be punished for contempt or otherwise dealt with as the circumstances may require. On the return day, January 16, 1928, Gilbert presented himself, filed a written report, and was heard through counsel. 8 He asserts that he received as fees for services as master in the eight above-mentioned causes a total of $118,000; he sets out their several amounts and shows by whom and when they were paid. He avers that no one of the Gas Companies which paid these fees has ever questioned the amount or asked return of any portion, and says that he believes it was proper for him to retain them, notwithstanding they greatly exceeded what we declared permissible. But, he further says, that if this Court, after viewing his response, should conclude that he is under legal or moral obligation to return any part of them, he is willing so to do. In December, 1921, the District Court for the Southern District of New York made allowances to respondent for services as master in each of the above-mentioned causes and directed that they be paid by the complaining corporations respectively and thereafter taxed as costs against the defendants, the Attorney General of New York and others. In obedience to such orders and before the time for appeal expired, these were paid, as follows: By Consolidated Gas Co., Dec. 13, 1921, $57,500.00; By N.Y. & Queens Gas Co., Dec. 16, 1921, $12,500.00; By Central Union Gas Co., Dec. 16, 1921, $12,500.00; By Northern Union Gas Co., Dec. 13, 1921, $7,500.00; By N.Y. Mutual Gas Light Co., Dec. 16, 1921, $11,500.00; By Standard Gas Light Co., Jan. 13, 1922, $7,500.00; By New Amsterdam Gas Co., Jan. 13, 1922, $4,500.00; By East River Gas Co., Jan. 13, 1922, $4,500.00. The Attorney General and other defendants insisted that the allowances were excessive. The District Court overruled their objections; the matter came here and was decided May 15, 1922, 259 U.S. 101. We held that in the Consolidated Gas Company's case twice too much had been allowed and in the other causes three times too much that the total compensation should not exceed $49,250. And further, that in making these awards the District Court abused its judicial discretion. Accordingly, 9 we reversed the challenged decrees and remanded the causes with instructions to fix respondent's compensation within the following limitations: "In the cause wherein the Consolidated Gas Company is appellee here (No. 750) not exceeding $28,750 one-half of the amount heretofore allowed; in each of the other seven causes, Nos. 751, 752, 753, 832, 833, 844 and 845, not exceeding one-third of the amount heretofore allowed therein; and in the eight cases allowances totaling not more than $49,250." We also directed "such further action in conformity with this opinion as may be necessary." Upon receipt of the mandates, issued here June 19, 1922, the District Court ordered that the master's fees to the extent of the maximum permitted by us should be taxed against the several defendants as costs. Respondent made no effort to secure any further orders or direction by the District Court or this Court. More than a year thereafter December, 1923 apparently moved by published criticisms, respondent instituted a proceeding against the Consolidated Gas Company in the Supreme Court of New York under Sec. 473, New York Civil Practice Act, wherein he sought and obtained a declaratory judgment reciting that that Company had no valid claim against him for return of any part of the $57,500 which it had paid. This proceeding was ill-advised, or worse, and the pronouncement therein cannot aid him here. The state court had no power to determine the matter now before us. Upon announcement of our opinion, May 15, 1922, it became the imperative duty of respondent immediately to return the fees received by him so far as they exceeded what we declared permissible. It is now his duty, without further delay, to return this excess with interest thereon at 6 per centum, from May 15, 1922. When respondent accepted appointment as master he assumed the duties and obligations of a judicial officer. He could not rightfully accept or retain anything as compensation 10 unless sanctioned by proper order of court. Reception then or now of a gratuity from any party would be indefensible, and whether or no the corporations which paid him by direction of the court are satisfied with the result is now unimportant. He has long been an attorney and counsellor authorized to practice at this bar under the sanction of an oath to demean himself "uprightly, and according to law." Notwithstanding the adjudication here that excessive fees had been allowed by orders granted in abuse of judicial discretion, he has retained them for more than five years. He knew that he had got unearned money by improper orders of court, but he decided to keep it. Such conduct is far from "upright and according to law" within the fair intendment of those terms. Further action will be postponed until Monday, February 20th, 1928. The respondent will present himself at that time and report in writing concerning efforts made to comply with his obligations.	{ "pile_set_name": "FreeLaw" }
541 U.S. 1006 HOLLEYv.JOHNSON, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS. No. 03-7059. Supreme Court of United States. April 19, 2004. 1 540 U. S. 1116. Petitions for rehearing denied.	{ "pile_set_name": "FreeLaw" }
951 F.2d 1324 293 U.S.App.D.C. 57 NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.SECRETARY OF LABOR, on behalf of David THOMAS and GeorgeIsaacs, Petitioner,v.AMPAK MINING, INC., Geary Burns, and Peggy A. Kretzer, Respondents. No. 91-1452. United States Court of Appeals, District of Columbia Circuit. Dec. 6, 1991. Before HARRY T. EDWARDS, RUTH BADER GINSBURG and SENTELLE, Circuit Judges. ORDER PER CURIAM. 1 Upon consideration of David Thomas and George Isaacs' motion to intervene and the Secretary of Labor's petition for enforcement on behalf of Thomas and Isaacs, and no responses thereto having been received, it is 2 ORDERED that the motion to intervene be granted. It is 3 FURTHER ORDERED that the petition for enforcement be granted. The orders of the Federal Mine Safety and Health Review Commission in the above-entitled case requiring Ampak Mining, Inc., Geary Burns, and Peggy Kretzer to pay David Thomas and George Isaacs $6,250 and $6,080, respectively, plus interest and attorneys' fees shall be and are hereby enforced. 4 The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir. Rule 15.	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0648n.06 No. 10-3520 FILED Aug 31, 2011 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk VIVIAN SKOVGARD; PERCY GROS, JR., ) ) ON APPEAL FROM THE Plaintiffs-Appellants, ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN v. ) DISTRICT OF OHO ) JEFF PEDRO, P.O.; MIKE MANNIX, P.O.; CITY OF ) OPINION KETTERING, ) ) Defendants-Appellees. ) __________________________________________ ) Before: SUTTON and WHITE, Circuit Judges; STAFFORD, District Judge.* HELENE N. WHITE, Circuit Judge. Plaintiffs-Appellants Vivian Skovgard (Skovgard) and Percy Gros, Jr. (Gros) (collectively, plaintiffs) are long-time anti-abortion advocates, whose activities outside of the Women’s Med + Center (the Center), an abortion clinic in Kettering, Ohio, include counseling, praying, picketing, and distributing literature. On March 2, 2007, Alex Kaminski (Kaminski), the Center’s security guard, called the police to report that plaintiffs were trespassing on the Center’s property. Officers Jeff Pedro (Pedro) and Mike Mannix (Mannix) responded to the call and ultimately arrested plaintiffs. Charges against the plaintiffs were later dismissed when it was determined that they had been on the public right-of-way adjacent to the Center. Plaintiffs then filed actions against the officers, Kaminski, the company that employed * The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida, sitting by designation. 1 No. 10-3520 Skovgard v. Pedro Kaminski, and the City of Kettering (the City). Pedro, Mannix, and the City (collectively, defendants) sought summary judgment on all of plaintiffs’ claims, which the district court granted. Subsequently, plaintiffs voluntarily dismissed their claims against the remaining defendants and appealed the district court’s summary judgment decision. We AFFIRM. I. A. The district court provided a comprehensive and fair account of the factual background: A. Background on the Center, Kaminski, Skovgard and Gros The Center[2] is surrounded on three sides by roadways. To the south is Stroop Road, which presently has a sidewalk, but has not always had such. To the west is Vineyard Avenue, which has had a sidewalk at all times relevant to this litigation. To the north is Wheatland Avenue (the location of the incidents in question in this litigation), which does not have a sidewalk. In the grassy area along Wheatland Avenue, there is a fire hydrant. Pedestrians sometimes walk on that grassy area to avoid traffic on the street. 1st Choice [Security, Inc. (1st Choice)] provided security services for the Center, and, assigned Alex Kaminski as a security guard to the Center, in January 2007. The Center (which is not a party in this litigation) never advised Kaminski of the extent of its property or the existence of a public right-of-way along the northern portion of the property that abuts Wheatland Avenue. Plaintiff Vivian Skovgard has been praying, protesting and attempting to counsel women outside of the Center four days a week for approximately six hours a day, since 1989. In so doing, she sometimes walks along the grass on Wheatland Avenue, staying within three to four feet of the roadway. Skovgard was arrested numerous times, between 1989 and 1995, in various parts of the country (including Alabama, Kansas and Texas) and convicted of criminal trespass in some instances, as a result of blocking access to various abortion clinics. However, her only confrontation with police at the. . .Center was in “two thousand something” when she was either detained or arrested (and then [immediately] released) for trespassing 2 Plaintiffs also refer to the Center as the “Haskell Clinic.” 2 No. 10-3520 Skovgard v. Pedro when she walked on the Center’s driveway to hand literature to a person leaving the facility in a car. Plaintiff Percy Gros has been regularly protesting and praying at the Center since 1987. In so doing, he walked in the grass along Stroop Road (before a sidewalk was added) and has also walked in the grass along Wheatland Avenue “many, many times[.]” When walking along Wheatland Avenue, Gros always stays within a couple of feet of the roadway. During the twenty year period that he has been present at the Center, the police have occasionally been to the Center while Gros was there, but had never indicated to Gros that he was not allowed to walk on the grass along Wheatland Avenue, prior to the incident on March 2, 2007. Gros was arrested twice in 1987, once at the Center and once at another abortion clinic in Dayton, Ohio, and convicted both times for disturbing the peace. B. Incident at Center on March 2, 2007 On March 2, 2007, Skovgard arrived at the Center around 9:30 a.m. and spent most of her time on the sidewalk along Vineyard Avenue, prior to Gros’s arrival. When Gros arrived, he walked in the grassy area along Wheatland Avenue, staying within three feet of the road.[3] Kaminski soon approached Gros with a threat to call the police if Gros did not get off the grass. When Gros ignored him, Kaminski leaned into Gros, making physical contact with him, and then accused Gros of assaulting him. Gros reacted by continuing to walk as before, while Kaminski went into the Center to call the police department to report that Gros and Skovgard were trespassing and to retrieve a video camera. Skovgard then joined Gros, walking along the grassy area on Wheatland Avenue. Officers Pedro and Mannix arrived soon thereafter and initially spoke with Kaminski. Kaminski advised the officers that he had asked Gros and Skovgard to leave the Center’s property on the grassy area on the north side of the clinic, but they had refused. Kaminski also informed them that the Center wanted Gros and Skovgard off the grass and back onto the sidewalk to conduct their protests. According to Pedro, at this time Gros was fifteen feet off of Wheatland Avenue, while, at his deposition, Mannix testified that Gros and Skovgard were approximately ten feet into the grassy area when he arrived. (This is in contradiction to the testimony of Gros and Skovgard who stated that they always stay within three to four 3 Gros had made the decision to walk along Wheatland Avenue on this day because Skovgard previously told Gros that Kaminski had told her that she was not allowed to walk on the grass and Gros wanted to “basically make a statement to say [Skovgard] is not the only person that is protesting here . . . . [b]y leaving his footprints [in the snow along Wheatland Avenue.]” 3 No. 10-3520 Skovgard v. Pedro feet (or a couple of feet) of the roadway.) The officers believed that the edge of the roadway marked the Center’s property line.4 The officers several times told Gros and Skovgard that they needed to get off the grass and encouraged them to continue their protests on the sidewalk, but Gros and Skovgard continued walking in the grass. The officers then stated that they would arrest Gros and Skovgard if they did not get off the grass, at which time both Gros and Skovgard told the officers that they did not have to get off the grass because it was public right-of-way. Gros also mentioned that they had been protesting on that property for over twenty years and had never been harassed by the police before. Nevertheless, the officers handcuffed and arrested Gros and Skovgard for criminal trespass, transporting them to the police station and detaining them in the City jail. Ultimately, the charges were dismissed against Gros and Skovgard when it was determined that they were protesting within the public right-of-way. The public right-of-way on Wheatland Avenue extends 25 feet from the centerline of	{ "pile_set_name": "FreeLaw" }
81 So.3d 432 (2012) RICHARDSON v. STATE. No. 4D10-1807. District Court of Appeal of Florida, Fourth District. March 23, 2012. DECISION WITHOUT PUBLISHED OPINION Affirmed.	{ "pile_set_name": "FreeLaw" }
220 Md. 39 (1959) 150 A.2d 900 GOLDSTEIN v. STATE [No. 217, September Term, 1958.] Court of Appeals of Maryland. Decided May 8, 1959. The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ. Max Sokol, with whom was Emanuel H. Horn on the brief, for appellant. Clayton A. Dietrich, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, J. Harold Grady, State's Attorney for Baltimore City, and John A. O'Connor, Jr., Assistant State's Attorney for Baltimore City, on the brief, for appellee. HENDERSON, J., delivered the opinion of the Court. This appeal is from a judgment and sentence of Hyman Goldstein, commanding officer of the Enforcement Unit, Rackets Division of the Baltimore City Police Department, to serve three years in the Maryland House of Correction after his conviction by a jury on a charge of suborning Herbert Meekins and Charles Richter, police officers under his command, to perjure themselves as prosecuting witnesses in the lottery case of State v. Taylor, tried June 28, 1957, in the Criminal Court of Baltimore. The appellant does not challenge the sufficiency of the evidence to support the conviction, but relies upon the four alleged errors in the rulings of the trial court: (1) that the court improperly limited the scope of examination of prospective jurors upon their voir dire, (2) that the court improperly denied a motion for continuance, (3) that the court erred in its instructions to the jury, particularly on burden of proof, and (4) that the court improperly overruled a challenge to the array based on a handbook furnished to the jurors before the trial. 42 To understand the contentions made, it is necessary to relate some of the background of the case. In September, 1957, certain charges of misconduct on the part of undisclosed members of the Rackets Division were made public by the Criminal Justice Commission, in connection with an alleged prostitute. During the ensuing investigation, a sergeant in the Division committed suicide. Certain witnesses called by the Grand Jury claimed privilege against self-incrimination. Goldstein and his superior officer, Forrester, were suspended from duty; and indictments were returned against them for malfeasance in office and maintaining a disorderly house, but never brought to trial. The present indictment against them was filed on November 14, 1957, and assigned for trial in May, 1958. Early in 1958, and before the trial, the cases of the persons tried on the testimony of Richter and Meekins were quashed. The first trial of these cases had resulted in a mistrial. All of these matters received wide publicity. Both defendants pleaded not guilty and elected a jury trial, and the case went to trial on May 12, 1958. They filed a challenge to the array on the ground that a certain handbook had been furnished the prospective jurors, which was claimed to be misleading and prejudicial. They also submitted a list of some thirty-four questions to be propounded to the prospective jurors on their voir dire, which the court declined to propound. Instead, the court framed six questions of its own. On the second day of the trial, the court was informed by the bailiff that several of the jurors had received telephone calls from persons unknown to them, with reference to the pending case. The court sent for all counsel, and in their presence and in the presence of the defendants, interviewed each of the jurors and alternates. Thereupon the court declared a mistrial, with the following statement: "A dastardly and criminal attempt has been made to influence the jury in this case. I am convinced that this criminal attempt was made without the knowledge in any way of the State's Attorney, counsel for the defendants or by the defendants. "I am asking the State's Attorney immediately to undertake a vigorous investigation of this criminal act, and to report to me the results of the investigation. I am sure that 43 counsel for the defendants and the defendants will cooperate to the best of their ability with the State's Attorney's office in this investigation." The case was again set for trial on June 9, 1958. At the beginning of the trial, after the defendants had renewed their previous motions, which were denied, the State's Attorney, in colloquy with the court, stated that his investigation had not disclosed the identity of the persons who had attempted to tamper with the previous jury. He pointed out, however, that it was not necessarily true that the tampering had been "done by persons desiring to harm the defendants * * * the act may have been aimed to render some assistance to the defendants." The court stated that it would frame an additional question on the voir dire relating to the mistrial, and would repeat to the jury the court's statement made in declaring the mistrial, which had received wide publicity, and that he would tell the jury that the State's Attorney's investigation was still continuing. Counsel for the defendants objected to going to trial and moved that "the case be continued until after the investigation is completed." The court denied the motion. As the court had indicated, it framed an additional question to the jurors on their voir dire, reciting the previous action taken, and asking: "Have you formed or expressed any opinion about the mistrial or anything in connection therewith, based on any statement or report from any source whatsoever, which would prevent you from rendering a fair and impartial verdict based solely on the law and the evidence in the case?" It also told the jury: "You are not to speculate as to the reasons for that mistrial or anything in connection with it. That is in no sense evidence in this case. It has, however, had one unfortunate effect. I have determined that it is advisable and necessary for the proper administration of justice and to protect you from any possible harassment that you be sequestered for the duration of this trial * * . This step * * means that at all times when you are not here in the courtroom or upstairs in your jury room, * * * you will be in a hotel where all your reasonable wants will be attended to, of course, at public expense. This step is taken by me 44 on my own initiative and my own responsibility, not at the request of either counsel for the defense * ." At the conclusion of the case the jury found both defendants guilty. They filed motions for new trial, which were granted by the Supreme Bench as to Forrester, denied as to Goldstein. The trial court then imposed the sentence and entered the judgment from which the appeal comes here. We think it unnecessary to quote verbatim the questions framed and propounded by the court to the prospective jurors on their voir dire. In essence, the questions were: Whether any of the jurors were related by blood or marriage to any of the five persons named in the indictment; whether they had such bias, prejudice or opinion as to prevent their giving the accused the benefit of the rules as to the presumption of innocence and burden of proof (stating them); whether they had formed or expressed any opinion of guilt or innocence from any statement or report from any news source or person, which would prevent them from rendering a fair and impartial verdict based solely on the law and evidence in the case; whether the fact that several other members of the Police Department had been charged with (but not convicted of) the commission of criminal offenses would prevent a fair and impartial verdict; whether they had any bias or prejudice for or against members of the Police Department; and whether they had any bias or prejudice against anyone because of race or religion. The questions proposed by the appellant's counsel sought to elicit answers as to whether any of the prospective jurors knew, or were related to, a large number of specific groups, including the Grand Jury, the Criminal Justice Commission, its secretary, the Rackets Division, named members of the State police, City police, Attorney General's office, and many other persons, some of whom testified in the case, and some remain unidentified. They also inquired whether the jurors had discussed the case with Alvin J.T. Zumbrun, secretary of the Criminal Justice Commission, or attended any gathering at which he spoke; whether they had had any personal experience with the Rackets Division, and whether any member of their families had ever been involved in a raid or 45 arrest by it. The thirty-fourth question was whether the fact that news agencies had "carried accounts which might indicate that these defendants were involved in other matters than that for which they are now to be placed on trial" would affect their judgment in the case. We have already summarized the additional question framed by the court in its instruction in regard to the mistrial. The Maryland cases on the scope of examination on voir dire were fully reviewed in Brown v. State, 220 Md. 29. It is established that the purpose of the inquiry is to ascertain the existence of cause for disqualification and for no other purpose. Mere acquaintance with an individual or group is an insufficient basis for challenging a prospective juror for cause. Whittemore v. State, 151 Md. 309, 316. This is true even as to a party to the litigation. State v. Welsh, 160 Md. 542, 544, or his attorney. Brown v. State, supra. See also McGee v. State, 219 Md. 53, 59. It is generally held that mere relationship to witnesses, other than parties, is not a disqualification. See Butler v. United States, 191 F.2d 433 (C.A., 4th Cir.); Roberson v. United States, 249 F.2d 737 (C.A., 5th Cir.); State v. Wideman, 51 So.2d 96 (La.); Wright v. Commonwealth, 160 S.W	{ "pile_set_name": "FreeLaw" }
983 F.2d 1052 Russell (Thomas W.)v.Hook (James), Hook & Hook NO. 92-3120 United States Court of Appeals,Third Circuit. Dec 17, 1992 1 Appeal From: W.D.Pa. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
Citation Nr: 1829326 Decision Date: 05/24/18 Archive Date: 06/12/18 DOCKET NO. 16-48 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected left foot hammer toe with heel spur and weak foot. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance prior to August 21, 2017. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to January 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2014 and March 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas and Huntington, West Virginia. In July 2017, the Board remanded the case for additional development and it now returns for further appellate review. In March 2018, the Agency of Original Jurisdiction (AOJ) increased the disability rating for left foot hammer toe with heel spur and weak foot toe to 10 percent, effective February 12, 2013, and granted entitlement to SMC based on the need for aid and attendance from August 21, 2017. As the AOJ did not assign the maximum disability rating possible for the entire period on appeal, the appeal remains before the Board and is recharacterized above. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C. F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Prior to the promulgation of the Board's decision on appeal, the Veteran withdrew his appeal as to the issues of entitlement to an initial rating in excess of 10 percent for left foot hammer toe with heel spur and weak foot and entitlement to special monthly compensation based on the need for regular aid and attendance prior to August 21, 2017. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for left foot hammer toe with heel spur and weak foot have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for the withdrawal of the appeal with respect to the issue of entitlement to entitlement to special monthly compensation based on the need for regular aid and attendance prior to August 21, 2017 have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Generally the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement (NOD) in writing, and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105, 38 C.F.R. § 21.200. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In the present case, according to correspondence received in March 2018, the Veteran indicated that he was withdrawing any issues contained in the recent Board remand order. Accordingly, there no longer remains any allegation of fact or law for appellate consideration regarding those claims and, consequently, the Board does not have jurisdiction to review the claims. They are, therefore, dismissed. ORDER The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for left foot hammer toe with heel spur and weak foot is dismissed. The appeal as to the issue of entitlement to special monthly compensation based on the need for regular aid and attendance prior to August 2017 is dismissed. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs	{ "pile_set_name": "FreeLaw" }
9 So.3d 577 (2007) JASON PICKETT v. STATE. No. CR-05-1638. Court of Criminal Appeals of Alabama. April 20, 2007. Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
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538 U.S. 1012 CORE COMMUNICATIONS, INC.v.FEDERAL COMMUNICATIONS COMMISSION ET AL. No. 02-980. Supreme Court of United States. May 5, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 2 C. A. D. C. Cir. Certiorari denied. Reported below: 288 F. 3d 429.	{ "pile_set_name": "FreeLaw" }
199 Cal.App.3d 945 (1988) 245 Cal. Rptr. 258 RICHARD CONTRERAS et al., Plaintiffs and Respondents, v. BLUE CROSS OF CALIFORNIA et al., Defendants and Appellants. Docket No. B012211. Court of Appeals of California, Second District, Division Five. March 23, 1988. 947 COUNSEL Paul, Hastings, Janofsky & Walker, Dennis H. Vaughn, Wesley A. Hubanks and Paul W. Cane, Jr., for Defendants and Appellants. Geffner & Satzman and Helena S. Wise for Plaintiffs and Respondents. OPINION ASHBY, Acting P.J. Numerous plaintiffs brought this action, basically for wrongful discharge, against defendants Blue Cross of California and others. Due to a procedural quirk, this matter is before us on appeal even though the practical effect of the challenged order was to permit plaintiffs to file a first amended complaint, which is not ordinarily an appealable order, and even though the first amended complaint has apparently been superseded by a subsequent amended complaint. The appeal arose this way: A demurrer to the original complaint was sustained with leave to amend. Plaintiffs failed to amend within the time permitted by leave to amend, and defendants moved to dismiss the action pursuant to former Code of Civil Procedure section 581, subdivision (c). Plaintiffs opposed the motion to dismiss and promptly submitted the first amended complaint, urging that extenuating circumstances had prevented filing it in time, but the trial court dismissed the action first, telling plaintiffs that their remedy was under Code of Civil Procedure section 473 to set 948 aside the dismissal. The granting of the motion to dismiss was treated by the parties as an effective order of dismissal. Plaintiffs promptly moved pursuant to section 473 to set aside the order of dismissal, and the trial court granted plaintiffs' motion. Thus, although the practical effect of this ruling was simply to permit plaintiffs to file a first amended complaint, this was an appealable order because it set aside a prior order of dismissal. (Code Civ. Proc., §§ 473, 904.1, subd. (b); Sunru Chang v. Carson Estate Co. (1959) 168 Cal. App.2d 110, 112 [335 P.2d 697].) Defendant Blue Cross (appellant) filed notice of appeal from the order vacating the prior order of dismissal. (1) This unnecessary pretrial appeal would have been avoided if the trial court had simply denied appellant's motion to dismiss. Confusion arose when the court purported to grant the motion to dismiss subject to vacating such order pursuant to Code of Civil Procedure section 473. Contrary to the trial court's apparent reasoning, the court had discretion to grant or deny appellant's motion to dismiss. (Harding v. Collazo (1986) 177 Cal. App.3d 1044, 1054 [223 Cal. Rptr. 329]; Sousa v. Capital Co. (1963) 220 Cal. App.2d 744, 754 [34 Cal. Rptr. 71]; former Code Civ. Proc., § 581, subd. (c), Stats. 1984, ch. 1705, § 2, pp. 6175-6176.) The trial court's minute order cited Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781 [176 Cal. Rptr. 104, 632 P.2d 217], but we find nothing in that case which compelled the trial court to dismiss the action initially. The holding of Wells was that a plaintiff has no absolute right to voluntarily dismiss his own action in order to avoid a dismissal on a motion by defendant under Code of Civil Procedure section 581, subdivision (c) [then subdivision (3)]. The majority opinion recognized the court's power to extend the plaintiff's deadline for amending by "appropriate order." (Id. at p. 789.) The dissenting opinion, which may have been the source for the trial court's confusion, stated, "The failure to amend does not ipso facto mean the plaintiff has opted to stand on the complaint. There may be an acceptable reason for not amending within the time limits or the plaintiff may intend to move for relief under section 473." (Id. at p. 790.) This statement does not mean the court must dismiss the action first then vacate the order of dismissal pursuant to Code of Civil Procedure section 473. After all, the first paragraph of section 473 permits the court to allow amendments to the complaint and to extend the time in which to plead. Under all the circumstances we shall treat the appeal as a valid appeal from an order setting aside a prior order of dismissal, but we shall focus only on the narrow issue involved and not upon subsequently filed complaints beyond the scope of this appeal. Appellant's opening brief states that appellant "would not have appealed if this were a garden-variety case under [Code of Civil Procedure] § 473." 949 (2a) Appellant contends that the original complaint contained allegations which rendered it defective, and that the first amended complaint was basically the same but with the offensive allegations improperly omitted. Appellant contends this is one of those cases in which a pleader should not be permitted to withdraw allegations in a prior pleading, and that in such circumstances the trial court abused its discretion by granting relief under Code of Civil Procedure section 473. (Sunru Chang v. Carson Estate Co., supra, 168 Cal. App.2d at pp. 115-116.) This contention is wholly without merit. Plaintiffs' proposed first amended complaint was not a sham pleading designed to untruthfully omit a fatal and incurable defect; it was a proper attempt to amend to state valid causes of action consistent with a complex and developing field of law. Numerous individual plaintiffs and causes of action are involved. Basically, plaintiffs were hired as sales persons for appellant. The 13 causes of action in the first amended complaint allege wrongful discharge, wrongful cancellation of agency agreement, deceit and breach of statutory duty under Labor Code section 970, breach of covenant of good faith and fair dealing, intentional infliction of emotional distress and age discrimination. Plaintiffs allege that appellant broke numerous promises, representations and agreements with them involving such matters as career opportunities, permanent employment, personnel policies for fair termination procedures, sales leads, commissions, sick leave, health insurance, pension benefits, severance pay, chargeback fund, longevity bonuses, vacation leaves, transfer, and expense accounts for work at outlying branch offices, and that in August 1983 appellant abruptly terminated plaintiffs and gave them the option of becoming independent agents for a Blue Cross subsidiary. Appellant seizes upon various statements in the original complaint and especially paragraph 147 of the original complaint, involving the cause of action for age discrimination, which stated that "the actions of BLUE CROSS as more fully described above were unlawfully and intentionally engaged in for the express purpose of depriving plaintiffs of the benefits to which they would be entitled, including but not limited to retirement and pension benefits." Appellant contends this shows that plaintiffs' entire complaint is directed to the deprival of benefits covered by the federal Employee Retirement Income Security Act of 1974, 29 United States Code section 1001 et seq. (ERISA), for which exclusive jurisdiction is vested in the federal courts. (Johnson v. Trans World Airlines, Inc. (1983) 149 Cal. App.3d 518, 521 [196 Cal. Rptr. 896].) According to appellant's theory, once having alleged that appellant acted to deprive plaintiffs of benefits including retirement and pension benefits, plaintiffs may never amend this allegation, and their entire complaint, regardless of subsequent amendment, should be 950 construed as one within the exclusive jurisdiction of the federal courts. There is no merit to this contention. In Sunru Chang v. Carson Estate Co., supra, 168 Cal. App.2d at pages 115-116, relied upon by appellant, the two complaints were virtually identical except for the omission in the later complaint of facts showing that the same matter had been determined in a prior suit and was therefore res judicata. The rule cited by appellant is intended to prevent sham pleadings omitting an incurable defect in the case. (3) However, "[r]ules of pleading are conveniences to promote justice and not to impede or warp it. We do not question the rule that all allegations of fact in a verified complaint, which are subsequently omitted or contradicted, are still binding on the complainant. The rule is valid and useful, but it does not exist in a vacuum and cannot be mechanically applied. It is a good rule to defeat abuses of the privilege to amend and to discourage sham and untruthful pleadings. It is not a rule, however, which is intended to prevent honest complainants from correcting erroneous allegations of generic terms which may have legal implications but which are also loosely used by laymen or to prevent the correction of ambiguous statements of fact." (Macomber v. State of California (1967) 250 Cal. App.2d 391, 399 [58 Cal. Rptr. 393].) (2b) In a case like this, with numerous individual plaintiffs having individual circumstances and with a wide variety of employment promises alleged to have been broken, possible federal preemption under ERISA is not a simple, blatant and incurable defect such as res judicata or delay beyond the statute of limitations. ERISA does not preempt the entire state law of employment relationships. Both Johnson v. Trans World Airlines, Inc., supra, 149 Cal. App.3d at pages 523-530, and the trial court in sustaining the demurrer to plaintiffs' original complaint recognized that valid state causes of action could exist. The order sustaining the demurrer to the original complaint expressly contemplated that plaintiffs be allowed to amend to state causes of action not barred by ERISA. Plaintiffs had the right to amend to clarify their claims in light of the complex and developing law. (Blakey v. Superior Court (1984) 153 Cal. App.3d	{ "pile_set_name": "FreeLaw" }
763 N.W.2d 247 (2008) 2009 WI App 21 SANDBERG v. DONAHUE. No. 2007AP2719. Court of Appeals of Wisconsin. December 11, 2008. Unpublished opinion. Affirmed, reversed and remanded.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 8, 2006 Charles R. Fulbruge III Clerk No. 05-51302 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICOLAS HERNANDEZ-ARZATE, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:05-CR-611-1 -------------------- Before KING, GARWOOD, and JOLLY, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Nicolas Hernandez-Arzate raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. * 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.	{ "pile_set_name": "FreeLaw" }
745 F.2d 412 21 ERC 1439, 14 Envtl. L. Rep. 20,744 STATE OF WISCONSIN, Plaintiff-Appellee,andCounty of Marquette, Michigan, Intervening Plaintiff-Appellee,v.Caspar W. WEINBERGER, Individually and as Secretary of theDepartment of Defense, et al., Defendants-Appellants. No. 84-1569. United States Court of Appeals,Seventh Circuit. Argued June 11, 1984.Decided Aug. 20, 1984.*As Corrected Aug. 21, 1984. Anne S. Almy, U.S. Dept. of Justice, Lands Div., Washington, D.C., for defendants-appellants. Shari Eggleson, Asst. Atty. Gen., Bronson C. LaFollette, Atty. Gen., Madison, Wis., Patricia L. Micklow, Marquette County Pros. Atty., Marquette, Mich., for intervening plaintiff-appellee. Before CUMMINGS, Chief Judge, and WOOD and CUDAHY, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge. 1 Plaintiff-appellee State of Wisconsin and intervening plaintiff-appellee County of Marquette, Michigan, sued federal appellants seeking the preparation of a supplemental environmental impact statement (SEIS) in connection with Project ELF, an extremely low frequency submarine communications system developed by the Navy, which the Navy undertook to reactivate and expand in 1981.1 Plaintiffs contended that the Navy's original 1977 environmental impact statement prepared at the time the project first originated should have been supplemented because of new information regarding the biological effects of extremely low frequency electromagnetic radiation. After a trial on the merits, the district court agreed with this contention and enjoined the Navy from proceeding with any additional work on Project ELF in Wisconsin or Michigan and from installing receivers in submarines until a supplementary environmental impact statement had been prepared.2 This expedited appeal followed. I. 2 On July 1, 1968, the Navy announced plans to construct an extremely low frequency (ELF) submarine communications test facility within the Chequamegon National Forest near the town of Clam Lake in northern Wisconsin. This test facility, consisting of two 14-mile strings of overhead antennae mounted on utility poles and a transmitter situated in a fenced compound, became fully operational in 1969. Between 1969 and 1978, while the Navy operated and tested the capability of this facility, two comprehensive ELF projects were formulated. The first, called Project Sanguine, was to include a 6,300 square mile grid of buried antenna cable and was to be operational by 1976. Project Sanguine, however, never went into full-scale development. The second system, Project Seafarer, which was proposed in 1977, initially was to consist of two test facilities: the one near Clam Lake, and the other, with a transmitter station and 130 miles of buried antenna cables, to be situated in the upper peninsula of Michigan. In its final, fully-developed form, the system was to have five surface transmitting stations and 2,400 miles of buried antenna cables extending over a 4,000 square-mile area. 3 In 1978, after initially supporting the allocation of $20.1 million for Project Seafarer research and development, President Carter decided to postpone Project Seafarer indefinitely. His decision not to proceed with the project was based on "reservations regarding this large 2400-mile antenna network, primarily because of public opposition and the inevitable inconvenience to private landowners as well as its excessive costs." President Carter, however, did instruct the Secretary of Defense to study the possibility of putting together a smaller, less intrusive, and less costly ELF system. Following the President's lead, Congress undertook no additional funding of Project ELF, as it came to be known, and the project entered a dormant phase. 4 In 1981, however, Congress, in its Department of Defense Authorization Act, 94 Stat. 1077, 1081, ordered the Navy to resume research and development for an ELF communications system and directed the President to "submit to the Congress a plan for deployment" of such a system in 1981. In April, 1981, President Reagan advised the Secretary of Defense of his intention to review and decide whether to reactivate Project ELF. The Secretary submitted an ELF proposal to the President on August 13, 1981. On October 8, 1981, President Reagan approved the recommended proposal and advised Congress of his intent to proceed. He ordered that the ELF project should 5 include upgrading of the existing ELF in Wisconsin, a new transmitter facility of comparable size with 56 miles of antenna[e] in Michigan, and ELF receivers for the submarines. In order to make critical improvements in connectivity to the submarine forces, the Navy should support this decision in a way that will provide an initial operating capability in fiscal year 1985. 6 As a result of this order, the ELF facility in Wisconsin was reactivated in December, 1981, and resumed broadcasting to submarines, which continues to date. 7 For each of the pre-1981 ELF proposals, the Navy provided documentation of the environmental effects of each project by preparing an environmental impact statement (EIS) in accordance with the National Environmental Policy Act of 1969. Of specific concern to the public were the possible effects of continuously exposing humans, animals, and plants to extremely low frequency electromagnetic radiation. This concern was acknowledged and addressed by the 1972 EIS and 1975 supplemental EIS prepared in connection with Project Sanguine, and the 1977 EIS prepared in connection with Project Seafarer. The 1977 EIS included a 1977 National Academy of Sciences report commissioned by the Navy studying the biological and human health effects of extremely low frequency electromagnetic radiation. This report summarized the state of knowledge concerning these effects and concluded: "On the basis of the evidence available, the Navy believes no adverse effects on human health or performance will be associated with long-term Seafarer exposure." 8 When the decision to reactivate Project ELF in 1981 was made, no additional environmental impact assessment was made. In June, 1983, however, the Navy issued, but did not circulate to the public or to interested federal agencies, an environmental impact assessment of the upgrading of the Wisconsin facility. In that assessment, the Navy observed that the electromagnetic field intensities produced by the ELF system would not increase by upgrading the Wisconsin facility to full operation. This assessment did not reevaluate the conclusions of the 1977 EIS and National Academy of Sciences report that ELF systems would produce no adverse biological effects. 9 In contrast to the prior proposals, Project Sanguine and Project Seafarer, the present ELF proposal is much more modest. The modernization of the Wisconsin facility will not substantially alter the nature of its operations as it has existed since its original implementation in 1969. The proposed Michigan facility will include 56 miles of antennae on utility poles in an F shape and will operate similarly to the Wisconsin facility. The facilities in Wisconsin and Michigan can transmit independently, but if operated synchronously can reach areas not otherwise attainable independently. II. 10 The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321-47, articulates "a national policy [to] encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. Sec. 4321. Although NEPA establishes "significant substantive goals for the Nation," Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), the Act does not attempt to dictate the result of any particular decision; instead, the weighing of the substantive environmental goals is to be undertaken by the executive agencies involved, and the judicially reviewable duties imposed by the Act are "essentially procedural." Id. The procedural approach to the implementation of substantive NEPA policy is accomplished by the Act's requirement that agencies prepare a detailed statement concerning environmental consequences--known as an environmental impact statement (EIS)--in connection with "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment."3 42 U.S.C. Sec. 4332(2)(C). The EIS thus ensures adequate consideration of environmental consequences by alerting decision-makers to the nature of those consequences with regard to a particular action. See Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1979). In addition, the EIS acts to fully inform the public about agency decisions affecting the environment and facilitates public input into the decision-making process. See Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 143, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). Finally, the EIS serves as a record for substantive review of challenges for noncompliance with NEPA. See Appalachian Power Co. v. EPA, 477 F.2d 495, 507 (4th Cir.1973). 11 The preparation of an EIS as a prerequisite to the implementation of a major government project has become commonplace. Although the Supreme Court has emphasized that an initial EIS should be finished at a fixed time, Vermont Yankee, 435 U.S. at 534, 555, 98 S.Ct. at 1207, 1217,	{ "pile_set_name": "FreeLaw" }
122 F.3d 1069 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.Clementine ALLEN-BELL, Plaintiff-Appellant,v.Kathy TOPOLINSKI, Defendant,andMONTGOMERY WARD CREDIT CORP., Defendant-Appellee. No. 97-15268. United States Court of Appeals, Ninth Circuit. Submitted Aug. 25, 1997.*Sept. 5, 1997. Appeal from the United States District Court for the District of Nevada. Philip M. Pro, District Judge, Presiding. Before SCHROEDER, FERNANDEZ, and RYMER, Circuit Judges. 1 MEMORANDUM 2 Clementine Allen-Bell appeals pro se from the district court's Fed.R.Civ.P. 12(b) dismissal of her action alleging that her former employer Montgomery Ward Credit Corporation ("MWCC") discriminated against her on the basis of race when it denied her a promotion, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) (1997).1 3 We have jurisdiction under 28 U.S.C. § 1291, and we review de novo a dismissal for failure to state a claim, see Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir.1990). We reverse and remand. 4 In her complaint, Allen-Bell alleged that she filed a timely charge of race discrimination with the EEOC. The record contains an intake sheet that Allen-Bell filed with the Nevada Equal Rights Commission within 300 days of the date when MWCC denied her the promotion. Accordingly, we conclude that Allen-Bell filed a timely EEOC charge, and the district court erred by dismissing her complaint. See Casavantes v. California State University, 732 F.2d 1441, 1443 (9th Cir.1984) (finding timely filed intake questionnaire satisfies time bar for Title VII claims). 5 REVERSED and REMANDED. ** The panel unanimously finds this case suitable for decision without oral argument. See 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 Allen-Bell waived her right to appeal the district court's dismissal of defendant Toplinski because she failed to challenge it in her opening brief	{ "pile_set_name": "FreeLaw" }
799 P.2d 1090 (1990) In re the Matter of Declaring B.H.M., C.M.M. and J.T.H., Youths in Need of Care. No. 89-531. Supreme Court of Montana. Submitted July 13, 1990. Decided October 25, 1990. 1091 Chris P. Christensen, Kalispell, Paulette C. Ferguson, Missoula, for Maternal Grandmother. Ted O. Lympus, Co. Atty., Randy K. Schwickert, Deputy Co. Atty., Kalispell, Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Robert B. Allison, Kalispell, for Youths. HUNT, Justice. Appellant Doreen Karen Howard appeals from the order of the District Court, Eleventh Judicial District, County of Flathead, which terminated her parental rights to BHM, CMM, and JTH, who had previously been designated youths in need of care. We affirm. The issues presented on appeal are: 1. Whether the District Court followed proper procedural steps in terminating the parental rights of the appellant. 2. Whether the District Court erred in considering the "best interests of the child" test in terminating the parental rights of appellant. 3. Whether there was sufficient evidence presented to support the District Court's order. BHM, born on August 26, 1982, and CMM, born on September 17, 1983, are children of appellant and Dan Moe, deceased. JTH, born on July 1, 1985, is the child of appellant and Mark Rickman. Dan Moe was murdered on July 31, 1985. Mark Rickman pled guilty to this murder on March 21, 1986. Rickman was sentenced to 35 years in prison. At the March 21 hearing, Rickman testified that appellant and appellant's mother, Opal Howard, had assisted in the homicide. As a result, appellant was arrested on March 19, 1986, and subsequently pled guilty to obstructing justice by helping Rickman dispose of Dan Moe's body. Appellant was sentenced to ten years in prison. After appellant was arrested for her participation in the murder and incarcerated in Flathead County, a petition for Temporary Investigative Authority (TIA) was filed with the District Court seeking protective services for her three children. The supporting affidavit stated that both appellant and the natural father of JTH were currently incarcerated and the natural father of BHM and CMM was deceased. The court granted the TIA on March 21, 1986. As a result, the children were removed from their home and placed in foster care with non-relatives. 1092 On April 4, 1986, Opal Howard moved to dismiss and vacate the order granting the TIA. An adjudicatory hearing was held on April 9, 1986. At this hearing, Shawn Trontel, a psychiatric social worker, testified that BHM, who was three and one-half years old, showed behavior more appropriate to a two-year-old. His speech was basically unintelligible. He was withdrawn and fearful. He was not toilet-trained and showed fears of toilet training. He was unable to form attachments to other persons and was unable to follow simple directions. CMM was not toilet-trained and lacked skills associated with a child of her age. The children were unable to feed themselves with utensils and drank from "tippy" cups. Mark Rickman testified at this hearing concerning the involvement appellant and her mother, Opal, had in the murder of Dan Moe. He testified that the murder was planned to prevent the children from having contact with their father and his family. Further, he testified that his participation in the murder was compelled by threats from Opal and appellant that he would lose contact with his son, JTH. Neither appellant nor Opal refuted this testimony. The court denied the motion to dismiss and the children were initially adjudicated youths in need of care. The involvement of their mother in the murder of Dan Moe had a detrimental impact on the children's mental and physical health. As part of the court's order, all of the potential caregivers underwent psychological evaluations and submitted to home studies. After reviewing these evaluations and home studies, the Flathead County Department of Public Welfare (Department) attempted to transfer the placement of BHM and CMM to Pat and Karen Moe, the children's paternal aunt and uncle, and the placement of JTH to Duane and Karen Wock, the maternal aunt and uncle. The Department justified this request based upon the positive feelings that the children, BHM and CMM, had for Pat and Karen, and the idea that the longer the children stayed in foster care, the more difficult it would be if an eventual break occurred. Appellant obtained a temporary restraining order to prevent the transfers because the Department had failed to first contact appellant. Opal Howard filed a formal notice withdrawing herself from consideration as an alternate caretaker for the children. This notice was based upon her objection to the general release of her psychological evaluation. A hearing was held in November, 1986, to determine whether a permanent injunction should issue preventing the transfer of the children. At this hearing, the court heard substantial evidence regarding BHM and CMM's improvement after a two-week visit with their aunt and uncle, Pat and Karen Moe. Their preschool teacher testified that after the visit they seemed like new children. Two social workers who had had contact with the children recommended that they be placed with family members. On November 21, 1986, the court found that it was in the best interests of BHM and CMM to be placed with Pat and Karen Moe, and for JTH to be placed with Duane and Theresa Wock. The court recognized the animosity between the Howards and the Moes, and ordered that Pat Moe obtain counseling and admonished the Moes not to make any deprecatory statements about the children's mother. The court also ordered that the placements be regularly monitored. In a report dated February 10, 1987, social worker Donna Taylor noted that BHM and CMM were doing well in the Moe's care but that JTH should be removed from his placement at the request of the Wocks. Upon motion by the State, the court ordered that JTH be placed in the home of his maternal aunt and uncle, Dan and Eileen Howard. In November, 1988, the Department filed a petition for permanent custody and authority to consent to adoption with the court. On February 1, 1989, Opal Howard moved to intervene and filed a petition for custody of the children. On February 17, 1989, Mark Rickman filed notice that he would not contest the termination of his parental rights. *1093 A hearing was conducted on February 21-24 and May 16-17, 1989. At the hearing, at least six professionals testified as to the fragile emotional condition of the oldest child, BHM; the children's improvement after being placed in foster care; and appellant's incapacity to care for dependent children on a long term basis. Based upon the evidence presented at the hearing, the District Court concluded that the children had been abused and neglected, and were youths in need of care. The court further concluded that the parental rights of appellant should be terminated because her conduct and condition were unlikely to change within a reasonable time. Finally, the court concluded that the best interests of the children would be served by termination of the parental rights; and by an award of permanent legal custody to the Department with authority to consent to adoption of the children. The first issue is whether the District Court followed proper procedure in terminating the parental rights of the appellant. Two procedures culminated in the District Court's finding that appellant's parental rights should be terminated. The first one was the District Court's grant of temporary investigative authority (TIA) and protective services pursuant to a Department petition, governed by §§ 41-3-401 through 409, MCA. The second was the final termination of rights, governed by §§ 41-3-601 through 612, MCA. The primary issue before this Court is whether the District Court acted arbitrarily in terminating the mother's parental rights permanently, not whether the District Court acted improperly in accepting the recommendation of the Department for temporary authority. Assuming, nevertheless, that Doreen Howard may challenge the Department's grounds for the TIA and the temporary transfer of the children from foster care to the Moe home, a review of the record shows that the District Court adhered to the proper statutory procedures. The Department was well within its bounds when it filed a petition for temporary custody. Section 41-3-402(1), MCA, states: In cases where it appears that a youth is abused or neglected or is in danger of being abused or neglected, the county attorney, attorney general, or an attorney hired by the county welfare department or office of human services may file a petition for temporary investigative authority and protective services. The District Court received a petition for temporary investigative authority and protective services filed pursuant to §§ 41-3-401(10) and 41-3-402, MCA. The court issued an order pursuant to § 41-3-403, MCA, which expressly allows the court to grant such relief as may be required for the immediate protection of the youth. The mother and grandmother then moved to vacate the order and dismiss the petition. A hearing was held on April 19, 1986, to decide on the motion. From the evidence as set forth in the record, the District Court found probable cause to support the TIA petition. Appellant contends that the grant of the TIA and the subsequent transfer of the children from neutral foster care to the Moe home was based only on the absence of the parents; she maintains that abuse or neglect within the mandate of the statute was never alleged. However, the statute provides that danger of abuse or neglect	{ "pile_set_name": "FreeLaw" }
NUMBER 13-10-00130-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG EX PARTE: RAMIRO DURAN On appeal from the 319th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Garza Memorandum Opinion by Justice Garza Appellant, the Texas Department of Public Safety ("TDPS"), brings this restricted appeal challenging the trial court's order of expunction in favor of appellee, Ramiro Duran. See Tex. R. App. P. 30. By two issues, the TDPS argues that: (1) Duran was not entitled to an expunction of records related to his arrests for driving while intoxicated and evading arrest or detention with a vehicle because he was convicted of both offenses, see Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B) (Vernon 2006); and (2) the trial court abused its discretion in ordering the expunction of Duran's criminal records because the TDPS did not receive notice of the hearing as required by article 55.02, section 2(c) of the code of criminal procedure. See id. art. 55.02, § 2(c) (Vernon Supp. 2009). We reverse and remand. I. Background Duran filed a petition for expunction of records relating to six offenses. Six agencies, including the TDPS, were listed in the petition as having records or files pertaining to the offenses. A hearing on Duran's petition was set for December 18, 2008, and the TDPS admits that it received notice of this hearing. On December 12, 2008, the TDPS filed an original answer denying the allegations made in Duran's petition and asserting an affirmative defense as to one of the offenses. Though the record does not contain an order resetting the originally scheduled December 18, 2008 hearing, the trial court conducted a hearing on Duran's petition on September 30, 2009. The TDPS did not appear for the September 30, 2009 hearing, and at the conclusion of the hearing, the trial court ordered an expunction of Duran's criminal records. On March 16, 2010, the TDPS filed its notice of restricted appeal. (1) See Tex. R. App. P. 26.1(c). II. Restricted Appeal To successfully attack an order by restricted appeal, the TDPS must show: (1) it was a party who did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of; (2) it filed a notice of appeal within six months after the order was signed; (3) it did not timely file a postjudgment motion or request findings or fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.-Corpus Christi 2007, no pet.). III. Standard of Review In restricted appeals, we are limited to considering only errors that are apparent on the face of the record. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Fredricks, 235 S.W.3d at 280. The "face of the record" includes all papers on file in the appeal and the reporter's record, if any. Norman Commc'ns, 955 S.W.2d at 270. A restricted appeal affords the appellant the same scope of review as an ordinary appeal--in other words, the entire case. See id. Article 55.02 of the code of criminal procedure governs the procedures for expunction. See Tex. Code Crim. Proc. Ann. art. 55.02. These provisions are mandatory and must be complied with in an expunction proceeding. Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 111-12 (Tex. App.-San Antonio 1997, no writ); Tex. Dep't of Pub. Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.-San Antonio 1989, no writ). Article 55.02 provides that the trial court shall set a hearing on a petition for expunction no sooner than thirty days from the filing of the petition and shall give reasonable notice of the hearing to each respondent named in the petition, namely, the various law enforcement agencies that have records or files subject to expunction. Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c). While there is no requirement that the respondents be served with the petition for expunction itself, the trial court is required to notify them of the hearing. See Deck, 954 S.W.2d at 112 (noting that because an expunction hearing is civil in nature, each law enforcement agency cited is entitled to represent itself). If the record does not indicate that a proper agency was notified in accordance with the statute, then the record reflects a proceeding in violation of the statute and the expunction order must be set aside. See Deck, 954 S.W.2d at 112; Rodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.-San Antonio 1991, no writ) (setting aside an expunction order after finding that the hearing took place without notice to any respondent); Riley, 773 S.W.2d at 758 (setting aside an expunction order because the record did not reflect that the law enforcement agencies had been notified of the hearing and because the trial court violated the thirty-day waiting period); see also Tex. Dep't of Pub. Safety v. Cruz, No. 13-09-00145-CV, 2009 Tex. App. LEXIS 6971, at 4-7 (Tex. App.-Corpus Christi Aug. 31, 2009, no pet.) (mem. op.) (setting aside an expunction order where a law enforcement agency was notified of the originally scheduled expunction hearing but not of the reset expunction hearing); Tex. Dep't of Pub. Safety v. Flores, No. 04-07-00257-CV, 2008 Tex. App. LEXIS 1021, at 2-4 (Tex. App.-San Antonio Feb. 13, 2008, no pet.) (mem. op.) (same). IV. Analysis In its second issue, the TDPS asserts that the trial court abused its discretion in ordering the expunction of Duran's criminal records because the TDPS did not receive notice of the September 30, 2009 hearing. The reporter's record reflects that the trial court conducted a hearing on September 30, 2009, with only Duran's attorney appearing before the court. Additionally, the record is devoid of any notice or other document alerting the law enforcement agencies listed in Duran's petition of the resetting of the December 18, 2008 hearing to September 30, 2009. (2) We therefore conclude that it was error for the trial court to order Duran's records expunged without providing notice to the TDPS of the September 30, 2009 hearing. See Deck, 954 S.W.2d at 112-13. This violation of mandatory procedure requires us to set aside the trial court's order expunging Duran's records. See Rodriguez, 812 S.W.2d at 450-51; Riley, 773 S.W.2d at 758; see also State v. Echeverry, 267 S.W.3d 423, 425 (Tex. App.-Corpus Christi 2008, pet. denied) ("The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to comply."). Accordingly, we sustain the TDPS's second issue. Because we have sustained the TDPS's second issue, we need not address its first issue. (3) See Tex. R. App. P. 47.1. V. Conclusion The judgment of the trial court is reversed, the expunction order is set aside, and the case is remanded to the trial court for proceedings consistent with this opinion. ________________________ DORI CONTRERAS GARZA, Justice Delivered and filed the 19	{ "pile_set_name": "FreeLaw" }
470 F.2d 146 80 L.R.R.M. (BNA) 3011, 25 A.L.R.Fed. 439 Edwin W. EMBREY, Appellant,v.Robert E. HAMPTON, Chairman, United States Civil ServiceCommission and Winton M. Blount, PostmasterGeneral, United States Post Office, Appellees. No. 71-2073. United States Court of Appeals,Fourth Circuit. Argued June 8, 1972.Decided July 3, 1972.Rehearing Denied July 31, 1972. A. Andrew Giangreco, Alexandria, Va. (Giangreco, Seay & Manuel, Alexandria, Va., on brief), for appellant. Stanton R. Koppel, Atty., Dept. of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellees. Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges. PER CURIAM: 1 This appeal is from the decision of the District Court that Embrey's discharge from his position with the Post Office Department was lawful and not arbitrary, capricious nor an abuse of discretion. 2 Embrey, who had an exemplary record in his four years with the Navy and 21 years with the Post Office, was discharged because of a conviction for fraud. In an application for an F.H.A. loan at a time when his wife had been quite ill, Embrey had wrongfully claimed he had no other debts outstanding. Although he was found guilty of fraud, the District Court did not impose sentence, placing Embrey on probation for three years and noting that he was endeavoring to repay his debts in spite of a pending application for discharge in bankruptcy. 3 Embrey's position as Civil Service Examiner is one that requires trust but one in which he would be unlikely to handle money. Additionally, the record indicates that Embrey was not trying to obtain funds under false pretenses with the intention of not making repayment, the usual conception of fraud. It is therefore understandable that his direct supervisor refused to recommend discharge. 4 In view of the limited scope of judicial review of administrative decisions, we cannot say that the District Court erroneously concluded that Embrey's discharge was lawful. After the decision of the Regional Director of the Post Office that he should be discharged, Embrey was afforded a full administrative hearing de novo followed by a second evidentiary hearing before the Civil Service Commission Appeals Examining Office and then by an appeal to the Civil Service Board of Appeals and Review. These hearings satisfied all requirements of procedural due process. 5 Relying on the contract between his labor union and the Post Office Department which proscribes references to charges more than two years old, Embrey claims that he was discharged for acts committed beyond that period. The discharge, however, was properly based on the conviction, not the underlying acts, and the conviction came well within the two year period. The Department correctly waited until after the conviction before bringing charges. Otherwise, Embrey might have claimed that the Department was violating the presumption that one is innocent until proved guilty. 6 Since the agency complied with all procedural requirements and its action had a reasonable basis, this court must accept the administrative decision that Embrey's discharge "will promote the efficiency of the service," the only basis for discharge provided by statute. 5 U.S.C. Sec. 7512. The regulations include criminal conduct among the reasons for discharge. 5 C.F.R. Secs. 752.104, 731.201(b). 7 In a case involving this same statute the District of Columbia Circuit upheld the discharge by the Air Force of a civilian engineer who had deliberately falsified answers on federal employment forms relating to his past involvement with Communist organizations. Rodriquez v. Seamans, D.C.Cir., 463 F.2d 837. Judge Tamm wrote: "[Rodriquez] was dismissed for falsification of records-an act which goes to [his] reliability, veracity, trustworthiness, ethical conduct, and certainly affects the efficiency of the service." 8 Embrey's conviction for fraud similarly provided the Post Office Department with a reasonable basis to decide that his discharge would promote the efficiency of the service. Although our view of the record leads us to question whether we would arrive at the same conclusion under the circumstances and in view of the alternatives of suspension and demotion, we cannot say that Embrey was not afforded substantive or procedural due process. We emphasize that the courts not the Post Office Department are charged with the punishment of criminal offenses. While we urge the Department to leave punishment to the judiciary, we must remember to leave determination about the efficiency of the Department to that agency. 9 Accordingly, although we are inclined to think the mitigating circumstances made demotion or suspension a more appropriate sanction, we find no basis for judicial relief. If there is to be any moderation of the final discharge, it must be through administrative procedures. 10 Affirmed.	{ "pile_set_name": "FreeLaw" }
Case: 13-60245 Document: 00512635831 Page: 1 Date Filed: 05/20/2014 REVISED May 20, 2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 13-60245 Fifth Circuit Summary Calendar FILED May 19, 2014 Lyle W. Cayce BRUCE GUNKLE; SHERILYN S. GUNKLE, Clerk Petitioners-Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee Appeal from the Decision of the United States Tax Court No. 5650-11 Before WIENER, OWEN, and HAYNES, Circuit Judges. WIENER, Circuit Judge. Petitioners-Appellants, Bruce and Sherilyn S. Gunkle, husband and wife (together, “the Gunkles”), appeal the judgment of the United States Tax Court (“Tax Court”) rendered pursuant to Section 7483 of the Internal Revenue Code (“I.R.C.”). They seek reversal of that judgment, which sustained the determination of Respondent-Appellee, the Commissioner of Internal Revenue (“Commissioner”), that the Gunkles had an income tax deficiency and an accuracy-related addition to tax for 2007 as the result of unreported income and disallowed deductions for charitable contributions. We affirm. Case: 13-60245 Document: 00512635831 Page: 2 Date Filed: 05/20/2014 No. 13-60245 I. FACTS AND PROCEEDINGS A. Facts Bruce is a graduate of the United States Naval Academy and holds a master’s degree in theology from Antioch University. After he retired from the military, he and Sherilyn settled in Texas. Bruce incorporated the City of Refuge Christian Fellowship, Inc. (“City of Refuge, Inc.”) in 1990 as a Texas non-profit corporation, exempt from federal taxes under I.R.C. § 501(c)(3) (“501(c)(3)”). The Gunkles’ income tax debacle began in 2002 when Bruce attended a church leadership conference and heard Elizabeth Gardner, wife of Frederick “Ric” Gardner (together, “the Gardners”) speak about a religion-related tax gimmick that they were marketing, at the core of which was a so-called “corporation sole” as an alternative to a customary non-profit entity exempt from taxes under 501(c)(3). 1 Central to the Gardners’ step-transaction tax scheme 2 was the proposition that persons like the Gunkles could assign their 1“A corporation sole consists of only one person at a time, but the corporation may pass from one person to the next without any interruption in its legal status.” Roman Catholic Bishop of Springfield, A Corp. Sole v. City of Springfield, 724 F.3d 78, 84 n.1 (1st Cir. 2013). See also Tex. Mobile Home Ass’n v. Comm’r of Internal Revenue, 324 F.2d 691, 694-96 (5th Cir. 1963) (quoting Trinidad v. Sagrada Orden, 263 U.S. 578, 581-582 (1923)). 2 “The step transaction doctrine is a corollary of the general tax principle that the incidence of taxation depends upon the substance of a transaction rather than its form.” Sec. Indus. Ins. Co. v. United States, 702 F.2d 1234, 1244 (5th Cir. 1983) (citing Kuper v. Comm’r of Internal Revenue, 533 F.2d 152, 155 (5th Cir. 1976)). As we have explained previously: Under the step transaction doctrine, the tax consequences of an interrelated series of transactions are not to be determined by viewing each of them in isolation but by considering them together as component parts of an overall plan. When considered individually, each step in the series may well escape taxation. The individual tax significance of each step is irrelevant, however, if the steps when viewed as a whole amount to a single taxable transaction. Taxpayers cannot compel a court to characterize the transaction solely upon the basis of a 2 Case: 13-60245 Document: 00512635831 Page: 3 Date Filed: 05/20/2014 No. 13-60245 income to a corporation sole and deduct the amounts thus assigned as charitable donations without the need to qualify that entity under 501(c)(3), and would thereby “transform taxable individual income into non-taxable income.” The Gardners marketed their packaged “how-to” program to those attending the conference, and Bruce was among the purchasers. 3 As the first step in implementing the Gardeners’ multi-step plan, Bruce dissolved his existing 501(c)(3) non-profit corporation, City of Refuge, Inc., through the Texas Secretary of State, thereby terminating its tax-exempt status in the process. As his next step, Bruce formed the “Office Of Presiding Pastor, Bruce W. Gunkle, And His Successors, A Corporation Sole” as a Nevada entity “within the ecclesia of the City of Refuge” (the “corporation sole”). As the tax court observed, “Gunkle concluded that he did not wish to continue operating as a nonprofit corporation . . . because of concern that such status might allow Governmental interference with the organization and that the concentration on one facet of it when the totality of circumstances determines its tax status. Id. (internal quotation marks, citations, and brackets omitted); see also United States v. Shows, 307 Fed. App’x 818, 821 (5th Cir. Jan. 21, 2009) (unpublished) (citing Sec. Indus. Ins. Co., 702 F.2d at 1244). 3 Although the Gunkles are proceeding pro se in this appeal, they were represented in the Tax Court by the same counsel who represented the Gardners in their own tax case implicating unreported income purportedly shielded by a corporation sole. The Gardners lost that case and have appealed to the Ninth Circuit for their tax year 2004, consolidated with another Tax Court case involving their tax years 2002 and 2003. In yet another federal case involving the Gardners, the district court for the District of Arizona enjoined them from promoting, marketing, and selling corporation soles, which promotions, the court stated, had “encourage[d] [their vendees’] willful misreading of the [tax] law” by promising unwarranted tax benefits. Per that district court’s order, the Gardners were required to furnish a copy of the injunction to the Gunkles. See United States v. Gardner, 2008 WL 906696, at 6 (D. Ariz. Mar. 21, 2008), aff’d, 457 F. App’x 611 (9th Cir. 2011). 3 Case: 13-60245 Document: 00512635831 Page: 4 Date Filed: 05/20/2014 No. 13-60245 ‘business model’ of a corporation allowed the directors a say in the operations.” 4 The next step in the Gunkles’ series was their signing of a “vow of poverty,” which they had the corporation sole accept and agree to provide “all their needs as Apostles and as pastors of this church ministry. The check will be placed in the church pastoral account every two weeks according to all the needs of the pastors.” As their last step down the Gardners’ primrose path, the Gunkles deeded their residence to Bruce’s corporation sole, all the while continuing to reside there. During 2007, the tax year at issue, the Gunkles performed pastoral functions and conducted services. They also performed “sacerdotal functions” for their corporation sole. A checking account at Wells Fargo Bank was maintained in the name “The City of Refuge Christian Fellowship Pastoral Expense Account” (the “Pastoral Account”). The periodic statements for that account were mailed to the Gunkles at the residence that they had transferred to their corporation sole. Although others had signature authority on that bank account, no one except the Gunkles ever signed checks on it, and neither Gunkle had signature authority on any other checking account. Deposits into the Pastoral Account came from Bruce’s military retirement payments and Social Security disbursements, as well as from City of Refuge member and non- member contributions. The Gunkles used the funds from the Pastoral Account to pay their personal expenses, such as purchasing and maintaining automobiles, buying food and groceries, paying for household expenses, and the like. They also used that account to pay mortgage, utility, and maintenance charges on the 4 Gunkle, 2012 WL5371425 at 1. The Commissioner	{ "pile_set_name": "FreeLaw" }
74 F.3d 599 In the Matter of CAJUN ELECTRIC POWER COOPERATIVE, INC., Debtor.CAJUN ELECTRIC POWER COOPERATIVE, INC. et al., Appellants,v.CENTRAL LOUISIANA ELECTRIC COOPERATIVE, INC. et al., Appellees. No. 95-30760. United States Court of Appeals,Fifth Circuit. Jan. 25, 1996. William Hardy Patrick, III, William H. Patrick, Baton Rouge, LA, John C. Weitnauer, Richard Neal Batson, Alston & Bird, Atlanta, GA, for Cajun Elec. Power Co-op., Inc. R. Patrick Vance, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for American Commercial Terminals. Richard E. Matheny, Gordon, Arata, McCollam & Duplantis, Baton Rouge, LA, Ewell E. Eagan, Jr. and C. Peck Hayne, Jr., Gordon, Arata, McCollam & Duplantis, New Orleans, LA, Alan C. Wolf, New Orleans, LA, for Central Louisiana Elec. Co-op., Inc. Thomas Marx Bondy, William Ruth Kanter, U.S. Dept. of Justice, Civil Division Appellate Staff, Washington, DC, for U.S. on behalf of Rural Utilities Serv. John S. Koppel, U.S. Dept. of Justice, Civ. Div., Washington, DC, for U.S. on behalf of Rural Utilities Serv. and U.S. Dept. of Agriculture. Nicholas F. LaRocca, Jr., Morgan City, LA, for Teche Electric Cooperative, Inc. Tom F. Phillips, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, David J. Messina, Taylor, Porter, Brooks & Phillips, New Orleans, LA, for Gulf States Utilities Co. Appeals from the United States District Court for the Middle District of Louisiana. ON PETITIONS FOR REHEARING AND SUGGESTIONS FOR REHEARING EN BANC (Opinion November 20, 1995, 5th Cir., 1995, 69 F.3d 746). Before REYNALDO G. GARZA, BARKSDALE and EMILIO M. GARZA, Circuit Judges. ORDER OF THE COURT: 1 Taking the petitions suggesting rehearing en banc as petitions for rehearing, said petitions for rehearing are hereby GRANTED as follows: 2 "After re-reading the stipulation on file in this case, we find the conflicts of interest within the members of the Board of Cajun Electric Power Cooperative, Inc., to be such that the court below was correct in the appointment of a trustee. We therefore withdraw all of section IV of the prior opinion found at 69 F.3d 746 and we adopt the reasoning of the dissent in its place. 3 The appointment of a trustee is therefore AFFIRMED."	{ "pile_set_name": "FreeLaw" }
322 S.W.3d 548 (2010) The BUSINESS BANK OF SAINT LOUIS, Appellant, v. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, Respondent. No. ED 93569. Missouri Court of Appeals, Eastern District, Division Five. May 4, 2010. Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010. Application for Transfer Denied August 31, 2010. 549 Steven Schwartz, Matthew G. Koehker, Brown & James, P.C., St. Louis, MO, for Appellant. Robert D. Blitz, Ellen Dunne, Colleen C. Jones, Douglas A. Stockenberg, St. Louis, MO, for Respondent. ROY L. RICHTER, Judge. The Business Bank of St. Louis ("Bank") appeals the trial court's judgment granting Old Republic National Title Insurance Company's ("Old Republic") motion for summary judgment. Finding no error, we affirm. I. BACKGROUND This case concerns the scope of an agency agreement between two title companies, Old Republic and Hillsboro Title Company ("Hillsboro"). Old Republic is a Minnesota corporation with offices in Clayton, Missouri, and Hillsboro is a Missouri corporation with its principal place of business in Hillsboro, Missouri. Both companies are in the business of issuing title commitments and title insurance policies. Old Republic issues commitments and policies for real estate in several states, including Missouri. On January 28, 1994, Old Republic and Hillsboro entered into an agency agreement titled "Agreement for Appointment of Policy Issuing Agent for Old Republic National Title Insurance Company" ("Agency Agreement"). The Agency Agreement appointed Hillsboro as a title policy-issuing agent for Old Republic. The disagreement at issue stems from a different agreement between Hillsboro and three other parties, including Bank, titled "Construction and Disbursing Escrow Agreement" ("Construction Escrow Agreement"). The Construction Escrow Agreement relates to the construction of a subdivision on property for which Hillsboro, as Old Republic's agent, issued a title insurance commitment.[1] Bank ultimately sued Old Republic and Hillsboro for Hillsboro's 550 acts in connection with the Construction Escrow Agreement on the theory that Hillsboro was acting as Old Republic's express and/or apparent agent when it committed the acts in question. Since this case concerns the scope of the Agency Agreement between Old Republic and Hillsboro, we first set forth some terms of that Agreement. Section I of Hillsboro's and Old Republic's Agency Agreement is titled "Appointment of Agent," and provides as follows: [Old Republic] appoints [Hillsboro] a policy issuing agent for [Old Republic] for the purpose of signing, countersigning and issuing commitments, binders, title reports, certificates, guarantees, title insurance policies, endorsements and other agreements under which [Old Republic] assumes liability for the condition of title ... covering real estate located in the following county or counties: Franklin, Jefferson, Ste. Genevieve, Washington & St. Francois in the state of Missouri. Section III is titled "Duties of Agent" and provides, in pertinent part, that Hillsboro shall: A. Receive and process applications for title insurance and issue policies in a timely, prudent and ethical manner with due regard to recognized title insurance underwriting practices and in accordance with the rules and instructions of [Old Republic], as well as in conformity with state and local laws and practice; B. Maintain and preserve, in a separate file on each order for title insurance placed with [Hillsboro], a copy of the title insurance forms issued in that transaction, and all supporting documents on which the determination of insurability is made, including, but not limited to, affidavits, lien waivers, survey plats, searches, examinations and work sheets; C. Maintain an accurate register of title insurance forms; D. Assume full responsibility for the collection of all premiums, fees and charges attributable to the issuance of title insurance forms hereunder; E. Keep safely in an account separate from [Hillsboro's] operating accounts all funds received by [Hillsboro] from any source in connection with transactions which [Old Republic's] policy is involved, disburse said funds only for the purposes for which the same were entrusted, and reconcile all such accounts not less frequently than monthly.... Section VII, titled "Responsibility for Loss," provides that Hillsboro shall be responsible, in part, for: D. The improper closing or attempted closing by [Hillsboro] including but not limited to ... (2) failure to disburse properly or close in accordance with escrow or closing instructions, and/or (3) misappropriation of escrow or closing funds by [Hillsboro], its officers or employees.... In addition to the Agency Agreement, Old Republic provided its policy-issuing agentsincluding Hillsboroa document titled "Escrow, Closing and Settlement Services." The document stated, in part, that "[e]scrow services as used in this article refers to a wide variety of services which are related to closing real estate transactions ... and disbursing construction loan proceeds." It goes on to state that: Providing escrow services can be a significant benefit to the title insurance agency business, however, it can expose the agent and the Company to significant losses, both within and beyond the 551 coverage of the title insurance policy. Agents are therefore not authorized to close transactions on behalf of the Company without specific authorization to do so.... Any losses suffered by the Company as a result of any negligent or unauthorized closing services will be the responsibility of the Agent. On September 8, 2004, Hillsboro entered into the Construction Escrow Agreement that is the source of this litigation. Pursuant to the Construction Escrow Agreement, Hillsboro agreed to act as escrowee with respect to a construction project ("the Project"). The letterhead on the Construction Escrow Agreement displayed only Hillsboro's name and address. The other parties to the Agreement were Beaker LLC, the Project's owner, Lawless Homes, Inc. the contractor, and Bank, the mortgagee and financier. Bank deposited approximately $4.2 million with Hillsboro, about $2.4 million of which was allocated for construction costs. The contract provided that Hillsboro would receive $12,430 for its disbursing fee. Old Republic was not a signatory to the Construction Escrow Agreement. Hillsboro also issued a title insurance commitment for the Project on September 13, 2004, five days after it entered into the Construction Escrow Agreement. The commitment displayed Hillsboro's name and address at the top and also stated: "Agent for: Old Republic National Title Insurance Company." Hillsboro ultimately did not issue a title insurance policy on the Project because the construction disbursing process, the subject of the Construction Escrow Agreement, was never completed. On July 5, 2007, Bank filed a four-count petition against Hillsboro and Old Republic based on Hillsboro's performance of its duties under the Construction Escrow Agreement. The petition alleged that Hillsboro had disbursed funds in violation of the Construction Escrow Agreement, and that as a result Lawless Homes and others were paid for work that was not performed. Consequently, Bank alleged that its collateral was worth less than its construction loans. Bank charged Hillsboro and Old Republic with negligence, breach of fiduciary duty, breach of contract, and suit on a note. The petition premised Old Republic's liability on an agency theory, both express and apparent. Bank alleged that Hillsboro had express authority to disburse escrow funds, and that Old Republic knowingly caused or permitted Hillsboro to hold itself out to the public as Old Republic's agent in the construction loan disbursal capacity. Old Republic filed a motion for summary judgment and alleged that Hillsboro was neither its express nor apparent agent with respect to the Construction Escrow Agreement. The trial court granted Old Republic's motion for summary judgment. It held that Hillsboro was Old Republic's agent "for the limited purpose of issuing title insurance commitments and policies under which Old Republic `assumes liability for the condition of title [to real estate].'" To the extent that the Agency Agreement permitted Hillsboro to engage in escrow services, the trial court found them limited to those "necessary and incidental to the issuance of title commitments and policies." Bank appeals. II. DISCUSSION Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom judgment has been entered. Id. "Summary judgment is appropriate where there is no genuine issue as to any material fact and 552 the moving party is entitled to judgment as a matter of law." Schwab v. Nat'l Dealers Warranty, Inc., 298 S.W.3d 87, 89 (Mo.App. E.D.2009). For ease of analysis, we address the Bank's first two points together. In its first and second points on appeal, the Bank argues that the trial court erred in entering summary judgment because there is a genuine issue of material fact as to whether an express or an implied agency relationship existed between Old Republic and Hillsboro. We disagree. Whether a principal-agent relationship exists is generally a question of fact. Ritter v. BJC Barnes Jewish Christian Health Sys., 987 S.W.2d 377, 384 (Mo.App. E.D.1999). "However, this relationship is a question of law for the court to determine when the material facts are not in dispute, and `only one reasonable conclusion can be drawn from the material facts.'" Id. (quoting Johnson	{ "pile_set_name": "FreeLaw" }
851 P.2d 1138 (1993) 316 Or. 431 In re Complaint as to the CONDUCT OF Rodney Randall TAYLOR, Accused. OSB 89-71; SC S37525. Supreme Court of Oregon, In Banc. Submitted on the Record March 5, 1993. Decided May 27, 1993. 1139 PER CURIAM. A trial panel of the Oregon State Bar Disciplinary Board found the accused guilty of numerous violations of the disciplinary rules governing lawyers and decided that he should be disbarred. This matter is here on de novo review, ORS 9.536(2) and (3), and is submitted on the record without briefing or oral argument, pursuant to ORAP 11.25(3)(B). The Bar's complaint contains six charges of misconduct. Our findings follow. The first two charges are that the accused has been convicted of several crimes and that he should be disciplined under DR 1-102(A)(2)[1] and ORS 9.527(2).[2] The accused has been convicted in federal court of two felonies involving drugs: possession with intent to distribute marijuana; and conspiracy to manufacture, possess, and distribute marijuana, 21 U.S.C. §§ 841(a)(1) and 846. The accused also has been convicted of violating 26 U.S.C. § 7201 ("attempting] to evade or defeat a tax" by not filing an income tax return), a felony.[3] Neither drug conviction was simply a conviction for possession of a controlled substance. One conviction was for conspiracy to manufacture, possess, and distribute marijuana. One was for possession with intent to distribute marijuana. Trafficking in controlled substances is a serious crime. See In re Jaffee, 311 Or. 159, 164, 806 P.2d 685 (1991) (out-of-state lawyer who passed Oregon bar examination refused admission because he had been convicted of a felony, manufacturing a controlled substance, marijuana). The failure to file an income tax return was an attempt to evade or defeat a tax by not filing a tax return. The three convictions establish criminal conduct that reflects adversely on the accused's honesty, trustworthiness, and fitness to practice law. DR 1-102(A)(2). The third, fourth, and fifth charges are that the accused misappropriated funds from several decedents' estates. We find that the accused intentionally took $3,824 from one estate, $3,400 from another, and $8,818 from a third, in violation of DR 1-102(A)(3)[4] and DR 9-101(B)(3).[5] The sixth charge is that the accused failed to cooperate in the bar's investigation of his alleged wrongdoing by not signing 1140 a power of attorney to allow the Internal Revenue Service to disclose certain information, in violation of DR 1-103(C).[6] The accused refused to sign a power of attorney. This was necessary to assist the Lane County Local Professional Responsibility Committee in its investigation of the accused's conduct. The accused never asserted any right or privilege to justify his failure to respond to the committee's request for the power of attorney. We find that the accused intentionally violated DR 1-103(C). SANCTION In recent years, we have looked to the American Bar Association Standards for Imposing Lawyer Sanctions (1986) (ABA Standards) in determining what sanction is appropriate in bar disciplinary proceedings. ABA Standard 5.11 states that disbarment generally is appropriate when a lawyer engages in the "sale, distribution or importation of controlled substances." ABA Standard 4.1 states that disbarment generally is appropriate "when a lawyer knowingly converts client property and causes injury or potential injury to a client." The accused's acts were intentional. The estates suffered financial loss. There is but one mitigating factor, the absence of a prior disciplinary record. Even apart from his conviction for income tax evasion, it is clear that disbarment is the appropriate sanction. The accused is disbarred. NOTES [1] DR 1-102(A)(2) provides: "It is professional misconduct for a lawyer to: "**** * "(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law." [2] ORS 9.527(2) provides: "The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that: "* * * * * "(2) The member has been convicted in any jurisdiction of an offense which is a misdemeanor involving moral turpitude or a felony under the laws of this state, or is punishable by death or imprisonment under the laws of the United States * * ." [3] The accused was suspended from the practice of law on November 6, 1990, pursuant to BR 3.4(d). [4] DR 1-102(A)(3) provides: "It is professional misconduct for a lawyer to: "** "(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation." [5] DR 9-101(B)(3) provides: "A lawyer shall: ***** "(3) Maintain complete records of all funds, securities and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the lawyer's client regarding them." [6] DR 1-103(C) provides: "A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers, subject only to the exercise of any applicable right or privilege."	{ "pile_set_name": "FreeLaw" }
J-S28001-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: J.V., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.D., NATURAL MOTHER : : : : : : No. 309 MDA 2020 Appeal from the Dispositional Order Entered January 15, 2020 In the Court of Common Pleas of Lycoming County Juvenile Division at No(s): CP-41-DP-0000001-2020 BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY BOWES, J.: FILED AUGUST 14, 2020 A.D. (“Mother”) appeals the order of adjudication and disposition entered on January 15, 2020, which finds, inter alia, that she perpetrated child abuse against her infant son, J.V.1 We affirm. J.V. was born in October 2019. The juvenile court summarized the procedural and factual history that began approximately two months later: On the morning of December 4, 2019, at approximately 7:52 a.m., Mother contacted 911 and reported that [J.V.] was unresponsive. [J.V.] was first rushed to Jersey Shore Hospital, and then taken to Geisinger Medical Center by life flight and there admitted to the pediatric intensive care unit (“PICU”). [J.V.]’s treating physician made initial findings of retinal hemorrhage and brain swelling [rib fractures] and expressed concern that the injuries appeared to result from non-accidental trauma. Mother and [Father] were subject to questioning by both police and a Lycoming County Child and Youth Services (“CYS”) caseworker on the evening of December 4. Thereafter, on January 2, 2020, [J.V.] ____________________________________________ 1The juvenile court also found that T.V., the father of J.V., perpetrated child abuse. N.T., 1/15/20, at 47-48. Father did not appeal. J-S28001-20 was transferred from the PICU to the children’s unit, where his supervision by medical staff decreased, allowing his parents to regain direct care and access. On January 3, 2020, . . . CYS commenced the instant action by filing . . . a petition seeking that [J.V.] be placed in protective custody at Geisinger Medical Center, as the parents were subject to ongoing criminal and Child Protective Services (“CPS”) investigations. On the same date, the court granted an order for emergency protective custody, pending a full hearing. Following an evidentiary hearing held January 6, 2020, the court issued a recommendation for shelter care, finding it in the interest of the welfare of the child. The court granted CYS legal and physical custody of [J.V.], with contact by the parents limited to supervised visits. A dependency hearing was thereafter held on January 15, 2020, at which the court considered CYS’s dependency petition alleging that [J.V.] was a victim of child abuse as defined at 23 Pa.C.S. § 6303, and CYS’s motion for finding of aggravated circumstances. Following the dependency hearing, at which both parents were present and represented by counsel, the court issued an order of adjudication and disposition entering a finding of abuse and holding that [J.V.] was a dependent child. The court additionally made an aggravated circumstances finding under 42 Pa.C.S. § 6302, determining that [J.V.] had been a victim of physical abuse resulting in serious bodily injury, sexual violence, and/or aggravated neglect perpetrated by both parents. Juvenile Court Opinion, 3/10/20, at 2-3 (footnotes and unnecessary capitalization omitted). On February 14, 2020, Mother filed a timely notice of appeal from the adjudication and disposition and a concise statement of errors complained of -2- J-S28001-20 on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 2 She presents three issues for our review: 1. Whether the [juvenile] court erred in making a finding of abuse as defined at 23 Pa.C.S. § 6303 against [Mother] as there is no evidence Mother harmed the child[?] 2. Whether the [juvenile] court erred in making a finding of abuse as defined at 23 Pa.C.S. § 6303 against [Mother] as there was no evidence [Mother] observed or was aware of any harm being done to the child[?] 3. Whether the [juvenile] court erred in granting the Agency’s motion for a finding of aggravated circumstances as it pertains to [Mother] as there is no evidence [Mother] abused the child[?] ____________________________________________ 2 Although Mother conflates the two orders in the argument section of her brief, Mother did not appeal the finding of aggravated circumstances, which is a collateral order appealable as of right. See In re R.C., 945 A.2d 182, 184 (Pa.Super. 2008). Thus, that order is not before us. See e.g., Interest of M.H., 1286 EDA 2019, 2019 WL 6716291, at *2 (Pa.Super. 2019) (observing, “Mother did not appeal the aggravated circumstances order, but timely filed the instant appeal regarding the adjudication and dispositional order.”); Pa.R.A.P. 126(b)(2) (“Non-precedential decisions [filed after May 1, 2019] may be cited for their persuasive value”). To the extent that we would confront the merits of the order finding aggravated circumstances against Mother, we would affirm it for the reasons cogently explained by the juvenile court, The [c]ourt may find aggravated circumstances when “the child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent.” The severity of [J.V.]’s injury and the likelihood that those injuries will be permanent justified a finding of physical abuse resulting in serious bodily injury and the entry of the Aggravated Circumstances Order. Juvenile Court Opinion, 3/10/20, at 7 (footnotes omitted). -3- J-S28001-20 Mother’s brief at 7.3 We review the juvenile court’s determination of abuse for an abuse of discretion. In the Interest of J.M., 166 A.3d 408 (Pa.Super. 2017). As the alleged abuse occurred in December 2019, the current version of the Child Protective Service Law (“CPSL”), which became effective on June 12, 2018, controls our review. The statute defines child abuse, in relevant part, as follows: (b.1) Child abuse.--The term “child abuse” shall mean intentionally, knowingly or recklessly[4] doing any of the following: ____________________________________________ 3J.V.’s guardian ad litem, Angela Lovecchio, Esquire, mailed a letter to this Court stating that she did not intend to file a brief. 4 The CPSL refers to 18 Pa.C.S. § 302 with respect to the definitions of intentionally, knowingly, and recklessly. 18 Pa.C.S. § 302(b) provides as follows: (1) A person acts intentionally with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (2) A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and -4- J-S28001-20 (1) Causing bodily injury to a child through any recent act or failure to act. .... (8) Engaging in any of the following recent acts: .... (iii) Forcefully shaking a child under one year	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ FELICIA N. JONES, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2016-2381 ______________________ Petition for review of the Merit Systems Protection Board in No. DE-3443-16-0099-I-1. ______________________ Decided: December 9, 2016 ______________________ FELICIA N. JONES, Houston, TX, pro se. STEPHEN FUNG, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respond- ent. Also represented by BRYAN G. POLISUK. ______________________ Before DYK, BRYSON, and REYNA, Circuit Judges. 2 JONES v. MSPB PER CURIAM. Felicia N. Jones petitions for review of a final order of the Merit Systems Protection Board (“MSPB”) dismissing her appeal for lack of jurisdiction. We affirm. BACKGROUND On June 23, 2015, Jones filed a claim with the De- partment of Veterans Affairs (“VA”) for disability compen- sation and related benefits. The VA denied her claim because the military service Jones had alleged did not qualify as “active” service under the statutory definition of a “veteran.” See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Instead of challenging the VA’s denial of her claim at the Board of Veterans’ Appeals, however, Jones filed an appeal with the MSPB. The MSPB administrative judge (“AJ”) dismissed Jones’s appeal for lack of jurisdiction. The AJ first con- cluded that the VA’s denial of Jones’s claim did not fall under any of the appealable agency actions within the MSPB’s statutory purview, which include “a removal, a suspension of more than 14 days; a reduction in grade; a reduction in pay; [or] a furlough of 30 days or less.” J.A. 8 (citing 5 U.S.C. §§ 7512, 7513(d)). The AJ then considered the applicability of any “exceptions to the [MSPB’s] usual jurisdictional limits, such as claims based on the Whistle- blower Protection Act, Veterans Employment Opportuni- ties Act[,] and Uniformed Services Employment and Reemployment Rights Act.” J.A. 9. The AJ found that Jones had failed to allege a “personnel action” reviewable by the MSPB and that she had not alleged that she was an agency employee or applicant for employment. See 5 U.S.C. § 2302(a)(2). The AJ therefore dismissed Jones’s appeal. Jones filed a petition for review with the full MSPB, which affirmed the AJ’s decision in a final order denying her petition. Jones then filed a petition for review in this JONES v. MSPB 3 court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). DISCUSSION We review the MSPB’s jurisdictional determinations de novo, but are bound by its factual determinations if supported by substantial evidence. See Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). As a threshold matter, Jones must assert non-frivolous allega- tions that, if proven, would establish the MSPB’s jurisdic- tion. See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). To invoke the MSPB’s jurisdiction, a party must al- lege facts that demonstrate an action appealable by statute or regulation to the MSPB. See Garcia, 437 F.3d at 1327–28. The MSPB found that Jones had not alleged that she was an employee, applicant for employment, or other person entitled to appeal to the MSPB, and that the VA’s denial of veterans’ benefits was not an appealable action under any legal authority granting the MSPB jurisdiction. See generally 5 C.F.R. § 1201.3 (summarizing legal sources of the Board’s appellate jurisdiction). We agree. The exclusive course for challenging the VA’s denial of a claim for veterans’ benefits is to file an appeal before the Board of Veterans’ Appeals, not the MSPB. See 38 U.S.C. §§ 511, 7104, 7252. Accordingly, the MSPB’s final order is AFFIRMED COSTS No Costs.	{ "pile_set_name": "FreeLaw" }
Bank of Am., N.A. v Shami (2019 NY Slip Op 04901) Bank of Am., N.A. v Shami 2019 NY Slip Op 04901 Decided on June 19, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 19, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department JOHN M. LEVENTHAL, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX VALERIE BRATHWAITE NELSON, JJ. 2017-00541 2017-00542 (Index No. 8372/08) [1]Bank of America, N.A., respondent, vSolomon E. Shami, appellant, et al., defendants. Lawrence Katz, Valley Stream, NY, for appellant. McCabe, Weisberg & Conway, LLC, New Rochelle, NY (Allison Sanders and Mars Khaimov of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Solomon E. Shami appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 20, 2016, and (2) an order of the same court entered October 3, 2016. The order entered September 20, 2016, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference, and denied the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. The order entered October 3, 2016, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference, denied the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned, and appointed a referee to compute the amount due on the mortgage loan. ORDERED that the order entered September 20, 2016, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference are denied, the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is granted, and so much of the order entered October 3, 2016, as granted those branches of the plaintiff's motion, denied the cross motion, and appointed a referee to compute the amount due on the mortgage loan is vacated; and it is further, ORDERED that the appeal from the order entered October 3, 2016, is dismissed as academic in light of our determination on the appeal from the order entered September 20, 2016; and it is further, ORDERED that one bill of costs is awarded to the appellant. In May 2008, the plaintiff commenced this action to foreclose a mortgage against Solomon E. Shami (hereinafter the appellant), among others. None of the defendants answered the complaint. The record indicates that following the release of the action from the foreclosure [2]settlement part on October 6, 2008, there was no further activity in the action for several years, and, on October 23, 2012, the action was marked off the court's active calendar. By notice dated January 22, 2016, the plaintiff moved, inter alia, to vacate the dismissal of the action, to restore the action to the court's active calendar, for leave to enter a default judgment against the defendants, and for an order of reference. The appellant cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. In the orders appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the appellant's cross motion. Initially, we note that although the plaintiff moved to vacate the dismissal of the action, on this record, the action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one (see JPMorgan Chase Bank, N.A. v Mehrnia, 143 AD3d 946, 947; Countrywide Home Loans, Inc. v Gibson, 111 AD3d 875, 875-876; Rakha v Pinnacle Bus Servs., 98 AD3d 657, 658) and, therefore, the plaintiff needed only to move to restore the action to active status (see JPMorgan Chase Bank, N.A. v Mehrnia, 143 AD3d at 947; Reed v Cornell Univ., 101 AD3d 840, 842; Rakha v Pinnacle Bus Servs., 98 AD3d at 658). Notwithstanding the above, CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." The language of CPLR 3215(c) is mandatory in the first instance, inasmuch as it provides that the court "shall" dismiss the complaint when the plaintiff has not sought a default judgment within the requisite one-year period, as the action is deemed to have been abandoned (see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671; Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625). The statute gives the court discretion only where the plaintiff demonstrates "sufficient cause" as to why the complaint should not be dismissed (Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; see HSBC Bank USA, N.A. v Grella, 145 AD3d at 671). To avoid dismissal of the complaint as abandoned under such circumstances, a plaintiff must offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is potentially meritorious (see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 845-846; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d at 625). Here, the plaintiff took no proceedings for entry of a default judgment within one year following the appellant's default in the action. In claiming otherwise, the plaintiff refers to matter dehors the record, which will not be considered (see Schondorf v Brookville Energy Partners, 303 AD2d 396). Further, contrary to the plaintiff's contention, its conclusory and unsubstantiated assertions that its delay was attributable to compliance with certain administrative orders instituted after the relevant time period, i.e., more than one year following the appellant's default in the action, and waiting for receipt of additional documentation, were insufficient to excuse the lengthy delay (see BAC Home Loans Servicing, LP v Broskie, 166 AD3d 842, 843; HSBC Bank USA, N.A. v Jean, 165 AD3d 632, 634; Wells Fargo Bank, N.A. v Cafasso, 158 AD3d 848, 850; HSBC Bank USA, N.A. v Grella, 145 AD3d at 672). Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action (see Federal Natl. Mtge. Assn. v Heilpern, 164 AD3d 654, 656; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852). Accordingly, the Supreme Court should have granted the appellant's cross motion and denied the subject branches of the plaintiff's motion. LEVENTHAL, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
15 Cal.App.4th 652 (1993) 19 Cal. Rptr.2d 47 THE PEOPLE, Plaintiff and Respondent, v. GLENN RAY ALCORN, Defendant and Appellant. Docket No. F016628. Court of Appeals of California, Fifth District. May 3, 1993. 653 COUNSEL Todd D. Riebe, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Roger E. Venturi and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent. OPINION THAXTER, J. After his motion to suppress evidence was denied, appellant Glenn Ray Alcorn pleaded nolo contendere to one count of possession 654 of methamphetamine in violation of Health and Safety Code section 11378. Pursuant to the terms of a plea bargain, other counts were dismissed, and Alcorn was sentenced to 16 months in state prison. On appeal Alcorn challenges the denial of the suppression motion. FACTS On March 19, 1991, sheriff's deputies from Los Angeles and Kern Counties arrived at the Rosamond Cafe in order to arrest appellant on an outstanding felony warrant issued on March 6, 1991, in Los Angeles County. Appellant was not at the cafe, but the officers contacted Cheryl Klein, appellant's girlfriend. Klein, who lived with appellant, told the deputies appellant was either at their apartment or in Lancaster, a nearby city. Klein accompanied the officers back to the apartment. At some point she was told she would be aiding and abetting if she did not cooperate with the officers. Upon entering the apartment, the officers found appellant sleeping in the bedroom. Appellant was arrested pursuant to the authority of the Los Angeles warrant. After making the arrest, the officers observed narcotics in the apartment. Thereafter, the Kern County deputies obtained a telephonic search warrant based on their observations and searched the apartment. Narcotics, paraphernalia and a loaded handgun were found. Both Klein and appellant were arrested as a result. Klein and appellant were jointly charged with various offenses. At the motion to suppress, Klein argued she had been unlawfully detained at the cafe, that the officers entered the apartment without a warrant and that the arrest warrant did not justify the entry because it was not produced at the hearing. Appellant joined in the motion. Appellant argued he was entitled to see the actual warrant and made numerous demands that it be produced. At the hearing, the arresting officer testified he had been shown a copy of an abstract of the Los Angeles arrest warrant and that sheriff's deputies commonly make arrests on the basis of abstracts. A copy of the computer printout of the abstract was admitted into evidence.[1] The trial court denied the motion as to appellant stating: "The probable cause for the arrest in this case is the discovery of the narcotics in the apartment, not the arrest warrant. In this case, the arrest was warrantless, but amply supported by the items found." (Italics in original.) 655 DISCUSSION Appellant contends his suppression motion should have been granted because the prosecution failed to produce the arrest warrant and therefore could not justify the entry into his apartment. The trial court rejected appellant's argument on the grounds that the seizure of the narcotics and related evidence was based on the search warrant, not the arrest warrant. The court's analysis, however, overlooks the fact that probable cause for the search warrant rested on the officers' observations after they entered the apartment. The officers did not enter the residence pursuant to a search warrant. Respondent concedes that the evidence sought to be suppressed by appellant was "fruit" of the officers' entry to execute the arrest warrant. (1) A warrantless entry into a residence is presumptively unreasonable under the Fourth Amendment. (People v. Cain (1989) 216 Cal. App.3d 366, 370 [264 Cal. Rptr. 339], citing Mincey v. Arizona (1978) 437 U.S. 385, 390 [57 L.Ed.2d 290, 298-299, 98 S.Ct. 2408].) The entry here was not consensual. Thus the prosecution must show the officers were lawfully "at the looking place" when they made their observations. An officer may enter a residence in order to execute a valid arrest warrant if the officer reasonably believes the suspect is inside. (People v. Jacobs (1987) 43 Cal.3d 472, 478-479 [233 Cal. Rptr. 323, 729 P.2d 757].) There is no question the officer here reasonably believed appellant was inside. Klein told the officers appellant was either at the apartment or in Lancaster. Thus the only question is whether the officers had a valid arrest warrant when they entered the apartment. If so, the officers were lawfully in the apartment when they observed the narcotics which led to the search warrant, the discovery of the additional evidence, and appellant's arrest in this case. A. An officer may rely on information received through official channels. (2) It is well settled that an officer may reasonably rely on information received through official channels to support an arrest. An officer may rely on information from other officers within his or her own department and from other departments and jurisdictions. (See United States v. Hensley (1985) 469 U.S. 221, 229-230 [83 L.Ed.2d 604, 612-613, 105 S.Ct. 675]; People v. Conway (1990) 222 Cal. App.3d 806, 811 [271 Cal. Rptr. 832]; Hewitt v. Superior Court (1970) 5 Cal. App.3d 923, 929 [85 Cal. Rptr. 493]; People v. Wohlleben (1968) 261 Cal. App.2d 461, 465 [67 Cal. Rptr. 826].) The general rule is that an officer may rely on the "collective knowledge" of law enforcement to establish probable cause to arrest. (Remers v. Superior 656 Court (1970) 2 Cal.3d 659, 666-667 [87 Cal. Rptr. 202, 470 P.2d 11].) However, when the arresting officer relies upon information gathered by other officers, the court looks to the "total police activity" to test the constitutional reasonableness of the conduct in question. The prosecution must still prove that the arrest (or detention) was constitutionally valid. (Ibid.; see also People v. Ramirez (1983) 34 Cal.3d 541, 551 [194 Cal. Rptr. 454, 668 P.2d 761]; Whiteley v. Warden (1971) 401 U.S. 560 [28 L.Ed.2d 306, 91 S.Ct. 1031].) B. The prosecution must prove the arrest was lawful. Appellant argues the prosecution failed to meet its burden because it did not produce the actual arrest warrant, choosing instead to rely on the abstract. Appellant relies on People v. Romanoski (1984) 157 Cal. App.3d 353 [204 Cal. Rptr. 33], which held the prosecution must produce the actual warrant or a certified copy when the validity of an arrest pursuant to warrant is challenged. In Romanoski, the arresting officer was told by another officer that Romanoski was wanted on an outstanding arrest warrant. When making the arrest, the arresting officer saw items in Romanoski's car linking Romanoski to a recent burglary. Romanoski moved to suppress the evidence. The prosecution presented testimony by the officer who informed the arresting officer of the warrant. He gave conflicting testimony on whether he had ever actually seen the warrant. Neither the original warrant nor a copy or abstract thereof was offered in evidence. The conviction was reversed on the grounds that a defendant has a right to ascertain whether a warrant was valid at the time of arrest and therefore the prosecution was required to produce the warrant upon request by the defendant. The same court which decided Romanoski reexamined it in People v. Armstrong (1991) 232 Cal. App.3d 228 [283 Cal. Rptr. 429]. The Armstrong court first considered the continued validity of Remers v. Superior Court, supra, 2 Cal.3d 659 and its predecessors in light of the United States Supreme Court decision in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], which adopted a good faith standard in search and seizure cases. Armstrong presents a careful analysis of the relationship between Leon and Remers and concluded Remers remains valid law in California. "... [W]here an arrest is made on communicated police information of an outstanding arrest warrant, the prosecution if challenged must prove the transmitted arrest warrant information, acted on in good faith by the arresting officer, was in fact received by the transmitting officer." (People v. Armstrong, supra, 232 Cal. App.3d at p. 241.) *657 In evaluating the effect of Leon on Remers, the Armstrong court notes that Leon constitutes recognition by the nation's Supreme Court that the exclusionary rule extracts a significant cost from society and that whenever the rule is applied, it is important to ask whether the cost to society is justified. (Armstrong, supra, 232 Cal. App.3d at pp. 238-239.) This is correct. Recent cases have concluded the exclusionary rule is too costly when an officer has acted in good faith, albeit without probable cause. (See People v. Camarella (1991) 54 Cal.3d 592, 606-607 [286 Cal. Rptr. 780, 818 P.2d 63]; People v. Palmer (1989) 207 Cal. App.3d 663, 666 [255 Cal.	{ "pile_set_name": "FreeLaw" }
535 U.S. 1021 GORDONv.CITY OF NEW ORLEANS ET AL. No. 01-8499. Supreme Court of the United States. April 22, 2002. 1 C. A. 5th Cir. Certiorari denied. Reported below: 273 F. 3d 393.	{ "pile_set_name": "FreeLaw" }

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